ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] II.  The Appropriate End Date of the Allocation Period Is No Later Than September 8, 1986, When The CVOC Damage To Groundwater At The Site Plateaued And Was Discovered By [...].  Although the *Boston Gas* Court adopted a time-on-the-risk allocation as a “fallback” to the fact-based allocation, it did not specifically address how the end date of a time-on-the-risk allocation period should be determined.  *Bos. Gas*, 910 N.E.2d at 312-316.  However, the Court did provide some guidance, stating that when the time-on-the-risk method is applied, damages are allocated in proportion to an insurance company’s number of years on the risk divided by “the total number of years of triggered coverage. ”  *Id.* at 313 (emphasis added).  See also *Maestranzi Bros., Inc. v. Am. Employers' Ins. Co.*, No. 2005-1856 B, 2010 Mass. Super LEXIS 65, at *2 (Mass. Super. Apr. 9, 2010) (explaining that Boston Gas requires the time-on-the-risk allocation to be calculated by dividing the “time on the risk” by the number of years in the “triggered period”).  “Trigger of coverage” is a term of art that describes what must happen during the policy period for coverage to apply under a particular policy.  Bos. Gas, 910 N.E.2d at 300.  Courts have adopted four approaches to the trigger of coverage question: “(1) manifestation; (2) injury-in-fact or actual damage; (3) exposure; and (4) continuous. ”  Id.  Under the manifestation trigger, the policies triggered are those in effect “when property damage or actual damage is discovered, becomes known to the insured or a third party, or should have reasonably been discovered”  Bos. Gas, 910 N.E.2d at 300 n.21.  The injury-in-fact trigger “implicates all of the policy periods during which the insured proves some injury or damage. ”  Id.  The exposure trigger results in “all insurance contracts in effect when property was exposed to hazardous waste” being triggered.  Id.  Finally, the continuous trigger posits that “any policy on the risk at any time during the continuing loss is triggered . . . from the date of initial exposure through manifestation. ”  Id  Massachusetts has rejected the manifestation trigger in the context of environmental property damage, Trustees of Tufts Univ. v. Commercial Union Ins. Co., 616 N.E.2d 68 (Mass. 1993), but has not yet adopted one of the other trigger theories.  Bos. Gas, 910 N.E.2d at 301.  Because there is no conflict between Massachusetts law and well-settled New Jersey law on this issue, New Jersey law should apply.  *See Rowe v. Hoffman-La Roche, Inc.*, 189 N.J. 615, 621 (2007) (“If there is no actual conflict, then the choice-of-law question is inconsequential, and the forum state applies its own law to resolve the disputed issue”).
[brief] (“Rule 1:10-3 allows a court to enter an order to enforce litigant’s rights commanding a disobedient party to comply with a prior order or face incarceration. ”) (citing Saltzman v. Saltzman, 290 N.J. Super. 117, 125 (App. Div. 1996)); [...], 352 N.J. Super. at 509 (incarceration available if less coercive measures would fail to prevent the irreparable injury being caused by the disobedient party).
[brief] In the first paragraph of this Agreement which sets forth [...]'s sole obligation under the Agreement she lies.  Plaintiff, in her brief points out that the Agreement makes clear that "each (party) has made a full disclosure of all relevant financial information to the other of his or her financial worth and income" (citing A2).  This is an obvious misstatement/lie.  Plaintiff makes an agreement, but with the intent to deceive and cheat from the outset.  She obviously had no intention of paying [...] the $70,000.00 which she promised and had access to.  And at no time did Plaintiff make any effort to pay [...] (This Agreement is now 13 years old).
[directive] Therefore, whenever in the opinion of the Attorney General the determines that it would be appropriate to do so, interests of the State will be the Attorney General, or his or her designee, may: (a) supersede a county prosecutor or other law enforcement agency in any investigation, criminal action or proceeding; (b) participate in any investigation, criminal action or proceeding; or (c) initiate any investigation, criminal action or proceeding.  This statutory authority applies fully to any and all aspects of the internal N.J.S.A. 43:1-3 (“honorable service” and the evaluation by the relevant board for same); 43:1-4 5 See (notification to Divisions of Criminal Justice, and Pensions and Benefits, about prosecutions or convictions of members); 43:1-5 (employer must notify the board of disciplinary action taken against a member).
[brief] (Db 6-13)  The trial court committed structural error by dismissing outright, without any substantive consideration, [...]’s request to fire his attorney and exercise his Sixth Amendment right to represent himself.  (Db 6-13)  The State’s arguments to the contrary are meritless.  First, the State asserts in its responsive brief that because [...]’s request was made after trial had commenced, the trial court had no obligation to even consider it.  (Sb 15-16)  In so doing, the State ignores federal precedent indicating that a judge considering a mid-trial request to proceed pro se must engage in a specified analysis; it must “weigh the prejudice to the legitimate ¹
[brief] [O]ne "reasonable" approach for sentencing judges is to use "the middle of the sentencing range as a logical starting point for the balancing process."  [*State v. Natale*, 184 N.J. 458,488 (2005)].  So, for example, "if the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence."  *Ibid.*  Moreover, "reason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range."  *Ibid.*  [Id. at 73.
[brief] (Da127-31).  On June 13, 2024, an indictment was issued against six defendants, including [...], Esq. in his personal capacity.  (Pa9-119).  [...] is not indicted.  Ibid.  On June 20, 2024, [...] withdrew his appearance on behalf of all Defendants-Respondents in this consolidated matter.  (Pa121-22).  Prior to his withdrawal, [...]’s involvement in this matter was limited strictly to the ______________________ the Defendants-Respondents.
[brief] At best, Burnett reiterates that under OPRA law a government entity is deemed to be in possession of a document that a third-party vendor with which it contracts maintains on behalf of the government entity.  The Appellate Division’s decision in Burnett does not discuss the applicability of OPRA to alleged government records that are maintained by private companies which provide proprietary services used by members of the public that just so happen to be used by elected officials or government employees, such as Gmail, Yahoo, AOL, Proton Mail and the like.  In Burnett, the Appellate Division considered whether a county government was compelled to obtain from its insurance company settlement documents which resulted in payment of public funds to a claimant.  The panel concluded in that case that “the settlement agreements at issue [] were ‘made’ by or on behalf of the Board in the course of its official business. ”  Id. at 517.  In this case, Plaintiff does not contend that Gmail or Yahoo or AOL were doing the bidding of Defendants when one or more Board member may have purposely or mistakenly sent, forwarded or received an email on a personal account that may have implicated a matter concerning District business.  Although an insurance company hired by a municipality clearly falls within the ambit as an agent of the government entity, a cloud-based email service that has no relationship with the government entity does not.  Plaintiff’s reliance on Burnett is thus misplaced and does not provide a basis for this Court to reach the unprecedented conclusion\(^4\) that the Board must subpoena email logs or file suit against private technology corporations to obtain documents that simply do not exist and are not available to the government agency.  The trial court therefore correctly relied on this Court’s finding in Bent v. Township of Stafford Police Dept., 381 N.J. Super. 30, 38-39 (App. Div. 2005), for the proposition that a records “custodian was under no obligation to search for [government records] beyond the township’s files.
[brief] As to the second step, futility of the amendment, leave to amend should be denied when it would lead to an immediate and successful motion to dismiss.  Interchange State Bank, supra, 303 N.J. Super. at 256-57; Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (1995).  In other words, courts are free to refuse leave to amend where the claims sought to be added are not sustainable as a matter of law.  *Interchange State Bank*, supra, 303 N.J. Super. at 257; *Malone v. Aramark Services, Inc.*, 334 N.J. Super. 669 (Law Div. 2000).  The determination is made by the same criteria as a motion to dismiss pursuant to Rule 4:6-2(e).  *Interchange State Bank*, supra, 303 N.J. Super. at 257.  Likewise, where a proposed claim is “marginal at best,” the Court’s discretion is not abused in the denial of a motion to amend.  *Fox*, supra, 281 N.J. Super. at 483.  **B.
[brief] See Mogull v. C.B. Comm. Real Estate Group, Inc., 162 N.J. 449, 466 (2000) (noting “it is difficult to find that a charge that follows the Model Charge so closely constitutes plain error”).  At the outset, it should be noted that the portion of the Model Charge that deals with a “detached viewpoint” specifically cites to N.J.S.A. 2C:3-4(c)(3), regarding intruder self-defense.  (Da25 n. 12).  It also cites to State v. Bass, 224 N.J. 285, 321 (2016). 7  Ibid.  This exemplifies the fact that the Model Charge was created with both the statute and governing law in mind.
[brief] Critically, because this matter concerns [...]’s managerial prerogative to set the standards of performance and qualifications of its employees, it is distinguishable from cases of employee misconduct in which an arbitrator is called upon properly to determine whether there is “just cause” to warrant the employee’s discharge for the conduct in question.  In *Linden Board of Education*, supra, for example, the Supreme Court explained that parties to a collective bargaining agreement may call upon an arbitrator’s expertise to determine whether the “misconduct” in question “rise[s] to a level . . . that constitutes just cause for discharge,” particularly where the term “just cause” remains undefined.  202 N.J. at 279.  The Court further clarified that an arbitrator’s duty to define “just cause” is particularly appropriate in “disciplinary matters” regarding employee misconduct.  *Id.* at 277.  Nonetheless, the Court was sure to state that in no instance may the arbitrator “contradict the express language of the contract. ”  *Id.* at 276.  Importantly, this matter does not concern an arbitrator’s attempts to define an ambiguous just cause standard as applied to an employee who has been disciplined for repeated misconduct.
[brief] Page March 23, 2023  Order Denying Motion to Reinstate and Dismissing Plaintiff’s Complaint With Prejudice .................................................. Pa1 July 8, 2022  Order Dismissing Complaint as to Defendants Without Prejudice .................................................................................  Pa3 # TABLE OF AUTHORITIES | Cases | Page(s) | |----------------------------------------------------------------------|---------| | **Cafferata v. Peyser,** | 25, 26 | | 251 N.J. Super. 256 (App. Div. 1991) | | | **Cesare v. Cesare,** | 24 | | 154 N.J. 394 (1998) | | | **Gannon v. Am. Home Prod., Inc.,** | 36 | | 414 N.J. Super. 507 (App. Div. 2010), rev'd, 211 N.J. 454 (2012) | | | **Hernandez v. Region Nine Hous. Corp.,** | 32 | | 146 N.J. 645 (1996) | | | **Lanziano v. Cocoziello,** | 26, 28 | | 304 N.J. Super. 616 (App. Div. 1997) | | | **Olivieri v. Y.M.F. Carpet, Inc.,** | 31, 32, 36 | | 186 N.J. 511 (2006) | | | **Pivnick v. Beck,** | 31 | | 326 N.J. Super. 474 (App. Div. 1999), aff'd, 165 N.J. 670 (2000) | | | **Salch v. Salch,** | 30 | | 240 N.J. Super. 441 (App. Div. 1990) | | | **Selective Ins. Co. v. McAllister,** | 24, 31 | | 327 N.J. Super. 168 (App. Div.), certif. denied, 164 N.J. 188 (2000)  | | | **Sweeney v. Sweeney,** | 37 | | 405 N.J. Super. 586 (App. Div.), certif. denied, 199 N.J. 518 (2009)  | | | **Velasquez v. Franz,** | 32 | | 123 N.J. 498 (1991)  | | INTRODUCTION
[brief] THE JURY INSTRUCTIONS  EMPHASIZING DEFENDANT’S RIGHT TO PROVIDE AN EXONERATORY EXPLANATION FOR HIS TATTOOS VIOLATED DUE PROCESS AND HIS RIGHT TO REMAIN SILENT, AND THE DETECTIVE’S IDENTIFICATION OF THE PERSON WITH NO FACIAL TATTOO IN THE MARCH 5 PHOTOGRAPH AS DEFENDANT WAS INADMISSIBLE LAY OPINION  TESTIMONY.  (Not Raised Below)  ..................................................................................................................50
[brief] **DEP Failed to Support Its Finding that Riparian Zone Impacts Have Been Minimized** (Aa001)  The DEP’s failure to hold the applicant to the regulations regarding in-channel work, bridges, and culverts also means that DEP’s finding that riparian zone impacts have been minimized is unsupported.  There are 9,091 square feet of riparian zone impacts for the access road to Route 1, well over the 4,000 allowable for a road crossing a waterway, and all are associated with the stream crossing, including installation of the pipe culvert and rip rap necessary to stabilize the pipe culvert.  Aa033-034.  The DEP states in its environmental report that the applicant has “demonstrated that all riparian zone impacts have been eliminated and minimized to the greatest extent practicable” including by “redesigning the alignment of the proposed Route 1 access road to cross a narrower section of a stream. ”  Aa031.  But inexplicably, no effort was made to reduce the riparian zone impacts by holding the applicant to the requirements for bridges and culverts.  The FHACA rules require that impacts to the riparian zone must be minimized to only the disturbances that are necessary to accomplish the basic purpose of the development.  N.J.A.C. 7:13-11. 1.  Part of the reason that a bridge spanning a water is preferred to a culvert is that it minimizes impacts to the channel and riparian zone while still facilitating a road crossing, while a circular culvert requires building directly in these regulated areas.  It is uncertain to what degree these impacts would be reduced with proper application of the regulations, but that is precisely the point.  DEP’s failure to apply the regulations intended to mitigate the environmental harm of a stream crossing means that its finding that riparian zone impacts have been minimized is flawed and unsupported.
[brief] However, there is no per se rule that only cases involving the alternation or removal of a condition or safety device can create a substantial certainty of injury.  See Laidlow, 170 N.J. at 622-623.  Here, it is undisputed that there were pedestrian safeguards installed in the area of the lot where hospital administrators and physicians parked.  A jury could find that [...] knew of the necessity of these safeguards, yet intentionally required [...] and other non-management employees to park in a distant area of the lot without such safeguards in place.  A jury could find that [...]’s acts created a substantial certainty that an employee would be injured in this unprotected area of the busy parking lot.
[brief] Id. at 160 N.J. at 403.  Plaintiffs also misstate that Sipko v. Rogers, 251 N.J. 162 (2022) held that discounts should be used as a “default” starting point and that a lack of discounts should be the unusual case.  (See, Pb39, citing Sipko, supra at 182-183).  Sipko stated instead that, “[d]epending on the facts, we have held that fairness and equity can compel the decision to apply such a discount, or not.  Stated differently, "[a]pplication of the equities . . . [can] dictate[ ] opposite results."  Balsamides, 160 N.J. at 382, 734 A.2d 721. ”  Sipko v. Koger, Inc., 251 N.J. 162, 183 (2022).  Far from Plaintiffs’ contentions here, after reviewing Balsamides and Lawson, Sipko said those two cases, “underscore the importance of determining the "fair value" of a corporation on a case-by-case basis."
[brief] See id. at 62-63.  Once again, each Board member explained the rationale for their decision.  See id. at 67-69.  Every member of the Board agreed that inadequate services should not be ascribed a high management fee, and the $100 figure falls within the range the court established as a reasonable amount given comparable rates of other management companies in Hoboken.  See id. at 69.  Lastly, the Board turned to the issue of [...]’s equity in [...]’s unit.
[brief] Konitch v. Hartung, 81 N.J. Super. 376 (App. Div. 1963), certif. denied, 41 N.J. 389 (1964) is a reported Appellate Division case directly on point factually and legally with the matter here.  In Konitch, plaintiff had parked her vehicle in her employer’s parking lot and was walking through the parking lot when she was struck by a vehicle operated by a co-employee, who was driving to work and was about to park his vehicle.
[brief] [...] never called Borough officials to testify to these hearsay statements.  [...] testified that he was given the 1984 Resolution before he bought the property in 2015.  (Pa 60-61).  This testimony is incredible because his lawyer’s letter (Pa 163) never mentions it nor provides a copy.  The trial court would not let Plaintiffs’ counsel pursue that credibility issue on cross-examination (T2 at 72:1-81:8).  In fact, the court questioned whether that testimony “mattered. ”  After that comment, Plaintiffs’ counsel moved on.  The court clearly signaled that it did not matter if [...] was given a copy of the 1984 Resolution before it purchased the property, and therefore that line of questioning was not further pursued to show that the witness was lying, for if [...] had been given the Resolution before it bought the property, its lawyer’s letter (Pa 163) sent just after the municipal court complaints were filed on February 6, 2020 challenging the use would have specifically mentioned the 1984 Resolution and would have attached it.
[brief] Even if [...]’s interpretation of the Settlement Agreement were reasonable, it is certainly not the only reasonable interpretation.  Indeed, [...]’s interpretation of the Settlement Agreement is another if not the only reasonable interpretation of the agreement.  [...] argues to the contrary that [...]’s interpretation would render Paragraph 24(F) a “meaningless nullity. ” (Pb25).  As described above, that is wrong – [...]’s interpretation gives full effect to Paragraph 24(F), including its last sentence, by recognizing that its subject matter simply is distinct from the subject matter of Paragraph 24(G).  To the extent the Settlement Agreement were ambiguous, the Probate Court should still have denied [...] relief because [...] failed to come forward with evidence establishing that his interpretation was the correct one.  Where an agreement is “susceptible to at least two reasonable alternative interpretations, an ambiguity exists.
[brief] In order to disclose the fraudulent transaction publicly, the combination of $X$ and $Y$ must be revealed, from which readers or listeners may infer $Z$, i.e., the conclusion that fraud has been committed.  *Id.* at 654 (emphasis added).  What *Natural Gas* and its (many) progeny recognize is a truly massive amount of data do not reveal the combination of $X$ and $Y$ (the misrepresented state of facts and a true state of facts) and that the government may not be in a position to infer that a fraud has occurred when there is a massive gulf between the $X$ and $Y$.  *Natural Gas*, 562 F.3d at 1042-43; see, e.g., *United States ex rel. Mitchell v. CIT Bank, N.A.*, 2022 WL 135438, at *4 (E.D. Tex. Jan. 13, 2022) (public disclosures must disclose specific details about fraudulent scheme and the actors involved in it.\footnote{Defendants also assert that the Natural Gas line of cases only applies in cases involving non-public transactions.
[brief] ”  This request emanated from Plaintiff’s concerns about the health and safety of her workplace, along with contracting and/or regulating the spread of Covid-19.  Without making a single inquiry into these concerns, or the underlying reasons for same, Defendant immediately fired Plaintiff and her co-signatories.  Defendant reconsidered and rehired all other signatories, but for Plaintiff, within days.  These actions are egregious, and Defendant must be held accountable.  To distract from its own discriminatory and unlawful acts, Defendant depicts Plaintiff as an entitled millennial, inciting a demand to work from home.  This is a complete mischaracterization of Plaintiff, who like most people was genuinely fearful as the pandemic swept across the globe, and a complete mischaracterization of her request.  An employer should be prohibited from retaliating and discriminating against employees who raise concerns about health and safety in the workplace.  Our anti-retaliation and discrimination laws, codified by the New Jersey Laws Against Discrimination (NJLAD) and Pierce v. Ortho Pharm Corp., 84 N.J. 58 (1980), are construed broadly to eradicate this type of unlawful behavior by employers.
[brief] a.  The Parental Secrecy Policy is not narrowly tailored to prevent parents from abusing their children.  The State argued below that the Parental Secrecy Policy also prevents parents from harming their transgender-identifying children.  ACa81–82.  The prevention of harm to children is assuredly a compelling government interest in the abstract.  But it violates both the substantive and procedural components of the Due Process Clause to presume that parents will harm their children without making specific factual findings in each individual case.  As discussed, the United States Constitution’s protection of parental rights rests on the common-law presumptions of parental fitness and affection.  *Parham*, 442 U.S. at 602.  The State must adhere to these presumptions unless and until it makes specific findings that rebut them in each individual case.  *Id.*; see also *Troxel*, 530 U.S. at 68 (plurality op.); *Stanley*, 405 U.S. at 652.  As the Third Circuit Court of Appeals has held, “a state has no interest in protecting children from their parents unless it has some reasonable and articulable evidence giving rise to a reasonable suspicion that a child has been abused or is in imminent danger of abuse. ”  *Croft v. Westmoreland Cnty. Child. & Youth Servs.*, 103 F.3d 1123, 1126 (3d Cir. 1997).
[brief] In any event, the trial court’s separate finding that the Amended Policy mandates disparate treatment did not reference the studies and surveys.  (Da127-29).  In other words, that holding—which is already sufficient to find a reasonable probability of success—is unaffected by this argument.  Appellants do not argue otherwise.  exercised its discretion in the context of a preliminary injunction to take notice of the probative information the State introduced—information that, as laid out above, substantiates the Amended Policy’s likely disparate impact.