| Goldstein v Carnell Assoc., Inc. |
| 2010 NY Slip Op 04741 [74 AD3d 745] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Lisa Goldstein, Respondent, v Carnell Associates, Inc., etal., Appellants. |
—[*1] Vlock & Associates, P.C., New York, N.Y. (Steven P. Giordano and Stephen Vlock ofcounsel), for respondent.
In an action to recover damages for gross negligence, the defendants appeal from an order ofthe Supreme Court, Westchester County (Lefkowitz, J.), entered July 20, 2009, which deniedtheir motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The plaintiff contracted with the defendants to conduct a pre-purchase inspection of a houseand prepare a report of their findings. The contract provided that the defendants would conduct alimited visual inspection of apparent conditions in easily accessible areas, and that no warrantiesor guarantees were made for any latent or concealed defects. Additionally, the contract containeda provision limiting the defendants' liability to the cost of the inspection. Following theinspection, the defendants issued their report to the plaintiff, and the plaintiff then entered into acontract of sale and completed the purchase of the house. The plaintiff subsequently commencedthis action against the defendants, alleging that they were grossly negligent in their inspection, inthat they failed to identify, among other things, several structural defects in the house. Thedefendants moved for summary judgment dismissing the complaint, and the Supreme Courtdenied the motion.
As a general rule, a contractual provision absolving a party from its own negligence orlimiting its liability is enforceable (see Colnaghi, U.S.A. v Jewelers Protection Servs., 81NY2d 821, 823 [1993]; Sommer v Federal Signal Corp., 79 NY2d 540, 553 [1992];Melodee Lane Lingerie Co. v American Dist. Tel. Co., 18 NY2d 57, 69 [1966];Ciofalo v Vic Tanney Gyms, 10 NY2d 294, 297-298 [1961]). Nonetheless, the publicpolicy of this State dictates that "a party may not insulate itself from damages caused by grosslynegligent conduct" (Sommer v Federal Signal Corp., 79 NY2d at 554; see Colnaghi,U.S.A. v Jewelers Protection Servs., 81 NY2d at 823; Kalisch-Jarcho, Inc. v City of NewYork, 58 NY2d 377, 384-385 [1983]; Gross v Sweet, 49 NY2d 102, 106 [1979]).Gross negligence "differs in kind, not only degree, from claims of ordinary negligence"(Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d at 823). To constitute grossnegligence, a party's conduct must " 'smack[ ] of intentional wrongdoing' " or "evince[ ] areckless indifference to the rights of others" (Sommer v Federal Signal Corp., 79 NY2dat 554, quoting Kalisch-Jarcho, Inc. v City of New York, 58 NY2d at 385). Stateddifferently, a party is grossly negligent when it fails "to exercise even slight care" (FoodPageant v [*2]Consolidated Edison Co., 54 NY2d 167, 172[1981]) or "slight diligence" (Dalton v Hamilton Hotel Operating Co., 242 NY 481, 488[1926]; see DRS Optronics, Inc. vNorth Fork Bank, 43 AD3d 982, 986 [2007]; Gentile v Garden City Alarm Co.,147 AD2d 124, 131 [1989]; see also PJI 2:10A ["Gross negligence means a failure to useeven slight care, or conduct that is so careless as to show complete disregard for the rights andsafety of others"]).
Here, the inspection contract entered into by the parties limited the defendants' liability forany deficiencies in their performance to the cost of the inspection. Notwithstanding thatprovision of the contract, the plaintiff alleges, in the complaint's sole cause of action, that she isentitled to recover from the defendants the full cost of repairing the alleged defects that thedefendants failed to observe during their inspection and disclose in their report, since thoseomissions constituted gross negligence on the defendants' part. Contrary to the defendants'contention, our prior decisions in cases of a similar nature (see Smith-Hoy v AMC Prop. Evaluations, Inc., 52 AD3d 809, 811[2008]; Mancuso v Rubin, 52AD3d 580, 583 [2008]; Schietingerv Tauscher Cronacher Professional Engrs., P.C., 40 AD3d 954, 956 [2007]; Peluso vTauscher Cronacher Professional Engrs., 270 AD2d 325, 326 [2000]) do not stand for theproposition that, as a matter of law, it is impossible for a home inspector to perform his or hercontractual obligation in a grossly negligent manner. Nevertheless, the evidence submitted by thedefendants in support of their motion was sufficient to demonstrate, prima facie, that theinspection performed in this case was not so defective as to evince a reckless indifference to therights of others or a failure to exercise even slight care. In opposition, the plaintiff failed to raisea triable issue of fact as to whether the defendants' alleged omissions went beyond ordinarynegligence and satisfied the gross negligence standard (see Clement v Delaney Realty Corp., 45 AD3d 519 [2007]).
Accordingly, the Supreme Court should have granted the defendants' motion for summaryjudgment dismissing the complaint. Prudenti, P.J., Fisher, Roman and Sgroi, JJ., concur.