the level of gross negligence necessary to find liability.
For example, in Colnaghi, 81 N.Y.2d 821, 611 N.E.2d 282, 595 N.Y.S.2d 381, plaintiff art gallery sued its alarm services company for negligence after burglars broke into the gallery through an unprotected skylight and stole twenty paintings. The Supreme Court denied the defendant's motion for summary judgment, a decision which the Appellate Division affirmed, finding that the affidavit submitted by plaintiff's expert -- which described defendant's failure to protect the skylight as a "major vulnerability" -- created a triable issue of fact on gross negligence. The Court of Appeals reversed, holding that "the failure to wire a skylight, while perhaps suggestive of negligence or even 'gross negligence' as used elsewhere, does not evince the recklessness necessary to abrogate Colnaghi's agreement to absolve Jeweler's from negligence claims." Id. at 824, 611 N.E.2d at 284, 595 N.Y.S.2d at 383. See also David Gutter Furs v. Jewelers Protection Servs., Ltd., 79 N.Y.2d 1027, 1029, 594 N.E.2d 924, 924-25, 584 N.Y.S.2d 430, 430 (1992) (expert's opinion that alarm company should have installed two motion detectors, instead of one, on each level, as well as a shock sensor, and should have ascertained how inventory would be arranged and performed a post-occupancy inspection did not raise an issue of fact concerning whether defendant performed its duties with reckless indifference to plaintiff's rights); Stuart Rudnick, Inc. v. Jewelers Protection Servs., Ltd., 194 A.D.2d 317, 598 N.Y.S.2d 235, 236 (1st Dep't 1993) (reversing supreme court's denial of defendant's motion for summary judgment where failure to maintain a video camera overseeing safety deposit boxes "while clearly negligent, and even grossly negligent as used in other contexts," did not satisfy gross negligence standard); Nathan Silberberg Galleries, Ltd. v. Holmes Protection of N.Y., Inc., Index No. 5848/92 (N.Y. Sup. Ct. July 28, 1993) (no issue of fact concerning whether alarm company was grossly negligent where company notified police of alarm and sent guard to investigate premises, but guard determined "there was nothing amiss" without gaining access to rear storage room), aff'd, 194 A.D.2d 317, 598 N.Y.S.2d 235 (1st Dep't Feb. 24, 1994).
The three cases heavily relied upon by Fireman's Fund do not compel a different result. In Sommer, 79 N.Y.2d 540, 593 N.E.2d 1365, 583 N.Y.S.2d 957, the plaintiff asked the defendant alarm company to deactivate its alarm system on a Saturday because of work being done at the building. Pursuant to its usual practice, defendant reactivated the system Saturday night. The following Monday, plaintiff's chief engineer -- who was unaware that service had been restored -- asked defendant to reactivate the system. Defendant's allegedly untrained, inexperienced dispatcher became confused, and "concluded -- without attempting to elicit greater clarification from the caller, or any other confirmation" -- that the engineer wanted the system taken out of service. Id. at 548-49, 593 N.E.2d at 1367, 583 N.Y.S.2d at 589. A four-alarm fire broke out shortly thereafter, but "consistent with his mistaken impression that the system was to be taken out of service, the dispatcher simply assumed that he should ignore the signals." Id. The New York Court of Appeals found a triable issue existed as to whether this was "a case of a simple mistake or reckless indifference." Id. at 555, 593 N.E.2d at 1371, 583 N.Y.S.2d at 963-64.
Similarly, the facts in Hanover Ins. Co. v. D&W Central Station Alarm Co., Inc., 164 A.D.2d 112, 560 N.Y.S.2d 293 (1st Dep't 1990), also relied upon by plaintiff, are inapposite. In that case, defendant received two alarm signals from the subject premises, but did not dispatch a guard until almost an hour and a half after the second alarm, and did not notify the police until almost five hours thereafter. The guard left the subject premises without investigating the alarm condition because he could not gain entry into the building, and "when he called D&W to so inform them, he was told to 'forget that assignment and go on another guard run.'" Id. at 113-14, 560 N.Y.S.2d at 294. The court held that D&W's failure to notify the police and its decision to direct the guard to "forget" the assignment generated triable issues of fact concerning whether D&W was grossly negligent. Id. at 115, 560 N.Y.S.2d at 295-96.
Finally, in Rand & Paseka Mfg. Co., Inc. v. Holmes Protection Inc., 130 A.D.2d 429, 515 N.Y.S.2d 468 (1st Dep't 1987), appeal denied, 70 N.Y.2d 615, 519 N.E.2d 623, 524 N.Y.S.2d 677 (1988), defendant alarm services company had a contract with plaintiff pursuant to which any unauthorized entry created an "alarm condition" requiring defendant to respond within fifteen minutes. Plaintiff's premises were broken into on a Saturday afternoon; eleven hours after the break-in, defendant sent two guards to investigate. While defendant claimed it had received an "opening code" -- permitting an authorized person to enter the premises on an unauthorized day -- it failed to produce the only person who could substantiate that claim. Id. at 430, 515 N.Y.S.2d at 469. In addition, another break-in had occurred several weeks earlier, which plaintiff claimed it was not told about until four weeks after the fact; and defendant admitted it did not have the relevant instruction cards indicating which days plaintiff was open. Concluding that a jury could have found that defendant's actions constituted gross negligence, the court reversed the order of the supreme court setting aside the jury verdict for plaintiff. Id. at 430-31, 515 N.Y.S.2d at 470.
Addressing each of plaintiff's allegations in turn, it is clear that the actions or inactions of ADT claimed by Fireman's Fund to be grossly negligent in this case do not rise to the level of those discussed in the foregoing cases. First, plaintiff claims that a trier of fact might infer that ADT acted with reckless disregard when it failed to inform Arkin Medo that its investigator "reasonably believed that a burglary was in progress," and when it advised Arkin Medo that "'from the street it looks okay all around' immediately after having received information from ADT's on-site representative that a burglary had taken place and the perpetrators had gotten into Arkin Medo's office." Jellinek Aff. P 4. As a preliminary matter, the characterization of Montefusco's "gut feeling" as "information . . . that a burglary had taken place and the perpetrators had gotten in to Arkin Medo's office" is a flagrant mischaracterization of a "gut feeling." Moreover, Fogg and Lam both have averred that ADT's central station supervisors are instructed not to engage in speculation, which -- as Montefusco has conceded -- is all his "gut feeling" amounted to. Particularly in light of Arkin Medo's strict directives to ADT to limit the circumstances in which its principals were called, ADT's decision to refrain from speculation does not "smack of intentional wrongdoing," as is required to generate a question of gross negligence.
Plaintiff also alleges that ADT was grossly negligent in failing: (1) to communicate the urgency of the situation to Arkin Medo; (2) to advise Arkin Medo that multiple zones on multiple floors were in alarm; and (3) to request that Arkin Medo come to the premises. Jellinek Aff. P 4. However, it is undisputed that ADT twice telephoned Daniel Scharf; that Daniel Scharf was aware that the alarm system was out of operation, but elected not to come to the premises; that Daniel Scharf told ADT that "unless its [sic] a burglary and a . . forcible, forcible entry, don't call at 3 and 4 in the morning," Fogg Aff. Ex. H at 34-35; and that David Scharf testified that he would have come to the premises -- and many times had gone to the premises -- if called under similar circumstances. When considered in conjunction with the testimony of Lam and Balestrieri that there was no policy in effect requiring subscribers to be told exactly what zones were in trouble, and the testimony of Balestrieri and Kusnitz that the tripping of multiple zones is more indicative of a false alarm than a burglary, this evidence drives me to conclude that there is no question concerning whether ADT was grossly negligent.
In short, the central, undisputed facts of this case -- that in response to each of two alarm signals, ADT dispatched the police and an alarm service investigator; that the investigators conducted an exterior search of the premises and a limited interior search consistent with the directions from Arkin Medo; that there were no signs of forcible entry; and that ADT twice notified Daniel Scharf that an alarm had been received and the system could not be reset -- show that there is no genuine issue regarding any gross negligence by ADT in responding to the alarms at Arkin Medo. It bears noting that this result is supported by sound public policy. The Second Circuit recently has recognized that while the supplier of an alarm system is paid for its equipment and services, this price generally does not "include a sum designed to anticipate the possible need to pay the purchaser the value of the property that the system is designed to protect." Leon's Bakery, Inc. v. Grinnell Corp., 990 F.2d 44, 49 (2d Cir. 1993). Moreover, the owner of the property is in a better position to know the property's value and to bargain with an insurance company for appropriate coverage.
Id. As the New York Court of Appeals has noted, these "limitations on liability help keep alarm services affordable." Sommer, 79 N.Y.2d at 554, 593 N.E.2d at 1370, 583 N.Y.S.2d at 962; see also Eaves Brooks Costume Co., Inc. v. Y.B.H. Realty Corp., 76 N.Y.2d 220, 227, 556 N.E.2d 1093, 1096-97, 557 N.Y.S.2d 286, 289-90 (1990) (alarm company's liability should be contained within limits envisioned by contract to keep services at an affordable rate).
In light of the conclusion reached above that Fireman's Fund has failed to proffer a triable issue concerning whether ADT was grossly negligent, it is unnecessary to address ADT's alternative argument that the claim of Fireman's Fund is barred by its express assumption of the risk.
In sum, Fireman's Fund has done little more than raise some "metaphysical doubt" based entirely upon Montefusco's "gut feeling" as to the material facts. Taking the record as a whole, a rational fact-finder could not decide in favor of the non-moving party and there is, therefore, no genuine issue of material fact which would deter granting summary judgment to ADT, the moving party.
Dated: Brooklyn, New York
March 31, 1994
I. LEO GLASSER, U.S.D.J.