Preview
MID-L-002725-17 08/27/2018 11:27:57 AM Pg 1 of 19 Trans ID: LCV20181480754
VERNON GREER, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - MIDDLESEX COUNTY
Plaintiff,
DOCKET NO. MID-L-2725-17
Vv
CIVIL ACTION
RECYCLE INC. EAST, ANTHONY
SCOZZARO, OR., HERMAN LEASING
COMPANY, JOHN DOE TRUCK DRIVER
1-5, ABC TRUCKING CORP. 1-5,
JOHN DOE 1-5, AND ABC CORP. 1-5,
(a person, persons, entity or
entities, whose identity is
presently unknown),
Defendants.
REPLY BRIEF IN FURTHER SUPPORT OF DEFENDANT RECYCLE INC. EAST’S
MOTION FOR SUMMARY JUDGMENT
GREENBAUM, ROWE, SMITH & DAVIS LLP
Metro Corporate Campus One
P.O. Box 5600
Woodbridge, New Jersey 07095
(732) 549-5600
Attorneys for Defendant, Recycle
Inc. East
Of Counsel and on the Brief:
Charles J. Vaccaro, Esq. (ID#156662015)
John D. North, Esq. (ID#016261977)
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT Bee
ee ee ee eee ee ee eee eee
LEGAL ARGUMENT eee
ee ee ee ee ee e
POINT I Le te et ee etn ee eee eee eee
SUMMARY JUDGMENT SHOULD BE GRANTED AS THERE ARE
NO ISSUES OF MATERIAL FACT THAT RECYCLE WAS
GREER’S “SPECIAL EMPLOYER” AND NO FURTHER
DISCOVERY IS NEEDED TO RESOLVE THIS ISSUE. be eee eee
POINT IT eeee eee eee eee 11
RECYCLE SUBMITTED SUFFICIENT EVEDENCE IN SUPPORT
OF ITS SUMMARY JUDGMENT MOTION THAT DEMONSTRATES
IT WAS GREER’S SPECIAL EMPLOYER. bee eee eee ee sae 11
CONCLUSION ee
ee ne eee te eee bee is
-i-
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TABLE OF AUTHORITIES
Page
Cases
Auster v. Kinoian,
153 N.J. Super. 52 (App. Div. 1977) eeeee eee
Blessing v. T Shriver & Co.,
94 Nid. Super. A26 (App. Div. 1967) Seeee eee eee 121 13
Brill v. Guardian Life Ins. Co. f£ Am,
142 N.J. 520 (1995) ee ee eee eee eee
Dutcher v. Pedeiro,
No. A-1088-16T3, 2017 N.J. Super. Unpub. LEXIS 2919
(App. Div. Nov. 22, 2017), certif. denied, 233 N.d. 1
(2018) ee ee eee eee eee eee passim
Estate of Yahatz v. Bank of Am., N.A.,
No. A-0099-14T1, 2015 N.J. Super. Unpub. LEXIS 2883,
at *12 (App. Div. Dec. 14, 2015) ee ee eee tee eee 10
Holmes v. Zayas,
No. A-0591-15T2, 2017 N.J. Super. Unpub, LEXIS 2568,
at *8 (App. Div. Oct. 13, 2017) eee eee eee 11, 13, 14
Jd, Josephson, Inc. vo Crum & Forster Ins. Co.,
293 N.d. Super. 170 (App. Div. 1996) Pe eee eee eee
Kelly v. Geriatric & Med. Servs., Inc.,
287 N.Jd. Super. 567 (App. Div.), aff'd o.b., 147 N.d.
42 (1996) ee ee en eeeee nee 11 13
Marino v. Indus. Crating Co.,
358 F.3d 241 (3d Cir. 2004) Le ee ee eee eee 13
Mohamed v. Iglesia Evangelica Oasis De Salvacion,
424 NJ. Super. A489 (App. Div. 2012) Ferenc ee
Rocky Top, LLC v. Cit of S. Amboy,
No. A-3382-09T2, 2012 N.J. Super. Unpub. LEXIS 2106
at *4B8 (App. Div. Sep. 11, 2012) eee ete 10
Walrond v. Cnty. of Somerset,
382 N.J. Super. 227 (App. Div. 2006} eee
eee eens 13
-jaie
I
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Rules
1:4-8
R 2:11-3(e)
(1) (BE)
4:46-2
4:46-2 (b) 1,
-iii-
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PRELIMINARY STATEMENT
Neither Plaintiff Vernon Greer (“Greer”), nor Defendants
Herman Leasing Company and Anthony Scozzaro (collectively, the
“ALC Defendants”} dispute any of the material facts set forth by
Defendant Recycle Tne. East (“Recycle”). Indeed, Greer admits
all the paragraphs of Recycle’s Statement of Undisputed Material
Facts. The HLC Defendants also admit all the paragraphs as they
failed to provide any responsive statement as required by the
Court Rules. R 4:46-2 (b) (stating all material facts in the
movant's statement are deemed admitted “unless specifically
disputed”) All the material facts the Court needs to hold
Greer’s claim is barred by the “special employer” doctrine are
undisputed and no further discovery is necessary.
Notwithstanding the foregoing, in an obvious attempt to
avoid summary judgment, both Greer and the HLC Defendants
contend that deposition testimony is needed. The purported issue
is whether Greer, who was indisputably employed by Infinity
Staffing Solutions, LLC d/b/a Lyneer Staffing Solutions
(“Lyneer”}, was performing work for Recycle in July 2015
pursuant to the Staffing Agreement that Recycle executed with
Lyneer in March 2015.
There is no issue regarding these facts. Recycle has
certified twice, both in response to Form C Interrogatories,
which attached the Staffing Agreement, and in the Certification
~ MID-L-002725-17 08/27/2018 11:27:57 AM Pg 6 of 19 Trans ID: LCV20181480754
of Glenn Richard, Recycle’s Facilities Manager, that Greer was
performing work for Recycle on July 13, 2015 pursuant to that
Staffing Agreement. There is no need for Recycle to reconfirm
for a third time at a deposition that this is the Staffing
Agreement under which Greer was working.
The Staffing Agreement states that Lyneer was to provide
“General Warehouse” laborers to work on Recycle’s property and
Greer admitted that he was an “Assigned Employee” under the
Staffing Agreement and was performing general warehouse services
for Recycle on July 13, 2015. Further, Glenn Richard certified
that as a general warehouse laborer, Greer was responsible for
loading and unloading trucking containers for Recycle, which is
exactly what Greer was doing when he was allegedly injured.
Greer, who has personal knowledge of who he was working for and
what his job responsibilities were, has not offered any evidence
to dispute his status as a “special employee” of Recycle.
Aside from reconfirming facts that are undisputed,
deposition testimony on this issue will do nothing to further
assist the Court in determining whether the “special employer”
doctrine bars Greer’s claims. No genuine issue of fact exists
that there was an implied contract of hire as Greer’s services
were procured by Recycle through Lyneer, Greer voluntarily
performed work directly for Recycle on its property and was
paid. Although Lyneer paid Greer’s wages, Recycle indirectly
-2-
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paid Greer by reimbursing Lyneer in accordance with the Staffing
Agreement, under which Greer admitted that he was an “Assigned
Employee.” As certified to twice and under the Staffing
Agreement, Recycle had the right to, and did, control Greer’s
work and the power to discharge him. Recycle even had the
authority to terminate the Staffing Agreement.
Greer and the HLC Defendants have failed to meet their
burden and demonstrate that further discovery is necessary to
resolve the narrow issue that Greer was a special employee of
Recycle and how any such discovery would impact this motion. All
of the material facts needed to hold that Greer’s claims are
barred are contained in the undisputed record before the Court.
This matter has been pending since May 5, 2017, and it would be
inequitable to force Recycle to continue te expend legal fees to
attend depositions that will do nothing but reconfirm undisputed
facts, especially since Recycle’s insurance carrier has
disclaimed coverage based on the fact that Greer was a “leased
worker” of Recycle.
Just as in Dutcher v. Pedeiro, No. A-1088-16T3, 2017 Nd.
Super. Unpub. LEXIS 2919 (App. Div. Nov. 22, 2017), certif,
denied, 233 N.J. 1 (2018), where the Appellate Division affirmed
a grant of summary judgment on the “special employer” doctrine
in favor of the defendant based on the pleadings and an
affidavit, and before discovery was complete and depositions
~3-
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were taken, Recycle’s motion for summary judgment should also be
granted.
LEGAL ARGUMENT
POINT I
SUMMARY JUDGMENT SHOULD BE GRANTED AS THERE
ARE NO ISSUES OF MATERIAL FACT THAT RECYCLE
WAS GREER’ S “SPECIAL EMPLOYER” AND NO
FURTHER DISCOVERY IS NEEDED TO RESOLVE THIS
ISSUE.
Further discovery is unnecessary as the undisputed record
demonstrates Recycle was Greer’s “special employer.” “When the
incompleteness of discovery is raised as a defense to a motion
for summary judgment, that party must establish that there is a
likelihood that further discovery would supply the necessary
information. ” J. Josephson, Ine. v Crum & Forster Ins. Co., 293
N.J. Super. 170, 204 (App. Div. 1996). In opposing summary
judgment, it is insufficient for a party to state discovery was
incomplete without explaining “with some degree of
particularity” what discovery is sought and how it could make a
difference to the outcome of the motion. Auster v. Kinoian, 153
N.d. Super. 52, 96 (App. Div. 1977); Mohamed_v. Iglesia
Evangelica Oasis De Salvacion, 424 N.J. Super. 489, 498 (App.
Div. 2012). Greer and the HLC Defendants have failed to meet
that burden.
In response to Recycle’s motion for summary judgment, Greer
did not deny any of the paragraphs of Recycle’s Statement of
-4-
‘
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Undisputed Material Facts and in fact admitted each of them. The
HLC Defendants did not even submit a response, in contravention
4:46-2(b), which provides that “Tal party opposing the
to Re
motion shall file a responding statement either admitting or
disputing each of the facts in the movant’s statement.” R. 4:46-
2(b) further states “all material facts in the movant’ s
statement which are sufficiently supported will be deemed
admitted for purposes of the motion only, unless specifically
disputed by citation[.]” The HLC Defendants’ failure to deny any
of the facts in Recycle’s statement results in all of those
facts being admitted. On that basis alone, Recycle’s motion
should be granted. Briil v. Guardian Life Ins. Co. of Am., 142
Nid. 520, 529 (1995) OR 4:46-2 dictates that a court should
deny a summary judgment motion only where the party opposing the
motion has come forward with evidence that creates a genuine
issue as to any material fact challenged.”).
Notwithstanding that there are no disputes of material
facts with respect to Greer’s employment status, his
relationship with Recycle and Lyneer, and Recycle’s relationship
with lLyneer, Greer and the HLC Defendants contend that summary
judgment is premature as they need to conduct depositions to
reconfirm undisputed facts. Specifically, Greer purports to need
deposition testimony to determine the “nature of the
relationship of the parties”; the “existence of an implied
-5-
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contract’; and whether Recycle “controlled Greer’s work”; and
both Greer and the HLC Defendants contend more evidence is
needed relating to the application of the Staffing Agreement tc
Greer. (Pb at pg. 3; Db at 2.) However, all of the material
facts that relate to the above have already been admitted and
are undisputed.
It is undisputed that: Greer was employed by Lyneer when he
was allegedly injured on July 13, 2015 while performing general
warehouse services for Recycle; Recycle, just months prior,
executed a Staffing Agreement with Lyneer under which Lyneer
would provide laborers to Recycle to perform general warehouse
services; Greer, who was supplied to Recycle from Lyneer under
the Staffing Agreement, voluntarily reported to work for
Recycle; Greer was an “Assigned Employee” under the Staffing
Agreement; while Greer was on Recycle’s property, working for
Recycle, Recycle controlled Greer’s work and instructed him on
when, where and how he should complete the tasks Recycle
assigned to him; Recycle had the right to reject Greer from
working on its property; and Greer received workers compensation
benefits through Lyneer for the injuries he sustained while
providing warehouse services for Recycle,
Tt is not necessary for Greer to obtain “sworn deposition
testimony” to reconfirm undisputed facts. No further evidence or
testimony is needed concerning the application of the Staffing
-6-
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Agreement as, in addition to Greer’s admissions, Recycle has
certified twice in both its responses to Form C Interrogatories,
which attached the Staffing Agreement, and in Glenn Richard’s
certification that Greer was performing general warehouse
services for Recycle on July 13, 2015 under the Staffing
Agreement . Recycle should not be forced to reconfirm this fact
for a third time through deposition testimony.! Greer and the HLC
Defendants’ baseless suggestion that the Staffing Agreement may
not apply to Greer as it does not mention his name is meritless.
Courts have granted summary judgment based on affidavits
and without the need to consider deposition testimony. In
Dutcher v. Pedeiro, No. A-1088-16T3, 2017 Nwd. Super. Unpoub.
LEXIS 2919, at *2-4 {App. Div. Nov. 22, 2017), certif. denied,
233 N.J. 1 (2018), the Appellate Division affirmed a grant of
summary judgment, which was filed months before the discovery
end date, under the “special employer” doctrine based on the
pleadings and an affidavit submitted by the Inanager of the
1 on April 4, 2018, Recycle sent Greer a R 1:4-8 letter
attaching the Staffing Agreement. (See Supplemental
Certification of Charles J Vaccaro, Esq. (“Vaccaro Supp.
Cert.”) at Exh. A.) Greer did not respond to this letter and
never disputed this was the applicable agreement. Recycle
followed up with Greer on May 4, 2018, reiterating Greer claims
were frivolous. (id. at Exh. Greer never B.)
disputed that he
was a special employee of Recycle, nor requested additional
information or clarification on the Staffing Agreement. Greer
has been well aware of the Staffing Agreement for months prior
to this motion and never once questioned its applicability or
sought further discovery.
-7-
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special employer. The trial judge decided the motion without
considering deposition testimony of plaintiff and a
representative of the special employer, who had been scheduled
to be depose, but had not been deposed, as of the date of the
motion. Id. at *2-3, 12. The Appellate Division held:
Based on defendants’ undisputed statement of
material facts, plaintiff was
acting as a
special employee of defendant at the time of
the accident. Because plaintiff recovered
worker's compensation benefits from the
Township, plaintiff is barred from seeking
further recovery through suit against
defendant.
Id. at *12-13.
Here, just as in Dutcher, there are no disputes of material
fact as neither Greer, nor the HLC Defendants have denied any of
the paragraphs in Recycle’s Statement of Undisputed Material
Facts and the undisputed record “establish[s] an unrefuted prima
facie case that [Greer] was [Recycle’s] special employee.” Id.
at *1-2, Further, similariy to the defendant in Dutcher, in
addition to its interrogatory answers and supporting documents,
Recycle submitted a certification of its Facilities Manager,
Glenn Richard, which fully sets forth all the material facts the
Court needs to find that Greer was a special employee. No
deposition testimony or further discovery is needed.
In arguing that deposition testimony is needed, Greer
neglects to acknowledge that he possesses personal knowledge of
-8-
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his relationship with both Lyneer and Recycle and what his job
responsibilities were. This matter was filed against Recycle
over a year ago in May 2017 in which Greer has had amble time to
investigate and consider his own relationship with Lyneer and
Recycle. Yet, Greer has not offered any evidence, either by way
of certification or otherwise, to dispute his status as a
“special employee” of Recycle.
Instead, in what is nothing more than a thiniy veiled
effort to defeat Recycle’s motion for summary judgment and
needlessly prolong Recycle’s involvement in this litigation,
Greer makes a bare assertion that deposition testimony is needed
to reconfirm undisputed facts he has not attempted to challenge,
and has no basis to challenge, and of which he has personal
knowledge of. The Appellate Division has recognized such
lawyerly arguments in the face of an undisputed record are
without merit. Dutcher, 2017 Nid. Super. Unpub. LEXIS 2919 at *5
(finding plaintiff's argument summary judgment on special
employer issue should not be granted before discovery was
complete where there were no fact disputes was “without
sufficient merit to warrant discussion in a written opinion.
R 2:11-3(e)
(1) (E).7).
Neither Greer nor the HLC Defendants have identified any
material facts that are in dispute or specific information the
Court needs that is not already contained in the undisputed
~9-
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record to determine whether Greer’s claim is barred by the
“special employer” doctrine. They have failed to meet their
burden and demonstrate further discovery would make a difference
in the outcome of this motion or is necessary to resolve the
narrow legal issue presented. See Rocky Top, LLC v. City of S.
Amboy, No. A-3382-09T2, 2012 N.J. Super. Unpub. LEXIS 2106, at
*48 (App. Div. Sep. ll, 2012) (affirming grant of summary
judgment without deposition testimony as opposing party failed
to show how further proofs would have made claim less
appropriate for summary judgment dismissal); Estate of Yahatz v.
Bank of Am., NAL, No. A-0099-14T1, 2015 NJ. Super. Unpub.
LEXIS 2883, at *12 (App. Div. Dec. 14, 2015) (affirming grant of
summary judgment where facts were undisputed and opposing party
failed to demonstrate how further discovery “could make a
difference to the outcome of the motion”).
There is no reason to delay summary judgment on the issue
of whether Recycle was a “special employer” of Greer based on
the undisputed record before the Court. No further discovery
regarding the Staffing Agreement or Greer’s relationship with
Lyneer and Recycle is needed. Thus, Recycle’s motion for summary
judgment should be granted.
~10-
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POINT II
RECYCLE SUBMITTED SUFFICIENT EVIDENCE IN
SUPPORT OF ITS SUMMARY JUDGMENT MOTION THAT
DEMONSTRATES It WAS GREER’ S SPECIAL
EMPLOYER.
All five facts set forth in Blessing v. T Shriver & Co.,
94 NJ. Super. 426, 430 (App. Div. 1967) courts are to consider
to hold a special employment relationship exists are established
in the undisputed record before the Court.
First, the undisputed facts reveal that an implied contract
existed between Greer and Recycle as Greer reported voluntarily
to work for Recycle and proceeded to submit to Recycle’s
direction and control in loading and unloading tractor trailers
and performing warehouse services on its premises. Kelly v.
Geriatric & Med. Servs., Inc., 287 N.d. Super. 567, 575 (App.
Div.), aff'd o.b., 147 NJ. 42 (1996) (holding plaintiff's
“voluntary acceptance of work gave rise to implied contract
of employment.”); Holmes v. “Zayas, No. A~0591-15T2, 2017 N.J.
Super. Unpub. LEXIS 2568, at *8 (App. Div. Oct. 13, 2017)
(helding voluntary acceptance of work creates implied contract).
Second, ait is undisputed that the general warehouse
services Greer was performing on Recycle’s property on July 13,
2015 was for Recycle. There is no other entity Greer could have
conceivably been performing these services for and Greer, who
has personal knowledge of who he was working for and what his
-11-
1
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responsibilities were, has not provided, nor attempted to
provide, any evidence to the contrary. Greer does not need
deposition testimony to know what he was doing on Recycle’s
property, who he was working for and who told him what to de.
Third, the undisputed record reveals that Recycle had the
right to, and in fact did, control the details of the daily
activities Greer performed for Recycle on Recycle’s property. As
set forth in Glenn Richard’s Certification, Recycle instructed
him on “when, where and how” he should complete his tasks and
that Greer was “directly supervised by and reported to Recycle
employees. a Dutcher, 2017 N.J. Super. Unpub. LEXIS 2919, at *10
(finding factor satisfied where affidavits showed defendant had
“control over when
Preview
MID-L-002725-17 08/27/2018 11:27:57 AM Pg 1 of 19 Trans ID: LCV20181480754 VERNON GREER, SUPERIOR COURT OF NEW JERSEY LAW DIVISION - MIDDLESEX COUNTY Plaintiff, DOCKET NO. MID-L-2725-17 Vv CIVIL ACTION RECYCLE INC. EAST, ANTHONY SCOZZARO, OR., HERMAN LEASING COMPANY, JOHN DOE TRUCK DRIVER 1-5, ABC TRUCKING CORP. 1-5, JOHN DOE 1-5, AND ABC CORP. 1-5, (a person, persons, entity or entities, whose identity is presently unknown), Defendants. REPLY BRIEF IN FURTHER SUPPORT OF DEFENDANT RECYCLE INC. EAST’S MOTION FOR SUMMARY JUDGMENT GREENBAUM, ROWE, SMITH & DAVIS LLP Metro Corporate Campus One P.O. Box 5600 Woodbridge, New Jersey 07095 (732) 549-5600 Attorneys for Defendant, Recycle Inc. East Of Counsel and on the Brief: Charles J. Vaccaro, Esq. (ID#156662015) John D. North, Esq. (ID#016261977) MID-L-002725-17 08/27/2018 11:27:57 AM Pg 2 of 19 Trans ID: LCV20181480754 TABLE OF CONTENTS Page PRELIMINARY STATEMENT Bee ee ee ee eee ee ee eee eee LEGAL ARGUMENT eee ee ee ee ee ee e POINT I Le te et ee etn ee eee eee eee SUMMARY JUDGMENT SHOULD BE GRANTED AS THERE ARE NO ISSUES OF MATERIAL FACT THAT RECYCLE WAS GREER’S “SPECIAL EMPLOYER” AND NO FURTHER DISCOVERY IS NEEDED TO RESOLVE THIS ISSUE. be eee eee POINT IT eeee eee eee eee 11 RECYCLE SUBMITTED SUFFICIENT EVEDENCE IN SUPPORT OF ITS SUMMARY JUDGMENT MOTION THAT DEMONSTRATES IT WAS GREER’S SPECIAL EMPLOYER. bee eee eee ee sae 11 CONCLUSION ee ee ne eee te eee bee is -i- MID-L-002725-17 08/27/2018 11:27:57 AM Pg 3 of 19 Trans ID: LCV20181480754 TABLE OF AUTHORITIES Page Cases Auster v. Kinoian, 153 N.J. Super. 52 (App. Div. 1977) eeeee eee Blessing v. T Shriver & Co., 94 Nid. Super. A26 (App. Div. 1967) Seeee eee eee 121 13 Brill v. Guardian Life Ins. Co. f£ Am, 142 N.J. 520 (1995) ee ee eee eee eee Dutcher v. Pedeiro, No. A-1088-16T3, 2017 N.J. Super. Unpub. LEXIS 2919 (App. Div. Nov. 22, 2017), certif. denied, 233 N.d. 1 (2018) ee ee eee eee eee eee passim Estate of Yahatz v. Bank of Am., N.A., No. A-0099-14T1, 2015 N.J. Super. Unpub. LEXIS 2883, at *12 (App. Div. Dec. 14, 2015) ee ee eee tee eee 10 Holmes v. Zayas, No. A-0591-15T2, 2017 N.J. Super. Unpub, LEXIS 2568, at *8 (App. Div. Oct. 13, 2017) eee eee eee 11, 13, 14 Jd, Josephson, Inc. vo Crum & Forster Ins. Co., 293 N.d. Super. 170 (App. Div. 1996) Pe eee eee eee Kelly v. Geriatric & Med. Servs., Inc., 287 N.Jd. Super. 567 (App. Div.), aff'd o.b., 147 N.d. 42 (1996) ee ee en eeeee nee 11 13 Marino v. Indus. Crating Co., 358 F.3d 241 (3d Cir. 2004) Le ee ee eee eee 13 Mohamed v. Iglesia Evangelica Oasis De Salvacion, 424 NJ. Super. A489 (App. Div. 2012) Ferenc ee Rocky Top, LLC v. Cit of S. Amboy, No. A-3382-09T2, 2012 N.J. Super. Unpub. LEXIS 2106 at *4B8 (App. Div. Sep. 11, 2012) eee ete 10 Walrond v. Cnty. of Somerset, 382 N.J. Super. 227 (App. Div. 2006} eee eee eens 13 -jaie I MID-L-002725-17 08/27/2018 11:27:57 AM Pg 4 of 19 Trans ID: LCV20181480754 Rules 1:4-8 R 2:11-3(e) (1) (BE) 4:46-2 4:46-2 (b) 1, -iii- MID-L-002725-17 08/27/2018 11:27:57 AM Pg 5 of 19 Trans ID: LCV20181480754 PRELIMINARY STATEMENT Neither Plaintiff Vernon Greer (“Greer”), nor Defendants Herman Leasing Company and Anthony Scozzaro (collectively, the “ALC Defendants”} dispute any of the material facts set forth by Defendant Recycle Tne. East (“Recycle”). Indeed, Greer admits all the paragraphs of Recycle’s Statement of Undisputed Material Facts. The HLC Defendants also admit all the paragraphs as they failed to provide any responsive statement as required by the Court Rules. R 4:46-2 (b) (stating all material facts in the movant's statement are deemed admitted “unless specifically disputed”) All the material facts the Court needs to hold Greer’s claim is barred by the “special employer” doctrine are undisputed and no further discovery is necessary. Notwithstanding the foregoing, in an obvious attempt to avoid summary judgment, both Greer and the HLC Defendants contend that deposition testimony is needed. The purported issue is whether Greer, who was indisputably employed by Infinity Staffing Solutions, LLC d/b/a Lyneer Staffing Solutions (“Lyneer”}, was performing work for Recycle in July 2015 pursuant to the Staffing Agreement that Recycle executed with Lyneer in March 2015. There is no issue regarding these facts. Recycle has certified twice, both in response to Form C Interrogatories, which attached the Staffing Agreement, and in the Certification ~ MID-L-002725-17 08/27/2018 11:27:57 AM Pg 6 of 19 Trans ID: LCV20181480754 of Glenn Richard, Recycle’s Facilities Manager, that Greer was performing work for Recycle on July 13, 2015 pursuant to that Staffing Agreement. There is no need for Recycle to reconfirm for a third time at a deposition that this is the Staffing Agreement under which Greer was working. The Staffing Agreement states that Lyneer was to provide “General Warehouse” laborers to work on Recycle’s property and Greer admitted that he was an “Assigned Employee” under the Staffing Agreement and was performing general warehouse services for Recycle on July 13, 2015. Further, Glenn Richard certified that as a general warehouse laborer, Greer was responsible for loading and unloading trucking containers for Recycle, which is exactly what Greer was doing when he was allegedly injured. Greer, who has personal knowledge of who he was working for and what his job responsibilities were, has not offered any evidence to dispute his status as a “special employee” of Recycle. Aside from reconfirming facts that are undisputed, deposition testimony on this issue will do nothing to further assist the Court in determining whether the “special employer” doctrine bars Greer’s claims. No genuine issue of fact exists that there was an implied contract of hire as Greer’s services were procured by Recycle through Lyneer, Greer voluntarily performed work directly for Recycle on its property and was paid. Although Lyneer paid Greer’s wages, Recycle indirectly -2- MID-L-002725-17 08/27/2018 11:27:57 AM Pg 7 of 19 Trans ID: LCV20181480754 paid Greer by reimbursing Lyneer in accordance with the Staffing Agreement, under which Greer admitted that he was an “Assigned Employee.” As certified to twice and under the Staffing Agreement, Recycle had the right to, and did, control Greer’s work and the power to discharge him. Recycle even had the authority to terminate the Staffing Agreement. Greer and the HLC Defendants have failed to meet their burden and demonstrate that further discovery is necessary to resolve the narrow issue that Greer was a special employee of Recycle and how any such discovery would impact this motion. All of the material facts needed to hold that Greer’s claims are barred are contained in the undisputed record before the Court. This matter has been pending since May 5, 2017, and it would be inequitable to force Recycle to continue te expend legal fees to attend depositions that will do nothing but reconfirm undisputed facts, especially since Recycle’s insurance carrier has disclaimed coverage based on the fact that Greer was a “leased worker” of Recycle. Just as in Dutcher v. Pedeiro, No. A-1088-16T3, 2017 Nd. Super. Unpub. LEXIS 2919 (App. Div. Nov. 22, 2017), certif, denied, 233 N.J. 1 (2018), where the Appellate Division affirmed a grant of summary judgment on the “special employer” doctrine in favor of the defendant based on the pleadings and an affidavit, and before discovery was complete and depositions ~3- ~ MID-L-002725-17 08/27/2018 11:27:57 AM Pg 8 of 19 Trans ID: LCV20181480754 were taken, Recycle’s motion for summary judgment should also be granted. LEGAL ARGUMENT POINT I SUMMARY JUDGMENT SHOULD BE GRANTED AS THERE ARE NO ISSUES OF MATERIAL FACT THAT RECYCLE WAS GREER’ S “SPECIAL EMPLOYER” AND NO FURTHER DISCOVERY IS NEEDED TO RESOLVE THIS ISSUE. Further discovery is unnecessary as the undisputed record demonstrates Recycle was Greer’s “special employer.” “When the incompleteness of discovery is raised as a defense to a motion for summary judgment, that party must establish that there is a likelihood that further discovery would supply the necessary information. ” J. Josephson, Ine. v Crum & Forster Ins. Co., 293 N.J. Super. 170, 204 (App. Div. 1996). In opposing summary judgment, it is insufficient for a party to state discovery was incomplete without explaining “with some degree of particularity” what discovery is sought and how it could make a difference to the outcome of the motion. Auster v. Kinoian, 153 N.d. Super. 52, 96 (App. Div. 1977); Mohamed_v. Iglesia Evangelica Oasis De Salvacion, 424 N.J. Super. 489, 498 (App. Div. 2012). Greer and the HLC Defendants have failed to meet that burden. In response to Recycle’s motion for summary judgment, Greer did not deny any of the paragraphs of Recycle’s Statement of -4- ‘ MID-L-002725-17 08/27/2018 11:27:57 AM Pg 9 of 19 Trans ID: LCV20181480754 Undisputed Material Facts and in fact admitted each of them. The HLC Defendants did not even submit a response, in contravention 4:46-2(b), which provides that “Tal party opposing the to Re motion shall file a responding statement either admitting or disputing each of the facts in the movant’s statement.” R. 4:46- 2(b) further states “all material facts in the movant’ s statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation[.]” The HLC Defendants’ failure to deny any of the facts in Recycle’s statement results in all of those facts being admitted. On that basis alone, Recycle’s motion should be granted. Briil v. Guardian Life Ins. Co. of Am., 142 Nid. 520, 529 (1995) OR 4:46-2 dictates that a court should deny a summary judgment motion only where the party opposing the motion has come forward with evidence that creates a genuine issue as to any material fact challenged.”). Notwithstanding that there are no disputes of material facts with respect to Greer’s employment status, his relationship with Recycle and Lyneer, and Recycle’s relationship with lLyneer, Greer and the HLC Defendants contend that summary judgment is premature as they need to conduct depositions to reconfirm undisputed facts. Specifically, Greer purports to need deposition testimony to determine the “nature of the relationship of the parties”; the “existence of an implied -5- MID-L-002725-17 08/27/2018 11:27:57 AM Pg 10 of 19 Trans ID: LCV20181480754 contract’; and whether Recycle “controlled Greer’s work”; and both Greer and the HLC Defendants contend more evidence is needed relating to the application of the Staffing Agreement tc Greer. (Pb at pg. 3; Db at 2.) However, all of the material facts that relate to the above have already been admitted and are undisputed. It is undisputed that: Greer was employed by Lyneer when he was allegedly injured on July 13, 2015 while performing general warehouse services for Recycle; Recycle, just months prior, executed a Staffing Agreement with Lyneer under which Lyneer would provide laborers to Recycle to perform general warehouse services; Greer, who was supplied to Recycle from Lyneer under the Staffing Agreement, voluntarily reported to work for Recycle; Greer was an “Assigned Employee” under the Staffing Agreement; while Greer was on Recycle’s property, working for Recycle, Recycle controlled Greer’s work and instructed him on when, where and how he should complete the tasks Recycle assigned to him; Recycle had the right to reject Greer from working on its property; and Greer received workers compensation benefits through Lyneer for the injuries he sustained while providing warehouse services for Recycle, Tt is not necessary for Greer to obtain “sworn deposition testimony” to reconfirm undisputed facts. No further evidence or testimony is needed concerning the application of the Staffing -6- MID-L-002725-17 08/27/2018 11:27:57 AM Pg 11 of 19 Trans ID: LCV20181480754 Agreement as, in addition to Greer’s admissions, Recycle has certified twice in both its responses to Form C Interrogatories, which attached the Staffing Agreement, and in Glenn Richard’s certification that Greer was performing general warehouse services for Recycle on July 13, 2015 under the Staffing Agreement . Recycle should not be forced to reconfirm this fact for a third time through deposition testimony.! Greer and the HLC Defendants’ baseless suggestion that the Staffing Agreement may not apply to Greer as it does not mention his name is meritless. Courts have granted summary judgment based on affidavits and without the need to consider deposition testimony. In Dutcher v. Pedeiro, No. A-1088-16T3, 2017 Nwd. Super. Unpoub. LEXIS 2919, at *2-4 {App. Div. Nov. 22, 2017), certif. denied, 233 N.J. 1 (2018), the Appellate Division affirmed a grant of summary judgment, which was filed months before the discovery end date, under the “special employer” doctrine based on the pleadings and an affidavit submitted by the Inanager of the 1 on April 4, 2018, Recycle sent Greer a R 1:4-8 letter attaching the Staffing Agreement. (See Supplemental Certification of Charles J Vaccaro, Esq. (“Vaccaro Supp. Cert.”) at Exh. A.) Greer did not respond to this letter and never disputed this was the applicable agreement. Recycle followed up with Greer on May 4, 2018, reiterating Greer claims were frivolous. (id. at Exh. Greer never B.) disputed that he was a special employee of Recycle, nor requested additional information or clarification on the Staffing Agreement. Greer has been well aware of the Staffing Agreement for months prior to this motion and never once questioned its applicability or sought further discovery. -7- MID-L-002725-17 08/27/2018 11:27:57 AM Pg 12 of 19 Trans ID: LCV20181480754 special employer. The trial judge decided the motion without considering deposition testimony of plaintiff and a representative of the special employer, who had been scheduled to be depose, but had not been deposed, as of the date of the motion. Id. at *2-3, 12. The Appellate Division held: Based on defendants’ undisputed statement of material facts, plaintiff was acting as a special employee of defendant at the time of the accident. Because plaintiff recovered worker's compensation benefits from the Township, plaintiff is barred from seeking further recovery through suit against defendant. Id. at *12-13. Here, just as in Dutcher, there are no disputes of material fact as neither Greer, nor the HLC Defendants have denied any of the paragraphs in Recycle’s Statement of Undisputed Material Facts and the undisputed record “establish[s] an unrefuted prima facie case that [Greer] was [Recycle’s] special employee.” Id. at *1-2, Further, similariy to the defendant in Dutcher, in addition to its interrogatory answers and supporting documents, Recycle submitted a certification of its Facilities Manager, Glenn Richard, which fully sets forth all the material facts the Court needs to find that Greer was a special employee. No deposition testimony or further discovery is needed. In arguing that deposition testimony is needed, Greer neglects to acknowledge that he possesses personal knowledge of -8- MID-L-002725-17 08/27/2018 11:27:57 AM Pg 13 of 19 Trans ID: LCV20181480754 his relationship with both Lyneer and Recycle and what his job responsibilities were. This matter was filed against Recycle over a year ago in May 2017 in which Greer has had amble time to investigate and consider his own relationship with Lyneer and Recycle. Yet, Greer has not offered any evidence, either by way of certification or otherwise, to dispute his status as a “special employee” of Recycle. Instead, in what is nothing more than a thiniy veiled effort to defeat Recycle’s motion for summary judgment and needlessly prolong Recycle’s involvement in this litigation, Greer makes a bare assertion that deposition testimony is needed to reconfirm undisputed facts he has not attempted to challenge, and has no basis to challenge, and of which he has personal knowledge of. The Appellate Division has recognized such lawyerly arguments in the face of an undisputed record are without merit. Dutcher, 2017 Nid. Super. Unpub. LEXIS 2919 at *5 (finding plaintiff's argument summary judgment on special employer issue should not be granted before discovery was complete where there were no fact disputes was “without sufficient merit to warrant discussion in a written opinion. R 2:11-3(e) (1) (E).7). Neither Greer nor the HLC Defendants have identified any material facts that are in dispute or specific information the Court needs that is not already contained in the undisputed ~9- MID-L-002725-17 08/27/2018 11:27:57 AM Pg 14 of 19 Trans ID: LCV20181480754 record to determine whether Greer’s claim is barred by the “special employer” doctrine. They have failed to meet their burden and demonstrate further discovery would make a difference in the outcome of this motion or is necessary to resolve the narrow legal issue presented. See Rocky Top, LLC v. City of S. Amboy, No. A-3382-09T2, 2012 N.J. Super. Unpub. LEXIS 2106, at *48 (App. Div. Sep. ll, 2012) (affirming grant of summary judgment without deposition testimony as opposing party failed to show how further proofs would have made claim less appropriate for summary judgment dismissal); Estate of Yahatz v. Bank of Am., NAL, No. A-0099-14T1, 2015 NJ. Super. Unpub. LEXIS 2883, at *12 (App. Div. Dec. 14, 2015) (affirming grant of summary judgment where facts were undisputed and opposing party failed to demonstrate how further discovery “could make a difference to the outcome of the motion”). There is no reason to delay summary judgment on the issue of whether Recycle was a “special employer” of Greer based on the undisputed record before the Court. No further discovery regarding the Staffing Agreement or Greer’s relationship with Lyneer and Recycle is needed. Thus, Recycle’s motion for summary judgment should be granted. ~10- MID-L-002725-17 08/27/2018 11:27:57 AM Pg 15 of 19 Trans ID: LCV20181480754 POINT II RECYCLE SUBMITTED SUFFICIENT EVIDENCE IN SUPPORT OF ITS SUMMARY JUDGMENT MOTION THAT DEMONSTRATES It WAS GREER’ S SPECIAL EMPLOYER. All five facts set forth in Blessing v. T Shriver & Co., 94 NJ. Super. 426, 430 (App. Div. 1967) courts are to consider to hold a special employment relationship exists are established in the undisputed record before the Court. First, the undisputed facts reveal that an implied contract existed between Greer and Recycle as Greer reported voluntarily to work for Recycle and proceeded to submit to Recycle’s direction and control in loading and unloading tractor trailers and performing warehouse services on its premises. Kelly v. Geriatric & Med. Servs., Inc., 287 N.d. Super. 567, 575 (App. Div.), aff'd o.b., 147 NJ. 42 (1996) (holding plaintiff's “voluntary acceptance of work gave rise to implied contract of employment.”); Holmes v. “Zayas, No. A~0591-15T2, 2017 N.J. Super. Unpub. LEXIS 2568, at *8 (App. Div. Oct. 13, 2017) (helding voluntary acceptance of work creates implied contract). Second, ait is undisputed that the general warehouse services Greer was performing on Recycle’s property on July 13, 2015 was for Recycle. There is no other entity Greer could have conceivably been performing these services for and Greer, who has personal knowledge of who he was working for and what his -11- 1 MID-L-002725-17 08/27/2018 11:27:57 AM Pg 16 of 19 Trans ID: LCV20181480754 responsibilities were, has not provided, nor attempted to provide, any evidence to the contrary. Greer does not need deposition testimony to know what he was doing on Recycle’s property, who he was working for and who told him what to de. Third, the undisputed record reveals that Recycle had the right to, and in fact did, control the details of the daily activities Greer performed for Recycle on Recycle’s property. As set forth in Glenn Richard’s Certification, Recycle instructed him on “when, where and how” he should complete his tasks and that Greer was “directly supervised by and reported to Recycle employees. a Dutcher, 2017 N.J. Super. Unpub. LEXIS 2919, at *10 (finding factor satisfied where affidavits showed defendant had “control over when