Atlantic Mutual Insurance v. Soiefer Bros. Realty Corp.

281 A.D.2d 441, 721 N.Y.S.2d 554, 2001 N.Y. App. Div. LEXIS 2322

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 2001
• Status: Published

Opinion

—In an action, inter alia, to recover damages for negligence and breach of contract, the plaintiff, Atlantic Mutual Insurance Company, appeals from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated December 6, 1999, as granted the motion of the defendant Soiefer Bros. Realty Corp. for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly determined that the “waiver of subrogation” clause contained in the insurance policy issued by the plaintiff to Kepco, Inc., the tenant of Soiefer Bros. Realty Corp. (hereinafter Soiefer), precludes recovery by the plaintiff on its subrogation claims against Soiefer (see, Kaf-Kaf, Inc. v Rodless Decorations, 90 NY2d 654; Atlantic Mut. Ins. Co. v Elliana Props., 261 AD2d 296). Moreover, even if allegations of gross negligence were sufficient to bar the operation of that provision, the conduct alleged does not rise to the level of gross negligence (see, Sommer v Federal Signal Corp., 79 NY2d 540). Ritter, J. P., Altman, Goldstein and McGinity, JJ., concur.