ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] PRELIMINARY STATEMENT ..................................................................................  1  PROCEDURAL HISTORY ......................................................................................  4  STATEMENT OF FACTS .......................................................................................  6  LEGAL ARGUMENT .............................................................................................  10  I.  STANDARD OF REVIEW .................................................................................  10  II.  THE INFORMATION SOUGHT BY THE REQUESTOR IS EXEMPT FROM DISCLOSURE UNDER THE OPEN PUBLIC RECORDS ACT’S PRIVACY PROVISION (Da115)  .................................................................  11  III.  THE TRIAL COURT ERRED IN FINDING THAT THE REQUESTED INFORMATION WAS A PUBLIC RECORD AS DEFINED IN THE OPEN PUBLIC RECORDS ACT (Da107)
[brief] Within this legislation, the public policy underlying N.J.A.C. § 10:44A is derived from the following:  …Increasing numbers of individuals with developmental disabilities are living, learning, working and participating in --- 2  In addition to properly administering medication, the taking of a resident’s blood sugars also relates to preventing abuse and neglect because the improper administration of same can lead to bruising and harm on the developmentally disabled resident.  all aspects of community life…there is an increasing need for a well-trained workforce that is able to provide the services, supports and other forms of direct assistance that are required to enable the [developmental disabled] individuals to carry out…activities.
[brief] ”  *N.J.S.A.* 10:5-3.  The key to the NJLAD’s use as a weapon against discrimination is found in its broad remedies and enforcement mechanisms.  It provides victims of discrimination with an array of remedies, including economic damages, recovery for pain and suffering, punitive damages, and attorneys’ fees.  N.J.S.A. 10:5-3; see also N.J.S.A. 10:5-27.1.  One of the most important tools of the NJLAD is the right to a trial by jury of discrimination claims.
[brief] .................. 20, 21 Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520 (1995) ..............................  19, 49 Britwood Urban Renewal, LLC v. City of Asbury Park, 376 N.J. Super. 552 (App. Div. 2005) ................................................................................. 34, 35, 36, 37
[brief] .......................37  G.  Neither [...] nor [...] based their decision on the application of Iqbal to Plaintiff’s municipal liability claims.  (4/1/21 Transcript @ T29:22 to T59:13; 5/25/23 Transcript @ T48:4 to T54:10)  .........................................................................................................................................................................................38  H.  [...] did not err in denying Plaintiff leave to file another motion to amend the complaint.  (4/1/21 Transcript @ T52:18 to T59:5)38  I.  [...] did not err in finding that Plaintiff’s municipal liability claims against [...] brought pursuant to the NJCRA were insufficiently pled.  (4/1/21 Transcript @ T50:17 to T52:12)..................42
[brief] Indeed, while Plaintiff maintains that despite the unambiguous language of the MAA, she did not agree to waive her right to a jury trial, recent case law examining employee assent to arbitration agreements expressly highlights that "[a]s a general rule, one who does not choose to read a contract before signing it cannot later relieve [her]self of its burdens.  The onus [is] on plaintiff to obtain a copy of \(^3\)  While Plaintiff, throughout her brief, repeatedly characterizes her signature as an alleged mere acknowledgment, (Pb2, Pb15, Pb16, Pb30, Pb31), it is undisputable that, as reproduced below, the MAA was electronically signed, not merely acknowledged: (Pa93-Pa94). the contract in a timely manner and to ascertain what rights it waived by beginning the arbitration process.
[brief] In Oscar, the contract provision allowing for the recovery of legal fees “in connection with the enforcement of th[e] Agreement and indemnification obligations set forth” appears in a parenthetical, thus simply clarifying the preceding language.  Id.  Moreover, the indemnification provision was followed by another provision that refers to reimbursement of expenses in connection with third-party claims and provided Plaintiff with a right to separate counsel in connection with any matters in which indemnification is sought.  Id.  Such is not the case here.  The indemnification provision in this matter is not limited to third-party claims.
[brief] The [...] Pollution Policy contains an arbitration clause (Section F), which states that:  It is hereby understood and agreed that all disputes or differences that may arise under or in connection with this Policy, whether arising before or after termination of this Policy, including any determination of the amount of Loss, may be submitted to the [...] under and in accordance with its then prevailing commercial arbitration rules.  ***  Any party may commence such arbitration proceeding and the arbitration shall be conducted in the Insured’s state of domicile.  Da376-77.  This is a broad arbitration clause which applies to “all disputes or differences that may arise under or in connection with” the [...] Pollution Policy.  Further, the [...] Pollution Policy contains a Service of Suit clause (Section U), which states that Section U is “[s]ubject to Section IV.  CONDITIONS, Paragraph F, above”—the arbitration clause.  Da383.  The [...] Umbrella Policy contains an arbitration clause in Endorsement 14, which provides that any disagreement regarding the interpretation of the pollution exclusion contained in Exclusion Q shall be resolved by arbitration:  In the event of a disagreement as to the interpretation of Exclusion Q. of this policy or a disagreement as to the interpretation any endorsements attached to this policy amending Exclusion Q., the disagreement shall be submitted to binding arbitration before a panel of three (3) arbitrators.  Da383.  Here, the crux of [...]’s claim under the [...] Umbrella Policy is whether or not some or all of [...]’s Indemnity Claim is excluded by the pollution exclusion.  ISSUES ON APPEAL
[brief] However, no matter the result in the rest of the case, it is important to re-remind our very busy and hard-working judges about the lessons of Lawson.  Here [...] was considering his own “unopposed” notation as “Law of the Case. ”  He didn’t have “to overturn” himself, just correct an error in the exact same Order perpetrated by the State’s admitted “mistake” or, more likely, malfeasance.  shortly thereafter admonished for forgetting to pay $641.86 in court costs??  [...]; [...] (2003 after 2002 App. Div. Opinion)  This Court will never have better facts than those here to make a point about corrections for misleading documents.
[brief] Plaintiffs first retained a general and vascular surgeon, [...].  A37.  Defendant objected and moved to dismiss plaintiffs’ claim against [...] on grounds that [...] specialized in vascular and general surgery, while [...] was a general surgeon only.  A176.  So plaintiff retained [...], who provided an Affidavit of Merit and Expert Report, which plaintiffs served on defendants in September 2020.  A40, 147.  After defendant deposed [...] in June 2021, however, defendant again moved to bar plaintiffs’ expert for claimed lack of qualification.  A20.  Finally, plaintiffs retained [...] to address the qualification objections that defendants had continually raised.  [...] was eminently qualified -- a general surgeon and graduate of Yale University’s School of Medicine with surgical training associated with Harvard Medical School (A235-56).  He explained in his Expert Report (served on defendants on July 30, 2021) that the care [...] provided to [...] “did not comply with the acceptable standard of care for a qualified general surgeon:”
[brief] Thus, when reviewing a claim of cumulative error, the court must consider the aggregate effect of the trial court's errors on the fairness of the trial.  *Id.*  When assessing whether defendant has received a fair trial, we must consider the impact of trial error on defendant's ability fairly to present his defense.  *State v. Jenewicz*, 193 N.J. 440, 473 (2008).  Here, it is submitted that the aggregate effect of all these errors deprived Defendants of a fair trial.
[brief] a.  No Genuine Vacancies Existed at the Time Certification [...] was Promulgated Certification [...], on which Appellant was ranked as number one, was issued to the [...], at the [...]’s request, on December 28, 2022.  (Pa. 72).  During the timeframe between when the Certification was issued by and returned to the [...], there were no “genuine vacancies” for [...].  Appellant points to retirements which occurred in September and October of 2022 as supposedly creating the “genuine vacancies” which he could have been appointed to fill, however those positions had already been retroactively filled by appointments to Fire Captain that the [...] had made in July of 2022, in anticipation of those retirements.
[brief] Plaintiffs assert (Pb43) that the enforceability of the Agreement as to [...] depends on “factual questions” that prevent this Court’s “jurisdiction. ”  That is wrong.  [...] is a third-party beneficiary taking all the facts as Plaintiffs allege them to be.  And Plaintiffs do not even attempt to address [...]’s arguments that (a) the arbitrator alone must determine enforceability as to [...] and (b) he is bound to the Agreement as a third-party beneficiary.  Plaintiffs say only that a person cannot bind her spouse to an agreement, *solely by virtue of their spousal relationship*, without evidence of an agency arrangement.  (Pb43–45.)  That is irrelevant because [...] has not argued that [...] is bound based on [...] being his agent.  “Non-signatories of a contract may be subject to arbitration if the nonparty is an agent of the party --- 4 Plaintiffs’ severability argument (Pb42) is factually and legally unmoored from the rest of their brief.  Severability would come into play only if this Court rejected all of Plaintiffs’ challenges to the formation of the December Terms and yet concluded that *Atalese* goes to enforceability (not formation) of the contract.  But in that case, Plaintiffs’ *Atalese* challenge (like all other threshold issues of arbitrability that do not go to contract formation) would be delegated to the arbitrator and this Court cannot reach it.
[brief] [...] complied with the Order and completed their purchase of the Property, but at no time did they waive their right to seek damages for any lawful claims for monetary damages related to liability for the environmental contamination.  On April 13, 2016, [...] issued another Order, directing that wrongful eviction claims that had been made by the [...] against the Phillipses be transferred to the Law Division.  (53a).  Additional litigation ensued on that issue; however, the environmental claims sought by Appellant were not brought.
[brief] See R. 2:10–2 (providing that “[a]ny error or omission shall be disregarded by the Appellate Court unless it is of such a nature as to have been clearly capable of producing an unjust result”).  The State established [...]'s guilt through an abundance of evidence, including the testimony of co-conspirator [...]; the testimony of [...], including both her out-of-court and in-court identifications of [...]; [...]'s testimony; and [...]'s testimony.  [...]'s statements, which did not implicate [...], could hardly have affected the verdict.  [...]'s remaining arguments concerning the admissibility of statements [...] attributed to [...] lack sufficient merit to warrant further discussion, R. 2:11–3(e)(2), as does his argument that the antagonistic defenses that developed during trial warranted a mistrial.
[brief] ”  \textit{State v. Locurto}, 157 N.J. 463, 474 (N.J. 1999).  Moreover, in a case incorrectly cited by plaintiff on this point (Pb29), the Court found in \textit{Walid v. Yolanda for Irene Couture, Inc.}, 425 N.J. Super. 171, 179 (App. Div. 2012), “the scope of appellate review is expanded when the alleged error on appeal focuses on the trial judge's evaluations of fact, rather than his or her findings of credibility.
[brief] Subpoena Ad Testificandum to [...], dated September 9, 2019...  Da70  Proof of Service ..........................................................................................  Da72  ### TABLE OF AUTHORITIES | Cases | Page(s) | |----------------------------------------------------------------------|---------| | **Achacoso-Sanchez v. Immigration & Naturalization Service,** | 15 | | 779 F.2d 1260 (7th Cir.1985) | | | **Band’s Refuse Removal, Inc. v. Fair Lawn Borough,** | 35 | | 62 N.J. Super. 522 (App. Div. 1960) | | | **Bonczek v. Carter-Wallace, Inc.,** | 18 | | 304 N.J. Super. 593 (App. Div. 1997), certif. denied, | | | 153 NJ 51 (1998) | | | **Cockerline v. Menendez,** | 31 | | 411 NJ. Super. 596 (App. Div.), certif. denied, 201 NJ. 499 (2010) | | | **Cutler v. Dorn,** | 15 | | 196 N.J. 419 (2008) | | | **Du-Wel Products v. U.S.,** | 16 | | 270 N.J. Super. 458 (App. Div. 1989) | | | **DuWel Products, Inc. v. United States Fire Ins. Co.,** | 19-20 | | 236 N.J Super. 349 (App. Div. 1989), certif. denied, | | | 121 NJ. 617 (1990) | | | **Fisher v. Yates,** | 19 | | 270 N.J. Super. 458 (App. Div. 1994) | | | **Flagg v. Essex Co. Prosecutor,** | 15 | | 171 N.J. 561, 796 A.2d 182 (2002) | | | **Franklin Medical Associates v. Newark Public Schools,** | 14 | | 362 N.J. Super. 494 | | | **Interstate Bank v. Rinaldi,** | 19 | | 303 N.J. Super. 239 (App. Div. 1997) | | | **Jerista v. Murray,** | 31 | | 185 NJ. 175 (2005) | | | **Keller v. Pastuch,** | 35 | | 94 N.J. Super. 499 (App. Div. 1967) | | Kimmel v. Dayrit, 154 N.J. 337 (1998)
[brief] For the foregoing reasons, the Court should reject the arguments of the Intervenor and the Board.  It is clear that the application is conforming and was not denied for any reasons related to the two minor design waivers Plaintiff requested.  Furthermore, the application was for a nine-lot subdivision, not to construct the homes on the plans, and certainly not for basement apartments.  Therefore, the Court should uphold the trial court’s ruling.  Respectfully submitted, [...]
[brief] For the reasons set forth above, in the SSI Brief, and in the County Brief, the Court should reverse the judgment of the trial court and find [...]’s failure to timely submit the NJDOT Notice to be a material defect.  To the extent the Court finds the defect was not material, the Court should reverse the judgment of the trial court and either: (a) remand to the County to determine whether to waive the defect; or (b) direct the dismissal of [...]’s Complaint and allow the County to proceed in the ordinary course, based on the guidance provided by the Court.
[directive] SUSPECTED OF PROSECUTOR NOTICE TO 9.  .................................................................................................77  CONDITIONS RELEASE IN TESTS AND REPORTS POLICE EXPEDITE TO PRIORITIZATION  10.  .......................................................................................................78  CASES DETENTION ..................................................78 .  Decision  Detention  Pretrial for Needed Reports 10.1 .....................................78  Analysis Laboratory for Requests of Submission Timely 10.2 ......................78  Testing .  Forensic for Evidence Submitting for Limit Time 10.2.1 ...................................79  Needed Longer No Testing If Notification Prompt 10.2.2  Investigative of Completion  Prioritize to Authority Prosecutor's 10.3 with Comply to Needed When Examinations  Forensic and Reports ........................................................................79  Deadlines  Indictment/Trial Speedy ...............................................................79  Requests Prioritization with Compliance 10.4  INDICTMENT/TRIAL SPEEDY OF GENERAL ATTORNEY  TO NOTICE 11.
[brief] 22 | CASES | PAGE NUMBER | |-------------------------------------------|-------------| | *Arafa v. Health Express Corporation*, | 11, 18 | | 243 *N.J.* 147, 169 (2020) | | | *AT&T Mobility LLC v. Concepcion*, | 18 | | 563  *U.S.* 333, 339 (2011) | | | *Atalese v. U. S. Legal Servs. Grp., LP*, | 11, 13 | | 219  *N.J.* 430 (2014) | 11, 13 | | 219 *N.J.* 430, 441 (2014) | 18 | | 219  *N.J.* 430, 442 (2014) | 19 | | 219 *N.J.* 430, 503 (2014) | 22 | | *Badiali v. N.J. Mfrs. Ins. Corp.*, | 18 | | 220  *N. J.* 554, 556 (2015)  | | | *Chemical Bank of New Jersey v. Bailey*, | 12 | | 296  *N.J.Super.* 515 (App. Div.), | | | cert. den. 150 *N.J.* 28 (1997)  | | | *County of Passaic v. Horizon Healthcare* | | | Services Inc., | | | 474 *N.J.Super.* 498,501 (App. Div. 2023)| 19 | | 474 *N.J.Super.* 498,508 (App. Div. 2023)|  22 | Delaney v. Dickey, 244 N.J. 466 (2020)  244 N.J. 466, 494 (2020)  17, 18  244 N.J. 466, 495 (2020)  19  244 N.J. 466, 496 (2020)  17  244 N.J. 466, 497 (2020)  17  Delta Funding Corp. v. Harris, 189 N.J. 28 (2006)
[brief] Id. at 89.  (Emphasis supplied)  In Ocasio v. Amtrak, 299 N.J. Super. 139 (App. Div. 1997), the plaintiff was struck by defendant’s train as he walked along the railroad tracks.  The theory of plaintiff’s case was that the defendant negligently failed to prevent pedestrians from gaining access to the tracks by means of stairways at the [...], which had been closed for almost forty (40) years.  Plaintiff’s evidence showed that one staircase provided unrestricted access to the tracks, while another had only 3.5 feet-high railing that could easily be stepped over.  After the jury returned a verdict in plaintiff’s favor, defendant appealed on the ground that the plaintiff did not present sufficient evidence to demonstrate that the decedent gained access to the tracks by means of any of the abandoned stairways and thus failed to show a proximate causal relationship between defendant’s alleged negligence in safeguarding the stairway and the accident.
[brief] Here, reduced to its essence, defendant claims [...]’ “recantation”[6] in his 2008 habeas petition of his involvement in the Staten Island home invasion, combined with [...]’s affidavits and testimony at the evidentiary hearing, are “not ‘merely’ cumulative, impeaching or contradictory,” Ways, 180 N.J. at 187 (quoting Carter, 85 N.J. at 314), but rather “shake[s] the very foundation of the State's case and almost certainly [would] alter the earlier jury verdict,” id. at 189.  --- 6  The State maintains that [...]’ habeas petition was not a recantation and did not actually contradict his testimony against defendant at defendant’s 2009 trial.  However, [...] admitted his recantation, drafted with the assistance of [...]’s deft hand, was itself false.  The judge found [...] credible in this regard.  The judge earlier found [...] was not credible in his assertion that [...] and [...] admitted framing defendant.  Applying appropriate standards to the review of the judge's findings and conclusion following two evidentiary hearings, we find no reason to conclude defendant met the rigorous standards required to set aside “[a] jury verdict rendered after a fair trial [which] should not be disturbed except for the clearest of reasons. ”  Id. at 187.  [[...], [...], 2022 WL 2760858, at *3 (App. Div. Jul. 15, 2022)]  In sum, this Court determined that [...]’ habeas petition was not material enough to justify granting defendant a new trial.  J.
[brief] Plaintiff’s references to the equitable doctrine of election of remedies is inapplicable here.⁴  In dismissing the complaint, the motion court did not need to rely on this equitable defense because the PSA contained a valid and enforceable contractual remedies clause, which supersedes the equitable defense.  However, ³  A copy of this unpublished opinion is included in Cross-Appellant [...]’s appendix at Oda144.  ⁴  Plaintiff’s references to other potential equitable defenses, such as impracticability and frustration of purpose, are also inapplicable to the appeal.  Plaintiff’s complaint was dismissed as a matter of law based on the express terms of the PSA.  even if the election of remedies doctrine was applicable, the doctrine supports the motion court’s ruling.
[brief] The trial court nonetheless held that the exceptions to the immunity for “medical services, treatment and procedures that are unrelated to the COVID-19 emergency” and “acts or omissions constituting a crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct” allowed the suit to proceed.  With respect to the first exception, [...] was admitted to [...] for rehabilitation after hip replacement surgery, not for treatment of COVID-19, and plaintiff alleged that [...] did not provide “basic medical care” to [...], leading to his death from exposure to COVID-19 while in a deteriorated condition.  (Da321.)  With respect to the second exception, “[...]’s administrative failures allegedly created an ‘unreasonable risk of harm’ to their patient and therefore fall within the definition of gross negligence,” (Da323), and failure “to follow CDC guidelines, put COVID protocols in place, and provide basic medical care to [...] due to institutional failures. . . caused his condition to deteriorate and made him susceptible to the deadly COVID virus,” (Da324).  There is no dispute that this is a medical or professional negligence matter requiring an AOM from an appropriately licensed person.  [...], a physician, is not qualified to give an AOM against any nurse or other person employed by [...].  The trial court’s decision, if left in place, allows plaintiff to circumvent the AOM requirement and the COVID-19 immunity statute by recasting the nursing negligence claim—which is premised solely upon allegations that [...] contacted COVID-19 and passed away during the initial stage of the pandemic—as instead involving “administrative” or “institutional” failures to provide “basic medical care” and “gross negligence” or “willful disregard”, a narrative that is contradicted by [...]’ own affidavit.  An interlocutory appeal is essential to the interest of justice in order to direct the trial courts to apply the AOM and COVID-19 immunity statutes as the Legislature intended, and to allow this Court to provide additional instruction and clarification in standards for their application, guidance which remains necessary in order to preserve and maintain the statutes’ crucial function of eliminating futile claims by dismissing them with prejudice before discovery proceeds.  Defendants respectfully request that the Court grant their motion for leave to appeal and direct that the April 28, 2024 order be vacated with instructions that plaintiff’s amended complaint is to be dismissed with prejudice in its entirety in accordance with the AOM statute and the COVID-19 immunity statute.
[brief] *Burlington Northern*, 548 U.S. at 69 (citation and internal quotation marks omitted).  Examples of actionable retaliation cited by the Supreme Court include the FBI’s refusing to investigate “death threats” against an agent, the filing of false criminal charges against a former employee, changing the work schedule of a parent who has caretaking responsibilities for school-age children, and excluding an employee from a weekly training lunch that contributes to professional advancement.  *Id.* at 63, 69; see also *Williams v.  W.D. Sports, N.M., Inc.*, 497 F.3d 1079, 1090 (10th Cir. 2007).  Denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge are, of course employer actions that could dissuade a reasonable person from engaging in protected activity.  *Roberts v. Roadway Express, Inc.*, 149 F.3d 1098, 1104 (10th Cir. 1998) (suspensions and terminations “are by their nature adverse”).
[brief] THE TRIAL COURT ERRED IN ENTERING THE JUDGMENT AGAINST ALL DEFENDANTS, JOINTLY AND SEVERALLY (25T63:23-25; 25T79:13-80:13)  A.  Conversion Claims  B.  Contract claims  POINT VII  THE TRIAL COURT ERRED IN FAILING TO DISMISS THE CLAIMS AGAINST [...] (1T101:9-11; 24T50:18-25)