Consumers Distributing Co. v. Baker Protective Services, Inc.

—Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about July 9, 1993, which granted defendant’s motion for summary judgment and denied plaintiff’s cross-motion for summary judgment, unanimously affirmed, without costs. 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 NY2d 821, 823-824, quoting Sommer v Federal Signal Corp., 79 NY2d 540, 554), and that the contract 328 clause limiting defendant’s liability from its own negligence is therefore enforceable (compare, Stuart Rudnick, Inc. v Jewelers Protection Servs., 194 AD2d 317). Concur — Rosenberger, J. P., Kupferman, Rubin and Williams, JJ.