Midtown Distribs. Corp. v Mutual Cent. Alarm Servs., Inc.

Midtown Distribs. Corp. v Mutual Cent. Alarm Servs., Inc. 2008 NY Slip Op 02199 [49 AD3d 346] March 13, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 14, 2008

Midtown Distributors Corp., Appellant,
v
Mutual Central Alarm Services, Inc., Respondent.

—[*1] Mitchell L. Pashkin, Huntington, for appellant.

Callan, Koster, Brady & Brennan, LLP, New York City (Eric L. Shoikhetman of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered on or about December 18, 2006, which, insofar as appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing plaintiff's cause of action for breach of contract, unanimously affirmed, with costs.

Plaintiff's claims that defendant burglar alarm company installed a different alarm system and a different number of sensors than provided in the parties' contract, and failed to determine that the alarm had been tripped by burglars rather than birds, are barred by the exculpatory clause in the contract (see Sue & Sam Mfg. Co. v United Protective Alarm Sys., 119 AD2d 664 [1986]; Nuri Farhardi, Inc. v Albany Ins. Co., 137 AD2d 429 [1988]). Plaintiff does not allege such gross negligence as would avoid the exculpatory clause (cf. Hartford Ins. Co. v Holmes Protection Group, 250 AD2d 526, 527-528 [1998]). Concur—Lippman, P.J., Andrias, Williams and McGuire, JJ.