Nelson Lebron, Appellant,v.SML Veteran Leather, LLC, Respondent.BriefN.Y.February 12, 2014To be Argued by: CHRISTOPHER M. YAPCHANYK Bronx County Clerk’s Index No. 308490/08 New York Supreme Court Appellate Division—First Department NELSON LEBRON, Plaintiff-Respondent, – against – SML VETERAN LEATHER, LLC, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT LAW OFFICES OF EDWARD M. EUSTACE Attorneys for Defendant-Appellant 1133 Westchester Avenue, Suite S-325 White Plains, New York 10604 (914) 989-6650 cyapchanyk@eustacelaw.com PRINTED ON RECYCLED PAPER TABLE OF CONTENTS PRELIMINARY STATEMENT ...............................................................................1 QUESTION PRESENTED........................................................................................2 STATEMENT OF FACTS ........................................................................................2 (1) UNDERLYING INCIDENT...........................................................................2 A. Leather Stamping Machines .....................................................................2 B. Incident at Issue ........................................................................................6 (2) PROCEEDINGS BELOW..............................................................................7 A. Procedural History ....................................................................................7 B. Summary Judgment motion......................................................................8 DECISION BELOW..................................................................................................8 ARGUMENT .............................................................................................................9 THE SUPREME COURT IMPROPERLY DENIED SML VETERAN LEATHER LLC'S MOTION FOR SUMMARY JUDGMENT .....................9 I: SML MET THE REQUIRED BURDEN OF PROOF FOR SUMMARY JUDGMENT UNDER NEW YORK STATE LAW AND C.P.L.R. §3212...9 II: PLAINTIFF CANNOT MAINTAIN THIS ACTION PURSUANT TO THE INTENTION WRONG EXCEPTION OF THE NEW JERSEY WORKER'S COMPENSATION ACT...............................................................................11 A.The Retrieving Of The Leather Required The Removal Of The Safety Screen.........................................................................................................15 B.Any Alleged Removal Of The Safety Screen Does Not Rise To The Level Of Substantial Certainty ............................................................................17 1. The Absence of the Screen was not related to Productivity .................18 2. The Absence of the Screen in New Jersey was not Intentional ............19 3. There is no evidence of Prior Incidents . ...............................................20 C.Comparison to Laidlow..............................................................................21 CONCLUSION........................................................................................................23 ii TABLE OF AUTHORITIES New York State Cases Bartlett v. American Real Estate Holdings, 2008 NY Slip. Op. 30421U (Sup. Ct. N.Y. Cty. 2008) ..................... 9, 10 Hartford Accident & Indemnity Co. v. Wesolowski, 33 N.Y.2d 169 (1973) ........10 Koppers Co., Inc., v. Empire Bituminous Products, Inc., 35 A.D.2d 906 (4th Dep't 1970)..............................................................11 Koppers Co., Inc., v. Empire Bituminous Products, Inc., 30 N.Y.2d 609 (1972) ..11 Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957) ....................10 Zuckerman v. City of New York, 49 N.Y.2d 557 (1980)................................. 10, 11 New Jersey State Cases Cumming v. Tuscan Daires, 2008 N.J. Super. Unpub. LEXIS 2327 (2008) ..........16 Fisher v. Sears, Roebuck & Co., 363 N.J. Super. 457 (App. Div. 2003) ................18 Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002).................................. supra Marinelli v. Mitts & Merrill, 303 N.J.Super. 61 (App. Div. 1997) ........................20 Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985) .................... supra Tomeo v. Thomas Whitesell Construction Co. Inc., 176 N.J. 366 (2003) ................................................................. 13, 15, 16, 20 VanDuck v. Reckson Associates Realty Corp., 2012 N.J. LEXIS 678 (June 26, 2012) ................................................. supra Federal Cases Fermaintt v. McWane, Inc., 694 F.Supp.2d 339......................................................20 New York Statutes C.P.L.R. §503(a) ........................................................................................................9 C.P.L.R. §3212.........................................................................................................10 New Jersey Statues N.J.S.A. 34:15-8.......................................................................................... 12, 13, 19 NEW YORK SUPREME COURT APPELLATE DIVISION: FIRST DEPARTMENT NELSON LEBRON, Plaintiff-Respondent, -against- SML VETERAN LEATHER, LLC, Defendants-Appellant. BRIEF FOR APPELLANTS PRELIMINARY STATEMENT In this intentional tort action, defendant-appellant SML Veteran Leather, LLC appeals from an order of the Supreme Court, Bronx County (Ruiz, J.), dated April 2, 2012, which denied defendant SML Veteran Leather LLC’s motion for summary judgment and a dismissal of all claims and cross claims. - 2 - QUESTION PRESENTED Did the Supreme Court improperly deny defendant SML Veteran Leather LLC’s Motion for Summary Judgment when the Supreme Court ruled that issues of fact existed as to whether SML acted with knowledge of substantially certainty that a worker would suffer an injury in light of the fact that the under the required totally of the circumstances test, the absence of the required safety screen was irrelevant in the scenario surrounding plaintiff’s accident and that irrespectively, at most SML Veteran Leather tolerated the screen’s absence, which falls short of the substantially certain requirement? STATEMENT OF FACTS (1) Underlying Incident A. Leather Stamping Machines The plaintiff in this case was a supervisor of SML Veteran Leather, LLC (hereinafter “SML”) at its Hillside, New Jersey location. (65, 69)1. SML’s business was the cutting and printing of leather with specific brands or dyes for its customers. (69-70). In late 2006 and early 2007, SML purchased equipment from a Queens, New York-based leather stamping company known as Veteran Leather. (239-242). In addition, SML hired Veteran Leather employees, who relocated to SML’s Hillside, - 3 - New Jersey location. (114-115, 239-242). Veteran Leather employees joining SML in Hillside, New Jersey included the plaintiff, Victor Massi, and Andrew Sapienza, whose father had owned Veteran Leather. (239-242). Leather cutting and printing takes place through the use of pressing and stamping, a process that is partially done in what are known as hot stamp machines. (92-93, 257). The particular machine involved in this instant case was originally owned by Veteran Leather and was included in the equipment purchase by SML and moved to Hillside, New Jersey from Queens. (114-115). This hot stamping machine was manufactured by a company called Kensol and was first purchased by Veteran Leather in the 1980s. (257-261). The machine’s stamping head would come down to press, dye or cut the leather when a foot pedal was pressed by the machine’s operator and a micro- switch on the back of the machine’s interior plate was touched by inserting the tray upon which the leather sat. (264-65). The stamping head could reach 900 degrees, depending on the size of the leather; generally, the larger the piece, the hotter the stamp needed to be. (287). In light of the fact that this machine was an older, manual machine (as opposed to an automated machine) it was used exclusively for making samples and not for mass production. (257-261). 1 Unless otherwise indicated, numbers in parenthesis refer to the pages in the Record on Appeal - 4 - While still working for Veteran Leather, Mr. Sapienza noticed that newer hot stamp machines came with a screen or cage at their front, which more forcefully ensured that the operator would not put his or her hands into the machine. (261-63). Upon noticing this, Mr. Sapienza instructed Victor Massi to make a screen for the subject hot press machine. (104, 109, 261-63). After this installation, the normal operation of the subject hot stamp machine would be with the screen on it. (197). If, during a stamping procedure, a piece of leather became stuck in the machine, the screen would have to be removed in order to retrieve and/or dislodge it. (269-71, 348). Either a brush typically used to clean the dye head or a long screw driver was used to remove a piece of stuck leather. (270-71, 348). Plaintiff had worked with leather cutting and printing since at least the 1980s, working at similar companies G&G, Winston Manufacturing and as discussed, Veteran Leather (69-75, 91, 253). As such, by the time plaintiff worked at Veteran Leather, he was not only a manual operator involved with the leather cutting and branding process, but he was also a supervisor. Plaintiff supervised machine workers and was in charge of the hot stamping machines at Veteran Leather during his entire career at Veteran Leather. (91, 96, 253). Moreover, at Veteran Leather and later on at SML, plaintiff was in charge of the operation of approximately six (6) hot stamping machines. (251-253). - 5 - Plaintiff also trained other workers in the leather cutting and branding process, starting with his time at G&G. (84). Indeed, plaintiff throughout his 20- plus-year career continued to train workers on various machines, including training SML employee Maria Rodriguez on the use of the very machine he was injured on in this case. (129, 172-173, 324-325). When he was hired by SML and transferred to New Jersey, plaintiff became a Foreman whose responsibilities included training new workers. (125). Indeed, fellow Veteran Leather employee, Jacqueline Kitzler (who later was a SML General Manager) considered plaintiff to be a “leather expert” and the “key guy” who would give instructions to other workers. (397, 402). Plaintiff testified specifically that he instructed other co-employees that the subject machine was very sensitive and as a result they had to keep their hands outside. (186-187). If placing a hand into the machine triggered the micro-switch while the operator had pressed down on the pedal, the stamping head could stamp the operator’s hand. However, plaintiff admitted that on prior occasions he had put his hand into the machine to remove a piece of leather, but he had never injured himself while doing it. (188). Removing a piece of leather that was stuck required the removal of the front screen. (270-71, 348). Further, neither the plaintiff nor any of his co-workers ever saw or knew of any other employee injured by the machine at issue. (101-02, 342 409). - 6 - Plaintiff also testified that while the subject stamping machine was still used at Veteran Leather in Queens, upon direction from Mr. Sapienza and others, the front screen was removed and the foot pedal was taped in the “down” position so as to increase productivity from this machine. (136-140). Further, upon the SML equipment purchase from Veteran Leather, the screens for the machine were shipped in separate boxes and never made it back onto the machine once it was re- assembled in Hillside, New Jersey. (114-115, 337). The subject screens never were returned to the machine because they were accidentally discarded as garbage upon their arrival in New Jersey. (174-75). Mr. Spaienza denied that removing the screen increased productivity as the machine at issue was used strictly for samples due to the fact the machine was not an automated machine that could mass-produce products. (266, 275, 279). Moreover, Mr. Sapienza did not recall ever plaintiff working on with the machine in Hillside without the screen. (275-278). Finally, while the machine was in New Jersey, OSHA inspectors never visited the Hillside plant and issued no violations to SML. (293-94, 412). B. Incident at Issue On October 19, 2007, plaintiff was working with co-employee Maria Rodriguez creating sample for a Ralph Lauren/Polo project. (132-33, 147). After checking a label made by the machine, Plaintiff was not satisfied with the result - 7 - and so he re-set the machine. (188-192). Upon placing a piece of leather in the machine for another sample label, the leather became stuck. (189). After the leather became stuck, Ms. Rodriguez went to find the brush that was customarily used to remove the leather. (346). Ms. Rodriguez specifically testified that the brush at issue had a long handle and was routinely used by every supervisor to remove leather from the machines, to wit: “[The machine] wasn’t dangerous. It was dangerous using the hand.” (347). As Ms. Rodriguez went to locate the brush, Plaintiff put his right hand in the machine to retrieve the leather which was stuck and while plaintiff’s hand was in the machine, the hot stamp came down on his hand, causing burns to plaintiff’s right hand. (147, 346). In accordance with New Jersey Law, plaintiff received Workers’ Compensation indemnity payments as a result of this accident. (208). In addition, Workers’ Compensation paid for plaintiff’s medical expenses (200). (2) Proceedings Below A. Procedural History Plaintiff commenced the within action by filing a Summons and Complaint on or about October 13, 2008, naming SML Veteran Leather, LLC as a defendant, claiming that SML, its servants, agents or employees intentionally and deliberately removed the safety devices from the leather stamping machine, thus nullifying N.J.S.A. 34:15-7 and 34:15-8. (28, 30). - 8 - SML served their Answer on December 12, 2008. (33). B. Summary Judgment motion By notice of motion dated July 28, 2011, SML sought summary judgment and a dismissal of the complaint asserting that the New Jersey Worker’s Compensation Act barred the plaintiff from recovery against his employer, SML, as the limited exception to such Worker’s Compensation required proof of an intentional wrong, a tort that SML could prove did not occur in the circumstances surrounding plaintiff’s accident. (6, 19). Plaintiff submitted an affirmation in opposition dated October 13, 2011, claiming that SML acted with knowledge that made it substantially certain that a worker would suffer an injury in the manner of plaintiff and that this accident was not a simple fact of industrial life and as such, SML’s motion must be denied. (477, 485, 488). DECISION BELOW The Supreme Court’s decision and order (one paper) dated April 02, 2012 denied SML’s motion for summary judgment and to dismiss the complaint, holding: “The Court finds there are issues of fact regarding whether or not the defendant employer acted with knowledge that it was substantially certain a worker would suffer an injury. (See Laidlow v. Hariton Machinary Co, Inc., 110 N.J. 602 ([2002]). Accordingly the motion is denied.” (4). - 9 - ARGUMENT THE SUPREME COURT IMPROPERLY DENIED SML VERTERAN LEATHER, LLC’S MOTION FOR SUMMARY JUDGMENT SML is able to prove that pursuant to applicable law, it did not commit an intentional wrong under the New Jersey Worker’s Compensation Act. There was and remains proof that is irrefutable, that SML had no substantial certainty of the plaintiff’s injuries. I. SML MET THE REQUIRED BURDEN OF PROOF FOR SUMMARY JUDGMENT UNDER NEW YORK STATE LAW AND C.P.L.R. §3212 In this intentional tort action at common-law, the plaintiff is a domicile of New York State, Bronx County. (27, 61). As such, venue of this case in the Supreme Court State of New York, Bronx County was proper. C.P.L.R. §503(a). The complained-of incident occurred in New Jersey while plaintiff was in the employ of a New Jersey company and as such, plaintiff’s Worker’s Compensation benefits were paid through a New Jersey Workers’ Compensation policy. (450-76). Therefore, substantive New Jersey law applies as it relates to plaintiff’s ability (or lack there of) to bring this action in light of the provisions of the New Jersey Worker’s Compensation Act, specifically N.J.S.A. 34-15-7 and 34- 15-8. See Bartlett v. American Real Estate Holdings, 2008 NY Slip. Op. 30421U (Sup. Ct. N.Y. Cty. 2008) (Holding that where the interest of each jurisdiction is - 10 - roughly equal, the situs of the tort is considered an appropriate tie breaker as the jurisdiction where the parties have purposely associated themselves in a significant way) (internal citations omitted) (emphasis added). However, having brought this action in New York State, the procedural mechanisms of discovery under Article 31 and accelerated judgment under Article 32 govern this case. In New York State, summary judgment pursuant to C.P.L.R. §3212 is to be awarded when there are no outstanding issues of fact requiring a trial. Issue finding, rather than issue determination, is the function of the summary judgment procedure. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957). Summary judgment does not deny the parties a trial; it merely ascertains that there is nothing to try. Siegel, N.Y. Practice, Section 278 at 407 [2d ed]. Once the moving party has demonstrated its entitlement to summary judgment through the use of admissible evidence, it is incumbent upon the opposing party to demonstrate a genuine issue of fact exists. Zuckerman v. City of New York, 49 N.Y.2d 557, (1980). Only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment. The Court of Appeals has consistently held that the test on a motion for summary judgment is whether there are issues of fact properly to be resolved by a jury. Hartford Accident & Indemnity Co. v. Wesolowski, 33 N.Y.2d 169, (1973). The shadowy semblance of an issue is not - 11 - sufficient to defeat a motion for summary judgment. Koppers Co., Inc. v. Empire Bituminous Products, Inc., 35 A.D.2d 906, (4th Dept. 1970), aff’d 30 N.Y.2d 609 (1972). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient for this purpose. Zuckerman v. City of New York, supra. In its motion before the Supreme Court, SML proved there are no bona fide issues of fact regarding. Under the relevant substantive standards of New Jersey Worker’s Compensation Act, there was sufficient admissible evidence to prove that SML did not act with substantial certainty of a possible injury to plaintiff. In opposition, plaintiff raised no genuine issues of fact. Therefore, the Supreme Court erred in denying SML’s motion and that order should be reversed. II: PLAINTIFF CANNOT MAINTAIN THIS ACTION PURSUANT TO THE INTENTIONAL WRONG EXCEPTION OF THE NEW JERSEY WORKER’S COMPENSATION ACT. The New Jersey Worker’s Compensation Act was a “historic trade-off whereby employees relinquished their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced benefits whenever they suffered injuries by accident arising out of and in the court of employment.” VanDuck v. Reckson Associates Realty Corp., 2012 N.J. LEXIS 678 *21, 22 (Jun. 26, 2012) citing Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985). Thus, an employee may only sue his or her employer in tort if the - 12 - employer committed an intentional wrong. See N.J.S.A. 34:15-8. Specifically, the relevant portion of the act provides as follows: Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this article and an acceptance of all the provisions of this article, and shall bind the employee and for compensation for the employee’s death shall bind the employee’s personal representatives, surviving spouse and next of kin, as well as the employer, and those conducting the employer’s business during bankruptcy or insolvency. If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong. N.J.S.A. 34:15-8 Under New Jersey substantive law, when an employee sues an employer for an intentional tort and the employer moves for summary judgment based on the Workers’ Compensation bar, the trial court must make a two-part conjunctive inquiry. Millison v. E.I. DuPont de Nemours & Co., supra. First, when viewed in a light most favorable to the employee, has the employee alleged sufficient facts demonstrating that the employer knew that its actions were substantially certain to result in the injury (the conduct prong) and secondly, if the answer to the first - 13 - inquiry is yes, do the circumstances surrounding the injury constitute more than a fact of life of industrial employment beyond anything the Legislature intended the Workers’ Compensation Act to immunize (the context prong). VanDuck v. Reckson Associates Realty Corp., 2012 N.J. LEXIS 678 *25, 26; Laidlow v. Hariton Machinery Co., 170 N.J.602, 617 (2002). This substantial certainty standard was further described as beyond mere knowledge and appreciation of the risk, for that is short of substantial certainty. VanDuck v. Reckson Asscoiates Realty Corp, 2012 N.J. LEXIS 678 *25; citing Millison v. E.I. du Pont de Nemours & Co., 101 N.J. at 177. Indeed, a defendant who acts in the belief or consciousness that the act is causing an appreciable risk may be negligent, grossly negligent or even reckless, but such conduct is not an intentional wrong. Id. (emphasis added). The standard demands virtual certainty. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. at 178; Tomeo v. Thomas Whitesell Construction Company, Inc., 176 N.J. 366, 374 (2003) (emphasis added). Plaintiff’s Complaint and Bill of Particulars both allege that the removal of a safety device (the front screen) from the machine at issue is the intentional wrong that provides that foundation for this action in tort under § 34:15-8 of the New Jersey Worker’s Compensation Act. (28, 30, 51). However, any alleged removal of the safety screen alone is not enough to demonstrate an intentional wrong under - 14 - the meaning of §34:15-8. Laidlow v. Hariton Machinery Co., 170 N.J.at 622-23 (Holding that the New Jersey Supreme Court should not be understood as having established a per se rule that an employer’s conduct equates with in intentional wrong within the meaning of N.J.S.A. 34:15-8 whenever an employer removes a guard or similar safety device from equipment or machinery). Beyond said removal there must be virtual certainty of an injury based on the removal plus evidence that the injury was something beyond a fact of life in the leather stamping business outside the scope of the intended employer immunity in the Worker’s Compensation Act. As will be discussed infra, the removal of the safety screen was a necessary act in retrieving the stuck leather and so the entire issue of the screen’s removal is irrelevant and certainty does not rise to SML’s substantial certainty of plaintiff’s injury. Furthermore, even assuming that the removal of the screen was not necessary for the retrieval of the leather, the facts before the Court below and present on appeal clearly demonstrate that SML had no substantial certainty of injury and SML’s actions, even if considered negligent or reckless, nevertheless fall short of the standard needed to demonstrate an issue of fact as to an intentional wrong. As such, the Supreme Court decision should be reversed and the plaintiff’s complaint dismissed. - 15 - A. The Retrieving Of The Leather Required The Removal Of The Safety Screen. The issue of an alleged intentional removal of the hot stamp machine’s safety screen is irrelevant for purposes of discussion of this plaintiff’s particular accident. For the incident at issue specifically in this case, removing a piece of leather that was stuck in the machine, such retrieval required the removal of the front screen. (270-71, 348). Therefore, plaintiff’s allegations of intentional wrongs in the removal of the safety screen are wholly irrelevant and merit a dismissal of plaintiff’s entire complaint. The first (conduct) prong of the substantial certainty/intentional wrong test requires an inquiry that whether, when viewed in a light most favorable to the employee, the evidence alleges sufficient facts demonstrating that the employer knew that its actions were substantially certain to result in the injury. VanDuck v. Reckson Associates Realty Corp., 2012 N.J. LEXIS 678 *25, 26; Laidlow v. Hariton Machinery Co., 170 N.J.602, 617 (2002). Again, this certainty must be virtual certainty and actions that can found negligent, grossly negligent or reckless will not suffice. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. at 177-78; Tomeo v. Thomas Whitesell Construction Company, Inc., 176 N.J. at 374. In this case, SML’s alleged intentional acts are irrelevant. Assuming for the moment that the safety screens were intentionally removed from this hot stamp machine in an effort to boost production, the screen’s removal is a red-herring. It - 16 - has gone undisputed that once a piece of leather became stuck in the machine, the screen’s removal was necessary. (270-71, 348). The proper procedure in this scenario would be to use either the broom or long screwdriver, both objects that could be placed into the machine without risking one’s limb, to retrieve the leather. (270-71, 348). This was the process used by every SML supervisor and indeed the admissible evidence reveals that prior to plaintiff’s accident there was no record of a previous incident resulting in an injury like plaintiff’s. (101-02, 342 409). Therefore, plaintiff’s claims of an intentional tort against SML have no basis in fact and must be dismissed. The machine was not being used in the normal course of its operations and thus the design and purpose of the safety screen was irrelevant. New Jersey law does not impose a duty on an employer to prevent an employee from engaging in self-damaging conduct absent a showing that the employer encouraged such conduct or concealed its danger. Cumming v. Tuscan Dairies, 2008 N.J. Super. Unpub. LEXIS 2327 (2008) citing Tomeo v. Whitesell Constr. Co., 176 N.J. at 377. No such encouragement or concealing of dangers occurred herein. SML employee Ms. Rordiguez, whom plaintiff trained to use the hot stamp machine at issue testified clearly that using one own’s hand to remove a stuck piece of leather was dangerous. (347). Plaintiff had even sent Ms. Rodroguez to - 17 - locate the brush, but then decided to put his right hand in the machine to retrieve the leather when the hot stamp came down. (147, 346). Based on these facts, any alleged actions as asserted against SML fail to satisfy even the first (conduct) prong of the substantially certainty test as set forth by the New Jersey Supreme Court. SML has proven that its acts do not rise to the level of substantial certainty of harm and therefore the complaint should be dismissed. B. Any Alleged Removal Of The Safety Screen Does Not Rise To The Level Of Substantial Certainty. Assuming that removal of the safety screens were relevant to the inquiry in this case, SML can nevertheless demonstrate that it is entitled to summary judgment. The facts reveal that SML employees did not believe the removal of the screens increased productivity and that such a belief would be illogical given the machine’s intended use. Secondly, the screens were unintentionally discarded in New Jersey, thus demonstrating there was no intent on the part of SML to deprive plaintiff of these safety screens. Finally, there were no prior incidents that could be used as evidence to bolster a claim of substantial certainty. The conjunctive substantial certainty standard requires more than mere knowledge and appreciation of the risk. VanDuck v. Reckson Asscoiates Realty Corp, 2012 N.J. LEXIS 678 *25; citing Millison v. E.I. du Pont de Nemours & Co., 101 N.J. at 177. Again, a defendant who acts in the belief or consciousness - 18 - that the act is causing an appreciable risk may be negligent, grossly negligent or even reckless, but such conduct is not intentional. Id. The must be virtual certainty of injury combined with facts that prove the injury was more than the relatiy of the workplace. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. at 178; Tomeo v. Thomas Whitesell Construction Company, Inc., 176 N.J. at 374 (2003); Laidlow v. Hariton Machinery Co., 170 N.J. at 617 (2002). (emphasis added). Moreover, no one fact will be dispositive in determining whether an employee had substantially certainty, and the ultimate determination as to an intentional wrong will be grounded in the totality of the facts contained in the record. Fisher v. Sears, Roebuck & Co., 363 N.J. Super 457 (App. Div., 2003) (emphasis added). 1. The Absence of the Screen was not related to Productivity. First, plaintiff has alleged that upon direction from Mr. Sapienza and unnamed others, the front screen was removed and the foot pedal was taped in the “down” position so as to increase productivity from this machine. (136-140). However, Mr. Spaienza denied that removing the screen increased productivity as the machine at issue was for samples only as the machine was not an automated machine that could mass-produce products. (266, 275, 279). It is illogical that a machine used to create only samples on a sporadic basis would be intentionally altered in disregard to employee safety in order to increase - 19 - productivity and profit margin. However, even to assume this, there is no per se rule that whenever an employer removes a guard or similar safety device from equipment or machinery that employer’s conduct equates with in intentional wrong within the meaning of N.J.S.A. 34:15-8. Laidlow v. Hariton Machinery Co., 170 N.J.at 622-23. Therefore, there must be more evidence of substantial certainty of plaintiff’s injury. In this case SML proved that there is not. As discussed in point II.A supra, the machine was not in the mode of its regular use when plaintiff was injured and so, SML cannot be held to have substantial certainty of an injury occurring given plaintiff’s own disregard of supervisor protocol in removing stuck leather. Additionally, Mr. Sapienza testified that he never saw plaintiff working with the hot stamping machine in Hillside without the screen that could evince virtual certainty of plaintiff’s injury. (275-278). Therefore, SML has proven that there are no issues of productivity-based screen removal applicable to plaintiff’s accident. 2. The Absence of the Screen in New Jersey was not Intentional. Secondly, SML did not intentionally eliminate the screens from the machine. Plaintiff himself testified that the screens were boxed up and shipped from Queens to Hillside, New Jersey, but accidentally discarded as garbage. (174-175). By the very nature of these screens accidentally being discarded as garbage eliminates any intent on the part of SML. At most, assuming SML knew of this situation between - 20 - the equipment’s arrival in January 2007 and the accident in October of 2007, this would be a toleration of a hazard, which under New Jersey law comes up short the substantial certainty requirement. Millison, 101 N.J. at 179. Even if such toleration is or could be negligent, grossly negligent or reckless, again, such behavior is not proof of substantial certainty. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. at 178; Tomeo v. Thomas Whitesell Construction Company, Inc., 176 N.J. at 374 (2003); Laidlow v. Hariton Machinery Co., 170 N.J. at 617 (2002). Nor is there any evidence of inspections conducted by OSHA which would have in theory, identified the absence of the screen as a safety hazard and import some notice to SML. (293-94, 412). Whether these OSHA violations would have in and of themselves demonstrated an intentional act under N.J.S.A. 34:15-8 is doubtful under the applicable law, but the absence of OSHA violations clearly and unequivocally proves SML had no substantially certainty. See Laidlow v. Hariton Machinery Co., 170 N.J.at 622-23; Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 67, 73 (App. Div. 1997); Fermaintt v. McWane, Inc., 694 F.Supp.2d 339, 349 (D.N.J. 2010). Therefore, absent intent, substantially certainty of the injury cannot be charged as against SML. 3. There is no Evidence of Prior Incidents. Finally, there were no prior incidents of harm such as plaintiff’s accident, which could then bolster an argument of substantially certainty. Prior accidents or - 21 - even prior “close-calls” can be evidence of an employer’s knowledge that an injury is substantially certain. Laidlow v. Hariton Machinery Co., 170 N.J.at 621. However, neither the plaintiff nor any of his co-workers ever saw or knew of any other employee injured by the machine at issue. (101-02, 342 409). Therefore, the evidence demonstrates that there is no scenario in which SML would have knowledge that such an injury like plaintiff’s could have occurred, let alone did occur. Therefore, in the totality of the circumstances, it is clear SML did not have substantial certainty of an injury within the meaning of the intention wrong exception under N.J.S.A. 34:15-8. C. Comparison To Laidlow. Comparing this case to the Laidlow case, in which the New Jersey Supreme Court held that there was an issue of fact as to whether the employer was substantially certain of the plaintiff’s injuries, it is clear there are significant differences with this instant plaintiff’s case warranting dismissal of Mr. LeBron’s action. In Laidlow, plaintiff, an employee of an electrical products manufacturing company, was using a rolling mill, when he suffered a degloving injury which resulted in multiple finger amputations. His glove was caught in part of the - 22 - machine that pulled his hand toward the mill’s roller. See, Laidlow v. Hariton Machinery Co., 170 N.J. at 607. This was not the first time an employee’s glove had become snagged on the machine, but this was the first injury that resulted. Those prior “close calls” occurred twice, and both times the employees reported it to the employer. Laidlow v. Hariton Machinery Co., 170 N.J. at 608. The employer had a safety guard for the mill but it was kept purposely disengaged. Id. The guard was placed in its proper position only when OSHA inspectors came to the plant. Id. Mr. Laidlow had asked his employer to restore the guard, but it was not restored. Id. The employer conceded that the guard was removed for speed and convenience. Id. The New Jersey Supreme Court determined that a jury could find Mr. Laidlow’s employer knew that it was “substantially certain” that the removal of the safety guard would result eventually in an injury. Laidlow v. Hariton Machinery Co., 170 N.J. at 622. Compare that to this instant case where there were no prior incident, no intentional deception of OSHA and the injury itself occurred not during the machine’s normal operations, but in a repair-type situation where the screen’s purpose was irrelevant in any event. As SML has demonstrated that under the totality of the circumstances, there is no evidence of a substantial certainty of injury, plaintiff’s exclusive recourse for his injuries remains New Jersey Worker’s Compensation. Therefore, no tort action can be maintained against SML and the complaint should be dismissed in its entirety and the determination of the Supreme Court reversed. July 13, 2012 CONCLUSION THE ORDER SHOULD BE COSTS. APPEALED REVERSED, FROM WITH THE LAW OFFICE OF EDWARD M. EUSTACE Attorneys for Appellants, - 23- PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 2002, using Times New Roman 14. According to the aforementioned processing system, the entire brief, including portions that may be excluded from the word count pursuant to 22 N.y'C.R.R. § 600. 1 O(d)(l)(i), contains 4,919 words. THE LAW OFFICE OF EDWARD M. EUSTACE Attomeys for Appellants, July 13, 2012 - 24 - SUPREME COURT OF THE STATE OF NEW YORK COUMIY OF BRONX ---: L--- -----x rndex No.: 308490/08 NELSON LEBRON, Plaintif f PRE-ARGIIIIENI STATEldENT It SML VETERAN LEATHER, LLC, :::::11: ,________x S ] R S: 1 . The title of this action is as set forth above. 2. The full names of the parties as set forth in the caption above and upon information and belief, there has been no change of the namds of .parties to this acti-on. 3. The name, address and telephone number of counsel for Appellants: The Law Offices of Edward M. Eustace Attorneys for Defendant SML Veteran Leather, LLC 1133 Westchester Avenue White Plains, New York 10604 ( e14 ) 989-6650 4. The name, address and telephone number of counsel for Respondent: okun oddo & Babt, PC Attorneys for Plaintiff Nelson Lebron B West 38th Street 9th Floor New York, New York 10018-6229 (2L2) 642-o9so 5. This Appeal is taken from an Order of the Supreme Court, Bronx County, the Honorable Norma Ruiz, J.S.C. dated REME RT F E TE F W UNTY F -~----~----------------------- -x ON , tif Y. L AN ER, Defendant, -------------------------------------x IR I x .: -ARGUM T M . e tle s ti s t t . e ll es s t ti ve d n ti ef, e es , rti s . e, r ss d er a c r . t L n t er, 3 t e i l i , w rk 9 ) . e, r ss d er O O o bt, ti f l n 8 st t str t - t w rk, w rk 12) 0 50 . i al n r urt, x unty, r bl a iz, . . . April 2, 2012 and entered on April 4, 20t2. The Notice of Appeal has been filed simultaneously with the Pre-Argument Statement. .6. Upon information and belief, there are no related actions in this Court or i-n anv other iurisdiction. 7. The nature and obiect of the cause of action is for nersonal in-irrrv cltte f o thc al I eoed necr'l i crcnr-p nf the_)' ssv vs rlvY T'\^f^-l-*r B. The Court bel-ow denied the motlon of the Defendant for summary judgment against the Plaintiff. 9. The grounds for.seeking reversal- are the Court erroneorrslrr rrrles fhaf (a) defendant did not eStablish\q/ entitlement to summary judgment against plaintiff. 10. The appeal is taken from an Order where there were no minutes taken. DATED: ApriL 24t 2012 White Plains, New York Ynrr rc ats r t v Lv . , THE LAW OFFICES OF EDWARD M. EUSTACE Attorneys for DEFENDANT, Sl"lL VETERAN LEATHER, LLC 1133 Westchester Avenue White Plains, New York 10604 (914) 989-665 l , 12 d t l , 1 . al s n led i sl e t st t . n ti e , r o ti s rt n y r j risdiction. . t r d j t e ti r p nal ju y due t e leged g igence o Defendant. 8. rt o i ti nt ary nt i t ntiff. . s .se ing s l u y u t t (a) f nt st s ti t ary nt i t aintiff. . e eal r re r ATED: l , i l i , w ours, etc , E I ES F ARD , ML AN ER, 3 t e i l i , w rk ( 14) 0