KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Comment on Retaining fob to customer’s access control system / Comment on separate entity for monitoring
August 1 2023
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Comment on Retaining fob to customer’s access control system from article on July 6, 2023
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Ken
          Stan’s question provokes additional commentary.
          He references “…the standard of the industry…”; what standard would that be? You rightly point out this is the same as having the customer’s key, which is also becoming a thing of the past by both the use of technology and increased liability.
Finally servicing a client without the client being on site is an equally slippery slope – whether residential or commercial.   
Ivan Spector,
Alarme Sentinelle
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Another comment
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Ken
          I read your comment about having key fobs for your company in somebody’s database for access control. And I do tell everybody that’s what we’re doing and it’s more for coming over and doing service work than anything else. Is it one of those things where you have to have them sign off on a contract saying you’re doing that or letting them know that it’s in there is perfectly fine.
Adam Cohen
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Comment on needing a separate entity for monitoring
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Ken
          It does not necessarily have to be the person or business that sustained the loss, their insurance company may come back at you to recoup what they paid out.
          In the early 80's we did a repair on a sprinkler system that was installed in the 1920's, FDNY came and witnessed a test of the system the following year and we started doing monthly inspections.  A few years later they were going to move from Queens NY to Mt Vernon NY to get away from city regulations and lower rent.  The employees, most of who did not have a car and walked to work, were notified that they would be moving in a month.  A couple nights later the owner received a call from the police that there was a fire at the business and the FD was there; he responded and the FD said one sprinkler fused and put out the fire; sprinkler was changed by them and the system put back in service; violation issued to replace the spare sprinkler; that was when we were called. 
          I asked the owner if he needed it that day and he said no, anytime in the next few days.  Two days later he called back and said he needed three spare sprinklers and that if possible to bring them that day, I said you mentioned one the other day, he said they had another fire last night, he would explain when I got there.  The feeling was, a disgruntled employee set the fires to get back at the owner; fire marshals agreed.  Both times the sprinklers worked and extinguished the fires without any appreciable damage, except for some shipping supplies that got wet; insurance paid out $3200 for the loss.  Months later we received a letter from Fireman's Fund Insurance, when I opened the outer envelope there was a note attached to the inner envelope that said, do not open forward to your insurance carrier.  I opened it and called, explained that we did not install the system we just did a minor repair and test with FDNY, the system worked and put out both fires.
          The person I was speaking with did not know about the first fire and said obviously the claim was made in error, he would correct the records.  Another couple of months went by and we were served with papers.  I went to the court and spoke with the clerk; he had me fill out a form to give my answer and set a date for trial;  I answered with the facts.
          The day of the trial I went to court and while waiting for the cases to be called an attorney called out my name and when I answer be began asking why are we here? I said because you sued us, to which he ranted I should have just sent the letter to our insurance company so they could recoup some of the money; I was wasting everyone's time.
          The Judge called the case, the attorney started his spiel, the judge stopped him and said let me read the cause of action and answer. The judge then asked me, do I have this right, the system was installed in the 1920's, was repaired by you, tested with FDNY, there were two fires in three days, both times the system put the fire out and they are suing you for water damage?  I said yes, the attorney started rambling on, and the judge stopped him, said case dismissed and if you bring an action before the court for something like this I will hold you in contempt, you have been warned. 
          As I was leaving the attorney stopped me in the hall and started yelling at me for what I did, and I said you started it, I finished it, learn from your mistakes.
          So, your subscriber, customer, client may have no say in the matter, it could be their insurance carrier with big pockets and many lawyers that are going to be in court anyway trying to recoup all or some of what they paid out.
          Just to defend a case will be very costly, even when you are right and the claim is unjustified.
          I have since learned a lot, use K&K contracts and keep in touch with our insurance carrier if there is any chance of an issue.
Jeff
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Response
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          Here’s some more news; a corporation can’t appear in court without a lawyer, so you got lucky with this judge.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com