Insurance Co. of North America v. Borsdorff Services, Inc.

• Decision Date: 28 March 1996
• Citation: Insurance Co. of North America v. Borsdorff Services, Inc., 639 N.Y.S.2d 816, 225 A.D.2d 494 (N.Y. App. Div. 1996)
• Parties: INSURANCE COMPANY OF NORTH AMERICA, etc., Plaintiff-Appellant, v. BORSDORFF SERVICES, INC., et al., Defendants. BORSDORFF SERVICES, INC., et al., Third-Party Plaintiffs, v. Robert H. ARNOW, et al., Third-Party Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 816

639 N.Y.S.2d 816

225 A.D.2d 494

INSURANCE COMPANY OF NORTH AMERICA, etc., Plaintiff-Appellant, v. BORSDORFF SERVICES, INC., et al., Defendants.

BORSDORFF SERVICES, INC., et al., Third-Party Plaintiffs, v. Robert H. ARNOW, et al., Third-Party Defendants-Respondents.

Supreme Court, Appellate Division First Department.

March 28, 1996.

Raymond R. Grasing, for plaintiff-appellant.

Neal H. Klausner, for third-party defendants-respondents.

Before MURPHY, P.J., and RUBIN, ROSS and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about October 12, 1994, which, inter alia, granted the motion of defendants Robert Arnow and Swig, Weiler & Arnow Mgmt. Co. ("SWA") for summary judgment dismissing the complaint as against them, unanimously affirmed, with costs.

The lease provisions whereby the landlord and tenant agreed to obtain fire insurance policies with waiver of subrogation provisions barring one party's insurer from bringing a subrogation action against the other party to recover amounts paid out under the insurance policy, is valid and enforceable, as an allocation of risk provision, and thereby precludes this subrogation claim (see, Brentano's Inc. v. Charter Mgt. Corp., 46 A.D.2d 861, 361 N.Y.S.2d 665; Cidis v. Net Realty Holding Trust, 143 A.D.2d 720, 533 N.Y.S.2d 288). Contrary to plaintiff's argument that the waiver of subrogation provision was one-sided, both the landlord and the tenant agreed to procure insurance for their respective...