ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] We initially address the [...]’s assertion that the arbitrator improperly rejected its revised final orders for being non-compliant with his request.  . . .  The [...] argues that the arbitrator’s request for revised final orders did not clearly state it was only intended to provide more specific contract language and not additional substantive proposals.  The [...] asserts it was prejudicial for the arbitrator to accept the [...]’s revised final offer but not the [...]’s.  The [...] responds that the purpose of the arbitrator’s request for revised final offers was to provide him with specific contractual language for the proposals already submitted.  The [...] asserts that the arbitrator properly disregarded the [...]’s revised final offers because they prejudicially expanded the issues in dispute.
[brief] ” (Pa689).  A jury could find that this question reveals the motive behind the bogus discipline was retaliatory, beyond any legitimate interest to discipline [...].  In July of 2016, also after Alan [...] had retired, defendants advised they would withdraw the disciplinary charges as long as Alan S. [...]’s agreed not to bring any “claims, suits or actions” against the “[...], the [...], their employees, agents, or assigns. ” (Pa698).  A jury could find this shows a retaliatory motive and defendants exposure to liability that they wished to avoid.  In 2019, Alan [...] was banned from the [...] building where his wife still works without an escort in retaliation for filing a lawsuit alleging a violation of the NJLAD.  (Pa699).  Taken in a light most favorable to [...], a jury could find that each of the above events standing alone could be found by a jury to dissuade a reasonable person from making or supporting a charge of discrimination and when the totality of the circumstances are considered a jury could easily find that a reasonable person could be dissuaded from making or supporting a charge of discrimination and find in favor of [...].
[brief] "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."  Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).  If a judge makes a discretionary decision, but acts under a misconception of the applicable law or misapplies it, the exercise of legal discretion lacks a foundation and it becomes an arbitrary act, not subject to the usual deference.  Summit Plaza Assocs. v. Kolta, 462 N.J. Super. 401, 409 (App. Div. 2020), certif. denied, 244 N.J. 145 (2020); Alves v. Rosenberg, 400 N.J. Super. 553, 563 (App. Div. 2008).  While appellate courts apply a deferential standard in reviewing factual findings by a judge, Balducci v. Cige, 240 N.J. 574, 595 (2020), State v. McNeil-Thomas, 238 N.J. 256, 271 (2019), Rule 4:46-2 prohibits a trial court from deciding any disputed issues of fact on a motion for summary judgment.
[brief] Sg001-Sg006.  Similarly, N.J.S.A. 18A:12-24.1(e) states:  I will recognize that authority rests with the board of education and will make no personal promises nor take any private action that may compromise the board.  In this case, there are no facts in the record that support the Agency’s legal conclusion that Appellant’s request constituted a “private action” that compromised the Board.
[brief] Cumberland County Improvement Auth. v. GSP Recycling Co. Inc., 358 N.J. Super. 484 (App. Div.), certif. denied, 177 N.J. 222 (2003) ...................................................................................................................29 Dansko Holdings, Inc. v. Ben. Tr. Co., 991 F.3d 494 (3d Cir. 2021) ..................................................................................62, 65 Di Filippi v. Target Corp., No. A-6050-05T2, 2008 N.J. Super. Unpub. LEXIS 1549 (App. Div. Jan. 16, 2008) ................................................................. 64 Do-Wop Corp. v. City of Rahway, 168 N.J. 191 (2001) .................................................................................................................................................. 18 Edwards v. Prudential Prop. & Cas. Co., 357 N.J. Super. 196, certif. denied, 176 N.J. 278 (2003) .............................................. 17, 46 Ellmex Constr. Co., Inc. v. Republic Ins. Co., 202 N.J. Super. 195 (App. Div. 1985) ............................................................................................................. 52 Estate of Pearson v. Interstate Power & Light Co., 700 N.W.2D 333 (Iowa 2005) ......................................................................................................................... 71 Ex parte McNaughton, 728 So. 2d 592 (Ala. 1998) ............................................................................................................................  37 F.G. v. MacDonell, 150 N.J. 550 (1997)  ...........................................................................................................................................  51  Faysen Lake, Inc. v. Miller, 130 N.J.L. 289 (1943)  ........................................................................................................................................  27 Fid. & Deposit Co. of Md. v. Stamateris, No. A-5407-09T3, 2011 N.J. Super. Unpub. LEXIS 2015 (App. Div. July 25, 2011)
[brief] Ibid.  First, the argued that [...]’s failure to file a timely notice of claim, as required by the New Jersey Tort Claims Act (“TCA”), N.J.S.A. 59:8-8, was fatal to all of his common-law tort claims to the extent that [...] was alleging any in Counts I through IX of the complaint.  (1T 5:5-15).6  Second, they asserted that the three prosecutors were entitled to absolute prosecutorial immunity under the TCA (to the extent [...] raised common-law tort claims), and the NJCRA (to the extent [...] raised state constitutional claims), for the same reasons the district court found absolute prosecutorial immunity to apply as to [...]’s federal constitutional claims.  (1T5:16-22).  Third, they contended that neither the State nor the Prosecutor Defendants were “persons” subject to liability under the NJCRA.  Finally, they argued that to the extent that [...]’s NJCRA constitutional malicious prosecution-related claims were otherwise cognizable against the State Defendants, such claims would be time-barred under the NJCRA because they accrued on March 6, 2018, when the New Jersey Supreme Court reversed [...]’s VOP conviction, and were thus filed approximately seven months too late.
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[brief] Da140.  The trial court’s concern that the diagram depicts or represents conditions other than the points of impact between the vehicles is simply not accurate and did not justify excluding this critical piece of evidence.  This trial error combined with the other trial errors deprived [...] of a fair trial and resulted in a miscarriage of justice in which the jury allocated 40% of the fault to [...] without basis.  “For a hearsay error to mandate reversal, ‘[t]he possibility [of an unjust verdict] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. ’”  Neno, 197 N.J. at 586 (quoting State v. Hightower, 120 N.J. 378, 410 (1990)).  Moreover, the trial court’s failure to apply the correct legal standard is not subject to a discretionary standard of review.  Villanueva, 431 N.J. Super. 301.  [...] respectfully submits that the trial court failed to apply the correct legal standard and did not properly analyze the nature of the evidence that [...] sought to admit.  [...]’s diagram was not based on hearsay and did not contain any information that was not based on his personal observations of the vehicles at the scene of the accident.  If the court was concerned about the jury’s consideration of the diagram, a limiting instruction could have been given explaining the purpose for which the diagram could be used.  N.J.R.E. 105.  [...]’s diagram was critically important evidence that would have helped the jury understand how the vehicles collided.  Without that diagram, the jury was left to speculate about where exactly the precise points of impact were between the three vehicles.  The trial court’s ruling excluding this evidence denied [...] a fair trial and resulted in an unjust allocation of fault against [...].
[brief] ---  1  The undersigned is aware that R. 2:6-1(a)(2) generally prohibits the inclusion of briefs in appendices submitted to this court.  The brief in support of Respondent’s motion to dismiss, however, is included to establish that the Respondent raised the issue below.  Even if the [...] retreated from the position that it took in Advisory Opinion 36-17, none of the cases cited by Complainants at Cb39 establish that a clarification, and even an alteration, of the law by a tribunal deprives a party of due process.  Accordingly, the [...] did not err in dismissing Count 5 of the Complaint.
[brief] III.  THE NJDEP’S ISSUANCE OF THE WATERFRONT DEVELOPMENT PERMIT MODIFICATION WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE, LACKS SUBSTANTIAL CREDIBLE EVIDENCE TO SUPPORT THE DECISION, AND SHOULD BE REVERSED.  [Aa89-Aa91.]  In Musconetcong Watershed Ass’n v. N.J. Dep’t of Env’t Prot., 476 N.J. Super. 465 (App. Div. 2023), this Court set forth the well settled principle that "[e]xhaustion of administrative remedies before resort to the courts is a firmly embedded judicial principle.  This principle requires exhausting available procedures, that is, 'pursuing them to their appropriate conclusion and, correlative...awaiting their final outcome before seeking judicial intervention.'"  Id. at 478 (quoting Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 558-59 (1979)(internal citations omitted)).  The Court held that a NJDEP determination does not become final for purposes of a judicial appeal until the NJDEP denied the petitioner’s request for an adjudicatory hearing.  Id. at 479.  As Appellant filed a timely adjudicatory hearing request of [...]’s 2019 WFD permit modification, and subsequently filed a timely notice of appeal of the NJDEP’s March 14, 2023 denial of its adjudicatory hearing request, Appellant also challenges the merits of the NJDEP’s grant of [...]’s WFD permit modification in this appeal.
[brief] Defendant alternatively argues that he was in custody as soon as the police had probable cause to arrest him, which defendant identifies as the moment after defendant “indicated that there were in fact[] drugs in the car. ” (Db32).  The State disagrees, but acknowledges that the investigatory detention turned into custody shortly thereafter when [...] stated that defendant was going to be under arrest.  Specifically, while questioning defendant about who owned the drugs defendant had just shown him, the officer asked, “Am I going to have to arrest her, too? Because it’s in the car. ” (V:16:59:40 to 17:00:00).  Because this question revealed the officer’s intention to arrest either defendant or both defendant and his wife, the State agrees that defendant was in custody under Miranda from that moment forward.
[directive] Promulgated by Directive# 19-19 (August 12, 2019)  Page7  Guideline 4.  Temporary Relief 00  Court's Determination.  If the court determines that the petitioner established of good cause to believe that the respondent poses an immediate and present danger or bodily injury to self others by possessing, purchasing, owning, or receiving a firearm, of ex the court shall order parte emergency relief the form a temporary extreme risk in protective order.
[brief] Thus, the New Jersey Supreme Court has made clear that “[b]ecause the nature of first-party coverage and the applicable policy provisions are different…those decisions [applying Appleman’s Rule] are of limited relevance” to analyzing third-party policies.  *Flomerfelt*, 202 N.J. at 447.  Because the grants of coverage materially differ, courts nationwide have rejected policyholder attempts to expand Appleman’s rule from first-party property to third-party CGL policies.  *See Garvey*, 770 P.2d 704; *Aragona v. St. Paul Fire & Marine Ins. Co.*, 378 A.2d 1346 (Md. 1977); *City of Carlsbad v. Ins. Co. of State of Pennsylvania*, 180 Cal. App. 4th 176 (Cal. App. Ct. 2009); *Larsen*, 1995 U.S. App. LEXIS 36215; *United States Liability Ins. Co. v. Bourbeau*, 49 F.3d 786 (1st Cir. 1985) (applying Massachusetts law); *Utica Mut. Ins. Co. v. Hall Equip., Inc.*, 73 F. Supp.2d 83 (D. Mass. 1999); *Bao v. Liberty Mut. Ins. Co.*, 535 F. Supp.2d 532 (D. Md. 2008); *Schmitt v. NIC Ins. Co.*, 2007 U.S. Dist. LEXIS 81411 (N.D. Cal. Nov. 1, 2007).
[brief] It is also telling that in the second opinion Plaintiff relies on, Casatelli v. Dressler, the panel admonished the plaintiff for “pluck[ing] language” from [...] contending that liability should be imposed based on judicial notice of the “inherently vicious” traits of all pit bulls.  [...], 2011 N.J. Super. Unpub. Lexis 1683 at *4 (App. Div. June 27, 2011).  The panel rejected this argument as lacking sufficient merit to warrant a written opinion.  Ibid.  The remainder of the opinion consists of the panel’s “brief comments,” among them contemplation of the possibility that a dog breed’s propensity to be vicious could be provable by expert opinion.  Id. at *4, 7.  However, this is again dicta, this time in an unpublished opinion.  Even to the extent Casatelli countenances using expert opinion to establish the vicious propensities of all pit bulls, the panel does not state that such evidence would be sufficient to establish a jury question as to the offending animal’s vicious or dangerous trait or propensity.  On the other hand, to the extent *Casatelli* is persuasive, it reiterates the rule that notice of prior behavior by the offending animal is required to impose liability.
[brief] DEFENDANT’S ADA CLAIMS AND DISCOVERY REQUESTS WERE NOT BEFORE THE SUPERIOR COURT, LAW DIVISION, JUDGE, WERE NOT A PART OF THE RECORD, AND CANNOT BE CONSIDERED ON APPEAL.  (THIS ARGUMENT REFERS TO POINTS II AND III OF DEFENDANT’S BRIEF.)  There was nothing on the record for this Honorable Court to review regarding defendant’s ADA claims nor has defendant asserted how her rights were violated.  New Jersey Court Rules R. 2:5-4, R. 2:5-5, and R. 2:6-1 govern the contents of an appellant’s appendices and briefs.  Parties may not supplement or correct the trial record without the leave of the court nor may they rewrite it.  R. 2:5-5; State v. Golotta, 178 N.J. 205, 211-12 (2003).  Defendant’s brief and appendices refer to numerous documents which were listed as exhibits but not included in the court’s record as evidence.  Defendant’s motion to expand the record was denied by this Honorable Court.
[brief] As set forth in [...]’ moving brief, the record clearly and undisputedly demonstrates that neither [...] nor [...]: (i) possess a property interest “anywhere near [the] facility” in question, (ii) are affected in any way whatsoever by the challenged approval, (iii) “have any special damages”, and/or (iv) established a generalized claim of harm to the community caused by the challenged approval.  (Da022.)  What’s more, Plaintiffs admit that the Resolution does not, in any way, impact them economically.  Applying those undisputed facts to the well-settled standard – _i.e._, the “interested party” standard applied in every case decided in this State since the time the MLUL was adopted – there is no question that neither party possesses standing.
[brief] On March 27, 2023, Appellant filed in the Superior Court of New Jersey – Law Division – Chancery Division an application for an Order to Show Cause (alternatively “OTSC”) and accompanying verified complaint, seeking, among other forms of relief, to enforce the alleged “settlement agreement” against Respondent.  **Pa1-Pa13**  On or about April 3, 2023, Respondent confirmed, through counsel, service of Appellant’s attorney certification, proof of service of the OTSC and verified complaint on Defendant.  **Pa104. **  Notwithstanding the fact that Appellant’s application would more properly be heard by the Civil Service Commission, Respondent filed opposition to Appellant’s application on or about April 3, 2023.  **Pa108-130. **  Thereafter, Appellant filed a reply brief in response to Respondent’s opposition.  **Pa131-134**  Oral argument was held on or about April 6, 2023, before Hon. [...], A.J.S.C.  **1T.**  On April 12, 2023, [...] correctly found in favor of Respondent and rendered a decision from the bench which denied Appellant’s OTSC and remanded the matter back to the hearing officer.
[brief] Finally, the Order should be reversed because the proofs weighed in the plaintiff’s favor, at the very least, create a question of fact as to whether the defendants violated the affirmative non-delegable duty to render the premises reasonably safe for the plaintiff.  “While it is within the province of the trial court to determine the legal status of a person coming on another's land, it is the function of the jury to determine the condition of the property and the reasonableness of defendants’ care, and to determine the comparative fault of each party.  The determination of what constitutes reasonable care under particular circumstances is to be resolved not by a judge but by a jury.
[brief] Relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.  N.J.R.E. 403.  Stoelting v. Hauck, 32 N.J. 87, 103 (1960).  If the evidence is deemed relevant, it is admissible, unless its probative value is substantially outweighed by the risk of undue prejudice or some other bar to its admission is properly interposed.  State v. Jackson, 243 N.J. 52, 58 (2020).  The trial court has broad discretion to exclude evidence as unduly prejudicial pursuant to N.J.R.E. 403.  Ibid.  Here, the trial court did not abuse its discretion when it refused to take judicial notice of the State of Emergency and barred its reference at trial, as it was irrelevant to the crux of the claim, and even if it had any relevance, its probative value was outweighed by its prejudicial value as the only value of such evidence is its ability to inflame the prejudices and biases of jurors.
[brief] 8a; 17a-18a; 63a; 69a.  [...] had argued that with but one exception (the Spill Act claim), the cross-claims were identical to those which had been dismissed by the Court with prejudice on May 16, 2017.  8a; 68a.  As for the Spill Act claim, the Estate argued that it had been included in the complaint filed against the Estate in the Chancery action.  8a; 68a.  In September of 2018, [...] filed a motion seeking reconsideration of the Court’s June 22, 2018 decision denying leave to file the Proposed Amended Pleading.
[brief] ”  Ibid.  Finally, the Legislature made clear that the Franchise Practices Act, N.J.S.A. 56:10-1, et seq., serves as a supplement to the MBPA and should be given consideration in any determination under the MBPA.  See N.J.S.A. 33:1-93.15(e) (“[P]roper consideration should be given to relevant precedents provided under the ‘Franchise Practices Act,’ . . . and the fact that a term of a contract, agreement or relationship may be a term of the kind described in section 9 of this act shall not be considered in making such determination. ”).  Notably, the Franchise Practices Act largely echoes and emboldens the strong protections available for the party in a position of lesser-bargaining power.  The Franchise Practices Act provides “that a franchise may not be terminated, cancelled, or non-renewed ‘without good cause. ’”\(^3\) *Instructional Sys. v. Computer Curriculum Corp.*, 130 N.J. 324, 374 (1992) (quoting N.J.S.A. 56:10-5).  In fact, the Franchise Practices Act prescribes that if a franchisee is fulfilling its contractual obligations, a franchisor cannot even make good faith structure changes if those changes include termination of the franchisee’s franchise.  *Instructional Sys.*, 130 N.J. at 374.  The Legislature’s decision to incorporate the Franchise Practices Act as a gap-filler for the MBPA and to call for New Jersey Courts to consider the Franchise Practices Act in any analysis of the MBPA only highlights the broad protective intent of the MBPA.
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