ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ADMISSION OF DEFENDANT’S ENTIRE MIRANDA STATEMENT WAS LAWFUL  Prior to waiving his Miranda rights, defendant took pains to ensure that his general waiver of the right to remain silent would not preclude him from not answering specific, individual questions:  Oh, I’m not saying that I would no longer want to talk to you, what I’m saying to you is that if in the course of you asking me these questions, if a particular question is a question that I didn’t want to answer and I wanted to use that right [to silence] ... [d]oes that stop the questioning, because that’s not what I would be looking to do, I wouldn’t be looking to say from this point forward, I don’t wish to be speaking to you, I would just not wish to be answering that particular question.  Pa4-5; (17T:29-21 to 31-3).  The interrogating detectives assured the defendant that they would respect his decision to not answer specific questions, see Pa5- 6; (17T:31-6 to 32-15), and did so throughout the interrogation, see, e.g., Pa16, 24-25, 29, 32, 34, 35, 43, 48, 49, 54, 58, 59-69; (17T:47-20 to 47-22; 59-5 to 61-15; 66-22 to 68-6; 72-2 to 72-7; 76-3 to 76-4, 78-11 to 78-12; 88-10 to 89-22; 94-16 to 95-16; 96-4 to 97-10, 103-10 to 103-15, 108-17 to 108-18, 110-6 to 124-14).
[brief] Further, “the concept of ‘substantially consistent’ permits some inconsistency, provided it does not substantially or materially undermine or distort the basic provisions and objectives of the Master Plan. ””  Myers v. Ocean City Zoning Bd. of Adj., 439 N.J. Super. 96, 104 (App. Div. 2015) (quoting Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 384 (1995)).
[brief] See *State v. Pineiro*, 181 N.J. 13, 21 (2004) (internal quotation marks omitted); see also *Carty*, 170 N.J. at 647-48.  “[N]either inarticulate hunches nor an arresting officer’s subjective good faith can justify infringement of a citizen’s constitutionally guaranteed rights. ”  *State v. Alessi*, 240 N.J. 501, 518 (2020) (quoting *State v. Arthur*, 149 N.J. 1, 8 (1997)).  The police needed reasonable suspicion of criminal activity to prolong detention after completing the tasks related to the traffic infraction and to ask for consent to search.
[brief] All of the allegations in the Underlying Action that [...] relies on were made in support of [...]’s defamation claim and not [...]’s tortious interference claim.  (Da72-Da73, compare Count I to Count II).  For example, [...] routinely argues that [...] generally alleged in his tortious interference claim that “[...] knowingly made these untrue statements with the ‘malicious[] inten[t] to injure . . . [[...]]’s . . . practice[,] good name and profession’ by causing [...] ‘infamy and disgrace. ” (Da61).  That allegation, however, as well as the other allegations relied on by [...], were alleged by [...] in his defamation claim, and not in [...]’s tortious interference claim.  (Da72-Da73, compare Count I and Count II).  Indeed, these same allegations were raised by [...] in his initial complaint, which only asserted a defamation claim and was ultimately dismissed.  (Da60a-63a)  III.
[brief] Executive Order MEO-08-2008 encourages all employees to seek elective office without fear of retribution or retaliation for exercising their Freedom of Speech.  *Whereas, [...] recognizes the great value in its employees or appointees...  Whereas elected office is a significant and powerful way to make contributions to the larger good of the City; and ...[l]oss of employment to pursue these higher ideals run contrary to the fundamental principles of democracy....
[brief] See Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449-50 (2005) (“The evidence of pretext may also be sufficient to satisfy the plaintiff's burden of proving the prima facie case causation prong.  In other words, the same evidence that demonstrates a question of fact as to whether the employer's proffered reason for the adverse employment action is pretextual can also be used to establish that the adverse action was taken for a discriminatory reason. ”)  Here, Plaintiff has presented evidence to support this connection and from which a jury could determine that the stated reason given for Plaintiff’s termination is unworthy of credence.  It is reasonable for jury to determine that if Defendant [...] had approved the charge pay, either explicitly or implicitly, that the termination justification is pretextual.  If the termination was pretextual, then it is up to the jury to determine what the true reason for termination was, be it retaliation for protected activity or some other reason altogether.
[brief] Coventry Square, Inc. v. Westwood Zoning Bd. of Adj., 138 N.J. 285, 301 (1994).  "If denial of a variance or waiver which is required for a proposed subdivision plan would be arbitrary or unreasonable, the need for the variance or waiver cannot justify rejection of the subdivision proposal."  Green Meadows at Montville, L.L.C. v. Planning Bd., Montville, 329 N.J. Super. 12, 18-19 (App. Div. 2000).  Compare, Grungo v. Robles, 256 N.J. Super. 233, 238 (planning board reasonably denied waiver of site plan review, where there were legitimate safety and aesthetic concerns about rebuilding nonconforming gas station); Morris County Fair Housing v. Boonton Twp., 230 N.J. Super. 345, 347-48 (App. Div. 1989) (planning board should have granted waiver from landscape buffer requirement, where easement prohibited same).
[brief] Based upon the foregoing, Appellants respectfully requests that the Court (i) grant Appellants’ appeal; and (ii) grant such other and further relief as the Court deems just and proper.  Respectfully submitted, /s/ [...]  [...] (Attorney ID # 049081988)  cc: [...], Esq. (by Ecourts)  [...], Esq. (by ECourts)  Ms. [...] (by e-mail)  February 13, 2025  Superior Court of New Jersey  Appellate Division Hughes Justice Complex 25 W. Market Street P.O. Box 006 Trenton, NJ 08625  RE: [...]/Respondent v. Block 270, Lot 14 [...], [...], State of New Jersey  Assessed to: [...], [...] and [...] (Appellants); [...] (Intervenor/Respondent)  Docket No. [...]  Docket Below: [...] Sat Below: Hon. [...], J.S.C. and Hon. [...], J.S.C.  Dear Judges of the Panel:
[brief] As is alleged in the 2015 case\(^1\) and as alleged in the 2020 case, the 2015 matter and this matter involve the same complex legal malpractice action that arises out of the same complex land transactions involving land in Gloucester County, New Jersey known as Pork Chop Hill Assemblage (“PCHA”), zoning approvals, and the options available to a developer in making its fair share affordable housing contribution involving multiple parties and multiple lawsuits.  The issues were raised in the Plaintiffs' original Complaint filed in 2015, were raised in plaintiff’s proposed Fourth Amended Complaint, which was properly barred by the trial court, and were also raised in 2020 lawsuit that is the subject of this appeal.  The allegations raised by plaintiffs at all avenues in the 2015 case and --- \(^1\) Plaintiffs/Appellants’ appeal of the trial court’s decisions in the 2015 case is presently under Appellate Docket No. [...].  in this action, implicate the standard of care concerning the legal representations by [...] and the [...] firm; communications as counsel; and allegations pertaining to disbursement of funds from the [...] Trust Account; and [...]’s supervision of [...] when he was an attorney with the firm.  In the 2015 case, plaintiffs failed to provide an Affidavit of Merit to substantiate their claims against [...] and [...], which led to the Complaint being dismissed, with prejudice, on January 19, 2016.  Because Menas and [...] were dismissed for plaintiffs’ failure to secure an Affidavit of Merit, no discovery responses were served or exchanged between plaintiffs and Menas and [...].  Plaintiffs, over four years after Menas and [...] have been dismissed from the 2015 case, with prejudice, improperly attempted to file a frivolous lawsuit pleading the same issues raised in the 2015 case.  The same was summarily and properly struck down by the trial court and fees and sanctions were properly awarded on behalf of the [...] defendants, and it is respectfully submitted that this Court affirm those proper rulings.
[brief] *Miller* is not implicated, nor is it cited for the proposition defendant advances.  As [...] explained, defendant’s conviction in this matter and his prior endangering conviction involve “two separate victims, two separate timeframes, and clearly, two separate factual circumstances. ” (2T41-6 to 8).  The convictions are thus not closely related.  The record belies defendant’s final claim, that [...] did not articulate the overall fairness of the aggregate sentence.
[brief] ]  Q: *When you see a crosswalk, does it focus your attention that there could be pedestrians crossing at that point?*  A: *Yes, yes.*  Q: [*…*] let’s go to the back parking lot, the one where you hit [...].  *Did you see any signs that say yield to pedestrians, pedestrian crossing?*  A: *There were no signs*- *there were no signs that say that.*  There is signs that say patient and visitor parking this way.  *But there was nothing that said pedestrian on it or road lines.*  [Pa318 (68:8-22) (emphasis added). ]  Eyewitness [...] also testified that the presence of pedestrian crossing safeguards in the distant designated parking lot would have made it safer:
[brief] Q.  A bankruptcy attorney representing a client for debt consideration, trying to adjust, compromise, or modify a creditor’s claim would be a debt adjuster, right?  A. Correct.  *** Q.  An attorney who’s licensed in the State of New Jersey, who does nothing but bankruptcy work, they appear on a regular basis in bankruptcy court, that attorney should be mindful not to be principally engaged in debt-adjustment work because if they are, they would be in violation of the statute?  A.  Yes.  Pa0047 at 41:7-11; 58:11-18.  Additionally, [...] acknowledged that an attorney would violate the Act regardless even if the attorney did excellent work and the client is very happy with the services provided.
[brief] As common in complex real estate purchase and sale agreements, the PSA contained a stipulated clause limiting the parties’ remedies in the event of a default.  See Wasserman’s Inc. v. Twp. of Middletown, 137 N.J. 238, 252 (1994).  “Sophisticated parties acting under the advice of counsel often negotiate stipulated damages clauses to avoid the cost and uncertainty of litigation. ”  *Id.*  Section 13.1 of the PSA provided Plaintiff, a counseled and sophisticated party, with the right to abandon the deal if [...] defaulted in its obligations under the PSA.  In Section 13.1, Plaintiff agreed that, should [...] default prior to closing title under the Mack-Cali Transaction, Plaintiff’s sole remedy was termination of the agreement with the refund of its Deposit.  Upon Plaintiff’s valid election to terminate the transaction, the PSA was deemed irrevocably terminated and all obligations to close the transaction permanently ceased.
[brief] BECAUSE NEITHER THE LOWER COURT NOR PLAINTIFF  SATISFIED THE REQUIREMENTS TO GRANT  SUMMARY JUDGMENT  (Not raised below)  Db18  A.  Plaintiff was incorrect to state there as no genuine issue of material fact.  Db18  B.  Plaintiff failed to show it was entitled to summary judgment as a matter of law.  Db19  C.  The lower Court failed to state that Plaintiff was entitled to summary judgment as a matter of law.  Db20  VI.
[brief] Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994).  Employers are free to make personnel decisions objectively or subjectively, even unpopular personnel decisions, so long as unlawful conduct is no factor in those decisions.  See Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 345-46 (App. Div. 1997).  Specifically:  To discredit the employer’s proffered reason, however, the plaintiff cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.  Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.  [Fuentes, 32 F.3d at 762 (emphasis in original) (internal citation and quotation omitted). ]  [...] principally contends that [...]’s alleged sudden focus on [...]’s unauthorized receipt and entry of charge pay was pretext for her retaliatory termination because [...] “turned the tables,” (see Pb2), away from her own alleged misconduct.
[brief] (Referred to as “PI Plaintiffs”).  VI.  The relevant clauses of the [...] Contracts include:  I.  The PI Plaintiff sells to [...] a portion of the Proceeds from their claim.  (the “Claim”)  II.  The Contracts set forth the Amount Purchased, which includes the following: 1.  Purchase Price (the amount provided to the PI Plaintiff); 2. the Origination fee; 3. the Broker Fee; 4. the Delivery Fee; and 5. the Accrual Rate.  III.  The contract is titled “Lawsuit Funding Agreement. ”  AA202-AA203  VII.  The Contracts allow the PI Plaintiff to cancel the [...] Contract within seven (7) business days from the date the PI Plaintiff receives the funding.  VIII.  On August 6, 2015, [...] “suffered a personal injury from the negligence of another.
[brief] At that point, [...] interrupted the Judge.  [...] asked if he objected to the question.  [...] stated:  MR. GALLAGHER: It is an objection.  I'm asking as to the relevancy of a forwarding email.  If- - if [...]'s getting at or trying to state that somehow that this document, which she indicated before that somehow [...] could have altered or changed the document or done something to that effect, then we're going down a whole other -- a whole other line of testimony.  [...] has just testified that he got the change, he forwarded the change to me, I forwarded the change to everybody else.  How is a forwarding email remotely relevant to the change of beneficiary form that was accepted back in 2001?
[brief] Crawn v. Campo, 136 N.J. 494, 512 (1994).  Rule 4:49-1(a) provides that the Trial Court “shall grant” a new trial “if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law. ”  A “miscarriage of justice” is a “pervading sense of wrongness. ”  Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977).  This sense of wrongness can arise in many ways including a manifest lack of inherently credible evidence to support the verdict, improper evidentiary rulings, or improper comments made by counsel during opening and closing arguments.  Id.; see also; Hill v. N.J. Dept. of Corrs. Com’r., 342 N.J. Super. 273, 302 (App. Div. 2001), certif. denied, 171 N.J. 338 (2001); see also; Bender v. Adelson, 187 N.J. 411, 431 (2006).  It has been recognized that the cumulative effect of multiple errors may warrant a new trial even if the individual errors in isolation would not require a new trial.
[brief] B.  Expert Admissibility.  A ruling on admission of expert testimony is reviewed for an abuse of discretion.  *In re Accutane Litig.*, 234 N.J. 340, 348 (2018).  To offer an admissible opinion on a scientific or specialized topic, an expert must be “qualified,” N.J.R.E. 702, and the opinion must be based on sufficient facts or data, N.J.R.E. 703.  The expert’s proponent has the burden to satisfy three requirements: “(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. ”  *In re Accutane*, 234 N.J. at 348.  When an expert provides a “mere conclusion” that lacks a foundation, a reliable methodology, and the “why and wherefore,” it must be excluded as an inadmissible “net opinion. ”  *Davis*, 219 N.J. at 410.  The trial court must be “the gatekeeper” and “rigorous[ly]” assess the methodology and data to prevent the jury from hearing unsound science “through the compelling voice of an expert. ”  *In re Accutane*, 234 N.J. at 389-90, 396-97.  Not excluding unsupported and unreliable expert opinions is error clearly capable of producing an unjust result.  *Lanzo v. Cyprus Amax Minerals Co.*, 467 N.J. Super. 476, 517-18 (App. Div. 2021).  II.
[brief] Having said that, however, it is well to remember that speculation, conjecture and possibilities are still not enough.  *Id.* (quoting *Beeber v. Norfolk Southern Corp.*, 754 F.Supp. 1364, 1368 (N.D.Ind.1990)(citations omitted in the original).  The essential element of reasonable foreseeability in FELA actions requires proof of actual or constructive notice to the employer of the defective condition that caused the injury in order to satisfy the element of breach.  *Sinclair v Long Island R.R.*, 985 F.2d 74, 76-77 (2d Cir. 1993)(citations omitted).  The Third Circuit's interpretation of FELA is consistent with the above interpretations “before [an] employer can be charged with negligently failing to provide a safe workplace [in violation of FELA], he must have actual or constructive knowledge of the defective condition. ”  See *Sano v. Pa. R. Co.*, 282 F.2d 936, 938 (3d Cir. 1960); see also *De Pascale v. Pa. R. Co.*, 180 F.2d 825, 827 (3d Cir. 1950) (stating that “proximate cause and knowledge” are vital elements of a FELA claim); see also *Wisowaty v. Port Authority Trans-Hudson Corp.*, 2013 WL 103385 at *3 (D.N.J. 2013) (“Most other circuits are in agreement and ‘equate foreseeability with notice, either actual or constructive.
[brief] In addition to the testimony of the parties, Plaintiff offered several photographs of the vehicles and the accident scene.  Exhibits P-1, P-2, and P-3 depict the Plaintiff’s vehicle and the [...] van and where they came to rest at the scene.  Da157-159.  The photographs establish that the impact between the [...] van and the Plaintiff’s vehicle was north of the intersection, which means Plaintiff never even reached the intersection.  Ibid.  Exhibit P-5 shows the damage to the [...] vehicle, in the front-right portion of the vehicle.  Additionally, [...] offered into evidence a portion of the police report that contained the statements each party gave to [...] at the scene of the accident.  Da171.  Plaintiff also played a portion of the dashcam video taken from [...]’s patrol car, which included the audio from that video.  Da170.  Significantly, the trial court excluded from evidence a diagram prepared by [...] based on his personal observations of the vehicles at the scene.  2T:99-22 to 105-23.  The totality of the evidence presented at trial simply does not support the conclusion that [...] was negligent or that any act of negligence by [...] was a proximate cause of the accident.  By allocating 60% of the total fault for the accident to [...] and zero to Plaintiff, the jury necessarily concluded that the traffic light was yellow for traffic on Route 54 and red for traffic on Jackson Road.  There is no other possible conclusion.  That means [...] — who undisputedly reached the intersection before Plaintiff — had a yellow light and had the right of way over [...].  This is significant because Plaintiff’s and [...]’s argument at trial was that [...] was far enough away from the intersection when the light changed to yellow that he could have and should have stopped his vehicle.  Accepting Plaintiff’s version of events as true, which the jury did, means that [...] and Plaintiff had to be a similar distance from the intersection when the light turned yellow.  Plaintiff described that distance as “very close. ”  3T:169-20 to 170-1.  [...] was traveling at a speed similar to Plaintiff, but the jury’s verdict means [...] traveled a much further distance than Plaintiff’s vehicle during the same period of time while traveling at a similar speed.  This is an irreconcilable inconsistency in the jury’s verdict that led to an unjust result and a grave miscarriage of justice.
[brief] Righting the “wrong” done by that behavior had nothing to do with compensating Plaintiff for his injuries and everything to do with punishing the Defendants for disputing their nature and extent.  Attributing Plaintiff’s lost wages and inability to obtain treatment to the Defendants’ failure to “do the right thing” compounded the prejudice inherent in the argument by giving the jury bases to attribute economic as well as non-economic harms to Defendants’ alleged failure to take responsibility for their actions.  CONCLUSION
[brief] Defense counsel disagreed that plaintiffs’ counsel was permitted to do so pursuant to the holding of State v. Lavrik, 472 N.J. Super. 192, 215-217 (App. Div. 2022), which held that a guilty plea entered as a condition of admission to PTI is in inactive status and considered nonevidential.  [Da306-Da324]  Plaintiffs’ counsel contacted the court and the court heard oral argument.  The Court concluded there was no applicable privilege and plaintiff could proceed with questioning [...] on his guilty plea and factual allocation.  [1T13-12 to 24; 1T21-7 to 9]  The court reserved on the issue of admissibility.  [1T13-12 to 24; 1T1-7].  As counsel had potential Fifth Amendment concerns, the deposition was stopped and adjourned by defendant [...]’s counsel over protests of plaintiffs’ counsel.  [Da229-Da230; Da416]  Thereafter, plaintiffs filed a motion to enforce litigant’s rights against [...] to compel the continuation of his deposition and to answer questions concerning his criminal plea allocution [Da226-Da411], and defendant [...] filed a cross-motion for an order to memorialize the court’s decision of May 13, 2024 and for a civil stay while interlocutory appeal was sought.
[brief] BECAUSE THE NET RESULT IS THE SAME, NAMELY SUCH PROVISIONS LEAVE DEFENDANTS UNDERINSURED AND PLAINTIFFS WITHOUT RECOUPMENT FOR RECOVERY.  Defendant’s brief spends a significant amount of time attempting to draw a meaningful distinction between excess and primary insurance policies in the context of intrafamily liability exclusions/step-downs.  As it relates to the public policy argument raised by plaintiffs, there is no material difference whether the intrafamily exclusion is used to significantly reduce the liability coverage that a consumer has paid for as within a primary or excess policy.  The rationale and concerns expressed in the Court’s decision in Dela Vega v. Travelers Ins. Co., A-2272-19 (App. Div. May 6, 2022), certif. denied, 252 N.J. 234 (2022) was not, in any way, premised upon the policy at issue being a primary automobile insurance policy rather than an excess/umbrella policy.
[brief] *Lehmann*, 132 N.J. at 604-04.  For the purposes of establishing and examining a cause of action, the Plaintiff must show: the complained-of conduct (1) would not have occurred but for the employee's protected status; and it was (2) severe or pervasive enough to make a (3) reasonable person of the same protected class believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.  *Id.*  It is important to note that it is the harassing conduct that must be severe or pervasive; Plaintiff need not prove that her injury was severe, nor need she prove that the alteration of conditions of employment was itself severe.  *Taylor v. Metzger*, 152 N.J. 490, 499 (N.J. 1998) (citing, *Lehmann v. Toys R Us, Inc.*, 132 N.J. 587 (1993); *Muench v. Township of Haddon*, 225 N.J. Super. 288, 299 (App. Div. 1992); *Rendine v. Pantzer*, 141 N.J. 292, 312 (1995) (Finding that a LAD Plaintiff can recover for emotional distress even without an expert report.) (emphasis added).