New York State Court of Claims

New York State Court of Claims

MARRO v. STATE OF NEW YORK, #2006-014-515, Claim No. 97982, Motion No. M-70787


An agreement by claimant which preserved for prosecution claims based on the independent, active negligence of the defendant, does not include allow for prosecution of claims for negligent supervision of a contractor.

Case Information

1 1.The Court has amended the caption to include the only proper named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has amended the caption to include the only proper named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

S. Michael Nadel
Claimant’s attorney:
Worby, Groner, Edelman, LLPBy William H. Groner
Defendant’s attorney:
Fabiani & CohenBy Thomas J. Hall
Third-party defendant’s attorney:

Signature date:
July 31, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the defendant’s motion for summary judgment dismissing the claim: Notice of Motion, Affirmation and Exhibits annexed; Affirmation in Opposition and Exhibits annexed; Reply Affirmation.

This claim for personal injury arises out of an accident which occurred on the Gowanus Expressway at a time when the expressway was undergoing repair work performed by, among others, TPK Construction Corp. In addition to the instant claim against the defendant, other actions were commenced in Supreme Court by the claimant against the City of New York and the contractors who were working on the expressway. A “Partial Stipulation of Settlement” (Exhibit I to the defendant’s submission) was executed in the Supreme Court actions and So Ordered by that Court.

In moving for summary judgment dismissing the claim, it is the defendant’s contention that the terms of that stipulation, to which the claimant was a party, constitute a bar to the further prosecution of this claim.

According to the stipulation, “one of the purposes of this settlement is . . . to eliminate any and all direct, uninsured exposure to The State of New York . . . on claims, by [claimant], arising from or in connection with the subject accident, or in any way relating or pertaining to the condition of the Gowanus Expressway, . . . at the time of the subject accident.” The stipulation further stated that with respect to claims against the State of New York, the claimant “knowingly and voluntarily limit[s] his recovery on those claims to whatever amount of coverage is actually available under (i) a certain policy of primary insurance believed but not known to have been issued to The State of New York . . . by St. Paul Fire & Marine Insurance . . . or (ii) such other policy of primary insurance, the possible existence of which is not known at present.”

The other provision in the stipulation which pertains to this claim states that with respect to prosecution of claims against the State of New York, the claimant “voluntarily and expressly limit[s] such claims to only those arising from the independent, active negligent acts on the part of . . . the State of New York . . . and same shall not be based, directly or indirectly, upon any acts or omissions on the part of TPK Construction Corp. for which [the State of New York] might be found to be vicariously or passively liable.”

The parties do not disagree that the coverage of the pertinent insurance policy (Exhibit T to defendant’s submission)[2] applies to bodily injury or property damage arising out of the general supervision of TPK by the defendant (see Exhibit T, paragraphs 1[a][2] and 2[d] on page 1 of 5). According to the claimant (paragraph 32 of the Affirmation in Oppositon): The policy “applies to ‘bodily injury’ or ‘property damage’ where the gravamen of the underlying action is negligent supervision, i.e., general supervision of the ‘work’ performed ‘for’ the State by the contractor.” According to the defendant (paragraph 41 of the Affirmation in Support): The policy covers “bodily injury or property damage arising out of . . . the State’s acts or omissions in connection with the general supervision of [TPK’s] operations.”

The disagreement between the parties as to the effect of the stipulation on this claim arises from the provision which limits recovery against the defendant to those claims arising from the independent, active negligence of the defendant, and bars any claim based upon acts or omissions by TPK for which the defendant might be vicariously or passively liable.

It is the defendant’s contention that the only claim against the defendant which the claimant has preserved (independent, active negligent acts on the part of the State) is specifically excluded from the coverage of the insurance policy, which only covers general supervision of the contractor. The claimant contends that the preservation of claims based on the independent, active negligence of the defendant includes claims for negligent supervision of the contractor, which are covered by the insurance policy.

In the absence of any specific mention in the stipulation of claims based on supervision of the contractor by the defendant, the issue presented on this motion is whether general supervision can constitute independent, active negligence.

Neither side has offered controlling authority on the issue. For guidance, the Court has considered the definitions of the pertinent terms in the stipulation. According to Black’s Law Dictionary (7th edition), independent is defined as: “2. Not associated with another (often larger) entity. 3. Not dependent or contingent on something else.” Active negligence is defined as: “Negligence resulting from an affirmative or positive act, such as driving through a barrier. Cf. passive negligence” (id). Passive negligence is defined as: “Negligence resulting from a person’s failure or omission in acting, such as failing to remove hazardous conditions from public property. Cf. active negligence” (id). Also of relevance is the definition of vicarious liability: “Liability that a supervisory party . . . bears for the actionable conduct of a subordinate or associate . . . because of the relationship between the two parties” (id).

These fundamental definitions lead to the inescapable conclusion that the terms of the stipulation preclude recovery from the defendant on a claim of negligent supervision. Any proof that the defendant negligently supervised TPK will necessarily be “associated with” and “dependent or contingent on” TPK’s conduct. The gravamen of the claimant’s claim (see paragraphs 10, 18, 21 and 28 and supporting Exhibits, Affirmation in Opposition) is the “failure or omission” of the defendant to properly supervise TPK. See LaFleur v Consolidated Edison Company of New York, Inc., 245 AD2d 36, wherein the Court clearly distinguished between active negligence and negligent supervision.

The claimant’s contention that the “stipulation was specifically designed to allow claimant to continue his claim against the State for its affirmative negligence in not properly supervising TPK in the work which led to the accident” (Paragraph 32, Affirmation in Opposition), is not supported by a plain reading of the terms of the stipulation, in light of the undisputed extent of the coverage in the insurance policy.

Accordingly, the defendant’s motion is granted; the claim is dismissed.

July 31, 2006
New York, New York

Judge of the Court of Claims

[2]. According to the defendant’s Affirmation in Support (¶ 47): “Here, the State is being defended by St. Paul under an OCP policy purchased by TPK Construction which provides the State with very limited coverage. This is the only policy of insurance available to the State, . . .”