ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (a)  **N.J.S.A. 14A:14-2(4) - Executing and Filing of Bond**  Pursuant to **N.J.S.A. 14A:14-2(4)**, “every receiver shall, before assuming his duties, execute and file a bond…”  [...] failed to execute and file a bond in the office of the Clerk of the Court at any time.  The Court, which entered the Bank’s proposed Order without modification, did not require or insist upon this at any time. \(^8\)  Rather, the Receiver was simply discharged by the Court and --- \(^8\)  The Statute requires that a party seeking appointment of a receiver do so by “receivership action”, and that the Court proceed in “a summary manner or otherwise” (with “otherwise” apparently or arguably referring to something more versus less rigorous).  **N.J.S.A. 14A:14-2**.
[brief] Moreover, a field inquiry has certain requirements which include asking the individual “if the person is willing to answer some questions. ”  State v. Pineiro, 181 N.J. 13, 20 (2004)  So long as the questioning “is not harassing, overbearing, or accusatory in nature,” State v Nishina, 175 N.J. 502 (2003) and the person is free to refuse to answer and “go on his way,” Florida v. Royer, 460 U.S. 491, 498 (1983).  Being told by the police (who had no WARRANT) to “hand over the car keys” to someone else car, is not considered a question.  Moreover, those words would not allow any reasonable citizen to believe that he was free to leave or free to refuse to answer and go on his way.  Such words are harassing, overbearing and accusatory to an Adult Citizen.  The US Supreme Court has expressed that “Absent special circumstances the person approached [by the police] may not be detained or frisked but may refuse to cooperate and go on his way. ”  Terry v. Ohio, 392 U.S.at 34.  Here, the police would not allow plaintiff to refuse and go on his way.  The police officers “stood him up” and attempted to place him in handcuffs.  (Pa22).  Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions.
[brief] Simply put, (“[A]n award cannot be sustained if the ‘plaintiff did not act in bad faith in asserting’ or pursuing the claim. ”  *Ferolito v. Park Hill Ass'n, Inc.*, 408 N.J. Super. at 408 (quoting *McKeown-Brand*, 132 N.J. at 549)); *United Hearts, L.L.C.*, 407 N.J. Super. 379, 389 (App. Div. 2009) (“Where a party has [a] reasonable and good faith belief in the merit of the cause, attorney's fees will not be awarded. ” (quoting *First Atl. Fed. Credit Union v. Perez*, 391 N.J. Super. 419, 432 (App. Div. 2007))).  “The court must strictly interpret the frivolous litigation statute and Rule 1:4-8 against the applicant seeking attorney's fees and/or sanctions. ”  *Wolosky v. Fredon Twp.*, 31 N.J. Tax 373, 390 (Tax Ct. 2019) (citing *LoBiondo v. Schwartz*, 199 N.J. 62, 99 (2009)).  Courts should exercise restraint in awarding frivolous litigation sanctions.  See *McDaniel v. Man Wai Lee*, 419 N.J. Super. 482, 499 (App. Div. 2011) (“Sanctions are not to be issued lightly. ”).  The goal of the statute is to “deter baseless litigation,” but “without discouraging honest, creative advocacy,” and “keep[ing] in mind our significant policy that litigants should usually bear their own litigation costs. ”  *DeBrango v. Summit Bancorp*, 328 N.J. Super. 219, 226-27 (App. Div. 2000) accord *Iannone v. McHale*, 245 N.J. Super. 17, 26-28 (App. Div. 1990).  A judge should only award sanctions for frivolous litigation in exceptional cases.
[brief] TWC Realty v. Zoning Bd. Of Adj., 315 N.J. Super. 205, 218-219 (Law Div. 1998), aff’d o.b. 321 N.J. Super. 216 (App. Div. 1999); see also N.Y. SMSA P’ship v. Middletown Bd. of Adj., 324 N.J. Super. 166, 173 (App. Div.), certif. den. 162 N.J. 488 (1999).  Also important, it is not the burden of a board to find affirmatively that the plan would be substantially impaired, but rather the burden of the applicant to prove the converse.  *Weiner v. Zoning Bd. of Adj. of Glassboro*, 144 N.J. Super. 509, 516 (App. Div. 1976), certif. Den. 73 N.J. 55 (1977); see also *Morris Cty. F. Housing v. Boonton Tp.*, 230 N.J. Super. 345 (App. Div. 1989) (holding that variance approval is not warranted where it is only needed to advance the purposes of the plaintiffs and there is no support for the proposition that it will benefit the community with improved zoning)
[brief] See *Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, LLP*, 416 N.J. Super. 1 (App. Div. 2010).  “Under the plain language of *N.J.S.A. 2A:53A-27*, the AOM requirement applies only where * * * (3) the alleged act of malpractice or negligence is carried out by a licensed person in the course of practicing the person’s profession.
[brief] Defendant was born in Jamaica and immigrated to the United States in 1973.  6T88-11 to 12.  He obtained his bachelor’s degree in chemistry at [...] in 1977 and received his medical degree from [...] in 1980, having finished an accelerated program that saw him complete in three years what would normally be a four-year program.  6T88-22 to 89-6.  He completed a residency in general surgery at [...] in New York.  6T89-9 to 19.  There he had extensive training in inflammatory bowel disease, including ischemic colitis.  6T89-20 to 90-9.  As of the time he cared for the decedent in June 2016, defendant had been in practice as a general surgeon since 1985, over 30 years.
[brief] [...], [...], [...], [...] (representing presently unknown health care providers or health care providers with regard to which negligence is not presently suspected, including but not limited to, doctors, surgeons, emergency medicine doctors, anesthesiologists, hospitalists, physician assistants, nurses, nurse practitioners, nurse anesthetists, technicians, and others); and [...] (representing presently unknown facilities or entities who rendered care to the plaintiff who have deviated from the standard of care or facilities or entities with regard to which negligence is not presently suspected), Defendants/Appellants.  SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. [...] ON APPEAL FROM THE ORDERS OF THE SUPERIOR COURT OF NEW JERSEY, LAW DIVISION, UNION COUNTY  Sat Below: Honorable [...], J.S.C.  Union County Superior Court  Docket No. [...]  REPLY BRIEF ON BEHALF OF PLAINTIFF/RESPONDENT, [...] TABLE OF AUTHORITIES
[brief] 39, 40, 44 Kirk v. City of Newark, 109 N.J. 173 (1988)  10  Magner v. Beth Israel Hospital, 109 N.J. 173 (1988)  36 Malley v. Briggs, 475 U.S. 335 (1986)  10  Manuel v. City of Joliet, 580 U.S._ (2017)  18, 22 Minnesota v. Dickerson, 508 U.S. 366 (1993)  45  Monell v Dept of Social Services, 436 U.S. 658 (1978)  18, 19 New Jersey v. Smith, 525 U.S. 1033 (1998).  15  Pearson v. Callahan 22 Peper v Princeton, Univ. Bd. Of Trustees, 77 NJ 55 (1978)  31 Pierson v. Ray, 386 U.S. 547 (1967)  27 Prudential Prop & Cas. Ins. Co. V. Boylan, 307 N.J. Super. 162, 167 (App. Div.) certif. denied, 154 N.J. 608 (1998)  38  Ptaszynski v. Uwaneme, 371 N.J. Super 333, (App Div 2004)  21, 27 Ramierz v. United States, 998 F. Supp. 425, 434 9  Rose v. Port of New York Authority, 61 N.J. 129 (1972)  36 Sandy v. Township of Orange, App. Div 2021 27 Schneider v. Simonini, 163 N.J. 336 (2000)  22 State v. Contursi, 44 N.J. 422 (1965)  11 State v. Costa, 327 N.J. Super 22 (1999)  11 State v. Davis, 104 N.J. at 504 State v. Lund, 119 N.J. 35, 47 (1990)  State v. Moore, 181 N.J. 40, 45, (2004)  State v. Nishina, 175 N.J. 502, 510-11 (2003)  State v. Patterson, 270 N. J Super 500, 561 (1993)  State v. Pineiro, 181 N.J. 29-30 (2004)  State v. Pratts, 145 N.J. Super. 79, 93-94 (App. Div. 1975), aff’d o.b. 71 N.J. 399 (1976)  State v. Stoval, 170 N.J. 346, 367 (2002)  State v. Waltz, 61 N.J. 83, 87 (1972)  Szemple v. Correctional Med. Servs, 493 Fed. Appx. 238 (3d Cir. 2012)  Templeton v. Borough of Glen Rock, 11 N.J. Super. 1, 4 (App. Div. 1950)  Terry v. Ohio, 392 U.S. 1, 20, (1968)  Torres v. Kuzniasz, 936 F. Supp. 1201, 1206 (D.N.J. 1996)  Trafton v. City of Woodbury, 799 F.Supp.2d 417,444 (D.N.J. 2011)  United Artists Theatre Circuit. Inc. v. Township of Warrington, PA, 316 F.3d 392, 399-400 (3d Cir. 2003)  United States v. Andrews, 600 F. 2d 563, 566(1979)  Upchurch v City of Orange Township Walmsley v. Philadelphia, 872 F.2d 546 (3d. Cir. 1989)  Warden v. Hayden, 387 U. S. 294, 310 (1967)  Wildoner v. Borough of Ramsey, 162 N.J. 375,386 (2000)  Woodward v. State, 668 S.W.2d 337, 345 (Tex.Cr.App.1982)  NEW JERSEY STATUTES
[brief] Here the language of the assignments was total in that Plaintiff assigned not only the proceeds but the rights, title and interests to this lawsuit.  Here neither [...] nor [...] were before the Court, but yet, they ‘owned’ the proceeds of the lawsuit that was before the Court.  The argument that Plaintiff has an interest because the [...] lawsuit might yield a verdict in excess of what he owes to [...] or [...], does not create standing.  Plaintiff might have a subsequent claim against [...] or [...] for any excess funds, however, given that he has conveyed his entire interests in the lawsuit, his action would be based upon his contractual agreements with [...] and [...], not based upon his claims against [...]; because Plaintiff has assigned those rights pursuant to the agreements at issue in this matter.
[brief] The [...] submit this reply brief in further support of their request that this Court reverse the September 15 and November 27, 2023 Orders of the trial court requiring the transfer of the Property and awarding counsel fees to Plaintiff.  There is no reasonable dispute that the MOU, as enforced by the trial court, has resulted in a great windfall to Plaintiff, which was never contemplated by the parties.  Plaintiff has acquired a commercial property for $1 that it previously was willing to purchase for $45,000,000, yet retained the ability to walk away from the project if it so chooses and owe nothing.  On the other hand, the [...] have lost the Property, stand to be paid nothing more than $1, and, in the case of [...], remain liable under the debt that the Property secures.  This is a manifest injustice.  PROCEDURAL HISTORY
[brief] Due to the condition of the title insurer, it agreed to insure clear title provided there was a $60,000 escrow from the sale proceeds.  (Da 54-56)  Once Appellant learned of the sale & escrow, at the 2022 oral argument, before this Court, a consent order was executed & signed by [...] directing that escrow be deposited with the court pending further court order.  (Da 68-69)  The escrowed funds were shortly thereafter deposited with the Superior Court.  Hence, the trial court obtained jurisdiction to determine distributions from the fund in the court.  As such, counsel fees are payable from the fund in the Superior Court.  The court, in denying fees, relied upon the case cited by Appellant, Porrecca, supra.  This Court held there that entitlement to fees under this rule depends on whether other persons benefited from the litigation.  The court mistakenly held that Appellant was only serving his own interest in litigating where only he benefited.  To the contrary, a good number of others, unrelated to Appellant, benefited from the escrow & court deposit.  The plaintiffs, the buyer, the realtors, the federal & state governments, the municipality, the title insurer, the attorneys etc.  But for the escrow of $60,000 to satisfy Appellant’s judgment there would not have been a closing.  Without the closing, plaintiffs would not have received sales proceeds, the buyer would not have received title, the governments would not have received unpaid taxes, the town would not have received unpaid charges, the title insurer would not have received the premium & the attorneys would not have received their fees.  It was only due to plaintiffs’ unjustified, baseless & vexatious refusal to permit payment of the judgment from the sale proceeds that directly caused the creation of the escrow & subsequent court deposit.  This further directly led to the closing & the payment of all other obligations owed to others.  Consequently, this action, either directly or indirectly benefited others, besides Appellant, sufficient to entitle Appellant to fees from the fund in court.  Appellant recognizes that the limitation of fees payable would be the balance of the fund in court plus accrued interest.  It would still be substantially less than the value of the hours spent on this case, but it would be considerably more than the erroneous result reached below.
[brief] I.  The Parties’ Relationship  The parties were in a long-term marital-type relationship commencing in 1988, when they began to cohabitate.  (A1, 2T 30:4-8, 30:22-31:4)  The parties never married, and no children were born of the relationship.  In 2011, following Defendant’s termination of the relationship, the parties entered into a written Settlement Agreement, which became the subject of the trial below.  (2T 48:1-13)  At the time, the parties lived together in a home in [...], and continued the day-to-day financial arrangement they had throughout the previous twenty-three years.  (2T 43:21-44:3)  II.
[brief] Such limitation is consistent with the purpose for which legal malpractice insurance exists—to provide insurance against claims made by a client.  It is only through the rendering of Legal Services to a client that a potential “Claim” might arise and expose Defendants under the Policies, which is why they defined Disciplinary Proceeding to require the rendering of legal services to a client.  A proceeding initiated by the OAE for alleged ethics violations for recordkeeping or other matters not arising from the rendering of legal services to a client cannot result in a legal malpractice claim and, thus, are not within Defendants’ definition of Disciplinary Proceeding.  Such meaning is amplified by the additional language included by Defendants as part of Question No. 11.  At the end that Question in the 2016 Application appears the following limitation:  All such claims or incidents which may give rise to a claim must be disclosed in response to the Question regardless of whether the attorney or non-attorney staff believes that such a professional liability claim is likely to be made or would have any merit.  Without limiting the rights of the Insurer, any claim arising from a matter disclosed or which should have been disclosed in response to Question 11(d) or Question 11 (e) is excluded from any proposed insurance.  Thus, Defendants reveal their true purpose in this question—to identify potential claims—matters it would have to cover under the Policy.  And, lest there be any remaining doubt of the meaning and intention of Defendants in Question No. 11, we direct the Court to the Policy definition of Claim:
[brief] *In re: Zantac (Ranitidine) Prods. Liab. Litig.*, 644 F. Supp. 3d 1075, 1094, 1285 (S.D. Fla. 2022).  And Plaintiff does not deny (i) the recall document states only that inflammation is a “potential” risk to patients “sensitive” to silicone and (ii) Plaintiff’s decade-long experience with her silicone-coated Retisert® implant conclusively establishes she is not sensitive to silicone.  Plaintiff also does not deny that law and public policy do not support elevating statements in recall documents to evidentiary admissions.  (OB 37-38)  Plaintiff also has no evidence to establish that a 300-micron particulate is capable of causing a tractional retinal detachment.  After all, [...] rejects the notion that “the silicone particulate would be a cause of the detachment,” as it “can occur spontaneously…just with the injection. ”  (Da0047, pp. 58-59)  [...] offers no contrary study, treatise, or authority that a 300-micron particulate can cause a tractional retinal detachment.  [...] thus offers an inadmissible net --- 8  Ironically, Plaintiff faults [...]’s expert for not having literature to show the minimum size a particle needs to be to cause a tractional retinal detachment.  (Opp 40)  This argument forgets that Plaintiff bears burden of proof. opinion, supported by nothing but his say-so.  While Plaintiff tries to give the appearance that [...]’s opinion is reliable by citing his credentials and materials he reviewed, notably absent from that recitation is any explanation of how experience and items reviewed constitute accepted and reliable methodology to support an opinion that a 300-micron particulate is capable of causing a tractional retinal detachment.  These fundamental problems with Plaintiff’s experts’ opinions are not simply matters for cross-examination; they are methodological failures.  *Lanzo v. Cyprus Amax Minerals Co.*, 467 N.J. Super. 476, 504-18 (App. Div. 2021).  The Trial Court abdicated its gatekeeping role in allowing Plaintiff’s experts’ unqualified, unsupported, and unreliable general causation opinions.
[brief] (Pa3).  To be sure, in mitigation, the Board considered [...]’s age, eighty-three, but noted age is not “dispositive of whether [[...]] is suitable for parole. ” (Pa3-Pa4); see Berta v. N.J. State Parole Bd., 473 N.J. Super. 284, 322 (App. Div. 2022) (directing Board to consider “age, along with all relevant mitigating circumstances,” in its analysis).
[brief] vi Statement of Facts ...............................................................................................................  vii  Legal Argument ..................................................................................................................  1 Point I.  SUMMARY  JUDGMENT IS NOT APPROPRIATE, WHEREAS THERE EXISTS  GENUINE ISSUES OF MATERIAL FACT AND DEFENDANTS ARE NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW (Pa. 440-Pa.442)  ..............................................................................................................  1 Point II.  SUMMARY  JUDGMENT SHOULD BE DENIED BECAUSE THE PLAINTIFF CAN PROVE THAT THE DEFENDANTS HAD CONSTRUCTIVE NOTICE OF A DANGEROUS CONDITION AND MET HIS BURDEN UNDERN.J.S.A. 59:4-2(Pa.442-Pa.451)  ....................  5  Point III.  THE PLAINTIFF CAN ESTABLISH THAT THE CONDUCT OF THE DEFENDANTS WERE PALPABLY UNREASONABLE (Pa.709-Pa712)  ........................................................................  17  CONCLUSION .......................................................................................................................
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[brief] [...] indicated to the Board that he went inside and “ask[ed] [at] the police headquarters where the other building was. ” (T11:2-4).  It was also indicted by a Board Member, who advised: ‘if I may, I just walked outside about ten minutes ago.  On those doors outside that [...] was referring to, it directs people to go to [...] for general municipal business” (T19:12-16).  Finally, Plaintiff does not content that any member of the public was not notified of the location of the hearing or that there are any members of the public who were unable to inquire as to the correct physical address.
[brief] The Appellate Division found that [...]’s first PCR counsel failed to make the proper record to support petitioner’s claims on his first PCR.  *Id.*  The proper procedure for [...] to raise ineffective assistance of his first PCR counsel is a second PCR petition.  Second PCR Counsel has hired the assistance of a DNA expert to establish that trial counsel was ineffective in failing to do so and obtained internal affairs documents showing discipline to a police officer involved in the investigation that goes directly to witness credibility that was not advanced at trial due to trial counsel’s ineffectiveness.  More investigations into this case remain incomplete.  These PCR grounds raise questions as to the constitutionality of [...]’s conviction.  Additionally, [...]’s second PCR filing was not egregiously out of time.  In some cases, the Courts have hesitated to relax time bars to accommodate filings that are decades late, but that is not the case here.  See *State v. Afanador*, 151 N.J. 41, 52 (1997); State v. Milne, 178 N.J. 486, 495-96 (2004) (noting that a “stronger” substantive claim would be needed to relax a procedural bar concerning a sixteen-year old conviction.)
[directive] 13.4  Vehicular pursuit training shall consist of knowledge of applicable statutes, familiarization with statewide police pursuit policy and departmental procedures, decision making skills, and the use of an authorized tire deflation device if employed by the agency.  14  Individual Agency Policies  14.1  Nothing in this policy prohibits state, county and municipal law enforcement agencies from adopting policies that impose additional restrictions on vehicular pursuits or that impose more extensive training or reporting requirements.