Opinion
April 25, 1995
Appeal from the Supreme Court, New York County (Martin B. Stecher, J., Karla Moskowitz, J.).
Justice Stecher properly determined that article 55 of the lease, which shielded defendant/landlord from liability for losses, including lost profits, by requiring plaintiff/tenant to procure insurance, did not violate General Obligations Law § 5-321 (see, Hogeland v Sibley, Lindsay Curr Co., 42 N.Y.2d 153, 161). Contrary to plaintiff's contention, there was no evidence of overreaching or unconscionability (see, Board of Educ. v Valden Assocs., 46 N.Y.2d 653, 657). As the issue of liability for lost profits under the lease was fully litigated in the action based on the fire loss, the doctrine of collateral estoppel precludes claims for lost profits in the action based on the flood loss (see, D'Arata v New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664).
The court also properly denied motions to amend the complaints due to prejudice to defendant for unreasonable delays (see, Adams Drug Co. v Knobel, 129 A.D.2d 401, 404). Retention of new counsel herein was an inadequate excuse for the delay (see, Wise v Greenwald, 194 A.D.2d 850, 851). Further, the proposed amendments in the flood action did not relate back to the original complaint and were thus barred by the Statute of Limitations (see, Alpert v Shea Gould Climenko Casey, 160 A.D.2d 67, 72-73).
We have considered plaintiffs' remaining arguments and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Wallach, Kupferman and Tom, JJ.