Alter v. Advance Alarm Co., 131 A.D.2d 406, 516 N.Y.S.2d 75 (N.Y.A.D. 2 Dept., Jun 01, 1987) (NO. 596E, 597E)

Supreme Court, Appellate Division, Second Department, New York.
Anatole ALTER, etc., Respondent,v.ADVANCE ALARM COMPANY, Appellant.

June 1, 1987.

 Action was brought against burglary alarm service to recover damages for breach of contract and gross negligence.   Service moved for summary judgment dismissing complaint on grounds of exculpatory clause.   The Supreme Court, Kings County, Levine, J., denied motion for summary judgment dismissing complaint, and appeal was taken.   The Supreme Court, Appellate Division, held that substantial issues of material fact existed as to activities of services' employees during period when burglary apparently occurred, precluding summary judgment, notwithstanding existence of exculpatory clauses.
 Affirmed.

West Headnotes
[1] Telecommunications  463372k463 Most Cited Cases
Exculpatory clauses contained in burglary alarm service contracts are valid, where intention of parties is clearly expressed;  however, such clauses will not relieve party of liability for wrongful or grossly negligent acts.
[2] Judgment  181(15.1)228k181(15.1) Most Cited Cases (Formerly 228k181(15))
In action brought against burglary alarm service for breach of contract and gross negligence, substantial issues of material fact existed as to activities of employees of burglary alarm service during period when burglary apparently occurred, precluding summary judgment, even though contract contained exculpatory clauses. **75 Kirschenbaum & Kirschenbaum, P.C. (Kenneth Kirschenbaum, of counsel), for appellant.
 Gwertzman, Pfeffer, Toker & Lefkowitz, New York City (Ellen Marie Larkin, of counsel), for respondent.

 *408 Before MANGANO, J.P., and THOMPSON, KUNZEMAN and SULLIVAN, JJ.


 MEMORANDUM BY THE COURT.
 *406 In an action to recover damages for breach of contract and gross negligence, the defendant appeals (1) from an order of the Supreme Court, Kings County (Levine, J.), dated May 15, 1986, which denied its motion for summary judgment dismissing the complaint, and (2) as limited by its brief, from so muchof an order of the same court, dated October 14, 1986, as, upon renewal, adhered to its original determination.
 ORDERED that the appeal from the order dated May 15, 1986 *407 is dismissed as that order was superseded by the order dated October 14, 1986, made upon renewal;  and it is further,
 ORDERED that the order dated October 14, 1986, is affirmed;  and it is further,
 **76 ORDERED that the respondent is awarded one bill of costs.
 The plaintiff contracted with the defendant for a burglar alarm service, including guard response.   After his business was burglarized, the plaintiff brought this action, alleging breach of contract and gross negligence.   The contract between the parties included exculpatory clauses which relieved the defendant of liability for "any loss occasioned by malfeasance or misfeasance in the performance of the services under this contract or for any loss or damage sustained through burglary" and for any losses due to "the improper working of any equipment, device or connecting circuit, or * * * the failure of a signal to be received * * * or * * * any delay in sending a man to the premises * * * or * * * any negligent act or negligent failure to act."
 [1] This court has upheld the validity of exculpatory clauses contained in burglar alarm service contracts where the parties' intention is clearly expressed (see, e.g., Sanif, Inc. v. Iannotti, 119 A.D.2d 654, 500 N.Y.S.2d 798;  Sue & Sam Mfg. Co. v. United Protective Alarm Sys., 119 A.D.2d 664, 501 N.Y.S.2d 102;  Advance Burglar Alarm Sys., v. D'Auria, 110 A.D.2d 860, 488 N.Y.S.2d 416).   However, such a clause will not relieve a party of liability for willful or grossly negligent acts (see, Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N.E.2d 306).   Here the plaintiff contends that the defendant's actions, or failures to act, amounted to gross negligence.
 [2] The defendant moved for summary judgment based on the exculpatory clauses in the contract and therefore had the initial burden of establishing that the plaintiff's cause of action had no merit (see, GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 967, 498 N.Y.S.2d 786, 489 N.E.2d 755).   The defendant failed to meet this burden since it did not provide any competent evidence of its employees' activities during the period when the burglary apparently occurred.   Since the defendant had exclusive knowledge of the pertinent facts, the court appropriately denied the defendant's motion in order to permit the plaintiff to complete discovery proceedings (see, Government Employees Ins. Co. v. Desiderio, 104 A.D.2d 791, 480 N.Y.S.2d 132).
 We note that should the exculpatory clause be determined to be inapplicable based on a finding of gross negligence by the trier of fact, the contract contains a clause which limits the defendant's liability to one-half the annual service charge *408 under the contract.   Such limitation of liability clauses have been upheld in burglar alarm service contracts where, as here, the language is clear (see, e.g., Florence v. Merchants Cent. Alarm Co., 51 N.Y.2d 793, 433 N.Y.S.2d 91, 412 N.E.2d 1317;  Rinaldi & Sons v. Wells Fargo Alarm Serv., 39 N.Y.2d 191, 383 N.Y.S.2d 256, 347 N.E.2d 618).
516 N.Y.S.2d 75, 131 A.D.2d 406
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