SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
2009 NY Slip Op 8177; 67 A.D.3d 731; 889 N.Y.S.2d 72; 2009
N.Y. App. Div. LEXIS 8025
November 10, 2009, Decided
THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OFTHE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TOREVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
COUNSEL: Joel Lutwin, New York, N.Y. (Aaron Lebenger and Seligson, Rothman &Rothman [Martin S. Rothman and Alyne I. Diamond], of counsel), for appellant.
Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, Mineola, N.Y. (NicoleLicata-McCord of counsel), for respondent Wayne Electro Systems, Inc.
Kirschenbaum & Kirschenbaum, Garden City, N.Y. (Paul J. Tramontano and KennethKirschenbaum of counsel), for respondent Affiliated Central, Inc.
JUDGES: FRED T. SANTUCCI, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, SHERI S.ROMAN, JJ. SANTUCCI, J.P., CHAMBERS, HALL and ROMAN, JJ., concur.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, theplaintiff appeals from (1) an order of the Supreme Court, Queens County (Dorsa,J.), dated May 16, 2008, which granted the motion of the defendant AffiliatedCentral, Inc., for summary judgment dismissing the complaint insofar as assertedagainst it, and (2) an order of the same court, also dated May 16, 2008, whichgranted the motion of the defendant Wayne Electro Systems, Inc., for summaryjudgment dismissing the complaint insofar as asserted against it.
ORDERED that the orders are affirmed, with one bill of costs.
The plaintiff and the defendant Wayne Electro Systems, Inc. (hereinafterWayne), entered into a contract which provided, among other things, for theleasing, installation, and monitoring of an alarm system in the plaintiff'scommercial premises. Wayne had previously engaged the defendant AffiliatedCentral, Inc. (hereinafter Affiliated), as its subcontractor to perform alarmmonitoring services, and the plaintiff, Wayne, and Affiliated entered into anAlarm Monitoring Service Agreement (hereinafter the Affiliated contract). On orabout January 23, 2006, the plaintiff's commercial premises were burglarized.The plaintiff commenced this action against, among others, Wayne and Affiliated,interposing causes of action against Wayne and Affiliated alleging negligence,gross negligence, breach of contract, and breach of warranty.
Both Wayne and Affiliated moved separately for summary judgment dismissingthe complaint insofar as asserted against each of them. Each argued, inter alia,that it was exempted from liability for its own negligence, breach of contract,and breach of warranty by the terms of its respective contract with theplaintiff. They further argued that the plaintiff had not demonstrated a causeof action alleging gross negligence.
Contractual provisions in a burglar alarm contract absolving a party from itsown negligence generally will be enforced; however, those provisions whichpurport to shield the burglar alarm company from gross negligence will not (seeColnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821, 823-824, 611 N.E.2d282, 595 N.Y.S.2d 381; Sommer v Federal Signal Corp., 79 NY2d 540, 554, 593N.E.2d 1365, 583 N.Y.S.2d 957; Aphrodite Jewelry v D & W Cent. Sta. Alarm Co.,256 AD2d 288, 289, 681 N.Y.S.2d 305; Hartford Ins. Co. v Holmes Protection Group, 250 AD2d 526, 673 N.Y.S.2d 132).
Contrary to the plaintiff's contention, it did not allege conduct by eitherWayne or Affiliated which rose to the level of gross negligence and, thus, thecauses of action interposed against them alleging ordinary negligence are barredby the provisions in each contract absolving Wayne and Affiliated,respectively, from their own negligence (see Colnaghi, U.S.A. v JewelersProtection Servs., 81 NY2d at 823-824; Hartford Ins. Co. v Holmes ProtectionGroup, 250 AD2d at 526; Aphrodite Jewelry v D & W Cent. Sta. Alarm Co., 256 AD2dat 289).
Similarly, the causes of action alleging breach of contract and breach ofwarranty against Wayne and Affiliated also are barred by provisions in therespective contracts (see Aphrodite Jewelry v D & W Cent. Sta. Alarm Co., 256AD2d at 289).
"A party who executes a contract is presumed to know its contents and toassent to them' [and] [a]n inability to understand the English language, withoutmore, is insufficient to avoid this general rule" (Holcomb v TWR Express, Inc.,11 AD3d 513, 514, 782 N.Y.S.2d 840, quoting Moon Choung v Allstate Ins. Co., 283AD2d 468, 468, 724 N.Y.S.2d 882; see Pimpinello v Swift & Co., 253 NY 159,162-163, 170 N.E. 530; Sofio v Hughes, 162 AD2d 518, 520, 556 N.Y.S.2d 717).Although Guo Hua Lin, the plaintiff's president and sole shareholder(hereinafter its president), signed both the Wayne and Affiliated contracts, heaverred, in an affidavit, that he was unable to read or speak English, orunderstand the contracts. However, the plaintiff neither showed that itspresident made any reasonable effort to have the contracts read to him, nordemonstrated that any agent of either Wayne or Affiliated, or any other person,misrepresented the contents of the contracts to him. Accordingly, the plaintiffmay not rely on its president's inability to speak English to invalidate thecontracts (see e.g. Holcomb v TWR Express, Inc., 11 AD3d at 514; Sofio v Hughes,162 AD2d at 520).
The plaintiff's remaining contentions are without merit.
SANTUCCI, J.P., CHAMBERS, HALL and ROMAN, JJ., concur.