David Gutter Furs v. Jewelers Protection Services, Ltd.
| Citation | 584 N.Y.S.2d 430,79 N.Y.2d 1027 |
| Parties | , 594 N.E.2d 924 DAVID GUTTER FURS, Respondent, v. JEWELERS PROTECTION SERVICES, LTD., Appellant. |
| Decision Date | 12 May 1992 |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 174 A.D.2d 410, 571 N.Y.S.2d 702, should be reversed, with costs, defendant's motion for summary judgment granted, and the certified question answered in the negative.
Before moving to a new location, plaintiff, a fur dealer, contracted with defendant to design, install and monitor a burglar alarm system. In December 1986, several weeks after plaintiff occupied its new premises, furs worth about $300,000 were stolen in a nighttime burglary, but the alarm did not sound. In plaintiff's action for negligence and breach of contract, defendant sought summary judgment on the basis of contractual exculpatory and limitation of liability clauses, but plaintiff claimed that those clauses are unenforceable because defendant was grossly negligent.
Plaintiff's assertion of gross negligence is based on its expert's opinion that there should have been two motion detectors, instead of one, on each level; a shock sensor should have been installed; defendant should have ascertained how the inventory would be arranged; and a post-occupancy inspection should have been undertaken. Taken together, these allegations do not raise an issue of fact whether defendant performed its duties with reckless indifference to plaintiff's rights, and thus the contractual exculpatory and limitation of liability clauses are enforceable (see, Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 554, 583 N.Y.S.2d 957, 593 N.E.2d 1365 [decided today].
Order reversed, etc.
* Designated pursuant to N.Y. Constitution, article VI, § 2.
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...and a shock sensor failed to raise an issue of fact regarding gross negligence. David Gutter Furs v. Jewelers Protection Servs., Ltd., 79 N.Y.2d 1027, 1029, 594 N.E.2d 924, 924, 584 N.Y.S.2d 430 (1992). A case from the Second Department demonstrates that New York courts are unwilling to let......
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...[the plaintiff's] agreement to absolve [the defendant] from negligence claims."); David Gutter Furs v. Jewelers Prot. Servs., Ltd., 79 N.Y.2d 1027, 584 N.Y.S.2d 430, 594 N.E.2d 924, 924-25 (1992) ("Taken together, these allegations do not raise an issue of fact whether defendant performed i......
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...381, 611 N.E.2d 282 ; Sommer, 79 N.Y.2d at 549, 583 N.Y.S.2d 957, 593 N.E.2d 1365 ; David Gutter Furs v. Jewelers Protection Servs., 79 N.Y.2d 1027, 1029, 584 N.Y.S.2d 430, 594 N.E.2d 924 [1992] ).5 We have not yet determined whether grossly negligent conduct may render unenforceable contra......
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...that “[c]ontractual exculpatory and limitations of liability clauses are enforceable.” David Gutter Furs v. Jewelers Protection Svcs. , 79 N.Y.2d 1027, 1029, 584 N.Y.S.2d 430, 594 N.E.2d 924 (1992) ; see also N.Y. U.C.C. § 2–316(4) (providing that remedies for a breach of warranty may be li......