Appeal from a judgment of the Civil Court of the City of New York, Kings County (Donald S. Kurtz, J.), entered August 3, 2006. The judgment, after a nonjury trial, dismissed the complaint.

Judgment affirmed without costs.

Plaintiffs commenced the instant action to recover, inter alia, for damage sustained to their photocopier. Plaintiffs alleged that the damage occurred while defendant, a moving company, was transporting plaintiffs' property to a new office location. Defendant denied liability and asserted that plaintiffs' right to damages was, in any event, limited by a limitation of liability clause contained in the agreement between the parties. It is undisputed that the damage was caused by the spillage of photocopier toner and that the photocopier was a total loss.

While a limitation of liability clause is enforceable against claims of ordinary negligence, such clause cannot limit liability for conduct amounting to gross negligence, i.e., conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing (see Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821 [1993]; Sommer v Federal Signal Corp., 79 NY2d 540 [1992]; Schietinger v Tauscher Cronacher Professional Engrs, P.C., 40 AD3d 954 [2007]; Obremski v Image Bank, Inc., 30 AD3d 1141 [2006]). In the instant case, the [*2]record on appeal supports the lower court's determination that plaintiffs failed to establish that defendant was grossly negligent.

We have examined plaintiffs' other contentions raised on appeal and find them to be without merit.

Accordingly, the judgment appealed from is affirmed.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: April 25, 2008