ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Indeed, if the Court were to reverse the decision of the Foreclosure Court to permit Plaintiff to revive and foreclose on the discharged mortgage, it would wreak havoc on the real estate recording system which depends on the reliability of recorded documents such as deeds and mortgages.  If the Court allows the Plaintiff to magically revive a discharged mortgage because of later bankruptcy litigation, one could only imagine the ways in which other attorneys in other matters would seize upon such caselaw to also set aside other discharges of mortgage and other recorded instruments when it suits their fancy.  Generally speaking, and absent any unusual equity, a court should decide a question of title such as this in the way that will best support and maintain the integrity of the recording system.
[brief] THE COURT: Okay.  And then we have Ms. [...], Detective [...] on the saliva issue.  Is there any objection to that testimony or do you want an 104 hearing on it, [...]?  MS. TOBIN: No objection, your Honor.  THE COURT: All right.  She's gonna be – MS. TOBIN: I think we agreed we can both address it at closing.  (21T 7-8 to 7-15)  Similarly, defense counsel also acquiesced to the State’s oral motion to admit the testimony reflecting Defendant’s refusal to submit to buccal swabbing:  MS. TOBIN:  I have no problem with her saying he told me he would not give a buccal swab, but I'm not exactly sure where they're going with all this transcript stuff.  THE COURT: All right.  So, [...], do you want her to testify outside the presence of the jury or are you – MS. TOBIN:  I don't think that's necessary as long as it's just that one statement and not anything -- her drawing an opinion as to what he meant or what he said in court on the record after that, which is a different -- (21T 16-20 to 16-22, 18-2 to 18-9)(emphasis added)
[brief] Not so.  In *Green*, the Supreme Court analyzed when a UIM action accrues under the statute of limitations, N.J.S.A. 2A:14-1.  *Id.*  The Supreme Court did not address when a UIM action accrues under an insurance policy’s *contractual* limitations period.  Nor did the Supreme Court consider tolling under *Peloso*.  According to [...], “no caselaw or statute, decided after *Green,*” supports [...]’s “argument that the statute should not begin to run until a claim is denied. ” (Db37).  [...] also contends that *Peloso*’s tolling rule applies only when a plaintiff is “statutorily barred from filing suit for the first one hundred twenty (120) days. ” (Db37).  The *Azze* decision dispels both arguments.  This Court decided *Azze* five years after the Supreme Court’s decision in *Green*.  And no statute barred the insured in *Azze* from suing his homeowner’s insurer within 120 days after the loss.  Still, this Court held that the policy’s one-year limitations period was tolled until the insurer “unequivocally” denied coverage.  In short, *Azze* supports vacating dismissal here.  CONCLUSION
[brief] First, the judge apparently did not read the following correctly:  “For an act to be related to a public servant’s office it must be connected to his/her official duties.  An act is not connected to a public servant’s official duties merely because a public servant performs the act. ” (Compare 20T172-9 to 12 with Model Jury Charges (Criminal).  “Official Misconduct (N.J.S.A. 2C:30-2)” at 2 (rev. Sept. 11, 2006)).  As other sections of the charge made this requirement abundantly clear, this did not amount to plain error.  Here, the judge instructed the jurors that: (1) the indictment alleged defendant was required by rules and regulations of [...] to turn in all IDs, and to refrain from misrepresenting himself to be active member of [...] while suspended (20T168-23 to 170-19); (2) the State must prove defendant “committed an act relating to his office” (20T171-10); (3) the State must prove defendant “committed an act relating to his office, or refrained from performing an act required to be performed as part of his office” (20T171-22 to 172-1); and (4)
[brief] Id.  [...] used multi-level hearsay text messages that were never introduced in the State’s case in chief to corroborate and bolster the testimony of [...].  (13T:53-10 to 54-17); (13T:220-3 to 4).  Moreover, [...] was able to testify regarding several hearsay documents and make a determination that [...]’s grandfather did not have schizophrenia.  (13T:96-15 to 101-9).  [...] never evaluated [...].  Furthermore, [...] did not rely on information that was in [...]’s medical records.  He testified that because [...] wasn’t receiving treatment for schizophrenia at the nursing home, that he didn’t have schizophrenia.  (13T:100-2 to 6).  [...] never testified at the trial.  In addition, based upon a hearsay note in [...]’s school therapist records, [...] was permitted to testify that [...] could choose to calm himself or pump himself up with music.  (13T:152-7 to 155-9).  Similarly, [...] testified regarding hearsay statements in [...]’s school records that [...] wanted to fight or strangle bullies.  (14T:42-21 to 13).  Moreover, [...] testified about hearsay in social worker notes to try and establish that [...]’s brother [...] influenced [...] during his evaluations.
[brief] (7T:63:7-19).  The record at trial is clear that the emails shown to [...] were not addressed to her and no evidence was presented at trial of emailed directed to [...]:  [...]: Your Honor, objection.  Those emails produced were -- were copied to my client.  She -- she’s not [...]: Okay.  She can clarify that.  [...]:  Ms. Dozier makes it appear that my client’s not being truthful on the stand.  The emails were copied to [...].  [...]: Yes.  [...]: They were not directed to her.  [...]:  I said that she was copied.  I said it wasn’t directly to you, that’s how I started, but you were copied on there.  (6T:25:23-25-26:1-10).  Plaintiff’s counsel also misrepresented the timeline of events to the jury to make a connection between the January 25, 2018 Letter of Representation and the Township’s January 2, 2018 notification to Plaintiff that she would no longer continue as Municipal Alliance Grant Coordinator:
[brief] 16  POINT I THE POLICE HAD A REASONABLE ARTICULABLE SUSPICION TO STOP DEFENDANT, AND THE DENIAL OF HIS MOTION TO SUPPRESS HIS LOADED GUN, DRUGS AND CASH SHOULD BE AFFIRMED .........................................................  16  A.  The Investigatory Detention of Defendant was Based on Reasonable and Articulable Suspicion and Therefore Constitutional.  ...........................................................................  17  B.  The Handgun, Cocaine and Cash Found on Defendant After He Obstructed and Resisted Are Admissible.  ......................................................... 32  CONCLUSION .................................................................................................. 38
[brief] The purpose of the AOM statute is to “require plaintiffs in malpractice cases to make a threshold showing that their claims are meritorious, in order that meritless lawsuits readily could be identified at an early stage of litigation. ”  In re Petition of Hall, 147 N.J. 379, 391 (1997); see A.T., 231 N.J. at 345-46.  “The statute is designed to ferret out frivolous lawsuits at an early point in the litigation.  Requiring a threshold showing of merit balances the goal of reducing frivolous lawsuits and the imperative of permitting injured plaintiffs the opportunity to pursue recovery from culpable defendants. ”  Fink v. Thompson, 167 N.J. 551, 559 (2001); see also A.T., 231 N.J. at 345-46.  The AOM statute lists sixteen types of “licensed persons” to whom the AOM requirement applies, including “a physician in the practice of medicine or surgery pursuant to R.S. 45:9-1” and “a registered professional nurse pursuant to P.L. 1947, c.262 (C.45:11-23 et seq.).”  N.J.S.A. 2A:53A-26(f), (i).  A “licensed person” to whom the AOM requirement extends also includes “a health care facility” as defined in N.J.S.A. 26:2H-2. ”  N.J.S.A. 2A:53A-26(j).  It is well-established that a hospital or other healthcare facility “can only act through its agents, servants and employees” and therefore “can only be vicariously liable” for the conduct of its agents, employees and staff.
[brief] (23T121-20 to 25).  Defendant claimed that [...] knew [...] and wanted to talk with Nashon before leaving the party.  (23T121-25 to 23T122-6).  Defendant claimed he left the hall while [...] stayed behind inside to speak with [...].  (23T127-4 to 14).  Defendant claimed that when he left the [...], he did not see [...]'s female friends behind him.
[brief] I.  PUBLIC POLICY STRONGLY FAVORS ENFORCING ARBITRATION AGREEMENTS  This Court reviews orders compelling arbitration de novo.  Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 207 (2019).  In conducting this review, this Court has been “mindful of the strong preference to enforce arbitration agreements, both at the state and federal level. ”  Pandya v. Sky Zone Lakewood, No. A-5064-18T4, 2020 WL 2036645, at *2 (N.J. Super. Ct. App. Div. Apr. 28, 2020) (Da144-Da147)  Indeed, “the affirmative policy of this State, both legislative and judicial, favors arbitration as a mechanism of resolving disputes. ”  *Williams v. Ysabel*, No. A-1391-22, 2023 WL 5768422, at *3 (N.J. Super. Ct. App. Div. Sept. 7, 2023) (Da152-Da156) (citation omitted).  That policy should be enforced here.
[brief] The court’s weighing of aggravating factor three is contrary to our Supreme Court’s recognition that juveniles are not fully developed and not only less morally culpable for their actions, but uniquely capable and likely to demonstrate rehabilitation.  Finally, the court’s assessment of the factor was not supported by [...]’s “very limited” prior juvenile history, consisting of a single dismissed juvenile disposition for shoplifting.  (5T:24-12 to 18); See State v. Shoats, 339 N.J. Super. 359, 360-62 (App. Div. 2001) (holding aggravating factor three did not apply to defendant who had one minor juvenile encounter with law); Case, 220 N.J. at 67 (where defendant does not have prior criminal record, court must base its finding of the risk factor on “competent, credible evidence in the record. ”)  Likewise, the court did not reconsider the weight that the 2015 sentencing court assigned to aggravating factor nine in light of the Miller factors and the evidence presented at resentencing.
[brief] While recognizing that “[i]n commercial transactions between parties with comparable bargaining power, stipulated damage provisions can provide a useful and efficient remedy” our Supreme Court in Wasserman’s, Inc. cautioned, We do not reach the issue of the enforceability of liquidated damage clauses in consumer contracts.  Notwithstanding the presumptive reasonableness of stipulated damage clauses, we are sensitive to the possibility that, as their history discloses, such clauses may be unconscionable and unjust.  137 N.J. at 253.  Thus, even greater scrutiny and stricter standards are likely appropriate to prevent “oppression” in the context of consumer form contracts, such 15-page lease and 16 separate “riders” used by [...] for residential tenancies.  See Holtham, 460 N.J. Super. at 322 n.4 (App. Div. 2019) (collecting cases and recognizing that “[t]he Supreme Court suggested that different rules might apply to penalty provisions within consumer contracts. ”); see also Green v. Morgan Properties., 215 N.J. 431, 454 (2013) (“the landlord in a summary dispossess action bears the burden of proving the reasonableness of the lease terms”).
[brief] The *Glassman* case involved a plaintiff’s decedent who initially sustained injuries in a fall at a restaurant, fracturing her ankle.  *Id.* at 209.  Thereafter, allegedly due to negligence by treating physicians and nurses, the plaintiff’s decedent sustained a fatal pulmonary embolism.  *Ibid.*  Thus, the claim was that the injuries were caused by distinct sets of tortfeasors.  *Ibid.*  The plaintiff settled the claim against the initial restaurant tortfeasors.  *Ibid.*  The trial court granted the non-settling medical negligence defendants a *pro tanto* credit, and the Appellate Division reversed; the Supreme Court then affirmed the Appellate Division, with modification.
[directive] Policy Management System  2.1.1  The agency's policy management system serves as the foundation for effective discipline.  A clearly defined policy management system is designed to move the organization toward its stated goals and set the standard for acceptable performance.  The system must incorporate a mechanism for distributing rules, regulations, policies and procedures, and provide for periodic review and revision as necessary.  The system should include a classification and numbering mechanism that facilitates cross-referencing where necessary.  2.1.2  Law enforcement agencies should have a policy management system that, at a minimum, includes:
[brief] (Raised below 3T:45:1-3T46:12)  The defendant asserts that a new trial should have been granted or a remittitur granted as plaintiff’s counsel purportedly mischaracterized the defendant’s expert, [...]’s, testimony.  This is simply not true.  After admitting that:  - [...] did not tell him he had any type of prior significant accident of any kind.  2T221:19-24.  - He was provided with medical records concerning [...]’s care and treatment, records which did not include any medical documentation of prior complaints or treatment involving the neck or left shoulder.  2T221:25 – 2T222:3.  -  Since the shoulder and cervical MRIs were performed 14 months and 18 months post-accident, respectively, it was not surprising that evidence of trauma such as inflammation was not present.  2T223:5 – 2T225:12.  - [...] was never diagnosed with disc injuries prior to this accident.  2T226:17-21.  -  Disc material pressing on the spinal cord is generally not a good thing.  2T226:22-2T227:4.  - He agreed that [...] had two different areas of tearing in the left shoulder.  2T227:5-10.  - He confirmed that he saw the areas of tearing on the shoulder MRI himself.  2T227:5-13.  - He confirmed with the treatment [...] provided but instead stated that the MRI findings were degenerative.  2T228:9-20.  [...] specifically testified on cross-examination:  Q: As a matter of fact, in your report, Doctor, you note that all of the medical care and treatment [...] had that you were aware of was - - was reasonable and medically necessary directly as a result of the accident, correct?  A: Yes.  Q: And that includes the injections that he had into his spine, correct?  A: Yes.  Q: Right, Now, Doctor, do you agree with me generally that a traumatically induced disc injury is a permanent injury?  A: Yes, depending on what finding of change to the disc you’re - - you’re indicating.  Yes.  2T228:21 – 2T229:9.  In summation, plaintiff argued that [...] did not disagree with [...].  The section of testimony noted above directly supports the argument.  After the admission on cross-examination that the injuries and treatment were caused by the accident, [...] contradicted himself when he was asked by the Defense:  Q: You’re confident that there’s no objective evidence of injury related to this accident in reviewing the diagnostic imaging?  A:  Yes, that’s correct.  2T232:2-5.  However, at no point did [...] indicate why he answered one way when questioned by Plaintiff’s counsel and a different way when questioned by Defendant’s counsel.  [...] did not say anything such as “I didn’t hear the full question” or “I misspoke. ”  Again, the jury was instructed repeatedly that their recollection of the testimony, and the medical testimony in particular, was what they should utilize to make their decisions.  Certainly, if there was error, it was properly cured by the Court’s careful and deliberate instruction, pursuant to Litton Industries v. IMO Industries, 200 N.J. 372, 393-394 (2009).  Therefore, Defendant’s request for a new trial was properly denied.  POINT V: PLAINTIFF’S COUNSEL’S CLOSING ARGUMENT STATEMENT REGARDING THE DEFENDANT’S RESPONSIBILITY DOES NOT WARRANT A NEW TRIAL.
[brief] In [...] v. [...], 439 N.J. Super. 532 (App. Div. 2015) State Farm sought to compel National Liability to arbitrate a claim which arose pursuant to N.J.S.A. 39:6A-11.  National Liability denied that the parties were residents of the same household and thus argued there was a question as to State Farm’s right of recovery.  National Liability argued that the factual issue of determining coverage was required to be submitted to the court rather than to an arbitrator.  The Appellate Division set forth the policy favoring Arbitration and ruled that mandatory arbitration required the submission of all issues to arbitration rather than bifurcating issues between the Courts and arbitration.
[brief] As Defendants emphasized at the motion hearing, that law—the Uniform Public Expression Protection Act (“UPEPA”)—was designed specifically to prevent such gamesmanship by explicitly authorizing a party to “obtain a ruling on the order to show cause and seek costs, attorney’s fees, and expenses” notwithstanding a SLAPP plaintiff’s “voluntary dismissal without prejudice of a responding party’s cause of action. ”  N.J. Stat. Ann. § 2A:53A-55(b).  Failure to reopen the judgment, Defendants cautioned, would be an implicit endorsement of Plaintiff’s tactics and provide a roadmap for future SLAPP litigants on how to undermine the law.  This issue was not once mentioned by the trial court in denying Defendants’ motion.
[brief] During the direct examination of [...], Plaintiff created an altercation in the hallway with the Sheriff’s officer tasked with guarding the courtroom.  [...] started this argument by leaving the court room to use the rest room while the jury was empaneled.  After one juror indicated that she could not concentrate because there was shouting in the hallway, the jury was sent back to the jury room.  (4T:56:19-23).  The Sheriff’s Officer advised that [...], while in the hallway, complained that the Sheriff’s Officer was infringing on his right to use the bathroom.  (4T:57:6-11).  The Court advised plaintiff’s counsel that with shouting in the hallway, the Court could not bring the jury back.  (4T:57:12-16.)  The Court explained to plaintiff’s counsel that if [...] wanted to use the men’s room, he could do so, and return to the courtroom so they could continue on with the trial.  (4T:59:25).  The Court instructed plaintiff’s counsel that he should discuss the matter with [...], and if [...] did not want to come back to the courtroom, then he would be escorted from the building if he continued to make noise in the hallway.
[brief] On March 9, 2020, in Executive Order No. 103, New Jersey Governor [...] declared a Public Health Emergency and a State of Emergency for the entire State of New Jersey due to the public health hazard created by COVID-19.  (Da229-237.)  On April 1, 2020, in Executive Order No. 112, [...] declared that health care professionals and healthcare facilities “shall be immune from civil liability” for any damages alleged to have been sustained as a result of acts or omissions taken in good faith “in the course of providing healthcare services in support of the State’s COVID-19 response.
[brief] Da29.  On May 2, 2023, plaintiff refiled [...]’s April 5, 2023 certification of amount due with an amended amount due schedule indicating that no late charges were being sought (“[...]’s Amended April 5, 2023 Certification”).  Da37.  On May 10, 2023, plaintiff filed its second motion for the entry of a final judgment of foreclosure, its proposed form of foreclosure judgment, and [...]’s Amended April 5, 2023 Certification.  Da40, Da42, and Da45, respectively.
[brief] (Pa479).  The investigation of [...]’s February 10, 2015 report of discrimination and retaliation by [...] and [...] was conducted by [...], the Director of the NJDEP’s Office of Equal Opportunity and Public Contract Assistance.  (Pa860-Pa867; Pa661-Pa662).  [...] issued a report dated April 24, 2015 concluding that [...]’s report of discrimination was “unsubstantiated.
[brief] Yet, despite not having access to all of the required medical records due to Defendants’ failure to respond to Plaintiff’s requests for same, immediately upon Defendant’s submission of their Motion to Dismiss, Plaintiff’s Expert provided an Affidavit of Merit, but noted she does not have all of the required medical records to determine any additional acts of negligence by Defendants (61a).  Nevertheless, Plaintiff’s expert, despite not having all the medical records to which she was entitled, reached her expert opinion that Plaintiff’s malpractice claim is meritorious.  *Id.*  In consideration of these extraordinary circumstances, it would be an unjust result for Plaintiff’s Complaint to be dismissed when there is a confluence of factors attributable to the untimely Affidavit of Merit, most importantly, the lack of a Ferreira Conference and Defendants’ bad faith.  Although the Trial Court Judge placed the blame on Plaintiff for the fact that a Ferreira Conference was not held, the onus to hold such a Conference is on the Court, not on the Plaintiff.  (Transcript, 13:11–14:2), see also A.T. v. Cohen, 231 N.J. at 353.  As the Supreme Court made clear in AT v. Cohen, “[t]he failure of the Judiciary’s current mechanisms to ensure the scheduling of the required Ferreira Conference will not be permitted to work an injustice in this matter. ”  Id.  The Supreme Court’s notion in AT v. Cohen should apply to this instance as well because at the end of the day, Plaintiff would not be on the brink of having an injustice work against her in this matter if not for Defendants choosing to game the Affidavit of Merit statute by not responding to discovery, which prevented Plaintiff from acquiring a sufficient Affidavit of Merit, and if not for the Court failing to schedule a Ferreira Conference.
[brief] The state responded, "in his report the witness stated that the cartridges were compared microscopically against the test standards and they were identified as having been discharged in the submitted pistol.  So, we had the opportunity to speak with him, and he stated that this is – he will not say the word match.  He did not use the word match in his report, but he will use the word that he -- that he had in his report, which is identified as having been discharged in the submitted pistol."  (12T:9-1 to 10).  [...] was adamant about testifying to his report and not with the court's ruling.  It seemed that [...] was dictating to the court, his terms of testifying.  (12T:13-2 to 15).  [...] was brought to the stand so the court could verbally explain his ruling to [...].  The court told the witness, "based on the reasoning in Shipp, he made a ruling that because the court acts as gate keeper to ensure that expert testimony is both relevant and reliable, and based on what I have been told in terms of submissions by counsel as far as this expert's background, first off I find his testimony would be relevant, and I'm not saying it would not be reliable.