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Midtown Distribs. Corp. v Mutual Cent. Alarm Servs., Inc. - 2008 NY Slip Op 02199 - Decided on March 13, 2008

Midtown Distribs. Corp. v Mutual Cent. Alarm Servs., Inc.

2008 NY Slip Op 02199


Decided on March 13, 2008

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 13, 2008

Lippman, P.J., Andrias, Williams, McGuire, JJ.

[*1]Midtown Distributors Corp., Plaintiff-Appellant,

Mutual Central Alarm Services, Inc., Defendant-Respondent.

Mitchell L. Pashkin, Huntington, for appellant.

Callan, Koster, Brady & Brennan, LLP, New York (Eric L.

Shoikhetman of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered on or about December 18, 2006, which, insofar as appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing plaintiff's cause of action for breach of contract, unanimously affirmed, with costs.

Plaintiff's claims that defendant burglar alarm company installed a different alarm system and a different number of sensors than provided in the parties' contract, and failed to determine that the alarm had been tripped by burglars rather than birds, are barred by the exculpatory clause in the contract (see Sue & Sam Mfg. Co. v United Protective Alarm Sys., 119 AD2d 664 [1986]; Nuri Fahardi, Inc. v Albany Ins. Co., 137 AD2d 429 [1988]). Plaintiff does not allege such gross negligence as would avoid the exculpatory clause (cf. Hartford Ins. Co. v Holmes Protection Group, 250 AD2d 526, 527-528 [1998]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 13, 2008