Campisi v Slomin's, Inc.

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Campisi v Slomin's, Inc. 2016 NY Slip Op 32280(U) September 23, 2016 Supreme Court, Suffolk County Docket Number: 36859-08 Judge: Denise F. Molia Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Index No.: 36859-08 SUPREME COURT- STATE OF NEW YORK l.A.S. Part 39 - SUFFOLK COUNTY PRESENT: Hon. DENISE F. MOLIA, Justice CASE DISPOSED: YES MOTIONR/D: 7/17/ 15 SUBMISSION DATE: 5/6116 DARIA CAMPISI, Plaintiff, MorroN SEQUENCE No.: 012 MG 013 MG 014 MG - against - A TIORNEY FOR PLAINTIFF SLOMJN'S, INC., Roth & Roth, LLP 192 Lexington A venue, Suite 802 New York, New York 10016 Defendant. SLOMIN'S INC., A TIORNEYS FOR DEFENDANT Third-Party Plaintiff, - against CABLEVISION SYSTEMS CORP., and NAPCO SECURITY TECHNOLOGIES, INC., Kirschenbaum & Kirschenbaum, P.C. 200 Garden City Plaza, Suite 500 G:arden City, New York 11530 Law Office of William Fitzpatrick 525 Townline Road, Suite 1 Hauppauge, New York 11 788 Third-Party Defendants. McElroy Deutsch Mulvaney Wall Street Plaza 88 Pine Street, 241ti Floor New York, New York l 0005 Upon the following papers filed and considered relative to this matter: Notice of Motion dated June 2, 2015 (012); Affidavit dated June 2, 2015; Exhibits A through S annexed thereto; Defendant's Memorandum of Law; Notice of Motion dated July 7, 2015 (013); Affirmation dated July 7. 2015; Exhibits A through H annexed thereto; Notice of Motion dated July 24, 2015(014); Affirmation dated July 24, 2015; Exhibits A through l annexed thereto; Affirmation in Opposition dated August 13, 2015; Exhibits A through D annexed thereto; Reply Affidavit dated August 26, 2015; Affirmation dated August 25, 20 15; Reply Affirmation dated August 26, 2015; Exhibits A through C annexed thereto; Reply Affirmation dated August 27. 2015; and upon due deliberation; it is ORDERED, that the motion by defendant Slomin's, Inc. (012), pursuant to CPLR 3212, 1 [* 2] for an Order directing the enuy of summary judgment in favor of defendant and dismissing the :\memkd Complaint: dismissing the third-party action as moot: and transferring Slomin 's claims against Plaintift: initially asserted in Suffolk County District Court. in the matter entitled Slomin's. Inc. v. Daria Campisi. appearing under Index Number CEC 08-13397. back to the Suffolk County District Court. First District. is granted; and it is further ORDER E D, that the motion by third-party defendant Cablevision Systems Corp. (013). pursuant lo CPLR 3112. for an Order directing the entry of summary judgment in favor of CSC Holdings. LLC. incorrectly sued as Cablevision Syste!T'ts Corp., and dismissing the Complaint, the third-party complaint. and all cross-claims asserted against movant. is granted; and it is further ORDE R E D, that the motion by third-party defcnd:mt Napco Security Technologies. Inc. (014 ), pursuant to CPLR 3212. for an Order directing the entry of summary judgment in favor or Napco Security Technologies. Inc., and dismissing the Complaint. third-party complaint, and all cross-claims asserted against movant, is granted. The instant action was brought by plaintiff to recover damages for injuries alleged to have been sustained as a result of an incident that occurred at her home on the evening of May 5, 2006. Dcfondant was a single woman who had moved into, and was residing in a townhouse located at 211 Towne House Village, Hauppauge, New York. since June 2004. In March 2006 plaintiff received a notice sent to all residents of her housing complex advising her that homes in the area had recently been broken into . Believing that someone had attempted to illegally enter her home, the plaintiff contacted Slomin's fnc. (''Slomin 's~} to install an alarm system at the end of March 2006. On March 20. 1016. upon plaintiffs purchase of an alarm system for her condominium, the plaintiff and Slomin's entered into a Standard Security Equipment Sale Agreement ("Sales Agreement''). a Standard Security Equipment Service Agreement ("Service Af,rreemenf'). and a Central Office five Year Monitoring Agreement ("Moni toring Agreement'} Each of the contracts contain an exculpatory clause, a limitation of liability provision, an indemnification provi sion. and limit plaintiffs time within which to commence litigation to one year. The exculpatory clause. at paragraph 9 of the Sales Agrce1nent. provides: SLOMIN'S and Buyer agree that the security equipment. once instal led. becomes the personal property Buyer, that the equipment is not permanently attached to the realty and shall nol be deemed fixtures. Buyer agrees that SLOMIN'S is not an insurer and no insurance coverage is ollcred herein. The security equipment is designed to reduce certain risks of loss. though SLOl'v1JN'S docs not guarantee that no loss will occur. Sl.OMJN'S is not assuming liability. and. therefore shall not be liable to Buyer for any loss. personal injury or property damage sustained hy Buyer as a result of burglar. theft. hold-up. fire. equipment foilu1c. smoke. or uny other causes. whatsoever. regardless o( whether or not such or [* 3] loss or damage was caused by or contributed to by SLOMlN'S negligence performance. failure to perform any obl igation or strict products liability. Buyer releases SLOMIN·s from any claims for contri bution. indemnity or subrogation. /\simi lar provision appears at paragraph 4 of the Service /\grct..!mcnt and paragraph 6 of the Monitoring /\ grecment. Tht.: limitation of liability provision in each of the contracts limit the amount ofSlomin ·s liability to $250.00. The same provision offers plaintiff the opportunit} to increase the amount of Slomin · s liability by entering into a supplemental contract. The plaintiff did not exercise thi s option to incn.:ase the liabi lity limit. Each of the contracts also require plaintiff to indemnify SJomin 's from all claims, including a claim by plaintiff. Said provision appears at paragraph 8 of the Sales Agreement, paragraph 6 of the Service Agreement. and paragraph 17 of the Monitoring Agreement. and provides as follows: INDEMNITY/WAIVER or SURROGATION RIGHTS/ J\SSIGNMENTS: lPlaintifl] agrees to and shall indemnity and hold harmless SLOMIN'S, its employees, agents and subcontractors, from and against all claims, lawsuits, including those brought by third parties or [Plaintiff]. including reasonable attorney· s fees, and losses asserted against and alleged to be t:aust.:d by SLOMIN'S performance, negligent performance or fa ilure to perform its obligations. Parties agree that there are no third party beneficiaries of this contract. [Plain ti ff! on its behalf and any insurance carrier waives any right of subrogation l Plain ti ff sl insurance carrier may otherwise have against SLOMIN"S or its subcontractors arising out of this agreement or the relation of the parties hereto. In addi tion. aJJ three contracts contained the following recommendation (Sales Agreement at paragraph I. Service Agreement at paragraph I I, and Monitoring Agreement at paragraph I I): [Plaintiff! acknowledges that SLOMI ·s explained the difference between VOIP (Voice Over Internet Protoco l) and standard telephone line service and that SLOMJN'S recommends use or standard telephone service and communication since VO iP may be less reliable and not compatible with the alann system. rPlaintifll acknowledges that if VOiP is used. it is at lhcrl sole risk. Despite the rccomm..::nJation set forth in the various agreements fo r use or a standa rd telephone service. the plaintiff chose to use her cable service. The alarm system wns installed al the plaintifrs residence by a Slomin·s installer on March 2 I. 2006. The defendant maintains that 3 [* 4] its installer discussed said recommendation with the plaintiff The plaintiff acknowledges that she received verbal instructions concerning use of the system from the installer. but denies that thl' instnllcr discussed the recommendation for use of a standard telephone service. Campisi does not d1.:ny however. tlrn.! she executed the above agreements and was provided with the User' s Manual for the system. The plaintiff did not tcstity at her deposition that she asked any questions of th~ installer. Artl'r plaintiff wen! to sleep on the evening of May 5. 2006, the alarm siren in her home went oil with indicators on !he alarm pad J1ashing. Campisi shut and locked her bedroom door, leaving her without access to her cellular phone, which was in another room. When plaintiff attempted to call the police using her landline telephone, she was unable to secure a connection. fklicving that the phone system had been disabled by intruders, she shouted for help from her Sl.:l.:omJ l1oor bedroom window. and then climbed out of the window, where she grabbed the window sill and hung down. Eventually she dropped down to the ground, feeling pain and making her way to a neighbor's home to summon the police and an ambulance. The plaintiff did not wait for the police to arrive prior to exiting her window and dropping to the ground. The plaintiff did not make further payment to Slomin ·s after May 5. 2006. On August 19, 2008. Slomin's commenced an action against plaintiff in Suffolk County District Cou11 for nonpayment on her account and breach of contract. Plaintiff commenced the instant action against Slomin ·son October l, 2008, alleging a single cause of action sounding in negligence. Issue was joined on October 20, 2008. By Order dated July 27, 2009, plaintiff was granted leave to amend her Complaint to add a cause of action against Slomin's sounding in fraudu lent inducement. Slomin's Answer was served on August 24, 2009. By Order dated March 23, 2012, the District Coun a1.:tion was removed and joined with the instant action. The defendant thereafter commenced a third-party action against Cablevision Systems, Corp .. and NAPCO Security Technologies. Tnc., alleging contribution and comparative negligence. Slomin ·s has now moved for summary judgment, contending that the plaintiff has failed to introduce any evidence to support the allegations of negligence or fraudulent inducement contained in the Amended Complaint. Each of the third-party defendants has moved for summary judgment to dismiss the Third-Party Complaint. It is well-established that when parties set down an agreement in a clear, complete. unambiguous document. the writing should be enforced according to its terms. W.W.W. Assocs. Inc. v. nianconticri, 77 N.Y.2cl 157, 162. I !ere. there is no dispute that the plaintiff executed and rcccivl'd copies of the Saks Agreement. Service /\grcemcnt. and Monitoring J\.grcemcnl. and there is no allegation that said agreements were ambiguous and not written in plain language. It is also not disputed that each of the three agreements contained provisions contain an exculpatory clause. a limitation or liability provision, an indemnification provision. am.I a clause limiting plaintil'l's time within which to commence litigation to one year. The contracts all also includl' ~1 recnmml'1Klatio11 that a standard telephone Ii 11c sl.!r\'ice be used j 11 conj uni.:tion with the Slom in· s S \ 'S IC lll . Partil's arc permitted to l'Ontract for a shortened statute of limitations within" hich an action must be commenced. CPU~ 20 I. An abbreviated period or limitation will be cnrorccd 4 [* 5] under the law "la jbsenl proof that the contract is one of adhesion or the product of overreach ing·· and unkss there is a showing of fraud. dun:ss. or mi srepresentation with regard to the agreement to the shortened period. In re Inc. Viii. of Saltaire v. Zmrnta. 280 /\.D.2d 547. 547-548. The subject con tracts provided that "any action by fPlaintit1] against SLOMI ·s must be commenced within one year of the accrual of the cause of action or shall be barred. One year constitutes a reasonable period of limitation under the circumstances presen ted. (Sec. e.g.. Renee Knitwear Corp. v. ADT Sec. Sys. 277 A.0.2d 2 I 5. 2 I 6; Corbett v. Firstline Sec .. Inc., 68 F.Supp.:Zd 124. 129 (E.D. N.Y. 2009). The plaintifrs causes oraction accrued on May 5. 2006. the date that she sustained her injuries. This action was commenced nearly two and one half years later on October I. 2008. The causes of action arc thereby rendered untimely under the agrcemenl hctween the panics. /\side from lht: statute ofli mitalions issue. the plaintiff has not i tl1: 11 ti li~d any factual evidence demonstrating that the alarm system was defecti ve or negligently installed. The User·s Manual, provided to plaintiff at the time of installation, described the keypad indicator that would appear in the event of a communication failure, including a situation where the system was not able to report to the central station. When such an incident occurred, the keypad would light an indicator stating "TROUBLE !"and the keypad buzz.er would emit a beep. Plaintiff has admitted that upon the sounding of !he alarm siren on May 5, 2006, she saw such indicator. ln lact, lht: Amended Complaint al lcges that the alarm system sounded an alarm when the cable communication line failed and was not restored within several minutes. The defendant contends that this situation was one of the reasons that Slomin 's contracts recommend the use of a standard telephone line service as opposed to the cable service utilized by Campisi. Tli1: p!ai ntiff bears the burden of establishing that the defendant's alleged negligence w<ls the proxi1r1ate cause of her injury. Boltax v. Joy Day Camp, 67 N.Y.2d 6 17, 6 19. There is no basis for liability where the act complained of by plaintiff is perpetrated by an intervening fo rce (sec. See!ram v. Vanderveer Assoc., 184 A.D.2d 687, 688. While ordinarily the issue of whether an imervening act is a normal or forseeablc consequence of the situation created by the defendant 's negligence would be an issue for trial. the issue of proximate cause, or lack thercoJ: can he established as a matter of law where only one conclusion may be drawn from the estab lished facts. Howard v. Poseidon Pools, Inc., 72 N.Y.2d 972, 974. I Jere. the plaintiffs conduct in jumping out of a second story window is no! a normal or foreseeable consequence of the sounding or an alarm system. The plaintiff locked her bedroom door. There is no testimony that she heard any evidence of intruders in the house, or that she could not have remaint:d safely locked in her bedroom while awai ting the arrival or the police. She did not conduct any independent in vestigation when the alarm sounded: nor did she open the bedrnom door. which was upstairs from the entry into her condomini um unit. in an attem pt lo look IC.H· evidl'ncc of u break-in. She did however. call for help to her neighbors from her "'ind(n\. The plaintiff made a dcliheralc decision not LO remain in her locked room to await the police. hut to risk her sakty b) exiting a second story ,,·ind o\\. '' ithout sufficiclll reason to believe that she '"as faced with an emergency situation. Such decision by the plaintiff was an unforeseeable consequence that is not within the sco pe of risk created, and it was this act ion. and not the rnalli.mctioning alarm system. that was the proximate cause of her injuries. 5 [* 6] Similarly. there is no factual or legal support for the cause of action sounding in fraudulent inducement. To succeed on a claim for fraudulent inducement. the plaintiff must demonstrate (I) Slomin's made a misrepresentation of fact. (2) that was known by Slomin ·s to be fribe. (.3) that such misrepresentation was made with the intent to induce plaintiff to rely on it, (4) that plaintiffs reliance upon the misrepresentation must be justifiable. and (5) Slomin's is liable for all harm caused to plaintiff Lama I Jolding Co. v. Smith Barncv Jnc., 88 K Y.2d 413. 421. The evidence presented to date docs not support the allegation that Slomin 's made a misrepresentation or fact regarding the effectiveness of its alarm system and how it \vould work in conjunction with the plaintiffs Optimum VoIP. Jn fact. the content of the three contracts and the information they contain belie plainti ff's claim. Allegations contradicted by documentary evidence are. as a matter of law, not entitled to consideration as a cognizable cause of action (sec, DiDomcnico V. Long Beach Plaza Corp., 60 AD.3d 615. 617-618). Accordingly. the cause or action sounding in fraudulent misrepresentation is dismissl:'d. Based on the dismissal of the main action against the defendant, the third-party action is also dism issed as moot. The action originally commenced in the Suffolk County District Court, first District. and joined with the instant action, is hereby severed and continued and removed back to the Suffolk County Distrid Court, First District. The foregoing constitutes the Order of this Court. Dated: September 23. 2016 Hon. Denise F. T\.1olia: i\.J.s.r.

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