(dissenting in part). I dissent in part and vote to reverse the judgment and to grant a new trial limited to the issue of damages.
I concur with that portion of the majority opinion finding liability, proximate cause and facts sufficient to sustain a verdict for the plaintiff.
I dissent from that portion of the opinion which validates the contractual clause limiting the defendant’s liability to $50. The clause in the instant case was in a form contract, indicating that it was not bargained upon. The defendant produced no schedule of increasing liability for increasing charges and admitted that such a schedule did not exist. Any increase was to be individually figured in the event it was requested.
The standard $50 limit did not in any way reflect recognition of the potential loss possibilities in the event that the defendant did not perform its sole contractual obligation. This was not a validly bargained limitation clause, but an unfair, invariable and unconscionable, and thus unenforceable, provision.
Further, the bald negation of liability for the failure to perform its single duty did not specify that the defendant was *468excusing itself even for its own negligence. Although a sufficient limitation may be valid, the limiting clause must be clear and specific. The clause in the instant case merely stated that liability was limited in the event of the defendant’s "failure to perform” the contractual services, without mentioning negligence. If the defendant wished to free itself of liability for its own negligence, it should have so specified (see Van Dyke Prods. v Eastman Kodak Co., 12 NY2d 301).
The defendant’s liability should not be limited. A boilerplate clause limiting liability for the defendant’s failure to perform its sole contractual duty, without specification or limitation, to an amount grossly disproportionate to cognizable potential losses, should not be upheld.
Latham, Benjamin and Munder, JJ., concur with Christ, J; Hopkins, Acting P. J., dissents in part and votes to grant a new trial limited to the issue of damages, with an opinion.
Judgment of the Supreme Court, Kings County, dated August 22, 1973, reversed, on the law and the facts, and judgment is directed to be entered in favor of plaintiff in the amount of $50, plus interest.
Appeal from an order of the same court, dated March 23, 1974, dismissed as academic in view of the determination herein on the appeal from the judgment.
Plaintiff is awarded a single bill of costs to cover both appeals.