ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] A trustee has the obligation to beneficiaries to exercise “that degree of care, prudence, circumspection and foresight, that an ordinary prudent person” would employ in managing their own affairs.  *Blauvelt v. Citizens Trust Co.*, 3 N.J. 545, 554 (1950).  Again, the trial court ordered the bidding procedure because the parties could not agree on anything having to do with the [...].  Da53.  The courts will not enforce the literal terms of a will or trust where to do so would result in a frustration of testamentary intent.
[brief] (Aa0001)  [...] argued, in its supplemental brief, that the “Appellants’ claims about the impacts of the Project are speculative, unsupported by a fair interpretation of the Act and misunderstand the narrow facts on which [...] may base its decision. ”  [...] at 14-15.  But the Appellants’ claims about the impacts of the Project are not speculative.  In fact, [...] has initiated a formal complaint against the fossil fuel industry, which is pending in the Superior Court with Docket [...].  [...]’s positions and assertions in that case are directly contrary to its claim that climate change impacts are only “speculative” in this matter.
[brief] N.J.S.A. 2C:44-1b(4) and (11).  As defendant did not seek the application of mitigating factor 4 at sentencing, he cannot seek its application on appeal.  See Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012) (“appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available").
[brief] Even if [...] did not receive the postcard or any of the other notice provided by the Division, he cannot evade the two-year limitation period.  “As New Jersey courts have long recognized, ‘[i]gnorance of the law furnishes no excuse to a person either for a breach or for an omission of a duty[.]’”  Kalogeras v. 239 Broad Ave., L.L.C., 202 N.J. 349, 367 (2010) (quoting Bowen v. Pursel, 109 N.J. Eq. 67, 73 (E. & A. 1931)).  Thus, [...] purportedly being unaware of the Ricci Act until over three years after its passage cannot serve as the basis to allow him to evade its unambiguous requirements.  [...]’s reliance on Ensslin v. Board of Trustees, Police and Firemen’s Retirement System, 311 N.J. Super. 333 (App. Div. 1998), is misplaced.
[brief] -  The arbitrator’s salary award initially noted that because the award was almost all retroactive (i.e., the term began in 2019 and was set to expire in just a few weeks at the end of 2023), the parties past payments for these unit employees already used up much of the reserves once designated for them.  He stated:  “The appropriate salary award is one which, by necessity, provides limited retroactive pay while fairly situating the parties as they head into 2024 and the negotiation of a successor agreement. ”  [Aa044]  -  The arbitrator found that the award, in full, yields a 5.22% salary increase for the four year have month period of August 1, 2019 through December 31, 2023.  [Aa045]  -  Because the Legislature entrusted arbitrators with weighing the evidence, we will not disturb an arbitrator’s exercise of discretion unless an appellant demonstrates that the arbitrator did not adhere to these standards.
[brief] This is a challenge to the [...]’s ([...]) approval of [...]’s proposed 99 foot tall, slab sided, 8-story, 109 unit apartment building only 88 feet from the boardwalk in [...] in direct contravention of [...]’s rules meant to prohibit massive development close to New Jersey’s water front.  [...] denied the permit application due to the project’s blatant disregard of its rules.  But then [...] filed an administrative appeal, and in a stunning about face [...] approved the project, offering only a convoluted and illogical explanation that because [...] stopped requiring compliance with the relevant [...] Coastal Regulations for [...]’s specific spot, [...] would not apply those rules either.  In order to construct a building close to the New Jersey shore line a Coastal Area Facility Review Act (CAFRA) permit is required.
[brief] (2T46-20 to 22; 4T61-3 to 5).  [...] was dressed in a long-sleeved sweatshirt, jeans and socks.  (2T176-23 to 2T177-1).  In the victim’s left hand, the officer saw an 8-inch steak knife.  (2T47-18 to 19).  In the victim’s right hand, the officer saw the telephone.  (2T47-13 to 18).  The officer checked for a pulse and did not hear one.  (2T49-12 to 15).  While the police were responding to [...], defendant, who was 26 years old, was outside and not far away, wearing only pants and shoes.
[brief] (30T56-16 to 19).  The judge rejected as mitigating factors that defendant did not cause or threaten serious harm or that he did not contemplate such harm because the jury found he had caused serious harm.  (30T56-20 to 30T57-3).  The judge rejected the defense argument that there was “strong provocation,” N.J.S.A. 2C:44-1b(3), or “substantial grounds” tending to excuse his conduct, N.J.S.A. 2C:44-1b(4), because the jury had found him guilty of passion/provocation manslaughter and attempted passion/provocation manslaughter, so because the evidence at trial showed the evidence of provocation to be on the “lower end,” there was no basis for the court at sentencing to give this point mitigating weight.
[brief] Both the aforementioned motions were returnable on October 20, 2023.  On October 4, 2023, counsel for [...] filed a motion seeking to quash the subpoena which was the subject of the motion to enforce litigants rights.  On October 11, 2023, [...] filed a letter brief with the Court which advised we would be relying on our previously submitted briefs in opposition to [...]’s motion seeking to vacate the arbitration awards.  On October 13, 2023, [...] filed information with the Court indicating that in the 268 page motion seeking to vacate the arbitration awards there was a two-page certification of [...] that had previously not been part of the discovery or briefs.  (Da260 – Da261).  On October 17, 2023, [...] filed a supplemental brief seeking to provide evidence that [...]’s conduct in satisfying numerous prior arbitration awards entered in favor of [...] should estop them from their arguments in this matter.  On October 18, 2023, counsel for [...], with consent, sought an adjournment of the October 20, 2023 return date.  That adjournment request was denied by the Court clerk who also indicated that [...]’s October 17, 2023 submission was an impermissible sur-reply which would not be considered by the Court.  The hearing pursuant to R. 4-67.5 was conducted on October 20, 2023.  All of the submitted Briefs were considered by the Court and the Court entered two Orders vacating the nine inter-company arbitration awards obtained in favor of [...].  (Da1 – Da5).  Each Order was supported by a statement of reasons.  (Da10 – Da27).  The Court subsequently denied the motion to enforce litigants rights returnable November 3, 2023 indicating that as the underlying matter had been decided the relief sought was moot.  (Da6 – Da9).  Defendant now appeals the three aforementioned orders.  (Da262 – Da267).
[brief] On March 27, 2020, the trial court granted Respondent’s Motion (Da80) and Respondent filed the Amended Complaint.  Da86.  Appellant had to produce an updated appraisal report estimating just compensation for the proper location of the easement.  Pa43.  As Appellant had not produced an amended appraisal report by July 2020, on July 10, 2020, Respondent filed a motion seeking a date certain by which Appellant would be required to produce his amended appraisal report.  Pa52.  The trial court granted Respondent’s motion ordering that Appellant “shall produce any written appraisal report within 40 days of this order estimating the amount of just compensation for the taking of the perpetual seawall easement at a distance of 177.65 ft. from Ocean Avenue in Defendant’s Property” and ordering that should Appellant fail to produce such a report he “may” be barred from producing such a report.
[brief] (Da2792-97; 15T 74:7-16; 76:3-17).  The left and center columns in P-48 and P-50 were extracts from the companies’ QuickBooks, but some of the data in the left and center columns was removed, modified, or altered.  The data in the left and center columns was extracted from the company records and served as a starting point for [...] and [...]’s discussion, and the right-most column for each company contained additional modifications made by [...].  (19T 91:16 to 92:20; 93:4 to 95:19; 30T 85:1-21).  [...] and [...] reviewed P-48 and P-50.  In their review, [...] purported to explain each line item and his various adjustments, where applicable.  As to [...], [...] subtracted liabilities from assets and arrived at a value of about $1,192,363.52.  (Da2792-93).  A similar discussion ensued about P-50, including for each of the cash and liability accounts and fixed assets for [...] and [...].  (15T 82:12 to 90:11).  [...] then took the net asset figures that he calculated for [...] and [...] and added them to reach $8,467,115.57.  (Da2797).  He then deducted out several supposedly forthcoming expenses, and third-party sale commission to arrive at a value for [...] and [...] of $7,570,115.57.  (Da2797).  [...] told [...] that he would add that third party sale commission back since they were not selling to a third party to arrive at a value for [...] and [...] of $8.3 million.  (15T 90:13-23).  For [...] and [...], [...]’ share of that $8.3 million figure would have been 50%, or $4.15 million.  (15T 96:13 to 97:1).  For [...], after calculating net equity at just shy of $1.2 million, [...] applied a multiplier of 3 to arrive at a $3.6 million company valuation.  [...]’s 51% interest in [...] yields a value attributable to him of $1.8 million.  (15T 97:2-21).  Thus, using these figures, [...]’s total interest in [...], [...], and [...] would have been about $5.9 million.  (15T 97:2 to 98:1).
[brief] “However, it has been recognized under some circumstances that where public policy calls for it, and there is no unfair surprise, substantial prejudice or undue influence with the efficient administration of justice, a defense will be considered properly before the court although not pleaded.  . . .  Trial judges should not be mere spectators at trial.  State v. Johnson, . . . ,  When a case as presented raises issues within the confines of the legislative policy, . . . there is no fundamental injustice in conforming the pleadings of the case to the facts.  This is consistent with the court’s duty to see that substantial justice is done.
[brief] ” (T63:10-13) (citing Smith v. Datla, 451 N.J. Super. 82, 94 (App. Div. 2017)).  Accordingly, the trial court’s grant of summary judgment in Defendants’ favor was appropriate as the weight of all the evidence is so grossly one-sided that Defendants must prevail as a matter of law.  See Brill, 142 N.J. at 540; see also Dickson v. Cmty. Bus Lines, Inc., 458 N.J. Super. 522, 532 (App. Div. 2019) (affirming grant of summary judgment dismissing Plaintiff’s claims because the record was “one-sided”).
[brief] 44 N.J. Ct. R. 2:2-3(a) ..............................................................................................................  41 N.J. Ct. R. 2:6-2 .................................................................................................................. iii N.J. Ct. R. 2:6-8 .................................................................................................................. vi, ix N.J. Ct. R. 4:69-6 (a) ....................................................................................................... 21, 34 N.J. Ct. R. 4:69-6 (b)(3) ................................................................................................. 18, 19, 34 N.J. Ct. R. 4:69-6 (c) ....................................................................................................... 19 Rule of Professional Conduct 5.3 ..................................................................................... 25 Ordinances Middletown PDR § 540-624 A ......................................................................................... 50, 51 Middletown PDR § 540-636 D ......................................................................................... 51 Middletown PDR § 540-636 D. (2) .................................................................................. 50 TABLE OF CONTENTS OF APPENDIX Applicants’ Exhibit A-1, Variance Plan prepared by [...] and dated August 15, 2021...............................SDa001 Applicants’ Exhibit A-3, Location Survey consisting of one (1) sheet prepared by [...] dated August 15, 2021.................................................................SDa002
[brief] As a result of plaintiffs’ deliberate omission of exculpatory information which favored and favors [...]’s statute of limitations argument it is respectfully submitted that, in the interests of justice, the Court should reverse the Law Division’s denial of [...]’s motion to dismiss in lieu of answer and motion for summary judgment, both, on statute of limitations grounds, and in the interests of justice, for plaintiffs’ failure to file the action against [...] within the applicable statute of limitations, and, upon reversal, granting [...] summary judgment and dismissing the third amended complaint with prejudice, for plaintiffs’ failure to file the action against [...] within the applicable statute of limitations.  PROCEDURAL HISTORY
[brief] Plaintiff does not point to any evidence in the record—either at the summary judgment stage or at trial—from which a rational factfinder could conclude the City had notice of the missing sign.  Plaintiff chooses instead to question the City’s exercise of its discretion in placing the sign in advance of the overpass, as it is entitled to do under the Manual.  But Plaintiff similarly fails to point to any evidence in the record supporting his contentions.  At each stage of this case, Plaintiff failed to meet his burden, and the trial court should have granted the City’s motions for summary judgment and directed verdict.
[brief] Contrary to Respondent’s contention, adequate, timely, proper notice of the Ricci Act was not provided.  Respondent claims that posting the Ricci Act on the Division’s website is somehow adequate “notice” to all members and retirees enrolled in the State Police Retirement System.  Rb10.  However, this argument fails for several reasons.  The Ricci Act states:  The board of trustees shall promulgate rules and regulations necessary to implement the provisions of this subsection and shall notify members and retirants in the retirement system of the enactment of this act, P.L.2019, c.157, within 30 days of enactment.  N.J.S.A. 53:5A-10(e).  Pursuant to the Ricci Act, the Board was required to provide notice to members and retirants in the system.  A website posting is not sufficient notice to retirees or active members of the retirement system.
[brief] As Defendant explains:  18)  I have learned that the Plaintiff filed two motions for substituted service, as they claimed they were unable to serve me.  They claimed they attempted to serve me at [...], where I do not live, and at my home, which is [...].  This is detailed in a Certification filed by Plaintiff’s Counsel, which also includes a process server’s due diligence affidavit indicating that an individual by the name of “[...]” was residing in my home.  19)  The person that Plaintiff’s process server spoke to is my neighbor, which leads me to conclude that the process server must have misread the address provided by Plaintiff, and knocked on the wrong door.  The explanation that [...] offers for his default is more feasible when considered in conjunction with the [...]’s anomalous effort to serve process.  The logical approach would have started at 39 Shore Drive; the address that [...] already had for [...].  Instead, [...] repeatedly attempted service at locations where service was bound to fail.  [...]’s actions could reasonably be viewed as stratagem to develop a record that would eventually invite service by mail, and increase the odds of obtaining a default judgment.
[brief] In those matters [...] argues "N.J.S.A. 2a:15-97 upon reviewing provisions of the cited statute does not deny a carrier a right of recovery but rather clearly supports the contractual obligation of a claimant to protect an insurer's right of recovery with respect to a third party's claim against a liable party.  It furthermore is clear in stating that N.J.S.A. 2a: 15-97 is applicable "except actions brought pursuant to the provisions of p.l. 1972, c.70 (c. 39:6a-1 et.seq.)" or those involving automobile type losses.  Since this matter did not involve motor vehicles, one of which meets the statutory definition of an "automobile", the pleading that progressive's right of recovery is barred cannot be upheld statutorily, and progressive's contractual right of recovery should be upheld.  (statute)" progressive recognizes that there is a right to recover medpay benefits based on the exception to the collateral source rule created by claims pursuant to N.J.S.A. 39:6a-1-et seq.  As set forth above, applicant has proved the prima fascia case of a right or recovery and liability is established at 100% against the respondent.
[brief] ” (Pa216; Pa217).  With regard to the work he performed on the date of the alleged incident, [...] testified as follows:  Q.  So you proceeded to do your work on the 21st?  A.  I don’t think so, no, I don’t think I did any actual floor work.  I don’t even think I installed one piece of flooring.  Q.  And why is that?  A.  Because I was bringing garbage, a bag of garbage out to the dumpster and that’s when I fell and woke up some time later.
[directive] (N.J.S.A. VCCO Assessment 2C:43-3.1)  The defendant is prohibited from purchasing, owning, possessing, Counts Number Amount or controlling a firearm and from receiving or retaining a firearms @ $ purchaser identification card or permit to purchase a handgun (N.J.S.A. 2C:25-27c(1)).  @ $  N.J.S.A. Findings Per 2C:47-3 @ $  The court finds that the defendant's conduct was characterized @ $ by a pattern of repetitive and compulsive behavior.  Total VCCO Assessment $  The court finds that the defendant is amenable to sex offender
[brief] El Vocero de Puerto Rico v. Union de Periodistas, 532 F. Supp. 13, 16 (Dist. P. R. 1981) ........................................... 23, 28  In re Estate of Vayda, 184 N.J. 115, 120, (2005) ............................................. 32, 34  Food Handlers Local v. Pluss Poultry, Inc., 260 F.2d 835, 836 (8th Cir. 1958) ......................................................... 23, 25, 28  Franklin Twp v. Quakertown Ed. Assn., 274 N.J. Super, 47, 55 (App. Div., 1994) .......................................................... 16, 17  Heher v. Smith Stratton, 143 N.J. 448 (1996) .............................................. 37, 38  In re Estate of Lash, 169 N.J. 20, 30-32 (2001) .............................................. 33, 34  In re Niles Trust, 176 N.J. 282, 293 (2003) .............................................. 32, 33, 35, 38, 40 Lawson Mardon Wheaton v. Smith, 160 N.J. 383, 403 (1999) ....................... 10, 11, 12 Manger v. Manger, 417 N.J. Super. 370 (App. Div. 2010) ........................................ 8 N. Bergen Rex Transp. v. Trailer Leasing Co., 158 N.J. 561, 569, (1999) ............ 33 Packard- Bamberger v. Collier, 167 N.J. 427 (1999) ........................................ 34 Risco v. NJ Natural Gas, 2015 Unpub. LEXIS 1785 ........................................ 8 Rock Work Inc. v. Pulaski Const. Co., 396 N.J. Super. 344, 355 (App. Div. 2007) ........................................ 3, 9, 32, 33 Savage v. Tp. of Neptune, 472 N.J. Super. 291, 313 (App. Div. 2022) .................. 20 Sipko v. Rogers, 251 N.J. 162, 182 (2022) .................................................... 2, 10, 12 Szuts v. Dean Witter Reynolds, Inc., 931 F.2d 830, 831 (11th Cir, 1991) ....... 23, 25 Tamari v. Conrad, 552 F.2d 778, 781 (7th Cir. 1977) ........................................ 25 Tarta Luna Properties, LLC v. Harvest Restaurants Group LLC, 466 N.J. Super. 137, 155 (App. Div. 2021) ........................................ 39 Tretina v. Fitzpatrick & Assocs., 135 N.J. 349, 364 (1994) ....................... 31, 36 Wear v. Selective Ins. Co., 455 N.J. Super. 440, 458 (App. Div. 2018)........... 20 Weiss v. Carpenter Bennet and Morrissey, 143 N.J. 420, 442-443 (1995)......................................................... 36, 37, 38 Statutes N.J.S.A. 42:2c-47(c) .............................................................................1, 46 N.J.S.A. 2A:23B-21(b) ...........................................................................3 N.J.S.A. 2A:23B-23(a) ........................................................................... 4, 31 N.J.S.A. 2A:23B-15 ...............................................................................5 N.J.S.A. 2A:23B-21b..............................................................................
[brief] (Pa20).  The ALJ concluded that [...] failed to meet her burden of proving she was eligible for pension credit under N.J.S.A. 43:15A-7.2(b) because the ALJ found that [...] was an independent contractor.  (Pa19).  The ALJ noted that some of the factors, such as financial control, are easy to manipulate.  Ibid.  The ALJ explained that, according to the IRS rules, the most important consideration in the twenty-factor test is to determine whether the employer “controls” the worker, meaning the employer controls not only what shall be done but how it shall be done.
[brief] (9T215:1-18).  [...] testified that the impact point for when the grout landed, whoever threw it, was on the stanchion (shelves) (9T156:9-21; Pa297-299), but he was unable to say how far the bag traveled before it hit the stanchion and burst.  (9T215:14-18).  In analyzing the plaintiff's version of events on cross, [...] agreed that the angle of [...]'s forearms at the time they impacted the grout bag would determine where that grout bag is going to go. (9T196:18-201:25).  He conceded that if the parties were nose to nose and the plaintiff was holding the bag of grout at his chest level and [...] struck the bag of grout at a time when his ([...]'s) forearms are angled towards [...], then the bag of grout could fly slightly towards him and impact the shelves if [...] hit the bag with his right hand.  (9T200:17-201:25).  Plaintiffs presented the opinion of [...] as a liability expert in the field of retail operations.
[brief] New Jersey applies the McDonnell-Douglas burden-shifting analysis to retaliation claims under CEPA.  See Massarano v. N.J. Transit, 400 N.J. Super. 474, 492 (App. Div. 2008) (quoting Zappasodi v. New Jersey, 335 N.J. Super. 83, 89 (App. Div. 2000)).  Initially, the plaintiff must establish a prima facie case of retaliation.  Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015).  If a plaintiff is able to establish a prima facie claim, the burden shifts to the defendant-employer to “advance a legitimate, nondiscriminatory reason for the adverse conduct against the employee. ”  Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 38 (App. Div. 2005).  “Upon such a showing by the employer, plaintiff has the ultimate burden of proving that the employer’s proffered reasons were a pretext for the discriminatory action taken by the employer. ”  Allen, 246 N.J. at 291 (quoting Kolb v. Burns, 320 N.J. Super. 467, 478 (App. Div. 1999)).  The employer never has the burden of proving that its proffered reason was the actual reason for its action, “because the burden of proving the actual discrimination lies at all times with the plaintiff. ”  Bray v. Marriott Hotels, 110 F.3d 986, 990 (3d Cir. 1997).  A.  [...] failed to establish a prima facie case of CEPA retaliation.