ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The Appellate Division found that:  [a]lthough Lehmann and its progeny never expressly ‘address[ed] the analytical framework under which an employer’s anti-harassment policy may be considered in a hostile work environment harassment claim involving a supervisor, the Court noted ‘that [same] jurisprudence strongly supports the availability of an affirmative defense, based on the employer’s creation and enforcement of an effective policy against sexual harassment.  Id. at 329 (quoting Aguas, supra, 220 N.J. at 514).  The Aguas Court “adopted what is known as the Ellerth/Faragher test for defending claims alleging vicarious liability for supervisory harassment under Restatement §219(2)(b), thus allowing employers to plead, as an affirmative defense, the adoption and enforcement of an effective policy against sexual harassment so long as the employee suffered no tangible employment action.
[brief] Dear [...]:  The [...] (Commission or [...]) files this letter brief in opposition to the appeal of the [...] (Board or Appellant) from [...]’s final agency decision issued on October 26, 2023, [...], TABLE OF CONTENTS  PRELIMINARY STATEMENT ...........................................  iii  PROCEDURAL HISTORY ..................................................  1  STATEMENT OF MATERIAL FACTS ..................................  2 LEGAL ARGUMENT .......................................................  5  STANDARD OF REVIEW ...............................................  5  I.  [...]’s FINAL DECISION SHOULD BE AFFIRMED .............  6
[brief] RESPONDENT ENGAGED IN CONDUCT WHICH NOT ONLY HAD THE POTENTIAL TO COMPROMISE THE BOARD – BUT WHICH ACTUALLY DID COMPROMISE THE BOARD (Ca014-017)  Respondent asserts that “the evidence does not show that Respondent’s conduct undermined public confidence or trust in the Board or compromised it. ”  Rb13.  On the contrary, the record contains direct evidence – including the Board’s own minutes, official Resolutions passed by the Board, actual litigation filed against the Board as a result of Respondent’s conduct, and news coverage of Respondent’s conduct – which clearly shows that Respondent actually compromised the Board.  The question of whether a member of the school community could have reasonably perceived Respondent of speaking as a Board member is directly answered by the fact that many members of the public did perceive her as speaking on behalf of the Board.  I/M/O [...], Commission Docket No. [...], at pp. 7-8 (2021) (Ca242-243) (citing Melnyk v. Fiel, Commission Docket No. C64-18 (2019) (Ca269)).
[brief] See Senate Select Comm., School Funding Fairness Notice (Feb. 14, 2017).  As part of these Legislative efforts, adjustment aid was identified as a problem because its guarantee of funding at 2009 levels applied “no matter how overfunded the formula showed that school district to be. ”  Ibid.  And the “growth cap,” conversely, limited increases in school funding and “resulted in severe underfunding of districts with rapid enrollment growth or rising populations of at risk” students.  Ibid.  Thus, the establishment of the “state aid differential” specifically addressed that legislative concern, as did the resulting district gains and losses in aid.
[brief] Furthermore, the Piermount decision, ultimately concluding N.J.A.C. § 11:1-20 did not apply to extend coverage, underscores the DOBI’s policy that the Code only applies to lines of insurance made subject to its requirements.  Id., at 447.  This eviscerates Plaintiffs’ argument that common law and public policy mandate applying such cancellation requirements.  Plaintiffs point to cases involving non-CCIP related policies, with fact patterns dissimilar to the one at issue here and, importantly, involving policyholders that – unlike [...] which maintained the liability policies it actually paid for - were left with no coverage when policies were allegedly improperly cancelled.
[brief] At issue in this appeal is the validity and enforceability of waiver and binding arbitration provisions of [...]’s standard pre-printed Small Business Contract.  (Pa1)  Although, again, while “magic words” (e.g. compel, deny, stay or dismissed) are not used in the June 20, 2024 Order, the substance and result of this decision necessarily decides the validity of this agreement.  The clear purpose of R. 2:2-3(b)(8) and cases decided under this rule broadly apply it to orders to compel or deny arbitration.  GMAC v. Pittella, 205 N.J. 572 (2011); Wein v. Morris, 194 N.J. 362 (2008).  Inasmuch as this rule denominates orders compelling or denying arbitration as final and inasmuch as R. 2:9-1(a) reserves for the trial court jurisdiction only over other claims and parties, it would appear that as with all final judgments, the Appellate Division should have jurisdiction over all issues.
[brief] Dr.  Guzzardi “definitely agreed” that “[l]ots of foods do not have a high enough moisture content to support the growth of Stachybotrys Chartarum. ”  3T106-7-10.  He also testified, like [...], that Stachybotrys Chartarum is known to grow on high cellulose materials, like gypsum.  On that type of product, this mold can grow after approximately 48 hours of prolonged moisture.  3T105-24 to 3T106-2.  To the extent Stachybotrys Chartarum could grow on a household food, it would “likely” take 10 to 20 days.  3T116-23 to 3T117-3.  But [...], like most people, did not eat multi-week-old food.  Instead, he testified that he regularly consumed his food in one sitting or within a few days.  1T68-18 to 1T69-6.  [...]’s opinion that mold growing in [...]’s condo contaminated his food and caused him injury is admittedly not supported by a single study anywhere that documented this ever having taken place in human history.  3T108-24 to 3T110-5.  iv.
[brief] The [...] Training Manual for the flooring department (Pra42) is 90 pages long.  On page 4 (Pra47) it summarizes the process a new flooring employee is supposed to go through before he is “red vest ready. ”  Prior to getting his red vest, the new employee is supposed to go through various forms of training, including “Meet My Mentor,” “Learning and Talent Center,” “Shadow My Mentor,” “Test Your Knowledge,” and “Manager Touch Point. ”  Only after all of that training takes place, and the employee passes the testing, is the employee deemed “red vest ready” and given the red vest.  *(Ibid.; 6T195:21-196:10; 6T235:10-24).*  [...]’s training log (Pra134) indicates that the only computer-based training he received was: “he had the power stocker lifter, credit at [...], credit compliance, introduction of flooring, introduction to carpet, understanding equal employment opportunities probably, spill clean-up, inspecting top stock, and [] power stock lifter knowledge. ”  *(5T36:17-37:6). *  On “Day One” of the training, the new employee is supposed to watch the aforementioned “Becoming Red Vest Ready” training video where it says that he “will have the dedicated training time to better understand your department, practice selling skills, and shadow experienced employees before working by yourself. ”  [...]’s training log (Pra134) shows that he never saw that video (9T105:2-5), not even in his prior stints of employment, so he did not know that it said he was supposed to complete his training before working by himself.
[brief] On 4/7/2020 you were mailed a correspondence from the Office of Human Resources (HR) advising that your medical documentation had expired.  You were directed to return to work for duty immediately, to submit medical documentation to extend your absences by 4/14/2020, or to alternatively resign in good standing from your position.  You failed to avail yourself of these options and refused to return to work.  [Aa2.]  [...] did not challenge the PNDA, and the Final Notice of Disciplinary Action ("FNDA") was issued on July 2, 2020.
[brief] The reason a defendant must plead “facts” supporting an affirmative defense is “to avoid surprise” to the plaintiff so they may promptly take action to counter the defense – be it via the taking of depositions, the issuance of records subpoenas or the propounding of paper discovery tailored to determine the facts behind a given defense. \(^3\)  For example, in *Hill v. Board of Educ. of Middletown Tp.*, 183 N.J. Super. 36, 40 (App. Div. 1982), cert den., 81 N.J. 233 (1982), the defendant township’s answer didn’t "specifically plead that plaintiffs failed to comply with the notice provisions of the Tort Claims Act nor did it cite the applicable section of --- \(^1\)
[brief] See generally Cap. Health Sys. Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 83 (2017) (“The chancery judges’ determinations were soundly and logically reached and should not have been second-guessed because the Appellate Division harbored a different view of the merits. ”); Hurwitz v. AHS Hosp. Corp., 438 N.J. Super. 269, 306 (App. Div. 2014) (“Such a case-specific approach is consistent with the important role that our civil trial judges routinely perform in balancing the needs of litigants to obtain relevant information against the often significant burdens and costs of the discovery process. ”).  Indeed, the Third Circuit recently held that a district court order that refused to allow a relevancy review was not a “clear abuse of discretion” or a “clear error of law. ”  In re Actavis, 2019 WL 8437021, at *1 (citation omitted).  It recognized that federal district courts, like New Jersey trial courts, enjoy --- 14  A decision that is a “clear abuse of discretion” or a “clear error of law” under federal law is not any different than a state law decision that is “so wide [of] the mark that a manifest denial of justice resulted. ”  See DiFiore, 254 N.J. at 228 (alteration in original) (citation omitted).  “wide latitude in controlling discovery. ”  *Ibid.*  Like the New Jersey Court Rules, “the Federal Rules of Civil Procedure permit a district court to compel the production of documents within broad parameters. ”  *Ibid.*  Like the parties here, the parties in *Actavis* were to produce documents “from custodians identified as possessing potentially relevant information, and search terms aimed at identifying relevant information. ”  *Ibid.*  And, like the trial court here, “the District Court provided reasons for its approach” and permitted the parties to shield privileged documents and protect sensitive information.  *Ibid.*  This Court should defer to the trial court’s thoughtful and careful balancing of the various interests and reasonable resolution of the issue -- even if it might have chosen a different protocol had it been the court in the first instance. \(^{15}\)  **II.
[brief] Under the first Yarbough guideline, “there can be no free crimes in a system for which the punishment shall fit the crime. ”  Id. at 643.  The Court never intended an interpretation where any concurrent sentence would be a free crime nor for the elimination of concurrent sentences.  “No free crimes” is always present in convictions for more than one offense, so it cannot stand alone to support consecutive sentences.  Otherwise, every sentence would be presumed as consecutive, which is not the statutory framework.  [[...], No. [...] (slip op. at 10).  (Da41)]  This Court should reaffirm that “no free crimes” is not a sufficient basis alone to impose a consecutive sentence.
[brief] In addition, this appeal addresses (a) the arbitrator’s failure to follow the requirements of N.J.A.C. 19:16-5.7(g) which mandates that the City provide the arbitrator and [...] with information related to the composition of the unit and unit salary costs; and (b) the Commission’s decision which: (1) failed to address the arbitration proceeding’s substantive and procedural deficiencies including the arbitrator’s acceptance and adoption of Salary Cost Outs submitted by the City after the submission of post hearing briefs, without opportunity for the [...] to respond/rebut the information submitted, which included incorrect information as to the composition of the three bargaining units as well as inaccurate backpay calculations; and (2) failed to acknowledge that a complete award was not timely issued because the Award included six attached appendices which were not provided to the [...] (or the City) (a) when the Award was issued; (b) prior to the [...]’s appeal of the interest arbitration award to [...]; or (c) prior to [...]’s decision denying the [...]’s appeal.
[brief] Under the statute, the Legislature had an obligation to post its calendar not only under the Open Public Meetings Act but also under the Legislature’s own statutes that required “(5) a current calendar of legislative events, including the schedule of legislative committee meetings, and a list of bills scheduled for legislative action. ”  N.J.S.A. 52:11-78(a)(5).  Here, it was clear that S. 49 and A. 6260 were not posted in advance so that the public – or even legislators – would know they were being considered for vote on January 10, 2022.
[directive] If D D Yes No yes, language _ Interpreter needed? _________  If ADA accommodation needed? D Yes D No yes, describe _ of3  3  Published by Directive #17-18 (11/01/2018), CN: 12326 (Competency Order 2) page Attachment 4  Order #3 - Order Committing a Defendant Who Incompetent to Stand Trial and Dangerous to Is Self, Others and/or Property for Further Evaluation after 90 Days  Order #3.  Order Committing a Defendant Who Incompetent to Stand Trial and is Dangerous to Self, Others, and/or Property for Further Evaluation after 90 Days.
[directive] VIOLATIONS  time indictment/trial speedy track system to automated an establishing Judiciary is The counsel defense and prosecutors, judges, alert to and Reform Law Bail the under imposed limits and necessary all that ensure to responsible are Prosecutors approach. deadlines statutory as timely in trial a and indictment for prepared are cases that ensure taken to are steps appropriate law to attributed delays to due released be will defendant dangerous no that manner so pretrial in laboratory tests and reports police of (prioritization 10 Section also See enforcement. has Reform Law Bail under the imposed deadline a that determines court a If cases).
[directive] When a person is convicted of or adjudicated delinquent for any criminal offense, the P.L. 2001, CHAPTER 365 3 court, upon application of a law enforcement officer or prosecuting attorney pursuant to section 3 of P.L. 2001, c.365 (C.2C:35-5.9) and except as provided in subsection e. of this section, shall, by separate order or within the judgment of conviction, issue an order prohibiting the person from entering any place defined by subsection b. of section 3 of P.L.1999, c.334 (C.2C:35-5.6), including a buffer zone surrounding the place or modifications as provided by subsection f. of this section.  Upon the person's conviction or adjudication of delinquency for a criminal offense, a law enforcement agency, in addition to posting, publishing, and distributing the order or an equivalent notice pursuant to paragraphs (2), (3) and (4) of subsection g. of this section, may also post, publish and distribute a photograph of the person.  i.  When a juvenile has been adjudicated delinquent for an act which, if committed by an adult, would be a criminal offense, in addition to an order required by subsection h. of this section or any other disposition authorized by law, the court may order the juvenile and any parent, guardian or any family member over whom the court has jurisdiction to take such actions or obey such restraints as may be necessary to facilitate the rehabilitation of the juvenile or to protect public safety or to safeguard or enforce the rights of residents of the place.
[directive] Published CN: Order Attachment 6  Order #5 - Order Releasing Defendant Who Lacks Fitness to Proceed but Not a Danger Is under Certain Conditions  Order #5.  Order Releasing Defendant Who Lacks Fitness to Proceed But Is Not A Danger Under Certain Conditions.  This order to be used cases where a defendant has been found incompetent but in is there finding that they represent a danger to themselves, others, or property.  no is
[directive] N.J.S.A. to a have may that circumstances and for facts all account not does AOC the by approved process that (noting 8 note See trial.  pending release defendant's a risks by posed on bearing the material independent are that presumption invoking a for establish grounds Directive this of provisions some any consider should therefore, prosecutor, A results).  risk-assessment pretrial automated of the and 4.2.5 4.2.2 subsections to see available, reasonably be may that information additional relevant information additional such any on rely shall prosecutor not the that however, provided, 7.6, Section this to detention pursuant pretrial presumption against the overcome to deciding for basis the as detention a at circumstance or fact establish that to prepared prosecutor is the unless Directive heaxing.23 prosecutorial of exercise in the uniformity of statewide degree appropriate an achieve help
[brief] Despite the fact that no documents from these minor disciplinary incidents are in my official personnel file, the Commission improperly relied upon a disciplinary history document provided by the [...].  The April 2011 incident was a disagreement between co-workers.  It was properly removed from my file years ago.  The November 16, 2013 incident was a lost badge and wallet from a kayaking trip.  Again, it was properly removed from my file years ago.  The improper motor vehicle stop on September 28, 2017 was similarly a minor incident in which I was exonerated on the allegation of obedience to laws and regulations and issued a written reprimand on performance of duty.  This two was removed from my personnel file years ago.  (AA0158)  None of these minor incidents involved truthfulness, all predated the Respondent [...]’s promotion of Appellant to Sergeant in 2018 and none sufficiently supported a decision to remove the name a disabled veteran who ranked first on the eligible list.  (AA0131)  In opposition to Reconsideration, the Respondent [...] referred to Law Enforcement Directive No. 2019, which was issued after the closing date for the examination for Sheriff’s Officer Lieutenant and addresses background investigations for new recruits and candidates from another law enforcement agency, neither of which apply to the disabled veteran Appellant’s application for promotion.
[brief] 1.  Order Granting Motion for Reconsideration, Dated January 6, 2021  2.  Letter Opinion in Support of Order Granting Motion for Reconsideration, dated July 30, 2020  3.  Order for Final Judgment Including Prevailing Party Attorneys’ Fees, Costs and Interest, dated February 10, 2023  4.  Statement of Reasons Pursuant to R. 1:6-2(f) in Support of Order for Final Judgment, dated February 10, 2023  TABLE OF CITATIONS Cases Altman v. Bedivere Ins. Co., No. 1 BIC 2021 (Pa. Cmwlth. Ct. Mar. 11, 2021) .........................................................................................................................9 Arco Indus. Corp. v. Am. Motorists Ins. Co., 594 N.W.2d 61 (Mich. Ct. App. 1998)..........................................................................................................................40 Bos. Gas Co. v. Century Indem. Co., 793 F. Supp. 2d 511 (D. Mass. 2011) .................................................................................................................................40 Bos. Gas Co. v. Century Indem. Co., 910 N.E.2d 290 (Mass. 2009)........passim Carter-Wallace, Inc. v. Admiral Insurance Co., 154 N.J. 312 (1998)..................44 D'Atria v. D'Atria, 242 N.J. Super. 392 A.2d 957 (Ch. Div. 1990)...............32, 39 Dolson v. Anastasia, 55 N.J. 2 (1969).................................................................41 Lindsey v. Normet, 405 U.S. 56 (1972)...............................................................41
[brief] --- 4 James v. New Jersey Mfrs. Ins. Co., 216 N.J. 552, 572 (2014) (“It is a cardinal rule of statutory construction that full effect should be given, if possible, to every word of a statute”).  Plaintiff’s evidence must demonstrate that the risk of injury is “substantial. ”  *Polyard*, 160 N.J. Super. at 509 (emphasis supplied).  Proof of insignificant or minor defects is not enough to establish a legitimate claim due to the stringent burden imposed by the Act.  *Id.* at 510.  Each case must be pragmatically examined by the trial court to determine whether the particular irregularity is such that reasonable people could differ as to whether it placed the property in a “dangerous condition” as defined by the Act.  *Ibid.*  Here, Plaintiff has absolutely no proof that the tree was in a dangerous condition at the time it toppled over onto Plaintiff’s vehicle.
[brief] Relator has produced no evidence suggesting that it did so.  Ja2148 (¶ 84).  Nor did Relator, before filing its first complaint, provide the former employee statements included in the 3AC and 4AC, which Relator did not possess until years after filing this action in April 2015.  Ja2150–51 (¶¶ 86–87).  Thus, Relator’s analysis and the former employee statements must be disregarded for purposes of the original source analysis.
[brief] Thus, any purported “failure to establish whether the injuries have healed” is not the proper criteria to the verbal threshold/limitation.  As stated in supra, the Appellant-Plaintiff, through her doctor’s treatment, evaluation and the expert report, demonstrated that she has sustained a “permanent injury” based on objective medical evidence.  This was confirmed in the Certification of Permanency.  The Appellant-Plaintiff’s Certification under a penalty of perjury, dated April 12, 2023, stated with specificity that the “report is consistent with my permanent injuries. ”  Further, the Certification stated that “[t]he continued complaints of pain that I experience include: a) [n]eck pain, spasm and stiffness; b) [l]ow back restriction, spasm, and pain, c) [p]ain in legs; d) [n]umbness, weakness, pain, and abnormal sensation in my hands and arms; e) [f]atigue; f) [d]ifficulty sitting and lifting; and g)[s]ignificant difficulty breathing from the sternum area of the chest. ”  Given that the Certification of Appellant-Plaintiff is consistent with [...]’s findings based on the objective medical evidence, including that of the prior MRI studies, the Certification should warrant a significant consideration.  CONCLUSION
[brief] 4.  **The State scheme is not so pervasive or comprehensive that it precludes coexistence of municipal regulation. **  For the foregoing reasons, given the paucity of regulation in the State statutes specifically as to noise regulation, and given the fact that the Home Rule Act allows for this type of regulation by governing bodies, as apparent by the case law, it cannot be said that any State enactment is so pervasive or comprehensive that municipal regulation is not allowed.