ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] **APPELLANT FAILED TO ESTABLISH THE EXISTENCE OF ANY DISABILITY**  A.  Appellant has Failed to Demonstrate a Prima Facie Case under the NJLAD.  In order to maintain a case of discrimination pursuant to the NJLAD, Appellant must first establish the elements of a *prima facie* case of discrimination, which she cannot.  A *prima facie* case requires Appellant to evidence that “(1) [she] belongs to a protected class; (2) she was performing her job at a level that met her employer’s legitimate expectations; (3) she suffered an adverse employment action; and (4) others not within the protected class did not suffer similar adverse employment actions. ”  *El-Sioufi v. St. Peter’s Univ. Hosp.*, 382 N.J. Super. 145, 167 (App. Div. 2005); see *Maher v. New Jersey Transit R.O. Inc.*, 125 N.J. 455, 480–81 (1991); *Jansen v. Food Circus Supermarkets, Inc.*, 110 N.J. 363, 382 (1988).  In the present matter the analysis terminates at the first step.  Appellant did not, and cannot, meet her burden of demonstrating her membership in a protected class.  Appellant argues that the lower court erred in failing to recognize and apply the broad standard of disability under the NJLAD.  However, this is not the case at all.  Appellant’s argument focuses on the definition of disability and whether her alleged disabilities should be covered under such definition.  However, Appellant is glossing over the fact that there is no evidence of these conditions existing during her employment at all.  As such, the court correctly found that the Appellant had not provided any evidence that her alleged conditions actually existed at all.  Therefore, Respondent respectfully requests this Court affirm the lower court’s decision.
[brief] Certification in Support of Motion by [...] 9/20/21  Pa027  Exhibit 1 in Support of Certification (Notice of Claim attached at Pa019)  Exhibit 2 in support of Certification (Complaint Attached at Pa001)  Reply Brief Filed 10/2/2021(removed)  Attachment Part 1 to Reply  Notice to the Bar  Pa029  Gormley v Wood-El Pa030  Attachment Part 2 to Reply
[brief] As established before, a municipality has the power to pass an ordinance to prevent disturbing noises pursuant to the Home Rule Act.  Yet, a municipality is preempted, under the Court below’s logic, depending on whether or not a local Board of Health, or if applicable a superseding regional health commission, has passed an ordinance on the same subject.  Therefore, by that holding, the municipal governing body is preempted if the local board has already passed such an ordinance, but, apparently not preempted, if it has not.  A municipal governing body where a local Board of Health has not passed an ordinance, but wishes to regulate disturbing noises for its residents, under this rationale, would always have a Sword of Damocles over its head as to whether it could or should pass such an ordinance.  The only logical application of preemption is the application that the case law has given it, i.e., when The Legislature has comprehensively acted.  Otherwise, one is left with a situation where a field may be a “little bit” preempted.  This, respectfully, makes no common sense.
[brief] Defendants argue in their briefs that such a result, where Plaintiffs bear the financial burden of Defendants’ unlawful conduct, is consistent with the law and notions of fairness.  Defendants assert that Plaintiffs have inadequate legal authority to seek compensation for their losses arising from Defendants’ unlawful conduct.  In making their arguments, Defendants once again seek to re-litigate prior adverse rulings against them, and they urge a misapplication of the governing law.  In essence, Defendants argue that Plaintiffs must, as a matter of law, bear the financial burdens resulting from Defendants’ unlawful conduct.  For the reasons set forth in this Reply Brief and in Plaintiffs’ initial Brief on this appeal, Plaintiffs respectfully submit that Defendants are incorrect, and the relief requested on Plaintiffs’ cross-appeal should be granted, with this matter being scheduled for trial including a proof hearing as to the quantum of damages suffered by Plaintiffs, along with their entitlement to an award of attorney’s fees and costs of suit.
[directive] In State v. Johnson, supra, the Supreme Court determined that “[B]reathalyzer test results are admissible upon a simple certification as to the operability and accuracy of the [B]reathalyzer instrument used to perform the test.  Id. at 171.  [The court also] concluded that expert testimony attacking the accuracy and reliability of [B]reathalyzer tests, while ‘probably technically still admissible,’ had virtually no probative value.  Ibid. ”
[brief] PROCEDURAL HISTORY | 4 | | COUNTER STATEMENT OF FACTS | 4 | | LEGAL ARGUMENT | 5 | | POINT  1.  STANDARD OF REVIEW | 5 | | POINT II  COLLECTION  ACTIVITIES DO NOT FALL UNDER THE PURVIEW OF THE NJCFA (RAISED BELOW: T1) | 8 | | i.  Plaintiff Has No Ascertainable Loss To Support A Claim Under The NCFA | 12 | | POINT III.  THERE CAN BE NO DECLARATORY JUDGMENT PURSUANT TO A VIOLATION OF A STATUTE THAT HAS NO PRIVATE RIGHT OF ACTION (RAISED BELOW: T1) | 16 | | POINT IV.  APPELLANT’S ARGUMENTS RELATING TO LICENSURE WERE NOT ARGUED BELOW AND SHOULD BE STRIKEN (NOT RAISED BELOW) | 17 | | i.  There Is No Private Right Of Action Under The NJCFLA | 18 | | ii.  Nor Is There An Implied Right Of Action Under The NJCFLA | 21 | | iii.  Notwithstanding Its Lack Of Relevancy To The Instant Appeal, Appellant Mischaracterizes How New Jersey’s State Courts Have Dealt With The New Jersey Consumer Financing Law Act As Related To Debt Collection | 22 | iv.  The Legislative History Of The NJCFLA Demonstrates It Was Not Intended To Be Applied As Appellant Claims  CONCLUSION | Cases | Page | |----------------------------------------------------------------------|------| | Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218 (1998) | 18 | | ASAH, The Children's Inst. v. N.J. Dep't of Educ., | | | 2017 U.S. Dist. LEXIS 101736 (D.N.J. 2017) | 16 | | Bosland v. Warnock Dodge, Inc., 197 N.J. 543 (2009) | 6, 13, 15 | | Brock v. Public Service Electric & Gas Co., 149 N.J. 378 (1997) | 18 | | Browne v. Nat'l Collegiate Student Loan Tr., | | | 2021 U.S. Dist. LEXIS 244537 (D.N.J. 2021) | 11 | | Camden County Energy Recovery Assocs., L.P. v. | | | New Jersey Dep't of Envtl. Prot., 320 N.J. Super. 59 (App. Div.1999)| 8 | | Castro v. NYT Television, 370 N.J. Super. 282 (App. Div. 2004) | 12 | | Cavalry SPV I, LLC v. Krantz, | | | 2012 Ohio App. LEXIS 1941 (Ohio App. 2012) | 23 | | Chulsky v. Hudson Law Offices, P.C., 777 F. Supp. 2d 823 (D.N.J. 2011)| 10 | | Cox v. Sears Roebuck & Co., 138 N.J. 2 (1994) | 12, 14, 20 | | Daaleman v. Elizabethtown Gas Co., 77 N.J. 267 (1978) | 9 | | D'Agostino v. Maldonado, 216 N.J. 168 (2013) | 13, 15 | | DepoLink Court Reporting & Litig. Support Servs. v. Rochman, | | | 430 N.J. Super. 325 (App. Div. 2013) | 9, 10 | | DeSimone v. Springpoint Senior Living, Inc., 256 N.J. 172 (2024) | 9, 21 | | Diana v. LVNV Funding LLC, | | | 2024 N.J. Super. Unpub. LEXIS 2241 (App. Div. 2024) | 19, 22 | | Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., | | | 237 N.J. 91 (2019) | 6, 7 | | DiProspero v. Penn, 183 N.J. 477 (2005) | 6 | | Excel Pharmacy Servs., LLC v. Liberty Mut. Ins., | | | 825 F. App'x 65 (3d Cir. 2020) | 17 | | Family Fin. Corp. v. Gough, 10 N.J. Super. 13 (App. Div. 1950) | 24 | | Francavilla v. Absolute Resols. VI LLC, | | | 478 N.J. Super. 171 (App. Div. 2024) | 3, 18, 19, 21 | | Frederick v. Smith, 416 N.J. Super. 594 (App. Div. 2010) | 8 | | Furst v. Einstein Moomjy, Inc., 182 N.J. 1 (2004) | 13 | | Gennari v. Weichert Co. Realtors, 148 N.J. 582 (1997) | 10 | Gonzalez v. Wilshire Credit Corp., 207 N.J. 557 (2011)
[brief] However, the decedent is referred to consistently in the brief as “[...].” and did not know anything about his medication -- including whether he was taking it -- because “he was an adult. ” (15T 14-10 to 15-18; 15T 60-20 to 61-15; 15T 65-2 to 17)  Eventually, [...] left their house when he and [...] could not get along and were fighting over “house rules” like “coming in late,” or “conducting yourself,” [...] claimed.  (15T 67-3 to 20)  At that point, [...] went to live at the apartment with the elderly woman, and then he went on a “road trip” that took him to Florida and Texas.
[brief] Q: Can you characterize the relationship that developed between yourself and [...]?  A: I would just buy drugs from him.  A lot of the time he just gave me drugs, I didn’t have to buy them.  Q: What kind of drugs?  A: Heroin.  Q: Did he ever say why he wouldn’t take your money sometimes?  A: No, he just was very nice about it and just gave me drugs.  [4T 130-1 to 10.]  \(^3\)  This inappropriate accusation is the subject of Point IV, infra.
[brief] Thus, the record demonstrates that unreasonable and prejudicial delays in this case are solely the fault and responsibly of Plaintiff and Plaintiff had more than ample opportunities to correct the deficiencies in the pleadings, including specific direction from the District Court.  Under such circumstances, the Trial Court was correct to find that permitting Plaintiff further “bites at the apple” would be futile.  Thus, the Trial Court did not err in denying Plaintiff leave to file another motion to amend the complaint.
[brief] ”  Zaman v. Felton, 219 N.J. 199, 226-27 (2014); see also N. Haledon Fire Co. No. 1 v. Borough of N. Haledon, 425 N.J. Super, 615, 631 (App. Div. 2012).  (“An issue not raised below will not be considered for the first time on appeal. ”).  This rule applies even to “constitutional issues” not raised below.  State v. Walker, 385 N.J. Super. 388, 410 (App. Div. 2006).  Therefore, this Court should not entertain [...]’s constitutional jury trial argument raised for the first time now.
[brief] 7 POINT I (Da1)  THE LOWER COURT’S MISTAKEN EXERCISE OF DISCRETION  ALLOWED [...] TO UNJUSTLY OBTAIN A JUDGMENT NEARLY TWICE THE VALUE OF THE ACTUAL CLAIM .........................................................  11  A. [...] PRESENTED A MERITORIOUS CHALLENGE TO THE CALCULATION OF THE [...]’S DAMAGES, BASED UPON PREVIOUSLY ACKNOWLEDGED CREDITS ..............  14  B.  THE JUDGMENT INCLUDES ATTORNEYS’ FEES, THOUGH THAT RELIEF WAS DENIED BY THE MARCH 18, 2022  ORDER FOR ENTRY OF JUDGMENT .................................................................  17 POINT II (Da1)  THE LOWER COURT MISTAKENLY EXERCISED ITS DISCRETION BY DENYING [...]’S MOTION TO VACATE THE DEFAULT JUDGMENT FOR INEFFECTIVE SERVICE ...........................................19  A. AN ORDER AUTHORIZING SERVICE BY MAIL IS NOT IRREBUTTABLE  PROOF OF EFFECTIVE SERVICE .........................................................20  B. [...] SHOULD HAVE RECEIVED THE BENEFIT OF REASONABLE DOUBT, NOT A CREDIBILITY DETERMINATION  ........................................24  POINT III (Da1)  THE TRIAL COURT FAILED TO ANALYZE THE APPLICATION UNDER RULE 4:50-1(f) .................................................................28  CONCLUSION ..................................................................................32
[brief] 9.  **Landscape Islands:**  Pursuant to Ordinance Section 108-9.1 (F)(3), parking areas of twenty (20) or more vehicles shall contain grassed or landscaped island areas of at least six (6) feet in width separating rows of parking spaces.  The Applicant proposes none in all such parking areas.  The Applicant submits that there are some advantages to no landscaping islands in the parking area.  It makes the parking area easier to maintain especially during snow events, and allows the applicant to provide additional parking spaces for residents and customers.  As noted above, the purpose of this Zone is to create a less intense downtown and this variance does not advance that purpose, nor does the Applicant provide a sufficient reason for this relief.  The Applicant offers no valid reasons of this variance and the only basis is to advance its economic interests by over-building this Property.
[brief] In *In re Accutane Litigation*, 234 N.J. 340 (2018), over 2,000 plaintiffs alleged that the prescription acne medication, Accutane, caused Crohn's disease, a gastrointestinal illness.  The Supreme Court concluded that the scientific testimony of the plaintiffs' experts as to medical cause and effect had been properly excluded after the trial court had conducted a N.J.R.E. 104 gatekeeping evidentiary hearing.  The plaintiffs’ experts ignored a number of published epidemiological studies, the most relevant and reliable data in the hierarchy of medical evidence, all of which had concluded that there was no causal relationship.  Plaintiffs' experts instead relied on animal and case studies, and were inconsistent and contradictory in their reasoning.  The Court in *Accutane* approvingly discussed the "Daubert trilogy": *Daubert v. Merrell Dow Pharmaceuticals, Inc.*, 509 U.S. 579 (1993); *General Electric Co. v. Joiner*, 522 U.S. 136 (1997); and *Kumho Tire Co.  v. Carmichael*, 526 U.S. 137 (1999).  In *Daubert*, supra, the United States Supreme Court adopted several factors to be considered with respect to the admissibility of new or evolving scientific expert opinion.  These *Daubert* factors are: can the scientific theory or issue be tested; has the scientific theory been published and subjected to peer review; has any known or potential rate of error been considered; as well as general acceptance.  In *Joiner*, supra, the Court reiterated that the task of the trial court is one of flexible inquiry to assure that the expert's conclusions are sufficiently tethered to the facts or drawn from applicable data.  In *Kumho*, *supra*, the Court concluded that the task of the trial court is to ensure that scientific testimony is relevant and reliable.  The *Kumho* Court re-emphasized that the *Daubert* standard is a flexible one.  *Kumho* indicated that the *Daubert* factors do not necessarily apply to all experts or in every case; the trial court has broad latitude; the factors are not a definitive checklist or test; and gatekeeping must be tied to the facts of each particular case.  The *Accutane*  Court acknowledged that the *Daubert* factors are a helpful and useful guide; but are not necessary or definite; and the Court declined to unqualifiedly describe New Jersey as a *Daubert* jurisdiction.
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[brief] ”\(^2\)  Finally, the two unreported, non-binding trial court opinions cited by the [...] in its motion actually support [...]’s position, not [...]’s.  In *City of Hoboken v. Horst Savickas*, Law Division, HUD-L-3109-04 (February 14, 2006), the Court held that when a condemnee submits sufficient evidence demonstrating a reasonable probability of a zoning change, then the question should be submitted to the jury.  Pa206-Pa208.  Additionally, *[...] v. Kerrigan*, Docket No. HUD-L-4528-04 (January 25, 2008) is not applicable or persuasive because the parties in that matter failed to address whether it would be reasonably probable that a zoning change would occur as of the date of valuation.  Pa210-Pa214.  Had the parties in *Kerrigan* undertaken a reasonable probability analysis like the experts for [...] did here, then the Court should have submitted the facts to the jury to decide as it ruled in *Horst Savickas*.  --- \(^2\)  The [...]’s appraiser seems to agree with this premise because he also concluded that the R-2 zoning was irrelevant and instead explained that a more modern approach would result in achieving approvals for an 87-unit development.  Pa80-Pa81.  CONCLUSION
[brief] In re State & Sch. Emples. Health Benefits Commissions' Implementation of Yucht, 233 N.J. 267, 270, the Supreme Court reversed and remanded the decision of the Appellate Division.  The [...] and the [...] were improperly reducing reimbursements for out-of-network behavioral health services.  In the prior case, the Appellate Division found in favor of Yucht’s appeal which sought reimbursement at the statutory 80% of reasonable and customary charges for behavioral health services.  *In re Yucht*, 2013 N.J. Super. Unpub. LEXIS 2188.  Pra1.  As a result, the Commissions adopted resolutions to provide for reimbursement of the improper rate paid by members retroactive to 2009.  Identical to the within appeal, the [...] posted notice on their website with a link to a claim form.  *In re State and Sch. Emples. Health Benefits Commissions' Implementation of Yucht*, 2017 N.J. Super. Unpub. LEXIS 1938.  Pra5.  Also identical to the within matter, the Division sent a letter to all Certifying Officers with the same exact terms contained in the Certifying Officer Letter’s “EMPLOYER RESPONSIBILITIES” section.  *Id.* Pra6. Pa81.  The Appellate Division held that “[a]pplying our highly deferential standard of review, we are satisfied that the record sufficiently supports the Commissions' decision that members were provided with adequate notice and instructions for submitting a request for claims reconsideration prior to the December 31, 2014 deadline.
[brief] (1)  Motion for Entry of Default or Adjournment of Trial Date [Doc. No. 140], (2) Motion for Discovery and Sanctions [Doc. No. 141], and (3) Supplemental Motion for Sanctions [Doc. No. 187].  Plaintiffs' Motion for Extension of Time to Complete Discovery with Expert Reports [Doc. No. 191] was addressed in a separate Order.  See February 8, 2013 Order, Doc. No. 205.  The Court acknowledges the significant delay between when plaintiff filed his motions and this decision.  This was done purposely.  The resources of the parties and the Court were better spent getting ready for trial rather than focusing on requests for sanctions.  Further, the Court wanted to assure that any taint of prejudice to plaintiff was cured before addressing plaintiff's multiple requests for sanctions.  Background
[brief] \(^8\)  [...] argues *it* took appropriate action because **[...]** transferred Appellant. \(^9\)  Respondents point the finger at one another to take on one part of their *shared* responsibility to investigate *and* remediate the situation.  Respondents cannot have it both ways – they cannot claim to be --- \(^7\) [...] Opposition Brief § II(B); [...] Opposition Brief § I.
[brief] PERTINENT TO THE APPEAL | Date | Decision | Page | |------------|--------------------------------------------------------------------------|------| | 01/25/2022 | Order - Appraisals, Settlement Conference | 14a | | 05/27/2022 | Order - Temporary Injunction Granted | 16a | | 06/10/2022 | Order - Disposal of Boonton and Florida Properties | 18a | | 08/12/2022 | Order - Stay of Deadlines for Boonton Property | 30a | | 08/31/2022 | Order - Breach of Trust, Revised Disposal Instructions | 31a | | 09/13/2022 | Order - Reconsideration Denied | 37a | | 10/12/2022 | Order - Ejectment, Boonton Property Sale Confirmed | 51a | | 05/10/2023 | Order - Supplemental Complaint Denied | 60a | | 05/10/2023 | Order - Second Supplemental Complaint Denied | 62a | | 06/19/2023 | Order - Reconsideration Denied | 69a | | 07/05/2023 | Order - Scheduling Discovery and Motion | 75a | | 07/05/2023 | Order - Scheduling Trial | 77a | | 08/04/2023 | Order - Motion for Leave to Appeal Denied | 80a | | 10/04/2023 | Order - Motion to Determine Controlling Law Denied | 81a | | 10/04/2023 | Order - Motion for Violation of Due Process Denied | 83a | | 02/14/2024 | Order - Plenary Hearing, Rent, Frivolous Sanctions | 91a |
[brief] In Bender, an AOM was required since a pharmacist gave a plaintiff a drug dosage other than the one listed on the prescription.  Again, giving drug dosage is the kind of work a pharmacist performs.  Civil law theft is not the kind of work an attorney performs.  In Sommers, the attorney failed to submit a legal argument in a trial brief.  The Court in Sommers held that an AOM was not required because the attorney’s failure did not involve a complex legal issue and therefore fit under the common knowledge exception.  Sommers, amongst other cases, demonstrates a situation in which even an attorney’s mishandling of legal work does not necessarily require an AOM, and the analogy is self-evident.  If AOMs are sometimes not required when an attorney mishandles legal work (simply because that legal work is not deemed complex enough to require expert testimony), how much more so is an AOM not required when an attorney in concert with non-attorneys commits civil law theft, which is a wrongful action that has nothing to do with that attorney’s legal work?
[brief] Any two or more citizens of the State may, within the time prescribed by section 1:7-1 of this Title, present to the Appellate Division of the Superior Court an application, such as is authorized by said section 1:7-1 to be presented by the Attorney-General, and the court shall proceed thereon in the manner provided by sections 1:7-2 and 1:7-3 of this Title.  The applicants may prosecute the application, and the Attorney-General may, if required so to do by the Governor, defend on behalf of the State.
[brief] Entm’t, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534 (App. Div. 2005)..............................................  17-18  Mason v. City of Hoboken, 196 N.J. 51 (2008)........................................................................... 12, 17, 19 Michelson v. Wyatt, 379 N.J. Super. 611 (App. Div. 2005)..................................................
[brief] Exhibit F – Invoice No. 101962 and Check No. 2004, Intentionally Omitted as Not Relevant to Appeal ........................................Da174  September 11, 2023  Email from Chancery Court Scheduling Order to Show Cause Hearing for September 13, 2023  .........................Da175-76  September 14, 2023  Certification of [...] in Opposition to Plaintiff’s Order to Show Cause  ........................................Da177-80  Exhibit A – 2023  [...] records evidencing payments to [...], Intentionally Omitted as Not Relevant to Appeal ................................................................................................................Da181  September 18, 2023  Reply Certification of [...] in Further Support of Order to Show Cause  ................................................Da182-91  Exhibit A – Email exchange between [...] and [...], Intentionally Omitted as Not Relevant to Appeal ................................................................................................................Da192  Exhibit B – December 9, 2020  “Meeting Minutes” ..............................Da193-94  Exhibit C – May 2021  Email Exchange Between Plaintiff and Defendant [...] .........................................................Da195-96 Exhibit D – May 2021 Email Exchange Between Plaintiff and Defendant [...] .........................................................Da197-200 VOLUME II September 28, 2023