Appeal from an order of the District Court of Suffolk County, Fourth District (C. Steven Hackeling, J.), entered April 25, 2005. The order denied plaintiffs' motion for partial summary judgment against defendant Alarm-Tech Security Systems, Inc.

Order modified by providing that plaintiffs' motion for partial summary judgment against defendant Alarm-Tech Security Systems, Inc. is granted to the extent of finding for all purposes in this action, pursuant to CPLR 3212 (g), that there was no agreement
enforceable against plaintiffs which limited the liability of defendant Alarm-Tech Security Systems, Inc.; as so modified, affirmed without costs.

Plaintiffs commenced this action claiming that in January 2000, they sustained extensive property damage caused by pipes that froze and burst, after defendants failed to notify them of a low temperature alarm signal emanating from their premises. Plaintiffs purchased the premises in question from plaintiff Monica J. Schaberg's mother, Ms. Piana, in 1984, and Ms. Piana continued to reside alone at the premises until her death in 1997. Thereafter, plaintiffs generally used the premises as a summer home and did not reside thereat during the winter on any regular basis. It is undisputed that in 1985, Ms. Piana paid J. Bert Security Systems, Inc., the predecessor in interest of defendant Alarm-Tech Security Systems, Inc. (Alarm-Tech), to install an alarm system at the premises and that a low temperature alarm sensor was installed by Alarm-T[*2]ech in 1994. Plaintiffs allege that they paid said defendant the security monitoring fee each year after the death of Ms. Piana. As a first and second cause of action, plaintiffs claim that both defendants are liable for their negligence and gross negligence and, as a third cause of action, plaintiffs allege that defendant Alarm-Tech is liable for its breach of contract.

Plaintiffs moved for partial summary judgment against Alarm-Tech on the third cause of action, alleging that, by failing to take action after the low temperature signal was received, Alarm-Tech breached its contract with them. Alarm-Tech opposed the motion, maintaining that a written agreement between Piana, who was allegedly acting as plaintiffs' agent, and J. Bert Security Systems, Inc. contains an exculpatory clause barring plaintiffs' recovery for ordinary negligence against J. Bert Security Systems, Inc. and against the successor in interest, Alarm-Tech. Alarm-Tech alleged, in addition, that the failure to respond to the alarm and to notify plaintiffs of the low temperature signal was due to confusion arising from low battery signals received prior to the low temperature signal, allegedly caused by plaintiffs' failure to change the battery for the alarm system. In reply, plaintiffs asserted that Piana was not acting as their agent, that the purported agreement was never executed by Piana, that they never assented to the terms of said agreement and that Alarm-Tech failed to change the low battery.

In view of its assertion that its failure to report the low temperature signal was due to confusion resulting from the low battery signal, which battery plaintiffs allegedly failed to change, Alarm-Tech raised a triable issue of fact as to whether it breached an alarm-monitoring agreement. To that extent, its motion for partial summary judgment was properly denied (see Sommer v Federal Signal Corp., 79 NY2d 540, 555 [1992]). However, the alleged written contract containing the exculpatory clause, which was relied upon by Alarm-Tech, is not signed by plaintiffs or their alleged agent. Plaintiffs' affirmative assertion, that said contract was never executed and that Piana was not acting as their agent, was uncontroverted other than by Alarm-Tech's mere submission of the unsigned alleged agreement. Since there was no manifestation of mutual assent sufficiently definite as to assure that the parties were truly in agreement with respect to all material terms contained therein (see Matter of Express Indus. and Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 589 [1999]; Maffea v Ippolito, 247 AD2d 266, 277 [1998]), the written contract is not enforceable against plaintiffs, and Alarm-Tech's liability is not limited to acts of gross negligence (cf. Sommer, 79 NY2d 540, supra). Accordingly, we grant plaintiff's motion for summary judgment to the extent of finding for all purposes in this action (see CPLR 3212 [g]) that there was no written agreement between the parties which limited defendant's liability.

Rudolph, P.J., McCabe and Lippman, JJ., concur.
Decision Date: October 5, 2006