Supreme Court, Appellate Division, Second Department, New York.
SUE & SAM MANUFACTURING CO., Respondent,v.UNITED PROTECTIVE ALARM SYSTEMS, INC., etc., Appellant.
April 14, 1986.
In action to recover damages for breach of contract and gross negligence in connection with installation of security alarm system, defendant appealed from order of the Supreme Court, Kings County, Monteleone, J., which denied its motion for summary judgment dismissing complaint and, upon reargument, adhered to its original determination. The Supreme Court, Appellate Division, held that exculpatory clause in contract which covered failure to perform any obligation under agreement was applicable to preclude recovery by plaintiff for breach of contract damages based upon installer's failure to install two motion detectors as required bycontract.
Order reversed and complaint dismissed.
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Exculpatory clause in contract for installation, leasing or servicing of alarm system negated liability of installer for breach of contract in failing to install two motion detectors as required by contract. **102 Kirschenbaum & Kirschenbaum, P.C., Garden City (Kenneth Kirschenbaum, of counsel; Mark Weinberger, on brief), for appellant.
Speyer, Thurm, Perlberg & Heller, New York City (Richard A. Gash, of counsel), for respondent.
Before LAZER, J.P., and NIEHOFF, KOOPER and SPATT, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for breach of contract and gross negligence, the defendant appeals (1) from an order of the Supreme Court, Kings County (Monteleone, J.), dated March 25, 1985, which denied its motion for summary judgment dismissing the plaintiff's complaint, and (2) as limited by its brief, from so much of an order of the same court, dated July 3, 1985, as, upon reargument, adhered to its original determination.
Appeal from the order dated March 25, 1985, dismissed. That order was superseded by the order dated July 3, 1985, made upon reargument.
Order dated July 3, 1985 reversed, on the law, and order dated March 25, 1985 vacated, motion granted, and complaint dismissed.
The defendant is awarded one bill of costs.
New York courts have repeatedly and consistently enforced exculpatory clauses in contracts for the installation, leasing, and servicing of alarm systems, and have dismissed claims for breach of these contracts where the plaintiff seeks to recover damages for losses sustained as a result of burglaries (see, Florence v. Merchants Cent. Alarm Co., 51 N.Y.2d 793, 433 N.Y.S.2d 91, 412 N.E.2d 1317; Rinaldi & Sons v. Wells Fargo Alarm Serv., 39 N.Y.2d 191, 383 N.Y.S.2d 256, 347 N.E.2d 618; Dubovsky & Sons v. Honeywell, Inc., 89 A.D.2d 993, 454 N.Y.S.2d 329). Special Term attempted to distinguish prior cases which enforced such exculpatory clauses by pointing out that in this case the defendant **103 allegedly breached the contract at its inception (by failing to install two "motion detectors", as required by the contract), rather than when the loss occurred or by failing "to perform services pursuant to the contract". We conclude that there is no legal basis for such a distinction, since exculpatory clauses have been enforced where the defendant is alleged to have breached the contract at its inception, i.e., by negligently installing the alarm equipment (see, Advance Burglar Alarm Sys. v. D'Auria, 110 A.D.2d 860, 488 N.Y.S.2d 416). Furthermore, the exculpatory clause of the contract explicitly covers "the failure to perform any obligation under this agreement".
The record reveals that the plaintiff, in opposing the defendant's *665 motion for summary judgment, has totally failed to present any evidence in admissible form which raises an issue of fact as to whether the defendant's conduct constituted gross negligence, thereby requiring dismissal of the second cause of action seeking damages for gross negligence. The plaintiff cannot rely on conclusory assertions of gross negligence, contained in the pleadings, to defeat a motion for summary judgment (see, Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776).
501 N.Y.S.2d 102, 119 A.D.2d 664
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