Supreme Court, Appellate Division, Second Department, New York.
NORTHBROOK PROPERTY & CASUALTY INSURANCE COMPANY, etc., et al., Appellants,v.D.J.L. WAREHOUSE CORP., Defendant;Holmes Protection Inc., Respondent.
Jan. 9, 1989.
Owner of goods stored at burglarized premises and owner's subrogor brought action against installer and maintainer of burglar alarm system to recover damages for property loss arising from alleged negligent maintenance and operation of system. The Supreme Court, Queens County, Cooperman, J., granted summary judgment in favor of installer and maintainer. Appeal was taken. The Supreme Court, Appellate Division, held that: (1) subrogor failed to preserve for appellate review issue that owner of goods was intended third- party beneficiary of burglar alarm service contract, and (2) there was no duty owing from installer and maintainer of system to owner of goods, and thus, installer and maintainer could not be held liable for property loss.
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Subrogor of owner of goods stored at burglarized premises failed to preserve for appellate review, in action against installer and maintainer of burglary alarm system to recover damages for property loss, issue that owner of goods was intended third-party beneficiary of burglar alarm service contract where subrogor failed to allege that issue in opposition to motion for summary judgment filed by installer and maintainer of burglar alarm system.
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There was no duty owing from installer and maintainer of burglar alarm system to owner of goods stored at burglarized premises, and hence, installer and maintainer incurred no liability toward owner of goods; installer and maintainer's purported dereliction was in the nature of nonfeasance, i.e., failure to repair alarm system, rather than misfeasance, i.e., negligent performance. **180 Fardella & Feldman, Baldwin (Bertram Herman, of counsel), for appellants.
Kirschenbaum & Kirschenbaum, P.C., Garden City (Kenneth Kirschenbaum and Ira Levine, of counsel), for respondent.
*575 Before THOMPSON, J.P., and RUBIN, SPATT and BALLETTA, JJ.
*574 MEMORANDUM BY THE COURT.
In an action to recover damages for property loss arising from the alleged negligent maintenance and operation of a burglar alarm system, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Cooperman, J.), dated April 20, 1987, as granted that branch of the motion of the defendant Holmes Protection Inc. which was for summary judgment dismissing the plaintiffs' complaint as against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
 The defendants Holmes Protection Inc. (hereinafter Holmes) and D.J.L. Warehouse Corp. (hereinafter DJL) entered into a contract whereby Holmes agreed to install and maintain a burglar alarm system. The plaintiff A.P. Enterprises/Zenex Electronics International (hereinafter AP) stored electronic equipment at a DJL facility which was subsequently burglarized. In opposition to Holmes's motion for summary judgment, AP's subrogor, the plaintiff Northbrook Property & Casualty Insurance Company failed to allege that AP was an intended third-party beneficiary of the burglar alarm service contract between the defendants and, therefore, the issue is not preserved for appellate review. In any event, nothing in the contract suggests that the parties intended to confer a direct benefit on the purported third-party beneficiary (see, Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38, 495 N.Y.S.2d 1, 485 N.E.2d 208; Corporate Leasing v. AFA Protective Systems, 101 A.D.2d 768, 476 N.Y.S.2d 134; Bernal v. Pinkerton's, Inc., 52 A.D.2d 760, 382 N.Y.S.2d 769, affd. 41 N.Y.2d 938, 394 N.Y.S.2d 638, 363 N.E.2d 362). Furthermore, there was no duty owing from Holmes to AP. Holmes's purported dereliction was in the nature of nonfeasance, i.e., the failure to repair the alarm system rather than misfeasance, i.e., negligent performance. Hence, it incurred *575 no liability toward AP, an unintended and incidental beneficiary of the contract (see, Corporate Leasing v. AFA Protective Systems, supra ).
We have examined the plaintiffs' remaining contentions and find them to be without merit.
536 N.Y.S.2d 179, 146 A.D.2d 574
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