ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Further, [...] identified controlling Appellate Division precedent holding that the majority of costs sought by [...] – for expert fees and depositions – are not recoverable under New Jersey’s Court Rules.  See Velli, 257 N.J. Super. 308, 312 (“It has been clear since 1985 that the controlling cases permitted counsel fees but barred recovery of expert witness fees [.].”); Helton, 205 N.J. Super. 196, 201 (App. Div. 1985) (“We do not regard expert witness fees as part of the attorney’s out-of-pocket expenses”, court stated recoverable costs are limited to “reasonable photocopying, paralegal expenses, and travel and telephone costs.  . . .  As a general rule, witness expenses have been held not to fall within that category. ”)  The court did not consider those Appellate Division cases, and instead followed a single Law Division case, Bung’s Bar & Grille, Inc. v. Twp. Council of Florence Twp., 206 N.J. Super. 432 (Law. Div. 1985).
[brief] [...] argues that [...] misstates this Court’s conclusion in Englert v. The Home Depot, 389 N.J. Super. 44 (App. Div. 2006).  Unlike [...]’s assertions, it is clear that this Court, in Englert, took issue with the phrase “to the extent”, which was present in the indemnification before this Court in Englert, but not here.  The Englert Court explained the problem with “to the extent” phrase as follows:  In the absence of the “to the extent” phrase in Article 11, the “regardless of” phrase could be interpreted to require [...] to indemnify [...] for its own negligence even if [...] was not at fault at all, as long as [...] was not the “sole” cause of damages.  See N.J.S.A. 2A:40A–1.  The “to the extent” phrase in Article 11 is itself subject to differing interpretations.  “To the extent” can be read to mean “if”; that is, [...] is required to indemnify [...] only “if” [...] is also found negligent.  Under that reading, “to the extent” is not inconsistent with complete indemnification of [...], even for its own negligence, as long as [...] is also negligent “to [some] extent. ”  But the phrase also can be read to require [...] to indemnify [...] only “to the extent” of [...]'s (or its sub-contractors') share of fault.  Neither the “regardless of” phrase nor the “to the extent” phrase answers the question whether such indemnification would include [...]'s own share of fault.  [Id. at 56](emphasis added).  Clearly, the “to the extent” phrase is the portion of the provision that is “subject to differing interpretations”, and “[i]n the absence” of “to the extent”, the “regardless of” phrase could be interpreted as an attempt to comply with N.J.S.A. 2A:40A-1.  In other words, “to the extent” is problematic with or without “regardless of. ”  That reading of Englert is consistent with this State’s published caselaw on the subject.  See, Leitao, 301 N.J. Super. at 191; Estate of D’Avila, 442 N.J. Super. at 114.  Plainly, the subcontract complied with Englert, Azurak, and the other New Jersey caselaw on the subject.  The trial court’s finding of ambiguity is completely opposed to said caselaw, and as such should be reversed.
[brief] Section II of the Legal Argument and Conclusion portion of the Decision is entitled “Appellant’s Substance Use,” and is devoted to [...]’s alleged substance abuse.  (Pa46).  The ALJ made several findings to the effect that [...]’s alleged drug abuse justified his termination.  The final paragraph of Section II states:  I  **FIND** that appellant’s history of opioid and alcohol abuse indicated that he used poor judgment and displayed a lack of truthfulness.  I  **FIND** that appellant’s numerous doctors, pharmacies and prescriptions, and his untruthfulness regarding his prescriptions and opioid use, indicated that appellant had been abusing prescription drugs, and in a manner that could affect his judgment and performance, while conducting his job duties as a [...].  I  **CONCLUDE** that appellant’s use and abuse of prescription drugs showed that he engaged in misconduct as a police officer under N.J.S.A. 40A:14-147, and displayed conduct unbecoming of a public employee, pursuant to N.J.A.C. 4A:2-2.3(a)(6).  I  FIND that appellant’s daily use of high doses of opioids put himself at risk as well as members of the public whom appellant was sworn to protect, and CONCLUDE that this behavior constituted neglect of duty under N.J.A.C. 4A:2-2.3(a)(7), and Other Sufficient Cause pursuant to N.J. A.C. 4A:2-2.3(11).  Decision at p.39.  (Pa50).  Crucially, the Department initially charged [...] with intoxication while on duty, but withdrew all such charges prior to the hearing for lack of evidence.  (T1 9:15-18; T1 11:4-12).  The ALJ’s findings regarding [...]’s alleged substance abuse do not correspond to any of the charges or specifications levied against [...] in the PNDA, and are not supported by the facts in the hearing record.  The ALJ’s opinions as to [...]’s alleged substance abuse infected the entire decision sustaining the discipline against [...].  There is no competent evidence that [...] abused his medication.  [...] and [...] confirmed that there was nothing illegal or improper about the fact that [...] had been prescribed medication for pain.  (T1 164:8-14; T2 52:3-6, 67:5-68:1).  There is no competent evidence that [...] filled any prescription other than as prescribed by his doctor, or that [...] abused his medication in any manner.  (T1 167:8-11; T5 102:20-103:17).  There is no competent evidence that [...] ever shared his prescribed medication with anyone else.  (T1 164:8-165:5).  There is no competent evidence that [...] ever took the medication while on duty or was impaired while at work.  (T4 104:17-19).  [...] never tested positive at a random or scheduled Departmental drug test, which were administered periodically while [...] was working.  (T1 161:19-23; T4 149:12-150:5).  Accordingly, any conclusions or determinations based upon the unsupported conclusion that [...] abused drugs or that such abuse affected his judgment or performance while on duty as a police officer must be rejected.  c.  The ALJ Erred in Accepting The Opinions of [...] After Explicitly Rejecting Him As An Expert Witness Relating to Opioid Abuse (Issue Raised specifically at T2 at 33:19-36:22, e.g., Pa48-Pa49; Raised in Exceptions Point III)
[directive] SUBJ: Guidelines for Extreme Risk Protective Orders  DATE: August 12, 2019  This Directive promulgates the attached Guidelines for Extreme Risk Protective Orders, effective September 2019, accordance with the "Extreme Risk Protective Order Act of 2018," in 1, codified at N.J.S.A. 2C:58-20 to -32 (hereafter the Act).  The legislative history indicates that the Act was modeled the process for a victim of domestic violence to obtain a restraining order on under the "Prevention of Domestic Violence Act of 1991" (N.J.S.A. 2C:25-17 et seq.), well as as similar laws other states.  Accordingly, the procedures for extreme risk protective orders are in similar to the procedures for domestic violence proceedings.  I have approved these Guidelines based the recommendations the "Response of the Supreme Court Criminal Practice on in Committee Proposed Rule 3:5B 'Extreme Risk Protective Orders' (May 2019)," with input 28, to from the Working Group Extreme Risk Protective Orders.  on  The Guidelines establish a civil process and procedures for a "petitioner" (defined as a member1 family or household or a law enforcement officer) to seek extreme risk protective an order.
[brief] Jefferson Loan Co., Inc. v. Session, 397 N.J. Super. 520 (App. Div. 2008)  ...........................................  20 Jubelt v. United Mortg. Bankers, Ltd., Civil Action No. 13-7150 (ES) (MAH), 2015 U.S. Dist. LEXIS 84595 (D.N.J. June 30, 2015)  ..................................................................  15  Langer v. Morris Plan Corp., 110 N.J.L. 186 (1933) ....................................................................  11  Lee v. Carter-Reed Co., L.L.C., 203 N.J. 496 (2010)  .......................................................................  20  Lemelledo v. Benefit Mgmt. Corp., 150 N.J. 255 (1997) ...................................................................... 9, 11, 12, 26  Lettenmaier v. Lube Connection, Inc., 162 N.J. 134 (1999) .....................................................................  20 McQueen v. Fein, Such, Kahn & Shepard, P.C., ESX-L-1439-22, 2023 N.J. Super. Unpub. LEXIS 640 (Law Div. April 26, 2023)
[brief] Pa000041-42.  The language of the promotional MOA is anticipatory.  Plaintiff members agreed to step up, receive promotions and perform heightened responsibilities commensurate with their promotions based on promises that they would be paid for the entire time performing those duties once the parties had negotiated a new promotional right for respective rank (“... with no increase in pay until a salary increase ... is ratified between the [...], the [...], and the [...], ... .  All increases shall be retroactive to the date of promotion. ”)  See supra (emphasis added).  To induce officers to accept a promotion with heightened responsibilities with the promise of future pay retroactive to the date of said promotion only to then yank back the promise after having received the benefit of the officers’ labor is the very definition of bad faith and should not be rewarded by this, or any, Court.  Count III, promissory estoppel, “is made up of four elements: (1) a clear and definite promise; (2) made with the expectation that the promisee will rely on it; (3) reasonable reliance; and (4) definite and substantial detriment."
[brief] **Azze v Hanover Ins. Co.,** 336 N.J. Super. 630 (App. Div. 2001) .........................................................2  **Gibson v Callaghan,** 158 N.J. 662, 669 (1999).............................................6  **Katchen v. Government Emples. Ins. Co. (GEICO),** 457 N.J. Super. 600 (App. Div. 2019) ..........................................................7  **Morrison v. American Intern. Ins. Co. of America,** 381 N.J. Super. 532 (App. Div. 2005) .........................................................1, 2, 6, 8  **Port Authority of New York v Ingram,** 232 N.J. Super.  401 (App. Div. 1989) .........................................................4, 7  **Skeete v Dorvius,** 368 N.J. Super. 311 (App. Div. 2004), *aff’d* 184 N.J. 5 (2005) .......................8  **Walkowitz v Royal Globe Ins. Co.,** 149 N.J. Super. 442.................................1  **Zacarias v Allstate Ins. Co.,** 168 N.J. 590, 595 (1999).................................6  ## Statutes **N.J.S.A. 17:28-1.1(d)** ..................................................................................1, 2 **N.J.S.A. 2A:14-1** ......................................................................................1, 2, 8
[brief] Specifically with regard to the February 3, 2015 initiation of discipline by [...], alleging “Insubordination and Conduct Unbecoming of a Public Employee” (Pa532-Pa537) a jury could find, contrary to the motion judge’s finding, that this was not brought for a legitimate reason because:  -  In a memo dated June 24, 2015, the same day as the Written Warning, [...] specifically and expressly denied he was insubordinate or otherwise engaged in the conduct alleged and explained that he followed instructions given to him.  (Pa514).  - The summary judgment record included proof that such a claim was false because [...] did follow instructions regarding the replacement of two topics on the agenda and none of the topic handouts appeared in the course packet.  (Pa670).  -  Further, formal service of the disciplinary charges initiated by [...] on February 3, 2015 was delayed until June 24, 2015 so that the employer could finalize its investigation of [...]’s February 3, 2015 complaint of discrimination and retaliation.  A jury could find this added to the circumstantial evidence that the disciplinary action was taken for a retaliatory purpose, i.e., delaying the disciplinary charges gave the employer time to declare that [...]’s retaliation complaint was unfounded so that it could proceed with the disciplinary action.
[brief] [...] was a supervisor of pupil personnel between 1997 and 2001 for the [...] (hereinafter “[...]”) (Aa58).  In July 2001 he was promoted to the position of Director of Pupil Personnel Services (Aa58).  However, in May 2004 he went on a medical leave of absence but never returned (Aa58).  During his tenure, [...] was assigned to perform additional duties which were not specifically included in his job descriptions (Aa58).  Nonetheless, the descriptions provided that [...] was expected to honor all other reasonable requests of the school administration (Aa58-59).  While still on his medical leave, [...] filed a lawsuit alleging discrimination based on his age and disability for having been denied compensation for the additional work (Aa59).  Once [...] turned 60 later that year, the [...] filed an involuntary application for [...]’s disability retirement (Aa59).  Two years later his lawsuit was settled for $200,000 (Aa59).  Thereunder, he was paid retroactively between 25% and 30% of his salary for each of the final three years of employment (Aa59).  In 2008 the [...] approved [...]’s disability retirement but rejected the salary increases (Aa60).  The case was heard by an administrative law judge who recommended approval of the salary increases (Aa60).  On final review the [...] reaffirmed its original denial of the salary increases (Aa60).  On appeal, the Appellate Division affirmed the Board’s final decision (Aa60-64).
[directive] N.J.S.A. 13:1L-23(d); N.J.S.A. 23:7- 9(b)(2).  Keep in mind that ORV violations that occur in State Parks and Forests and in Wildlife 7  N.J.S.A. 39:3C-34(c)(1) also imposes notice requirements before the ORV can be sold at auction.  7  Management Areas are civil penalty enforcement actions, which carry mandatory minimum penalties, and should not be downgraded to a municipal ordinance violation to secure a plea agreement in municipal court.  See Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part VII cmt. (2022).  In no circumstance may a civil penalty violation be converted to a criminal or quasi- criminal municipal ordinance violation as part of a plea agreement.
[brief] The Applicant's expert raised the issue of traffic and parking problems associated with the increased density, and he 'addressed' the issue by ignoring the loss of parking on the vacant lot.  The Applicant’s expert was not qualified as a traffic expert and therefore, the failure of the Applicant to call a qualified traffic expert to provide testimony in support of the Application which should have directly addressed the “traffic and parking problems” issue raised by the Defendant/Appellant’s, Planning Expert leaves the Board with no testimony on that issue and therefore the approval granted by the Board and upheld on  Appeal by the Court below should have been denied based on the obvious lack of sufficient proof on the issue.  REPLY TO LEGAL ARGUMENT
[brief] The enforcement of that subpoena was the subject of motion practice which was argued before the Honorable [...], J.S.C. on June 19, 2023.  While Judge Sceusi vacated the prior Order seeking to enforce litigant’s rights, he denied [...] request to quash the subpoena and ruled that:  Here, Arbitration Forums represents there are approximately 150 Medpay arbitration claims filed by [...] and their associated companies during the period that the arbitrations forming the underlying basis for this action were pending.  As Defendant argues, those 150 arbitration filings are relevant to Defendant’s position in this matter for at least three reasons.  First, Defendant argues, and the Court agrees, that the content of the arbitration filings may in fact be sufficient to support a claim for judicial or equitable estoppel against [...], as their prior positions could arguably bar them from their current position.  Second, [...]’s arbitration arguments may be persuasive in supporting Defendant’s argument that the Medpay claims are recoverable in New Jersey contrary to the present position that [...] is taking.  Third, and finally, the content and results of those arbitrations may bolster [...]’s argument that the arbitrator’s decision as to the recoverability of Medpay in New Jersey is final and binding.
[brief] The Rodriguez matter is even more unrelated; there, [...] sued -- not represented -- [...].  Conversely, this matter involves allegations of stolen funds and defaulted loans.  (1a – 23a; 61a – 72a).  In fact, the dispute underlying [...]’s Complaint did not arise until 2022, while the other matters arose years earlier, with both the [...] and [...] matters arising sometime in late 2019 or early 2020.
[brief] POINT SIX  [Appeal of private right to a cause of action, no remedy, issues]  (Argued at Pa378 – Pa380)  To determine whether there is an implied private right to a cause of action, there also must be a private remedy.  Courts cannot infer a private right to a cause of action unless a private remedy exists.  The statute that [...] seeks relief under, N.J.S.A. 18A:7F-9(e)(3), does not include a private remedy.  Hence, without a private remedy, the court cannot infer that [...] has an implied private right to a cause of action to sue the Board in Superior Court, requiring the dismissal of the Counterclaim.  In the Open Public Records Act, New Jersey Tort Claims Act, and New Jersey Law Against Discrimination examples cited earlier, the Legislature provided specific remedies for plaintiffs suing public entities.  These include pain and suffering damages, punitive damages, attorneys’ fees, etc.  As it relates to public entities funded by taxpayer dollars, the Legislature is prescriptive on the types of remedies available to litigants suing the public entity.  But no such private remedies exist for violations of N.J.S.A. 18A:7F-9.  In analyzing whether a court may infer that the Legislature created an implied right to a private cause of action, the courts look to whether there is a private remedy in addition to the private right.
[brief] To be clear, the United States Constitution does not require schools to inform parents if they merely have a suspicion—or even direct knowledge—that their children are asserting a transgender identity (or, for that matter, any identity or orientation).  Thus, this case is not, as the State argued below, about “outing” LGBTQ+ children.  ACa60.  Instead, this case is about whether schools must involve parents before schools take the affirmative step of socially transitioning their children.  Under the United States Constitution, they must.
[brief] Orner, 419 N.J. Super. at 437 (denying motion to vacate an allegedly void judgment as untimely).  Indeed, courts must deny a motion to vacate even where a defendant alleges it was not served with the underlying pleadings, if the motion is not brought within a reasonable time.  *Russo*, 334 N.J. Super. At 353 (denying defendant’s motion to vacate the default judgment as not made within a reasonable time because the motion was made six years after the entry of the default judgment and the record indicates that defendant was aware of the action and the judgment entered against him); *Garza v. Paone*, 44 N.J. Super. 553, 557-559 (1957) (“the mere fact that the judgment may be regarded as void for lack of personal jurisdiction will not automatically authorize a court to relieve a party from its operation on motion.
[brief] ”  City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010) (citations omitted).  The review de novo but the Court applies the same standard as the trial court.  Lapidoth v. Telcordia Tech., Inc., 420 N.J. Super. 411, 417 (App. Div.), certif. denied, 208 N.J. 600 (2011); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).  When reviewing a summary judgment motion, a court must determine whether the party opposing the motion has demonstrated the existence of disputed material facts.
[brief] the letter’s time-barred debt disclosure was confusing in its explanation as to when and how the statute of limitations could be restarted through a debt payment, wrongly suggesting the consumer could face the prospect a potential collections lawsuit.  *Id.*, at 32.⁸  In analyzing whether a communication violates the FDCPA, “courts apply an objective standard based on the ‘least sophisticated consumer. ’”  *Clomon v. Jackson*, 988 F.2d 1314, 1318 (2d Cir. 1993).  Accord, *Graziano v. Harrison*, 950 F.2d 107, 111 (3d Cir. 1991); *Kaymark v. Bank of Am.*, 783 F.3d 168, 174 (3d Cir. 2015).  That is, courts “focus on whether a debt collector’s statement in a communication to a debtor would deceive or mislead the least sophisticated debtor. ”  *Jensen v. Pressler & Pressler*, 791 F.3d 413, 420 (3d Cir. 2015).  “The basic purpose of the least-sophisticated consumer standard is to ensure that the FDCPA protects all consumers, the gullible as well as the --- ⁸
[brief] ”  Morgan, 225 N.J. at 295.  This contract has an unambiguous delegation clause.  But Plaintiffs never specifically challenged the delegation clause below, and they cannot do so now.  See Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 73–74 (2010).  Even if they had, such challenge would fail because the delegation clause itself (in addition to other terms in the Agreement) makes clear that courts and arbitration are mutually exclusive.  (See Da84 (“Only an arbitrator, and not any federal, state, or local court . . . ” can resolve threshold issues of arbitrability.) (emphasis added). )  It is therefore the arbitrator, not the court, who must determine any threshold questions such as the enforceability of the Agreement under Atalese and [...]’s third-party-beneficiary status.³ ³
[brief] This presumption can be overcome only by proofs that preclude the possibility that there could have been any set of facts known to the legislative body … [that] would rationally support a conclusion that the enactment is in the public interest.  Hamilton Park Gardens v. West Orange Township Council, 68 N.J. 543, 564-565 (1975)(citations omitted).  To overcome the presumption of validity, the party attacking an ordinance amending a redevelopment plan must show that it is arbitrary and capricious.  Powerhouse Arts District, supra, 413 N.J. Super. at 332, 335.
[brief] What occurred is last Thursday, when we broke in the afternoon break, where you went into the jury room, in an attempt to try to get us moving and get everybody in place as quickly as I could, I instructed [the prosecutor] to get [...], who was the last witness you heard Thursday, to bring her into the courtroom.  After she came into the courtroom and was seated in the front seat, in the pew, the defendants were brought into the courtroom by sheriff's officers in handcuffs, and they were seated at counsel table.  You also heard during the direct examination of [...] that she identified both defendants as her assailants when she testified from the witness stand.  She made an in-court identification.  The issue arose as to whether or not that identification that was made in court was suggested to her, not verbally, but by the observation she made of the defendants coming into the courtroom in handcuffs.