ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The Affidavit of Merit statute’s requirements are well established, clear, and mandatory.  Since Plaintiff did not produce an appropriate Affidavit of Merit in the appropriate time, nor did she otherwise comply with the statute, dismissal of the complaint was proper.  a)  It Was Not Error To Dismiss Plaintiff’s Complaint.  The Affidavit of Merit statute applies to all actions for damages resulting from an alleged act of malpractice or negligence by a “licensed person” in his or her profession or occupation.  N.J.S.A. 2A:53A-26 and -27.  A plaintiff in such an action must, within sixty days of the answer’s filing date, ...provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill, or knowledge exercised or exhibited in the treatment, practice or work that is the subject matter of the Complaint, fell outside acceptable professional or occupational standards or treatment practices.  N.J.S.A. 2A:53A-27.  A “licensed person” is defined to include a “health care facility”, N.J.S.A. 2A:53A-26(j), which, in turn, is defined as a “facility or institution… engaged principally in providing services for health maintenance organizations, diagnosis, or treatment of human disease, pain, injury, deformity, or physical condition, including,… [a] skilled nursing home [or] nursing home. ”  N.J.S.A. 26:2H-2.  This includes Defendants.  Failure to comply with the statutory mandate “shall be deemed a failure to state a cause of action. ”  N.J.S.A. 2A:53A-29 (Emphasis added.)  The Law Division may grant a single, sixty-day extension in which to file an appropriate Affidavit of Merit, upon a finding of good cause.  N.J.S.A. 2A:53A-27.  The Court had no further discretion to extend the time to file other than the single sixty-day extension, set out in the statute.  Id.  “Consequently, the statute allows a plaintiff a maximum of 120 days in which to file the affidavit. ”  Barrerio v. Morais, 318 N.J. Super. 461, 470 (App. Div. 1999)  It is clear that the purpose of the Statute is to require Plaintiff to make a threshold showing that their claim is meritorious.  In re Petition of Hall, 147 N.J. 379, 391 (1997).  The Supreme Court has cautioned that “the court’s sole function is to enforce the statute in accordance with those terms. ”  Phillips v. Curiale, 128 N.J. 608, 618 (1992).  An Affidavit of Merit is still required in cases of vicarious liability, such as Plaintiff’s complaint, when liability “hinges upon allegations of deviation from professional standards of care by licensed individuals who worked for the named defendant.
[brief] Second, allowing [...] to perform the Project despite failing to timely provide its NJDOT Notice provides [...] a competitive advantage.  Potential bidders may have refrained from bidding based on the prequalification requirement.  See Meadowbrook, 138 N.J. at 323-24.  Additionally, [...] gained another advantage over [...] and other bidders—the ability to walk away from its bid.  See Muirfield and Meadowbrook, supra.  [...] gained this advantage in the bidding process by learning that it was the lowest bidder before making any demonstration of compliance with NJDOT prequalification requirement.  Had [...], after examining the competitive positions of other bidders or its other available opportunities, determined its price was too low or other projects were more lucrative, it could have walked away from the Project by refusing to provide the required information concerning its prequalification and classification status.  Thus, unlike other bidders, [...] was never actually bound to its bid until it belatedly and unlawfully supplemented.
[directive] Any aggravating or mitigating circumstances surrounding the situation, such as unclear or poorly drafted agency policy, inadequate training or lack of proper supervision, shall also be noted in the Summary and Conclusions Report.  9.1.3  If the investigation reveals evidence of misconduct not based on the original complaint, this too must be reported and memorialized in both the Investigative Report and the Summary and Conclusions Report.  An investigation concerning this secondary misconduct shall be conducted.  INTERNAL AFFAIRS POLICY & PROCEDURES | November 2022 54 9.2
[directive] 4th Degree  $1,000 to $2,500  10% permissible  a(1)  Actor has legal duty for the care of a child or has assumed responsibility for the care of a child and engages in sexual conduct which would impair or debauch the morals of the child, second degree.  Any other person who engages in conduct or who causes harm as described  Endangering in this paragraph to a child, third degree.
[brief] Elkouri & Elkouri, How Arbitration Works, 7th Ed. 9-8 n.20 (2012) citing United Grocers, 92 LA 566, 569 (Gangle, 1989) (quoting Nolan, Labor Arbitration Law and Practice, 163 (1979)).  (Emphasis added).  “The language of mathematics is precise. ”  Elkouri and Elkouri, How Arbitration Works, 7th Ed. 9-13 (2012).  (Emphasis added).  Exact terms are given greater weight than general language unless a contrary intention appears.
[brief] (Pa396 to Pa397).  Furthermore, the intent of the application was to maintain the existing style of the site and compliments the existing development, as opposed to bringing in something different.  (Pa397).  The Application also proposed to provide upgrades to the stormwater management system adopting the latest NJDEP standards.  (Pa397 to Pa398).  [...] testified that the Application is not detrimental to the zone plan or master plan.
[brief] Thus, “model jury charges should be followed and read in their entirety to the jury. ”  *R.B.*, 183 N.J. at 325.  Indeed, reading the model jury charge “is a persuasive argument in favor of the charge as delivered. ”  *State v. Angoy*,  There is a “presumption of propriety that attaches to a trial court’s reliance on the model jury charge. ”  Estate of Kotsovska, ex rel. Kotsovska v. Liebman, 221 N.J. 568, 596 (2015).  Deviating from the Model Charges is thus generally inappropriate, and reading a Model Charge accurately is not considered plain error.
[brief] 9  POINT ONE .............................................................................................................................  9  THE TRIAL COURT ERRED IN DENYING [...]’S MOTION FOR LEAVE TO FILE AN AMENDED CROSS-PETITION BY FAILING TO ADHERE TO THE REQUIRED STANDARD OF REVIEW (1T120:14-121:7)  ..................................................................................................................  9  1.  Standard of Review for a Motion for Leave to Amend ............................................. 9  2.  The Court Abused its Discretion in Basing its Decision Solely on Non-Existent Prejudice and an “Extraordinary Circumstances” Standard .................................................................................................................. 11  3.  The Court Abused its Discretion in Failing to Consider the Merits of the Proposed Amended Pleading ..................................................................................................................  13  POINT TWO ..........................................................................................................................  14  THE TRIAL COURT ERRED BY FAILING TO COUNT [...]’S BALLOT BECAUSE SHE PROVIDED SUFFICIENT INFORMATION TO WARRANT RECEIVING A CURE LETTER (2T53:3-54:10)  ..................................................................................................................  14  1.  [...] Should Not Be Disenfranchised for Technicalities ................................. 15  2.  [...] Should Have Been Allowed to Cure Her Ballot Deficiencies .................................................................  17 POINT THREE ...........................................................................................................................................  20  THE TRIAL COURT ERRED BY DISQUALIFYING BALLOTS BECAUSE OF LATE POSTMARKS DESPITE BEING TIMELY MAILED ON A HOLIDAY WEEKEND (2T54:11-55:18)
[brief] Indeed, Plaintiffs’ complaint—that the PILOT unfairly shifted the regional school district’s tax burden—is a complaint that any taxpayer in a regional district could make against any regional district member-municipality that enters a PILOT.  That is not what the law envisions.  The Legislature has determined that 95% of the service payments generated through the PILOT shall be maintained by the municipality, to be appropriated at its discretion.  This makes sense—it is the municipality that has the responsibility to revitalize areas in need of redevelopment and to shoulder the burden of providing for affordable housing.  Yet despite the fact that the law does not allow a portion of the service charge to be allocated to the schools, the Township Committee members made it clear that they were concerned about the potential impact the project might have on the schools, and pledged to continue working with district officials to alleviate any such impact.  The legislative record included a demographic study prepared by [...].  T1.57:8-15.  The Township Committee pledged to commission another demographic study in collaboration with the school district.  T1.57:22-25; 58:1-2.  The Financial Agreement itself states that “[t]he Township may, in its sole discretion, discuss the potential impact of the Project on the [...] with the School Board and the potential use of a portion of the Annual Service Charge proceeds to address such impact. ”  Pa630.  Far from ignoring the schools, the Committee expressed its concern and willingness to appropriate funds in the future, both at the hearing and in the Financial Agreement.  V.
[brief] After [...] extended the discovery deadlines again, and with several experts on both sides still remaining to be deposed, plaintiffs filed a motion for reconsideration before [...], asking him to change his August 27 ruling that had denied plaintiffs permission to name [...] as their expert.  A209.  Defendant opposed.  [...] heard argument on November 12, 2021 and denied reconsideration by Order entered that day, noting again that plaintiffs had [...] and stressing that [...] was “moving cases” (A16).  Trial, then, did not even take place until one and one-half years later – in May 2023.
[brief] Plaintiff's only response is that "[...] presumably knew of the potential claim for legal malpractice."  (Pb 42)(T28).  However, Plaintiff's decision to depose [...] in the underlying Lease Litigation was "tantamount to an ambush."  (T28:10).  Plaintiff had the benefit of the Defendant [...]'s deposition testimony in the lease litigation without formally bringing claims against him until after the fact.  This strategic decision has prejudiced the Defendants, as Mr. [...] did not have the advice of counsel while deposed and was unaware that his client was seeking to sue him.  Plaintiff had an unfair advantage to question Mr. [...] while knowingly contemplating a legal malpractice action against him.  (T28:1-9)  Plaintiff provides no explanation to refute a claim for prejudice for failing to abide by Rule4:5-1 disclosure.  Instead, Plaintiff posits what would have happened if they had amended the disclosure: what difference would it have made?  Does Mr. [...] seriously claim that he would somehow have taken action to preserve the testimony of [...] or to somehow enhance his ability to locate him….Furthermore, [...] presumably knew of the potential claim for legal malpractice.  (Pb42).  This statement is irrelevant, as it does not explain the failure to abide by Rule 4:5-1 and the prejudice suffered.  Rather, as agreed upon by the Trial Court, Plaintiff deliberately prevented Defendants from preparing a defense and subjected Defendant [...] to a deposition by ambush, which resulted in undue prejudice for any defense in a legal malpractice action.
[brief] ”  *N.J.S.A. 2A:24–8(a)*; *See Port Auth. Police Sergeants Benevolent Ass’n of N.Y., N.J. v. Port Auth. of N.Y. and N.J.*, 340 N.J. Super. 453, 458-60 (App. Div. 2001) (describing limitation on arbitrator’s authority as defined by public sector collective bargaining --- 5  *See United Steelworkers of Am. v. Am. Mfg. Co.*, 363 U.S. 564 (1960); *United Steelworkers of Am. v. Warrior & Gulf Navigation Co.*, 363 U.S. 574 (1960); *United Steelworkers of Am. v. Enter. Wheel & Car Corp.*, 363 U.S. 593 (1960).
[brief] **The trial court correctly held that plaintiff failed to establish that the elevation change was a “dangerous condition” under the Tort Claims Act. **  The trial court correctly found that Plaintiff failed to establish a “dangerous condition” as defined by the TCA.  The Tort Claims Act, *N.J.S.A.* 59:4-1(a) defines a “dangerous condition” as “a condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.
[brief] For all of the foregoing reasons, this Court is requested to grant interlocutory appeal, reverse the decision of [...], and find the Affidavits of Merit submitted by the Plaintiffs/Appellants to be statutorily sufficient.  Respectfully Submitted, /s/[...]  [...], Esq. [...]  Attorneys for Plaintiff, the [...]  Dated: November 22, 2024  IN THE SUPERIOR COURT OF NEW JERSEY APPELLATE  DIVISION  Docket: [...] ([...])  Filed: November 22, 2024  THE ESTATE OF JAMES EVANS BY HIS GENERAL ADMINISTRATOR AND ADMINISTRATOR  AD PROSEQUENDUM
[brief] THE TRIAL COURT PROPERLY DETERMINED HERNANDEZ IS NOT A BORROWED EMPLOYEE.  Simply put, [...] is not a borrowed employee and this argument makes no sense when applied to these facts.  To be a borrowed employee, the alleged tortious individual needs to be borrowed from another employer.  The general employer loans its worker to another employee, known as a special employer.  *Patano v. New York Shipping Ass’n*, 254 N.J. 101, 111 (2023).  There is no general employer loaning out its employee to [...].  Nor is [...] loaning out an employee.  The facts of this case belie this argument as it is undisputed that [...] was an independent contractor, not borrowed from anyone or any company.  Plaintiffs’ argument is a red herring and in no way changes [...]’s status as an independent contractor.  [...] submits that there is nothing in the record that creates a material issue of fact, warranting a reversal of the trial court’s order based upon the “borrowed employee” doctrine.
[brief] On June 30, 2022, Appellants entered a Small Business Contract (the “Contract”) with [...] (“[...]”) to provide security equipment and installation services at [...] (the “13 Mian Street Property”).  In so doing, Appellants acknowledged and agreed to certain general terms, such as services to be provided and costs associated therewith, as well as “Important Terms and Conditions” that incorporated information related to “LIMITATIONS ON LIABILITY” and “ARBITRATION” (collectively referred to as “the Clauses”).  Through a series of agreements involving [...], [...] (“[...]”), and [...] (“[...]”), installation of security cameras was completed.  Thereafter, Appellants alleged that the security cameras were incorrectly installed causing damage to the property, various economic losses, and injuries.  As such, Appellants initiated this case in Superior Court by filing a Complaint and Jury Demand against [...], [...], and [...].  Afterwards, [...] and Appellants filed a Consent Order with the Court, by which Appellants acknowledged their binding agreement to arbitrate.  After that point, however, Appellants refused to participate in arbitration.  Later, Appellants moved to vacate the January 4, 2024 Court Order and invalidate the agreement to arbitrate.  The Court denied the motion and Appellants appealed.  As described in more detail below, Appellants and [...] voluntarily entered the binding Contract that included valid, legal, and enforceable waiver and arbitration provisions, among others.  Additionally, the Federal Arbitration Act (“FAA”) and New Jersey Arbitration Act (“NJAA”) favor arbitration, and the arbitration clause in this case meets any related requirements.  Finally, the motion judge was not required to hear oral argument before deciding on the written filings.  Therefore, based upon all of the facts and legal authority set forth herein, Respondent [...] requests that the Court deny Appellants’ requested relief and determine that Appellants are obligated to arbitrate based on the enforceable Contract and limitations on liability and arbitration clauses.  **PROCEDURAL HISTORY**
[brief] So, to prevail on its T&E claims, [...] was required to establish significant educational deficiencies such that its students were not being equipped to enter society, and the record did not come close to making a prima facie showing that Jersey City students are being deprived of T&E.  [...] did not, for instance, put forward an educational expert to opine that the quality of its education has declined.  It offered no evidence that students do not have access to curricula or the NJSLS, that graduation rates have declined, that their performance on State assessments have dropped, or that dropout rates have increased.  It offered no evidence that students did not have access to critical resources and educational opportunities.  In fact, the opposite is true.  The District has seen significant improvement since the SFRA’s enactment.  Its graduation rate rose “over 10 points, to 77.2% for 2017, up from 67.3% in 2012[,]” and scores increased in both math and English language arts from 2015 to 2017.  (Aa1136-37).  Participation in advanced placement courses increased by 40% from 2012 to 2017.  (Aa1136).  In fact, on September 14, 2022, the State returned full local control to [...] because the District was determined to be high performing on the NJQSAC continuum according to the comprehensive accountability office report, and because it showed gains in student achievement in the Department’s transition report.
[brief] They based their calculations of plaintiff’s lost interest of $645,000 based upon the lawful interest rate over the next 18 months less the rents plaintiff is receiving from the mortgaged premises.  Da202-03, ¶¶7-8.  On March 1, 2024, [...] entered an order (which was not entered on the docket or received by the parties until March 5, 2024) granting plaintiff’s motion to dissolve the stay of post-sale proceedings pending the filing of the [...]’ appeal of the Sale Confirmation Order unless they post a supersedeas bond in the amount of $645,000 within one business day.
[brief] However, the court found as fact that there would be no “undue prejudice” to the plaintiff and that the “playing field is fair and even” as between the parties despite the plaintiff’s lack of access to the “in-house” error logs.  In this regard, the court stated:  [P]laintiff’s counsel obtained via subpoena from [...] the security log, performance log, and event log, and if defendant’s expert is able to offer an opinion that there were no errors in the playback based on a review of these documents, then plaintiff’s expert who didn’t review the TSM logs and neither did the defense expert review the TSM logs would be put in the same footing if they reviewed the [...], the security log, the performance and event logs, as well.  So basically both experts would be put in the same footing because neither of them reviewed the TSM logs, and so, therefore, there would be no undue prejudice to the plaintiff because the playing field is fair and even in this regard.  (T56:18-25 – T57:1-6)  The Rosenblitt court set forth that the spoliation inference is intended to level the playing field in cases where evidence has been destroyed as follows:  Courts use the spoliation inference during the underlying litigation as a method of evening the playing field where evidence has been hidden or destroyed.  It essentially allows a jury in the underlying case to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her.  Rosenblitt at 401-402.  The Rosenblitt court set forth that the tort of fraudulent concealment serves a different purpose as follows:  We hold that the tort of fraudulent concealment, as adopted, may be invoked as a remedy for spoliation where those elements exist.  Such conduct cannot go undeterred and unpunished and those aggrieved by it should be made whole with compensatory damages and, if the elements of the Punitive Damages Act, N.J.S.A. 2A:15-5.12 are met, punitive damages for intentional wrongdoing.  Id. at 407.
[brief] 1.  Letter 11-8-2023 to Judge informing him of filing a Motion for a Traverse Hearing ...... 39  2.  Letter 11-14-2023 to Judge with Defendant Affidavit required for Traverse Hearing ..... 40-42  3.  Letter 11-29-2023 to Judge with Brief in Support of Motion for Traverse Hearing ...... 43-45  Exhibit J: Defendant’s Certification and Affidavits
[directive] Page 2  Attorney General Law Enforcement Directive No. 2000-5: Temporary Suspension of Enforcement of 39:3-33 for N.J.S.A.  Vehicles Equipped with Exterior Mounted E-ZPass Tag the State of New Jersey, by virtue of the authority vested in me by the Constitution of the State of New Jersey and the Criminal Justice Act of 1970, 52:17B-97 seq., do hereby N.J.S.A. et that:  DIRECT  1.  All police and law enforcement agencies of this State and of the bi-State authorities functioning within and under the jurisdiction of the State of New Jersey SHALL NOT use or otherwise rely upon an apparent violation of N.J.S.A. as reasonable suspicion or probable cause to stop a motor vehicle, if that 39:3-33, motor vehicle is equipped with an exterior mounted E-ZPass tag on the front license plate of the motor vehicle.  2.  All police and law enforcement agencies of this State and of the bi-State authorities functioning within and under the jurisdiction of the State of New Jersey SHALL NOT issue a Uniform Traffic Ticket or other form of complaint or summons for a violation of 39:3-33 to the operator of a motor vehicle N.J.S.A. equipped with an exterior mounted E-ZPass tag on the front license plate of the motor vehicle.
[directive] maximum Score.  Risk High a Involving Crimes 7.4.2  Serious pretrial seeking presumption of the Section unless 7.3, under covered otherwise  In not cases pretrial detention for apply shall prosecutor the 7.4.6, subsection to pursuant overcome is detention or New (FTA)  Appear to Failure the and crime second-degree or afirst- for is charge present the if or 5 is process risk-assessment pretrial automated the by determined score (NCA)
[brief] Herbert v. Lando, 441 U.S. 153, 176, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979).  Nevertheless, discovery does have “ultimate and necessary boundaries. ”  Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947)).