ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Defendant/Respondent [...], M.D. submits this memorandum of law in opposition to Plaintiff’s Appeal of the Trial Court’s June 24, 2020 Order, dismissing Plaintiff’s Complaint with prejudice for failure to provide an appropriated Affidavit of Merit as required under N.J.S.A. § 2A:53A-27, et. seq.  This is a medical malpractice action wherein Plaintiff claims that Defendant, [...], a licensed physician specializing in and Board Certified in Pulmonary Medicine and Critical Medicine as well as co-Defendants, deviated from accepted standards of care relative to the care and treatment provided at [...] on June 1, 2018.  It is alleged that as a result of Defendants’ professional negligence, relative to the performance of an elective right CT-guided needle kidney biopsy and post-operative care, Plaintiff passed away.  It is undeniable that [...]’s Answer identified the medical specialties in which she was practicing at the time of the at issue care and treatment was provided in this case, i.e. pulmonology and critical care medicine.  Despite Plaintiff being on notice of [...]’s medical specialties, an Affidavit of Merit was served by a physician who shared neither of [...]’s specialties, but rather practiced, specialized and was Board Certified in wholly distinct disciplines, i.e. general surgery, vascular surgery and surgical critical care.  Following Plaintiff’s failure to serve an appropriate Affidavit of Merit and Ferreira Conference, the trial court entered an Order granting [...]’s Motion to Dismiss.  Prior to entry of the Order of Dismissal, Plaintiff did not move for waiver of the Affidavit of Merit Statute’s strict requirements.  On Appeal, Plaintiff does not dispute that [...] and [...] do not share the same training, Board Certifications or medical specialty.  Rather, Plaintiff argues that the statutorily required Affidavit of Merit is simply a “statement of probable cause of malpractice by a professional at the beginning of the case”.  In support of Plaintiff’s argument, he cites to no authority, either binding or otherwise, but relies on [...]’s “observations” relative to the sufficiency of his AOM.  Irrespective of the self-serving position of Plaintiff and his expert, there is simply no legal basis to support this position.  Rather, as will be developed below, New Jersey’s Supreme Court, Nicholas v. Mynster, 213 N.J. 463, infra, as well as the Appellate Division decisions of Wiggins v. Hackensack Meridian Health, 478 N.J. Super. 355, infra, and Pfannenstein ex rel. Est. of Pfannenstein v. Surrey, 475 N.J. Super. 83, infra and made clear that the Affidavit of Merit Statute requires an Affiant to “possess the same credentials” and have consistently applied a kind-for-kind requirement.
[brief] (5T87-1 to 14).  The defendant was no longer at the house and things were calm.  (5T88-7 to 25).  [...] indicated that her brother then came to get her and said the defendant had returned to the house and [...] was going to tell the defendant that he was not welcome there anymore.  (5T67-12 to 15).  [...] had remained at the front door where the defendant was located.  When [...] and [...] came down the stairs they observed that there was an argument between the defendant and [...].  (5T89-21 to 90-7).  The defendant was wearing a mask, but [...] indicated that she knew it was him as he was coming, with a tote, to get his tote of clothes and she saw his face.
[brief] The designation of Highlands Preservation Area by the Legislature is essentially regional zoning.  Numerous federal courts have held that local zoning ordinances that regulate the siting, construction and operation of interstate natural gas pipeline facilities are preempted.  See Dominion Transmission, Inc. v. Town of Myersville Town Council, 982 F.Supp.2d 570, 579 (D.M.D. 2013)(holding portions of town’s code directly affecting the siting, construction, or operation of pipeline company’s compressor station were null and void as applied); AES Sparrows Point LNG, LLC v Smith, 470 F.Supp.2d 586 (D.M.D. 2007)(holding that zoning ordinance prohibiting LNG terminals within a certain distance from residential and business zones was preempted by the Natural Gas Act); Loqa, 79 F.Supp.2d 52 (holding that “Congress clearly has manifested an intent to occupy the field and has preempted local zoning ordinances and building codes to the extent that they purport to regulate matters addressed by federal law”).  Because Congress, through the NGA, has regulated comprehensively the siting, construction and operation of natural gas facilities, state and local regulations pertaining to these same issues are preempted.
[brief] State v. Gonzales, 227 N.J. 77, 101 (2016); see also State v. Hubbard, 222 N.J. 249, 263 (2015).  An appellate court also must not “engage in an independent assessment of the evidence as if it were the court of first instance. ”  Locurto, 157 N.J. at 471.  Once the reviewing court is satisfied the judge’s findings were based on sufficient credible evidence in the record, “its task is complete and it should not disturb the result. ”  Ibid.  This is true even if the case is “a close one” or the appellate court may have reached a different conclusion were it independently deciding the case.  Ibid.  As our Supreme Court has frequently reaffirmed, “[a] trial court’s findings should be disturbed only if they are so clearly mistaken ‘that the interests of justice demand intervention and correction. ’”  State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
[directive] 8.4.6  If the agency wants to continue its administrative interview and the County Prosecutor agrees to grant use immunity, the agency shall advise the subject officer in writing that he or she has been granted use immunity if their answers implicate him or her in a criminal offense.  The officer must then answer the questions specifically related to performing their official duties, but no answer given, nor evidence derived therefrom, may be used against the officer in a criminal proceeding.
[brief] See *Swarts v. Sherwin-Williams Co.*, 244 N.J. Super. 170, 177 (App. Div. 1990) (adopting the test for evaluating releases under the NJLAD); see also *Keelan v. Bell Communications Research*, 289 N.J. Super. 531 (App. Div. 1996).  In *[...]*, one of the key factors weighing in favor of invalidating the release was the court’s conclusion that the employee did not have sufficient time to read the release she was signing:  We conclude that under the circumstances, [...] did not have sufficient time to decide whether to sign the Release.  Neither the wording of the Release or the [...] representatives themselves informed [...] that she had time to deliberate …  Nor did [...] propose a deadline that might have alerted [...] that she had time to make her decision.  We conclude that a few minutes is not enough time for an employee just learning of her termination to knowingly and voluntarily waive her rights to sue.
[brief] (16T126-8 to 127-17).  The ritual was consistent with [...]’s ordinary procedure, part of what defendant called its “quasi-military” organization.  (11T147-13 to 148-2; 11T150-9 to 14; 15T152-7 to 10).  [...] watched the reading of the suspension documents to defendant at [...], after which he, [...], and defendant drove together back to their building.
[brief] A proposed amendment would be futile if it would not survive a motion to dismiss under the Rule 4:6-2(e) standard, under which the plaintiff is given every reasonable inference of fact.  Notte v. Merchants Mut. Ins. Co., 185 N.J. 490, 501 (1986); Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989).
[directive] When those circumstances exist, the prosecutor shall be required to apply the “Street Gang Involvement” Special Application and Enhancement Feature, and shall be prohibited from counting aggravating points under Factor #4b so as to avoid the inappropriate “double counting” of this aggravating circumstance.  However, when the prosecutor has a reasonable basis to believe that the defendant was part of some drug distribution organization but Page 75 [...] Guidelines 2 (2004 Revisions) does not believe there is a sufficient factual basis to establish all of the elements of Special Application and Enhancement Feature A, which are derived from N.J.S.A. 2C:44-3h, the prosecutor shall award points under Aggravating Factor 4b and shall not apply the Special Application and Enhancement Feature.  Aggravating Factor #4b should not be invoked routinely merely because certain kinds of illicit drugs, such as heroin or cocaine, are necessarily imported into this country by means of sophisticated criminal enterprises.  It is not intended that this aggravating factor apply to every profit-minded drug case.
[directive] Nothing in this subsection shall be construed as creating a presumption to seek pretrial detention.  Rather, this subsection provides uniform guidance to prosecutors on how to address a defense argument that pretrial detention cannot be ordered as a matter of law if any condition expressly authorized by N.J.S.A. 2A:162-17(b) would reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that defendant will not obstruct or attempt to obstruct the criminal justice process, even when that condition is not actually available.  See also Section 13 (provisions to ensure uniform interpretation of the Bail Reform Law by prosecutors).
[brief] CIVIL ACTION ON APPEAL FROM AN ORDER OF THE SUPERIOR COURT OF NEW JERSEY, LAW DIVISION, MONMOUTH COUNTY  SAT BELOW: HON. [...]  J.S.C. BRIEF FOR DEFENDANTS-RESPONDENTS  [...], ESQ.  (No. 007931991)  LAW OFFICES OF [...]  [...] [...] [...]  Attorneys for Defendants-Respondents  #  TABLE OF CONTENTS - BRIEF | Section | Page | |------------------------------------------------------------------------|------| | TABLE OF AUTHORITIES | iv | | PRELIMINARY STATEMENT | 1 | | PROCEDURAL HISTORY | 4 | | COUNTERSTATEMENT OF FACTS | 4 | | A. The parties | 4 | | B.
[brief] In April 2005, Appellant, [...], (hereafter [...], or [...]), purchased the property in question, which contained one large vacant structure (the "Longo Building") but was otherwise undeveloped.  (Pa221-Pa226.)  Before purchasing the property, [...] engaged [...] ("[...]") to prepare a preliminary site plan, grading plan and other plans for development of the property for retail sales.  (Pa383 at Par. 3).  Basically the Longo Building would be renovated to be used for retail stores or a single user.  It was on the right side of the property; the balance of the property would be developed by the construction of a multi-tenanted new strip mall perpendicular and to the left of the Longo Building.  (See, Preliminary Grading Plan, at Pa182)  On or about April 11, 2005, [...] submitted a preliminary site plan, including a grading plan, to [...]. (Pa105-120).  In 2005, [...] gave a copy of [...]’s preliminary plans to [...], owner of defendant/Respondent [...], (hereafter “[...]” or “[...]”) to obtain a rough idea of the cost of site preparation.  (Pa384 at ¶8)  From the first, it was understood that [...] would be responsible for obtaining a surveyor and performing grading in accordance with [...]’s plans (Id.).  During 2006 and 2007, [...] revised the site plan several times, and in April 2007, the [...] approved the plans (Pa383 at ¶6 & ¶7).
[brief] Section XX of that document, entitled “Violation of this Agreement,” provides for a broad indemnity to the Plaintiffs:  Any member who shall violate any of the terms, conditions, and provisions of this Agreement shall keep and save harmless the Company property and shall also indemnify the other members from any and all claims, demands, and action of every kind and nature whatsoever that may arise out of or by reason of such violation of any terms and conditions of this Agreement.  This broad language is not limited to third party claims, or by the nature or scope of the violation.  See Boyle v. Huff, 2023 N.J. Super. Unpub. LEXIS 85, at *17 (App. Div. Jan. 20, 2023).  It requires members to indemnify other members “from any and all claims . . . of every kind and nature whatsoever” arising from a violation. \(^{22}\)  The Plaintiffs prevailed on their MRL breach of contract claim.  (26T50:10 to 51:21).  Full indemnity is the contractually prescribed remedy when one member violates “any term[] and condition[]” of the agreement.  Section XX entitles Plaintiffs to indemnification from defendants for violating their rights, including attorneys’ fees, expenses, and costs of suit. \(^{23}\)  See, e.g., Metex Mfg. Corp. v. Manson, 2008 U.S. Dist. LEXIS 25107, at *30 (D.N.J. Mar. 28, 2008) (broad indemnity as to “any liability” arising from “any” claim, including claims by other \(^{22}\)  Though appellants argue (Db39) that the exclusion of an express reference to attorneys’ fees in Section XX warrants reversal, the provision’s language requires the breaching party to indemnify “the other members” (\(i.e.\), [...]) from any claim of any nature whatsoever that may arise out of the violation of the terms and conditions of the agreement.  The appellants’ cramped interpretation would render this provision surplusage because without it any violation of the agreement could be addressed by a simple breach of contract claim seeking compensatory damages.  Section XX’s indemnity is far broader.  \(^{23}\)  Appellants suggestion (Db32) that the trial court erred by considering Plaintiffs’ Section XX argument because it was raised on reply ignores the broader context of the application below.  More than a month passed between full briefing and argument.  The defendants could easily have sought leave to file a sur-reply, and the lower court had generally been solicitous of such requests in the past.  (27T57:1 to 58:6).  In any event, any error was harmless because the defendants raised both their procedural objection and substantive response to the Section XX issue at argument.  (27T36:12 to 38:10).  members, sufficient to warrant award of counsel fees).  The SPAs contain fee shifts too.
[brief] Proceedings under [...] 1T October 13, 2023  Motion Hearing before Hon. [...], P.J.F.P 2T March 9, 2020  Day 1 of Trial before Hon. [...], J.S.C. 3T  March 10, 2020  Day 2 of Trial before Hon. [...], J.S.C. 4T June 22, 2020  Trial Decision, Hon. [...], J.S.C.  PRELIMINARY STATEMENT
[brief] [...] Has Appealed as of Right and Does not Have to Meet the Requirements for Interlocutory Injunctive Relief.  [...] makes the misguided argument that [...]’s appeal is interlocutory and therefore “R. 4:2-2 [sic] states that an appeal can heard in order (a) to prevent irreparable harm and in the interests of justice. ”  Rb4-5.  The errors in [...]’s reasoning are legion.  Presumably, [...] meant to cite R. 2:2-2, which contains many of same words as [...]’s sentence, but only governs interlocutory appeals to the Supreme Court from interlocutory orders of the Appellate Division.  See R. 2:2-2 (“Appeals may be taken to the Supreme Court by its leave from interlocutory orders: (a) Of the Appellate Division when necessary to prevent irreparable injury…”).  In this case, [...] has appealed as of right and need not meet any special or heightened burden to obtain relief.  Appeals from orders compelling arbitration are appealable as of right.  R. 2:2-3(b)(8).  Moreover, it is well settled that the Appellate Division reviews such trial court decisions de novo and that appellants need not meet any heightened evidentiary burden to prevail.  See Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013) (“Orders compelling arbitration are deemed final for purposes of appeal.  We review those legal determinations de novo. ”) (internal citations omitted).  In any event, New Jersey courts have long recognized the inherent irreparable harm in forcing parties to arbitrate when no valid arbitration agreement exists.  Thus, R. 2:9-5(c) requires that arbitrations be stayed at the request of a party appealing an order compelling arbitration “unless the court find that exceptional circumstances warrant the arbitration to proceed while the appeal is pending. ”  See also Raritan Plaza I Associates, L.P. v. Cushman & Wakefield of New Jersey, Inc., 273 N.J. Super. 64, 70 (App. Div. 1994) (“we think it is obvious that the harm to a party would be per se irreparable if a court…were to compel a party to submit to an arbitrator’s…authority” when it had not agreed to do so).  The trial court entered such a stay here.  In short, this matter is properly before the Appellate Division for *de novo* review of the trial court’s decision compelling arbitration before a court-selected replacement arbitrator.
[brief] See Stafford v. Stafford Zoning Bd., 154 N.J. 62, 69 (1998).  In such matters, the burden of proof is on the party claiming the right to such nonconforming use.  See Janieri v. East Brunswick Zon. Bd., 192 N.J. Super. 15 (Law Div. 1983); Bonaventure Int. v. Spring Lake, 350 N.J. Super. 420, 427 (App.Div. 2000); Berkeley Sq., Asso. V. Zoning Bd. of Trenton, 410 N.J. Super. 255 (App.Div. 2009).  The Court can even take judicial notice of such a Board Resolution.  See Charlie Brown of Chatham v. Bd. of Adj., 202 N.J. Super. 312 (App.Div. 1985).  The Court’s refusal to accept in evidence the Zoning Board Resolution determining that the Lot 8 off-site parking facility/use on the School is not legal or valid, and never was established as a valid pre-existing nonconforming use, was clearly in error.
[brief] See Tynes v. St. Peter’s Medical Center, 408 N.J. Super. 159, 171-172, 173 (App. Div.), certif. denied, 200 N.J. 502 (2009) (affirming the denial of plaintiff’s motion to extend discovery to furnish an expert report under the “good cause” standard where, among other things, the trial court had extended discovery “numerous times” and “had permitted 1585 days for discovery”).
[brief] (4) the nature of the official's position.  Wrongdoing by high-level officials can impair the work of the department as a whole, including the functioning of the [IA] process; and (5) the individual's record of misconduct.  The public's interest in disclosure extends to all officers — regardless of rank — whose serious or repeated misconduct may pose a danger to the public.  (Citations omitted.)  The Rivera Court confirmed that a court should continue to assess the following factors established under Loigman in determining the interest in confidentiality: (1) the extent to which disclosure will impede agency functions by discouraging citizens from providing information to the government; (2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed; (3) the extent to which agency self-evaluation, program improvement, or other decision[ ]making will be chilled by disclosure; (4) the degree to which the information sought includes factual data as opposed to evaluative reports of policymakers; (5) whether any findings of public misconduct have been insufficiently corrected by remedial measures instituted by the investigative agency; and (6) whether any agency disciplinary or investigatory proceedings have arisen that may circumscribe the individual's asserted need for the materials.
[brief] Tiwana, 256 N.J. at 44 (quoting [...], 240 N.J. at 358).  In [...], the juvenile defendant’s mother was brought to the police station and given a chance to speak with [...] while officers were present in the room.  Ibid.  Police did not provide Miranda warnings before [...]’s mother asked him questions and he had made “critical admissions. ”  Ibid. (quoting [...], 240 N.J. at 357).  Thus, [...] was subject to “the ‘functional equivalent’ of express questioning while in custody” because the unwarned statements were made in the presence of officers, and it was reasonably likely that his mother would elicit incriminating responses from him.  *Ibid.* (quoting *[...]*, 240 N.J. at 357-58).  Notably, the *Tiwana* Court did not conclude that the analysis in *[...]* was limited to the context of a juvenile case.
[brief] With the oversight of the counsel, the plan, which started with a title search in 2016, culminated in the execution of a deed by [...] to [...] in October 2019 (the “October 2019 Deed”) for the sole purpose of quickly listing the Property for sale, all without the knowledge of the Property’s true owner, [...].  As outlined below, once the fraudulent transfer came to light in early 2020, [...] took immediate action to defend his interest in the Property by filing the subject lawsuit.  In response, in an effort to explain away their clearly fraudulent conduct, Defendants offered varying and contradicting theories in defense of their actions, none of which were supported by any credible evidence.  First, Defendants argued that the Property was, in fact, theirs all along and that [...], as the owner for over 20 years, maintained the Property, paid the taxes, paid the utilities, and collected rents.  Indeed, Defendants went so far as to assert that [...] had no business at the Property and should not have access to the Property.  When that theory became unsustainable in light of mountains of evidence establishing that [...], not [...], was the true owner, Defendants switched course.  Defendants’ second theory, which was not espoused until the eve of trial, argued that [...] was merely a property manager on behalf of the Defendants.  Not only did this theory directly contradict Defendants’ initial position that [...] took care of the Property for 20 years, but Defendants also failed to offer any evidence in support of their two contradicting theories.  By contrast, [...] offered documentary and testimonial evidence at trial reflecting all aspects of ownership and control of the Property for 20 years, including proofs of payment for mortgages, utilities, property taxes, insurance, and maintenance of the property, testimony and rent checks from his long-term tenant [...], testimony from his wife, [...] as to [...]’s ownership and control, testimony from his realtor/property manager, [...] and testimony and repair check from repairperson, [...].  After hearing testimony and reviewing evidence, Hon. [...], P.J.Ch. found “that all indicia of ownership supports the contention that [...] owned [...]. ”  Despite finding no basis for Defendants’ claim of ownership, the Court nevertheless dismissed [...]’s claims in fraud, conspiracy to commit fraud and fraudulent conveyance.
[brief] (Pa852).  The Trial Court found that the Objectors failed to provide any legal argument implicating important or novel constitutional questions.  (Pa852).  The Trial Court’s findings were sound and should not be disturbed for this “garden variety” action in lieu of prerogative writ by a private landowner.  In an attempt to excuse the late filing, the Objectors struggle to develop a due process argument surrounding the [...] Certificate of Appropriateness placed into evidence at the March 28, 2022 ZBA hearing which Objectors attended.  (Pa426).  The Landmarks Commission was not a party to the ZBA matter.  (Pa862-866).  Nor was the Landmarks Commission a party to the Objectors’ Complaint in Lieu of Prerogative Writs.  Assuming arguendo that the Objectors had no prior notice of the Certificate of Appropriateness, the Objectors acquired actual notice of the Certificate of Appropriateness on the evening of March 28, 2022 (at the very latest).  (Pa426).  As such, any challenge to the Certificate of Appropriateness would have been time barred as of May 12, 2022.  See N.J. Ct. R. 4:69-6 (a); (Pa852).  Having failed to timely seek any type of review of the Landmarks Commission Certificate of Appropriateness, left hanging is how the Objectors’ due process rights would be violated by the Trial Court’s refusal to exercise discretion to extend the period of time in which to file a complaint in lieu of prerogative writs challenging the ZBA’s Resolution of Approval granting a height variance.