ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The instant issue brought forth in this Appeal must be disregarded by this Court, as it was never previously raised at the Trial Court below.  In fact, during the pendency of Respondent’s Motion for Offer of Judgment penalties, counsel for Appellant advised the Trial Court he had no objection to the calculation of pre-judgment interest and costs; and his only objection was as to the hourly rate sought by Respondent’s counsel.  Appellant’s Motion for a New Trial did not raise the issue of the Verdict being excessive and/or shocking the judicial conscience; nor was a request and/or Motion for remittitur ever made.  Most glaring is the fact that Appellant blankly asserts financial hardship upon Appellant [...], without anything to substantiate such representations.  While not directly relevant to the underlying appeal, Appellant has made the issue relevant to warrant discussion.  This matter involves a claim where [...] ([...]), on behalf of its insured, took a ‘No Pay’ position from day one.  An offer was never made to resolve this claim prior to the jury’s verdict; despite an expired Offer of Judgment for the available insurance proceeds and despite an Arbitration assessment that was in excess of the subject insurance policy proceeds.  Counsel for Appellant even advised the Trial Court, at pre-trial conference, that this was a ‘No Pay’ and would have to proceed to trial.  In *Crudup v. Marrero*, 57 N.J. 353, 356-57 (1971), the New Jersey Supreme Court stated the rationale for the Offer of Judgment Rule:
[brief] *Ibid.*  Accordingly, the physical evidence in this case is only admissible if its seizure was “sufficiently independent to dissipate the taint of [the officers’] illegal conduct. ”  *State v. Williams* (Williams I), 192 N.J. 1, 15 (2007) (citations omitted).  In evaluating whether evidence is sufficiently attenuated from a constitutional violation, courts look to three factors: “(1) the temporal proximity between the illegal conduct and the challenged evidence; (2) the presence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct. ”  *Ibid.* (citing *Brown v. Illinois*, 422 U.S. 590, 603-04 (1975)).  In this case, all three factors weigh in favor of suppression, illustrating that the seizure of evidence was not sufficiently attenuated from law enforcement’s violation of [...]’s constitutional rights.  First, the illegal police conduct occurred twenty-five seconds before [...]’s arrest, indicating that the first factor weighs in favor of suppression.  Although this factor is the “least determinative” of the three, the brief twenty-five seconds that elapsed between the illegal stop and the arrest of [...], as well as the search which occurred soon after, demonstrate that the search of [...] was not sufficiently attenuated.  See *id.* at 15-16 (quoting *State v.* Worlock, 117 N.J. 596, 622-23 (1990)) (noting that the short police chase after defendant’s flight demonstrated that this factor weighed toward suppression).  Factor two also weighs in favor of suppression because [...]’s short flight was not a significant intervening circumstance capable of dispelling the illegal police action.  This Court has made clear that not every act of flight or obstruction will constitute “an intervening act . . . that completely purge[s] the taint from the unconstitutional investigatory stop. ”  Williams II, 410 N.J. Super. at 560.  A comparison between Williams I and Williams II highlights this distinction.
[brief] In reality, for the work environment to be actionable on the basis of racial harassment, there must be repeated racial slurs.  Taylor, 152 N.J. at 500 (collecting cases and also observing that “[s]ome courts have found that a particularly offensive remark, if not repeated, will not be sufficient to establish a hostile work environment. ”).  Although Defendants understand Plaintiff’s discomfort in hearing about a teacher’s use of the “n” word in her classroom, it was done outside of Plaintiff’s presence and not by her supervisor or anyone with decision-making authority.  The Trial Court appropriately objectively considered the conduct by Defendants to determine whether it was discriminatory and harassing.  Lehmann, 132 N.J. at 612 ("An objective reasonableness standard better focuses the court's attention on the nature and legality of the conduct rather than on the reaction of the individual plaintiff").  The record warrants only one reasonable conclusion—that Defendants supported the disciplinary action taken by Plaintiff vis-à-vis [...] for her politically-charged statement to students, and the disciplinary action taken by [...] vis-à-vis [...] for her use of a racial slur in front of students.  Indeed, [...]’s written reprimand remains in [...]’s file.  There is no evidence that either disciplinary action was ineffective or that further was necessary but not taken.  Indeed, there is nothing in the record to suggest that any other racist or offensive comments were made by either teacher after they were so disciplined.  On balance, no reasonable jury could conclude that Defendants’ actions or inaction could be seen as severe, pervasive, hostile or abusive under the governing legal standards.  For these reasons, Plaintiff cannot make out a prima facie case of hostile work environment as a matter of law, and no presumption that the alleged harassment occurred because of her race or age is warranted.  Woods-Pirozzi, 290 N.J. Super. at 267.  Count II, therefore, should remain dismissed.  * * *  For all of these reasons, Plaintiff cannot prove that she was subjected to a hostile work environment.  Therefore, Count II should remain dismissed.
[brief] ”  Commonwealth v. Gambora, 933 N.E.2d 50, 61 n. 22 (Mass. 2010).  [...]’s testimony—that [...]’s print was a “match,” without any limitation or qualification of that term and in the context of a discipline [...] claimed is objective and error-free—conveyed to the jury the exact misleading impression courts are concerned with that [...] left that print beyond any doubt.  Not only did [...] testify to this scientifically unsupported level of certainty and accuracy in fingerprint examination, but he testified that two other unnamed people agreed with his conclusion that [...]’s fingerprint was a match to the fingerprint on the murder weapon.  This testimony was inadmissible testimonial hearsay.
[brief] B. & T. | 15 | | Const. Co., Inc., | | | 171 N.J. Super. 397 (App. Div. 1979) | | | James v. Federal Ins. Co., | 16 | | 5 N.J. 21 (1950) | | | Kaselaan & D'Angelo Assocs., Inc. v. Soffian, | 21 | | 290 N.J.Super. 293 (App. Div. 1996) | | | Kaur v. Assured Lending Corp., | 16, 17 | | 405 N.J. Super. 468 (App. Div. 2009) | | | Mystic Isle Development Corp. v. Perskie & Nehmad, | 21 | | 142 N.J. 310 (1995) | | | Printing Mart-Morristown v. Sharp Elecs. Corp., | 15 | | 116 N.J. 739 (1989) | | | Rezem Family Assocs., LP v. Borough of Millstone, | 15 | | 423 N.J. Super. 103 (App. Div. 2011) | | | Rieder v. Dep't of Transp., | 15 | | 221 N.J.  Super. 547 (App. Div. 1987) | | | Stop & Shop Supermarket Co., LLC v. Cnty. of Bergen, | 15 | | 450 N.J. Super. 286 (App. Div. 2017) | | | Teamsters Loc. 97 v. State, | 15 | | 434 N.J. Super. 393 (App. Div. 2014) | | Thornton v. Potamkin Chevrolet, 94 N.J. 1 (1983) ........................................................................................................21 Matter of Tobak, 199 A.D.3d 99 (1st Dep’t 2021) ..................................................................................7 Trinity Church v. Lawson-Bell, 394 N.J. Super. 159 (App. Div. 2007) .........................................................................16 Velasquez v. Franz, 123 N.J. 498 (1991) .....................................................................................................18 Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398 (1991) .....................................................................................................18 Other Authorities R. 4:6-2(e) ......................................................................................................................15 R. 4:37-1(a) ....................................................................................................................17, 21 R. 4:37-1(b)
[brief] See SL Industries, Inc. v. American Motorists Insurance, 128 N.J. 188, 198-200 (N.J. 1992) which held that facts outside the complaint may trigger the duty to defend.  See also Norman International, Inc. v. Admiral Insurance Co. (2022).  (2T7).  As the Court in SL Industries points out at 199-200:  We stress that the duty to defend is triggered by facts known to the insurer.  Although the insurer cannot ignore known information simply because it is not included in the complaint, the insurer has no duty to investigate possible ramifications of the underlying suit that could trigger coverage.  Rather, the insured being sued is responsible for promptly conveying to its insurance company the information that it believes will trigger coverage.
[brief] [...] was a debt collector but on 5/12/16 it filed a Foreclosure Complaint in the NJ OOF as a mortgage lender and servicer based on a forged mortgage assignment and a time barred Note.  [...] and its law firm [...] committed fraud upon the trial court and on this Appellate Court and upon me and my family for 8 long years.  Responding to [...]’s legal point is moot now and waste of time and space.
[brief] Loss of Ocean View and Privacy  Before the taking, the property had unobstructed panoramic ocean views.  (Da255; 310)  The project included the higher 18 feet high seawall as well as a pedestrian and vehicular access ramp over the wall.  (Da311; 314)  The new wall and ramp of the project obstruct the southerly view of the ocean from the property and allow users to see into the house.  (Da287)  The owner’s appraiser considered that these negative project impacts reduced the value of the property.  (Id.)  The court concluded that the loss of ocean view and loss of privacy resulted from off-site project conditions and were non-compensable under existing law.  (Da444)  (5T 36:19-38:10)  LEGAL ARGUMENT POINT I
[brief] THE COURT ERRED AS A RESULT OF THE TRIAL COURT’S EXCEPTIONAL DISPLAY OF ABUSE OF DISCRETION BY NOT RECOGNIZING THIRD CIRCUIT  CASE LAW AS IT FAILED TO ADHERE TO PROCEDURES, PRECEDENTS, AND POLICIES ESTABLISHED WITHIN THE THIRD CIRCUIT.  CASE LAW HAS CLEARLY ESTABLISHED THAT ONCE A DEFENDANT CHALLENGES A COURT’S EXERCISE OF PERSONAL JURISDICTION OVER IT, WITH RESPECT TO THIS DEFENDANT’S CHALLENGE TO THE GENERAL JURISDICTION OF THE COURT FOR THE MARCH 1990  HEARING, IT IS THE PARTY CLAIMING VALIDITY OF SERVICE WHO BEARS THE BURDEN OF PROOF FOR SERVICE OF PROCESS AS MATTER OF WELL ESTABLISHED (PRECEDENTS)  THIRD CIRCUIT  CASE LAW.  SERVICE WAS NOT PROPERLY EXECUTED  THUS THE COURT IN 1990  LACKED PERSONAL JURISDICTION AND ALL SUBSEQUENT JUDGMENTS ORIGINATING FROM THAT HEARING ARE TO BE FOUND VOID.  THIS ERROR HAS RESULTED IN A DENIAL OF JUSTICE FOR IT IS A FUNDAMENTAL RIGHT AT STAKE OF DUE PROCESS.
[brief] Moreover, the most important of the “special equities” the Court enumerated in Sensient Colors is New Jersey’s “strong public policy interest in the remediation of environmental contamination within its borders. ”  See Sensient Colors Inc., 193 N.J. at 379 and 394; see also Century Indem. Co., 398 N.J. Super. at 427.  Here, New Jersey has a compelling interest in adjudicating matters concerning the enforceability of an indemnity agreement made in *New Jersey* by a *New Jersey corporation* where Defendants allege that [...]’s indemnity obligation is triggered in part by alleged environmental contamination *in New Jersey*, and by the manufacture of PCB-containing products *in New Jersey* after Defendants sold and shipped millions of pounds of toxic PCBs *into New Jersey* without adequate warnings or disclosures.  (Pa025-26; Pa134-37; Pa498-99; Pa592-601; Pa610-59).  Given the foregoing, there are no “special equities” that justified departing from the strong presumption in favor of this first-filed action.  Even assuming, *arguendo*, the existence of “special equities,” the decision whether to dismiss or stay the case for comity reasons remained within [...]’s discretion, and Defendants presented no credible basis for [...] to reconsider that decision.  The trial court should have denied Defendant’s motion and retained jurisdiction over the case because there are no “special equities” present that would justify a departure from the strong presumption in favor of this first-filed action.
[brief] Further, and related to the second point herein, the decision of the court below was based upon its conflation of the [...] approval limited to the provision of a third connection which the court concluded was essential with the particular route sought to have the line take, which route was not approved by [...], was not essential, and was just one of multiple, feasible routes for the connection.  Again this necessarily amounted to an “as applied” analysis, which the court was not in a position to undertake due to the lack of a record of how the Ordinance was applied.
[brief] Because arbitration between [...] and [...] would have been futile until the settlement of the Utilities --- 8  The facts of Potomac show precisely why arbitration at the outset of this litigation would have been futile and simply multiplied proceedings as the plaintiff and one insurer arbitrated and resolved the claim, and the insurer was then subjected to a separate suit for contribution of defense payments despite its settlement with the insured.  Potomac, 215 N.J. at 415-516.  Litigation and the other insurers’ contribution claims were resolved, failing to initiate what would have been, at the time, a wasteful and meaningless arbitration is not grounds for waiver.
[brief] See Miller v. Americollect, Inc., 2022 WL 20470401, at *9; Ciccone v. Cavalry Portfolio Servs., LLC, 2021 WL 5591725, *5 (E.D.N.Y. Nov. 29, 2021); Barclift v. Keystone Credit Servs., 2022 WL 444267 at *9; [...] Transcript, T10 22-25 (“[A] literal interpretation of the act is – I’ll say this word – ridiculous, in this type of business in this type of field. ”); [...] Decision at pp.10-11.  Appellant’s interpretation of § 1692c(b) would lead to several other absurd results that are plainly in conflict with the statutory scheme as a whole.  For instance, it would prohibit debt collectors from communicating with the courts and their staff.  After all, aside from permitting communication with the debt collector’s attorney, § 1692c(b) contains no additional carve-outs for courts and their staff, just as it contains no carve-out for letter vendors or other service providers.
[brief] The parties disagreed over whether the two snow removal agreements should be admitted – Plaintiff sought to move them into evidence, but Defendants objected.  (7T 73:15-19).  More specifically, Defendants objected to having the physical contracts submitted to the jury at deliberation and suggested that the jury should rely on its recollection of the testimony about these contracts.  (7T 73:21-74:6).  The trial court, however, determined that the jury should be permitted to see the actual contracts since the jury heard testimony on these contracts.  (7T 73:14-18).  At the charge conference, there was significant discussion and argument regarding the proper jury instruction to charge.  Defendants submitted that the court should, at the least, charge Model Civil Jury Charge 5.20B(2)(b) governing the commercial landowner’s duty to remove snow and ice from public walkways, or that the court could use a hybrid charge using 5.20B(2)(b) as well as the general charge governing the landowner’s duty to invitees under *Model Civil Jury Charge* 5.20F(5).
[brief] Although municipal decisions carry a presumption of validity, see Witt v. Borough of Maywood, 328 N.J. Super. 432, 442 (Law Div. 1998), aff’d, 328 N.J. Super. 343 (App. Div. 2000), arbitrary and capricious action is invalid and must be overturned.  Worthington v. Fauver, 88 N.J. 183, 204 (1982).
[brief] Da488 (Aug. 22 Tr. at 270:21-24 (Q: “Yes or no: Is paying zero within the spirit of this?” A: “I would think that there’s some payment that [...] is due. ”)); Da491 (Aug. 23 Tr. at 235:16-21 (Q: “You want your money back…because you’re saying all of that does not count?” A: “We want our money back. ”)).  Rather, the arbitral record unequivocally established that over a multi-year period, [...] and [...] continually updated the Backlog and Pipeline lists via new versions exchanged in good faith of Backlog and Pipeline schedules, in-person mutual agreements, and many email communications.
[brief] Second, the trial court found that [...] controlled the defendants’ finances.  (26T30:15-19; 33:6-9; 37:1-3; 27T79:7-16; 88:21-25).  He moved funds where and when he wanted, to the Plaintiffs’ detriment.  A result that apportions liability severally would penalize the Plaintiffs, who have already suffered as a result of the defendants’ bad faith conduct, by requiring them to chase different groups of defendants for different “pots of money”—an illogical outcome given the trial court’s findings as to the defendants’ conduct and the maze of accounts that the defendants established.
[brief] Furthermore, it was [...]’s unlawful seizure of the CHR on January 11, 2006, being the sole source of the publication resulting in an unprecedented violation of privilege by [...]’s prior counsel and an unprecedented violation of Due Process when the CHR was seized without notice, a hearing or a warrant.  It’s hard to imagine a greater violation of [...]’s right under the New Jersey Supreme Court Article 1 ¶ 7 to have his private papers seized without a warrant.  It is well-settled that RPCs cannot form the basis of a cause of action, however, a fraud upon the court can be raised at any time of the proceedings.
[brief] 1 CONCLUSION ..........................................................................................................................  5  TABLE OF JUDGMENT(S), ORDER(S), RULING(S), AND DECISION(S)  ON APPEAL  Order Granting Summary Judgment and Dismissing  Plaintiff’s Complaint (04/29/2024)  ........................................ PA162-163  Oral Decision (3/1/2024)  ..................................................................................................................  1T1-19  TABLE OF CITATIONS  Cases  N.J.S.A. 39:6A-4.5(a) ...........................................................................................................2  LEGAL ARGUMENT  With regard to the above-captioned matter, our office represents the plaintiff/appellant, [...], in the within captioned appeal.  Kindly accept the within as a Reply Brief to the defendants/respondents’ Opposition Briefs.  As stated in plaintiff/appellant’s appeal, this case involves a very narrow issue: whether summary judgment should have been granted against plaintiff on the issue of failure to comply with New Jersey’s mandatory insurance coverage laws where plaintiff was denied coverage based upon a material misrepresentation in spite of the fact that he notified his insurance company of a change of address to New Jersey prior to the accident.
[brief] It is undisputed that [...] and [...] are both physicians who are Board Certified and specialize in Internal Medicine.  See 68a-76a, Answer of [...], MD, ¶ 7 (stating “…Joseph Fleischer, M.D. was a physician licensed to practice medicine in the State of New Jersey with a specialty in Internal Medicine and worked as a “Hospitalist” at [...]…”); see also 38a-39a, Certification of [...], M.D., PhD (stating “I am a licensed physician, am Board Certified in Internal Medicine, and I am Board Certified in Hematology and Oncology.”).  It is anticipated that [...] will argue that he was a “Hospitalist”, while [...] was only a specialist in Hematology and Oncology.  According to the ABMS, Hematology is defined as “[a]n internist (hematologist) with additional training who specializes in diseases of the **blood**, spleen, and lymph.  This specialist treats conditions such as anemia, clotting disorders, sickle cell disease, hemophilia, leukemia, and lymphoma. ”  180a.  The Appellant’s Complaint alleges negligence causing complications of the blood, which falls under the definition of Hematology.  2a-3a.
[brief] Defendants asserted that they had reached accord an satisfaction of [...]’s claim for unpaid compensation of $10,000.00.  (Volume 1, Pa. 31; See Defendants Nineteenth Affirmative Defense; Volume 1, Pa. 149; See Defendants’ Statement of Undisputed Material Facts, Paragraph 9).  Defendants never produced a copy of the $10,000 check or any agreement with [...] demonstrating an intent to settle his $255,000 claim for $10,000and [...] denied receipt of the check and the existence of settlement agreement.  (Volume 1, Pa.86; See Bellifemine Dep, TR86-14 to 88-14).  Despite [...]’s testimony that the $255,000 claim was based on the statement from [...]’s accounting employee [...] advising him what he was owed in December of 2017, Defendant claimed without any supporting documentation in the record below that defendants were entitled to summary judgment because [...] had no basis to calculate his damages.(Volume 1 and 2 Pa. 143 to 369).
[brief] This Court, as well as other authorities, have clearly held otherwise (e.g. “the acceptance by the contestants of the offer tendered by the sponsor of the contest creates an enforceable contract. ”)  The fourth error was the trial court’s misapplication of the doctrine of accord and satisfaction (which would have been the defendants’ burden to prove, which they did not even attempt to do).  This Court has made clear that in the absence of such proof, the defense of accord and satisfaction is unavailable.  Lastly, the undisclosed clause makes no sense.  The defendants could not explain why this rule even exists, despite the fact that defendant [...] had actually written the [...] rule book.  Thus based on the foregoing, I respectfully submit that this Court must reverse the trial court’s dismissal of my claims.
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[brief] 63  Vujosevic v. Rafferty, 844 F.2d 1023 (3rd Cir. 1988) .................................  35  STATUTES  N.J.S.A. 1:1-1 ..............................................................................................  44 N.J.S.A. 2C:3-4 ...........................................................................................  44 N.J.S.A. 2C:3-4b(2) .................................................................................. 32  PROCEDURAL HISTORY
[brief] The determinations made by the arbitrator or agency are entitled to preclusive effect "if rendered in proceedings which merit such deference."  Hernandez, supra, 146 N.J. at 660, 684 A.2d 1385….  The proceeding must entail the essential elements of adjudication….  [Konieczny v. Micciche, 305 N.J. Super. 375, 384-385 (App. Div. 1997)].  This Court has ruled that claim preclusion extends to relabeling arbitrated claims under different theories but based on the same facts: