| Golden Stone Trading, Inc. v Wayne Electro Sys., Inc. |
| 2009 NY Slip Op 08177 [67 AD3d 731] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Golden Stone Trading, Inc., Appellant, v Wayne ElectroSystems, Inc., et al., Respondents, et al., Defendants. |
—[*1] Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, Mineola, N.Y. (Nicole Licata-McCordof counsel), for respondent Wayne Electro Systems, Inc. Kirschenbaum & Kirschenbaum, Garden City, N.Y. (Paul J. Tramontano and KennethKirschenbaum of counsel), for respondent Affiliated Central, Inc.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from(1) an order of the Supreme Court, Queens County (Dorsa, J.), dated May 16, 2008, whichgranted the motion of the defendant Affiliated Central, Inc., for summary judgment dismissingthe complaint insofar as asserted against it, and (2) an order of the same court, also dated May16, 2008, which granted the motion of the defendant Wayne Electro Systems, Inc., for summaryjudgment dismissing the complaint insofar as asserted against it.
Ordered that the orders are affirmed, with one bill of costs.
The plaintiff and the defendant Wayne Electro Systems, Inc. (hereinafter Wayne), enteredinto a contract which provided, among other things, for the leasing, installation, and monitoringof an alarm system in the plaintiff's commercial premises. Wayne had previously [*2]engaged the defendant Affiliated Central, Inc. (hereinafterAffiliated), as its subcontractor to perform alarm monitoring services, and the plaintiff, Wayne,and Affiliated entered into an Alarm Monitoring Service Agreement (hereinafter the Affiliatedcontract). On or about January 23, 2006, the plaintiff's commercial premises were burglarized.The plaintiff commenced this action against, among others, Wayne and Affiliated, interposingcauses of action against Wayne and Affiliated alleging negligence, gross negligence, breach ofcontract, and breach of warranty.
Both Wayne and Affiliated moved separately for summary judgment dismissing thecomplaint insofar as asserted against each of them. Each argued, inter alia, that it was exemptedfrom liability for its own negligence, breach of contract, and breach of warranty by the terms ofits respective contract with the plaintiff. They further argued that the plaintiff had notdemonstrated a cause of action alleging gross negligence.
Contractual provisions in a burglar alarm contract absolving a party from its own negligencegenerally will be enforced; however, those provisions which purport to shield the burglar alarmcompany from gross negligence will not (see Colnaghi, U.S.A. v Jewelers Protection Servs.,81 NY2d 821, 823-824 [1993]; Sommer v Federal Signal Corp., 79 NY2d 540, 554[1992]; Aphrodite Jewelry v D&W Cent. Sta. Alarm Co., 256 AD2d 288, 289 [1998];Hartford Ins. Co. v Holmes Protection Group, 250 AD2d 526 [1998]).
Contrary to the plaintiff's contention, it did not allege conduct by either Wayne or Affiliatedwhich rose to the level of gross negligence and, thus, the causes of action interposed againstthem alleging ordinary negligence are barred by the provisions in each contract absolving Wayneand Affiliated, respectively, from their own negligence (see Colnaghi, U.S.A. v JewelersProtection Servs., 81 NY2d at 823-824; Hartford Ins. Co. v Holmes Protection Group,250 AD2d at 526; Aphrodite Jewelry v D&W Cent. Sta. Alarm Co., 256 AD2d at289).
Similarly, the causes of action alleging breach of contract and breach of warranty againstWayne and Affiliated also are barred by provisions in the respective contracts (see AphroditeJewelry v D&W Cent. Sta. Alarm Co., 256 AD2d at 289).
" 'A party who executes a contract is presumed to know its contents and to assent to them'[and] [a]n inability to understand the English language, without more, is insufficient to avoid thisgeneral rule" (Holcomb v TWRExpress, Inc., 11 AD3d 513, 514 [2004], quoting Moon Choung v Allstate Ins.Co., 283 AD2d 468, 468 [2001]; see Pimpinello v Swift & Co., 253 NY 159,162-163 [1930]; Sofio v Hughes, 162 AD2d 518, 520 [1990]). Although Guo Hua Lin,the plaintiff's president and sole shareholder (hereinafter its president), signed both the Wayneand Affiliated contracts, he averred, in an affidavit, that he was unable to read or speak English,or understand the contracts. However, the plaintiff neither showed that its president made anyreasonable effort to have the contracts read to him, nor demonstrated that any agent of eitherWayne or Affiliated, or any other person, misrepresented the contents of the contracts to him.Accordingly, the plaintiff may not rely on its president's inability to speak English to invalidatethe contracts (see e.g. Holcomb v TWR Express, Inc., 11 AD3d at 514; Sofio vHughes, 162 AD2d at 520).
The plaintiff's remaining contentions are without merit. Santucci, J.P., Chambers, Hall andRoman, JJ., concur.