ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] IT IS UNDISPUTED THAT THE TORT IMMUNITY PROTECTIONS PROVIDED IN THE EQUINE ACTIVITIES LIABILITY ACT DO NOT APPLY TO DEFENDANTS  The Defendants’ Brief admits that the Equine Activities Liability Act (the Act) does not provide them immunity against Plaintiffs’ claims.  See Defendants’ Brief, p. 30.  Yet, the Defendants’ Brief still advocates for the courts to apply the Act to protect Defendants against tort liability despite the Legislature having granted no such protection.  The Defendants’ Brief asks the courts to play the role of policy-maker by weighing the competitive economic interests of commercial race-horse breeding interests in New Jersey versus those in other states.  See Defendants’ Brief, p. 31.  But that would improperly burden the courts with adopting and implementing economic policies that the Legislature chose to exclude from the Act.  While admitting that the Act doesn’t grant Defendants immunity, the Defendants’ Brief argues the Act should be read to be “broadly preclusive of liability” because the Supreme Court characterized the Act as “remedial” in Hubner v. Spring Valley Equestrian Center, 203 N.J. 184 (2010).  Defendants’ Brief, p. 31.  But the Defendants’ Brief does not address Hubner’s comprehensive historical and textual explanation that the Act governs liability between “participants” in “inherently dangerous recreational activities” and the “operators” of “recreational facilities. ”  Hubner, 203 N.J. at 198, 200 (emphasis added).  The Defendants’ Brief does not attempt to characterize the business of collecting stallion semen to be frozen and sold domestically and internationally as a recreational activity conducted at a recreational facility.  Therefore, the Motion Court erred when it extended the tort immunity protections provided by the Act to Defendants despite the Act being inapplicable to them.  (Pa108a-Pa1088a).  Conclusion
[brief] Columbus Circle NJ LLC v. Island Construction Co., LLC, No. A-1907-15T1, 2017 WL 958489, (N.J. Super. Ct. App. Div. Mar. 13, 2017  .....................................................Pa090  Gastelu v. Martin, No. A-0049-14T2, 2014 WL 10044913, (N.J. Super. Ct. App. Div. July 9, 2015)  .......................................................Pa096  #  TABLE OF AUTHORITIES | Case Name | Page(s) | |------------------------------------------------|---------| | **Cases** | | | *Atalese v. U.S. Legal Servs. Grp.*, | 6, 7, 9, 10, 11 | | 219 N.J. 430, 435 (2014), | | | *Columbus Circle N.J., LLC v. Island Constr. Co.*, | 11 | | No. A-1907-15T1, 2017 WL 958489, at | | | (N.J. Super. Ct. App. Div. Mar. 13, 2017) | | | *Curtis v. Cellco P'ship*, | 14, 18 | | 413 N.J. Super. 26, 34 (App. Div. 2010) | | | *Dailey v. Borough of Highlands*, | 11 | | No. A-3475-18T2, 2020 WL 6297469, at | | | (N.J. Super. Ct. App. Div. October 28, 2020) | | | *Discovery House v. Advanced Data Sys. RCM, Inc.*, | 11 | | No. CV1921602KMJBC, 2020 WL 6938353, at | | | (D.N.J. Nov. 25, 2020) | | | *Garfinkel v. Morristown Obstetrics & Gynecology Assocs.*, | 8, 9, 12, 13, 14 | | 168 N.J. 124, (2001); | | | *Gastelu v. Martin*, | 11 | | No. A-0049-14T2, 2014 WL 10044913, at | | | (N.J. Super. Ct. App. Div. July 9, 2015) | | | *Heher v. Smith, Stratton, Wise, Heher & Brennan*, | 18, 19 | | 143 N.J. 448, 459, (1996) | | | *Kernahan v. Home Warranty Adm'r of Fla., Inc.*, | 9, 10 | | 236 N.J. 301, (2019) | | # TABLE OF AUTHORITIES ## Cases **Martindale v. Sandvik, Inc.,** 173 N.J. 76, (2002) ........................................................................................................... 9, 13 **McKeeby v. Arthur,** 7 N.J. 174, 181, (1951)..............................................................................................................13 **Van Duren v. Rzasa-Ormes,** 394 N.J. Super. 254, 257 (App. Div. 2007) ............................................................................. 12 **Victory Entm't, Inc. v. Schibell,** No. A-3388-16T2, 2018 WL 3059696, at (N.J. Super. Ct. App. Div. June 21, 2018)
[brief] As is set forth in greater detail herein, this Court’s holding in *Marmo* provides additional weight in favor of affirming the Lower Court’s Order holding that based on the totality of the circumstances, Respondents did not waive their right to compel arbitration pursuant to a valid, binding arbitration agreement.  The factors set forth in *Cole v. Jersey City Medical Center*, 215 N.J. 265, 281 (2013) and re-affirmed by *Marmo* continue to weigh in favor Respondents’ request to compel arbitration and they show that Appellant cannot overcome the strong public policy preference for arbitration.  **SUPPLEMENTAL LEGAL ARGUMENT**
[brief] Dresner v. Carrara, 69 N.J. 237, 240 (1976).  As [...] testified, the pre-existing nonconformities of the Property “are all a product of the existing conditions….  They are a hardship to modify, which is classic (c)(1) criteria because the – there’s no land available to make it compliant. ” (T1/69:14-23).  He further states, “We didn’t create [the nonconforming conditions].  We’re not worsening them.  It would be a hardship to change them.  It’s a unique circumstance of this lot in this existing building which we understand has been here since 1910 or so. ” (T1/77:14-19).  The former restaurant owner/operator confirmed they had engaged in discussions with [...] about selling the Property to them; however, [...] was not interested.
[brief] Respectfully Submitted, [...], Esq. for Himself and [...]  [...], Plaintiff/Respondent, v. [...] and [...], Defendants/Appellants.  DOCKET No.: [...]  ON APPEAL FROM: SUPERIOR COURT, LAW  DIVISION  MIDDLESEX COUNTY DOCKET NO. BELOW: [...]  Sat Below: [...], J.S.C.  Civil Action  PLAINTIFF/RESPONDENT  [...]’S BRIEF IN OPPOSITION TO THE APPEAL FILED BY DEFENDANTS
[brief] *Ibid; see also,* [...] and [...], *Strategic Lawsuits Against Public Participation,* 35 Soc. Probs. 506 (1988); [...] and [...], *Studying Strategic Lawsuits Against Public Participation: Mixing Quantitative and Qualitative Approaches,* 22 L. & Soc'y Rev. 384 (1988).  Of paramount importance to first amendment free speech rights is the ability of a public official to discharge their duties without unnecessary fear of reprisal.  Thus, the first amendment mandates that the mere potential risk of a restriction on that right should be viewed with extreme prejudice.  The muzzling of a local public official, especially the mayor, on matters within their prerogative as a duly elected representative of the people, flies in the face of the democratic ideals enshrined in the United States and New Jersey Constitutions.
[brief] “[T]he burden of proof for authentication is slight[.]”  United States v. Lingala, 91 F.4th 685, 696 (3d Cir. 2024).  To authenticate an item of evidence, the proponent need only “present evidence sufficient to support a finding that the item is what its proponent claims. ”  N.J.R.E. 901.  Meeting this standard “does not require absolute certainty or conclusive proof” but only “a prima facie showing of authenticity. ”  State v. Mays, 321 N.J. Super. 619, 628 (App. Div. 1999).  “This burden was not designed to be onerous,” State v. Hockett, 443 N.J. Super. 605, 613 (App. Div. 2016), because “[a]ll that is required for authenticity is proof that the matter is what its proponent claims.
[brief] [...] failed to raise the “facial” versus “as applied” issue below, so this Court need not consider it on appeal .............  24  B.  The standard of law advocated by [...] on appeal is inapplicable ..........................................................  26  i.  [...] did not move for summary judgment on the grounds that the Ordinance was unconstitutional, so the trial court did not need to conduct a “facial” or “as applied” analysis ..........................................................  26  ii.  [...] was not required to apply for a permit or exemption from [...].  POINT III:
[brief] 39  TABLE OF AUTHORITIES  Cases Cona v. Tp. of Washington, 456 N.J. Super. 197 (App. Div. 2018)  .........................  20 East Mill Associates v. Township Counsel of East Brunswick, 241 N.J. Super. 403 (1990) ..............................................................................................................  20 First Peoples Bank v. Medford, 126 N.J. 413 (1991) ................................................  15  Griepenburg v. Township of Ocean, 220 N. J. 239 (2015)  ...........................................  15  In re Boardwalk Regency Casino Licensing Application, 180 N.J. Super. 324 (App.Div.1981) ............................................................................................................. 17, 25
[brief] [...] calculated the award as amounting to less than $23,000.00 per year for the remainder of Plaintiff’s life, which aided in her finding of its reasonableness (6T, at 63:10-19).  pain and daily debilitation, the expert conclusions of his treating orthopedist; this evidence, and this alone, motivated the jury’s award.  [...], the presiding trial judge, agreed.  Each time Defendants tried to vacate the verdict, [...] conclusively held that it was fairly reached.  Her Honor, time and time again, ruled that the verdict was supported by the weight of the evidence, and that it was not excessive or shocking to her conscience.  In the present appeal, Defendants still fail to identify a single miscarriage of justice entitling them to a new trial.  Rather, by pursuing this appeal at all, Defendants seek to perpetrate a miscarriage of their own – to void the decision of one of the most inviolate institutions of our American democracy: the trial by jury.  Respectfully submitted, [...]
[brief] [...] told virtually the same story as [...], [...] and [...]:  - Koda bit Coco in a scuffle at the end of the driveway.  • Koda bit [...] after [...] opened the gate and let himself into the fenced yard without permission.  • Koda bit [...] who was delivering a box to the wrong address.  • Koda pinned down [...] who later died.  The minor variations between [...]’s story and the other witnesses are not material to the elements of the statute.
[brief] - In 2021, it “infiltrated rap culture seemingly overnight,” ibid, and was regarded as a top contender “in the race to claim 2021’s hottest fashion trend. ”  [...], “Behold the balaclava: Why a 19th-century army accessory has taken over social media,” CNN, December 28, 2021.  https://www.cnn.com/style/article/balaclava-gen-z-internet-culture/index.htm -
[directive] Law notification appropriate received not has complainant a if that, public the advised has ("OAG") department police local the contact must first complainant the Directive, this to pursuant may complainant unresolved, the is issue if the step, that taking After complaint. the handling remains issue the if Then, department. police that overseeing office prosecutor's county the call at General Attorney the of Office the contact may complainant the unresolved, the on update an provide will OAG www.safestopnj.
[brief] The trial court erred in re-writing the [...] contract in favor of indemnification for [...]’s own negligence.  Finally, the trial court erred in ruling that the [...] contract is Azurak compliant when Paragraphs 2 and 4 are read together to overcome the fact that Paragraph 4, which is entitled “Indemnification,” does not require either party to provide indemnification for the indemnitee’s own negligence.  Da45, ¶ 4.  As noted, courts apply contracts as written and will not interpret them to favor one party over another.  *Boyle*, 257 N.J. at 478.  In addition, courts construe indemnity clauses strictly.  *Kieffer*, 205 N.J. at 225.  Therefore, “an ambiguous contractual indemnification provision must be construed against the indemnitee. ”  *Englert*, 389 N.J. Super. at 57.  The trial court thus erred in relying on Paragraph 2 to rule that Paragraph 4 required indemnification for [...]’s own negligence.  1T19:22-22:6.  In support of its indemnity claim, [...] argues that Paragraph 4 “specifically references acts or omissions of [...]’s contractor, [...]. ”  Opp. Br. 16-17 (emphasis added).  However, the indemnity clause in Paragraph 4 actually requires [...] to indemnify [...] only for the acts or omissions of [...] or its “subcontractors,” not for the acts or omissions of the “Contractor. ”  Da45, ¶ 4.  The contract uses only the term “Contractor,” with a capital “C,” to refer to [...].  The term “subcontractor” appears only in Paragraph 4 and is used separately from the term “Contractor. ”  *Ibid.*  [...] is not one of [...]’s “subcontractors. ”  *Ibid.*  [...]’s argument that Paragraph 4 required [...] to indemnify it for [...]’s own negligence thus depends on a re-writing of the terms of the contract that it drafted.  Cf. Opp. Br. 14-15 with Da45, ¶ 4.  [...] thus asks the Court to re-write the indemnity clause in its favor, which is impermissible.  Boyle, 257 N.J. at 478; Englert, 389 N.J. Super. at 57.
[brief] See State v. Randolph, 210 N.J. 330, 338 (2012) (sentencing court found evidence presented at resentencing beyond scope of remand order); State v. Jaffe, 220 N.J. 114, 125 (2014) (court did not consider post-offense conduct).  But here, [...] considered the evidence defendant presented, discussing it at length and debating the strength of the evidence with counsel for both defendant and the State before relying on much of the evidence defendant now claims he refused to consider in giving moderate weight to aggravating factor fourteen and setting the term of imprisonment on Count Three.  He just did not find that evidence sufficiently persuasive to negate the findings of aggravating factors three and nine or support a finding of mitigating factor nine.  In discussing the aggravating factors, [...] told defendant that he could see that he was different on the day of sentencing than he was before, and that “I can see that being part of that maturation process. ” (18T76-25 to 77-1).  As he made clear throughout the sentencing, when [...] referred to “maturation” or “maturity,” he included defendant’s allocation, in which he expressed his remorse and took responsibility for his actions and his behavior in prison.  (19T76-25 to 77-9; 18T80-16 to 81-2; 18T87-17 to 88-9).  He further told defendant that he could see that he was being compliant in prison and found that admirable.  (18T77-7 to 9).  Indeed, [...] said that he had been inclined to give mitigating factor fourteen only slight weight, but after hearing defendant’s statement he decided to give it moderate weight because he saw some elements of maturity in defendant since trial.  (18T87-23 to 88-9).  Specifically, defendant contends that the sentencing judge failed to give weight to his positive prison records and other post-offense rehabilitative conduct and should not have found aggravating factors three and nine if he properly considered this evidence.
[brief] After having completed the trial guided by multiple rulings of the trial court regarding the applicability of Burt, plaintiffs’ counsel again requested that the trial court abrogate Burt and hold Dr.  Popovich responsible for the entire verdict.  On December 21, 2022, plaintiffs submitted a proposed “5 day” order of judgment, pursuant to R. 4:42-1 (c), which would hold [...] responsible for the entire judgment, contrary to the Burt defendant status of [...]; in turn, on December 22, 2022, [...]’s counsel objected to this proposed 5-day order as inconsistent with Burt, and requested plaintiffs submit a corrected order or, alternatively, that [...] be permitted to submit an order that reflects the offset required by Burt.
[brief] (Plaintiff Dep. T58:11-23 at Pa.154).  [...] of [...]’s Pharmacy School testified that the inaugural class was comprised of 79 students (80 spots were authorized by the ACPE) (Avaltroni Dep. T21:22-T22:7 at Pa.345.  Between 20 and 25 of those students applied for the various Master’s degree options.  (Avaltroni Dep. T33:23-T34:7 at Pa.348).  A few students, including [...], were denied admission into the dual degree program.  (Plaintiff Dep. T154:22- T155:7 at Pa.178).  However, only [...] filed suit against [...], and only [...] claimed to be misled by [...]’s website prior to his admission into the Pharmacy School.  (Plaintiff Dep. T185:4-13 at Pa.185).  Of the inaugural class, by the Spring semester of 2014, 22 of the 79 students, including [...], were on academic probation, five of whom had higher GPA’s than [...] (Plaintiff Dep. T349:3-T350:7 at Pa.265; Plaintiff Dep. Exhibit P32 at Pa.115; Plaintiff Dep. Exhibit P33 at Pa.177).
[brief] The judge ruled that the circumstances of this case did not warrant the dismissal of the indictment with prejudice.  Two requirements must be met for such a drastic remedy: the State’s conduct must be willful, and defendant’s alleged prejudice must be irremediable with a lesser remedy.  Because neither was met here, the judge’s ruling should be affirmed.  Here, while the judge found that the State’s conduct was negligent, she concluded that the State’s conduct was not willful or outrageous.  And as the judge recognized, the State turned over the two-paged diagram that had been delayed in discovery while the motion to reconsider her initial suppression ruling was still pending, at a point where the judge could still “deal with it and fix it. ”  Indeed, the reopened suppression hearing, and the judge’s thorough consideration of the diagram before she rendered her decision on the motion to reconsider her suppression ruling, wholly cured any prejudice.  Because the minimal requirements for dismissing an indictment with prejudice had not been met, the judge thus properly exercised her discretion in declining to dismiss the indictment.  Additionally, as a matter of law, the delay in turning over the diagram did not amount to a Brady violation because (1) the diagram was not material for Brady purposes under a correctly applied Fourth Amendment analysis, and (2) the diagram was disclosed in time for its effective use at trial.  This Court should accordingly affirm the denial of the motion to dismiss the indictment.
[brief] (Da390-400)  In State v. Silver, 92 N.J. 507,515 (1983), cited approvingly in Karan, the Supreme Court stated:  Because there is property remaining subsequent to the taking that must be valued, an examination of all of the characteristics of such remaining property after the time of the taking, as opposed solely to facts in existence at or immediately before condemnation, is inescapable.  Therefore, in the case of a partial taking, the market value of property remaining after a taking should be ascertained by a wide factual inquiry into all material facts and circumstances - both past and prospective - that would influence a buyer or seller interested in consummating a sale of the property.
[brief] APPENDIX  State v. Telfair, No. A-2108-21, 2024 WL 743619 (App. Div. Feb. 23, 2024)  .................................................. Dra1-11 State v. Thompson, No. A-5288-17, 2022 WL 610326 (App. Div. Mar. 2, 2022) .................................................. Dra12-39 State v. Owle, No. A-4829-18, 2022 WL 2195524 (App. Div. June 20, 2022) .................................................. Dra40-63 State v. Wingate, No. A-2090-09T1, 2012 WL 3731805 (App. Div. Aug. 30, 2012) .................................................. Dra64-90 State v. Johnson, No. A-2934-10T2, 2012 WL 2912754 (App. Div. July 18, 2012) .................................................. Dra91-103 State v. Delevry, No. A-2058-09T4, 2011 WL 5419745 (App. Div. Nov. 10, 2011) .................................................. Dra104-123 State v. Davis, No. A-2244-09T3, 2011 WL 2333357 (App. Div. June 15, 2011) .................................................. Dra124-133 State v. Johns, No. A-2423-08T4, 2011 WL 1631124 (App. Div. May 2, 2011)  ..................................................  Dra134-144  State v. Johnson, No. A-5330-06T4, 2010 WL 1427279 (App. Div. Apr. 9, 2010)  ..................................................  Dra145-162  State v. Kennebrew, No. A-2245-04T4, 2007 WL 674655 (App. Div. Mar. 7, 2007)  ..................................................  Dra163-176  State v. Moore, No. A-6303-03T4, 2005 WL 3730557 (App. Div. Feb. 3, 2006)  .................................................. Dra177-188  LEGAL ARGUMENT POINT I THE COURT ERRED IN ALLOWING THE STATE TO ELICIT A FIRST-TIME IN-COURT IDENTIFICATION OF DEFENDANT BY KEVIN DUNN AT TRIAL.
[brief] Further, while New Jersey pension statutes are construed liberally because of their remedial character, Geller v. Dep’t of Treasury, 53 N.J. 591, 597-98 (1969), “an employee has only such rights and benefits as are based upon and within the scope of the provisions of the statute. ”  Francois v. Bd. of Trs., Pub. Emps.’ Ret. Sys., 415 N.J. Super. 335, 349 (App. Div. 2010) (citation omitted).  Here, the statute provides for the benefit if a retiree files for it within two years of the effective date of the Ricci Act, i.e., by July 8, 2021.  [...] did not file for the benefit within the time permitted by the statute, so even under a liberal construction, the statute expressly states he is ineligible for the benefit he now seeks.  Nevertheless, [...] argues that the limitation period in the statute should not be strictly applied because it “fails to advance the legislative purpose of the Ricci Act.
[brief] The trial court in its April 24, 2024 opinion, while reciting the law verbatim as set forth in defendants’ brief and this one, above (see Da311-319), nonetheless rejected defendants’ explanation that this is a nursing negligence case (see Da308-311), and held that [...] was qualified to offer an AOM against “the facility” or “[...]” for its “institutional failures” or “administrative negligence” in responding to the COVID-19 pandemic, --- \(^6\)  It also should be noted that the affidavit of merit discusses the conduct of several physicians and physician extenders who were \textit{not} employed by [...], including a pulmonary medicine physician, a nurse practitioner, and an attending physician, [...] who is board certified in internal medicine.  [...], a family medicine physician, is not qualified to give standard of care opinions against those persons, under the AOM statute and Patients First Act.  (See Da218.) including failure to transfer [...] to a higher level of care when he developed COVID pneumonia and failure to comply with CDC guidelines to limit the transfer of COVID-19.
[brief] Groundwater mounding calculations were performed at each, and the relative mound was added to the seasonal high water table observed at each test pit to determine the elevation of the groundwater mound.  The highest elevation of the groundwater mound at BMP 271 is 88.65, 3 inches below the bottom of the BMP.  (Aa0034).  The NJDEP reviewed and found that the design was consistent with the Stormwater Rules and BMP’s.  (Aa0087).  Based on the submitted data, [...]’s Stormwater Management Design was properly found by the NJDEP to meet the groundwater recharge requirements of the Stormwater Management Rules and [...]’s FHA Permit was properly issued by the NJDEP.
[directive] Defendant’s Initials page 1 of 5  5.  Do you understand that if you plead guilty:  a.  You will have a criminal record?  [Yes]  [No]  b.  Unless the plea agreement provides otherwise, you could be sentenced to serve the [Yes] [No] maximum time in confinement, to pay the maximum fine and to pay the maximum Victims of Crime Compensation Office Assessment?  c.  You must pay a minimum Victims of Crime Compensation Office assessment of $50 [Yes] [No] ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty?  (Penalty is $30 if offense occurred between January 9, 1986 and December 22, 1991 inclusive.  $25 if offense occurred before January 1, 1986.)
[brief] See Pa3, 34-35.  The essence of [...]’s Complaint against the [...] is that they billed [...] for medical services that were fraudulent because they were engaged in kickbacks or made improper self-referrals.  See Pa3-4, 24-25.  [...] alleges that because of this alleged conduct, the [...] were not entitled were not eligible to bill and receive payment of PIP benefits from [...] under insurance policies.  Pa87-88.  [...]’s allegations do not mention its obligation to arbitrate PIP disputes under the No-Fault Law.