ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] In this regard, it should be noted that in Printing Mart-Morristown v. Sharp Electronic Corporation, 116 N.J. 739, 772 (1987), the New Jersey Supreme Court stated:  If a complaint must be dismissed after it has been accorded the kind of meticulous and indulgent examination counselled in this opinion, then, barring any other impediment such as a statute of limitations (emphasis added), the dismissal should be without prejudice to a plaintiff’s filing of an amended complaint.  The plaintiff contests the court’s findings of fact based on information obtained from outside the proposed amended complaint itself in support of its decision that the proposed amended complaint should not be allowed because it would only be dismissed for failure to state a claim upon which relief can be granted.
[brief] [...]  Attorneys for Defendant-Respondent [...]  [...]  [...] [...]  [...]  On the Brief: [...], Esq.  Attorney ID# 016902009  Date Submitted: October 28, 2024  TABLE OF CONTENTS  TABLE OF CONTENTS ...........................................................................................................  I  PRELIMINARY STATEMENT .................................................................................................1  STATEMENT OF FACTS AND PROCEDURAL HISTORY .............................................4  ARGUMENT ..............................................................................................................................6  POINT I ..................................................................................................................................6  STANDARD OF REVIEW .......................................................................................................6
[brief] On the Brief Attorney ID: [...]  TABLE OF CONTENTS  LEGAL ARGUMENT Point I  THE CHANCERY DIVISION ERRED IN PROVIDING THE PETITIONER WITH A LIFE ESTATE IN THE DECEDENT’S HOME.  A. N.J.R.E. 608 Has No Application to the Instant Case.  1  B.  The Doctrine of Unclean Hands Barred the Petitioner From Obtaining Equitable Relief.  3 CONCLUSION  15  #  TABLE OF AUTHORITIES  ## Cases *Firemen’s Ins. v. National Union*, 387 N.J. Super. 434, 450 (App. Div. 2006)........2  *Haynes v. First National State Bank*, 87 N.J. 163, (1981) ..................................................3  *Henebema v. SJTA*, 430 N.J. Super. 485 (App. Div. 2013), aff’d 219 N.J. 481 (2014) .........................................................................................................................................................................................2  *In re Miles*, 176 N.J. 282 (2003) .........................................................................................................................3  *Vitale v. Schering-Plough Corp.*, 447 N.J. Super. 98, 123-124 (App. Div. 2016), aff’d as mod. 231 N.J. 234 (2017) .........................................................................................................................11  ## Other Authorities *Biunno, Current N.J. Rules of Evidence*, Comment 3 on N.J.R.E. 608 (2023)...........2  N.J.R.E. 608(a) .................................................................................................................................................................1 N.J.R.E. 701 .................................................................................................................................................................11  TRANSCRIPT REFERENCES “1T” refers to trial transcript dated August 29, 2022  “2T” refers to trial transcript dated August 30, 2022  “3T” refers to trial transcript dated August 31, 2022  “4T” refers to trial transcript dated September 1, 2022  “5T” refers to trial transcript dated September 2, 2022  “6T” refers to trial transcript dated September 19, 2022  1  The Respondent notes that the six motion transcripts labeled as “1T” through “6T” in the Petitioner’s brief are irrelevant to the appeal.
[brief] Pa149.  This is a medical malpractice case where Plaintiff claims, *inter alias*, that he suffered neuropsychological impairment as one component of alleged injury.  Pa1.  Defendants denied all allegations contained in Plaintiff’s complaint by way of Answer filed on July 16, 2019.  Pa5.  Plaintiff chose to place his neuro-cognitive condition at issue in his attempt to maximize potential financial reward.  In support of his claims for neuropsychologic damages, Plaintiff was evaluated by multiple Plaintiffs’ experts without ever giving Defendants notice of the evaluations let alone an opportunity to record same.  Pa21-26.  In response, Defendants requested that Plaintiff submit to a neuropsychologic evaluation with a highly esteemed --- Due to the intertwined nature of the relevant facts with the procedural history, we have combined them.
[brief] After recognizing a need to determine both the hourly rate and the amount of hours spent were reasonable, the trial court made no determination that the amount of time spent - 72 hours by six (6) different attorneys - on a motion to enforce a settlement agreement was reasonable, because it was not, especially when [...] claimed it was clear cut that the Township and Board breached the express terms of the Settlement Agreement.  The court proceeded to grant the full amount of fees sought by [...] after its admitted overstepping and found that the fees were reasonable based on the representations of [...]’s counsel.  Since the Court did not find that the Settlement Agreement was breached and the PW relief was not based on the terms of the Settlement Agreement, there was no basis for entry of an award of fees.  Moreover, the applicant did not sustain its burden under R. 4:42-9 and, thus, the award should be reversed.
[brief] D36, ¶ 91-97 with Exs. J (Da119), K (Da131), L (Da141), M (Da143), N (Da145).  All of the links to Plaintiff’s clients’ victories improperly imply that [...], and not [...], worked to obtain the legal victory in the case.  This is misleading to anyone visiting the site, injurious to Plaintiff, and especially egregious since [...] did not litigate cases at all during this time, and was not involved in any way with Plaintiff’s cases.  Da36, ¶ 98.  Moreover, shortly after Plaintiff’s termination, Defendants hastily sent vague and ambiguous letters to Plaintiff’s and the Firm’s clients, in violation of RPC 1.4.  In particular, those letters sent in Spanish (as many of the Firm’s clients are Spanish speaking), despite claiming to give the client a choice of counsel, instruct the client to sign the top line indicating they will remain with the Firm.  Da36, ¶ 99.  Plaintiff’s name is not mentioned as an option on the signature page for the clients to consider at all, nor is contact information given for Plaintiff.  Da36, ¶ 100, with Da148.  Indeed, several clients have contacted Plaintiff and indicated their desire to keep their files with him, and further advised that the electronic version sent to them only gave a DocuSign option to remain with [...] Law.  Da36, ¶ 101.  Defendants’ service of these letters and their content violate RPC 1.4, which requires a lawyer to keep a client both “reasonably informed about the status of” the client's matter and provide the client with enough information “to permit the client to make informed decisions regarding the representation.
[brief] iii.  Count One fails to state a claim for a CEPA violation because N.J.A.C. § 10:44A-2.7(a) cannot provide the basis for a “reasonable belief” that Defendants were violating a law, rule, regulation or public policy.  Plaintiff alleges that Direct Support Professionals (“DSPs”) at [...] routinely complained about not being properly trained, that the training they receive is limited to watching videos, and that they did not know how to perform tasks such as testing an individual’s blood sugar, a task that they are responsible for.  (PA000008 at ¶ 29-31)  These facts, Plaintiff alleges, formed her reasonable belief that Defendants were in violation of N.J.A.C. § provides that:  Basic staff training programs shall either be offered by the Division, or provided by the licensee after obtaining approval from the Division, to ensure staff competency.  Within 120 days of employment, each employee shall successfully complete New Jersey Pre-Service Training that shall address, at a minimum: 1. Overview of developmental disabilities; 2. Medication training; 3. Preventing abuse and neglect; 4. American Red Cross Standard First Aid Training (and have a valid certificate on file); and 5. Cardiopulmonary resuscitation training (and have a valid certificate on file).  Again, none of the facts alleged by Plaintiff correspond to the regulations she contends formed the basis of her reasonable belief that Defendants were violating the law.  Plaintiff does not allege that DSPs were not trained in any of the five categories listed, nor does N.J.A.C. § 1044 A-2.7(a) state that watching videos is an insufficient training method.  Further, while Plaintiff contends that DSPs routinely complained about not being properly trained, absent from her allegations are facts demonstrating that any of these complaints came from employees over the 120-day limit or that any of these complaints pertained to the five categories listed in N.J.A.C. § 1044 A-2.7(a).  Plainly, the authority provided by Plaintiff does not “closely relate” to the complained-of conduct in her Complaint.  Once more, [...] correctly analyzed whether a close relationship exists between Appellant’s complained-of conduct and the regulation she cites, finding that the regulation cited by the plaintiff does not comport with the specific facts she presents as the basis for her reasonable belief in the defendants' violation of the law.  The plaintiff's claims do not assert that DSPs were inadequately trained in the five specific categories outlined in N.J.A.C. § 10:44A-2.7(a) nor does the regulation explicitly address the suitability of video-based training methods.  Furthermore, the plaintiff's allegations lack evidence to show that any of these complaints extended beyond the 120-day limit.  (PA000091)  As the lower court’s application of the caselaw to Plaintiff’s Complaint was sound, Appellees urge this Court to hold that N.J.A.C. § 1044 A-2.7(a) could not have provided Plaintiff with a reasonable belief that Defendants were violating the law.  B.
[brief] …  The court cannot supplant the local legislature’s discretion with its own opinion of alternative methods. ….”  Gardens v. Passaic, 130 N.J. Super. 369, 379 (Law Div. 1974), aff’d o.b., sub nom., Iafelice v. Passaic, 141 N.J. Super. 436 (App. Div. 1976) (citation omitted).  In assessing a challenge to a redevelopment plan, a court’s review of the record is “not merely to inquire whether there are legitimate bases for differing opinions, but in the context of whether the objectors have produced enough facts to raise a possibility that the legislative determination was clearly unrelated to valid municipal concerns and thus arbitrary, capricious or illegal. ”  Downtown, 242 N.J. Super. at 338, 340 (questioning “wisdom” of redevelopment plan insufficient).  Thus, arguing for alternative or even better options or otherwise disagreeing with the Governing Body’s decision to adopt a Redevelopment Plan cannot, as a matter of law, be a basis to overturn that decision.  Appellants do not even attempt to satisfy the arbitrary, capricious and unreasonable standard required to invalidate the Governing Body’s action.
[brief] This appeal concerns the enforceability of a contract that contained two conflicting indemnity provisions.  Plaintiff, [...], sued defendant/appellant, [...] (“[...]”), and defendant/respondent, [...] (“[...]”), for bodily injuries that he sustained in a slip-and-fall accident on [...]’s premises.  He alleged that defendants failed to remove snow and ice properly, which caused him to fall.  [...] contracted with [...] to provide snow-removal services for those premises.  The trial court granted summary judgment to [...], ruling that its snow-removal contract required [...] to indemnify [...] for the latter’s own negligence.  [...] then settled plaintiff’s claims but preserved its right to appeal the grant of summary judgment.  The grant of summary judgment was reversible error, because the contract did not expressly require [...] to indemnify [...] for its own negligence.  Specifically, the contract, which [...] drafted, contained two indemnity provisions.  The provision entitled “Indemnity” contained mutual indemnity obligations.  It required [...] to indemnify [...] for losses that occurred while [...] was on [...]’s premises.  It also required [...] to indemnify [...] for acts or omissions of [...] and its agents other than [...].  However, that provision did not require indemnification for either party’s own negligence.  The other indemnity provision required [...] to indemnify [...] for losses arising out of the use of [...]’s property, “whether or not” that loss arose out of the negligence of [...], [...], or others, without specifically requiring indemnity for Double O Landscaping’s own negligence.  [...]’s contract did not contain the bright-line specificity that both the Supreme Court and the Appellate Division require to enforce indemnification for a party’s own negligence.  Further, the inclusion of two inconsistent indemnity provisions rendered the contract ambiguous and thus unenforceable regarding indemnification for a party’s own negligence.
[brief] 2 State v. Boczar, 863 N.E.2d 155 (Ohio 2007) .............................................................................................  7 State v. Clawans, 38 N.J. 162 (1962) .............................................................................................................. 4, 9 State v. Gibson, 219 N.J. 227 (2014) .............................................................................................................  5 State v. Hill, 199 N.J. 545 (2009)  .............................................................................................................  9  State v. Homan, 732 N.E.2d 952 (Ohio 2000) ...............................................................................................  7 State v. Kuropchak, 221 N.J. 368 (2015) .............................................................................................................  1, 2 State v. Locurto, 157 N.J. 463 (1999) .............................................................................................................  2 State v. Macon, 57 N.J. 325 (1971) .................................................................................................................  1 State v. Morton, 39 N.J. 512 (1963) .................................................................................................................  11  State v. Olenowski, 255 N.J. 529 (2023)  ..............................................................................................................  7 State v. Robertson, 228 N.J. 138 (2017) ..............................................................................................................  1, 6 Constitution U.S. Constitution, amend. VI ................................................................................................. passim U.S. Constitution, amend. XIV ...............................................................................................
[brief] The Board was aware of this.  The Board knew that the project was a grid-supply project.  The Board engaged in multiple rounds of discovery.  The Board had any number of opportunities to say “this project is grid-supply and you know that is not approvable. ”  The Board never did any of this.  There is no question that a State agency has an obligation to serve the public, and to do so in a fair, honest, and direct manner.
[brief] ”  State v. McGuire, 419 N.J. Super. 88, 144, 16 A.3d 411 (App. Div.) (quoting State v. Ross, 249 N.J. Super. 246, 250, 592 A.2d 291 (App. Div.), certif. denied, 126 N.J. 389, 599 A.2d 165 (1991)), certif. denied, 208 N.J. 335, 27 A.2d 948 (2011).  Having successfully moved before trial to exclude one of plaintiff’s two emergency department experts, defense counsel made an inaccurate statement to the jury that plaintiff was powerless to disprove because of the court’s ruling.  The trial court recognized the impropriety of the remark, but it concluded that it was “not critical” to the plaintiff’s case.  Plaintiff’s case was that a doctor performing up to the accepted standard of care would have considered an infection as a potential cause of [...]’s otherwise undiagnosed back and leg pain, that the doctor would have ordered additional tests to confirm or exclude that potential cause.  Defense counsel’s false assertion succinctly summarized the defense position that such a diagnosis as not warranted.  The remark struck at the core of the dispute.  It required a response, which plaintiff was prepared to give before the trial began.  The court should have reconsidered the limitation it placed on expert testimony and allowed plaintiff to present [...] as an expert witness.  His testimony would not have been a waste of time and would not have unduly delayed the trial.  168-69 (alteration in original).  The admission of plaintiff’s experts’ and other testimony regarding the [...]’s conclusions, in order to rebut and respond to plaintiff’s assertions that “the facility” [...] failed to comply with applicable statutes and regulations thus does not and cannot mandate a reversal.
[brief] 1T18:18-25; 19:1-19; 44:10-46:24; 47:1-48:9; 49:4-21; 50:11-14; 52:1-19; 53:1-25; 55:14-56:6; 58:15-25; 136:1-3; 206:22-25; 209:20-210:12; see also Plaintiff’s Exhibit 10 (P-456); Plaintiff’s Exhibit 12 (P-668).  Defendant certainly agreed that his children should go to college and acknowledged that he should be responsible for his children’s tuition, as any father should, as evidenced when he filled out financial aid forms for the children in high school, repeatedly requested [...]’s 1098-Ts to get credit for [...]’s tuition, participated in college visits for [...], and agreed with [...]’s choice of school.  1T:18:18-25; 44:10-46:24; 47:1-48:13; 59:1-25; 60:8-68:25; 206:22-25; see also Plaintiff’s Exhibit 10 (P-456); Plaintiff’s Exhibit 12 (P-668).  Defendant’s treatment of Plaintiff, as evidenced at the hearings and even in his opposition brief, also mirrors the way he treated his children.
[brief] Coalition, supra, at 310-13.  Thus, the legislative implementation of vast reforms to No Fault in 1998 under AICRA and the implementation of treatment protocols, appeals and mandatory arbitration was the legislature’s remedy to fraud and resultant increased premiums.  It did not intend to permit insurers to resort to civil litigation under a fifteen-year-old statute that would result in the congestion of the court system with No Fault disputes and run contrary to the long-standing public policy in favor of arbitration.  Civil Actions under NJIFPA and NJRICO were a failed experiment that AICRA intended to remedy.
[brief] See Borough of Wildwood Crest v. Smith, 210 N.J. Super. 127, 143-144 (App. Div. 1986); see also Restatement (Third) of Property – Servitudes - §2.6(2) (2000) (“The benefit of a servitude may be granted to a person who is not a party to the transaction that creates the servitude. ”); [...] and [...], The Law of Easements and Licenses in Land, at §3.9 (2021-22 Ed.) (listing cases in various jurisdictions rejecting the strict common law approach).  The [...]’ intention was expressly stated on the face of the [...], namely to provide the owners of the [...] access to their property along the existing roadway through both the [...] and [...].  [Supp.App. 5-7]  [...] joined issue in his reply brief:  Generally, an easement by reservation is created for the benefit of the grantor and not third parties.  See generally Leasehold Estates, Inc. v. Fulbro Holding Co., 47 N.J. Super. 534, 136 A.2d 423 (Super. Ct. App. Div. 1957).
[brief] “The validity of a claim that a pretrial identification is so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a violation of due process must be evaluated upon the totality of the circumstances surrounding the confrontation. ”  State v. Mustacchio, 109 N.J.Super. 257, 263, 263 A.2d 139 (App.Div.), aff'd, 57 N.J. 265, 271 A.2d 582 (1970).  An array depicting a range of facial characteristics is not suggestive and actually inures to the defendant's benefit.  *See Farrow*, supra, 61 N.J. at 452, 294 A.2d 873.  In *Farrow*, the Supreme Court stated, “[t]he other pictures were of men with both differing and similar facial characteristics, so as to afford a fair basis for choice. ”  *Ibid.*  Consequently, even in circumstances when there is a finding that the identification was suggestive, which was not the case here, the evidence should still be admitted if it is reasonable that the victim could, in fact, identify the defendant.
[brief] In looking specifically at the sentence [...] received, both elements of the certain persons offense—the possession of a firearm as well as the fact of the defendant’s prior conviction—were already accounted for in the twenty-year sentence for the robbery.  The element of possession of a firearm elevated the robbery from a second-degree to a first-degree, thereby increasing [...]’s sentencing exposure by 10 years.  N.J.S.A. 2C:15-1.  Additionally, the fact of [...]’s prior convictions was considered by the original sentencing court when the court found aggravating factor six and relied in large part on this factor to impose the maximum permissible sentence within the first-degree range—twenty-years.  Simmons, 2016 N.J. Super. Unpub. LEXIS 306 at *18.  (Da17)  Accordingly, defendant did not get a “free pass” for his certain persons conviction—his twenty-year sentence on the first-degree robbery was based both on his possession of a firearm as well as his prior criminal record.  For all these reasons, this Court should reject the trial court’s conclusion that a consecutive sentence is necessary to fulfill the legislative intent behind the certain persons statute and that a concurrent sentence would render the certain persons statute meaningless.  C.
[brief] Plaintiff Failed to Diligently Discover the True Identities of the Fictitious Defendants.  Plaintiff failed to act with the required due diligence to satisfy R. 4:26-4.  “In determining whether a plaintiff has acted with due diligence in substituting the true name of a fictitiously identified defendant, a crucial factor is whether the defendant has been prejudiced by the delay in its identification .  . .  ”  Claypotch v. Heller, Inc., 360 N.J. Super. 472, 480 (App. Div. 2003).  [...] was not joined to the action until May 17, 2019, nearly four years after plaintiff’s accident occurred.  Plaintiff has not supplied any rational basis for this delay, which practically doubled the time permitted pursuant to the governing two-year statute of limitations.  As a result, [...] was not given the opportunity to develop the evidence surrounding plaintiff’s claim in a timely manner and only had the opportunity to do so well after the statute of limitations expired.