MASTER CRAFT JEWELRY CO INC v. HOLMES PROTECTION OF NEW YORK INC (2000)

Order, Supreme Court, New York County (Jane Solomon, J.), entered October 29, 1999, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 Plaintiff entered into a contract with defendant for the installation and operation of certain electronic surveillance devices.   The contract provided that absent a further premium payment for indemnification, defendant would not be liable for damages resulting from a failure of the system.   It is conceded that no such payment was made.   Under the circumstances, defendant would only be liable for its gross negligence.

 The court properly determined that defendant's conduct in not sending an employee to investigate signals indicating a possible alarm system malfunction and in checking these signals electronically was not grossly negligent as it was not indicative of intentional wrongdoing (see, Hartford Ins. Co. v. Holmes Protection Group, 250 A.D.2d 526, 528, 673 N.Y.S.2d 132;  Consumers Distrib. Co. v. Baker Protective Servs., 202 A.D.2d 327, 609 N.Y.S.2d 213, lv. denied 84 N.Y.2d 811, 622 N.Y.S.2d 913, 647 N.E.2d 119).   The court correctly determined that there were no factual issues to be tried and did not engage in any fact resolution.

MEMORANDUM DECISION.