ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ”  *State v. Broom-Smith*, 406 N.J. Super. 228, 238-39 (App. Div. 2009), aff’d, 201 N.J. 229 (2010); see also *Hamlett*, 449 N.J. Super. at 178.  “In other words, so long as the objectives underlying the warrant requirement remain intact, slight departures from strict compliance with the rules will not invalidate a search. ”  *Hamlett*, 449 N.J. Super. at 176.  The exclusionary rule requires suppression of any evidence recovered during an unreasonable search.
[brief] Lastly, in *L.  Pucillo & Sons, Inc. v. Township of Belleville*, 249 N.J. Super. 536 (App. Div. 1991) the contractor submitted three alternate bids, one for a one-year contract, another for a three-year contract, and a third for a five-year contract.  However, they submitted a single certificate of surety, and it was for an amount that would cover only the one-year contract bid.  The contractor was awarded the five-year contract and produced a performance bond that was nearly $3 million less than the contract value.  *Id.*  The certificate of surety properly was deemed deficient because it was not issued for an amount equaling the contract value.  This is not an issue in this case.  [...]’s Consent of Surety obligated it and guaranteed without qualifications that it would provide Contract Bonds for the full value of the contract.  This Court’s ruling in *Blue Diamond Disposal, Inc. v. City of Vineland*, 2010 WL 3419192 (App. Div. 2010) is more probative.
[brief] Twenty-three years later, the other Plaintiffs/joint purchasers filed a quiet title action, as they claimed to not have discovered that the property was not titled in the joint enterprise’s name until one year before the complaint was filed.  The court remanded the case for a hearing to determine the discovery date (a “*Lopez*” hearing).  On remand, the *[...]* court noted the *Lopez* factors, which the court is to consider as to whether or not to apply the discovery rule: “the nature of the alleged injury, the availability of witnesses and written evidence, the length of time that has elapsed since the alleged wrongdoing, whether the delay has been to any extent deliberate or intentional, whether the delay may be said to have peculiarly or unusually prejudiced the defendant. ”  *[...] v. Tri-State Petro*, 2022 N.J. Super. Unpub. LEXIS 1437, *6, 2022 WL 3363909.  In [...], when weighing those factors, the court noted that a “reasonable, prudent” investor would have learned that the property was not titled in the name of the joint venture.  “In order to justify the tolling of a statute of limitations, plaintiffs must explain why they reasonably could not have discovered their cause of action in time to comply with the limitation period."  *Id.* (quoting *Phillips v. Gelpke*, 190 N.J. 580, 595, 921 A.2d 1067 (2007).  The [...] court ultimately declined to toll the statute of limitations because the Plaintiffs should have known about the title issue had they acted in a reasonably prudent manner.
[brief] At trial, [...]’s map of various sectors upon which [...]’ cell phone allegedly traveled through was admitted into evidence.  Cross-examination of [...] generally followed the pattern established at the 104 hearing during which [...]’s disclaimers regarding PCMD were largely explored.  Specific data which [...] placed on his maps were questioned.  He acknowledged that with respect to the map marked 27E that it contained an “outlier” which the “program got wrong”.  T7, 70:7-21.  Certain maps contained the same times in different sectors.  T7, 13:3-10; T7, 7-19.  The other probative evidence upon which the State relied included the testimony of [...], who found a .40 caliber weapon at Seabreeze Beach, the direction in which the State claimed [...] was traveling in the Yellin vehicle after the shooting of [...].
[brief] The [...]’s HAD is premised on the erroneous determination that “the proposed Project is ‘Consistent’ with the WQMP and is in accordance with the WQMP rules. ”  Aa0002.  But the [...] utterly failed to account for the totality of the proposed project, including all the impacts from the construction and use of the new compressor station, office building, and appurtenances.  The only factor [...] weighed in making this fundamental consistency determination was the anticipated gallons of water used and effluent that it anticipated would enter the septic system on a daily basis.  Ibid.  The [...]’s consistency determination myopically ignored the totality of the circumstances and impacts that must be anticipated from the proposed project.  It is beyond dispute that the project resulted in the addition of significant impervious surfaces on the site, as well as being the proximate cause of increased stormwater runoff from its ongoing contribution to air pollution (GHG emissions) and exacerbation of the global climate crisis.  See Massachusetts v. EPA, 549 U.S. 497, 522 (2007) (where it was held, “That these climate-change risks are ‘widely shared’ does not minimize Massachusetts' [and New Jersey’s] interest in the outcome of this litigation.)  Just because the project will be the proximate cause of harm on a global scale does not minimize the fact that it will also be the proximate cause of dramatic changes in precipitation and stormwater runoff in the Highlands Preservation areas, in contravention to the goals and policies of the Highlands Act and the Water Quality Planning Act.  Ibid.  These impacts to water resources cannot legitimately go unaccounted for in the [...]’s instant consistency determinations, under both the Highlands Act and the Water Quality Planning Act.
[brief] For example, at Pa67, the court cites (c)(2), (d)(5) and (d)(6) and announces: "the design would advance the goals of the MLUL by providing for light, air and open space as well as provide for a desirable visual environment through good civic design."  For a (c)(2), it is the variance -- not "the design" -- which must advance N.J.S.A. 40:55D-2 goals in order to pass muster under the MLUL.  The undersigned will attempt to the discussion of each variance separately in Subpoints A, B and C.
[brief] On or about December 12, 2022, defendant submitted a motion with the Ship Bottom Municipal Court seeking two forms of relief, 1) correction of sentence by [...] which should have run concurrently, not consecutively,\(^6\) and in the alternative, 2) defendant should be permitted to have his plea back.  Defense counsel further stated in his original certification in support of that original motion that, “In the event the Court is not inclined to correct the sentence in accordance with the terms of the original plea agreement and sentence, then defendant should be permitted to have his plea back. ”  9a; 13a,\(\|\)24.  **e. [...], JMC, Of The Ship Bottom Municipal Court, Denied [...]’s Motion Seeking To Correct His Sentence To Run Concurrently, And Refused To Render A Decision On Whether [...] Should Be Permitted To Have His Plea Back.
[brief] The Second Amended Complaint was also subject to dismissal pursuant to R. 4:6-2(f) based on Plaintiff’s failure to join indispensable parties.  Plaintiff demanded that unidentified alleged “affected Union members” be promoted retroactively to an unidentified higher position/rank and with “full seniority benefits and other emoluments of the position. ”  The relief sought rendered other fire fighters who were promoted and received seniority and other benefits obvious interested parties.  Such other firefighters were indispensable parties, since Plaintiff sought, directly or indirectly, to affect such other person’s promotions and/or standing/place with respect to seniority/benefits.  The City also raised that Plaintiff sought equitable and compensatory damages for unnamed individuals who were not joined and questioned to whom would or could such relief be awarded to?
[brief] The Trial Court offered this explanation of this video with audio at the time of the motion hearing:  I watched it the first time without the audio, then I watched it a second time with the audio, and I thought it was going to be this constant stream of screaming and chaos and yelling, and it was none of that.  It is, in my mind, a little bit more controlled than I would have expected for that type of injury and that type of accident.  It was -- it was not shocking in my mind at all, and it was pretty controlled.
[brief] As discussed further below, his arguments, however, are either incorrect as a matter of law or factually unsupported.  If his defenses were more than red herrings, Defendant had full opportunity to advise Plaintiff of these claims in his pleadings and pursue discovery of such facts as required to determine if such claims truly exist.  He did neither.  As such, [...] properly resolved this litigation by way of Plaintiff’s Motion.  See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 537 (1995) (noting that trials exist to resolve factual, not legal, disputes and a trial court submits is necessarily encapsulated by [...].
[brief] The Doctrine of Mootness Applied Here.  The trial court failed to exercise its inherent equitable powers.  The trial court controlled its own docket.  At the second March 2023 motion to dismiss hearing, defendants argued (on shortened and limited notice) that the trial court should dismiss Count One on the grounds of mootness.  At that time, plaintiff asserted that a resolution could not repeal an ordinance and that Count One would become moot once the contested bond ordinance was repealed.  On September 22, 2023, the trial court inquired whether it still had jurisdiction to grant Count Two to Five Relief after defendants took post-commencement remediation action and restored plaintiff’s right to be heard prior to consideration and official action on all posted agenda action items.  On September 22, 2023, plaintiff did not fully appreciate the procedural and jurisdictional mootness nuances of the trial court’s questioning—a line of argument not fully briefed by the parties prior to the September 22, 2023 virtual hearing.  Mootness is a threshold justiciability determination rooted in the notion that judicial power is to be exercised only when a party is immediately threatened with harm.  Jackson v. Dep’t of Corr., 335 N.J. Super. 227, 231 (App. Div. 2000).  “A case is technically moot when the original issue presented has been resolved at least concerning the parties who initiated the litigation. ”  DeVesa v. Dorsey, 134 N.J. 420, 428 (1993).  Courts normally will not decide issues when a controversy no longer exists, and the disputed issue has become moot.  Id.  An action is moot when it no longer presents a justiciable controversy because the issues raised have become academic.  For reasons of judicial economy and restraint it is appropriate to refrain from decision-making when an issue presented is hypothetical, judgment cannot grant effective relief, or the parties do not have a concrete adversity of interest.
[brief] **D.  Plaintiff’s motion for summary judgment is not “sufficiently supported”**.  Plaintiff claims that because Defendant did not file a timely opposing statement disputing Plaintiff’s factual assertions, those assertions must be “deemed admitted. ”  However, the only factual assertions in a statement of material facts that are deemed admitted are those which are “sufficiently supported. ”  R. 4:46-2(b).  Plaintiff relies on a certification and not an affidavit to establish facts (Exhibit FF) (Da115).  The statement must be “made on personal knowledge, setting forth facts which are admissible in evidence to which the affiant is competent to testify. ”  R. 1:6-6.  See Jeter v. Stevenson, 284 N.J. Super. 229, 233 (App. Div. 1995).  Declarant did not state personal or actual knowledge of any facts (Exhibit FF) (Da115).  Therefore, because Declarant’s certification, which supports a factual assertion in the statement of material facts, does not comply with R. 1:6-6, the motion for summary judgment is not “sufficiently supported. ”  Thus, the lower Court mistakenly admitted Plaintiff’s books and records into evidence.  E.
[brief] Case law is settled that, to those patients who entrust themselves to their care, medical professionals hold themselves out as possessing requisite experience and resources necessary for the patient’s care.  *See, e.g., Carbone v. Warburton*, 22 N.J.Super. 5, 9 (App.Div.1952) (*quoted in Carbone v. Warburton*, 11 N.J. 418, 426 (1953)).  This New Motion Judge’sss holding that a medical malpractice plaintiff, in addition to demonstrating the breach of a defined standard of care, must also provide expert opinion that the medical professional should have been staffed to meet the standard of care, finds no precedential support in New Jersey.  It turns every medical malpractice case into a staffing case.  In fact, placing the words “negligent staffing” into a current Westlaw search returns but a single return, an unreported Appellate Division decision, *Rabinowitz v. Reyman*, 2010 WL 2867909 (N.J.App.Div. July 23, 2010).  Yet that case, albeit not precedential, actually distinguishes a traditional medical malpractice claim, in which the expert opines to the standard of care and breach of that standard; from a case sounding in “negligent staffing. ”  “Negligent staffing,” to the extent even recognized by the appellate panel in that case, concerned something other than expert opinion as to the breach of a standard of care sufficient for a medical malpractice claim.  Rather, “negligent staffing,” to the extent that the claim even exists under New Jersey law\(^8\), pertains to allegations that the medical center’s staff do not meet the licensing requirements of the State of New Jersey.  *See Rabinowitz v. Reyman*, 2010 WL 2867909 *8-10.  --- \(^8\)  Medical centers and associations in the state of New Jersey have argued that “negligent staffing” claims are preempted under state law due to SS ED Regulations pursuant to the Supreme Court's decision in *Lemelledo v. Beneficial Management Corp.*, 150 N.J. 255 (1997)  In *Rabinowitz v. Reyman*, the plaintiff’s medical malpractice claim was distinguished from the plaintiff’s negligent staffing claim, and defendants did not even move for summary judgment on the medical malpractice.  The claim for medical malpractice continued, based on the expert opinion that a standard of care was breached.  *Rabinowitz v. Reyman*, 2010 WL 2867909 *1; see also* discussion at *9.  Not only is there no precedent supporting this holding as to a medical malpractice claim, to the extent that defendants assert staffing was so stretched that it could not meet the appropriate standard of care, the burden falls on the defense to establish that as an affirmative defense.  To excuse their failure to meet the standard of care, defendants must show unforeseeable emergent events that taxed their existing staff at that moment; and an expert opinion proffered by defendants that they were adequately staffed, but for unforeseeable emergencies that precluded the defendants’ ability to meet the applicable standard of care.  Of course, such a proffer is not possible in this case, because [...] testified that the other patient was “fine” and “uneventful. ”  POINT II
[brief] Defendant’s repeated emphasis on the *Kelly* quote in which one is not required to use detached contemplation in the face of an uplifted knife, *Id.* at 198, is not availing.  As *Kelly* noted, this maxim does not gut the Legislature’s intent, but serves a different purpose: “the law accordingly requires only a reasonable, not necessarily a correct, judgment. ”  *Ibid.* (citing *State v. Hipplewith*, 33 N.J. 300, 316-17 (1960); *State v. Mount*, 73 N.J.L. 582, 583 (E. & A. 1905); *State v. Lionetti*, 93 N.J.L. 24 (Sup. Ct. 1919)); see also *Bryant*, 288 N.J. Super. at 34 (finding quote from *Brown v. United States* means that “the law thus recognizes the frailties of human perception, requiring only a reasonable, and not necessarily correct, judgment. ”).  Thus, a reasonable belief need not be a thoughtfully assessed, accurate belief in the heat of a heightened situation, but it must still be objectively understandable by a reasonable person.  Defendant is not incorrect to say that the defense against intruders statute is a lower standard to meet than that of general self-defense; but, that applies to a separate part of the statute, in that general self-defense applies only when a defendant reasonably believes force is necessary to protect himself from “death or serious bodily harm.
[brief] (Pb15-Pb16).  This confusion undermines their argument for several reasons—the most obvious being that this action arises from land use legislation, not a blight designation or a land use board decision.  Plaintiffs write on pages 15 and 16:  “A municipal board’s decision ‘enjoy[s] a presumption of validity, and a court may not substitute its judgment for that of the board unless there has been a clear abuse of discretion. ’  Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (citing Cell S. of N.J., Inc. v. Zoning Bd. Of Adjustment, 172 N.J. 75, 81 (2002)); see also Grabowsky v. Twp. Of Montclair, 221 N.J. 536, 551 (2015) (noting a municipal ordinance will not be overturned unless the decision is “arbitrary, capricious or unreasonable”).
[brief] [...] has established a policy in which it denies promotion to those firefighters who request and receive a temporary medical leave of absence.  Such activity is protected activity under the New Jersey Law Against Discrimination.  [W]hen a disabled employee requests and then takes a temporary medical leave of absence, said employee avails himself of a right that is "granted or protected by [the NJLAD]," and thus engages in protected conduct.  See N.J.S.A. 10:5-12(d) Boles v. Wal-Mart Stores, Inc., Civil Action No. 12-1762 (JLL), 2014 U.S. Dist. LEXIS 41926, at *23 (D.N.J. Mar. 26, 2014)  In this case medically disabled Firefighters, who request and are granted statutory sick leave due to disability or illness, are rendered ineligible for promotion.  Indeed, once they miss their “promotional window” it is possible that they may never be promoted.  Plaintiff has challenged this policy as facially discriminatory or directly discriminatory.  (i.e.: the policies are void where they exhibit a facial violation of the provisions of the NJLAD.)  The actions of the employer may also be considered retaliatory.  If an employer interferes with "any person in the exercise or enjoyment of a protected right" then N.J.S.A. 10:5-12(d) renders such conduct an illegal retaliatory act.  Instead of construing plaintiff complaint in its totality the trial court relied upon a sole paragraph in Plaintiff complaint at ¶ 19 (pa13) which concerned an assertion that the City failed to accommodate.  See trial court decision at (Pa5) ¶ 19 within plaintiff’s complaint was a very minor aspect of Plaintiff's claims.  Plaintiff claimed that the promotional policy was discriminatory on its face and that the rejection of promotional eligibility was direct discrimination and ipso facto a failure to accommodate.  In other words the facial discriminatory ineligibility foreclosed the obligation to accommodate altogether.  The Trial Court relied upon a McDonnell-Douglas burden shifting analysis which is not applicable to the Association’s primary claim of direct discrimination.  The Trial Court further failed to recognize, let alone assess, the factual claims made within Plaintiff's complaint.  The Trial Court was obligated to accept Plaintiffs allegations as true and its failure to do so was error.
[brief] The underwriting guidelines, which contradict the Application, did not inform [...] that the vans were excluded.  [...] also argues in support of recission that its Underwriting Guidelines (the Guidelines”) advised that “12-15 plus passenger vans are ineligible” for coverage (Rb2-3; 9-10; 25).  The Guidelines, however, are for the underwriters’ use (Ia481;486-87; 490) and, thus, would never have been provided to [...].
[directive] Reassessment for ongoing provision of critical care  The purpose of this section is to describe the process the triage team should use to conduct reassessments on patients who are receiving critical care services, in order to determine whether s/he continues with the treatment.  The Ethical goal of reassessments of patients who are receiving critical care services.  ethical justification for such reassessment is that, in a public health emergency when there are not enough critical care resources for all, the goal of maximizing population outcomes would be jeopardized if patients who were determined to be unlikely to survive were allowed indefinite use of scarce critical care services.  In addition, periodic reassessments lessen the chance that arbitrary considerations, such as when an individual develops critical illness, unduly affect patients’ access to treatment.  Approach to reassessment  All patients who are allocated critical care services will be allowed a therapeutic trial of a duration to be determined by the clinical characteristics of the disease.  The decision about trial duration will ideally be made as early in the public health emergency as possible, when data becomes available about the natural history of the disease.  Trial duration will also need to be tailored for other non-pandemic diseases and patient contexts, given the concern that patients with certain disabilities may need longer trials to determine benefit.  The trial duration should be modified as appropriate if subsequent data emerge about the clinical course of the pandemic illness.  The triage team will conduct periodic reassessments of patients receiving critical care/ventilation.  A multidimensional assessment should be used to quantify changes in patients’ conditions, such as recalculation of severity of illness scores, appraisal of new complications,  Patients showing improvement will continue with critical and treating clinicians’ input. care/ventilation until the next assessment.  If there are patients in the queue for critical care services, then patients who upon reassessment show substantial clinical deterioration as evidenced by worsening SOFA scores or overall clinical judgment should have critical care withdrawn, including discontinuation of mechanical ventilation, after this decision is disclosed the patient and/or family.  Although patients should generally be given the full duration of a trial, if patients experience a precipitous decline (e.g., refractory shock and DIC) or a highly morbid complication (e.g., massive stroke) which portends a very poor prognosis, the triage team may make a decision before the completion of the specified trial length that the patient is no longer eligible for critical care treatment  Appropriate clinical care of patients who cannot receive critical care.
[brief] However, despite knowing they were breaching the contract and unable to resolve the issue, it does not make sense why defendant [...] did not inform defendant [...] of the emergency, allowing for a reassessment of the service or suspension to absolve defendant [...] from liabilities as the service provider under the active contract.  In turn, defendant [...] failed in its duty to oversee the service (Pa97).  Neither defendant was aware of [...]'s passing until informed by the plaintiff.  Defendant [...]'s claim contradicts typical procedures for providing home care services and common sense.  The documentation notably omitted crucial details and seemed to attribute their breach of contract to being "denied entry" by the service beneficiary, who had passed away.  Reconstructing the events is challenging since only defendant [...]'s aide witnessed them.  C.
[brief] It is important to note that this was a classic “he said, she said” case. \(^7\)  The evidence in this matter did not support either account to the exclusion of the other.  [...] did not dispute that he was involved in an altercation with [...] on the evening in question, or that he grabbed his imitation firearm in the course of the argument.  The only real dispute is whether [...], who was undisputedly several feet from [...] and wearing a Covid-19 mask, told [...] to get away from his vehicle, or to get into his vehicle.