ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] A large portion of the Statement of Facts presented by Defendants is not directly relevant to the issues presented on appeal.  Instead Defendants repeat the factual allegations previously presented at Trial.  Whether Defendants choose not to address the issues raised on appeal is not Plaintiff’s decision, but we felt it noteworthy to point out.  Nevertheless, certain facts alleged by Defendants do further support Plaintiff’s arguments and we do wish to emphasize at least an example of that: particularly at the bottom of page 8 of the Defendant’s Brief, in footnote #4, that Defendants again point out that [...], a non-party to this action filed a Complaint and secured a Judgment against Plaintiff herein, [...].  Such allegations are not relevant to this action, and as clearly explained in Section H of Plaintiff’s Brief in chief (pages 46-48 therein) they are not probative, because Plaintiff already admitted that he negotiates his bills.  Clearly the prejudicial nature of that character evidence outweighs any probative value.  It is surprising that Defendants included those same claims in their Brief in this Appeal, but it is indicative that they continue to flout fair rules of evidence and suggests that they may not think they can prevail without resorting to such tactics.  A.  [...] should have recused herself due to bias stemming from an FBI complaint made by [...] against [...].
[brief] TABLE OF CONTENTS  Table of Authorities  ........................................................................................................ iii  Introduction .........................................................................................................................  1  I.  APPELLANT HAS PRODUCED EVIDENCE OF NEGLIGENCE CREATING A QUESTION FOR THE JURY ...........................................  1  II.  APPELLANT PRODUCED EVIDENCE THAT HIS INJURY WAS FORESEEABLE, CREATING A QUESTION FOR THE JURY ...............  3  III.  IT IS BLACK LETTER FELA LAW THAT A RAILROAD CAN BE LIABLE FOR THIRD PARTY  CRIMINAL ACTIONS .........................  4  Conclusion ..........................................................................................................................
[brief] As a preliminary matter, all of defendant’s after-the-fact “hearsay exception” arguments must fail because the hearsay was never offered into evidence and, axiomatically, was not admitted into evidence.  Defendant did not seek to admit the hearsay at trial because, admittedly, there was no one to provide a proper foundation for admission.  2T146:20-25.  Moreover, even arguendo if defendant had sought admission based on N.J.R.E. 803(c)(8), that rule has no application at bar.
[brief] On July 28, 2022, the State and City related defendants brazenly failed to appear at the virtual case management conference.  Due to the staleness of the original CY 2020 post-remand pre-answer and pre-discovery Rule 4:6-2(e) dismissal on the pleadings submissions, the trial court entered a supplemental case management order granting the parties leave to update and to supplement their original submissions.  (Pa77, Pa78, Pa216 to Pa302).  **The April 27, 2023 Virtual Motion Hearing**
[brief] [Id. at 286 (emphasis supplied).  Accord Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 459-60 (2009) (holding the Legislature in crafting N.J.S.A. 59:4-2 established a higher standard for the imposition of liability on a public entity by use of the requirement of palpably unreasonable conduct, trumping the ordinary negligence standard).]  The Appellate Division has also held that absent proof of actual or constructive notice of the dangerous condition, the public entity cannot have acted in a palpably unreasonable manner in failing to remedy it.  See Maslo v. City of Jersey City, 346 N.J. Super. 346, 350-51 (App. Div. 2002) (also holds that in applying the test set forth in N.J.S.A. 59:4-2, "a judge should consider the declared legislative policy which shaped the application and interpretation of the Act and the [Task Force] Commission’s Comment to [that statute] . . . that “recognize[d] the difficulties inherent in a public entity’s responsibility for maintaining vast amounts of public property”); Norris v. Borough of Leonia, 160 N.J. 427 (1999) (“the Legislature embrace[d] in the TCA . . . a standard that allows for limited or qualified liability measured only by palpably unreasonable conduct relating to the dangerous condition of improved public property”); Wooley v. Board of Chosen Freeholders, 218 N.J. Super. 56 (App. Div. 1987) (“The burden of proving that the action or inaction of the public entity is so unreasonable as to warrant a recovery under N.J.S.A. 59:4-2 rests with the plaintiff”). Like any other issue under the Tort Claims Act, whether a plaintiff can establish palpably unreasonable behavior in a given case is subject to the court’s assessment on a dispositive motion and whether it can be reasonably made under the evidence presented by the plaintiff.
[brief] XI.  APPELLANT NOT REQUIRED TO SPECIFICALLY PLEAD AFFIRMATIVE DEFENSE OF RECOUPMENT OR SET OFF  A.  Affirmative defense of recoupment or set-off not specifically mentioned in R. 4:5-4 pleading requirement.  In *JB Pool Mgmt., LLC v. Four Seasons*, 431 N.J. Super. 233, 250-251 (App. Div. 2013), the court held that because the Rules did not explicitly require that frustration of purpose be pleaded as an affirmative defense, it was “loathe” to declare that the defendant waived it.  The court found there was no precedent mandating such a pleading.  R. 4:5-4 does not mandate that recoupment or set-off shall be raised in the pleadings.  Respondent was unable to cite a single precedent in its Brief in which a credit card debtor was required to raise the affirmative defense of recoupment or set-off in the pleadings.
[brief] The proposed amici curiae adopt and incorporate by reference the Procedural History and Statement of Facts set forth in [...]’s (“[...]”) opening brief filed in this appeal.  LEGAL ARGUMENT I.  THE TRIAL COURT’S RULING DISRUPTS THE BALANCE  THE LEGISLATURE STRUCK IN ENACTING THE NEW JERSEY PRODUCT LIABILITY ACT BY ALLOWING A PLAINTIFF TO SURVIVE SUMMARY JUDGMENT WITHOUT ESTABLISHING A DEFECT IN THE SPECIFIC PRODUCT SHE RECEIVED  In denying [...]’s motion for summary judgment, the trial court rewrote basic principles of New Jersey’s product liability law and the summary judgment standard, usurped the Legislature’s role and the Supreme Court’s rule-making authority, and made it nearly impossible for a manufacturer to obtain summary judgment, regardless of the lack of evidence to show that the particular product at issue was defective.  The trial court’s ruling cannot stand.
[directive] Czy przyznaje sic, Pan(i) do przestc,pstwa domyslnie zagrozonego kar!l pozbawienia wolnosci, co oznacza niemal calkowit!l pewnosc, ze p6jdzie Pan(i) do wic,zienia stanowego?  9.  [Yes/Tak]  [No/Nie]  Are you presently on probation or parole?
[brief] TABLE OF JUDGMENT, ORDERS AND RULINGS  Trial Court  Order of Summary Judgment ........................................ Pa376  Trial Court’s Opinion on Summary Judgment .................................  Pa377  TABLE OF AUTHORITIES/CITATIONS  Statutes  Cited N.J.S. A. 59:1-1 .................................................................  1 N.J.S.A. 59:8-8 .................................................................  2 N.J.S.A. 2A:14-1 .................................................................  1 N.J.S.A. 40A:4-57 ...............................................................  4  Cases Cited Liberty Mutual Ins. Co. v. Lard, 186 N.J. 163 (2006)  ......................  5  PROCEDURAL HISTORY
[brief] See generally, Ferguson v. Skrupa, 372 U.S. 726, 732 (1963) (a “debt adjuster’s client may need advice as to the legality of the various claims against him, remedies existing under state laws governing debtor-creditor relationships, or provisions of the Bankruptcy Act – advice which a nonlawyer cannot lawfully give him”); accord N.J. Comm. Unauth. Prac. Op.  36, 136 N.J.L.J. 221 (Jan. 15, 2001).  In Op. 36, the [...] determined that “debt resolution” services, which included the review of complaints, evaluation of claims levied against a client, and communications with creditors’ attorneys “in an effort to compromise the claims,” constituted activity that “falls within the practice of law.
[brief] Even so, [...]’s subcontract provides that “[...] Building Corp. may, for any reason, modify the CCIP Coverages, discontinue the CCIP, or request that any Subcontractor of any tier withdraw from the CCIP upon thirty (30) days written notice. ”  Pa570.  In any event, [...] was still the insured party to whom liability coverage, and notice of any changes, were due.  Contrary to the strict notice requirements of New Jersey law, the CCIP documents, and the CCIP Policy, absolutely nothing has been produced by any party evidencing formal notice of cancellation sent to [...].  Depositions of representatives of each party confirmed this lack of notice: - [...] of [...] testified that [...] never sent a cancellation notice to [...].
[brief] (1T:171:6-18); **Appellant Unilaterally Transfers Money to [...]**  Appellant prepared and executed an intercompany loan agreement between [...] and [...] on January 27, 2016.  (“Konoba Loan”).  (Pa737:255:2-18; Da848).  Appellant is the sole owner of [...].  (Pa737:255:19-24).  Appellant prepared the Konoba Loan and executed it on behalf of [...] and Konoba.  (Pa737:256:7-12).  Appellant never discussed the Konoba Loan with anyone at [...] or [...] either before or after executing it.  (Pa737:256:25-257:7).  Appellant never discussed that money was owed to [...] pursuant to the Konoba Loan with anyone at [...] or [...].  (Pa738:259:8-12).  The Konoba Loan required Konoba to pay interest to [...]; Konoba never paid interest to [...].  (Pa738:259:22-260:2).  On January 17, 2020, a judgment was entered in favor of [...] and against Konoba for the outstanding amount under the Konoba Loan, $133,819.08.  (Da854).  **Appellant Deceives [...]’s Finance Committee**
[brief] See, e.g., Pearlman v. Reliance Ins. Co., 371 U.S. 132, 140 n.19, 83 S.Ct. 232, 9 L.Ed.2d 190 (1962) (“[S]uretyship is not insurance. ”).  However, the Court is inclined to believe that the application of the work-product doctrine to an insurer is analogous to the application of the doctrine to a surety.
[brief] See, e.g., Marmo, 478 N.J. Super. at 613 (finding waiver of arbitration after movant signed Rule 4:5-1 certification that no arbitration was pending or contemplated); Herrera, 2024 N.J. Super. Unpub. LEXIS 951, at *14-15 (“[T]he pleadings filed by defendants strongly support the finding of waiver …  More pointedly, their Rule 4:5-1(b)(2) certification explicitly told the court and opposing counsel that no arbitration was contemplated . . . [S]uch a serious inaccuracy in a Rule 4:5-1(b)(2) certification has the capacity to waste the public’s judicial resources as well as those of opposing counsel. ”  The clear certification to the contrary negates any implied cryptic meaning that [...] retroactively ascribes to its boilerplate objections above.  Indeed, [...] described [...]’s certification as “curious”.  Hearing Tr. 73:6-7.  [...] and this Court were both entitled to reasonably rely on [...]’s representations and [...]’s failure to provide clear and reasonable notice of an intention to arbitrate, if it even had one at that time, constitutes waiver.  As the Law Division correctly found, this factor weighs heavily against arbitration.
[brief] The trial court properly found defendant’s prior convictions admissible to impeach his credibility.  (6T 130:14-133:2).  “Pursuant to N.J.R.E. 609(a), a defendant's prior criminal conviction is admissible for impeachment purposes, unless the defense establishes, pursuant to N.J.R.E. 403, that its admission will be substantially more prejudicial than probative. ”  *State v. R.J.M.*, 453 N.J. Super. 261, 266 (App. Div. 2018).  However, “N.J.R.E. 609(b)(1) creates a presumption that a conviction more remote than ten years is inadmissible for impeachment purposes, unless the State carries the burden of proving ‘that its probative value outweighs its prejudicial effect. ’”  *Id.* at 266.  Specifically, pursuant to N.J.R.E. 609(b)(1):  [i]f, on the date the trial begins, more than ten years have passed since the witness'[s] conviction for a crime or release from confinement for it, whichever is later, then evidence of the conviction is admissible only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof.  In making that determination, “the court may consider” (i) whether there are intervening convictions for crimes or offenses, and if so, the number, nature, and seriousness of those crimes or offenses, (ii) whether the conviction involved a crime of dishonesty, lack of veracity or fraud, (iii) how remote the conviction is in time, (iv) the seriousness of the crime.  [N.J.R.E 609(b)(2). ]  Finally, “‘the court must then engage in the weighing process under (b)(1), to determine whether the State has carried its burden of proving that evidence of the remote conviction would not be more prejudicial than probative. ’”  State v. Hedgespeth, 464 N.J. Super. 421, 431 (App. Div. 2020) (quoting R.J.M., 453 N.J. Super. at 270), rev’d, 249 N.J. 234 (2021).  During the [...]/[...] hearing, the State moved to admit defendant’s prior convictions for third-degree possession of CDS with intent to distribute from 2007, and third-degree aggravated assault in 2011.
[directive] Any use of force by the officer that is formally determined or adjudicated (for example, by internal affairs or a grand jury) to have been excessive, unjustified, or unreasonable; (e) Domestic violence investigations in which the officer is an alleged subject; (f) An arrest of the officer, including on a driving under the influence charge; (g) Sexual harassment claims against the officer; (h) Vehicular collisions involving the officer that are formally determined to have been the fault of the officer; (i) A positive drug test by the officer; (j) Cases or arrests by the officer that are rejected or dismissed by a court; (k) Cases in which evidence obtained by an officer is suppressed by a court; (l) Insubordination by the officer; (m) Neglect of duty by the officer; (n) Unexcused absences by the officer; (o)
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[brief] On November 2, 2021, the victim, [...], was returning to his home after refereeing a basketball game around 10:00 p.m. [T18-15 to -20].  Defendant, [...], was outside her father’s home mowing his lawn.  [T18-18 to 19-3].  Mr. Ackles’ and [...], defendant’s father, were neighbors in [...].  [T18-25 to -26].  When Mr. Ackles got out of his car, defendant began yelling at Mr. Ackles.  She used profanity, racial epithets, and threw a trash bag at him.  [T20-4 to -25].  When Mr. Ackles stated that he did not know defendant, defendant told Mr. Ackles that she was going to kill him.  [T20-15 to -19].  She started playing rap music with violent lyrics and race-based expletives.  [T20-20 to -25].  Mr. Ackles repeated that he did not know her and she said, “Well, I’m going to kill your fucking ass. ”  [T20-24 to -25].  Mr. Ackles retreated to his house because he took her threats seriously and was fearful but he did not call the police.
[brief] He also testified there are less resources at night and that most C-Sections done at night have someone from the Neonatal Intensive Care Unit (NICU) available “to try to ensure that we are as safe as possible. ” (Pa290).  [...] confirmed his opinions were limited to the standard of care and he was not going to offer any opinions about the causation and damages aspect of the case because such opinions were beyond the scope of his expertise.  (Pa220; Pa229; Pa236).  [...], a pediatric neurologist, was Plaintiffs’ expert on proximate cause.
[brief] | | 4071-12401 | Draft Complaint prepared by [...] outside counsel attached to 4021-4021.  RFP 2 seeks specific communications between Plaintiffs and certain third parties, none of which are counsel.  RFP 4 seeks documents relating to the performance administration and termination of the Recompute MOA.  RFP 11 appears to seek communications sent to and from [...] and internal communications regarding the termination of the 2005 Recompute MOA.  These requests do not seek draft complaints related to this lawsuit.  Moreover, RFPs 17-25 request documents regarding specific allegations in the Complaint and not draft complaints in their entirety.  This document is not responsive to [...]'s RFPs 2, 4, 11, 17, 23, 24 or 25.  | | 4021-12604 | Draft Requests for Production of Documents to [...] prepared by [...] outside counsel attached to 4021-4021.  RFP 2 seeks specific communications between Plaintiffs and certain third parties, none of which are counsel.  RFP 4 seeks documents relating to the performance administration and termination of the Recompute MOA.  RFP 11 appears to seek communications sent to and from [...] and internal communications regarding the termination of the 2005 Recompute MOA.  These requests do not seek draft complaints related to this lawsuit.  Moreover, RFPs 17-25 request documents regarding specific allegations in the Complaint and not draft complaints in their entirety.  This document is not responsive to [...]'s RFPs 2, 4, 11, 17, 23, 24 or 25.  | 3.6
[brief] [Pa687 (Calderin Deposition) at 37:12-25 and Pa688 at 38:1-11 and at 40:23-25 and at 41:1-11; and Pa691-Pa703; and Pa704-Pa719].  [...] obtained Google Earth imagery of the premises.  [Pa687 (Calderin Deposition) at 37:12-25 and Pa688 at 38:1-11 and at 40:23-25 and at 41:1-11; and Pa691-Pa703; and Pa704-Pa719].  [...] obtained copies of police reports generated by the [...], regarding accidents at the premises prior to March 16, 2017.  [Pa687 (Calderin Deposition) at 37:12-25 and Pa688 at 38:1-11 and at 40:23-25 and at 41:1-11; and Pa691-Pa703; and Pa704-Pa719].  [...] issued a report, dated July 1, 2017, concerning his investigation of the alleged accident and discovery he had obtained as part of that investigation.
[brief] POINT III  THE CUMULATIVE EFFECT OF THE ERRORS REQUIRES REVERSAL.  (Not Raised Below).  Each error raised above independently warrants reversal.  Even if this Court does not find that any one error alone warrants a new trial, “the cumulative impact of the errors casts doubt on the fairness of defendant’s trial and on the propriety of the jury verdict that was the product of that trial. ”  State v. Jenewicz, 193 N.J. 440, 474 (2008).  Both errors affected whether the jury would convict [...] despite the lack of direct evidence to place him at the crime scene.  Although the State presented testimony about [...]’s alleged confession, the defense highlighted inconsistencies in the statements of [...] and [...] and argued to the jury that their testimony was unreliable due to Hedgespeth’s bias against [...].  Considered together, therefore, the aforementioned errors undermined [...]’s right to due process and a fair trial and warrant the reversal of all the convictions.  See State v. Gibson, 219 N.J. 227, 241 (2014) (“A single error or a combination of errors in a pre-trial proceeding or a trial or both may require an appellate court to reverse the conviction and to remand for a new trial. ”); U.S. Const. amends.  V, VI, XIV; N.J. Const. art. I, ¶¶ 1, 9, 10.  POINT IV
[brief] Respondent’s belief that the 6-year limitation period applied  Evidence on this record exists to suggest that even Respondent [...] believed and understood that the 6-year statutory limitations period applied to Appellant’s claim in light of the conflict.  Here, the subject accident occurred on January 10, 2018.  (50a).  Assuming arguendo that only a 4-year limitations period applied, Appellant’s UIM claim would have been time barred after January 10, 2022.  However, Respondent [...] made several settlement offers after January 10, 2022.  On February 24, 2023 – one year and one month after the 4-year anniversary of the accident – [...] offered $85,000 to resolve the UIM claim.  (141a).  On April 5, 2023 – one year and three months after the 4-year anniversary of the accident – [...] offered $100,000 to resolve the UIM claim.  (144a).  On May 23, 2023 – one year and four months after the 4-year anniversary of the accident – [...] renewed its offer to resolve the UIM claim for $100,000.  (147a).  Had Respondent believed there was no conflict and no necessitating reason for the policy to conform to state law, then Respondent would not have made any settlement offers after the 4-year contractual limitation period expired.  These settlement offers also corroborate Plaintiff’s reasonable expectations that the statutory six-year limits period applied to her pending UIM claim.  Amicus is aware that Respondent has argued that “assuming May 2, 2023 was the first date that Plaintiff learned Plaintiff-Appellant, [...], became aware of a claim for which coverage would apply, then Plaintiff-Appellant [...], had until May 2, 2023 to file a Complaint[.]”
[brief] Ledley v. William Penn Life Ins. Co., 138 N.J. 627, 636 (1995)...............8  State v Nasir, 355 N.J. Super 96, 106 (App. Div. 2002)..........................8,11  State v. Perini Corp., 221 N.J. 412, 425 (2015)....................................14
[brief] Id. at *2, *4.  The Commission made that determination despite the appellant’s claim that the “allegations against him were false and uncorroborated” and retaliatory, a claim he supplemented with written statements he gathered.  Id. at *3.  This court vacated the CSC’s decision and remanded the matter for consideration of whether it should be referred for a fact-finding hearing.  Id. at *9.  Remand was necessary because it was “clear from the limited record” that the appellant “directly disputed” the complainant’s “most damaging factual assertions. ”  Id. *8.  In the court’s view, to be “consistent with basic due process,” “the truth of those very crucial, competing factual assertions” could not be “decided on the papers. ”  Id. *8.  Indeed, the court found it “troubling in itself” that the determination may have been based on only a “summary of the investigation. ”  Id. at *8.  The court held that, “to the extent the Commission determined that a hearing was unnecessary, we find that decision arbitrary, capricious, and unsupported by the record on appeal. ”  Id. at *7.
[brief] Aa103-04.  The DEP also gave the applicant the opportunity to bifurcate the application, but noted that “[t]he benefit of issuing both the FHA and [freshwater wetlands] permits together is that it avoids any need for a future modification. ”  Ibid.  On October 3, the applicant notified DEP that it had chosen to bifurcate the application, and resubmitted accordingly.