ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ” (4T12-23 to 14-3).  The trial judge vacated his prior ruling and did not require [...] to qualify his testimony.  (4T14-4 to 6).  The judge explained his decision “to allow the expert, assuming he’s qualified as an expert, to testify accordingly,” and expressed his confidence that defense counsel “will raise these issues during cross[-]examination of that expert. ” (4T14-7 to 11).
[brief] Although Reyes involved residential property, Section 358 was discussed and analyzed in the broader context as it applied in general to the law of premises liability and on the question of when a duty of care is owing from a landlord.  In Reyes the court ruled squarely “we endorse and apply the principles expressed in Section 358 of the Restatement (Second) of Torts (1965)...”  Noting that “[o]ur courts have frequently embraced the principles set forth in the Second Restatement on issue of premises liability,” the court concluded:
[brief] (Pa12a).  The Court found that Plaintiff alleges that these defendants are individually liable under the LAD for retaliation.  (Pa12a).  The trial court found that Plaintiff failed to establish individual liability as to these defendants because they were “obligated to authorize an investigation.  An employer must be free to investigate complaints of employee misconduct without fear of NJLAD liability.  (Pa13a (citing Spinks v. Township of Clinton, 402 N.J. Super. 364, 484 (App. Div. 2009))).  Moreover, the trial court found that Counts Six and Seven of the Complaint allege individual liability as aiders and abettors under NJLAD, but the action Plaintiff complains of concerns the affirmative action investigation and complaint, which did not necessarily constitute an adverse employment action as the result remains pending.  Additionally, the facts do not align with the factors set forth in Hurley [v. Atlantic City Police Dep’t., 174 F.3d 95, 127 (3d Cir. 1999)] to sufficiently show that these Defendants, individually, had any involvement with the complained of alleged retaliation beyond authorizing an investigation they were duty bound to approve.
[brief] Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]  42 U.S.C. §1983.  “To establish a §1983 claim, ‘the first task … is to identify the state actor, ‘the person acting under color of law,’ that has caused the alleged deprivation. ’  The second task is to identify a ‘right, privilege or immunity’ secured to the claimant by the Constitution or other federal laws of the United States. ”  Filgueiras, supra, 426 N.J. Super. At 468 (internal citations omitted).  “Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method [for] vindicating federal rights elsewhere conferred …’”  Id. at 468-69 (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)).  B.  The False Arrest Claim
[brief] (5T184-1 to 188-5)  The facts of this case dispel any notion that the deaths of the victims were the result of premeditated murders; the decision to fire the gun was made in the heat of a physical struggle in which a man alleged to be [...] took control over one of the victims’ gun.  Accordingly, defense counsel appropriately argued in the charge conference that an instruction on passion/provocation manslaughter, a lesser-included offense of murder, was appropriate.  Nonetheless, the trial court rejected [...]’s proposed instruction based on a restrictive view of the evidence that failed to consider any reasonable inferences in his favor.  Our courts have made clear that when a trial court fails to give a requested passion/provocation manslaughter instruction that is rationally supported by the evidence adduced at trial, it is an error requiring the reversal of the related murder conviction.  Accordingly, [...]’s convictions for murder must be vacated, and the matter remanded for a new trial where the jury is given the option to consider whether the conduct alleged amounted to passion/provocation manslaughter rather than murder.
[brief] In considering the alleged vesting of accumulated sick leave upon promotion, the Appellate Division made clear that, “the July 1, 2016 ‘vesting’ of [...] and [...]’s accumulated sick leave lump sum payments is inconsequential.  **MSRA permits the Director to unilaterally modify this contract term. **”  Id., 2022 WL 2352376, at *8 (emphasis added).  Plaintiffs’ citation to Barila v. Bd. of Educ. of Cliffside Park, 241 N.J. 595, 601 (2020), which does not involve an analysis of vested rights in the context of the MSRA, is also misplaced, and appears to be an effort to collaterally attack a separate order of the Superior Court by the Hon. [...] P.J.Cv. in Vadell, et al. v. City of Atlantic City, et al., relating to the elimination of terminal leave payments, which is currently pending appeal under docket [...].  While Plaintiffs’ arguments may be relevant to the Vadell matter, they are not relevant to the Court’s considerations here where Plaintiffs have not alleged the deprivation of a vested right.
[brief] (P-59.)**  As Defendants acknowledged, ordinarily, if a complaint is not sufficiently specific, a dismissal under Rule 4:6-2(e) should be without prejudice with an opportunity for leave to amend.  See, e.g., Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (cited with approval by Defendants [...] and [...], Defs.’ Brief at 5, and Defendant [...] (“[...]”), Def. [...]’s Brief at 8).  As discussed herein and in Plaintiffs’ initial brief, Plaintiffs sufficiently pleaded that the illegal, large, makeshift liquor concession stand on the Subject Premises was a combination of a defect in the condition of public property and the criminal activities of third parties, in that it lured residents and the general public to the Subject Premises like moths to a flame, enticed them to become intoxicated in public, and caused fighting and similar mayhem.  Plaintiffs sufficiently pleaded that Defendants had actual or constructive knowledge of the presence of the illegal, large, makeshift liquor stand, which Defendants either discovered or should have discovered in the course of surveilling and maintaining the Subject Premises or responding to complaints about fighting and mayhem for several months before Decedent was murdered, and ignored it.  Thus, Defendants are not automatically entitled to immunity under the New Jersey Tort Claims Act, and a jury should be allowed to decide whether Plaintiffs have satisfied all of the elements of their claims after Plaintiffs have engaged in discovery.
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[brief] On January 5, 2024, the state court issued an order on the Debtor’s second motion which reads:  “THIS MATTER having been opened to the Court for a Motion for Fraud in the Conduct of the Suit by Defendant [...] pro se, who failed to appear…ORDERED:  Defendant [...]’s Motion for Fraud in the Conduct of the Suit is hereby DENIED for failure to appear. ”  Adv. Pro. Doc. No. 27, Ex. N.  Nothing has transpired since then.  --- 13  These undisputed facts are taken directly from the Chapter 13 Trustee’s submission.  Adv. Pro. Doc. No. 27.  The Court Declines to Invoke Permissive Abstention
[brief] (1T 56-8 to 61-16)  At the suppression hearing, [...] testified to details that were not mentioned anywhere in his report.  First, [...] testified that the information regarding the Kia was provided to the C.I.D. by [...] of the Narcotics and Gang Unit and that Palermo received the information from a confidential informant (C.I.).  While [...] had no personal knowledge of the CI, he claimed that Palermo had received information from the C.I. on approximately 20 prior occasions and found the C.I. to be reliable 75 percent of the time, and that the C.I.’s prior tips generally involved “[p]ersons in possession of a weapon. ”  (1T 8-2 to 9-12; 1T 13-4 to 13-8)  However, [...] could not say when or how the C.I. communicated the tip to Palermo, or how the C.I. learned the information contained in tip, i.e., whether it was based on the C.I.’s personal observations or on something the C.I. heard from a third person.  (1T 23-9 to 23-13; 1T 31-2 to 32-21)  According to [...], it is common for narcotics and gang detectives to relay information received from a C.I. to officers assigned to the C.I.D., because the C.I.D. is “pretty much the marked police presence” for the Narcotics and Gang Unit.\(^4\) (1T 5-14 to 5-16)
[brief] On March 23, 2023, plaintiff brought [...], M.D., to testify.  At a hearing six months prior to trial, the court had denied defendant’s motion in limine to bar [...] “from presenting opinions regarding the nursing standard of care. ”  Pa84.  The court expressly ruled “[...] is permitted to testify about nursing home standards of care and about the care and treatment received by plaintiff while he was at the nursing home.”  Pa84-85.  Nonetheless, on the morning of March 23rd, the court invited defense counsel to relitigate the issues of [...]’s qualifications to testify and scope of testimony, and defense counsel leaped at the chance.
[brief] (Da393-Da507)  Neither did [...]’s statement of material facts (Da145-Da147) or [...]’s supporting certification.  (Da508-Da545).  [...]’s motion papers did not address the [...]’ intent either, but did describe the very nominal and unobtrusive use of the driftway for many years before and after he took title in 1990.  He also represented that the driftway “is currently overgrown and impassable.  It has only been used sporadically, if at all, since [...] granted Summary Judgment in 2006. ”  (Da789-Da791)  [...] did not point to any evidence of [...]’s intentions either.  She based her findings solely on the language of the 1966 deed which plainly was insufficient.  Compare the record in our case to what was before the Appellate Division in *Wildwood Crest*, where the grantor explicitly stated an intention to create “an easement,” the location and dimensions were precisely identified, and the trial court reached its findings only after a trial.
[brief] The State related defendants delayed consideration of this matter by improperly removing this action to the federal system.  (Pa110, Pa112).  The State related defendants failed to appear at a noticed virtual case management conference.  (Pa77).  The State related defendants engaged in ex parte communications with the tribunal and obtained a void dismissal order without any notice to plaintiff.  (Pa319).  See, Triffin v. Automatic Data Process, Inc., 411 N.J. Super. 292, 298 (App. Div. 2010) (must demonstrate [ ], clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability [to] impartially . . . adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.)  The State related defendants are and were required to enforce and to execute the law on behalf of all stakeholders.
[brief] (Da46; Da259.)  [...] then switched to interest calculations provided by [...] in its Original Motion.  These calculations improperly reconciled the covered costs by year amounts stated in the Ruoff Report and applied incorrect interest rates.  For instance, [...] applied a 12% interest rate to certain years.  The 12% interest rate does not apply to contract actions.  (Da30-45.)  In the March 2021 Motion, [...] served entirely new calculations from [...].  (Da47-Da54.)  These calculations, bizarrely, changed the amount of covered costs incurred in specific years – despite the fact these costs were incurred decades ago.  Of course, these new calculations just happened to place more costs in years with higher interest rates.  For instance, [...] decided that 1997, a year with a 7.5% interest rate, now had more than $2,000,000 in costs.  (Da0053.)  [...] could not explain these calculations in deposition.  (Da229-258.)  Finally, the calculations submitted on reply were [...]’s highest interest calculations yet, claiming that [...] had occurred $200,000 more in prejudgment interest than originally sought in its March 2021 Motion.  (Da260-261.)  The trial court’s decision to rely on interest calculations submitted by way of reply brief – the fourth different set of interest calculations provided by [...] – was incorrect and deprived [...] of the chance to properly oppose Plaintiff’s revised interest calculations.  This plainly meets the abuse of discretion standard and requires reversal by this Court.
[brief] [...]’s Implication in the Affidavit of Merit  It is also anticipated that [...] will argue that [...]’s AOM does not implicate any specific conduct by [...] that fell below the standard of care.  This argument clearly lacks any merit given the abundance of hospital records showing [...]’s extensive involvement in the Appellant’s treatment.  Specifically, [...] thoroughly examined the Appellant shown by the Discharge Summary he authorized on May 17, 2019.  Vol. 002, 1a-6a.  [...]’s AOM states that he believes, with a reasonable degree of medical certainty, that the Appellant’s pre- and post-operative mismanagement of anticoagulation, including the administration of Xarelto and heparin, deviated from the standard of care and led to the Appellant’s complications.  38a-39a.  [...] took part in the post-operative care of the Appellant and played a significant role in the management of her medications.  Vol. 002, 7a-16a.  Given that [...]’s expert opinion went directly to the Appellant’s pre- and post-operative care, the AOM clearly implicates [...]’s conduct, despite the fact he is not named specifically.  B.
[brief] It is alleged that his injuries occurred when he was performing repair work on an electrical light fixture inside [...]’s warehouse.  As it pertains to this defendant, plaintiff’s forensic consultant, [...], has opined concerning one particular electrical breaker box panel in High Grade’s warehouse.  His actual complaint focuses upon the “circuit directory,” which is a piece of paper pasted on the inside of the door panel to the breaker box.  (Pa 204).  Although many of Mr. Winter’s findings pertain to the decedent’s employer, [...] (now dismissed), as it pertains to this defendant Mr. Winter sole criticism is that “Line #36” on the directory was not “legibly identified” in accord with Section 408.4 (A) of the National Electrical Code.
[brief] ”  (1T 111-1 to 4)  [...] told [...] that he did not sell or give [...] any drugs.  (1T 111-4 to 5)  [...] testified that [...] then told him that other officers had “been surveilling the parking lot” and saw [...] “serve him some drugs. ”  (1T 111-5 to 12)  As [...] was trying to explain to the officers that they were mistaken, [...] told [...] to put his hands on the car so that he could be patted down.  (1T 111-12 to 16)  [...] testified that after he was patted down, [...] “threw the cuffs right on me.
[directive] First Degree Term of Parole Supervision - 5 years  Second Degree Term of Parole Supervision - 3 years 3.  Czy rozumie Pan(i), że w przypadku naruszenia warunków nadzoru po zwolnieniu [Tak/Yes] [Nie/No] warunkowym, zwolnienie warunkowe może zostać cofnięte i może Pan(i) wrócić do zakładu karnego i pozostać tam przez cały pozostały okres nadzoru kuratora sądowego po zwolnieniu warunkowym, pomimo zakończenia odbywania poprzedniej kary pozbawienia wolności?
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[brief] [...] does not make claims under the first two [...] policies covering the period from June 1, 2005-June 1, 2007 because those policies contain restrictive mold exclusions that are much broader than the mold exclusions of the final three policies at issue.  Da244; Da261.  The three policies at issue provide aggregate coverage limits of $15,000,000 each, for a total of $45,000,000, far in excess of the unpaid balance of the Consent Judgment in the underlying case.  Da263; Da306; Da352.  ARGUMENT
[brief] ”  Segal v. Lynch, 413 N.J. Super. 171, 191 (App. Div. 2010); Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 366 (1988); see Model Charge 3.30F.  The emotional distress is apparent to any reasonable person.  There is a large amount of equity in the [...]’ home.  They are senior citizens and have never missed a loan payment, or payments for taxes and insurance, for the 35-plus years they have owned their home.  As the [...] charged, the Plaintiff “[...]” and [...] were determined to obtain the [...]’ equity via foreclosure related fees (which have collected to approximately $250,000), by claimed litigation and other foreclosure-related fees ([...] confirmed they were foreclosure-related), and by a path of distressed debt and default.
[brief] As acknowledged by Defendant [...], “a dangerous condition or property may be found to exist when an unreasonable risk of harm is created by the combination of [(1)] a defect in the property and [(2)] the acts of third parties. ”  Def. [...]’s Brief at 17-18 (citing *Foster v. Newark Housing Authority*, 389 N.J. Super. 60, 68 (App. Div. 2006)) (emphasis added).  Contrary to Defendant [...]’s argument, the *Foster* Court’s determination is in accord with the facts as pleaded: the combination of (1) the defect of public property (*i.e.*, the presence of the illegal, large, makeshift liquor concession stand on the Subject Premises for months) and (2) the foreseeable acts of third parties (*i.e.*, a drunken patron of the illegal, large, makeshift liquor concession stand fighting with Decedent and eventually shooting him) could be found to create a “dangerous condition” under the TCA.  Compare Def. [...]’s Brief at 18 with *Foster*, 389 N.J. Super. at 68.  So is the *Saldana* Court’s determination that the combination of a defect in public property (i.e., a hazardous, illegal, large, makeshift liquor concession stand that needed to be removed or demolished) and the acts of third parties (i.e., unauthorized persons getting drunk and starting fights) was sufficient for a “dangerous condition” as is the law in New Jersey.  Compare Def. [...]’s Brief at 20-21 with Saldana, 275 N.J. Super. at 503.  POINT III:
[brief] Trinity Church v. Lawson-[...], 394 N.J. Super. 159, 166 (App. Div. 2007).  “[C]onclusory and self-serving assertions by one of the parties are insufficient to overcome [a] motion [for summary judgment].”  Puder v. Buechel, 183 N.J. 428, 440-441 (2005) (internal quotations and citations omitted).  Appellant/plaintiff [...] argues that summary judgment was improperly granted because further discovery was required.
[brief] *17  For example, Plaintiffs quote [...]—[...]’s former Lead Security Counsel and Head of Global Policy Management now Vice President of Content Policy and a designated custodian in this case—explaining that [...] employees “will absolutely loop in” [...] and [...] on important issues, by, for instance, “send[ing] an email to [...] and [...] so that they know what’s going on. ”  Weaver Decl., Ex. 6.  Ms. Bickert’s remarks do not show that [...] and [...] are likely to have unique information.  To the contrary, they indicate that [...] and [...] become involved when personnel who are already custodians provide updates on important issues or affirmatively solicit and receive their input.  Plaintiffs also focus on the claim of [...]—another designated custodian—that [...] had to approve “‘any decision to ban an app’ for violating [...]’s policies related to user information,” such as [Redacted] Mot. at 5, citing Weaver Decl., Exs. 7-8.  But [...]’s final signoff for such actions hardly demonstrates that he has unique documents or information reflecting [...]’s enforcement of its policies governing relationships with third party apps.  Indeed, the email [Redacted]—all of whom are designated custodians.  Weaver Decl., Ex. 8; see also id., Ex. 9 [Redacted].  Plaintiffs point to communications showing [...]’s involvement in [...]’s efforts to [Redacted].  Weaver Decl., Exs. 10-12.  But these documents all show [...] working as a member of teams that included multiple designated custodians, such as [...], [...], [...], [...], [...], [...], and [...].  Far from suggesting the existence of unique, relevant information that only [...] has access to, these documents establish that relevant information, even high level strategic planning, was widely distributed to key personnel within [...] (many of whom are already custodians) for them to work out the details.
[brief] In *Grand Jury*, the Supreme Court adopted an ethical framework governing third-party payer arrangements, in a case involving an investigation into whether a corporate contractor submitted fraudulent invoices for services rendered to a county government.  Because the investigation sought testimony from three of the company’s employees, the company arranged to pay for counsel for those employees and entered into retainer agreements with four separate lawyers (one for itself and separate counsel for each employee).  *Id.* at 486.  The State moved to disqualify counsel claiming a per se conflict of interest.  *Id.* at 488.  The Court analyzed RPC 1.7(a) among others and held that a lawyer’s arrangement with a client whose fees are being paid by a third party is appropriate “provided each of the[se] six conditions is satisfied:” (1) informed consent of the client is obtained; (2) the third-party payer does not interfere with the representation; (3) the lawyer cannot have an attorney-client relationship with the third-party payer; (4) the client’s confidential information is protected; (5) the third-party payer must timely pay client’s invoices; and (6) the third-party payer must continue its funding obligation unless relieved by court order.