81 N.Y.2d 821, *; 611 N.E.2d 282, **;
595 N.Y.S.2d 381, ***; 1993 N.Y. LEXIS 105


Colnaghi, U.S.A., Ltd., et al., Respondents, v. Jewelers Protection
Services, Ltd., Appellant, et al., Defendant.
(And Another Action.)

No. 104 SSM 62

COURT OF APPEALS OF NEW YORK

81 N.Y.2d 821; 611 N.E.2d 282; 595 N.Y.S.2d 381; 1993 N.Y. LEXIS 105


February 23, 1993, Decided

PRIOR HISTORY:

Appeal, by permission of the Appellate Division of the Supreme Court in the
First Judicial Department, from an order of that court, entered May 12,
1992, which, inter alia, affirmed an order of the Supreme Court (Beatrice
Shainswit, J.), entered in New York County, which, inter alia, denied a
motion by defendant Jewelers Protection Services, Ltd. for summary judgment
dismissing the complaint and third-party complaint asserted against it. The
following question was certified by the Appellate Division: "Was the order
of this Court ... properly made?"

Colnaghi, U.S.A. v Jewelers Protection Servs., 183 AD2d 469, reversed.

DISPOSITION: On review of submissions pursuant to section 500.4 of the Rules
of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


CASE SUMMARY

PROCEDURAL POSTURE: Appellant alarm company challenged an order of the
Appellate Division of the Supreme Court in the First Judicial Department
(New York), that denied its motion for summary judgment dismissing the
complaint and third-party complaint asserted against it.


OVERVIEW: Respondent art gallery filed an action against alarm company in
tort and breach of contract following a burglary in the art gallery. The
alarm company filed a motion for summary judgment seeking to have the art
gallery's complaint dismissed. The lower court denied alarm company's
motion. The alarm company challenged that decision and the court reversed.
The court held that the alarm company's action did not meet the standard of
grossly negligent with relation to the installation of the alarm system.
Thus, the court held that alarm company's failure to install a second motion
detector and a shock sensor, did not raise an issue of fact on reckless
indifference.


OUTCOME: The court reversed the order which denied the alarm company's
motion for summary judgment.


CORE TERMS: gross negligence, skylight, summary judgment, alarm, burglar
alarm, burglar, gallery, evince, triable issue of fact, intentional
wrongdoing, reckless disregard, breach of contract, grossly negligent, own
negligence, issue of fact, art gallery, contractual, recklessness,
exonerating, unprotected, third-party, suggestive, absolving, abrogate,
paintings, absolve, broke, wire

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COUNSEL:

Conway, Farrell, Curtin & Kelly, P. C., New York City (Jonathan Uejio of
counsel), for appellant.

Mound, Cotton & Wollan, New York City (Renee Plessner of counsel), for
respondents.

JUDGES: Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and
Bellacosa concur in memorandum; Judge Smith taking no part.

OPINION: [*822] [**283] [***382]

The order of the Appellate Division should be reversed, with costs,
defendant's motion for summary judgment dismissing the complaint and the
third-party complaint granted, and the certified question answered in the
negative.

Jewelers Protection Services, Ltd. (Jewelers), an alarm company, contracted
with Colnaghi, U.S.A., Ltd. (Colnaghi), an art gallery, to install, maintain
and monitor two burglar alarm systems at Colnaghi's Manhattan premises. On
February 8, 1988, burglars broke into the gallery through an unprotected
skylight and stole 20 paintings, including two owned by Umberto Melina that
had been consigned to Colnaghi for sale.

Colnaghi and its insurer commenced an action against [*823] Jewelers
sounding in tort and breach of contract, seeking $ 10,000,000 in damages.
Similarly, in a separate action, Melina sued Colnaghi and Jewelers. Finally,
in the latter case, Colnaghi sought contribution against Jewelers in the
event it was found liable to Melina.

Jewelers moved for summary judgment dismissing both complaints and
Colnaghi's contribution claim, relying in part on clauses in its subscriber
agreement exonerating it from liability for negligence. Supreme Court denied
the motions in their entirety, finding an issue of fact on gross negligence
that would, in the court's view, vitiate the contractual exoneration
provisions.

The Appellate Division modified by dismissing Melina's action against
Jeweler's, holding that Jeweler's had no duty to the consignor. (Melina has
not appealed from that determination and it is therefore not before us.) The
Appellate Division, however, agreed with Supreme Court that Colnaghi raised
a triable issue of fact on gross negligence, inasmuch as the gallery's alarm
expert asserted, in an affidavit, that the alarm company's failure to
provide any protection to the skylight created a "major vulnerability" in
the alarm system at a likely burglar entry point, rendering the system "far
below professional standards and customary practice in the industry." (183
AD2d 469, 470.) We reverse and grant Jeweler's motions for summary judgment.

We note at the outset that, like the parties in Gutter Furs v Jewelers
Protection Servs. (79 NY2d 1027), the issue as framed by the litigants is
whether there is a triable issue of fact on gross negligence. No argument is
presented here that plaintiff's remedies are limited to breach of contract
and that no tort action lies at all (compare, Sommer v Federal Signal Corp.,
79 NY2d 540, 550-553).

New York law generally enforces contractual provisions absolving a party
from its own negligence ( Sommer v Federal Signal Corp., 79 NY2d, at 553,
supra; see, Melodee Lane Lingerie Co. v American Dist. Tel. Co., 18 NY2d 57,
69; Ciofalo v Vic Tanney Gyms, 10 NY2d 294, 297-298). Public policy,
however, forbids a party's attempt to escape liability, through a
contractual [**284] [***383] clause, for damages occasioned by "grossly
negligent conduct" ( Sommer v Federal Signal Corp., 79 NY2d, at 554, supra).
Used in this context, "gross negligence" differs in kind, not only degree,
from claims of ordinary negligence. It is conduct that evinces a reckless
disregard for the rights of [*824] others or "smacks" of intentional
wrongdoing ( Sommer v Federal Signal Corp., 79 NY2d, at 554, supra).

Colnaghi's allegations do not meet this standard. The failure to wire a
skylight, while perhaps suggestive of negligence or even "gross negligence"
as used elsewhere, does not evince the recklessness necessary to abrogate
Colnaghi's agreement to absolve Jeweler's from negligence claims (see,
Gutter Furs v Jewelers Protection Servs., 79 NY2d 1027, 1029, supra
[expert's opinion that alarm company should have installed a second motion
detector and a shock sensor, ascertained how inventory was to be arranged
and conducted a postoccupancy inspection, taken together, raises no issue of
fact on reckless indifference]; compare, Sommer v Federal Signal Corp., 79
NY2d, at 555, supra).

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and
Bellacosa concur in memorandum; Judge Smith taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court
of Appeals (22 NYCRR 500.4), order reversed, etc.