ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Respondents [...], Esq. ("[...]") and [...] ("[...]") hereby submit the following Respondents' brief and respectfully request that the trial court's grant of summary judgment in their favor be affirmed.  Appellants failed to present a scintilla of evidence capable of establishing that [...] or [...] owed them a duty of care under the standards enunciated in Petrillo v. Bachenberg (governing when an attorney can be held liable to a non-client for professional negligence) or that [...] or [...] ever made any misrepresentation to Appellants of any kind.  The depositions of Appellants' own witnesses, in fact, conclusively established the opposite.  As explained within, Appellants in this case were the assignees of a contract to buy a parcel of land in Monroe Township, New Jersey.  The assignor of the contract was a limited liability company called [...] ("[...]").  Appellants were represented by their own attorney, [...], Esq., in the assignment transaction.  [...], Esq., who was an attorney at [...] at the time, served as counsel for the assignor ([...]) in the assignment transaction.  Appellants obtained the assignment of rights that they bargained for from [...], but claim that their plan to profit from the development of the land in Monroe Township failed because, according to them, defendant [...] reneged on a separate agreement to purchase the land from them once they obtained the re-zoning and performed the initial site work needed to develop the tract with single-family residences.  There is no dispute that [...] did not represent either Appellants or [...], and that he was not involved in Appellants’ dealings with [...] in any way.  Yet, Appellants sued [...] and [...] for alleged legal malpractice.  Appellants’ claims were and still are frivolous, and the grounds for affirming the trial court’s entry of summary judgment in favor of [...] and [...] are straightforward.  Based on Appellants’ unequivocal deposition testimony that (1) [...] never provided any information or advice to them concerning the assignment or the land that was the subject of the assignment and that (2) they never relied upon [...]’s words or actions in any aspect of their transactions with [...] or Pulte, the facts on record were incapable of establishing that [...] or [...] owed them any legal duty.  The trial court’s grant of summary judgment in favor of [...] and [...] should therefore be affirmed.
[brief] N.J.S.A. 34:11-56.51.  Public works do not include solid waste hauling, as they are defined as “construction, reconstruction, demolition, alteration, custom fabrication, duct cleaning, or repair work, or maintenance work, including painting, and decorating[.]”  See N.J.S.A. 34:11-56.26(5).  Prevailing wage is only required for “public works” and certain other specified trades.  N.J.S.A. 34:11-56.25 (“It is . . . the public policy of this State to establish a prevailing wage level for workmen engaged in public works[.]”); N.J.S.A. 34:11-56.40 (requiring “workman” to be paid prevailing wage) N.J.S.A. 34:11-56.26(7) (defining “workman” as being, among other requirements, “engaged in the performance of services directly upon a public work[.]”); N.J.S.A. 34:11-56.78 (providing prevailing wage for longshoreman).
[brief] At KVDb15-22, Defendants [...] and [...] argue that they did not personally guarantee the obligations of [...]\(^1\).  They acknowledge that the following language appears directly above the signatures of Zane [...], Fred [...], and [...].  “Additionally, the undersigned jointly and severally each hereby personally guarantee the obligations of the Tenant herein. ”  The signature lines read “Zane [...] – [...]”\(^2\), [...], “Fred [...] – [...]”, [...], and [...] – [...], LLC, [...].  Pa70.  Taken together, this language clearly indicates that Zane [...], Fred [...], and [...], are signing on behalf of the tenant, [...], and they are agreeing to jointly and severally each personally guarantee the obligations of [...].
[brief] Defendant similarly argues that plaintiff cannot prove that [...] would have been capable of responding to the warnings provided by the LDW system.  New Jersey law, however, provides plaintiff a heeding presumption that places the burden of proof on defendants and requires them to show that a plaintiff was incapable of responding to the warnings if defendant’s system had been installed.  See Coffman, supra, 133 N.J. 581.  There is no evidence that Mrs.  MacNamara was stricken with a medical emergency or otherwise incapacitated when the CR-V began its fatal drift.  Pa566.  Moreover, had the available LKAS safety system been incorporated in the design of this model CR-V, that system would have moved the vehicle back toward the center of its lane regardless of [...]’s response, again preventing the underlying unnecessary and fatal collision.  [...]’s speculation regarding [...]’s ability to respond does not save it from responsibility for producing a fit, suitable and safe product.  Cf. Johansen v. Makita USA, Inc., 128 N.J. 86, 95 (1992) ("In determining a manufacturer's liability for an allegedly defective product, the inquiry should focus on the condition of the product, not the plaintiff's use of care in operating the product.").  Product safety can be judged only in the context of the average consumer.  Id. at 101.  "A design defect does not come into being at the time of an accident."  Green v. General Motors Corp., 310 N.J. Super. 507, 516 (App. Div.), certif. denied, 156 N.J. 381 (1998).  Mrs.  MacNamara’s conduct is not a factor in determining whether the CR-V as sold was defective.  Moreover, on summary judgment, the inference from the evidence that [...] would have responded if alerted must resolve in plaintiff’s favor.  CONCLUSION
[brief] All Citations Not Reported in A.3d, 2011 WL 5419745  Footnotes  1  At the time of trial, [...] had held the rank of lieutenant for approximately six months.  At the time of the robbery, however, he was a sergeant in Red Bank's detective bureau.  The trial transcript refers to Ramos as both a sergeant and a lieutenant.  We elect to call Ramos by the rank he held at the time of trial.  2  Photograph number four in [...]'s photo array book depicted [...].  3  Photograph number three in [...]'s photo array book depicted [...].  4  [...] received an engagement ring from [...] on August 20, 2007, but according to [...], the engagement ended “a few months after he got arrested. ”  We do not view the revised identification procedures of *State v. Henderson*, —— N.J. —— (2011) as applicable to this case.  There, the Court instructed that its ruling shall “apply to future cases only....  As to future cases, today's ruling will take effect thirty days from the date this Court approves new model jury charges on eyewitness identification. ”  *Id.* at slip op. 160–61.  Defendant appeals from his convictions for first-degree robbery, second-degree conspiracy to commit robbery, second-degree burglary, second-degree conspiracy to commit burglary, third-degree unlawful possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a knife.  The robbery, burglary, and in-court identification charges were flawed and contributed to an unjust and unwarranted result.  We reverse.
[brief] Moreover, plaintiff claims that: (1) what she now calls a “post- sale duty to warn” began on June 21, 2018 – the precise date that the defendant discovered the problem that prompted the recall process – and (2) the “warning” duty required the same information that the FDA received, and that the recall notice later provided.  Opp. Br. at 3, 22-23, 35-36, 38.  Plaintiff argues that FDA approval was “not need[ed]” to “otherwise issue a product recall. ”  Id. at 5.  Plaintiff seeks to distinguish otherwise on-point precedent as “not involv[ing] a recalled product. ”  Id. at 20.  The failure-to-recall claim plaintiff alleged in her complaint does not exist, and no matter what label she now tries to attach to that non-existent claim – it still fails to state a cause of action.
[directive] First, trial courts should clarify before the date of the two-year cap whether the State will be ready then.  The Court directs trial courts to schedule a hearing approximately 30 days before the two-year cap expires.  At the hearing, the court should ask the State if it will be ready to proceed on the two-year cap date.  Second, because a statement of a prosecutor’s brief comment on the record readiness has significant consequences, must convey a great deal: that discovery is complete at the time the representation is made; that no substantive motions remain to be filed; that the indictment is in final form and no superseding indictment is contemplated, based on information known to the State or that should have been known through the exercise of reasonable diligence; and that the State’s witnesses are generally available.
[brief] Appellant incorporates his statement of facts presented in the Appellant’s brief and supplements it with the following commentary and opposition to Respondents “Counterstatement of Facts”.  Consistent with its “Oz-like” strategy, Respondents attempt to characterize Appellant’s dispute as having something to do with the approved height of the building in question, which it does not.  Hence, most of the facts marshaled by Respondents in pursuit of this strategy are irrelevant.  Appellant would observe that [...] appears to go so far as to make demonstrably false statements when it claims:  *Appellant then attempted to introduce the Rendering into evidence to demonstrate that the actual building height was higher than the height shown on the rendering.*  *([...])*  Appellant’s evidence demonstrates that the façade of the building was over three feet higher than permitted by the Diagrammatic Elevation.  This dimension has nothing to do with the actual, approved height of building and is simply false.  **LEGAL ARGUMENT**
[brief] 8T21.  Defendants’ slander of title claim failed on the same ground – because Chancery [...] found that plaintiff is the valid owner of the loan.  8T22-23.  Defendants’ emotional distress claim failed because the proofs were insufficient to support the required elements of the claim – that (1) plaintiff acted intentionally; (2) its conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community; (3) plaintiff’s actions proximately caused defendants’ emotional distress; and (4) the emotional distress was so severe that no reasonable person could be expected to endure it.  8T23-25.  [...] now appeal and ask this Court to vacate the $188,029 judgment in plaintiff’s favor on the contractual litigation claim, remand for a new bench trial on their quiet title claim, and remand for a jury trial on their claim for fraud, slander of title, and intentional infliction of emotional distress.
[brief] Significantly, not only did she never mention a disability to the employer, she even affirmatively certified in insurance paperwork at the time of hire that she did not suffer from either a mental or nervous disorder or high blood pressure (which flies in the face of the allegations made in her amended Complaint).  Pa095; DSOF at ¶¶ 40–41.  While no “magic words” are required, Appellant “must make clear that [she] wants assistance for [her] disability. ”  In other words, the employer must know of both the disability and the employee’s desire for accommodations for that disability. ”  *Taylor v. Phoenixville Sch. Dist.*, 184 F.3d 296, 313 (3d Cir. 1999) (emphasis added); see also *Victor v. State*, 203 N.J. 383, 415 (2010) (“To show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: 1) the employer knew about the employee’s disability; 2) the employee requested accommodations or assistance for his or her disability … .”).  The e-mail upon which Appellant relies states in its entirety: “Since we have the ability to efficiently work remotely, requiring us to come into the office during a pandemic unnecessarily risks our health. ”  Pa365.  This e-mail communicates at most a generalized expression of concern about COVID-19, with no reference to any disabilities or underlying health conditions and anger on behalf of a group of employees that did not get their way with management.  This was a demand, plain and simple, that they be allowed to work from home because of COVID-19 and not because of any disability or underlying health condition that might make them more susceptible of complications from COVID-19.  There is simply no logical pathway to reasoning that this e-mail provides any indication that Appellant is either stating she is disabled or that she is requesting an accommodation for a disability.  **POINT IV**
[brief] As argued by both parties, it involves the collateral source rule and whether same acts as a bar.  Respondent relies upon Warnig v. Atlantic County Special Services, which is inapplicable to this matter.  In Warnig, the carrier paid med expense benefits to its insured who was operating a school bus and who was eligible for workers comp benefits.  The Court found that the Collateral Source Rule, N.J.S.A. 39:6A-6, did not apply to that claim as the payments were not made pursuant to N.J.S.A. 39:6A-4 or 10.  Also important, the Court relied upon the fact that the auto insurance policy itself excluded coverage for med pay benefits since the insured was eligible for workers comp.  Respondent also relies upon Mid-Century Insurance v. Freeman which is an unpublished trial court opinion and unpersuasive.  The Court in Mid-Century didn't address the applicability of N.J.S.A. 39:6A-1, et seq. by way of the application of the verbal threshold nor did it address the fact that the calculation of medical benefits pursuant to the med pay benefits coverage portion of the policy was required to be accomplished by using the calculations in N.J.S.A. 39:6A-1, et seq.  Encompass v Trans Ware is also unreported and not included in evidence.  However, in that case, the court remanded the case giving Encompass an opportunity to amend its complaint to pursue reimbursement.  Ingersoll v Aetna included by Respondent was a med pay case, but involved the issue of stacking benefits and has no application here.  Walsh v Starr Transit is also unpublished and more importantly, does not involve a med pay subrogation claim.  The issue in Walsh was whether the trial court erred in not allowing the medical benefit payments of $10,000 to be introduced at the trial under the collateral source rule, and if the issue was preserved on appeal.  Perreira v Rediger is a ban on health insurance subrogation in NJ due to ERISA and federal preemption.  Perreira does not involve med pay subrogation and is not a bar to same.  The other cases cited by [...] such as Fawzy involved enforcing an agreement to arbitrate the issue of child custody in a divorce; and Grover v Universal Underwriters was addressed in the AD section, as were the Orders in the OTSC submitted by Respondent.  As briefed and argued by [...], the Collateral Source rule does not bar [...]'s claim.
[brief] THIS IS NOT A CASE OF ‘UPEPA’  I am a little confused where the Defendant is concluding that this case is one that falls under the ‘UPEPA’ guidelines.  This complaint was about using a picture of me that was taken in the privacy of my own home.  This falls under invasion of privacy and false light.  The courts have said that “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person” (NOC, Inc. V. Schaefer, 484 A.2d 729, 197 N.J. Super. 249 (1984).  Invasion of privacy has also included cases such as “(1) intrusion upon solitude or seclusion (2) public disclosure of private facts, e.g., unreasonable publicity given to one's private life (3) false light privacy, e.g., publicity that normally places the other in a false light before the public; (4) appropriation of name or likeness”.  3 Restatement, Torts 2d, § 652A, at 376 (1977); Weller v. Home News Publishing Co., 112 N.J. Super. 502 (1970); Devlin v. Greiner, 147 N.J. Super. 446 (1977); Cibenko v. Worth Publishers, Inc., 510 F. Supp. 761 (D.N.J. 1981).
[brief] In its brief, the [...], the [...] (“[...]” or “[...]”), asserts [...] was removed for charges of misconduct directly related to his employment.  (Rb6-11).  To this end, the [...] argues [...] was removed pursuant to his violation of an employment policy while he was engaged in his official work capacity at his place of employment.  Id. at 11.  More specifically, the [...] asserts [...]’s failed urinalysis constitutes work-related conduct that ultimately led to his removal.  The [...]’s argument must be rejected as [...] was not removed for charges of misconduct related to his employment.  Rather, he was removed for charges wholly unrelated to his employment.  As set forth in the [...]’s initial brief, the case of *In re Hess*, 422 N.J. Super. 27 (App. Div. 2022), is particularly instructive in this matter.
[directive] Appendix A: Additional Guidance  This Appendix seeks to help state and local law enforcement officers operationalize the requirements in the Directive, and to follow best practices in all their interactions with transgender, non-binary, and gender non-confirming individuals.  As a result, the Appendix both offers greater information about appropriate language to use (along with definitions) and lays out ways to respectfully ask someone about their gender identity and to record that information.  Because the appropriateness of certain terms and language changes over time, this Appendix will be updated in line with those developments in the future.  Definitions and Language
[brief] (Pa000151-000152).  [...] met with [...] on July 1, 2014.  [...] attended the meeting because [...] did not speak English very well.  [...] confirmed that he met with [...] and [...] did not speak English very well.  (Pa000154).  [...] confirmed that he met with [...] and [...] and that [...] attended the meeting because “his father didn’t speak English and they needed to communicate to me what was to go in the will, as I said, on an emergency basis prior to surgery. ” (Pa000199).
[brief] The above must be understood in terms of what [...] stated on the telephone to the Plaintiff.  Well, Mr. [...] started right out with, “The administration feels you are a problem for us.  We can’t trust you to work with certain individuals. ”  He said that I didn’t want to stay in this school anymore.  He said that I wanted to quit and I said, That’s not true, [...], she was the go-between coordinator for, at that time, the substitutes.
[brief] The detective's prelude to advising defendant of his Miranda rights -- his explanation that "[j]ust like . . . anybody else that come down here, we gotta read you your rights and things like that" -- did not render defendant's waiver invalid.  This single statement by the detective -- the only factor defendant complains of that occurred prior to the waiver itself -- was not improper, and certainly was not enough to outweigh the numerous factors supporting the knowing, intelligent, and voluntary nature of defendant's waiver in the totality-of-the-circumstances analysis.  The detective did not suggest that the Miranda warnings were "just a formality" or "downplay[] their significance" as a constitutional requirement.  O.D. A.-C., 250 N.J. at 422.  Nor did the detective "directly contradict, out of one side of his mouth, the Miranda warnings just given out of the other."  State v. L.H., 239 N.J. 22, 44 (2019) (quoting State v. Pillar, 359 N.J. Super 249, 268 (App. Div. 2003)).  And police certainly are not required to advise someone of their status as a suspect prior to a custodial interrogation for the suspect's Miranda waiver to be valid.  Rather, as the judge correctly found under the totality of the circumstances, defendant was properly advised of and validly waived his Miranda rights.
[brief] (g)  The arbitrator, after appointment, shall communicate with the parties to arrange for a date, time, and place for a hearing.  In the absence of an agreement, the arbitrator shall have the authority to set the date, time, and place for a hearing.  The arbitrator shall submit a written notice containing arrangements for a hearing within a reasonable time period before hearing.  1.  Such notice shall also set forth the dates, both of which shall precede the hearing, by which the public employer shall provide the arbitrator and the employee representative with the following information and the format in which it shall be provided and by which the employee representative shall respond to the information:  i.  A list of all unit members during the final year of the expired agreement, their salary guide step(s) during the final year of the expired agreement, and their anniversary date of hire (that is, the date or dates on which unit members advance on the guide); ii. Costs of increments and the specific date(s) on which they are paid; iii. Costs of any other base salary items (for example, longevity) and the specific date(s) on which they are paid; iv.  The total cost of all base salary items for the 12 months immediately preceding the first year of the new agreement; and v.  A list of all unit members as of the last day of the year immediately preceding the new agreement, and their rate of salary as of that same day.  This issue was not raised below, so it must be reviewed as plain error.
[brief] (7T13-15 to -20; 74-13 to 16).  His body was next to a black Lincoln Navigator SUV in front of [...].  (7T78-21 to 25).  Pieces of the Navigator’s broken taillight were on the ground.  (7T96-9 to 21).  The next day, [...] had the word “ambitious”, [...]’s nickname, tattooed on the outside of his left forearm.
[brief] Despite having knowledge years earlier of the facts that form the predicates of the claims they sought to add in the Prior Action (which are the same facts underlying the claims in this case), the Appellants offered no justification to the trial court in the Prior Action as to why these claims were not asserted in the Prior Action earlier.  Thus, the trial court correctly denied Appellants’ motion for leave to amend the First Amended Complaint.  To permit the Appellants to assert these claims in a new action, as they are attempting to, would allow them to impermissibly circumvent the ruling of the trial court and its denial of the motion to amend in the Prior Action.  This would violate the purpose of the Entire Controversy Doctrine, namely avoiding fragmented and piecemeal litigation, while proliferating the prejudice borne upon [...] if these belated claims are permitted.  Likewise, the belated and unsuccessful attempt to assert these claims in the Prior Action does not serve as a basis to circumvent the requirements of the Entire Controversy Doctrine and Appellants’ obligation to have asserted the claims in the Prior Action.  While Appellants may have attempted to add the claims, they did not, although they were required to do so under the Entire Controversy Doctrine.  Based on prejudice and delay, the belated attempt to add these claims in the Prior Action was denied and cannot be avoided by filing a new lawsuit.  The same prejudice resulting from inexcusably not asserting these claims earlier in the Prior Action, bars the assertion of these claims in a new subsequent action.