BEVERLY SOMMER, ET AL., RESPONDENTS-APPELLANTS, v. FEDERAL SIGNAL
CORPORATION, ET AL., RESPONDENTS- APPELLANTS, HOLMES PROTECTION, INC.,
APPELLANT-RESPONDENT, ET AL., DEFENDANT. (AND A THIRD-PARTY ACTION AND ALL
RELATED CONSOLIDATED ACTIONS.).
79 N.Y.2d 540, 593 N.E.2d 1365, 583 N.Y.S.2d 957 (1992).
May 12, 1992
1 No. 123
Decided May 12, 1992
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Kenneth Kirschenbaum, for Appellant-respondent.
Charles J. Moxley, Jr., for Respondents-appellants Sommer et al.
Chester J. Wrobleski, for Respondents-appellants Infotech et al.
Randall S.D. Jacobs, for Respondent-appellant Walker Thomas.
John F. Triggs, for Respondents-appellants Federal et al.
KAYE, J.:
This appeal, in consolidated actions against a fire alarm company for
negligent services resulting in extensive property damage, centers on
an exculpatory clause in the company's contract with its customer. For
the reasons that follow, we conclude that the clause would not bar
recovery by the customer for the company's grossly negligent conduct;
that an issue of fact regarding gross negligence precludes summary
judgment for the company; and that, as to the contribution claims
asserted against the company, some should be conditionally reinstated
while others were properly dismissed.
I.
In 1985, 810 Associates owned a 42-story skyscraper in midtown
Manhattan. As required by local law, the building was equipped with a
central station fire alarm system. 810 contracted with Holmes
Protection, Inc. to provide central station monitoring
service--meaning that at its central station Holmes would receive any
alarms sounded on 810's premises and immediately notify the fire
department.
On the morning of Saturday, April 13, an 810 employee called Holmes to
ask that the alarm system be deactivated because of work being done at
the building. When Holmes temporarily takes a subscriber's system out
SNIPPETS:
BEVERLY SOMMER, ET AL., RESPONDENTS-APPELLANTS, v. FEDERAL SIGNAL
This opinion is uncorrected and subject to revision before publication in the New York
Kenneth Kirschenbaum, for Appellant-respondent.
This appeal, in consolidated actions against a fire alarm company for negligent services
For the reasons that follow, we conclude that the clause would not bar recovery by the
810 contracted with Holmes Protection, Inc. to provide central station monitoring
When Holmes temporarily takes a subscriber's system out of service, or deactivates the
Holmes shall not be liable for any of losses or damages * * * caused by performance or
Holmes relied on a contract clause that limited its liability to the lesser of $250 or 10% of
Although concluding that the exculpatory clause would be unenforceable if Holmes was grossly
-party beneficiaries of the 810/Holmes contract or otherwise owed a duty by Holmes.
Taking a different view of the evidence, the Appellate Division held that there was a triable
Initially, we must determine whether 810 may pursue tort claims against Holmes, or is limited
Between actions plainly ex contractu and those as clearly ex delicto there exists what has
In North Shore Bottling Co v C. Schmidt and Sons, Inc. (22 NY2d 171, 179), we recognized that
In Bellevue, we rejected plaintiff's attempt to ground in tort a claim that defendants
As an affirmative defense to 810's claims, Holmes relies on the contractual exculpatory and
Holmes' exculpatory clause is therefore enforceable against claims of ordinary negligence.
the Legislature has expressly adopted a reckless indifference standard.
Under CPLR article 16, a joint tortfeasor whose culpability is 50% or less is not jointly
Plaintiff could recover the entire judgment from any of the tortfeasors-- even one only
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