ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] As a general rule, if one issue in a negligence case is going to be retried, then all other issues must be retried unless they are entirely distinct and separable.  *Henebema v. South Jersey Transp. Auth.*, 219 N.J. 481, 491 (2014) (citing *Ahn v. Kim*, 145 N.J. 423, 434-35 (1996)).  Whether certain issues are so inextricably linked that they must be remanded together is a fact-specific inquiry that differs from case-to-case.  *Id.*  Here, there are no issues of liability because Defendants stipulated it before trial.  If the Court were to accept Defendants’ position on the wage loss award, then the only issue to be retried would be the amount of those damages, alone.  All other questions that the jury answered at trial are distinct, and were decided based on the weight of different pieces of evidence.  Looking to the verdict sheet, the jury independently concluded that Plaintiff suffered injuries proximately caused by the subject collision, that at least one of these injuries was permanent, and that Plaintiff was entitled to compensation for his pain, suffering, and loss of enjoyment of life (5T, at 33:9-34:17).  None of those issues is so inextricably linked with the award for lost wages that they would necessitate mutual retrial.  In fact, even if Plaintiff never asserted a wage loss claim, he would have presented the exact same proofs – including his testimony about missing time from work and having to exhaust his personal days – as corroboration of the impact of his injuries on his life.  To find otherwise would unnecessarily relitigate an isolated jury question.  **CONCLUSION**
[brief] The Ricci Act simply required that the Board provide notice within thirty days of its enactment, without specifying in what manner.  The Board complied with this requirement when it posted information about the Ricci Act on its website.  [...] identifies no authority suggesting that the Division’s use of its website to fulfill this notice requirement was inadequate.  Even though the Division satisfied the only notice requirement under the Ricci Act through the website posting, it went above and beyond to provide additional notice to its members through other means.  On August 8, 2019, the Division provided a letter about the Ricci Act to all Certifying Officers and advised them of their responsibility to make the letter available to all members at their respective locations.  (Pa11).  On August 9, 2019, a postcard with information about the Ricci Act was mailed to [...]’s home address (as well as the home addresses of over 200,000 other retirees).  (Pa11; Pa64-66).  And, on June 10, 2021, the Division posted a news item on its website advising members and retirees that the statutory eligibility period to register under the Ricci Act was expiring soon and that they must submit the Eligibility Registration Form by July 8, 2021.  (Pa11).  Although these additional methods were not required under the Ricci Act, [...] makes much of the fact that the Division’s postcard was not mailed to him by August 7, 2021.  (Pb11-12).  The record demonstrates that the postcard was mailed on August 9, 2021.  (Pa14; Pa64-66).  That slight delay in mailing the postcard is immaterial, as postcard notification was not required under the Ricci Act, and information about the Ricci Act was prominently posted on the Division’s website and publicly available for two years from the effective date of the statute.
[brief] As set forth herein, plaintiff’s arguments that “lawful interest” includes “contract interest” and that the amounts due in the foreclosure sale notices (which were 37% and 17% higher than the actual amounts due) nevertheless satisfied the “approximate” amount requirement are without merit and, accordingly, this Court should reverse [...]’s orders; direct that a new sheriff’s sale be conducted; and confirm that, for purposes of calculating the amount due under the foreclosure judgment for the sheriff’s sale and for [...]’s exercise of its right of redemption, the postjudgment interest rate is the legal rate prescribed by R. 4:42-11.
[brief] The existence of a legal duty to preserve evidence is a question of law to be determined by the court.  Cockerline v. Mendez, 411 N.J. Super. 596, 620 (App. Div. 2009)(citing Manorcare Health Services v. Osmose Wood Preserving, Inc., 336 N.J. Super. 218, 225 (App. Div. 2001)).  The New Jersey courts have developed a four-part test for determining whether a party has a duty to preserve evidence as follows:
[brief] 21  TABLE OF JUDGMENTS, ORDERS, AND RULINGS BEING APPEALED  02/20/19  Order Setting Date of Valuation .................................. Da102 10/14/20  Order denying defendant’s Motion to Bar  Plaintiff’s Appraisal Report..........................  Da108 10/20/2021  Order Transferring This Matter To Binding Arbitration and Dismissing Without Prejudice......................................................... Da110 01/25/2022  Order Amending Appointment Of Arbitrator........................................................................ Da113 03/22/22  Award of [...], Arbitrator.............................................................................. Da115 03/22/22  Opinion of [...], Arbitrator..............................................................................  Da116 06/21/22  Consent Order Confirming the Arbitration Award and Entering Final Judgment .................... Da123
[brief] DATE SUBMITTED: 7-22-24 PLAINTIFF/APPELLANT’S APPELLATE REPLY  BRIEF  Of record & on the brief: [...]  Of record: [...] ¹  As used in this document, use of the plural includes the singular, where applicable.  The parties are referred to in the plural regardless of their actual number.  #  TABLE OF CONTENTS | HEADING | PAGE | |------------------------------------------------------------------------|------| | TABLE OF JUDGMENTS, ORDERS AND RULINGS BEING APPEALED | iii | | TABLE OF AUTHORITIES | iv | | A. CASELAW | iv | | B. STATUTES & REGULATIONS | vii | | C. RULES | viii | | D. OTHER AUTHORITIES | xiv | | E. ABBREVIATED TERMS | x | | I.
[brief] First, the Board contends that it properly excluded a $75 cost for tax preparation in [...]’s allowable costs.  But it took no such action in its final decision.  At the April 14, 2021 hearing, the Board reinstated the $75.32 cost for tax preparation.  That amount is not disputed by [...] as an allowable cost.  It is not an issue in this Appeal.  Next, the Board contends that it properly removed a $123 fee for garbage collection.  The Honorable [...], in sustaining that fee, held that the fee’s increase to $123 was due to a change in [...]’s Ordinance restricting the time that the garbage can be brought out to the street which affected any building and was not because the property was converted into a condominium.  [...] ruled:
[brief] \(^8\)  [...] admits that there have been no depositions in the DJ Action, but it tries to downplay this fact by focusing on deposition transcripts from the Utilities Litigation that it produced to all insurer-defendants.  This is a red-herring.  [...]’s insurance claims were not at issue in the Utilities Litigation.  Therefore, those deposition transcripts cannot substitute for depositions in this coverage dispute.  [...]’s reliance on *Marmo & Sons Gen. Contr., LLC v. Biagi Farms, LLC*, 478 N.J. Super. 593 (App. Div. May 24, 2024) to argue that the lack of depositions does not foreclose a finding of waiver is specious.
[brief] (Da66-89).  The PCR court credited the testimony of expert [...] and defendant’s trial counsel but found that the defendant was not “fully credible. ”  (Da73-74).  Regarding the ballistics issue, “[t]he [c]ourt does not find that the trial counsel was ineffective,” ruling that “the claim raised by the [defendant] that . . . counsel's decision to not cross examine the State's ballistics expert or consult a ballistics expert was merely a complaint based on matters of trial strategy. ” (Da82).  Thus, the PCR court found that defendant “did not sufficiently show that trial counsel demonstrated ineffective assistance of counsel under the first prong of the Strickland standard. ”  (Da82.)  Although the court determined finding whether defendant suffered prejudice under the second prong of Strickland was irrelevant because of the failure under the first prong, the court nonetheless held “the trial would have not yielded a different result because the ballistics expert's testimony did not contradict the defense's trial strategy. ”  (Da82.)  Regarding the voir dire issue, the court found that trial “counsel's decision to not request a voir dire of the remaining jurors was merely a complaint based on matters of trial strategy. ”  (Da82.)  The court examined the first prong of Strickland and noted: [prior counsel] testified that the decision not to conduct the voir dire prevented unnecessarily highlighting a non-testifying witness recognized by a juror through a limited relationship.  Additionally, the Appellate Court determined that this Court acted within its discretion when it determined not to conduct a voir dire of the panel after the juror was excused.  For the reasons stated above, Court finds that the Petitioner did not sufficiently show that trial counsel demonstrated ineffective assistance of counsel under the first prong of the Strickland standard.  [(Da86). ]  The PCR court further found, regarding purported prejudice on the issue of voir dire, “that the trial would not have yielded a different result because the [defendant’s] claim that the jury could [not] have been impartial” was wholly unsupported by the evidence in the record.  (Da86).  Therefore, the PCR court held defendant did not meet the second prong of the Strickland standard, and the court denied the petition in its entirety.  (Da87).  Defendant now appeals the PCR court’s order, denying his PCR petition, to this Court.
[brief] At approximately 1:54 a.m. on February 23, 2015, [...] (“Defendant”) and [...] were present at the [...] bar/liquor store in Paterson.  (3T:52-8 to 16; Da67 at 4:08 to 8:12; 3T:46-13 to 48-18).  Defendant and Tucker left [...] together and walked down East 12th Street, which eventually turns into East 16th Street.  (Da 67 at 4:08 to 8:12).  Later that night, at approximately 2:15 a.m., the [...] (“[...]”) was alerted to the sound of gunfire by one of the “ShotSpotter” devices used to detect gunfire throughout the city of Paterson. (3T:54-5 to 8 and 16-17 to 25).
[brief] [...] moved for summary judgment on Plaintiff’s claim that the specific Ozurdex® unit used in November 6, 2018 procedure had a manufacturing defect that caused her injuries and her claim that [...] should have recalled the drug sooner.  (Da0035)  ‘Failure-to-timely-recall’ claim: [...] argued this claim is not recognized by the PLA and preempted by federal law.  (Id.)  Plaintiff did not oppose or respond to these arguments, which [...] asserted was a waiver.  In its Order denying [...]’s motion for summary judgment, the Trial Court ignored and never ruled on [...]’s arguments directed at the ‘failure-to-timely-recall’ claim.  (Da0785).  Manufacturing defect: [...] requested summary judgment because establishing ‘defect’ in a case involving a complex product like a prescription drug requires expert proof, and Plaintiff offered no expert on manufacturing defect.  (Da0035)  The Trial Court found Plaintiff presented “sufficient evidence” of defect, but the cited evidence did not come from either of Plaintiff’s experts, but instead from [...]’s so-called “expert,” who testified only that if an Ozurdex® unit generated a silicone particulate, this would be a deviation from [...]’s performance standards.  (Da0785, p. 9)  The Order did not cite any evidence that the Ozurdex® unit at issue actually generated such a particulate.  Causation: [...] moved to exclude Plaintiff’s experts’ unreliable opinions and for summary judgment on Plaintiff’s inability to prove general or specific causation.
[brief] They did not consider the substantial, credible evidence in the record, and their decision violated legislative policy, specifically, the remedial nature of the law, as intended by the Legislature.  Despite testimony from the employer indicating that no other positions were available for [...] and after receiving medical documentation from [...]’s treating physician in which his physician recommended he seek other work to reduce his symptoms, the Board was unreasonable in their interpretation and application of the regulations by finding that [...] voluntarily left his employment for a personal reason, thereby disqualifying him from benefits.  The Board’s finding should be overturned.  [...] should be found eligible for benefits, and the demand for a refund rescinded.  II.
[brief] The trial court, like *Veras*, erred by basing its analysis of the implied private right of action under the NJCFLA *solely* on N.J.S.A. 17:11C-18; but nothing in N.J.S.A. 17:11C-18 precludes a private right of action or states that “[o]nly the Commissioner of Banking and Insurance has the authority to pursue claims for violations of the NJCFLA. ”  *See SoR* p. 11.  As discussed *supra*, the NJCFLA’s statutory predecessors had nearly the same statutory structure as the contemporary NJCFLA—*to wit*, they provided for a private right of action (including treble damages and voiding of unlawful contracts) in conjunction with the Commissioner’s enforcement.
[brief] See Greenway Dev. Co. v. Borough of Paramus, 163 N.J. 546, 555-56 (2000) (finding the TCA’s notice provisions not applicable to cases such as inverse condemnation, which “is more akin to an action in lieu of prerogative writ”).  Similarly, our courts have held that “actions for equitable relief are not subject to the [TCA].”  First Am. Title Ins. Co. v. Twp. of Rockaway, 322 N.J. Super. 583, 595 (Ch. Div. 1999).  The TCA specifically states that “[n]othing in this act shall affect liability based on contract or the right to obtain relief other than damages against the public entity or one of its employees. ”  N.J.S.A. 59:1-4.  In short, no duty to defend exists in the absence of a claim for monetary damages under the TCA.  With this appeal, [...] inaptly suggests that Gramiccioni, 243 N.J. at 314-17, and Lavezzi v. State, 219 N.J. 163, 179 (2014), have reversed course from Chasin and require the [...] to defend prosecutorial employees in any instance in which a prosecutor’s office claims it was performing a “law-enforcement function.
[brief] [...] similarly found that, despite constituting evidence of only pre-SOL facts, the testimony of [...], [...], and [...] was essential to defeating the [...]’ “claims of right” defense which, if left unrebutted, would have defeated all of [...]’s NJRICO claims.  Excluding the work done to adduce this testimony from a fee award would be to improperly…  … ignore[] the relevancy that the [...]’ [own] defenses give to this testimony.
[brief] To the Extent that this Court Considers Defendants’ Argument Regarding Evidence of Abandonment, Defendants Mischaracterize the Trial Court’s Consideration of the Definition of “Abandoned”.  Defendants claim that the trial court determined that lack of abandonment of the Property prevents a finding of discontinuance of commercial use.  (Db28).  Defendants mischaracterize the trial court’s findings.  As stated in Section IV.B., above, Defendants’ argument in Section A.3 of their Brief is waived because it is raised for the first time on appeal.  Should this Court determine that this argument is not waived, Plaintiff addresses same below.  The trial court pointed out Defendants’ reliance on the “discontinuance of use” criteria and stated that “discontinuance of use” is not defined in the LRHL.  (T3, 49:7-19).  The trial court stated that its aim was to determine whether “discontinuance of use” may be found where a property is actively undergoing remediation of an environmental hazard.  (T3, 49:20-24).  In order to determine the definition of “discontinuance of use,” the trial court turned to definitions found in the Abandoned Properties Rehabilitation Act (“APRA”), which includes definitions specifying when a property is considered abandoned for APRA purposes.  (T3, 50:14-19).  The trial court specifically stated, “while this court recognizes the distinction between abandonment and the terms used [in the LRHL], it is this Court’s view that the definition [of abandonment] has application in this case”.  (T3, 20-23) (emphasis added).  The trial court simply referenced the APRA as an extrinsic aide in determining the meaning of an undefined term in the LRHL—namely “discontinuance of use”—and determined that discontinuance of use is not an appropriate finding where active remediation is ongoing.
[brief] Any concerns the Defendants may have about overlap between the two classes could easily be resolved by a class certification order expressly omitting claims for misconduct that occurred on or before Feb. 20, 2015.  Distribution, LLC, 2015 U.S. Dist. LEXIS 132038, at *7 (D.N.J. Sep. 29, 2015) (“The key inquiry is whether the factual predicate for future claims is identical to the factual predicate underlying the settlement agreement. ”) (italics added).  Defendant’s reliance on the vague “relating to” formulation in ¶1.29 of the Settlement Agreement to overturn the more specific ¶¶ 2.1 and 5.9, both of which clearly restrict the release to claims existing at the time final judgment was entered, attempts to re-write the Settlement Agreement to give Defendants a perpetual license to abuse their customers—and the more specific language should prevail over the general, non-specific wording in ¶1.29.
[brief] Appellant [...]’s (“[...]”) appeal should be denied because the trial court properly found that there was no implied contract between [...] and Respondent [...] (the “[...]” or “[...]”).  The [...] provides potable water to [...] and its other residents not through a contractual relationship, but as a governmental function.  The provision of potable water service and other essential government services does not create a commercial-type relationship between a municipality and each resident.
[brief] (4T, 5T), (Da 1a) *State v. Cummings, 184 N.J. 84, 89 (N.J. 2005)* ("We hold that, because a breathalyzer refusal case is properly a quasi-criminal matter, the constitutionally required burden of proof is the one applicable to criminal cases: proof beyond a reasonable doubt.  We further hold this ruling shall have "pipeline retroactivity" effect.")  An admission to consuming 1 beer, which is so in my case, cannot be amplified by the police, prosecutors and the courts as an admission to being intoxicated.  That is absurd.  As adults, we are allowed to consume alcoholic beverages responsibly.  There is nothing wrong with going to a restaurant establishment and having a beer, glass of wine or a mixed drink while enjoying your dinner or spending time with people.  Someone admitting they had an alcoholic beverage cannot be used as probable cause to arrest someone.
[brief] TWO PLAINTIFFS DID NOT, AND COULD NOT, WAIVE THEIR CONSTITUTIONAL RIGHTS TO A JURY TRIAL BECAUSE PLAINTIFFS NEVER KNEW ABOUT, SIGNED, OR ASSENTED TO THE ARBITRATION AGREEMENT  The motion judge correctly determined that Plaintiffs did not waive their rights to a jury trial because Plaintiffs never signed an arbitration agreement.  (2T13:20-14:8; see also Da65, ¶ 13.)  Without executing an arbitration agreement, Plaintiffs could not have knowingly and voluntarily waived their rights to seek relief in our court system.  [...] effectively admits that Plaintiffs never reviewed or executed the Account Applications or Clients Agreements, and, instead, attempts to compel arbitration based on their novel “course of conduct” and “acceptance of benefits” theories.  However, these arguments are likewise unsubstantiated by the record and are devoid of any support from precedent binding this Court.  Notably, none of the caselaw [...] relies on -- the majority of which is unpublished or from ancillary jurisdictions -- overcomes the facts that Plaintiffs never executed an arbitration agreement and, up until the initiation of this matter, never knew of the arbitration agreement.  The order denying [...]’s Motion to Compel should be affirmed because Plaintiffs did not assent to arbitration and never waived their constitutional right to a jury trial.
[brief] Rather, our obligation is to determine whether there is adequate evidence to support the judgment rendered below.  *[State v. Emery*, 27 N.J. 348, 353 (1958). ]  “The aim of the review at the outset is rather to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record. ”  *State v. Johnson*, supra at 162.  “When the reviewing court is satisfied that the findings and result meet this criterion, its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal. ”  *Ibid.*  However, if the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction..., then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.  While this feeling of 'wrongness' is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made.  This sense of 'wrongness' can arise in numerous ways--from manifest lack of inherently credible evidence to support the finding, obvious overlooking or underevaluation of crucial evidence, a clearly unjust result, and many others.  *[Ibid.]*  The contention that the trial court erred in its determination of the facts, whether underlying or ultimate, may be urged on appeal in any nonjury case....  *Id.* at 161.  “Although we generally defer to a court's fact findings based on its review of a recording, [*State v.] S.S.,* 229 N.J.[360,] 379 [(2017)], we are required to do so only where ‘more than one reasonable inference can be drawn from the review of a video recording,’”  *id.* at 380.  “Where a recording does not support more than one reasonable inference, and a trial court's ‘factual findings’ based on its interpretation of a recording ‘are so clearly mistaken—so wide of the mark—that the interests of justice demand intervention[,]’ a reviewing court owes no deference to a trial court's fact findings drawn from the recording. ”  *Id.* at 381 (brackets in original).  **LEGAL ARGUMENT**
[brief] [...] also failed to mention the 2000 and 2004 workers’ compensation claim, meaning he made errors in filling out this reporting form.  Regarding 2009, he wrote that petitioner met with a therapist at that time but did not actually state that such visit was the result of a 2009 incident or accident.  He wrote that petitioner suffered neck and back injuries in 2009 and a finger injury in 1995 but did not state when the injuries happened or whether they were the result of a single incident or series of incidences.  He also again failed to mention incidences in 2000 and 2004.  As [...] relied on this error-prone report, and as no other evidence was offered to confirm an injury in 2009, I CONCLUDE that there was no accident, incident or injury pertaining to petitioner from 2009.  (Pa84-85).  (Emphasis added).  [...] reached the conclusion that it was more likely than not that a 2009 incident/accident never occurred based upon a methodic, deductive reasoning analysis.  [...] should be applauded for doing his job.  [...] should not have been rebuked as counsel for Respondent did in his exceptions.  (Pa95-Pa101).