ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] C.  Trial Court Procedural History  On January 23, 2024, [...] prematurely filed a Complaint in the Superior Court of New Jersey, Morris County, Chancery Division (the “Trial Court”) seeking judgment confirming of the Award.  Da38-44.  [...] also sought and obtained an Order to Show Cause, pursuant to Rule 4:67-2 (Summary Actions).  Da45-48.  On February 12, 2024, [...] submitted an Answer to [...]’s Complaint [Da145-153], and, contemporaneously, a motion to dismiss the Complaint or, in the alternative, leave to file a counterclaim for setoff against [...] [Da154-155].  [...] moved for leave to file a counterclaim for setoff because separate from the parties’ PTA, [...] failed to pay [...] $2,084,220.03 on a construction subcontract by which [...] served as a subcontractor to [...] on the Hackensack Project.  Da149-151.³  Pursuant to the dispute resolution provision in the subject subcontract, the parties are currently engaged in an arbitration concerning the unpaid portion of the subcontract contract price for the project (the “Hackensack Arbitration”).  Da528-551.  In accordance with the Trial Court’s April 19, 2024 Scheduling Order [Da 239-248], [...] also filed a motion to dismiss the complaint and to vacate the Award, or, alternatively, to modify the Award (“[...]’s Motion to Vacate or Modify”) [Da249-250].  On June 12, 2024, the Trial Court issued an Order confirming the Award, rejecting [...]’s Motion to Vacate or Modify, and awarding Judgment in favor of [...] and against [...] in the amount of $3,889,835. 14, plus interest.  Da6-33.  The Court also denied [...]’s motions to dismiss by way of two Orders.
[brief] 1T68.  In quantifying the fees awarded, [...] – who has handled the matter since August 2018 – discussed the factors of R.P.C. 1.5, finding them satisfied.  The court applied the standards of Rendine v. Pantzer, 141 N.J. 292 (1995) and the need to calculate the lodestar.  1T71.  The court acknowledged that “it would often make adjustments” in determining the lodestar, but found that the fees sought here were “fair, realistic, and accurate. ”  1T71-72.  Although it was “just mind boggling how much time and effort” had been required, “[t]here still has not been one cent that has been voluntarily returned without the need for, you know, Court proceedings and -- or finding misrepresentations. ”  1T72.  “[F]or what we have here, for how long we’ve had it” the court thought the fees sought were “actually reasonable” and “it probably could have been a lot more. ”  1T70.  Plaintiff’s counsel had “no choice but to have done this work. ”  1T70.  The judge made clear that “I looked at this carefully, and I agree, I think [that] items that shouldn’t have been billed for, weren’t billed for. ”  1T68.  The fees charged were “similar for legal services for the type of attorneys and the work that is involved here. ”  1T71.  As noted above, this was not the first fee application considered by the trial court, and the court had previously made findings concerning the rates charged by Plaintiff’s counsel.
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[brief] Without any documentary evidence showing what Plaintiff was paid during the years of which he is claiming damages (going back to 2011), in a thinly veiled attempt to defeat summary judgment, Plaintiff conjured an affidavit submitted in opposition to summary judgment that directly contradicted Plaintiff’s prior discovery responses and deposition testimony.  Plaintiff’s affidavit dated January 30, 2023 (eight (8) months after the close of discovery), conveniently presented new “facts” to defeat summary judgment, “facts” which completely contradict the record in this case.  To demonstrate the extent of this prejudice, below is a chart of each inaccuracy contained within Plaintiff’s improper affidavit:
[brief] [...] confirmed that [...] performed a full investigation into [...]’s June 24, 2020 conduct before concluding that no disciplinary action was necessary.  [...] scheduled a meeting with [...] to address his concerns.  (Pa90 at 27:6-16; Pa100 at 69:4-7).  The two discussed the June 24, 2020 incident and [...] told him that she would interview [...], perform a search for other employees who may have been involved, and then proceed with the investigation.  (Pa101 at 70:15-71:10).  During [...]’s interview of [...], [...] recounted the events of June 24, 2020 to [...], stating that [...] repeatedly questioned her on something she needed him to accomplish, and, after he refused to listen, she “got loud” with him.  (Pa102 at 74:5-16).  [...] informed the executives at [...] about the investigation into [...]’s conduct, and her conclusion that she had no reason to suspect that [...] had committed any wrongdoing.  (Pa107 at 94:14-95:5).  As such, nothing was de-railed.  Nor did [...] ever “recommend” [...]’s termination, as [...] contends.  (See Pb26).  After carefully considering the evidence from [...]’s investigation into Plaintiffs’ unauthorized receipt and entry of charge pay, a termination panel elected to terminate [...], [...], and [...].
[brief] Da137-139.  However, the Arbitrator still adopted [...]’s claim that these projects somehow magically morphed into Backlog Projects and adopted [...]’s proposed EGPs for those projects.  He did so based purely on his mistaken determination that [...] included forecasted preliminary EGPs for those projects on documents it shared with [...].  See infra Point I.B.2.  However, as explained infra, none of the subject projects were elevated into an Additional Backlog Project in accordance with the unambiguous terms of the PTA.
[brief] Even if unsuccessful, counsel’s strategic motivation in acquiescing to the admittance of Defendant’s refusal and contemporaneous statement was undeniable.  Therefore, her decision to admit this evidence rendered any error in its introduction to be immaterial as invited error.  See State v. A.R., 213 N.J. 542, 561 (2013) (“Under that settled principle of law, trial errors that ‘were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal’”).
[brief] (1T29:6-8; 30:3-10).  The trial court originally denied Defendants request to take judicial notice of the State of Emergency on February 17, 2023. \(^1\)  Accordingly, Plaintiff filed a motion to bar reference to the State of Emergency because it was clear the defense was attempting to conflate the fact that there was a State of Emergency in effect at the time of Plaintiff’s fall, and therefore, defendants’ duty, and liability, was somehow \(^1\)  This order was not subject of Defendants’ appeal.  impacted, or reduced.  Moreover, Defendants were trying to shift the blame onto Plaintiff for being injured due to conditions that she was allegedly warned of by the State of Emergency Order.  The purpose of a state of emergency Order is to empower the New Jersey Office of Emergency Management to *act on behalf of the Governor employ the resources and assets of the State, local and private agencies to provide immediate assistance to localities.*  (Pa1-4) (emphasis added).  When the Governor declares a state of emergency, it does not generally restrict a citizen’s movement or activities.  (Id.)  The State may limit access to affected areas due to concerns for public safety but will notify the public of these restrictions.  (Id.)  Whether there was a State of Emergency in place during the time of Plaintiff’s fall, is not at issue in this matter, nor is it in dispute in this case.  Defendants never produced a single piece of evidence to support the notion that their duty of commercial property owners, general contractor, or sub-contractor to remove snow and ice, and keep their properties clean and safe, were either eliminated or laxed during a State of Emergency.  (1T25:8-27:15).  There was no evidence that any of the Defendants alerted business tenants that the property was closed due to the State of Emergency.  (Id.)  There was no testimony that Defendants’ employees were snowed in and not allowed on the roadways.  (Id.)  There was never any testimony Defendants were providing their resources to the State and therefore could not fulfil their duty at [...].  (Id.)  There was no testimony, nor any evidence, ever offered that the State of Emergency made them unable to maintain [...]s in a reasonably safe manner.
[brief] While the lower court accepted [...]’s argument that this case is akin to the 21-month delay in *Cole*\(^{10}\), T1 69:14 - 70:3, this analogy falls apart with the slightest of scrutiny.  --- \(^9\)  [...] relied below upon the case of *[...] Holdings Corp. v. Marsh & McClennan Cos., Inc.*, 410 N.J. Super 453 (2009) and argued that *[...]* establishes that the non-arbitrable claims against other insurers was no impediment to [...] seeking arbitration earlier in this proceeding.  See, [...] Argument at T1 31:2-11.  *[...]* did not involve an *Owens-Illinois* allocation or contribution claims.  Unlike the present case, where earlier arbitration would have simply resulted in litigation over the exact same topics in the contribution context, there is no indication that the claims between [...] and [...] could not have been conclusively resolved in arbitration even though [...] was still required to litigate its separate claims against other insurers.  Similarly, the multi-party nature of *Cole* does not support waiver in this coverage dispute.  In *Cole*, the arbitration with the employer would have been binding and resolved that issue regardless of the liability of the hospital.  Thus, while there could have been disparate results of the arbitrable and non-arbitrable claims, both would have been final and binding unlike the present case where the other insurers’ contribution claims would effectively undo the outcome of arbitration.
[brief] [...]’ NOTICE OF HEARING WAS DEFECTIVE UNDER NEW JERSEY’S MUNICIPAL LAND USE LAW AND DEPRIVED THE BOARD OF JURISDICTION TO HEAR THE 2022 ZONING APPLICATION (Pa32)(1T35:6-7, 1T35:19-22)  The requirements for public notice are set forth in the Municipal Land Use Law (“MLUL”)  N.J.S.A. 40:55D-1 to -99.  Specifically, N.J.S.A. 40:55D-11 provides:  Notices . . . shall state [1] the date, time and place of the hearing, [2] the nature of the matters to be considered and, in the case of notices pursuant to subsection 7.1 of this [A]ct,[3] an identification of the property proposed for development by street address, if any, or by reference to lot and block numbers as shown on the current tax duplicate in the municipal tax assessor’s office, and [4] the location and times at which any maps and documents for which approval is sought are available pursuant to subsection 6b.  When a statute requires public notice, the notice given should be capable of being understood by an ordinary person.  The notice should not require an attorney or planner to interpret its meaning of the notice and the applicant’s intent.  The language used in the notice should be in common sense English.  *Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd.*, 295 N.J. Super. 234, 239 (App. Div. 1996).  The notice must give “an accurate description of what the property will be used for under the application. ”  *Northgate Condo. Ass’n v. Borough of Hillsdale Planning Bd.*, 214 N.J. 120, 139-40 (2013) (quoting *Perlmart*, supra, 295 N.J. Super. At 238).
[brief] Despite the fact that Form C interrogatories were in Defendants’ contention, too broad and non-specific, Defendant provides no explanation as to why Answers to Form C(3) Interrogatories were not provided to Plaintiff.  To be clear, at the very bottom of Form C Interrogatories, there is an instruction that is in bold font and reads, “FOR MEDICAL MALPRACTICE CASES, ALSO ANSWER FORM C(3)”.  Lastly, Defendants argue that it is “entirely speculation” for Plaintiff to believe that Defendants were aware of and had in their possession medical records that the Plaintiff would need to produce an Affidavit of Merit.  Well, Defendants are [...] and [...], these entities operate a nursing home facility.  [...] was a long-term resident of Defendants’ Nursing Home.  [...] was under the care of Defendants twenty-four (24) hours a day, seven (7) days a week.  All care for [...] was administered by Defendants, other than specialty appointments, for which Defendants had the responsibility to take him to.  Other than [...]’s specialty medical providers, Defendants are in possession of all of his medical records.  Defendants did not send to Plaintiff a single medical record for [...], not even one.  Defendants are more than aware—and no speculation is needed—that without the medical records in their possession, Plaintiff could never prove her case or submit a sufficient Affidavit of Merit.
[brief] (Da629-49).  By way of an amended complaint, Plaintiffs added counts for Breach of Operating Agreement/Bylaws (Da712), Unjust Enrichment (Da713), and Piercing the Corporate Veil (Da714).  The counts alleging Breach of Fiduciary Duty and Breach of Operating Agreement/Bylaws were resolved by summary judgment order entered in favor of the Plaintiffs on June 10, 2020.  (Da310).  That same order also granted summary judgment with respect to the Rescission count in favor of Plaintiffs and removed [...] as a member of the [...].  (Id).  Following trial, the Unjust Enrichment, Piercing the Corporate Veil, and Receivership counts were dismissed.  (Da8 at ¶(2)).  Adding to the confusion created by Plaintiffs’ election to litigate/arbitrate in multiple forums simultaneously, from the moment [...] first took over the case, she seemed completely unaware of the posture of the case as left by her predecessor, [...].
[directive] In accordance with the Working Group’s recommendations, this Guidance encourages relevant law enforcement agencies to undertake these practices, and, in certain areas, the Guidance indicates steps law enforcement must take. those whom they serve, including updates on the CBVI providers’ work, participation in public safety roundtables, and sharing information about trends in crime and violence and other anonymized, general information that supports a shared mission of pursuing public safety. ”  •  Provide Clear Expectations About What Services a CBVI Organization Is Providing (Report section II.2.A.3).  “CBVI organizations operate at several different levels of prevention—from the highest risk intervention efforts, to more general prevention campaigns.  Even within each level, there is a substantial variety in the types of services.  Not all CBVI organizations provide the same services.  Relationships with law enforcement agencies must be grounded in a clear understanding of what services a CBVI organization does provide, and which services it will provide through a relationship with law enforcement.  Failure to be clear on these subjects could risk a loss of credibility and trust for all parties.
[brief] **STANDARD OF REVIEW**  **LEGAL ARGUMENT**  I.  Defendant Must Be Given The Option To Withdraw His Guilty Plea Based Upon His Attorney And The Trial Court’s Failure To Inform Defendant Of the Fact That His License Suspension Was Required, By Statute, To Run Consecutively With The Prior License Suspension, A Material Penal Consequence.  Instead, Defendant’s Attorney And The Trial Court Misled Defendant By Indicating That The License Suspension Would End In 2023, Rather Than 2033.  **PRAYER FOR RELIEF**
[brief] 1707 Realty, LLC, supra, 2022 N.J. Super. Unpub. LEXIS 1303, *18 (citing, 700 Highway 33 LLC v. Pollio, 421 N.J. Super. 231, 238 (App. Div. 2011)).  “The doctrine’s ‘application is left to judicial discretion based on the factual circumstances of individual cases. ’”
[brief] At the outset, it is respectfully submitted that the Court must view this action in context.  It is obvious that Appellants have initiated and continued these proceedings because they disagree with Respondent's views.  If Respondent's views make her unsuitable to serve as a member of the Board, the remedy lies in the election process, not in proceedings before the Commission.  In its Final Decision, the Commission correctly grasped this reality.  Moreover, in attempting to punish Respondent for expressing her views, Complainants seek to infringe on her First Amendment rights.  As the United States Supreme Court has recently reiterated, school personnel do not "'shed their constitutional rights to freedom of speech or expression at the schoolhouse POINT II
[brief] ”  Griggs, 88 N.J. at 364, 368, 443 A.2d at 172, 174; accord Passaic Valley, 206 N.J. at 615, 21 A.3d at 1162 (“A breach of the duty to defend will trigger indemnification of the [...] settlement, and will not be limited to the [...]’s definition of ‘loss. ’”) (emphasis added); Fireman's Fund Ins. Co. v. Security Ins. Co. of Hartford, 72 N.J. 63, 71, 367 A.2d 864, 868 (1976) (“While the right to control settlements reserved to insurers is an important and significant provision of the policy contract, it is a right which an insurer forfeits when it violates its own contractual obligation to the insured [citation omitted]”).  Vermont law is identical.  R.L. Vallee, 431 F. Supp. 2d at 437; see also Cathay Mortuary, 582 F. Supp. 650, 660 (N.D. Cal. 1984) (“an insurer who wrongfully refuses to defend is also liable for the amount of any reasonable settlement that the insured makes in good faith”).  The liability rule stated in Griggs, R.L. Vallee, and Cathay Mortuary is both well-settled and, as this case illustrates, plainly necessary to police insurance company conflicts of interest.
[brief] [Rivers, at 79.]  In this case, Plaintiff can satisfy none of these inquiries except for number 2.  First, her attempt to demonstrate why the expert report had not been completed on time nor counsel diligence in pursuing it.  Rather, Plaintiff merely asserts that her case is a complex one and that she has experience ongoing medical issues and symptoms.  However, Plaintiff did not attempt to demonstrate why this might have prevented her expert from authoring a report, especially given that it is hardly an “exceptional circumstance” for a medical malpractice plaintiff to have complex medical issues with the need for ongoing treatment.  Yet most every expert physician is able to nevertheless produce an expert report in the time permitted by the rules of discovery.  Further, even though it was an inappropriate attempt to add to the record, Plaintiff’s presentation of the certification by [...] on reconsideration did no better in demonstrating why the report could not have been produced.
[brief] In fact, the circumstances warranting an enlargement of time in this case are even more compelling than they were in Willoughby.  For example, unlike Willoughby, this case involves a municipality’s violation of a statutory notice requirement.  See N.J.S.A. 40:49-2; Dolente, supra.  Moreover, this case also involves a situation where, because of the defective notice, the “full nature and extent” of the government’s action “did not become apparent” until a subsequent application was filed on which the action was based.  See Adams, supra; Gregory, supra.  Finally, unlike Willoughby, the challengers to the municipal action did not employ a “wait and see” approach.  Notwithstanding the foregoing, the trial declined to enlarge the 45-day appeal period in this case primarily on the basis of the Appellate Division’s reasoning in Rocky Hill Citizens for Responsible Growth v. Planning Bd. of Borough of Rocky Hill, 406 N.J. Super. 384, 401 (App. Div. 2009).
[brief] (Da43).  The Amended Policy specifically refers to facilitating communication with the parents to discuss “a student’s gender nonconformity or transgender status. ” (Da45).  The Amended Policy also provides that when “transgender students” require emotional support services, the school must provide a “full, complete, and accurate” explanation of that “counseling and/or referrals for mental health crisis”—without similarly requiring “parental notification/consent” for other school counseling services.  (Da46-47).  Even Appellants’ brief characterizes their policy as requiring parental notification if a “transgender student[]” takes certain covered actions.  (Db2).  Appellants get no further by claiming that they did not violate the LAD because they were just seeking to comply with state and federal laws governing access to student records.
[brief] Transmitting data to an agent or contractor is not a “third-party” “communication” and is not an attempt to collect a debt.  Congress does not “write upon a clean slate” each time it passes a statute.  United States v. Texas, 507 U.S. at 534.  Instead, courts presume that Congress legislates against long-standing and well-established legal principles, including the “the backdrop of the common law. ”  *Comcast*, 140 S. Ct. at 1016.  For Congress to abrogate a common-law principle, “the statute must ‘speak directly to the question addressed by the common law. ’”  *Meyer v. Holley*, 537 U.S. 280, 285 (2003).
[brief] Thus, the court concludes that in the context of the COVID-19 pandemic, the plaintiffs’ or their members’ physical impairments are a qualifying disability under the ADA because their impairments substantially limit the major life activities of interacting with others or working. ”  Id.  (Emphasis added)  The determination of whether Plaintiff has a disability should be based on totality of the circumstances, including heightened risks of an impairment caused by pandemic.  Plaintiff has a history of obesity, which was known to Defendant.  The CDC references obesity as a “common, serious and costly chronic disease.  Obesity, Race/Ethnicity, and COVID-19 | Overweight & Obesity | CDC.  Adults with excess weight are at a greater risk from COVID—19, with the CDC noting it may triple the risk of hospitalization from COVID.  The CDC noted a study of Covid-19 cases suggests that risks of hospitalization, intensive care admission, invasive mechanical ventilation, and death are higher with increasing BMI.  Id.  “The increased risk for hospitalization or death was particularly pronounced in those under age 65. ”  Id.  In light of the intended breadth of the NJLAD, it would follow that New Jersey should likewise recognize this as a protected disability.
[brief] The Court's decision is prospective.  Id. at 302.  10  The prosecutor who was present when [...] was admitted into the PTI program was not the prosecutor who presented the State's case against [...] and [...].  2012 WL 2912754  Only the Westlaw citation is currently available.  UNPUBLISHED OPINION.  CHECK COURT RULES BEFORE CITING.  Superior Court of New Jersey, Appellate Division.
[brief] The trial court found that:  Plaintiffs stress [...] was never the subject of a disciplinary proceeding during the five years prior to the application and/or renewal since there was never any proceedings initiated by a regulatory, disciplinary or licensing board alleging professional malpractice in the performance or failure to perform legal services by Richard [...] and/or his law firm.  However, the Court rejects this argument and finds this strained and overly narrow construction is an attempt to find and/or create coverage when none exists.