Sommer v. Federal Signal Corp.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before ROSS
• Citation: Sommer v. Federal Signal Corp., 571 N.Y.S.2d 228, 174 A.D.2d 440 (N.Y. App. Div. 1991)
• Decision Date: 13 June 1991
• Parties: Beverly SOMMER, et al., Plaintiffs-Appellants, v. FEDERAL SIGNAL CORPORATION, et al., Defendants-Appellants, Holmes Protection, Inc., Defendant-Respondent, and BRK Electronics, etc., Defendant.

Page 228

571 N.Y.S.2d 228

174 A.D.2d 440

Beverly SOMMER, et al., Plaintiffs-Appellants, v. FEDERAL SIGNAL CORPORATION, et al., Defendants-Appellants Holmes Protection, Inc., Defendant-Respondent and BRK Electronics, etc., Defendant.

Supreme Court, Appellate Division First Department.

June 13, 1991.

Before ROSS, J.P., and CARRO, MILONAS, ROSENBERGER and ASCH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Michael Dontzin, J.), entered March 19, 1990, which granted the motion of defendant Holmes Protection, Inc. to dismiss all complaints, cross-claims, counterclaims and third-party claims asserted against it in the main action and in all actions previously consolidated pursuant to prior order of the same court, unanimously modified, on the law and on the facts, to reinstate plaintiff's first cause of action asserting a claim of gross negligence against Holmes Protection, Inc., and the corresponding cross-claims, and as so modified affirmed, without costs.

In this case, we reaffirm the recent holding of this Court which stated that public policy should preclude exemption from liability for grossly negligent acts, notwithstanding a provision in the central station alarm contract which purports to limit the contractor's liability for negligence. Hanover Insurance Company v. D & W Central Station Alarm Co., Inc., 164 A.D.2d 112, 560 N.Y.S.2d 293 (1st Dept.1990), overruling Koos Van Den Akker Atelier v. Honeywell Protection Services, Division of Honeywell, Inc., 148 A.D.2d 359, 361, 539 N.Y.S.2d 7 (1st Dept.1989). Plaintiff 810 Associates ("the Associates") owns and operates the subject building, located at 810 Seventh Avenue in Manhattan. On January 29, 1982, the Associates entered into a written agreement with defendant Holmes Protection, Inc. ("Holmes"), a provider of burglary and fire alarm services, pursuant to which Holmes agreed to install, maintain and monitor a central station fire alarm system at the premises in question. Contained in the policy were provisions essentially exculpating and limiting the liability of Holmes, and further specifying that "Holmes is not an insurer; that insurance shall be obtained by [the Associates], if any is desired."

On the morning of April 15, 1985, there was a four alarm fire at the subject premises. Two days previous to this, on Saturday April 13, 1985, at 8:58 a.m., Holmes received a call from the Associates requesting that the central station be taken out of service because workers would be welding in the building. The Associates informed Holmes that if an alarm signal was received, it should not notify the Fire Department, as it would ordinarily be required to do. Significantly, placing the system out of service did not mean that it would be turned...