Federal Ins. Co. v. Automatic Burglar Alarm Corp., 208 A.D.2d 495, 617 N.Y.S.2d 53 (N.Y.A.D. 2 Dept., Oct 03, 1994) (NO. 93-04325)

Supreme Court, Appellate Division, Second Department, New York.
FEDERAL INSURANCE COMPANY, etc., Respondent,v.AUTOMATIC BURGLAR ALARM CORP., Appellant.

Oct. 3, 1994.

 Insurer, as assignee of check cashing corporation, brought action against burglar alarm company after paying check cashing corporation's claim for losses it had sustained when its premises was burglarized.   The Supreme Court, Queens County, O'Donoghue, J., denied burglar alarm company's motion for summary judgment, and burglar alarm company appealed.   The Supreme Court, Appellate Division, held that burglar alarm company's prior notice of malfunctioning of check cashing corporation's burglar alarm system and burglar alarm company's servicing and repair of that system raised issues of fact precluding summary judgment on whether burglar alarm company was grossly negligent.
 Affirmed.

West Headnotes
[1] Telecommunications  463372k463 Most Cited Cases
Although New York law generally enforces contractual provisions absolving burglary alarm companies from their own negligence, public policy forbids alarm companies from attempting to escape liability, through contractual clauses, for damages caused by grossly negligent conduct.
[2] Negligence  273272k273 Most Cited Cases (Formerly 272k13)
"Grossly negligent conduct" is conduct that evinces reckless disregard for rights of others or that involves intentional wrongdoing. 
[3] Judgment  186228k186 Most Cited Cases
On motion for summary judgment, court's role is to determine whether there is material issue of fact to be tried, not to resolve it.
[4] Judgment  181(33)228k181(33) Most Cited Cases
Allegations that burglar alarm company had prior notice of malfunctioning of check-cashing company's burglar alarm system, and burglar alarm company's servicing and repair of that system raised issues of fact precluding summary judgment on whether burglar alarm company was grossly negligent. **53 Kirschenbaum & Kirschenbaum, P.C., Garden City (Kenneth Kirschenbaum and Douglas G. Tischler, of counsel), for appellant.
 **54 Rosner & Nocera, New York City (Peter A. Ragone and George Rodriguez, of counsel), for respondent.

 Before SULLIVAN, J.P., and SANTUCCI, JOY and KRAUSMAN, JJ.


 *495 MEMORANDUM BY THE COURT.
 In an action to recover damages for breach of contract and gross negligence, the defendant appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated March 2, 1993, which denied its motion for summary judgment dismissing the complaint.
 ORDERED that the order is affirmed, with costs.
 The plaintiff, Federal Insurance Company, as the assignee of *496 its policyholder Cross Bay Check Cashing Corp. (hereinafter Cross Bay), commenced this action against the defendant, Automatic Burglar Alarm Corp., after paying Cross Bay's claim for losses that Cross Bay had sustained when its premises had been burglarized.   The plaintiff contended, inter alia, that the defendant had been grossly negligent in its installation, maintenance, and repair of the burglar alarm system at Cross Bay's premises.   Contending that the plaintiff had proffered insufficient evidence to raise a triable issue of fact with regard to the issue of gross negligence, the defendant moved for summary judgment.   The motion was denied by the Supreme Court, Queens County.
 [1][2] Although New York law generally enforces contractual provisions absolving burglar alarm companies from their own negligence, public policy forbids such companies from attempting to escape liability, through contractual clauses, for damages occasioned by grossly negligent conduct (see, Colnaghi, U.S.A. v. Jewelers Protection Servs., 81 N.Y.2d 821, 823, 595 N.Y.S.2d 381, 611 N.E.2d 282;  Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 553-554, 583 N.Y.S.2d 957, 593 N.E.2d 1365;  Idone v. Pioneer Sav. & Loan Assn., 159 A.D.2d 560, 561, 552 N.Y.S.2d 424;  Gentile v. Garden City Alarm Co., 147 A.D.2d 124, 541 N.Y.S.2d 505).   When used in this context, grossly negligent conduct is conduct that evinces a reckless disregard for the rights of others or that smacks of intentional wrongdoing (see, Colnaghi, U.S.A. v. Jewelers Protection Servs., supra, 81 N.Y.2d at 823-824, 595 N.Y.S.2d 381, 611 N.E.2d 282;  see also, Sommer v. Federal Signal Corp., supra, 79 N.Y.2d at 554, 583 N.Y.S.2d 957, 593 N.E.2d 1365).
 [3][4] On a motion for summary judgment, the court's role is to determine whether there is a material issue of fact to be tried, not to resolve it (see, Sommer v. Federal Signal Corp., supra, at 554, 583 N.Y.S.2d 957, 593 N.E.2d 1365;  Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387).   We agree with the Supreme Court that the plaintiff's allegations regarding the defendant's prior notice of the malfunctioning of Cross Bay's burglar alarm system and the defendant's servicing and repair of that system raise issues of fact with respect to whether or not the defendant was grossly negligent.
617 N.Y.S.2d 53, 208 A.D.2d 495
END OF DOCUMENT