ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The standard by which courts review agency decisions is limited: they utilize the arbitrary and capricious standard.  See Zimmerman v. Sussex Cnty. Educ. Servs. Com’n, 237 N.J. 465, 475 (2019) (citing In re Stallworth, 208 N.J. 182, 194 (2011)).  Although sometimes phrased in terms of a search for arbitrary or unreasonable agency action, the judicial role [in reviewing an agency action] is generally restricted to three inquiries: (1) whether the agency’s action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.  [Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995) (quoted in In re Proposed Quest Acad. Charter Sch. of Montclair Founders Group, 216 N.J. 370, 385-86 (2013)).]  “The standard is applicable to administrative agency actions regardless of whether they are quasi-legislative or quasi-judicial. ”  Quest Academy, 216 N.J. at 386.  See also ibid. (citing numerous cases where this standard has been applied to reviews of both quasi-legislative and quasi-judicial agency actions).  The standard is generally deferential with regard to discretionary decisions of an agency.  *Id.* at 385.  But, “[i]n an appeal from a final agency decision, an appellate court is ‘in no way bound by the agency’s interpretation of a statute or its determination of a strictly legal issue. ’”  *Ardan v. Bd. of Review*, 231 N.J. 589, 604 (2018) (quoting *US Bank, N.A. v. Hough*, 210 N.J. 187, 200 (2012)).  In a case where the court is reviewing a strictly legal question, the court’s review stands “on equal footing” with the position of the administrative agency.  See *Melnyk v. Bd. of Educ. of the Delsea Reg’l High Sch. Dist.*, 241 N.J. 31, 40 (2020).  However, courts do “defer to an agency's interpretation of both a statute and implementing regulation, within the sphere of the agency's authority, unless the interpretation is plainly unreasonable.
[brief] In this matter, the trial found that the write-in votes for “Cirz” and “Golden” were for [...] and [...], respectively, the same individuals whose names appeared on the ballots.  (2T80:24-81:23).  The court then noted the write-in vote appeared “immediately next” to the candidate’s printed name on the ballot, declined to find any confusion on the ballot, and expressed full satisfaction that the voter who wrote in “Cirz” “intended to vote for [...], who was running in the election. ” (2T81:18-23; 2T83:10-16).  However, the unequivocal language in Title 19 disqualifying write-in votes for candidates whose names appear on the ballot provides a bright line rule for election officials to apply in the fair and accurate administration of elections.  This court’s application of this language in *In re Ocean County* is particularly instructive:  [T]he unknown write-in voter here was not deprived of the right to cast a vote for [the candidate already on the ballot].  The printed ballot gave the voter that opportunity.  Every voter in the township election had a clear opportunity to vote for [the candidate already on the ballot] without writing in his name on the ballot.  Moreover, a reasonable voter would understand, without explicit instruction, that it is unnecessary to write in the name of a candidate whose name already appears on the ballot, and that a vote for that candidate must be cast by marking the place on the ballot where that candidate's name appears.  [379 N.J. Super. at 476-477.]  Similarly, the voter here was not deprived of the right to cast their ballot and had the same opportunity to vote for their intended candidate without having to write in that candidate’s name.  Also significant is the fact that, as a review of the ballot tapes reveal, (Pa144-149), the voter who cast the write-in ballot in question appears to be the only machine voter who made the mistake of writing in the name of a candidate who is already on the ballot.  *Id.* at 477.  Therefore, under Title 19 and this court’s binding precedent, the contested write-in ballot should not have been counted.
[brief] In Valentine v. Mullooly, [...], 2022 U.S. Dist. LEXIS 118399, at *13 (D.N.J. July 6, 2022) (Dra37), the District Court denied defendants’ motion to dismiss plaintiff’s FDCPA claims and held that “[c]ourts in this District have invoked that part of the NJCFLA—the part reading: “directly or indirectly engag[es] . . . in the business of buying, discounting or endorsing notes”—when classifying debt collection practices as falling within the ‘consumer loan business. ’”  In Veras, supra, 2014 U.S. Dist. LEXIS 34176, at *18 (D.N.J. March 17, 2014) (Da74), the District Court denied defendant’s debt buyer’s motion to dismiss and stated that “it would strain logic to conclude that if a debt collector is prohibited from engaging in debt collection activity in a state, he avoids the risk of liability under the FDCPA so long as he conceals this fact and does not make any representation that he actually has debt collection authority. ”  Given the above cases, violations of the NJCFLA have been placed on equal footing with violations of the FDCPA.
[directive] ”  INTERNAL AFFAIRS POLICY & PROCEDURES | November 2022 66  The synopsis of each case, required by this section, shall follow the format provided in Appendix L and shall include the identity of each officer subject to final discipline, a full explanation of the rule, regulation, policy, directive, or law violated, a factual summary of their conduct, and a statement of the sanction imposed.  The synopsis shall provide sufficient detail to enable a reader who is not familiar with the case to fully understand the factual scenario that resulted in the disciplinary action.  Examples of acceptable synopses may be found in Appendix L (updated November 2022).  This synopsis shall not contain the identities of the complainants or any victims.  Where discipline relates to domestic violence, the synopsis shall not disclose the relationship between a victim and an officer.  In rare circumstances, further redactions may be necessary to protect the identity of a victim.  Whenever practicable, notice shall be given to victims of domestic or sexual violence in advance of an agency’s disclosure of discipline related to the incident.  The required posting to the agency’s public website shall remain in place and publicly accessible.  9.11.3
[brief] First, the No-Fault Law expressly requires “[a]ny dispute regarding the recovery of’ PIP benefits to be submitted to arbitration.  N.J.S.A. 39:6A-5. 1(a) (emphasis added).  This Court held that, based on the statute’s language, “any ‘dispute’ concerning a ‘payment’ of PIP benefits due” under the No-Fault Law “is subject to binding arbitration. ”  *State Farm Mut. Auto. Ins. Co. v. Molino*, 289 N.J. Super. 406, 410 (App. Div. 1996).
[brief] There is nothing on the record to support a claim that Defendants engaged in any type of reprehensible conduct.  No evidence that Defendants engaged in or were willfully indifferent to egregious actions.  Further, the record is clear that Defendant [...] was not a member of upper management, but was simply the Recreation Department Director, not on the same administrative level as the Mayor or the Business Administrator.  On cross examination, the following facts about Defendants’ actions were elicited, including the facts that Plaintiff never complained that any action was taken against he based on her disability or that any action was taken against her based on same.
[brief] 1.  [...]’s Tender To [...]  Counsel retained by [...] to defend [...] against the underlying action tendered the matter to [...] on behalf of [...] on June 29, 2017 after discovering [...]’s coverage under the [...] and [...] policies.  That tender included a copy of [...]’s certificate of insurance and enrollment confirmation.  (Dta916.)  Counsel reiterated its tender on August 17, 2017 after [...] failed to respond.  (Dta918.)  [...] belatedly rejected the tender a year later, on August 7, 2018.  (Dta921.)  2.  [...]’s Internal Review Of The Tender Fails To Reveal Any Documents Establishing That It Cancelled [...]’s Liability Coverage  In investigating [...]’s tender, [...] personnel internally recognized that [...] was insured on the CCIP policy as [...] maintained “enrollment documents for [...] effective 8/1/15,” which established that [...] “issued a policy” to [...].
[brief] Regardless, the jury instructions were proper, because if the jury believed [...]’s account they could only find [...] liable for negligence since Plaintiffs dismissed the battery claim against [...].  i.  An improper instruction on vicarious liability is harmless where the jury found that [...] was acting outside the scope of his employment.  Any error in instructing the jury on [...]’s vicarious liability for the conduct of [...] is necessarily harmless because the jury was properly instructed on how to determine whether [...]’s conduct was inside or outside the scope of his employment and because the jury concluded [...] acted outside the scope before determining his liability.  At the charge conference, [...]’s’ counsel requested an instruction on the scope of employment based on the four-part test set forth in the Restatement (Second) of Agency, § 228(1) (1958) and endorsed by the Supreme Court in Davis v. Devereaux Foundation, 209 N.J. 269, 303 (2012).
[brief] Point I and Point III, infra.  In addition, the Law Division dismissed the legal malpractice claims against [...] pursuant to Res Judicata and the Entire Controversy Doctrine, again despite the fact that Plaintiffs’ claims were new, unknown, and unaccrued at the time of a prior dismissal of the 2015 Action.  Point II, infra.  Also, the Law Division erroneously dismissed Plaintiffs’ legal malpractice claims against the [...], by finding that attorneys have no duty to non-clients in litigation to refrain from fraudulent concealment.  Point IV, infra.  Finally, the Law Division erroneously sanctioned Plaintiffs and granted [...] attorney fees by abusing its discretion to find that Plaintiffs’ Amended Complaint was filed in bad faith.  Point V, infra.  This Court should reverse all said errors of the Law Division.
[brief] …………………………………………………………………………  58  TABLE OF JUDGMENTS  1.  Defendant [...]’s Letter Enclosing its Resolution Denying Plaintiff’s Application, dated April 4, 2023 (Part of Exhibit A to Plaintiff’s Statement of Material Facts)  .................................................................  Ja044-Ja045  2.  Trial Court’s Order Denying Plaintiff’s Relief, issued on March 18, 2024, considered Nunc Pro Tunc to February 9, 2024 .................................................................  Ja174  ### TABLE OF AUTHORITIES | Case | Page No. | |----------------------------------------------------------------------|----------| | Baghdikian v. Bd. of Adjustment of Borough of Ramsey, | 36 | | 247 N.J. Super. 45, 50 (App. Div. 1991) | | | Bd. of Educ. of City of Clifton v. Zoning Bd. of Adjustment of City of Clifton, | 36 | | 409 N.J. Super. 389, 434–35 (App. Div. 2009) | | | Burbridge v. Mine Hill Twp., 117, N.J. 376 (1990) | 12 | | CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd./ Bd. of Adjustment, | 6, 8, 9 | | 414 N.J. Super. 563, 577 (App. Div. 2010) | | | Cell South of N.J., Inc. v. Zoning Bd. of Adjustment of West Windsor Twp., | 7, 8, 9, 36, 49 | | 172 N.J. 75, 81-82 (2002)
[brief] Moreover, the record establishes that Appellant was subjected to multiple adverse employment actions, as follows.  Even prior to the wrongful termination when Appellant was never restored to the work schedule following suspension in January of 2020, notably, Appellant was also subjected to a hostile work environment and a campaign of retaliation culminating in termination.  In its argument for summary judgment below, Appellee attempted to gloss over this fact in a footnote that claimed that Appellant never brought a claim in her Complaint for these causes of action.  To the contrary, Appellants filed Complaint clearly set forth a claim for “retaliation, hostile work environment, and termination,” providing multiple causes of action that defeat summary judgment.
[brief] It is not permissible for school personnel to make such a critical healthcare decision in the life of the child without involving their parents.  ACa47-ACa49 ¶¶ 82–86; see also WPATH SOC8 at S77–78 (recommending that “health care professionals discuss the potential benefits and risks of a social transition with families who are considering it” and noting that such communications “facilitate the parents/caregivers’ success in making informed decisions about the advisability and/or parameters of a social transition for their child” (emphases added)), ACa137–38.  These facts counsel for caution, not schools rushing headlong to socially transition every student who asks for it without parental involvement.
[brief] The questions presented on summary judgment – whether the product is defective and whether it proximately caused the harm alleged – are properly considered jury questions.  Soler v. Castmaster, Div. of H.P.M. Corp., 98 N.J. 137, 153 (1984).  They are questions of fact, of reasonable conduct under the circumstances, of breach of a standard of care and of causation.  Because plaintiff has presented sufficient evidence from which a reasonable jury may find in his favor, those factual issues require reversal, remand and determination by a jury.  Respectfully submitted, [...] /s [...]  [...], Esq.  Co-counsel for Plaintiff-Appellant  Dated: November 14, 2023  [...], Individually and as Administrator of the Estate of [...], M.D., deceased, Plaintiff-Appellant, v. [...], [...], [...], and [...], as Administrator of the Estate of [...], deceased, Defendants-Respondents.
[brief] (1T64-80).  The court thus ordered the immediate ouster of Defendants [...] and [...] from their respective offices.  (Da89-90).  In addition, Defendants requested a stay from the trial court, which the court denied.  (Da90 ¶ 3).  On August 12, 2024, Defendant [...] and Defendant [...] appealed the trial court’s decision; that notice was rejected and subsequently corrected on August 20, 2024.
[brief] The trial prosecutor would have been within her rights to end the hearing at that very moment and pursue an appeal.  However, it is preferable to handle matters on the trial court level.  If the trial court had reached the correct ultimate conclusion and denied the suppression motion despite its incorrect evidentiary ruling, the State would not need to pursue this appeal.  The State should not be penalized because the trial prosecutor, hampered by an erroneous evidentiary ruling, attempted to argue a different theory with the intent of avoiding an appeal.
[brief] In this matter, the trier of fact will not even be called upon to evaluate an attorney’s judgment concerning any legal issue, let alone a complex legal issue, because a trier of fact’s evaluation of a fraudulent scheme to take a client’s money does not evaluate an attorney’s judgment concerning a legal issue.  Rather, a trier of fact would simply be evaluating [...]’s participation in the fraudulent scheme, as would be the case against the other co-conspirator  Defendants accused of participating in the alleged fraudulent scheme.  The mere happenstance that one member of a conspiracy to commit intentional torts is an attorney does not transform those intentional tort claims against that attorney into legal malpractice claims.
[brief] Exhibit D of the Notice of Claim (May 7, 2018, Notice of Withdrawal of the VOP)………………………………………..Aa228  Exhibit E of the Notice of Claim (Oct 17, 2018 erroneously amended JOC)…………………………………………………..Aa229-31  TABLE OF CONTENT VOLUME II (Cont’d)  Appendix Page Exhibit F of the Notice of Claim (May 19, 2023 email to Appellees  Providing them with a copy of the Notice of Claim)……………………………………………………………Aa232  Hearing on [...]’s Motion for Summary Judgment
[brief] N.J.S.A. 49:3-75.................................................................34, 35 D.C. Code § 31-5606.03 (2023) ......................................................  36 Mass. Ann. Laws ch. 110A, § 408 (LexisNexis 2023) .........................  36 Md. Code Ann., Corps. & Ass’ns § 11-702 (LexisNexis 2023) ............. 35, 36 Neb. Rev. Stat. Ann § 8-1116 (LexisNexis 2023) ............................  36  70 Pa. Cons. Stat. § 1-509 (2023) ..................................................  36  PRELIMINARY STATEMENT
[brief] Pursuant to the New Jersey Debt Adjustment and Credit Counseling Act, N.J.S.A. 17:16G-1 to -9 (NJDACCA), “[n]o person other than a nonprofit social service agency or a nonprofit consumer credit counseling agency shall act as a debt adjuster. ”  N.J.S.A. 17:16G-2(a).  Although the statute prohibits debt adjustment for profit, N.J.S.A. 17:16G-1(c)(2)(a) exempts “an attorney-at-law of this State who is not principally engaged as a debt adjuster” (Limited Attorney Exemption).  Pursuant to N.J.S.A. 2C:21-19(f), acting as a debt adjuster without a license, unless exempted from licensure, is a crime of the fourth degree.  The [...] respectfully urges this Court to hold that the Limited Attorney Exemption is unconstitutional, as applied to New Jersey attorneys.
[brief] [...] was not disclosed in the Rule 4:5-1 statement until [...] was sought to be joined and the joinder was for reasons totally unrelated to the “dispute” between Appellants and [...] and his entities; the dispute between Appellants and [...] was for breaching the lease and for fraudulent sale of the assets.  Once Appellants disclosed to the motion judge that [...] would be made a defendant, in the first amended complaint, even before the second amended complaint was filed, [...] had an opportunity to seek discovery or to seek extension of discovery end date and knew full well that Appellants were antagonistic to its interests.  When the second amended complaint was filed, [...] could have sought extension of discovery or a case management conference to air its concerns but filed a motion to dismiss.  The motion to dismiss was “denied without prejudice” by the motion judge.  Thereupon, the new action being filed against Respondent, with a new filing fee and new docket number, was entirely based upon the “dismissal, without prejudice” ruling induced by Respondent and issued by the motion judge.  That resulted in there now being a “second action” but this “section action” was not a “second, successive action” because the first action had not concluded.  For this reason, the entire controversy doctrine was simply inapplicable and should not have been invoked by Respondent and should not have been granted by the motion judge after the “second action” was commenced, well before the first action had been concluded.
[brief] The Kimmelman Court’s complete list of factors to be considered can be summarized as: (1) the good or bad faith of the defendant, (2) the defendant's ability to pay, (3) the amount of profits defendant gained as a result of the illegal activity, (4) the injury to the public, (5) the duration of the conspiracy or scheme, (6) whether criminal or treble damages actions have been filed, and (7) whether past violations had occurred.  N.J.S.A. § 56:9-2 to -19, the Kimmelman factors have been applied in other contexts.  Notably, the Kimmelman factors were, just a few months ago, applied by this Court in evaluating sanctions in the context of a civil action concerning violations of the Consumer Fraud Act, N.J.S.A. § 56:8-1 to -227.  See Platkin v. [...], No. A-2717-21, 2023 N.J. Super. Unpub. LEXIS 1734 (Super. Ct. App. Div. Oct. 12, 2023).  See also, Caride v. Young, No. A-5419-17T4, 2019 N.J. Super. Unpub. LEXIS 2195 (Super. Ct. App. Div. Oct. 25, 2019) (applying Kimmelman factors in determining sanctions for violation of the New Jersey Insurance Producer Licensing Act of 2001, N.J.S.A. § 17:22A-26 to - 57 and the New Jersey Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1 to – 34).
[brief] In that case, the subcontractor agreed to indemnify the general contractor for all claims and damages arising out of or resulting from the subcontractor’s performance of its work, “to the extent caused in whole or in part by any negligence act or omission of the Subcontractor or anyone for whose acts he may be liable, regardless of whether it is caused in part by a party indemnified hereunder. ”  Id. at 18.  The Appellate Division ruled that the contract was clear and unambiguous.  *Id.* at 21.  However, it also ruled that the indemnity clause required the subcontractor to indemnify the general contractor only to the extent of the subcontractor’s own negligence.  *Ibid.*  The indemnity clause did not require the subcontractor to indemnify the general contractor for the general contractor’s own negligence.  *Ibid.*  Instead, the contract made clear that indemnification for the subcontractor’s negligence is available even if the general contractor or other indemnitee was also at fault.  *Ibid.*  In contrast, *Sayles v. G & G Hotels, Inc.*, 429 N.J. Super. 266 (App. Div. 2013), provides an example of an indemnity clause that clearly and unequivocally provides for indemnification of the indemnitee’s own negligence.
[brief] THE COURT SHOULD AFFIRM [...]’S DECISION TO DENY THE TRUST AN ADJUDICATORY HEARING REQUEST BECAUSE IT DOES NOT POSSESS A STATUTORY OR CONSTITUTIONAL RIGHT TO A HEARING.  (RESPONDING TO APPELLANT’S POINT II).  [...]’s decision to deny [...] an adjudicatory hearing regarding the Jibsail Technical Modification Permit was correct because [...] does not possess a statutory or constitutional right to an adjudicatory hearing.
[directive] Pursuant to N.J.S.A. 39:3C-28, the following penalties apply to the unlawful use of ATVs, snowmobiles, and dirt bikes on public roads:  1.  A fine between $250 – $500 (first violation); 2.  A fine between $500 – $1,000 (second or subsequent violation).  Law enforcement officers also have the authority to impound ATVs, snowmobiles, and dirt bikes for unlawful use on public roads.  Pursuant to N.J.S.A. 39:3C-35(a), ATVs, snowmobiles, and dirt bikes operated on public roads shall be impounded and subject to the following fees and costs:  1.  Impounded for not less than seven (7) days and shall be released to the registered owner upon proof of registration and insurance and payment of a fee of $500 payable to the municipality, plus reasonable towing and storage costs (first violation); 2.  Impounded for not less than fourteen (14) days and shall be released to the registered owner upon proof of registration and insurance and payment of a fee of $750 payable to the municipality, plus reasonable towing and storage costs (second or subsequent violation).  Additionally, if the owner fails to claim the impounded vehicle, and if the fees addressed above have not been paid by midnight of the 30th day following the date of impoundment, the vehicle 39:3C-35(b).9 may be sold at auction.  N.J.S.A.  Law enforcement may also initiate forfeiture actions pursuant to N.J.S.A. 2C:64-1(a)(5).
[brief] In the beginning of its summation, the prosecutor discussed [...]’s Adderall use and said: “And the demons that created inside the defendant I submit to you is what lead to the tragedy of Thursday, May 3rd, of 2018. ” (9T46-2 to 4).  Later, the State included [...]’s Adderall and marijuana use alongside things such as his use of aliases to visit [...] in the hospital and his homelessness as evidence of him being the kind of disturbed person who would commit the shooting.  (9T63-5 to 16).  At another point, the State referenced the fact that [...]’s use of Adderall appeared to exceed the recommended dose.\(^7\) (9T71-4 to 21).
[brief] Under long-standing principles of agency law, “a principal is considered to have done himself or herself what he or she does by acting through another person. ”  2A C.J.S. Agency § 1.  That is, “a principal’s agent or employee, who acts for or on behalf of the principal, is a ‘party’ to that principal’s contractual and business relations and not a third party thereto. ”  Restatement (Second) of Agency § 186 (1958).