Cliff Chan, et al., appellants, v Counterforce Central Alarm
Services Corp., et al., respondents, et al., defendant.
(Index No. 3635/08)
2010-10992
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND
DEPARTMENT
2011 NY Slip Op 7197; 2011 N.Y. App. Div. LEXIS 7071
October 11, 2011, 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: Feder Kaszovitz LLP, New York, N.Y. (Howard I. Rhine and David Sack of
counsel), for appellants.
Kevin Kerveng Tung, P.C., Flushing, N.Y. (Kun Zhao of counsel), for respondent
Wintech Systems, Inc., formerly known as Winner Technology, Inc.
JUDGES: PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, PLUMMER
E. LOTT, JJ. SKELOS, J.P., DICKERSON, LEVENTHAL and LOTT, JJ., concur.
OPINION
DECISION & ORDER
In an action, inter alia, to recover damages for gross negligence, the
plaintiffs appeal from an order of the Supreme Court, Nassau County (Brandveen,
J.), dated September 14, 2010, which granted that branch of the motion of the
defendant Wintech Systems, Inc., formerly known as Winner Technology, Inc.,
which was for summary judgment dismissing the cause of action alleging gross
negligence insofar as asserted against it and, in effect, searched the record
and awarded summary judgment to the defendant Counterforce Central Alarm
Services Corp. dismissing the cause of action alleging gross negligence insofar
as asserted against that defendant.
ORDERED that the order is affirmed, with costs payable by the plaintiffs to
the defendant Wintech Systems, Inc., formerly known as Winner Technology, Inc.
In October 2004, the plaintiffs and Winner Technology, Inc. (hereinafter
Winner), entered into a contract which provided, among other things, that Winner
would install and monitor a burglar alarm system in the plaintiffs' home
(hereinafter the premises). Under the terms of the contract, monitoring services
were performed by Counterforce Central Alarm Services Corp. (hereinafter
Counterforce). The premises were burglarized on April 22, 2005, and the
plaintiffs subsequently commenced this action against, among others,
Counterforce and Wintech Systems, Inc. (hereinafter Wintech), the successor
company of Winner. The plaintiffs interposed causes of action against
Counterforce and Wintech alleging, inter alia, gross negligence and breach of
contract.
Wintech, among other things, moved for summary judgment dismissing the cause
of action alleging gross negligence insofar as asserted against it. The Supreme
Court granted that branch of Wintech's motion and, in effect, searched the
record and awarded summary judgment to Counterforce dismissing the cause of
action alleging gross negligence insofar as asserted against Counterforce. We
affirm.
A burglar alarm agreement which contains an exculpatory clause shields the
burglar alarm company from liability only for ordinary negligence, not for gross
negligence (see Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821,
823-824; Golden Stone Trading, Inc. v Wayne Electro Sys., Inc., 67 AD3d 731, 732
; Adler v Columbia Sav. & Loan Assn., 26 AD3d 349, 350). "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" (Colnaghi, U.S.A. v Jewelers
Protection Servs., 81 NY2d at 823-824, quoting Sommer v Federal Signal Corp., 79
NY2d 540, 554; see Adler v Columbia Sav. & Loan Assn., 26 AD3d at 350; Federal
Ins. Co. v Honeywell, Inc., 243 AD2d 605, 606; Federal Ins. Co. v Automatic
Burglar Alarm Corp., 208 AD2d 495, 496).
Here, in support of its motion, Wintech proffered evidence which established,
prima facie, that the conduct of Winner and Counterforce in connection with the
installation and monitoring of the burglar alarm system at the premises did not
rise to the level of gross negligence (see Colnaghi, U.S.A. v Jewelers
Protection Servs., 81 NY2d at 824; David Gutter Furs v Jewelers Protection Servs
., 79 NY2d 1027, 1029; Midtown Distribs. Corp. v Mutual Cent. Alarm Servs., Inc
., 49 AD3d 346; cf. Green v Holmes Protection of N.Y., 216 AD2d 178, 179;
Hanover Ins. Co. v D & W Cent. Sta. Alarm Co., 164 AD2d 112, 115). In
opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez
v Prospect Hosp., 68 NY2d 320, 324). Accordingly, the Supreme Court properly
granted that branch of Wintech's motion which was for summary judgment
dismissing the cause of action alleging gross negligence insofar as asserted
against it and, in effect, searched the record and awarded summary judgment
dismissing the cause of action alleging gross negligence insofar as asserted
against Counterforce.
In light of the foregoing, we need not reach the parties' remaining
contentions.
SKELOS, J.P., DICKERSON, LEVENTHAL and LOTT, JJ., concur.