Hot off the press decision, which you can read in its entirety at http://www.kirschenbaumesq.com/newyork25.htm chalks up a win for ADT and Diebold. The decision is straight forward and interesting quotes are below [legal citations omitted]
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This action arises out of an overnight burglary of plaintiff's bank and vault
in 2004. On the date of the loss, ADT was obligated by written agreements to
provide a central station burglar alarm system to protect plaintiff's premises.
At the same time, Diebold was obligated by a separate agreement to monitor the
signals of ADT's reporting system, and to provide the equipment necessary to
perform such monitoring as well as additional security alarm equipment for
redundant central station security monitoring. The breach-of-contract cause of
action alleges these defendants' failures to provide security protection, to
check the system to ensure its viability, and to notify plaintiff and the police
upon receipt of alarms, suspicious signals or abnormalities within the system.
The gross negligence cause of action is based upon the same failures coupled
with the fact that the burglars were able to carry out their crime without
interruption over an extended period of time.
The agreements contained provisions that effectively exonerated these
defendants from liability for their own negligence or limited the damages
recoverable therefrom to nominal sums. Such contractual provisions are generally
enforceable under New York law, although as a matter of public policy, a party
may not contractually insulate itself from liability caused by its own grossly
negligent conduct
Under its agreement with Diebold, plaintiff was required to insure the
premises and their contents against perils that included theft, and to look
solely to its insurer for recovery in the event of a loss, waiving all such
claims against Diebold. This waiver-of-subrogation provision constitutes a
defense to all of plaintiff's claims, including gross negligence.
Although plaintiff's agreement with ADT did not contain a waiver-of-subrogation provision, it did require plaintiff to obtain its own insurance to cover the loss. In light of our
holding, it is unnecessary to reach defendants' additional argument that
plaintiff lacks standing to assert claims based upon losses sustained by its
safe deposit customers