Alarm Failure Allowed Theft of Parrots
NEW YORK LAW JOURNAL
Monday, October 06, 2008
New York Law Journal
Volume 240, Page 5, Column 1
Monday, October 6, 2008
Negligent Assembly/Installation
Alarm Failure Allowed Theft of Parrots
Settlement: $15,000
Island Animals Ltd. v. Marlarm Security Systems Inc., No. 4881/08
Court: Nassau Supreme, Justice Kenneth A. Davis, Aug. 7
Plaintiff's Attorney: Anthony T. Ballato of Massapequa
Defense Attorney: Paul Tramontano of Kirschenbaum & Kirschenbaum, Garden City
Facts & Allegations: On Aug. 14, 2007, Island Animals Ltd. learned that a burglary
had occurred at its Parrots of the World retail store in Rockville Centre. At that
time, Island Animals had a contract with Marlarm Security Systems Inc. The alarm
did not send out an alarm, and valuable parrots were stolen.
Island Animals sued Marlarm Security Systems, alleging the alarm system was not
properly installed, that the improper installation constituted gross negligence,
and that the system's failure constituted breach of contract and breach of warranty.
Defense counsel contended that several exclusionary clauses contained in the parties'
contract for the alarm installation and monitoring applied to Island Animals' claims.
Defense counsel also contended that such exculpatory clauses should be upheld for
claims of negligence, but that they should not be upheld for gross negligence. He
moved for summary judgment, but Justice Davis opined that plaintiff's counsel raised
sufficient questions of fact to warrant further discovery and depositions.
Injuries/Damages: Island Animals filed a claim with its insurer for $62,530 for
property loss due to the burglary. The insurer initially denied the claim because
the policy included a clause that a working alarm must be in place, but it ultimately
paid $36,745. Island Animals sought recovery of the remaining $25,785 and other
expenses.
Result: The parties negotiated a $15,000 pretrial settlement.