Aphrodite Jewelry, Inc. v. D&W Cent. Station Alarm Co., Inc., 256 A.D.2d 288, 681 N.Y.S.2d 305, 1998 N.Y. Slip Op. 10729 (N.Y.A.D. 2 Dept., Dec 07, 1998) (NO. 98-05707)

Supreme Court, Appellate Division, Second Department, New York.
APHRODITE JEWELRY, INC., Respondent,v.D&W CENTRAL STATION ALARM CO., INC., Appellant.

Dec. 7, 1998.

 After suffering two burglaries during the contract term, retailer brought suit against alarm company to recover damages for negligence and breach of contract. The Supreme Court, Queens County, Lonschein, J., granted summary judgment in favor of alarm company, dismissing various causes of action, and retailer appealed. The Supreme Court, Appellate Division, held that causes of action were barred by the provision of the contract which absolved alarm company from its own negligence in installing, servicing, and monitoring a burglar alarm system on retailer's premises.
 Affirmed.

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Although contractual provisions absolving a party from its own negligence generally will be enforced, such clauses will not be enforced to exempt a party from liability for its gross negligence.
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"Gross negligence" differs in kind, not only degree, from claims of ordinary negligence; it is conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing. 
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Absent allegations of conduct rising to the level of gross negligence, retailer's causes of action sounding in tort were barred by the provision of the contract which absolved alarm company from its own negligence in installing, servicing, and monitoring a burglar alarm system on retailer's premises.
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Retailer's causes of action alleging breach of contract and breach of warranty were specifically barred by the exculpatory clause of the contract between the parties, which absolved alarm company from its own negligence in installing, servicing, and monitoring a burglar alarm system on retailer's premises. **306 Kirschenbaum & Kirschenbaum, P.C., Garden City, N.Y. (Kenneth Kirschenbaum of counsel), for appellant.
 Preston & Wilkins, Richmond Hills, N.Y. (Gregory R. Preston of counsel), for respondent.

 MANGANO, P.J., JOY, FRIEDMANN and GOLDSTEIN, JJ.


 MEMORANDUM BY THE COURT.
 *288 In an action, inter alia, to recover damages for negligence and breach of contract, the defendant appeals from so much of an order of the Supreme Court, Queens County (Lonschein, J.), dated April 29, 1998, as, in effect, denied that branch of its motion which was for summary judgment dismissing the first, second, *289 fourth, fifth, seventh, eighth, and ninth causes of action asserted in the complaint.
 ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendant'smotion which was for summary judgment dismissing the first, second, fourth, fifth, seventh, eighth, and ninth causes of action asserted in the complaint is granted, and the complaint is dismissed.
 The plaintiff owns and operates a retail jewelry business.   The defendant D & W Central Station Alarm Co., Inc. (hereinafter D & W), owns and operates a certified central station alarm company, and contracted to install, service, and monitor a burglar alarm system on the plaintiff's premises.   The plaintiff commenced the instant action against D & W to recover damages it allegedly suffered as a result of two burglaries which occurred during the term of its contract with D & W. The causes of action asserted in the complaint alleged, inter alia, gross negligence, breach of warranty, and breach of contract.
 D & W moved for summary judgment dismissing the complaint on the ground, inter alia, that certain provisions of the contract exempted it from liability for its own negligence and for breach of contract.   The Supreme Court, in effect, granted D & W's motion as to the third and sixth causes of action, and denied the motion with respect to the other causes of action asserted in the complaint.
 [1][2][3] Although contractual provisions absolving a party from its own negligence generally will be enforced, such clauses will not be enforced to exempt a party from liability for its gross negligence (see, Colnaghi, U.S.A. v. Jewelers Protection Servs., 81 N.Y.2d 821, 823-824, 595 N.Y.S.2d 381, 611 N.E.2d 282).  "Used in this context, 'gross negligence' differs in kind, not only degree, from claims of ordinary negligence.   It is conduct that evinces a reckless disregard for the rights of others or 'smacks' of intentional wrongdoing" (**307Colnaghi, U.S.A. v. Jewelers Protection Servs., supra at 823-824, 595  N.Y.S.2d 381, 611 N.E.2d 282, quoting Sommer v. Fed. Signal Corp., 79 N.Y.2d 540, 554, 583 N.Y.S.2d 957, 593 N.E.2d 1365). In the instant case, the plaintiff did not allege conduct by D & W which rises to the level of gross negligence, and the causes of action sounding in tort are barred by the provision of the contract which absolves D & W from its own negligence (see, Colnaghi, U.S.A. v. Jewelers Protection Servs., supra; Gutter Furs v. Jewelers Protection Servs., 79 N.Y.2d 1027, 1029, 584 N.Y.S.2d 430, 594 N.E.2d 924;  Hartford Ins. Co. v. Holmes Protection Group, 250 A.D.2d 526, 673 N.Y.S.2d 132;  Guston Furs v. Comet Realty Corp., 225 A.D.2d 417, 640 N.Y.S.2d 485).
 [4] Similarly, the plaintiff's causes of action alleging breach of contract and breach of warranty are specifically barred by the exculpatory clause of the contract between the parties (see, Sue & Sam Mfg. Co. v. United Protective Alarm Sys., 119 A.D.2d 664, 501 N.Y.S.2d 102).
 We do not address D & W's assertion that it was entitled to *290 summary judgment on its counterclaim.   D & W's notice of appeal expressly limited the appeal to "that part of the order which denied [its] motion for summary judgment dismissing the complaint" (see, Watts v. Town of Gardiner, 90 A.D.2d 615, 616, 456 N.Y.S.2d 161).
681 N.Y.S.2d 305, 256 A.D.2d 288, 1998 N.Y. Slip Op. 10729
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