Supreme Court, Appellate Division, Fourth Department, New York.
ARELL'S FINE JEWELERS, INC., Respondent-Appellant,v.HONEYWELL, INC., Appellant-Respondent,Automatic Fire Alarm Company, Inc., Third-Party Defendant-Appellant-Respondent,andAvco Corporation, Third-Party Defendant.
Feb. 3, 1989.
On appeal from order of the Supreme Court, Monroe County, Curran, J., on motion to dismiss complaint against defendant which maintained burglar alarm system, the Supreme Court, Appellate Division, held that defendant which maintains burglar alarm system cannot contract to relieve itself from liability for acts constituting gross negligence.
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Defendant which maintains burglar alarm system cannot contract to relieve itself from liability for acts constituting gross negligence.
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Agreements which purport to exempt party from liability for willful or grossly negligent acts are contrary to public policy and are void, and there is no sufficient distinction between an agreement which completely relieves a party from liability and one which limits liability to a nominal sum.
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Plaintiff's failure to raise issue before special term prevented defendant from submitting evidentiary material in opposition, and precluded appellate review. **366 *922 Harris, Beach, Wilcox, Rubin and Levey, by David Chaffin, Rochester (Wickens, Hare, Koches & Cale, Boston, Mass. of counsel) for appellant-respondent Honeywell, Inc.
Kirschenbaum & Kirschenbaum, P.C. by Kenneth Kirschenbaum, Garden City, for third-party defendant-appellant-respondent Automatic Fire Alarm Co.
Culley, Marks, Corbett, Tanenbaum, Reifsteck & Potter by Cheryl Heller, Rochester, for respondent-appellant.
Before CALLAHAN, J.P., and DENMAN, GREEN, BALIO and DAVIS, JJ.
 We hold that a defendant which maintains burglar alarm systems cannot contract to relieve itself from liability for acts constituting gross negligence. Agreements which purport to exempt a party from liability for willful or grossly negligent acts are contrary to public policy and are void (Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N,E.2d 306), and there is no significant distinction between an agreement which completely relieves a party from liability and one which limits liability to a nominal sum (see, Federal Ins. Co. v. Honeywell Protection Services, 641 F.Supp. 1560, 1562-1563; see also, Nuri Farhardi, Inc. v. Albany Ins. Co., 137 A.D.2d 429, 524 N.Y.S.2d 445; cf., Sol E. Feldman Furs v. Jewelers Protection Servs., 134 A.D.2d 171, 520 N.Y.S.2d 760, and Alter v. Advance Alarm Co., 131 A.D.2d 406, 516 N.Y.S.2d 75).
 We do not reach plaintiff's claim, raised for the first time on appeal, that the written agreement expired and that the limitation of liability clause did not become part of an implied-in-fact contract. Whether an implied-in- fact contract was formed and, if so, the extent of its terms, involves factual issues regarding the intent of the parties and the surrounding circumstances (see, New York Telephone Co. v. Jamestown Tel. Corp., 282 N.Y. 365, 26 N.E.2d 295; Twitchell v. Town of Pittsford, 106 A.D.2d 903, 483 N.Y.S.2d 524, affd. 66 N.Y.2d 824, 498 N.Y.S.2d 363, 489 N.E.2d 250). Plaintiff's failure to raise this issue before Special Term precluded the defendant from submitting evidentiary material in opposition, and we conclude that the issue has not been preserved for appellate review (First Int. Bank of Israel v. L. Blankstein & Son, 59 N.Y.2d 436, 447, 465 N.Y.S.2d 888, 452 N.E.2d 1216; Fuller v. Martin, 109 A.D.2d 1060, 487 N.Y.S.2d 905, affd. 109 A.D.2d 1109, 487 N.Y.S.2d 624).
Order unanimously affirmed without costs.
537 N.Y.S.2d 365, 147 A.D.2d 922
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