[**1]  Alfred Lenoci, Jr., respondent, v Secure Alarm
           Installations, LLC, appellant (and a third-party action).
                              (Index No. 24864/08)

                                   2011-10217

             SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND
                                   DEPARTMENT

              2012 N.Y. App. Div. LEXIS 5651; 2012 NY Slip Op 5729


                             July 25, 2012, Decided

NOTICE:

   THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING
RELEASE OF
THE FINAL PUBLISHED VERSION.    THIS OPINION IS UNCORRECTED AND SUBJECT TO
REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

COUNSEL:  [*1] Milber Makris Plousadis & Seiden, LLP, White Plains, N.Y.
(David
C. Zagarelli of counsel), for appellant.

Finger & Finger, White Plains, N.Y. (Kenneth J. Finger of counsel), for
respondent.

JUDGES: DANIEL D. ANGIOLILLO, J.P., RANDALL T. ENG, PLUMMER E. LOTT,
LEONARD B.
AUSTIN, JJ. ANGIOLILLO, J.P., ENG, LOTT and AUSTIN, JJ., concur.

OPINION


DECISION & ORDER

   In an action, inter alia, to recover damages for breach of contract, the
defendant appeals from an order of the Supreme Court, Westchester County
(Tolbert, J.), entered September 27, 2011, which denied its motion for
summary
judgment dismissing the complaint.

   ORDERED that the order is modified, on the law, by deleting the provisions
thereof denying those branches of the defendant's motion which were for
summary
judgment dismissing the causes of action alleging ordinary negligence,
breach of
contract, breach of warranty, and fraud, and substituting therefor provisions
granting those branches of the motion; as so modified, the order is affirmed,
without costs or disbursements.

   In 2001 the plaintiff entered into a contract with the defendant
pursuant to
which the defendant was required to install and monitor a burglar and fire
alarm
system in the plaintiff's  [*2] residence. The system included glass-break
detectors on windows in the first-floor library of the residence, which,
when a
window is broken, transmit a signal. The contract between the plaintiff
and the
defendant contained a provision exculpating and limiting the liability of the
defendant for its ordinary negligence in the event of loss. In 2006 the
defendant inspected the system and replaced magnets on several of the
windows,
but did not test the glass-break detectors on the windows. On November 15,
2007,
a burglar purportedly gained entrance to the plaintiff's residence by
breaking a
window in the library, but no signal was transmitted to the defendant. The
defendant's owner then determined that the broken window had an ultraviolet
coating which hampered the effectiveness of the glass-break detector. The
defendant's owner had no previous knowledge that ultraviolet coating could
hamper the effectiveness of the glass-break detector. The plaintiff commenced
this action against the defendant asserting causes of action to recover
damages
for ordinary negligence, gross negligence, breach of contract, breach of
warranty, and fraud. The defendant moved for summary judgment dismissing the
[*3] complaint.

   The Supreme Court should have granted those branches of the defendant's
motion which were for summary judgment dismissing the causes of action
alleging
ordinary negligence, breach of contract, breach of warranty, and fraud. The
defendant established, prima facie, that the  [**2]  causes of action
alleging
ordinary negligence, breach of contract, and breach of warranty are barred by
the exculpatory and limitation of liability provisions in the contract (see
Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821, 823-824, 611
N.E.2d
282, 595 N.Y.S.2d 381; Sommer v Federal Signal Corp., 79 NY2d 540, 554, 593
N.E.2d 1365, 583 N.Y.S.2d 957; Golden Stone Trading, Inc. v Wayne Electro
Sys.,
Inc., 67 AD3d 731, 732, 889 N.Y.S.2d 72; Aphrodite Jewelry v D & W Cent.
Station
Alarm Co., 256 AD2d 288, 289, 681 N.Y.S.2d 305). The defendant further
established that the cause of action alleging fraud was duplicative of the
breach of contract cause of action (see Kaufman v Torkan, 51 AD3d 977,
980, 859
N.Y.S.2d 253; Ross v DeLorenzo, 28 AD3d 631, 636, 813 N.Y.S.2d 756; Weitz v
Smith, 231 AD2d 518, 519, 647 N.Y.S.2d 236). In opposition, the plaintiff
failed
to raise a triable issue of fact.

   However, the Supreme Court properly denied that branch of the defendant's
motion which was for summary judgment dismissing the cause of action alleging
gross negligence.  [*4] The exculpatory and limitation of liability
provisions
of the contract are unenforceable against a claim of gross negligence (see
Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d at 823-824; Sommer v
Federal Signal Corp., 79 NY2d at 550-553). Further, the evidence submitted by
the defendant did not eliminate triable issues of fact regarding whether the
defendant acted with gross negligence in installing and monitoring the alarm
system (see Sommer v Federal Signal Corp., 79 NY2d at 555; Federal Ins. Co. v
Automatic Burglar Alarm Corp., 208 AD2d 495, 496, 617 N.Y.S.2d 53; Gentile v
Garden City Alarm Co., 147 AD2d 124, 131, 541 N.Y.S.2d 505).

   The defendant's remaining contention is without merit.

   ANGIOLILLO, J.P., ENG, LOTT and AUSTIN, JJ., concur.