Master Craft Jewelry Co. v. Holmes Protection of New York, Inc.

277 A.D.2d 56, 717 N.Y.S.2d 4, 2000 N.Y. App. Div. LEXIS 11952

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Jane Solomon, J.), entered October 29, 1999, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff entered into a contract with defendant for the installation and operation of certain electronic surveillance devices. The contract provided that absent a further premium payment for indemnification, defendant would not be liable for damages resulting from a failure of the system. It is conceded that no such payment was made. Under the circumstances, defendant would only be liable for its gross negligence.

The court properly determined that defendant’s conduct in not sending an employee to investigate signals indicating a possible alarm system malfunction and in checking these signals electronically was not grossly negligent as it was not indicative of intentional wrongdoing (see, Hartford Ins. Co. v Holmes Protection Group, 250 AD2d 526, 528; Consumers Distrib. Co. v Baker Protective Servs., 202 AD2d 327, lv denied 84 NY2d 811). The court correctly determined that there were no factual issues to be tried and did not engage in any fact resolution. Concur — Mazzarelli, J. P., Lerner, Rubin, Buckley and Friedman, JJ.