ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] PROCEDURAL HISTORY .................................................................................................2  COUNTERSTATEMENT OF FACTS ..............................................................................3  POINT I...............................................................................................................................17  LEGAL STANDARD OF REVIEW ON APPEAL FROM A GRANT OF SUMMARY JUDGMENT, THE APPELLATE COURT EMPLOYED THE SAME STANDARD OF REVIEW AS THE TRIAL COURT.  (ISSUES NOT RAISED BELOW).  .................................................................................................................................17  POINT II............................................................................................................................20  THE TRIAL COURT CORRECTLY RECONSIDERED ITS MARCH 13, 2023  ORDER AND CORRECTLY ENTERED  SUMMARY  JUDGMENT BASED ON THE CITY’S AFFIRMATIVE DEFENSE.  (Pa271-282).  .........................................................................................................................20  A.  The Court Correctly Reconsidered Its March 13, 2023  Order Pursuant to R. 4:42-2.  (Pa274)  .................................................................21  B.  The Trial Properly Found that the City Had Established An Affirmative Defense Against Vicarious Liability under Dunkley.  (Pa280-282)  .................................................................23  CONCLUSION  ..................................................................................................................34
[directive] Rather, condition any if law of matter detention a as ordered pretrial be cannot argument that defense appearance defendant's reasonably the assure would 2A:162-17(b) N.J.S.A. by expressly authorized that and community, the or person of other any of protection safety the the required, in when court that when even process, criminal justice the obstruct or to obstruct will attempt not defendant interpretation uniform ensure to (provisions Section also 13 See actually available.  condition not is prosecutors).
[brief] Since it only affected grading, the State had no duty to prove defendant knew the wallet ID qualified as a “public record, writing or instrument. ”  See State v. Combariati, 186 N.J. Super. 375, 377-81 (Law Div. 1982), aff’d mem., 192 N.J. Super. 131 (App. Div. 1983), certif. denied, 97 N.J. 694 (1984).
[brief] THE PATHOLOGIST’S OPINIONS WERE NOT NET OPINIONS AND THEIR ADMISSION WAS NOT AN ABUSE OF DISCRETION  “The admission or exclusion of expert testimony is committed to the sound discretion of the trial court.  As discussed supra, a discovery determination, including a trial court's grant or denial of a motion to strike expert testimony, is entitled to deference on appellate review…  “[The Court] appl[ies a] deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard. ”  Townsend v. Pierre, 221 N.J. 36, 52–53 (2015) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371–72 (2011) (internal citations omitted)).  In discerning whether an expert may testify, the Court must consider three core requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.
[brief] | .5 | $190.00 | $5,795.00 | | 11| 12/14/21 |  Work on Rogs.  Objections and clients responses to 82 interrogatories | 5.00 | $1,900.00 | $7,695.00 | | 12| 12/15/21 |  Continue working on responses and objections to discovery.  Email from [...] regaining tentative decisions on motion to Amend.  Call counsel  Email counsel regarding same.  | 1.8 | $684.00 | $8,379.00 | | 13| 12/17/21 |
[brief] By Orders and Decisions of July 26, 2019, the trial court granted summary judgment to both [...] and [...] based upon plaintiffs’ failure to provide a timely affidavit of merit.  The trial court rejected plaintiffs’ assertion that their claims sounded in simple negligence, and not professional engineering negligence, simply because of [...]’s role in the project.  The court noted that the role of [...] and [...] in supervising the project to ensure compliance with [...]’s contractual specifications clearly fell within the ambit of “professional engineering” (Pa29).  The court further found that the opinions of plaintiffs’ experts to the contrary did not raise a material issue of fact since those opinions flatly contradicted unambiguous provisions of the administrative code that expressly define “the practice of engineering” to include such work.  Id.  While acknowledging that [...] was not a licensed professional engineer, the trial court found that fact alone was not dispositive on the issue of whether plaintiffs’ claims against [...] and [...] implicated professional malpractice and the affidavit of merit requirement (Pa30).  Rather, the trial court determined that it was necessary to examine the standard of care at the core of plaintiffs’ claims.  In this regard, the trial court aptly reasoned:  Plaintiff’s complaint is couched in terms of simple negligence against the Defendants, but it cannot be overlooked that the foundation of those allegations require a determination as to what the appropriate action would have been in the provision of engineering services on the project.  Plaintiff’s claims against Defendants for negligently supervising the project speak directly to their obligations as professional engineers who were hired specifically to oversee the project to ensure [...]’s compliance with [...]’s contract specifications.  There is no feasible way to separate Defendants’ standard of care in rendering those professional engineering services from their duties owed to Plaintiff under a simple negligence theory.  In other words, the allegations are founded upon the professional engineering [...] and [...] provided and the standard of care applicable to them at the time of the incident can only be analyzed as a deviation from the standard of care ordinarily applicable to professional engineers.  Id.  The trial court concluded that “the inspection and oversight duties of [...] and [...] fall squarely within ‘the practice of engineering,’” as both entities were “tasked with ensuring [...]’s work adhered to the specifications of the project as set forth in [...]’s contract, and [...] provided engineering services on the project, at the direction of two licensed professional engineers” (Pa31).  Since plaintiffs’ claims necessarily implicated the standard of care applicable to [...] and [...] in their capacity as professional engineers, the trial court concluded that plaintiffs’ failure to file an affidavit of merit was fatal.  Id.
[brief] N.J.S.A. 2A:23B-17(g) .............................................................................38  N.J.S.A. 2A:23B-22 .................................................................................38 N.J.S.A. 2A:23B-23 ...............................................................................12, 38 N.J.S.A. 2A:23B-23(a)(4) .......................................................................16, 18 N.J.S.A. 2A:23B-24 ...............................................................................34, 36, 38 N.J.S.A. 2A:23B-24(a) ..........................................................................12, 13, 34 N.J.S.A. 2A:23B-24(a)(1) .....................................................................32
[directive] A disposition that does not involve a finding of guilt by the courts or where a complaint is dismissed by a county or municipal prosecutor means that proof beyond a reasonable doubt has not been found.  However, it does not mean that an administrative investigation cannot be pursued or should be closed.  The absence of proof beyond a reasonable doubt does not foreclose the possibility that an investigation may reveal evidence that meets the burden of proof in administrative matters.  Thus, the internal affairs investigator must continue the administrative investigation to determine whether evidence exists or can be developed that meets the “preponderance of the evidence” burden of proof for administrative proceedings.  Under no circumstances shall an internal affairs administrative investigation be closed merely because a criminal investigation was declined or terminated.  In all cases where an investigation is returned to internal affairs because the prosecutor declined or terminated the criminal investigation, internal affairs shall inform the County Prosecutor as to the disposition of the complaint, including any discipline imposed, once the administrative investigation is completed.  INTERNAL AFFAIRS POLICY & PROCEDURES | November 2022 29
[directive] Si su respuesta es ''No," pase a la pregunta l 7e.  Si la respuesta es "Si," pase a la pregunta 17f.  Would you like the opportunity to do so?  e.  [Yes/Si]  [No/No]  i,Le gustaria tener la oportunidad de hacerlo?  Revised Fonn Promulgated 12/31/2019 Supplement to Directive #01-18, CN 10079-Spanish Defendant's Initials by Fonnulario revisado promulgado para el 12/31/2019, Suplemento a la Directiva #01-18, CN 10079-
[brief] Adopting [...]’s United States Supreme Court plurality opinion in *City of Riverside v. Rivera*, 477 U.S. 561 (1986), the Court explained [i]n [Rivera], a plurality of the Supreme Court upheld a counsel-fee award of $245,456.25 in a suit alleging civil-rights violations in which the plaintiffs had been awarded compensatory and punitive damages of $33,350.  The plurality opinion concluded that although damages recovered were a factor bearing on the reasonableness of counsel fee awards, federal fee-shifting statutes did not require proportionality between damage recoveries and counsel-fee award, observing that ‘[u]nlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms.
[brief] This was a complex business divorce in which Plaintiffs’ alleged fraud, diversions, and misappropriations of company funds.  Before trial, the lower court was presented with defense arguments about the extent to which [...] could testify on issues of intent.  Plaintiffs’ response to those concerns was that it was appropriate for [...], based on his years of experience, to provide opinion testimony as to intent based on patterns of conduct and manipulations of data suggestive of intentionality that he was able to distill from his review of the financial records, and the defendants were free to cross examine [...] as to those opinions.  (3T 42:2 to 44:1).  Contrary to appellants’ arguments now, the trial court was sensitive to those concerns.  Though it deferred those issues for trial, the trial court explained at the motion hearing: “Ultimately it is up to the Court whether [the defendants’ conduct] was done intentionally or it is a fraud or whatever, but those are objections that come up when certain questions are asked. ” (3T 35:9-12).  Furthermore, the trial court made clear that [...]’s testimony on the subject of intent could not just be based in conjecture and speculation; it must be tied to some other evidence supportive of that opinion.  (3T 56:8-25).  See Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144, (2013) (expert must “give the why and wherefore that supports the opinion, rather than a mere conclusion. ”); Johnson v. Salem Corp., 97 N.J. 78 (1984) (weight of expert opinion can rise no higher than the strength of the facts and reasoning supporting it).  Likewise, the trial court was well within its discretion to allow [...]’s trial testimony.
[brief] In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient as measured by an objective standard of reasonableness under prevailing professional norms, and that defendant was prejudiced thereby.  *Strickland*, 466 U.S. at 687-88; *State v. Fritz*, 105 N.J. 42, 58 (1987).  The defendant must also overcome the strong presumption that counsel's actions might be considered sound trial strategy.  *Id.* at 689.  To the extent this Court finds that any arguments made herein should have been raised on direct appeal, then the petitioner asserts that he received ineffective assistance of appellate counsel.
[brief] A. DR. ONDIK’S APPLICATION IS CONTRARY TO SETTLED LAW.  Restrictive Covenants entered into as a condition of employment are fully enforceable under New Jersey law.  Solari Indus. v. Malady, 55 N.J. 571, 585 (1970); ADP, LLC v. Kusins, 460 N.J. Super. 368, 400 (App. Div. 2019).  In ADP, the Appellate Division stated its intention to “bring some clarity and uniformity” to the enforcement of restrictive covenants, concluding that it is reasonable for a company to restrict its former employees from providing services to a competing business.  ADP, 460 N.J. Super. at 377-78.  The Supreme Court of New Jersey has established a three part test to determine the validity of a restrictive covenant.  A restrictive covenant is reasonable and enforceable where it 1) protects the legitimate interests of the employer, 2) imposes no undue hardship on the employee and 3) does not injure the public.  Ingersoll-Rand Co. v. Ciavatta, 110 N.J. 609, 628 (1988) (citing Whitmyer Bros., Inc. v. Doyle, 58 N.J. 25, 32-33 (1971)); Solari Indus., 55 N.J. 571.  Restrictive covenants with physicians are the same.  See Karlin v. Weinberg, 77 N.J. 408, 422-23 (1978); Community Hosp. Grp. Inc. v. More, 183 N.J. 36, 55-56 (2005); see also Pierson v. Medical Health Centers, P.A., 183 N.J. 65, 69 (2005) (holding that restrictive covenants with physicians are enforceable if they meet the standard set forth in Karlin).  Specifically, the Court will enforce an agreement restricting or limiting a physician’s post-separation conduct if it “protects the legitimate interests of the employer, imposes no undue hardship on the employee and is not injurious to the public. ”  Maw v. Advanced Clinical Communications, Inc., 179 N.J. 439, 447 (2004) (citations omitted); see also Karlin, 77 N.J. at 422-23.  The Court considers whether the restrictive covenant is “reasonable under all the circumstances of the case. ” Karlin, 77 N.J. at 417; see also Solari Indus., 55 N.J. at 576; Platinum Management v. Dahms, 285 N.J. Super. 274, 293 (Law Div. 1995).  In this case, [...] expressly negotiated the Restrictive Covenant in his Employment Agreement, and he agreed that what he negotiated was reasonable and necessary to protect the Practice.
[brief] ...........................................  20  A.  Standard for a motion to dismiss.  ....................................  20  B. Count I - Negligent, Reckless & Wanton Violation of Plaintiff's Rights  .................................................................  23  C. Count IV - Violations of Article 1 of the New Jersey Constitution for Depravation of Plaintiff's Substantive and Procedural Due Process Rights  .............................................  24  D. Count V - Violation of N.J.S.A. 10:6-2(c) for depravation of Civil rights by way of threat or coercion.  ..................  27  CONCLUSION ........................................................................
[brief] The CCIP Policy, in its Named Insured – Contractor Controlled Insurance Program Endorsement, defines its “named insureds” as contractors “enrolled in the Contractor Controlled Insurance Program” and performing at a “designated project. ”  Pa148.  Notably, there was no explicit exclusion in the CCIP Policy for “demolition work. ”  Pa77-Pa221.  The CCIP Policy provides the following cancellation provision:  A.  Cancellation  1.  The first Named Insured shown in the Declarations may cancel this policy by mailing or delivering to us advance written notice of cancellation.  2.  We may cancel this policy by mailing or delivering to the first Named Insured written notice of cancellation at least: a. 10 days before the effective date of cancellation if we cancel for nonpayment of premium; or b. 30 days before the effective date of cancellation if we cancel for any other reason.  Pa84.  The CCIP Policy’s Earlier Notice of Cancellation or Non-Renewal Endorsement raises the number of days required for notice of cancellation to 90 days.  Pa142.  [...] retained [...] as its program administrator and agent to handle enrollment of contractors for coverage under the CCIP.  Pa579-Pa616.  [...] is listed on the CCIP Policy as the “Producer” for that insurance.  Pa77.  [...] of [...] testified that [...] was acting as insurance broker on behalf of [...] as a named insured under the CCIP Policy.  Pa2116.  [...] of [...] testified that [...] was the broker of the policies, and that [...] was [...]’s client.  Pa2469.
[brief] The suspension came from the Township Committee.  They suspended them via a resolution.  I notified whoever was acting [Chief of Police], and I’m pretty sure it was [...] [who eventually became the Chief], you know, was to do the day-to-day functioning of the town, *that they were suspended and we needed their badge and gun.*  ([...] Dep. 132:15-24, 529a) (emphasis added).  The Township Committee suspended Plaintiff notwithstanding Defendants’ admissions that: [a] a sworn law enforcement officer such as [...], prior to any disciplinary action being imposed against him, would have to be the subject of an internal affairs investigation conducted by a sworn law enforcement officer pursuant to Attorney General Guidelines which results in a finding that the allegation[s] of misconduct against the officer were sustained; [b] only the Chief of Police would make a determination as to whether the officer was to receive any disciplinary action, and the appropriate authority for the Township, specifically the Township Administrator, would have some role in that process; & [c] the Township Committee has absolutely no role in police internal affairs investigations or in the police disciplinary process.
[brief] See e.g., *In re D.C.*, 203 N.J. 545, 560-61 (2010) (examining the “new understanding by social scientists” in determining statutory intent); *State v. Romero*, 191 N.J. 59, 70-72 (2007) (reviewing “identification research” studies with regard to a question of jury instructions).  Similarly, our appellate courts regularly inform their understanding of issues with the aid of law review articles and legal treatises that were not presented at trial.  See e.g., *State v. Long*, 173 N.J. 138, 159-160 (citing three separate treatises to guide its opinion).  Further, facts [...] relies on from these materials are facts which come from accurate sources, of which this Court can take judicial notice.  See N.J.R.E. 201(b)(3), 202(b).  To say that these materials are outside the scope of what this Court can consider flies in the face of the law and practice of our appellate courts.
[brief] In reviewing whether summary judgment was properly granted, the appellate court applies the same standard as the trial court.  *Globe Motor Co. v. Igdalev*, 225 N.J. 469, 479 (2016).  Summary judgment is proper when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. ”  Rule 4:46-2(c); see also Perrelli v. Pastorelle, 206 N.J. 193, 199 (2011) (quoting language from the Rule).  “An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact. ”  Id.  “[A] court should deny a summary judgment motion only where the party opposing the motion has come forward with evidence that creates a ‘genuine issue as to any material fact challenged. ’”  Brill v. Guardian Life, 142 N.J. 520, 529 (1995) (emphasis in original); Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012).  “[W]here the party opposing summary judgment points only to disputed issues of fact that are ‘of an insubstantial nature,’ the proper disposition is summary judgment. ”  Brill, 142 N.J. at 529; see also Inv’rs Bank v. Torres, 457 N.J. Super. 53, 64 (App. Div. 2018).  Summary judgment is proper even where there is a denial of an essential fact if the remainder of the record demonstrates the absence of a material and genuine factual dispute.  See Rankin v. Sowinski, 119 N.J. Super. 393, 399-400 (App. Div. 1972).  “The existence of merely some factual dispute will not defeat a properly supported motion. ”  Alfano v. Schaud, 429 N.J. Super. 469, 475 (App. Div. 2013).  Particularly relevant here is the admonition previously given by this Court: “’[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment. ”  Id. (quoting Scott v. Harris, 550 U.S. 372, 380 (2007).
[directive] Any mechanism or procedure a law enforcement agency establishes to monitor and track the behavior and performance of individual police officers must have as two of its linchpins quality supervision and an objective and impartial internal affairs process.  Supervisors who have sufficient time and resources to properly perform their duties should be able to timely identify officers with performance and misconduct issues.  Supervisors can react to problems they identify through direction, counseling and effective performance evaluations.  Proper training of agency supervisors is critical to the discipline and performance of law enforcement officers.  Emphasis should be placed on anticipating problems among officers before they result in improper performance or misconduct.  Supervisors are expected to recognize potentially troublesome officers, identify training needs of officers and provide professional support in a consistent and fair manner.  3.4.5
[brief] Okay.  With that, let -- just let me just say, ladies and gentlemen, I -- I think I’m going to be stating the obvious, but sometimes you need to state the obvious.  The fact that there is discussion about another crime being -- another crime that was allegedly committed does not have any -- any reference to your deliberations in this particular case.  It’s just -- the only reason it is coming up is to give context as to what was meant by the phrase, “Fits -- fits the bill. ”  [(3T 137-22 to 138-6)]  The State then clarified with [...] that [...] was never charged with “anything to do with anything” in South River.  (3T 138-9 to 14)  During [...]’s cross-examination, he testified that during the stop, another officer said to him, “This was the kid who did the robbery last night,” and [...] responded, “Oh, yeah, 100 percent. ”  (3T 202-5 to 19)
[directive] Restrictions on Using BWCs With Enhanced Audio/Visual Capabilities.  Subject to the provisions of Section 12 of this Policy, if a department acquires a BWC with enhanced audio/video capabilities that allow it to record an image or conversation that could not be seen or heard by the officer wearing the device (e.g., infrared night vision or thermal imaging, sound amplification that would record conversations occurring at a remote distance), that feature/capability shall not be used without the express approval of the BODY WORN CAMERA POLICY | January 2022  19  County Prosecutor or designee, or the Director of the Division of Criminal Justice or designee, in accordance with any applicable legal requirements.