Alarm Specialists Inc. v Zherka

[*1] Alarm Specialists Inc. v Zherka 2004 NY Slip Op 50786(U) Decided on July 16, 2004 City Court Of Mount Vernon Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 16, 2004
City Court of Mount Vernon

ALARM SPECIALISTS INC., Plaintiff,

against

CARMELA ZHERKA AND SELIM ZHERKA, Defendants.



1426-04



Karen M. Riggio, Esq., Attorney for Plaintiff, 1562 First Avenue, Suite 174, New York, New York 10028. Robert A. Scher, Esq., Scher & Scher, P.C., Attorneys for Defendants, 111 Great Neck Road, Great Neck, New York 11021

Adam Seiden, J.

Plaintiff commenced this commercial claims action against the defendants seeking to recover $2,411.01 (two thousand four hundred and eleven dollars and one cent) representing monitoring services provided to the defendants' property and legal fees.

It is uncontested that the parties entered into a written alarm monitoring service agreement on February 24, 1998. The said agreement was executed for an initial five year period which ended on February 23, 2003. One of the provisions of the agreement is an "automatic renewal" clause, which provides "this Agreement shall renew itself annually unless either party gives to the other party at least sixty days written notice of its intentions to terminate the agreement at the end of the current term by registered mail."

Plaintiff claims that the defendants failed to cancel the agreement in accordance with the automatic renewal clause, and therefore are liable for the services provided. Further, the plaintiff claims that the defendants accepted services after they allegedly cancelled the agreement. Specifically, plaintiff alleges that at defendant Carmela DiMargo Zherka's request, plaintiff reprogrammed the computer chip, tested the alarm system and provided monitoring services to the defendants' property. In support of this contention, plaintiff has provided a service order, wherein a service technician responded to the defendants' residence on or about August 22, 2003 to check the power on the panel and replaced a battery. The order is signed and dated by Carmela Zherka, acknowledging the satisfactory completion of the above described work.

Defendants argue that they called the plaintiff to cancel the agreement. They allege that the plaintiff did not respond with calls when the alarm went off. They further contend that the automatic renewal clause as written in the parties agreement violates the provisions of the General Obligations Law. The Court agrees.

General Obligations Law § 5-903, entitled "Automatic renewal provision of contract for service or repair unenforceable by contractor unless notice thereof given to recipient of services", provides as follows:

No provision of a contract for service, maintenance or repair to or for [*2]

any real or personal property which states that the term of the contract shall be deemed renewed for a specified additional period unless the

person receiving the service . . . gives notice to the person furnishing

such contract . . . of his intention to terminate the contract at the expiration

of the such term, shall be enforceable against the person receiving the

service . . . unless the person furnishing the service . . . at least fifteen

days and not more that thirty days previous to the time specified for serving such notice upon him, shall give the person receiving the service,

. . . written notice, served personally or by certified mail, calling the attention

of that person to the existence of such provision in the contract.

The alarm monitoring services contract in the present case clearly falls within the types of contracts the statute covers. Here, there was no evidence presented that plaintiff gave the notice required by the said statute. As such, the Court finds that the automatic renewal provision of the contract is unenforceable against the defendants, and they are not liable for the monitoring services provided to them by the plaintiff after the expiration of the agreement on February 23, 2003 (NYDIC/Westchester Mobile MRI Associate, LP v Lawrence Hospital, 242 AD2d 686 (2d Dept. 1997)). However, in the interest of doing substantial justice between the parties, the Court finds the defendants liable in the amount of $180.07, which represents the labor and costs associated with replacing the alarm battery and checking the system after a power failure on August 22, 2003. In accordance with the agreement, the defendants are directed to return the alarm system equipment to the plaintiff.

This constitutes the Decision and Order of this Court.

Dated: Mount Vernon, New York

July 16, 2004HON. ADAM SEIDEN

Associate City Judge of Mount Vernon

Karen M. Riggio, Esq., Attorney for Plaintiff, 1562 First Avenue, Suite 174, New York, New York 10028. Robert A. Scher, Esq., Scher & Scher, P.C., Attorneys for Defendants, 111 Great Neck Road, Great Neck, New York 11021