ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] In *Lingar v. Live-In Companions, Inc.*, 300 N.J. Super. 22 (App. Div. 1997), the plaintiff sued an employer retained to provide home care for her disabled husband.  The employer assigned an individual with prior convictions for drug distribution and receiving stolen property, who then proceeded to neglect the patient and steal the couple’s car and other personal property.  This Court reversed summary judgment, finding there was sufficient evidence that the employer could have obtained information of the employee’s prior convictions.  *Id.* at 32-33.  Accordingly, the plaintiff must present evidence of an employee’s particular attribute – whether relative to the work assigned or a product of innate character – that gives rise to a foreseeable risk of harm to third parties in the absence of adequate supervision or training.
[brief] At all times, however, Appellant bears the ultimate burden of proving unlawful retaliation.  See id. at 507.  The undisputed record evidence demonstrates that Appellant fails to establish the prima facie elements of a CEPA claim for two reasons.  First, Appellant did not engage in whistleblowing activity because simply knowing of illegal activity is not enough to constitute whistleblower activity under the statute.  Second, Appellant’s CEPA claims also fails because there is no causal connection between Appellant’s comment to [...] at the close of the July 16, 2020 investigation meeting regarding Appellant’s misconduct and Appellant’s termination on November 12, 2020.
[brief] Aa84.  The appeal as to [...] was dismissed with prejudice pursuant to a Stipulation of Dismissal filed with the Court on February 29, 2024. and solve those specialized problems. ”  Ibid. (citation omitted).  Moreover, courts “extend substantial deference to an agency’s interpretation of its own regulations. ”  In re FWW GP7, 405 N.J. Super. at 213 (citation omitted) (emphasis added).  This Court has recognized that “[a]n agency’s interpretation of its own rule is owed considerable deference because the agency that drafted and promulgated the rule should know the meaning of that rule.
[brief] ”).  Unlike the defendant in Roberto, who obtained a reversal of the foreclosure judgment itself, takings claimants generally cannot get equitable relief.  Knick v. Twp. of Scott, 588 U.S. 180, 199–200 (2019).  The Takings Clause inherently contemplates retroactive monetary relief when property is taken without compensation.  See id.; United States v. U.S. Coin & Currency, 401 U.S. 715, 722–24 (1971) (“No circumstances call more for the invocation of a rule of complete retroactivity” than where unconstitutional forfeitures are involved).  State courts must order just compensation on a fully retroactive basis for Tyler-style takings.  See Harper, 509 U.S. at 100 (state courts are bound by federal retroactivity doctrine when adjudicating issues of federal law).  This Court should clarify its holding in Roberto to explain that while foreclosures should only be overturned under Tyler for cases in the pipeline, the just compensation remedy is mandatory for all takings regardless of whether the case was filed before or after the Tyler decision.
[brief] TABLE OF ORDERS BEING APPEALED  [...] relies upon and incorporates by reference herein the Table of Orders Being Appealed as it appears in its initial Brief, at Pb4.  PROCEDURAL HISTORY  [...] relies upon and incorporates by reference herein the Procedural History as it appears in its initial Brief, at Pb8-Pb10.  STATEMENT OF FACTS  [...] relies upon and incorporates by reference herein the Statement of Facts as it appears in its initial Brief, at Pb10-Pb13.  LEGAL ARGUMENT  MR. CILENTO’S APPEAL SHOULD BE GRANTED, AND THE [...]’S FINAL AGENCY DECISION REVERSED
[brief] DATED: November 15, 2024  CERTIFICATION  1.  Confidential Information / Confidential Personal Identifiers (must select one).  I certify that I have reviewed Rules 1:38-3, 1:38-5, and 1:38-7 and:  ☒  This document or pleading does not contain any confidential information or any confidential personal identifiers, or ☐  This document or pleading previously contained confidential information or confidential personal identifiers, which have been redacted or anonymized, including through the use of fictitious first names or initials.  The cover of the redacted version of the document or pleading contains the word "REDACTED."  I acknowledge that a non-redacted version must be filed contemporaneously with the redacted version in matters where the confidential information is necessary to the disposition of the matter.  2.  Return and Resubmission.  I certify that if any confidential information is discovered in this submission and brought to the court's attention, the court will return the document or pleading to me, and I will be responsible to redact or anonymize the confidential information before resubmission.  I understand the court may impose sanctions, including suppression of the brief, dismissal in extraordinary cases, and other measures for a failure to accurately make this certification or for the discovery of confidential information in a document that has been filed.  3.  Briefs Posted Online.  I understand that the presence of confidential information or confidential personal identifiers in a document that has been posted on the Judiciary's public website will be grounds for the removal of such online posting, pending correction by the filing party, on an expedited timeline.  The court in its discretion may postpone further proceedings pending the resubmission of the document.  /s/  [...]  [...]  Deputy Attorney General  DATED: November 15, 2024
[brief] Id. at 444.  The Court found that Defendant [...] was obligated to disgorge all monies which he received as a result of his improper self-referral of his patients to [...] in violation of the applicable laws.  Id. at 442, 445-446.  The Court similarly characterized the remedies available to an insurance carrier under the Fraud Act as restitutionary in nature in the matter of Lesniewski v. W.B. [...] Corporation, 308 N.J. Super. 270 (App. Div. 1998).  There, [...] submitted a workers' compensation claim under a policy issued to [...] ([...]).  Lesniewski failed to disclose to [...] that he was working while collecting unemployment insurance benefits.  The Defendant argued that the Plaintiff's failure to disclose that he was working violated the Fraud Act permitting it to deny his claim for workers' compensation. benefits.  The Court rejected the Defendants’ argument stating that the “restitutionary provisions” of the Fraud Act did not provide for the denial of an insurance claim submitted by the injured plaintiff/employee.
[brief] N.J.S.A. 27:23-3(A).  Based on correspondence from the [...]’s claims management company, Plaintiff’s counsel was originally told that Defendant [...] had a contract with Defendant [...] to perform work on the Garden State Parkway in the area of Plaintiff’s incident.  (Pa1760).  Accordingly, when the initial complaint was filed the Complaint in this matter was filed on September 7, 2016 against the [...] and [...]
[directive] In any instance where the Step 9: Announcement of Criminal Charges or matter is not presented to a Grand Jury, or where the matter is presented but the Grand Jury declines to criminally charge any of the Principals, the Independent Investigator shall prepare a statement for public dissemination, which shall comply with all rules of Page 13 Grand Jury secrecy and be reviewed by the Independent Supervisory Reviewer prior to release.  The statement shall include a summary of: 1. The factual findings of the investigation; 2. The legal analysis concerning the lawfulness of the Principal’s use of force; 3.  The results of the conflicts review conducted pursuant to Section II.C; and 4.  An explanation that the matter was reviewed by the Independent Investigator and the Independent Supervisory Reviewer.
[brief] (SSR p. 28 at Pa2743.)  Thus, Plaintiffs’ suggestion to look to the intent of the parties or reasonable expectations when determining “named insureds” under the CCIP can only lead to one conclusion: all parties, including [...], reasonably expected, understood, and intended that [...] was not enrolled.  While Plaintiffs assert that [...] of [...] “was asked to determine if [...] was enrolled under the CCIP” and, after reviewing the Wrap Up List, “concluded that [...] had been enrolled in the CCIP,” this argument sorely misses the point because [...] was explaining that the Wrap Up List was a cumulative list of every subcontractor ever enrolled, meaning, as [...] testified, the list included subcontractors “who were enrolled and are no longer enrolled,” such as those no longer working on designated projects or those that were erroneously enrolled (i.e., [...]).  (Vogt. Tr., at 14:15-23 at Pa2445.)  When asked if a contractor would “stay on that list even if they’re unenrolled,” she testified that was “correct. ”  (Vogt. Tr., 14:15-23 at Pa2445, and 32:17-33:1 at Pa2449.)  She also testified that she ultimately located [...]’s request to unenroll [...], as well the Cancellation Endorsement for the workers’ compensation component thereby removing coverage for [...] under the entire CCIP.  (Vogt Tr., 10:13-11:7, Pa2444.)  Additionally, Plaintiffs grossly mischaracterize a September 25, 2015 letter from [...] to [...] suggesting it proves [...] was enrolled in the CCIP.  (Pb21.)  Rather, this unsigned letter from an unknown author was purportedly sent by [...], which has no authority to enroll or unenroll contractors, states only that [...] is “CCIP Approved. ” (Pa427; [...] Tr., 130:3-13 at Pa2484.)  In other words, just as the Enrollment Status Reports state, beginning on September 16, 2015, after [...]’s COI was deemed compliant by [...] on September 4, 2015, [...] was “eligible” to work at the Project, but it does not say or mean [...] was “CCIP Enrolled” as Plaintiffs feebly imply.  (Pa2277-2278 and Pa2518.)  B.
[directive] Law Enforcement (“Standards”)  this  In 2021, law enforcement officers need only complete a single firearms requalification, which will comply with the requirement in N.J.S.A. 2C:39-6j that officers complete an initial firearms training course and then an annual qualification.  Therefore, pursuant to the authority granted to me under the New Jersey Constitution and the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, which provides for the general supervision of criminal justice by the Attorney General as chief law enforcement officer of the State in order to secure the benefits of a uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State, I hereby direct all law enforcement agencies operating under the authority of the laws of the state of New Jersey ensure that the officers they employ comply with the following policies and protocols.
[directive] In addition, if during the period of suspension you are convicted of personally operating a motor vehicle, you will be subject to the penalties set forth in N.J.S.A. 39:3-40:  Na condenação pela primeira infração, uma multa de $500; Upon conviction for a first offense, a fine of $500;  Na condenação pela segunda infração, uma multa de $750, e prisão na cadeia do condado por pelo menos 1 dia mas não mais do que 5 dias;  Upon conviction for a second offense, a fine of $750, and imprisonment in the county jail for at least 1 day but not more than 5 days;  Na condenação pela terceira ou infração subsequente, uma multa de $1.000, e prisão na cadeia do condado por 10 dias.  Upon conviction for a third offense or subsequent offense, a fine of $1,000, and imprisonment in the county jail for 10 days.
[brief] 2T:27-15 to 28-12.  More importantly, Plaintiff and [...] ignore the fact that [...] lied about his convictions at the time of his depositions.  The real probative value of [...]’s convictions was not the convictions themselves.  Rather, the true probative value rests in the misrepresentations he made under oath at the time of his deposition.  See Da89 at 41-1 to 42-23.  The trial court focused exclusively on the probative value of the convictions themselves and undervalued the probative value of [...]’s clear and undisputed misrepresentations at the time of his deposition.  The application of the incorrect legal standard and the undervaluing of the evidence of [...]’s misrepresentations at this deposition are exactly the type of error that our courts have characterized as an abuse of discretion.
[brief] As set forth in [...]’s appeal brief (Db18-19), among other requirements, [...] was required to have a containment system to prevent widespread spills (as occurred in this matter).  This property did not have any such containment system, such that the oil spill from [...]’s trailer discharged onto the ground and the adjoining river.  [...] is therefore liable for the costs of remediating the discharge.  Here, [...] not only failed to install a system that would have contained the spill, but claims that [...] is solely responsible for clean-up costs, despite [...]’s having failed to comply with a federal regulation that would have avoided the very damages it seeks to impose upon [...].  All of these factual issues should have precluded summary judgment for [...] against [...], for all of its claimed remediation expenses and damages; at a minimum, there should have been discovery to allow an equitable allocation of fault (Db22-23).
[brief] The Trial Court Erred in Concluding that [...] Could Never Prove [...] Lacked Probable Cause  In arguing [...] could never prove [...] lacked probable cause to file his criminal complaint, Defendants do not directly address: (1) Kirby’s admission that he made a false statement to law ¹  Our own research has not uncovered a single New Jersey case that has followed the Restatement of the Law (Third) Liability for Economic Harm § 21. enforcement (Da2542-Da2543); (2) Kirby’s admission that he never once saw [...] cross over the NBA dune to access the water line (Da2542; Pa323); (3) Kirby’s admission that he never saw [...] (or anyone else) break the NBA fence (Da2230-Da2232; Da2238); and (4) the municipal court’s finding that Kirby did not have probable cause.  (Pa87).  Those irrefutable facts, standing alone, should have led the trial court to conclude that a reasonable fact finder could find Defendants and Kirby lacked probable cause to file their criminal complaint against [...].
[brief] Under the MLUL, a municipality may create zoning districts and establish the uses allowed in those zoning districts (such as a residential or commercial zone) and may establish zoning standards governing development within those zones (such as minimum lot sizes, maximum development densities and heights, setback requirements, and the like).  Under the LRHL, a municipality may do the same thing by adopting a redevelopment plan to establish the zoning for a designated redevelopment area.  See N.J.S.A. 40A:12A-7.
[brief] Ja013.  In the course of the public hearings on their application, Plaintiffs offered the testimony of [...], Plaintiffs’ Chief Development Officer; [...], an industrial real estate expert; [...], P.E., Project Engineer; [...], P.E., sound expert; [...], P.E., PTOE, traffic engineer; [...], who prepared computer generated renderings of the proposed development; and [...], PP, AICP, professional planner.
[directive] that  R.  DEFENDANT'S SIGNATURE DATE I INTERVIEWER'S SIGNATURE DATE TITLE UDIR-3  Revised: 09/2017, CN: 10693  Uniform Defendant Intake: Superior Court of NJ  I  I  LAST NAME MIDDLE NAME  FIRST NAME 19, Family History  PARENTAL MARITAL/ CHILDREN HOME/ NEIGHBORHOOD/ ENVIRONMENT 110.  Military Service History I I BRANCH SERVICE PERIOD DISCHARGE DHONORABLE  OGENERAL OOTHER COMMENTS  I 11.  Education I I I  LAST SCHOOL YEAR  GRADUATE  MAJOR/ SPECIAL TRAINING YEAR GRADUATED CURRENTLY IN SCHOOL I COMPLETED (1-20)  DYES ONO 0GED DYES ONO I  LAST SCHOOL ATTENDED AGE  LAST ATTENDED COMMENTS  I 12.  I  Other Information Comments  COMMENTS  Revised: 09/2017, CN: 10693 UDIR-4
[brief] N.J.S.A. 2A:15-97 ..............................................  3 N.J.S.A. 2A:23B-6.b .............................................  1 N.J.S.A. 2A:23B-23.d.  ..........................................  9 N.J.S.A. 2A:53A-27 .............................................  4 N.J.S.A. 39:6A-1 et seq.  .......................................  Passim  LEGAL ARGUMENT POINT I THE PROVISION OF N.J.S.A. 2A:23B-6.b DOES NOT APPLY TO THE FACTS OF THIS CASE AS THERE WAS AN AGREEMENT TO ARBITRATE AND THE ARBITRATIONS WERE DECIDED PURSUANT TO THE CONTRACTUAL TERMS OF THE ARBITRATION AGREEMENT.
[brief] D.  The DACCA does not impose licensing and regulatory requirements on attorneys and does not subject attorneys to disciplinary actions.  Contrary to the [...]’s argument, the DACCA does not subject attorneys to licensing requirements or disciplinary actions by the Commissioner of the Department.  To the contrary, the DACCA exempts from its statutory reach attorneys who incidentally perform debt adjustment as long as that debt adjustment activity is not their principal activity.  N.J.S.A. 17:16G-1(c).  Importantly, the DACCA does not allow any individuals, whether or not they are attorneys, to apply for and obtain a debt adjuster license.  These licenses are reserved exclusively to nonprofit social service agencies and nonprofit consumer credit counseling agencies.  N.J.S.A. 17:16G-2(a) and (b).  Thus, attorneys do not, and cannot, apply for a debt adjustment license or be regulated by the Department.  Any person who is working for a licensed nonprofit company and performing debt adjustment is not separately licensed by the Department.  Thus, attorneys who do want their principal activity to be debt adjustment can, just as non-attorneys do, apply to work at a nonprofit agency that is licensed to perform debt adjustment.  While the DACCA empowers the Commissioner of the Department to institute an enforcement action for civil penalties and also seek injunctive relief for a violation of the DACCA, N.J.S.A. 17:16G-8, the Commissioner is not empowered to initiate an attorney disciplinary proceeding for professional misconduct.
[brief] ”  At that point, the assistant prosecutor stated, “Judge, I'm going to ask that on redirect.  I just want everybody to be on notice of that.  Thank you judge. ”  When the jury returned to the courtroom, defense counsel continued her cross-examination by again showing the six photographs to [...].  After three prior unsuccessful attempts to select defendant's photograph, now, for the first time, in front of the jury, [...] selected two photographs, one of which depicted defendant.
[brief] See *Kounelis v. Sherrer*, 529 F. Supp. 2d 503, 520 (D.N.J. 2008) (“[T]he spoliation inference serves the remedial function of leveling the playing field after a party has destroyed or withheld relevant evidence. ”); *United States* v. Ellis, 57 M.J. 375, 380 (C.A.A.F. 2002) (“An adverse inference instruction is an appropriate curative measure for improper destruction of evidence. ”); Fletcher v. Municipality of Anchorage, 650 P.2d 417, 418 (Alaska Ct. App. 1982) (citations omitted) (“There are many sanctions other than dismissal for a violation by the government of its duty to preserve evidence” such as “instruct[ing] the jury to assume that the video tape evidence would be favorable to the defendant. ”); Hammond v. State, 569 A.2d 81, 90 (Del. 1989) (finding no due process violation where state failed to preserve vehicle in vehicular-homicide prosecution, but noting defendant was entitled to jury instruction that it could infer that crash vehicle, if available, would have exculpated him); Cost v. State, 10 A.3d 184, 197 (Md. 2010) (“The application of the ‘missing evidence’ inference against the State in this case, as promulgated through a jury instruction, will help ensure that the interests of justice are protected.
[brief] --- ¹  The “Da” cites in the remainder of this “Reply Statement of Facts” are to documents that are attached to this Brief as a Supplemental Appendix.  The “Da” cites continue the numbering from the original Appendix that was submitted by Defendant with his Appellant’s Brief.  The reason that these additional documents are being submitted is because Plaintiff, in his Respondent’s Brief, raised a new issue—the timeliness of Defendant’s appeal.  The documents attached are relevant to that issue.  In view of the fact that the June 19, 2023 order entered in favor of the Administrator (Da 2491-2493) “Ordered” that “the within Order is the final order in this matter that concludes all issues and proceedings presently before the trial court in connection with this action,” Defendant appealed the Court’s August 31, 2022 interlocutory order at that time, which was within 45 days of the “final order” that “concluded all issues and proceedings” before the probate court in the matter.  LEGAL ARGUMENT POINT I PLAINTIFF’S ARGUMENT IN POINT I OF HIS BRIEF THAT DEFENDANT’S APPEAL IS BARRED BECAUSE IT WAS NOT FILED WITHIN 45 DAYS OF ENTRY OF THE AUGUST 31, 2022 ORDER IS WITHOUT MERIT BECAUSE THE ORDER WAS NOT A FINAL ORDER THAT RESOLVED ALL ISSUES AND CLAIMS AMONG THE PARTIES.
[brief] Plaintiffs also argue that [...]’s terms are procedurally unconscionable because [...] can understand only Spanish, and [...] made its terms available to her only in English.  See (Pb7–8).  There are two problems with Plaintiffs’ argument.  First, as a matter of New Jersey law, “limited knowledge of the English language, standing alone, is insufficient to constitute procedural unconscionability. ”  Maity v. Tata Consultancy Servs., Ltd., No. 19-cv-19861 (KSH) (CLW), 2021 WL 6135939, at *6 (D.N.J. Dec. 29, 2021); see Baymont Franchise Sys. v. SB Hosp. Palm Springs, LLC, No. 19-06954 (KM) (MAH), 2022 WL 2063623, at *4 (D.N.J. June 8, 2022) (“New Jersey courts have held that the mere inability to speak English is not sufficient to void a contract” for procedural unconscionability).
[brief] LEGAL ARGUMENT POINT I STANDARD OF REVIEW  Issues of law involving statutory interpretation are subject de novo review.  North Jersey Media Group, Inc. v. State, Office of Governor, 451 N.J. Super. 282, 296 (App. Div. 2017) (quoting Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).  However, an appellate court should not disturb a trial judge’s findings if they are “supported by adequate, substantial, and credible evidence. ”  Id. at 295 (quoting Zaman v. Felton, 219 N.J. 199, 215 (2014)).  Where interpreting a statute, the court’s goal is “to ascertain and effectuate the Legislature’s intent. ”  Kean Federation of Teachers v. Morell, 233 N.J. 566, 583 (2018) (quoting Cashin v. Bello, 223 N.J. 328, 335 (2015)).  To do that, courts should “look first to the statute’s actual language and ascribe to its words their ordinary meaning. ”  Id. (citing Mason v. City of Hoboken, 196 N.J. 51, 68 (2008)).  Courts should consider extrinsic evidence only where the statutory language is ambiguous.  Id. (citing Cashin, 223 N.J. at 335-36).  When interpreting issues of law arising under the Open Public Meetings Act, N.J.S.A. 10:4-6, et seq., (“OPMA”), courts must be cautious not to foist burdens upon public bodies that the Legislature did not intend to impose.  Id. at 586.  To do so “would risk throwing off the careful balance that the Legislature struck between a public body’s need to control its own proceedings and at the same time determine when and how to protect confidential interests of the public body or others. ”  Id.  For reasons more fully set forth herein, the Defendant [...] has fully complied with the law in every respect, and the well-reasoned opinion of the trial court should not be disturbed.
[brief] On December 7, 2023, [...] asked the court to enter default.  (PPCIa236-250).  14.  [...] has never filed an answer or other pleading responsive to [...]’s counterclaim, nor has it ever filed any pleading in which it seeks judgment against [...] (e.g., for a declaration of coverage under the [...] policy, for an order compelling [...] to pay any judgment that [...] might obtain against [...] pursuant to the MCS-90 endorsement to the [...] policy, for judgment against [...] for damages, or otherwise).