Laudisio v. Amoco Oil Co.

• Decision Date: 17 February 1981
• Citation: 437 N.Y.S.2d 502,108 Misc.2d 245
• Parties: , 31 UCC Rep.Serv. 436 Dominick LAUDISIO, Plaintiff, v. AMOCO OIL COMPANY, Defendant.
• Court: New York Supreme Court

Page 502

437 N.Y.S.2d 502

108 Misc.2d 245, 31 UCC Rep.Serv. 436

Dominick LAUDISIO, Plaintiff, v. AMOCO OIL COMPANY, Defendant.

Supreme Court, Special Term, New York County, Part I.

Feb. 17, 1981.

Janoff & Kravetz, New York City (Lester D. Janoff, New York City, of counsel), for plaintiff.

Townley & Updike, New York City (Richard R. Lutz and Mitchell R. Berger, New York City, of counsel), for defendant.

DECISION ON MOTION

STANLEY S. OSTRAU, Justice:

Defendant Amoco Oil Company moves, pursuant to CPLR 3211(a)(1) and (7) for an order dismissing the fifth, seventh and tenth causes of action.

This lawsuit involves various disputes between plaintiff, Laudisio, the lessee of two gas stations, one in Farmingdale and the other in Bayshore on Long Island and defendant Amoco Oil Company, their designated supplier of gasoline and equipment under a series of interrelated contracts. The fifth cause of action claims that the defendant misrepresented to plaintiff that it would provide gasoline storage tanks for the Farmingdale station and that they would be in good condition and fit for use as a gasoline storage tank, when, in fact, it knew or should have known that the tanks so provided were defective permitting gasoline to flow and seep into the ground allegedly causing plaintiff damage in the sum of $5,000 for lost gasoline allegedly due to the negligence and carelessness of defendant.

The seventh cause of action alleges defendant failed and neglected to provide the Bayshore station with proper gasoline pumps, in that the pumps provided to plaintiff allegedly malfunctioned so as to under reflect the actual sale of gasoline by $20,000.

The tenth cause of action parallels the fifth reciting similar allegations of misrepresentation, breach of warranty and negligence with respect to the gasoline pumps for the Bayshore station.

Defendant contends that under paragraphs 5 and 6, of the Equipment Loan Agreements, plaintiff is barred from recovery for his alleged losses, and that since the contracts are part and parcel of the complaint, the fifth, seventh and tenth causes of action are subject to dismissal. Plaintiff claims that the agreements were entered into under duress and that the provisions were non-negotiable, making this a contract of adhesion and that under such circumstances void as a matter of public policy. These allegations of duress, unconscionability and lack of good faith representing the public policy argument are set forth in plaintiff's affidavit in opposition. The complaint, itself does not embody any of these critical allegations, except so far as it recites the aforementioned claims of misrepresentation in the fifth and tenth causes of action.

The provisions of the equipment loan agreements sought to be invoked by defendant state the following:

"5. Amoco, its agents or employees, shall not be liable for any loss, damage, injury (including death), or other casualty of whatsoever kind or by whomever caused, to the person or property of anyone (including customer), on or off the premises, arising out of or resulting from the installation, existence, use, maintenance, condition, repair, replacement, alteration, or removal of said equipment, whether due, in whole or in part, to negligent acts or omissions of Amoco, its agents or employees; and customer for himself, his heirs, executors, administrators, successors and assigns, hereby agrees to indemnify and hold Amoco, its agents and employees harmless from and against all claims for such loss, damage, injury or other casualty.

6. Other than as set forth herein, no representations have been made, and no warranties have been given to customer by Amoco, its agents or employees, concerning such equipment and none shall be implied from this transaction."

Defendant Amoco reads the three disputed causes of action as alleging in essence claims of negligence which are barred by the provisions cited above. The seventh cause of action is clearly a negligence claim. The fifth and tenth causes of action, however, are inartistically drafted, mingling the elements of more than one cause of action. As already indicated the fifth and tenth causes of action bear elements of negligence, breach of warranty and misrepresentation, and as such are improperly plead. (See CPLR 3014). Whether leave to replead any or all of these claims may be afforded plaintiff will depend upon whether a waiver of such claim is offensive to public policy.

The law looks askance upon contracts intended to exculpate a party from the consequences of his own negligence. With certain exceptions, these contracts are, however, enforceable. Such agreements are subject to close judicial scrutiny. (Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365, 400 N.E.2d 306; Van Dyke Prods. v. Eastman Kodak Co., 12 N.Y.2d 301, 304, 239 N.Y.S.2d 337, 189 N.E.2d 693; 4 Williston, Contracts (3d Jaeger d), § 602A pp. 326-332). Thus, "unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for its own negligent acts". (Gross v. Sweet, supra, 49 N.Y.2d at 107, 424 N.Y.S.2d 365, 400 N.E.2d 306; Van Dyke Prods. v. Eastman Kodak Co., 12 N.Y.2d 301, 304, 239 N.Y.S.2d 337, 189 N.E.2d 693; Ciofalo v. Vic Tanney Gyms, 10 N.Y.2d 294, 297, 220 N.Y.S.2d 962, 177 N.E.2d 925; Boll v. Sharp & Dohme, 281 A.D. 568, 570-571, 121 N.Y.S.2d 20 aff'd. 307 N.Y. 646, 120 N.E.2d 836). It must therefore, appear plainly and precisely that the "limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility". (Howard v. Handler Bros. &amp Winell, 279 A.D. 72, 75-76, 107 N.Y.S.2d 749 aff'd. 303 N.Y. 990, 106 N.E.2d 67).

Here, the exculpatory provision, paragraph 5 of the equipment loan agreement clearly purports to absolve Amoco from responsibility for "its negligent acts or omissions". The provision explicitly recites that claims for ordinary negligence are prohibited and as such the court must give effect to this disclaimer. (Ciofalo v. Vic Tanney Gyms, supra; Theroux v. Kedensburg Racing Assn., 50 Misc.2d 97, 99, 269 N.Y.S.2d 789, aff'd. 28 A.D.2d 960, 282 N.Y.S.2d 930). Consequently, to the extent plaintiff seeks relief in negligence, he is foreclosed, because the contractual provision of the parties precludes such action and by the standards set down by our appellate courts such an exculpatory clause...