Opinion
Argued February 6, 2001.
March 12, 2001.
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.
Cozen O'Connor, New York, N.Y. (Daniel Q. Harrington of counsel), for appellant.
O'Brien Mayr, Rockville Centre, N.Y. (William F. Gormley and Nicholas P. Calabria of counsel), for respondent.
Before: DAVID S. RITTER, J.P., MYRIAM J. ALTMAN, GLORIA GOLDSTEIN, LEO F. McGINITY, JJ.
DECISION ORDER
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 N.Y.2d 654; Atlantic Mutual Ins. Co. v. Elliana Props., 261 A.D.2d 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 N.Y.2d 540).