Nelson Lebron, Appellant,v.SML Veteran Leather, LLC, Respondent.BriefN.Y.Feb 12, 2014POLLACK, POLLACK, ISAAC & BE CICCO Attorneys at Law 225 BROADWAY ARTHUR POLLACK(1950-1985) SUITE 307 CONRAD EVAN POLLACK NEW YORK, NEW YORK 10007-3024 FRED A. DE CICCO BRIAN J. is.&.&c Telephone: (212) 233-8100 ______ Facsimile: (212)233-9238 SUSAN OH JILLIAN ROSEN ADMITFED IN N.Y. & N.J. November 7, 2013 Via Overnight Mail Court of Appeals State of New York 20 Eagle Street Albany, NY 12207-1095 Att.: Andrew W. Klein, Chief Clerk and Legal Counsel to the Court Re: Lebron v. SML Veteran Leather LLC APL-20 13-00275 Dear Mr. Klein: As you are aware, this office is special and appellate counsel to Okun Oddo & Babat PC, attorneys for plaintiff-appellant Nelson Lebron in this matter. We submit this letter memorandum in accordance with 22 NYCRR §500.11. It is respectfully submitted that this Court should reverse the 3-2 opinion of the Appellate Division, First Department which reversed the order of the trial court denying the motion of defendant SML Veteran Leather LLC for summary judgment and dismissal of the complaint. The two-person dissent got the matter right in holding that under New Jersey Law, issues of fact existed “regarding whether the conduct of plaintiff’s employer in dismantling various safety features of a leather stamping machine was ‘substantially certain to result in injury’ so as to exempt plaintiff from the exclusivity provisions of the New Jersey Workers Compensation Law.”2 Subheadings are used herein for ease of reference. See, Milison v. El Dupont De Nemours, 101 NJ 161 ; Mull v. Zeta Consumer Products, 176 NJ 385 ; Laidlow v. Hariton Machine, 170 NJ 602  2 NJ Stat Ann §34:15-8. Plaintiffs employment: the machine. On October 19. 2007, at 1:00 PM. plaintiff, a supervisor for defendant, was injured while operating a Kensol-Olsenmark hot press leather stamping machine. Model 60-F3 at a warehouse rented by his employer, SML, at 100 Central Valley, Hillside, NJ. A piece of leather became stuck in the machine; plaintiff attempted to take hold of it, but the stamping head suddenly descended and severely burned his hand (189, 491-.98). Plaintiff s duties included printing, cutting and brand splitting leather (65, 69-70, 147, 49 1-98). SML had purchased the press from Veteran Leather Stamping Company, known as Veteran Leather, which was based in Queens; Veteran Leather had bought the machine in the 1980s (114-15, 257-61). Pursuant to a written agreement. SML hired Veteran Leather employees to work at its New Jersey warehouse, including plaintiff, Victor Massi, and Andrew Sapienza. whose father was an owner of Veteran Leather (114-15, 239-42). The record establishes that the stamping head on the machine would depress to press die or cut the leather. The operator pressed a foot pedal, and a micro-switch on the back of the machine’s plate was activated by inserting the tray, which housed the leather (164-65). The stamping head could reach temperatures of 900 degrees (287). The machine had two safety switches, one on each side, and a pedal which had to be depressed before the leather could be processed; thereafter, the sensor would be activated, and the head would descend and brand the leather. All of these actions had to take place before the head would drop down. The record shows that the side switches had been removed and the foot pedal taped down, and that there was no safety cage or shutdown mechanism as required by law. The decision to disable or omit these devices was made to enhance productivity and profitability by enabling the stamping process to be completed more quickly. This situation was authorized by the employer (287, 49 1-98). Testimony and evidence. Mr. Sapienza, had worked at Veteran Leather from 1967 until its dissolution in 2006; he was responsible for the purchase and maintenance of the machine in the 1980s. He originally purchased the leather stamping machine without a manual; he also never performed any risk-benefit analysis with respect to the utility of the machine. In this regard, Mr. Sapienza did not know it was more dangerous than comparable machines on the market, which had screens or cages at the front to ensure that the operator’s hand would not enter the inner workings of the machine while it was in operation (25 7-59-63, 297). After he learned about the need to provide guards on the machine to prevent serious injury from inadvertent contacts while it was being used, Mr. Sapienza decided to attach a temporary safety gate, though he did not include the mandatory shut-down mechanism, which was triggered when the gate became non-operational or was disabled (260-61). In its brief in the Appellate Division, defendant claimed that Mr. Sapienza ‘instructed [Mr. Masse] to make a screen for the subject hot press machine” after which “normal operation of the [machine] would be with the screen on it” (Brief at 4). But the record shows that without a shutdown mechanism, the machine would operate even if the gate were removed, in violation of OSHA regulations (491-98). See, 29 CFR Numbers in parentheses refer to pages of the record on appeal. 110.212 [a]  . The pedal was also taped down so that the machine was in continuous operation; the safety switches that were originally on the side of the product were intentionally removed (491-98). When Veteran Leather dissolved, Mr. Sapienza sold the business to SML complete with personnel. machinery and clients; he continued to oversee the leather branding part of the business, since SML’s business was essentially the same as Veteran Leather’s (23 8-45, 249). Mr. Sapienza speciously claimed that the screen was not removed in the interest of productivity, as it was used merely to produce samples. But if this were true, why would there be any need to disable 5 safety features (including the failure to incorporate a shut down mechanism on the absent cage) with respect to an instrumentality that was not mass producing products that were being sold and marketed to the general public? Mr. Sapienza also gratuitously remarked that he did not remember seeing plaintiff using the machine without a screen (266-79). All the members of the Appellate Division panel found that SML’s actions were unjustifiable and wrongful; they disagreed, however, as to whether the conduct was so egregious as to constitute an intentional wrong under New Jersey law, and thus make the Workers Compensation bar inapplicable. However, there is compelling evidence that the safety features were removed to increase speed and productivity (491-98), valuing profits over employee safety. Jacqueline Kinsler, an account manager at SML, testified that the machine should have been configured so that the operator would have to insert the leather, hit a safety trigger and then depress the pedal before it would run. The pedal had been taped to bypass the safety design, so as to increase productivity by making the process faster (404- 05). Victor Massi, the engineer in charge of SML activities, admitted that the safety cage was made of metal, but it was not screwed on to the machine, and had no shutdown mechanism, so it could be easily removed, which was often done; everyone at the plant knew that using the machine in this condition posed a risk that the operator’s hand would contact the mechanism, resulting in potentially catastrophic injury (261-62, 270). The record indicates that when the machine was moved to New Jersey, the cage was not attached — it may have been discarded (174-75), Plaintiff complained every day to his superiors about the absence of the cage. but nothing was done to reattach it (141). Karl Abraham PE, a licensed professional engineer specializing in safety engineering, submitted an impressive affidavit (49 1-98). He had long experience in the type of machine involved in the accident, and he examined the machine in question in the presence of defendant’s representatives on July 21, 2010. A photograph of the machine appears on page 490 of the record. Dr. Abraham determined that defendant’s operation, maintenance and use of the machine violated numerous OSHA and federal guidelines as well as basic standards of practice. The leather stamping machine lacked interlock devices, a lockout /tagout control system to deal with leather sticking in the machine (29 CFR 1910. 147[c][i]), any of the safety features listed in 29 CFR §1910.147[a], any way of guarding the points of operation where foreseeable risks were presented (29 CFR §1 910.212[a][i]), and an enclosure which would prevent operation without the guard (29 CFR §1910.212 [a] ). Moreover, at least two accidents had not been reported, including the one at issue in this case, in violation of OSHA (29 1-92). OSHA inspectors were deceived — machines were turned off or put away during inspections (142-44). Required and legally mandated safety meetings were not held at all. The entire panel in the Appellate Division essentially adopted the foregoing findings as accurate (498). Dr. Abraham went on to opine with a reasonable degree of engineering certainty that SML had actual and constructive notice of the hazard causing the injury, and sought to increase profit at the expense of safety by choosing to disable necessary safety features. These acts were intentional, and had they been properly reported to OSHA. they would have subjected SML and its principals to criminal prosecution. Arguments below. Defendants pointed out below that plaintiff was the one who taped the foot pedal, but this was done at Mr. Sapienza’s and Mi. Massi’s direction (134). Veteran Leather and SML used the machine in this unsafe conditionfor 13 years (135). Defendant claimed this was an accident for which it bore no legal responsibility because the cage could have been discarded unintentionally. This is absurd, for the machine was used for almost a year after it was sold to SML without a safety cage or safety switch. And defendant’s claim that leather could not be properly taken out of the machine when the cage was attached makes no sense, since federal regulations mandated a safety cage for this type of machine. In other words, the governing regulations mandated that the machine be shut down when leather became stuck to avoid the very incident that befell plaintiff. That defendant chose to consciously ignore this duty and mandatory standard because it was more concerned with productivity and profit than worker safety is supportive of plaintiffs position. Defendant also argued that leather often became stuck in the machine, and the screen would have to be removed to get it out, which was usually done with a long handled cleaning brush or a long screwdriver. Plaintiff should have followed this custom; he was an experienced operator and trained other workers, telling them to keep their hands out of the machine; he admitted he had previously used his hands to remove leather from it (Brief at 4-5; 188, 269-71, 348). However, the purpose of safety devices is to prevent accidents that occur through foreseeable misuse. This accident at issue could not have occurred if the safety devices, which were part of the machine before defendants altered it, had been present and properly attached. In this regard, defendant’s custom of using a long-handled broom or screwdriver to remove trapped leather was, in itself, a violation of OSHA regulations requiring the use of certain other tools, none of which was available at the site (493). Motion and decision ofthe trial court. In July of 2011, SML moved for summary judgment and dismissal of the complaint based on the New Jersey Workers Compensation Act, which prevents a worker from suing his or her employer for on the job injuries unless the latter is guilty of an intentional wrong. Plaintiff opposed the motion, pointing to record evidence of willful and intentional conduct in disabling security devices and features. The accident was not a normal concomitant of plaintiffs work or a fact of industrial life (6, 19, 477, 485. 488). The trial court, citing to Laidlow, denied the motion, finding issues of fact as to deliberate conduct (4). Defendant subsequently appealed to the Appellate Division, First Department. Reversal in the Appellate Division. The Appellate Division, by a 3-2 vote, reversed (109 AD3d 431 [1st Dept. 2013]). The majority noted that a New York court construing the statute of another state must follow the construction, which the courts of that state have given to it, especially the highest court. In Millison v. El DuPont, supra, defendant intentionally concealed health risks involved in asbestos exposure. Workers were examined and then told that they were free of disease. An extensive analysis of the governing law was undertaken, the New Jersey Supreme Court holding that there must be a “substantive certainty” that the employer’s conduct could result in injury or death; in addition the injury at issue must not constitute a “fact of life of industrial employment.” The court held that the plaintiff could not obtain recovery for initial work related occupational diseases, based on the Workers Compensation Law, but his cause of action for aggravation of those diseases was valid based on defendant’s concealment, which prevented early treatment, for this was not a risk an employee should have to assume (101 NJ at 177-79, 182). The majority then discussed Laidlow v. Hariton Machinery, in which a rolling mill machine whose safety guard had been inactivated for 13 years because it slowed down production amputated a plaintiffs fingers. No one had been injured prior to plaintiffs accident, though sometimes a worker’s gloves had been ripped off. These incidents were reported to supervisors, and workers asked that the guard be activated, to no avail. OSHA inspectors had come to the work site previously, and supervisors told workers to remove the wire until the inspection was over, when it would again be used to tie up the guard. The court found that an issue of fact existed, under all these circumstances, as to whether the employer had acted intentionally, such that the complaint should not be dismissed. This did not mean the removal of a guard was always intentional conduct; the determination must be grounded on “the totality of the facts.” Commenting on these criteria, the majority in the case at bar found that the removal of the screen from the machine was insufficient to show an intentional wrong. There were no prior incidents or injuries; there was no evidence of deceit on defendants’ part; and, no OSHA violations were actually issued to defendant. However, as we have shown, the factors present in Laidlow are also present here. Two safety switches and a foot pedal were disabled, not just a safety screen. And, as the dissent observed, the Laidlow court held that “an appreciation of danger can be obtained in a myriad of ways”; the lack of prior injuries does not establish whether an employer’s act can be considered intentional under New Jersey law. An employer should not be provided with “one free injury for every decision, procedure or device it intended to use”; a person need not be “burned to know not to play with fire.” The majority erred in equating the deception in Laidlow with defendant’s actions here, where inspectors were deceived by the concealment of altered machines (142-44). That plaintiff used the machine after asking that the safety features be put on or that plaintiff erred in retrieving the leather with his hand instead of a brush or screwdriver did not cure defendant’s unconscionable conduct. In any event, the tools available at the plant were not approved by OSHA (493). A worker can always be blamed for using a machine whose guards have been disabled by his employer. But the purpose of guards is to prevent injuries from occurring as a result of foreseeable misuses of an instrumentality. This Court, too, has recognized that a machine can be defective where it does not have safety devices that guard against foreseeable risks including misuses (Chow v. Reckit & Coleman, 17 NY3d 29 ; Liriano v. Hobart, 92NY2d232 ). The majority failed to realize that employees often do not have a genuine choice in such matters. ‘When a person in the capacity of a superior assumes control over a workman on the job and directs him to proceed under circumstances recognizable as dangerous, the subordinate workman has little, if any, choice in the matter but to obey it, and, if he stays within the limits of the superior’s instructions, and is injured, he may not be penalized by a claim of contributory negligence as a matter of law” (Broderick v. Cauldwell-Wingate, 301 NY 182, 188 ). The majority blamed plaintiff for not waiting until a co-worker found the screwdriver or brush he should have used; acceptance of a rule of law that precludes plaintiff from recovery where the plaintiff contributed, in any way, to the accident at issue in a case of this type, in our view, is simply not congruent with New Jersey law on point. The dissent found this standard erroneous, especially in a summary judgment motion. An issue of fact was presented as to substantial certainty of injury. A concurring opinion in Mull v. Zeta, supra, stated that the disabling of safety features amounted to a “total breach of the social contract between an employer and an employee” (176 NJ at 396); the lack of prior injuries was not determinative based on the holding in Laidlow (170 NJ at 621); defendant had a year to replace the guard; the disabling of safety switches and the taping of the gas pedal could not be explained away innocently. Plaintiff appealed as of right to this Court. We believe that the dissent got it right. At the very least, there is a question of fact as to the applicability of the exclusivity provisions of the New Jersey Workers Compensation Law. Discussion. NJ State Ann §34:15-8 of the New Jersey Statutes provides that Workers Compensation is an exclusive remedy for recovery of damages as a result of an action or injury sustained during the course of the plaintiffs employment, unless it is shown that the employer’s conduct is tantamount to “an intentional wrong.” This exception, under Milison, requires a finding of virtual certainty of injury, and a finding that the risk did not essentially come with the job. That standard is satisfied here, we believe, especially when the evidence is viewed in a light most favorable to the plaintiff as the party opposing summary judgment. Four safety devices on the machine were compromised or disabled. Another, an interlock on the missing gate, was never incorporated into the design of the machine. There is expert testimony making it clear that these were intended to prevent the very accident, which befell the plaintiff, by stopping the machine any time the operator’s hand was within the internal workings of the instrumentality. Defendant’s actions continued over a period of 13 years and were designed to speed production and enhance profit. While no one had been injured previously, leather had gotten stuck in the machine, and had been removed with tools not approved by OSHA. Plaintiff complained repeatedly about the unsafe condition. He taped the pedal at the direction of Mr. Sapienza, his direct supervisor, and Mr. Massi, the head engineer (134). Ms. Kinsler admitted this was done to bypass safety mechanisms to increase productivity (404-05). The dissent properly noted that the facts are similar to those in Laidlow and Mull, cases in which New Jersey’s highest court ruled that the disengagement of safety systems demonstrated substantial certainty of injury sufficient to preclude summary dismissal of plaintiffs complaint. The concurring opinion in Mull held that the intentional disabling of a safety feature incorporated in the design of a product constituted improper conduct and a breach of the social contract between and employer and an employee. The Laidlow court found that the lack of prior injuries was not determinative. Plaintiffs possible negligence in placing his hand in the machine did not change the fact that safety devices were installed to guard against foreseeable misuses. Surely the disabling of four safety devices for 13 years was tantamount to intentional misconduct, and constituted the type of activity the Legislature would want to prevent in providing for the exception to exclusivity. It was not right to say the cage was lost in moving the equipment, since even when it was present, it was not equipped with the required shutdown mechanism, and the accident occurred almost a year after the machine was moved to defendant’s facilities in New Jersey. Defendant essentially admitted that it cared less about safety than about squeezing out more products, and that is why it disabled four safety features on a single machine. Injury was virtually certain to occur, since leather was repeatedly stuck in the machine, and non-OSHA approved tools were used to remove it. To say otherwise is absurd. After all, suppose this situation went on for 50 years and no one was hurt. Would that mean the employer was not guilty of intentional conduct? The majority here ignored the fact that plaintiff had little choice about his work conditions, and his complaints were ignored. Putting his hand in the machine was congruent with his employer’s practices. He had done so previously without injury (188). He did it for the same reason defendant used improper tools and disabled safety mechanisms to begin with — to make more products more quickly. Defendant should not be exonerated for its purposeful conduct for reasons ofjustice, rationality and public policy. Absolute certainty should not be transformed into a requirement for prior accidents. The majority ignored the fact that in Laidlow, Millson and Mull, the New Jersey Supreme Court sustained plaintiffs claims in whole or in part. Those cases should not be used to support total dismissal of the complaint here. It also omitted the fact that in Millson, the prior requirement to show a “deliberate intention to injure” was removed (101 NJ at 170). This case is not like Tomeo v. Thomas Whitesell Constr., 176 NJ 366 , where plaintiffs hand became trapped in a snow blower whose safety leader had been taped down. The employer denied having taped it; the machine had a warning against doing so. In Crippen v. Central Jersey Concrete Pipe, 176 NJ 397 [20031, plaintiff fell into a hopper from a narrow plank toward a ladder. 18 months before, defendant had been cited for multiple violations, which were not remedied. Employees admitted the conditions could cause death. The New Jersey Supreme Court held that the deliberate failure to cure could result in a substantial certainty of injury; defendant engaged in acts apparently designed to persuade OSHA that the violations had been corrected. In Van Dunk v. Reckson Assoc., 210 NJ 449 . a trench collapsed with plaintiff in it after a supervisor decided not to reinforce it. The New Jersey Supreme Court held that the exclusivity of remedy provisions barred the action because it was not virtually certain that the trench would collapse so quickly. There was no decision in cold blood to remove existing safety features, there were no OSHA citations, there was no deceit, and there were no prior complaints from employees, as in Millson, Laidlow, Crippen and Mull. Here, everything but prior accidents is involved. Indeed, the Van Dunk court noted that a single egregious act by an employer might satisfy the intentional wrong standard in appropriate cases. Of course, removal of safety devices does not always set forth a cognizable claim (Sellino v. Pinto Bros., 2013 NJ Super. Unpub. LEXIS 2317 [App. Div. 2013]; Calvano v. Federal, 2010 NJ Super. Unpub. LEXIS 2018 [App. Div. 2010]). The facts must be analyzed in a light most favorable to plaintiff as the non-moving party, and plaintiff is entitled to the benefit of all inferences that can be derived therefrom (Brill v. Guardian Life, 142 NJ 520, 523 ). Plaintiff must establish that the employer evidenced an intent to injure (Mabee v. Borden, 316 NJ Super. 218, 227 [App. Div. 1998] or knew his actions were “substantially certain to” result in injury or death (Holck v. PHA, 2010 NJ Super. Unpub. LEXIS 1811 [App. Div. 2010]). Where factual disputes are presented, the court must examine whether the type of accident was an incident of industrial life the Legislature might have intended to immunize under the Workers Compensation bar. Here, it was substantially certain that disabling four safety devices and omitting a required one on a machine that heated to 900 degrees, where materials frequently got stuck, would eventually result in injury to a worker using the machine; the risk was not inherent in the work or work environment, for the machine had been designed with safety devices which, if not disabled or omitted, would have prevented an operator from placing his hand in the works. Defendant had the initial burden of demonstrating prima facie entitlement to summary dismissal, and did not do so. See, Crippen v. Central NJ Concrete, supra at 408 (Absence of prior accident does not prove lack of intentional wrong); Laidlow v. Hariton Machine, supra. And, there is evidence of intentional misconduct based on a course of conduct that lasted more than a decade. There is a question of fact here as to the applicability of the intentional act exception for the following reasons: 1 .Disabling of 4 safety devices and the failure to include one mandated safety device into the configuration and design of the machine 2.Actions designed to obtain greater speed and productivity at the expense of plaintiffs safety 3.Plaintiffs placement of his hand in the machine was also in the interest of greater productivity 4.Plaintiff’ s actions were undertaken at the behest of defendant 5. Plaintiffs complaints regarding safety devices were ignored 6.Defendant knew that leather often became stuck in the machine 7.Defendant provided non-OSHA compliant tools to remove leather that did not pass through the machine properly 8.Disabling of safety devices was contrary to OSHA regulations 9.Practice of bypassing safety devices went on for 13 years 10.Defendant’s actions were concealed from the authorities (142-43) 11 .The accident at bar was similar to those in cases where New Jersey courts held that the issue was one of fact specific to each case. For all these reasons, plaintiff respectfully submits that the order of the Appellate Division, First Department should be reversed, and the trial court’s order denying summary judgment to defendant should be reinstated. Respectfully submitted, OKUNODDO&BABATPC By: I’ Brian J. Isaac POLLACK POLLACK ISAAC & DECICCO Appellate Counsel Brian J. Isaac Esq. Darren Seilback Esq, BJI/bsd TO: capchanç)eustacehiw.corn L.O.O. EDWARD M. EUSTACE 1133 Westchester Avenue Suite S-325 White Plains, NY 10604 914-989-6650 Att.: Christopher M. Yapchanyk Esq.