## Facts

- Vincenzo and Concetta Cirillo discussed purchasing a home alarm system with Howard Goldberg, a Slomin’s Inc. sales representative.
- Goldberg told the Cirillos the system would transmit signals to a central monitoring station over telephone lines.
- Goldberg also told the Cirillos that if the telephone line were cut, the alarm would automatically send a signal to the central station and police would respond.
- On or about June 27, 1998, Vincenzo Cirillo signed four written agreements with Slomin’s covering financing/installation, a five-year central-station monitoring agreement, a service plan, and an addendum for a wireless key FOB.
- The contracts contained a merger clause stating there were no oral representations, along with broad disclaimers stating the Cirillos were not relying on statements outside the written contracts.
- The contracts also contained a specific disclaimer stating that Slomin’s made no representation or warranty that the system could not be “circumvented, compromised or defeated,” and included broad limitation/exculpation terms and a liquidated-damages cap.
- On January 6, 2002, burglars cut the Cirillos’ telephone lines and burglarized their home.
- The burglary was not discovered until the Cirillos returned home; they alleged either no alarm signal was transmitted to the central station or a signal was received but not acted on.
- The Cirillos sued Slomin’s for fraud, negligence, and breach of warranty seeking recovery for burglary losses.
- Slomin’s moved to dismiss under CPLR 3211(a)(1) and (7), relying on the written contracts as documentary evidence; Slomin’s did not dispute that Goldberg made the precontract statement about a cut phone line triggering an alarm response.

## Issues

1. Whether the merger clause and broad nonreliance/disclaimer language required dismissal of the Cirillos’ fraud claim based on the alleged precontract “fail-safe” representation about cut telephone lines.
2. Whether the contracts’ exculpatory and limitation-of-liability provisions barred tort claims for negligent performance of alarm monitoring services, and whether those provisions could bar a claim framed as gross negligence.
3. Whether the breach-of-warranty claim could proceed given the contracts’ disclaimers, including the specific statement that the system could be “circumvented, compromised or defeated.”
4. On a CPLR 3211 motion, whether the contracts “conclusively” defeated the pleaded claims as a matter of law.

## Decision

- The court granted the motion to dismiss in part and denied it in part.
- The fraud claim survived: accepting the complaint’s allegations as true, the merger clause and general disclaimers did not conclusively bar a fraudulent-inducement theory based on a specific factual promise that cutting the telephone line would automatically trigger a signal and police response.
- The court limited the negligence theories: contractual limitation/exculpation provisions can restrict liability for ordinary negligence in alarm-service contracts, so claims sounding only in ordinary negligence tied to contract duties were curtailed.
- A gross-negligence-based claim was allowed to proceed: New York law does not permit a party to contract away liability for its own gross negligence or willful misconduct, so the contractual clauses could not dispose of that theory at the pleading stage.
- The breach-of-warranty claim was dismissed to the extent it sought recovery inconsistent with the contractual disclaimers and limitations, including the specific disclaimer that the system could be “circumvented, compromised or defeated.”
- The court treated generalized sales talk (for example, “top of the line” or “best”) as nonactionable opinion, while treating the “fail-safe” cut-wire representation as a concrete assertion about how the system would function.

## Legal Principles

- On a CPLR 3211 motion, the court accepts pleaded facts as true, gives the plaintiff favorable inferences, and dismisses only when documentary evidence conclusively establishes a defense as a matter of law.
- A merger clause and boilerplate nonreliance language do not automatically defeat a fraud claim at the pleading stage, especially where the alleged misrepresentation is a specific, factual statement about performance rather than general sales opinion.
- Generalized claims of quality or superiority are typically puffery and do not support fraud; specific technical assurances about system behavior under stated conditions may support fraudulent-inducement pleading.
- Limitation-of-liability and liquidated-damages clauses in alarm-system and monitoring contracts are commonly enforced to allocate risk and restrict recovery for ordinary negligence and contract-based theories.
- Contract clauses cannot immunize a party from liability for gross negligence or willful misconduct; such provisions are unenforceable to that extent under New York law.
- A specific disclaimer addressing the subject of the alleged promise (such as a statement that a system may be “circumvented, compromised or defeated”) significantly weakens warranty theories premised on guaranteed protection and supports dismissal of stand-alone warranty claims.

## Conclusion

Cirillo v. Slomin’s held that, on a pre-answer motion to dismiss, broad merger and disclaimer clauses in an alarm-system contract did not conclusively bar a homeowner’s fraud claim based on a specific “fail-safe” representation about cut telephone lines, and contractual limitations could not defeat a gross-negligence theory; however, the court dismissed warranty-based claims and restricted claims framed as ordinary negligence in light of the contracts’ disclaimers and limitation-of-liability provisions.


Cirillo v. Slomin's Inc., 768 N.Y.S.2d 759 (2003)