ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [...], [...], and [...] have expended substantial sums in relation to [...]’s wrongful refusal to defend, and [...] and [...]’s wrongful refusal to indemnify, [...] in the Hood litigation, and were forced to prosecute this litigation to obtain defense and indemnity for [...].  As a result, they are owed attorneys’ fees and costs pursuant to this Rule.  The policy underlying Rule 4:42-9(a)(6) is “to discourage groundless disclaimers and to provide more equitably to an insured the benefits of the insurance contract without the necessity of obtaining a judicial determination that the insured, in fact, is entitled to such protection. ”  Sears Mortgage Corp. v. Rose, 134 N.J. 326, 356 (1993) (internal citations omitted).  The award of counsel fees and costs in such a case is equitable and just and accords with the purpose of the Rule to discourage groundless disclaimers by carriers by assessing against them the expenses incurred in enforcing coverage for their assureds.  Tooker, 136 N.J. Super. at 576.  As discussed above, [...] and [...]’s disclaimer was indeed groundless and falls within this category of practices that should be discouraged.  [...] and [...] (and [...]) are entitled to attorney’s fees and costs as successful claimants in pursing this litigation.  See, e.g., id. at 577 (upholding award of attorneys’ fees under Rule 4:42-9(a)(6) where insurer wrongfully refused to defend its insured: “It seems only fair and proper that the costs incurred by Allstate to compel Hartford to do that which it was legally obligated to do in the first place should fall upon Hartford. ”).  IV.
[brief] Litt v. Rutherford Rent Bd., 196 N.J. Super. 456 (Law. Div. 1984); B.H. Associates v. Brunder, 185 N.J. Super. 403, 449 (Law. Div. 1982); and Schwam v. Cedar Grove Twp., 9 N.J. Tax 406, 414 (1987), aff’d sub nom. Schwam v. Twp. of Cedar Grove Twp., 228 N.J. Super. 522 (App. Div. 1988).  One of the Board’s chief concerns was determining whether [...] sought to pass along increased taxes to [...] as a result of the condominium conversion in contravention to the TPA.  To answer this question, the Board needed to identify taxes assessed on the unit before the unit was converted to a condominium, and taxes assessed on the unit after it was converted to a condominium.  [...] failed to provide any insight whatsoever on this question.  Although [...] retained an expert to opine on this issue, the expert’s testimony proved useless.  Thus, [...] was unable to demonstrate whether or not taxes associated with this unit increased due to the conversion.
[brief] She was born in [...] in 1951, grew up on [...], and from 1956 through the mid-1960s attended [...] Schools.  Her home was a few blocks from the School/Synagogue site and she would regularly walk on [...].  She has always been a member of [...] and actively attended the Synagogue after it opened in December 1963.  After college, she lived elsewhere but visited her family home in [...] regularly.  Her father had been actively involved in the Synagogue's construction and opening.  She regularly observed vehicles of Synagogue attendees parked in the School's [...] lot and [...] courtyard in the period immediately after 1963 (7T6-3 to 53-1).  On cross-examination, [...] testified that in the 1960's the [...] courtyard area was gravel and was regularly used as a children's play/activity area.  There was no entry/curb cut on [...], and Synagogue attendees would drive over the curb and park haphazardly in the [...] courtyard.  In her observations, many drivers in [...] were haphazard and would park anywhere without regard to rules.  (7T54-6 to 82-20).  The Trial continued on January 30, 2020, with the Synagogue’s [...].
[brief] Page Decision and Order of the Honorable [...], denying Plaintiff’s Motion for Reconsideration, dated September 29, 2023  ..................Pa1 Statement of Reasons, dated September 29, 2023 ..............................................Pa3  Order of the Honorable [...] granting Defendants [...] and [...]’s Motion for Summary Judgment, dated July 17, 2023 ...........................................Pa13  Statement of Reasons, dated July 17, 2023 .............................................................Pa15  PRELIMINARY STATEMENT  Plaintiff  [...], by its administratrix [...] (“Plaintiff” or “Appellant”), submits this Reply Brief in support of the appeal from orders of July 17 and September 29, 2023 (the “Orders on Appeal”).  PROCEDURAL HISTORY
[brief] THE APPELLATE DIVISION SHOULD AFFIRM THE TRIAL COURT’S ORDER BECAUSE DEFENDANT FAILED TO ARTICULATE ANY COGNIZABLE BASIS FOR RECONSIDERATION.  The trial court properly denied Defendant’s motion for reconsideration because it failed to address the critical deficiencies from its earlier motion to reinstate. \(^1\)  Reconsideration is a matter “within the sound discretion of the Court, to be exercised in the interest of justice. ”  *D’Atria v. D’Atria*, 242 N.J. Super. 392, 401 (Ch. Div. 1990); see also *Cummings v. Bahr*, 295 N.J. Super. 374, 384 (App. Div. 1996).  Reconsideration should be used for those cases which “fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence. ”  *Pitney*  \(^1\)  In the trial court, Defendant couched his motion as a motion for reconsideration, but he relied upon R. 4:50-1 for his argument, which is the rule for requesting to vacate a prior judgment or final order.  Therefore, Defendant could not satisfy the standard for a motion for reconsideration because he failed to reference R. 4:49-2 and the proper test.  The trial court specifically noted these procedural deficiencies in its Order and Statement of Reasons dated June 7, 2024.  Da37-38.  Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015) (quoting D’Atria, supra, at 401).  Defendant’s motion was properly denied because, despite not referencing the applicable court rule, legal standard or following the procedural requirements, Defendant provided no availing substantive basis for reconsideration of the trial court’s Order.  Defendant could not point to any “palpably incorrect or irrational basis” for the Order denying his motion to reinstate his case, nor did Defendant articulate what evidence the trial court failed to consider or appreciate.  Just like the trial court noted in the Order and Statement of Reasons dated April 26, 2024 (the “April 2024 Order”), “Defendant’s motion fails to state with specificity the basis on which it is made, including a statement of the matters or controlling decisions that counsel believes the court has overlooked or as to which it has erred.
[directive] Siplemantè pou tout Deklarasyon ki pa Negosye Supplemental Plea Form for Non-Negotiated Pleas (Haitian Creole)  Fòm sa a fèt pou ranpli sèlman nan dosye kote akize a ap deklarel koupab daprè reprezantasyon jij la konsènan kisa santans maksimòm la ap ye.
[brief] The formula for calculating equalization aid under the SFRA carries with it certain critical characteristics to ensure sufficient funding for the provision of T&E.  Under the statute, each district’s need is represented by its Adequacy Budget, which is based on the particular demographic makeup of the district.  Abbott XX, 199 N.J. at 152; N.J.S.A. 18A:7F-44(d) and -53.  State aid, in turn, is calculated based on each district’s income and property wealth, so that funding under the formula is a shared responsibility of each district and the State.  Abbott XIX, 196 N.J. at 557; Abbott XX, 199 N.J. at 154-55; (Aa36-37).  And the SFRA applies the same funding principles to all districts; no district is supposed to get special treatment.  Abbott XX, 199 N.J. at 152, 173-74; N.J.S.A. 18A:7F-44(g).
[brief] A party must file opposition to a motion for summary judgment.  When such a motion is made, the opposing party “bears the affirmative burden of responding.  That burden is not optional and it cannot be satisfied by the presentation of incompetent or incomplete proofs. ”  *Polzo v. County of Essex*, 196 N.J. 569, 586 (2008) (citations omitted).  “By its plain language, Rule 4:46-2 dictates that a court should deny a summary judgment motion *only* where the party opposing the motion has come forward with evidence that creates a ‘genuine issue as to any material fact challenged. ’”  *Brill v. Guardian Life Ins. Co. of Am.*, 142 N.J. 520, 529 (1995).  “If the opposing party offers no affidavits or matter in opposition […] he [or she] will not be heard to complain if the court grants summary judgment, taking as true the statement of uncontradicted facts in the papers relied upon by the moving party[.]”  *Judson v. Peoples Bank & Trust Co.*, 17 N.J. 67, 75 (1954) (citations omitted).
[brief] (15T55:3).  [...] had surgery in June of 2017 and was cleared by Functional Capacity Exam and returned to work in October of 2017.  (15T57:21).  In and around the November 2017 timeframe, [...] and the Department experienced problems with the radios having issues with transmitting and receiving calls in the Police cars and in the portable radios.  (15T166:4,6,17).  [...] did not always use the radio when he got out to perform foot patrol property checks, whether through complacency or whether things were routine, he would sometimes go out of the car and not call it in.  (15T167:14,16).  [...] also went on foot patrol with other Officers in the Department.  (15T168:1).  [...] worked from November 2017 through March 27, 2019 and performed property checks the same way he had done them in the past.  (15T94:23; 15T95:3 - 96:23).  Prior to November 2020, no one from [...] told [...] that he was performing property checks in a fashion not acceptable to [...].
[brief] The process leading to the land exchange has involved significant community engagement, ensuring that the public's voice is heard and that the resulting benefits align with the community's desires and needs.  This transparent process builds trust in municipal decisions, fosters community support for public projects, and ensures that the outcomes of the exchange reflect the community's values and priorities.  5.  Economic Benefits  Beyond the immediate environmental and recreational benefits, the land exchange has the potential to positively impact the local economy.
[directive] Many of the court rules and statutes cited in the 2005 Bail Schedules and supplements thereto have since been amended and now focus primarily on “eligible defendants” under the Criminal Justice Reform Law, N.J.S.A. 2A:162-15 et seq., effective January 1, 2017.  The court rules and statutes cited in the new Bail Schedules promulgated by this directive provide guidance regarding whether or not the Bail Schedules will apply in various situations when initially setting bail or thereafter conducting bail reduction/bail review hearings.  It is strongly emphasized that the monetary ranges in the Bail Schedules continue to be advisory, not preset.  An individualized assessment of the defendant’s risk of flight/risk of failure to appear in court shall be conducted when considering or setting monetary bail.
[brief] Appellants [...] and [...] own the real property located at [...] (“27 Bayview”), which they purchased in September 2017.  (Pa418)  Their home is nearly identical in size as the Subject Structure at 2,385 square feet.  It is a non-contributing home within Monmouth Hills and built after the Subject Structure.  However, it expresses itself architecturally as a small mock Queen Ann Victorian with hipped dormers, doghouse dormers, and clad with cedar shake.  With few exceptions, all the homes in Monmouth Hills are either styled as either “colonials” or “mock Queen Anns.
[directive] [No/No]  3.  ¿Entiende que si el juez determina que su conducta se caracteriza por un patrón de comportamiento repetidor y compulsivo y usted no es un buen candidato para un tratamiento para delincuentes sexuales o si fuera o un buen candidato (que se beneficiaría de) dicho tratamiento pero no está dispuesto a participar en él, el juez lo sentenciará a un término de encarcelamiento que cumplirá en otra institución que no y incluirá ningún tratamiento para delincuentes sexuales en tal caso, no se le conmutará el tiempo por buena conducta ni recibirá créditos de trabajo por el tiempo cumplido en esa otra institución?  Do you understand if the court finds your conduct is characterized by a pattern of repetitive and compulsive behavior and you are not amenable to sex offender treatment or if you are amenable (will benefit from) but you are not willing to participate in such treatment, the court will sentence you to a term of incarceration to be served in another facility which will not provide for sex offender treatment and in such event, you will not receive commutation time for good behavior or earn work credits for time served in such other facility?  [Sí/Yes]
[directive] Actor, with purpose to harass another, engages in anonymous or offensive communications  Harassment  While in or subjects another to kicking or shoving or other offensive touching or threatens to do so, or Prison or on Parole or 2C:33-4(a-e) engages in alarming or such repeated conduct.  Fourth degree offense if the actor is in prison  Probation for an or on parole or probation for an indictable offense.  Otherwise, it is a petty disorderly persons  Petty Disorderly Indictable Offense
[brief] (Raised Below: Da60a (Order and Decision)  The Borough relies on its argument set forth in its Appellate Brief and responds to Respondents’ argument by stating any reference to the NCA is inappropriate for the reasons set forth above, but specifically because the trial court set forth a decision stating the NCA did not preempt Ordinance 17-2017 and that decision was not cross appealed by Plaintiffs.  Further, notwithstanding the above, Respondents’ reference to the NCA as discussed in the Krause matter misses the mark.  The NCA is a different statutory scheme than the HRA, and it sets forth entirely different law whereby a municipality can act under either.
[brief] A party may seek an order to compel discovery when an opposing party fails to respond to discovery requests or provides evasive or incomplete responses.  See Fed. R. Civ. P. 37(a).  “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. ”  Fed. R. Civ. P. 26(b)(1).  Relevant evidence includes “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. ”  Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).  To assist in producing responsive electronically stored information, parties frequently use keyword searches.  Keyword searches “have long been recognized as appropriate and helpful for ESI search and retrieval,” but “there are well-known limitations and risks associated with them. ”  Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260 (D. Md. 2008).  “Chief among [those limitations] is that such a search necessarily results in false positives (irrelevant documents flagged because they contain a search term) and false negatives (relevant documents not flagged since they do not contain a search term). ”  Makowski v. SmithAmundsen LLC, No. 08-C-6912, 2012 WL 1634832, at *1 (N.D. Ill. May 9, 2012).  As a result, “[e]lectronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI.
[brief] See In The Matter Of The Petition Of [...] for “Preferred” TREC Factor for Floating Photovoltaic Solar Pursuant to the Board’s Transition Incentive Order, Order, [...], [...], dated July 15, 2020, (080a).  Based upon this offer, [...] (“[...]” or “Petitioner”), filed a petition on February 16, 2021, seeking a TREC Factor of 1.0 for the [...].  This facility is a 22.5 MW grid-supply solar project, to be built upon an 81.5-acre pond on a sand mine in [...], New Jersey.  The project application included a report setting forth the costs and benefits of the project, showing the cost as being in excess of the costs for installation of non-residential ground mount solar, as well as describing the design and modeling.  This report developed support for a TREC factor of 1.1, and [...] in turn sought permission from the Board for a 1.0 TREC factor.
[brief] The trial court does not have subject matter jurisdiction over the Pinelands waiver or over the contents of [...]’s certified master plan.  This court should note:  Although the court does not have jurisdiction over the subject matter, it may have jurisdiction to determine the question whether it has jurisdiction over the subject matter and to bind the parties by its determination, with the result that thereafter they are precluded from successfully contending that the court had no jurisdiction over the subject matter.  Res Judicata and Jurisdiction Over the Subject Matter, 18 Wash. & Lee L. Rev. 290 (1961), at 294.  Plaintiff asserts defendant and the trial court were bound by the Pinelands Act and the facts found to establish the waiver issued under its authority.  The arbitrary refusal to determine the question of whether the defendant and/or the trial court had jurisdiction over the Pinelands waiver allowed them to ignore the legal conclusion mandated by these facts.  It also allowed Defendant and the trial court to ignore established policy of the City of [...] in its certified ordinance.  In its review, the trial judge ignored defendant’s misstep “as practicable” aspect of Ordinance 380-33, sections 6 and 7, and Ordinance 380-35D, and the waiver.  By arbitrarily enforcing the front yard setback standard and disregarding the incorporation of the waiver and policy in the master plan, they have effectively altered the subject matter, over which they have no jurisdiction.  This prevents interested parties from obtaining the relief anticipated by the established public policies.  d.
[brief] Plaintiff, [...], fell while traversing a public sidewalk on the property of defendants, Calixto and [...], that was unlevel, covered with ice and snow and hazardous.  Defendants have acknowledged that the improper slope of the sidewalk was known to them and, in fact, was created by them when they had the sidewalk built.  The presence of ice and snow also is undisputed.  Those three hazards combined to create a hazardous condition that caused plaintiff’s fall and injuries.  Nonetheless, the trial court granted summary judgment to defendants.
[brief] As to the testimony of Haddad’s principals, [...] and [...], the Law Division observed that their testimony was “I really don’t know what it was for,” (1T58:16), with the exception of [...]’s predictably rote statement that “it was for piping. ”  (1T57:18-19)  This was not enough, as there has to be evidence of damages, . . .not a complete proof, but some evidence.  And instead, we have checks with absolutely nothing more.  There’s no choice . . . but to rule that there is . . . no evidence of what the damages are that they actually in fact sustained.  . . .  And all I needed was some proof of what they purchased, but there was no such evidence.  So for that reason, I have no choice but to dismiss the complaint because there is no evidence, no evidence, sufficient to move forward on this.
[directive] In cases where the officer’s identity is unknown, the internal affairs investigator should use all available means to determine proper identification.  Where civil litigation has been filed and the complainant is a party to or a principal witness in the litigation, the internal affairs investigator shall consult with legal counsel to determine whether an investigation is appropriate or warranted.  5.1.12  In some cases, a complaint is based on a misunderstanding of accepted law enforcement practices or the officer’s duties.  Supervisors should be authorized to informally resolve minor complaints, whenever possible, at the time the report is made.  If the complainant is not satisfied with such a resolution, the complaint should be forwarded to internal affairs for further action as warranted.  The process of informally resolving internal affairs complaints requires the exercise of discretion by supervisors.
[brief] Plaintiff respectfully submits that this Court should resolve the tension between Mule / Manole and older cases such as Konitch by clarifying that a fact-sensitive analysis of the totality of the circumstances is required to determine whether a co-employee is acting in the “course of their employment” at the time of the injury for the purposes of immunity under N.J.S.A. 34:15-8 and that the location of the injury is just one factor, not necessarily a dispositive one.  A fact-sensitive analysis is particularly called for here, where [...] was still commuting, while late for work, at the time of the crash and was not performing any duties inherently related to her employment as a nurse.  Accordingly, the trial court’s summary judgment order, which was based upon the court’s treatment of the fact that the incident occurred in an employee-owned parking lot as dispositive, should be reversed.  The disputed facts relevant to whether [...] was in the course of her employment at the time of the collision should be resolved by a jury.
[brief] PLAINTIFF FAILED TO PRESENT OR INTRODUCE EVIDENCE SHOWING THE CITY’S PLACEMENT OF THE SIGN CONSTITUTED A DANGEROUS CONDITION OR THAT THE CITY HAD NOTICE OF SAME.  Plaintiff contends the City’s placement of the sign on Avenue P constituted a dangerous condition because the sign had, on previous occasions, been knocked down.  In other words, Plaintiff contends the City’s placement of the sign was, in and of itself, a dangerous condition.  Plaintiff also argues the City had notice of this allegedly dangerous condition by virtue of the work orders demonstrating the sign had been knocked down and subsequently replaced.  But the evidence presented by Plaintiff at both the summary judgment stage and at trial was insufficient to establish that the City had notice of the missing sign.  There is no evidence in the record demonstrating or supporting Plaintiff’s contention that the City should not have placed the sign on Avenue P.  Plaintiff’s argument is simply an ipse dixit: Because the sign had been knocked down on previous occasions, the sign’s location therefore must have been inappropriate and dangerous.  \textsuperscript{3}  Plaintiff argues that the trial court’s order denying the City’s motion for summary judgment is somehow mooted by the jury’s verdict.  That, of course, is not the law.  Plaintiff does not cite any case law in support of that proposition.  It is well within this Court’s authority to vacate the jury’s verdict and remand with direction that the trial court enter an order in favor of the City, dismissing this case with prejudice.
[brief] \(^7\)  N.J.A.C. 7:8-1.2; N.J.A.C. 7:8-5.2.  \(^8\)  The other areas of regulation under the Stormwater Management Rules are water quantity management and groundwater recharge.  N.J.A.C. 7:8-5.4 and 5.6.  Ra82, Ra85-Ra86.  In addition, because the Property is located, in part, within the jurisdiction of the [...] (the “Commission”), the Stormwater Management Rules require that discharges of stormwater meet the Commission’s more stringent standards for the removal of total suspended solids (“TSS”) of 95% in select areas of the property.