Opinion
No. 7071/10.
2013-01-14
Peter PSARAS, Plaintiff, v. GCA SERVICES GROUP, INC., Defendant.
Kenneth B. Goldblatt, Esq., Goldblatt & Associates, P.C., Mohegan Lake, for Plaintiff. Roula Theofanis, Esq., Law Office of Thomas K. Moore, White Plains, for Defendant/Third–Party Plaintiff.
Kenneth B. Goldblatt, Esq., Goldblatt & Associates, P.C., Mohegan Lake, for Plaintiff. Roula Theofanis, Esq., Law Office of Thomas K. Moore, White Plains, for Defendant/Third–Party Plaintiff.
Kim M. Catullo, Esq. and Paul E. Asfendis, Esq. Gibbons, P.C., New York, for Third–Party Defendant, One Pennsylvania Plaza, 37th Floor.
JAMES D. PAGONES, J.
Third-party defendant Stryker Orthopaedics (properly named Howmedica Osteonics Corp.)(referred to hereinafter as “HOC”) moves for an order applying New Jersey law to the third-party action and dismissing the third-party complaint pursuant to CPLR R3212. Third-party plaintiff GCA Services Group, Inc. consents to the application of New Jersey law to the issue of HOC's liability but opposes the application for summary judgment.
This action for personal injuries arises out of an alleged trip and fall that took place on October 7, 2008 while plaintiff Peter Psaras was working at third-party defendant HOC's Mahwah, New Jersey facility. The plaintiff contends he suffered, inter alia, a traumatic brain injury resulting in total disability after tripping and falling over boxes and other debris in a storage room. The plaintiff received workers' compensation benefits pursuant to New Jersey's Workers' Compensation Act and filed suit against defendant GCA, the company who contracted with third-party defendant HOC to perform cleaning and janitorial services at HOC's Mahwah, New Jersey office. Defendant GCA then filed a third-party complaint against third-party defendant HOC for indemnification and contribution.
In order “to obtain summary judgment, it is necessary that the movant establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his or her favor (CPLR 3212[b] ), and he must do so by tender of evidentiary proof in admissible form.” (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980];Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 A.D.2d 543 [2d Dept.1983] aff'd62 N.Y.2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980].)
New Jersey's Workers' Compensation Act provides the exclusive remedy by which employees may recover for workplace injuries unless the case satisfies the statutory exception for an intentional wrong. (N.J.S.A. § 34:15–8). New Jersey courts have interpreted “intentional wrong” as requiring a “substantial certainty” that injury would occur. ( Millison v. E.I. du Pont de Nemours, & Co., 101 N.Y. 161 [1985].) However, “the mere knowledge and appreciation of a risk—something short of substantial certainty—is not intent. The defendant who acts in the belief or consciousness that the act is causing an appreciable risk of harm to another may be negligent, and if the risk is great the conduct may be characterized as reckless or wanton, but it is not an intentional wrong.” ( Id. at 177, quoting Prosser and Keeton on Torts § 8 at 36 [5th ed.1984].) Moreover, it is not enough that “a known risk later blossoms into reality”, instead the standard “demand[s] a virtual certainty.” ( Id. at 178). It is well-settled by New Jersey courts that to further the Act's underlying principle to process as many work-related disability claims as possible exclusively within the Act, the “intentional wrong” exception must be construed very narrowly. ( Id. at 177; Kaczorowska v. Nat'l. Envelope Corp., 342 N.J.Super. 580, 777 A.2d 941 [App.Div.2001].)
Under New Jersey law, two conditions must be satisfied before an employer may be subject to liability: conduct and context. For the injury to be the result of an intentional wrong and therefore fall within the exception of the Workers' Compensation Act, “it must be an injury that the Legislature did not contemplate to be part and parcel of workplace hazards intended to be covered by the Act; nor can the circumstances giving rise to the injury be within the contemplation of the Act.” (Tomeo v. Thomas Whitesell Constru. Co ., Inc., 176 NJ 366, 372 [2003].)
Viewing the evidence in the light most favorable to the third-party plaintiff, the court finds that no triable issue of fact has been raised that would preclude granting summary judgment in the third-party defendant's favor. The third-party defendant has established on a prima facie basis that it did not engage in any intentional conduct leading to the plaintiff's alleged injuries. While the third-party defendant may have been on notice that the storage closet was unkempt, the court cannot say that there was a “virtual certainty” that the injury suffered by the plaintiff would result. ( See, Kaczorowska v. Nat'l. Envelope Corp., 342 N .J.Super. 580, 587 [App. Div.2001], quoting Marinelli v. Mitts & Merrill, 303 N.J.Super. 61, 72 [App. Div.1997][holding that even an injury “caused by either gross negligence or an abysmal lack of concern for the safety of employees” is insufficient to satisfy the “intentional wrong” exception].)
Additionally, the plaintiff's alleged accident, tripping and falling on boxes in a storage room and suffering a resulting injury, is not beyond what was contemplated by the Legislature as part and parcel of workplace hazards intended to be covered by the Act. ( See, Kaczorowska, supra, [finding that plaintiff who suffered a catastrophic amputation injury after tripping and falling over boxes in an aisle and getting her arm entrapped in unguarded machine was barred from suit against employer by Workers' Compensation Act].)
The case relied on by the third-party plaintiff of Laidlow v. Hariton Machinery Co., 170 NJ 602, 790 A.D.2d 884 [2002], is not analogous to the matter at bar. In Laidlow, the court found that an employee's allegations that his employer had removed a safety device from a dangerous machine, knowing that the removal was substantially certain to result in injury to its workers and, in addition, deliberately and systematically deceived safety inspectors into believing that the machine was properly guarded, if proven, would entitle the employee to pursue his common-law remedies. Evidence of similar deliberate action, deceptive practices, and knowledge of substantial certainty of injury are not present in the instant action.
The court is further unpersuaded by the third-party plaintiff's contention that summary judgment is premature because it has not yet had an adequate opportunity to conduct discovery. Although the third-party plaintiff contends information relating to its allegation that the third-party defendant acted with knowledge that it was substantially certain that the plaintiff would suffer an injury, it has failed to demonstrate how discovery may reveal or lead to relevant evidence establishing that the plaintiff's injury was outside the purview of the conditions the New Jersey Legislature intended to immunize under the Workers' Compensation Act bar or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the third-party defendant. ( See, Espada v. City of New York, 74 AD3d 1276;see also,CPLR 3212[f].) “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered' by further discovery is an insufficient basis for denying the motion.” (Woodard v. Thomas, 77 AD3d 738, 740 [2nd Dept.2010], quoting Lopez v. WS Distrib., Inc., 34 AD3d 759, 760 [2nd Dept.2006].)
Therefore, it is ordered that the third-party defendant's motion is granted and the third-party complaint is dismissed.
Counsel are directed to appear for a further compliance conference on Wednesday, March 13, 2013 at 10:00 a.m. Adjournments are only granted with leave of the Court.
The foregoing constitutes the decision and order of the Court.