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Tracey Rd. Equip. v. Apollo 16 Painting Con

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 8, 1991
171 A.D.2d 1031 (N.Y. App. Div. 1991)

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.


Summaries of

Tracey Rd. Equip. v. Apollo 16 Painting Con

Appellate Division of the Supreme Court of New York, Fourth Department
Mar 8, 1991
171 A.D.2d 1031 (N.Y. App. Div. 1991)
Case details for

Tracey Rd. Equip. v. Apollo 16 Painting Con

Case Details

Full title:TRACEY ROAD EQUIPMENT, INC., Appellant, v. APOLLO 16 PAINTING CONTRACTORS…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Mar 8, 1991

Citations

171 A.D.2d 1031 (N.Y. App. Div. 1991)
568 N.Y.S.2d 986

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