Tower Risk Mgt. v Ni Chunp Hu, 2011 NY Slip Op 04176 [84 AD3d 616]

May 19, 2011

Appellate Division, First Department

— [*1]

Abrams, Gorelick, Friedman & Jacobson, P.C., New York (Steven DiSiervi of counsel), for appellant.

D’Ambrosio & D’Ambrosio, P.C., Irvington (James J. D’Ambrosio of counsel), for respondents.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered October 15, 2010, which denied defendant’s motion for summary judgment declaring that this action is barred by the waiver of subrogation clause in defendant’s lease, unanimously reversed, on the law, with costs, the motion granted, and it is so declared.

The lease agreement between defendant and Gila Bitchatcho contained a waiver of subrogation clause, conditioned solely upon there being in each of defendant’s and Bitchatcho’s insurance policies a clause permitting a waiver of subrogation. It is undisputed that each policy contained such a clause. Plaintiffs argue that the clause in defendant’s policy permitted only a limited waiver of subrogation, which did not satisfy the lease condition. However, the Court of Appeals rejected that argument in Kaf-Kaf, Inc. v Rodless Decorations (90 NY2d 654 [1997]), construing nearly identical lease and policy language. Thus, we find that defendant’s policy did not limit waiver of subrogation to the areas of the building rented by defendant, and the waiver of subrogation clause in the lease bars this action. Concur—Andrias, J.P., Friedman, Freedman, Richter and RomÁn, JJ..