| Great Am. Ins. Co. of N.Y. v Simplexgrinnell LP |
| 2009 NY Slip Op 01705 [60 AD3d 456] |
| March 10, 2009 |
| Appellate Division, First Department |
| Great American Insurance Company of New York et al.,Appellants, v Simplexgrinnell LP, Respondent. |
—[*1] Shook, Hardy & Bacon LLP, Kansas City, Mo. (Aristotle N. Rodopoulos, of the bar of theState of Missouri, admitted pro hac vice, of counsel), for respondent.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered January 8,2008, which granted defendant's motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint,unanimously affirmed, with costs.
The court properly found that the waiver of subrogation provision in the underlying sprinklersystem servicing agreement was neither overreaching nor procedurally or substantivelyunconscionable (see Gillman v Chase Manhattan Bank, 73 NY2d 1, 10 [1988]). Wereject plaintiffs' contention that the waiver does not bar a claim for gross negligence. As theCourt of Appeals has held, "[a] distinction must be drawn between contractual provisions whichseek to exempt a party from liability . . . and contractual provisions. . . which in effect simply require one of the parties to the contract to provideinsurance for all of the parties" (Board of Educ., Union Free School Dist. No. 3, Town ofBrookhaven v Valden Assoc., 46 NY2d 653, 657 [1979]). We discern no public policy basisfor limiting freedom of contract (Oppenheimer & Co. v Oppenheim, Appel, Dixon &Co., 86 NY2d 685, 695 [1995]) so as to preclude parties from agreeing that a waiver ofsubrogation bars not only claims of negligence but also claims of gross negligence. Thus, thewaiver conclusively established a defense to plaintiff insurer's claim (Goldman v Metropolitan Life Ins. Co.,5 NY3d 561, 571 [2005]; Held v Kaufman, 91 NY2d 425, 430-431 [1998]).Moreover, we hold as well that plaintiffs' allegations of tortious conduct fail to allege thenecessary violation of a legal duty independent of the contract with defendant(Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]). [*2]We have considered plaintiffs' remaining contentions and find themunavailing. Concur—Tom, J.P., Friedman, Gonzalez, Sweeny and McGuire, JJ.