Opinion
March 8, 1991
Appeal from the Supreme Court, Onondaga County, Stone, J.
Present — Doerr, J.P., Boomer, Green, Balio and Davis, JJ.
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 plaintiffs 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 N.Y.2d 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 N.Y.2d 167, 172) and are therefore insufficient to create a triable issue of fact to defeat plaintiff's entitlement to summary judgment.