Consumers Distrib. v. Baker Protective Serv

Full title: CONSUMERS DISTRIBUTING CO., LTD., Appellant, v. BAKER PROTECTIVE SERVICES…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 22, 1994

202 A.D.2d 327 (N.Y. App. Div. 1994)

609 N.Y.S.2d 213

Opinion

March 22, 1994

Appeal from the Supreme Court, New York County (Robert Lippmann, J.).

We agree with the IAS Court that the failure of defendant's employee on two occasions to respond to a signal indicating a possible burglary despite hourly noise reminders, while clearly ordinary negligence, was not gross negligence, i.e, "conduct that evinces a reckless disregard for the rights of others or `smacks' of intentional wrongdoing" (Colnaghi, U.S.A. v. Jewelers Protection Servs., 81 N.Y.2d 821, 823-824, quoting Sommer v Federal Signal Corp., 79 N.Y.2d 540, 554), and that the contract clause limiting defendant's liability from its own negligence is therefore enforceable (compare, Stuart Rudnick, Inc. v. Jewelers Protection Servs., 194 A.D.2d 317).

Concur — Rosenberger, J.P., Kupferman, Rubin and Williams, JJ.