79 N.Y.2d 1027; 594 N.E.2d 924, *;
584 N.Y.S.2d 430, **; 1992 N.Y. LEXIS 1301, ***
David Gutter Furs, Respondent, v. Jewelers Protection Services, Ltd.,
Appellant.
No. 91
COURT OF APPEALS OF NEW YORK
79 N.Y.2d 1027; 594 N.E.2d 924; 584 N.Y.S.2d 430; 1992 N.Y. LEXIS 1301
May 12, 1992, Decided
DISPOSITION: [***1]
Order reversed, with costs.
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff fur dealer brought an action for negligence
and breach of contract against defendant company, which had designed,
installed and monitored a burglar alarm system. The company sought summary
judgment based upon the exculpatory and limitation clauses included in the
contract. The trial court denied the motion, the judgment of which was
affirmed by the Appellate Division of the Supreme Court (New York). The
company appealed.
OVERVIEW: Before moving to a new location, the fur dealer contracted with a
company to design, install, and monitor a burglar alarm system. Several
weeks after the dealer had occupied its new premises, furs worth about $
300,000 were stolen in a nighttime burglary, but the alarm did not sound. In
the dealer's action for negligence and breach of contract, the company
sought summary judgment on the basis of contractual exculpatory and
limitation of liability clauses. The dealer, however, claimed that those
clauses were unenforceable because the company was grossly negligent, basing
his assertion on an expert's opinion that stated in part that there should
have been two motion detectors, instead of one, on each level. On appeal,
the court concluded that such allegations did not raise an issue of fact as
to whether the company performed its duties with reckless indifference to
the dealer's rights. The court held that that the contractual exculpatory
and limitation of liability clauses were enforceable.
OUTCOME: The court reversed the order from the appellate court and granted
the company's motion for summary judgment in the fur dealer's action for
negligence and breach of contract.
CORE TERMS: memorandum, summary judgment granted, limitation of liability,
certified question, contractual, exculpatory, answered, fur
LexisNexis (TM) HEADNOTES - Core Concepts - Show Concepts
COUNSEL: Sheila L. Birnbaum, for appellant.
Submitted by Alexander J. Wulwick, for respondent.
JUDGES: Chief Judge Wachtler and Judges Kaye, Hancock, Bellacosa and
Yesawich concur.
OPINION: [*924] [**430] MEMORANDUM
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs,
defendant's motion for summary judgment granted, and the certified question
answered in the negative.
Before moving to a new location, plaintiff, a fur dealer, contracted with
defendant to design, install and monitor a burglar alarm system. In December
1986, several weeks after plaintiff occupied its new premises, furs worth
about $ 300,000 were stolen in a nighttime burglary, but the alarm did not
sound. In plaintiff's action for negligence and breach of contract,
defendant sought summary judgment on the basis of contractual exculpatory
and limitation of liability clauses, but plaintiff claimed that those
clauses are unenforceable because defendant was grossly negligent.
Plaintiff's assertion of gross negligence is based on its expert's opinion
that there should have been two motion detectors, instead of one, on each
level; a shock sensor should [***2] have been installed; defendant should
have ascertained how the inventory would be arranged; and a post-occupancy
inspection should have been undertaken. Taken together, these allegations do
not raise an issue of fact whether defendant performed its duties with
reckless indifference to plaintiff's rights, and thus the contractual
[*925] [**431] exculpatory and limitation of liability clauses are
enforceable (see, Sommer v Federal Signal Corp., NY2d [decided
today]).
* * * * * * * * * * * * * * * * *
Order reversed, with costs, defendant's motion for summary judgment granted
and certified question answered in the negative in a memorandum. Chief Judge
Wachtler and Judges Kaye, Hancock, Bellacosa and Yesawich concur. Judges
Simons and Titone took no part.
Decided May 12, 1992