Tracey Road Equipment, Inc. v. Apollo 16 Painting Contractors, Inc.

171 A.D.2d 1031, 579 N.Y.S.2d 598, 1991 N.Y. App. Div. LEXIS 6749

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1991
• Status: Published

Opinion

Order insofar as appealed from unanimously reversed on the law without costs, motion denied and cross motion granted, in accordance with the following Memorandum: Supreme Court erred in granting defendant’s motion for leave to amend its answer and in denying plaintiff’s cross motion for summary judgment on its second, third and fourth causes of action. In our view, defendant may not avoid the consequences of the exculpatory clause of the parties’ lease dated April 21, 1986, by its conclusory allegations that plaintiff’s actions constituted "gross negligence” (see, Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 384-385). The claims asserted in the affidavit of defendant’s president, even if deemed true, are not suggestive of gross negligence (see, Food Pageant v Consolidated Edison Co., 54 NY2d 167, 172) and are therefore insufficient to create a triable issue of fact to defeat plaintiff’s entitlement to summary judgment. (Appeal from Order of Supreme Court, Onondaga County, Stone, J. — Summary Judgment.) Present— Doerr, J. P., Boomer, Green, Balio and Davis, JJ.