ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Thus, in Pfannenstein v. Surrey, 475 N.J. Super. 83, certif den. 254 N.J. 254 (2023), both Defendants specialized in Internal Medicine, with one of them being Board Certified in Internal Medicine.  Plaintiff’s expert had no credentials in Internal Medicine, but rather was Board Certified in Hematology, which is a subspecialty of Internal Medicine.  The Plaintiff argued that hematology was “subsumed” in Internal Medicine, because a hematologist is “…[a]n internist … who specializes in diseases of the blood, spleen and lymph,” and “treats conditions such as anemia, clotting disorders, sickle cell disease, hemophilia, leukemia and lymphoma. ”  The court rejected this reasoning, holding that the kind for kind requirement was not satisfied when the expert who executes the Affidavit of Merit specialized in a subspecialty of the Defendant’s specialty, but did not specialize in the specialty that the Defendant actually practiced in.  Later, in *Wiggins v. Hackensack Meridian Health*, 478 N.J. Super. 355 (App. Div. 2024), the defendant was a physician who was Board Certified in two separate specialties—Internal Medicine and Gastroenterology.  Moreover, the treatment involved in this case involved both of those specialties.  The plaintiff argued that the Plaintiff’s expert only needed to specialized in one of those specialties.  The Appellate Division held that, under the facts of this case, where the Defendant was actually practicing internal medicine as well as gastroenterology, and the treatment involved both of those specialties, under the statute’s kind-for-kind equivalency requirement, the physician executing the AOM must be qualified in both of the specialties practiced by the defendant physician and which were actually the subject of the treatment.  In the cases discussed above, there was no question that the treatment actually given to the patient fell within the defendant’s specialty.
[brief] [Da94-Da101].  Pursuant to the 1984 Johnson Road Agreement, the Borough explicitly agreed to remit to the Township the sewer connection fee for five (5) of the residential units provided for in the earlier 1983 Johnson Road Agreement which did not include the Township.  Paragraph 2 of the 1984 Johnson Road agreement provides: the Borough, upon signing this agreement, shall pay the sum of $3,000.00 to the [...], which represents the sewer connection fees for five residential lots along Johnson Road previously connected in the [...] Sanitary Sewer System.
[brief] 15 U.S.C. § 717, et seq.  [...]’s jurisdiction and its decisions are distinct from [...]’s review of [...]’s Project.  [...]’s existing right-of-way for its 300 Line passes through [...], [...].  (Aa55).  Previously, [...] determined that two of [...]’s prior 300 Line projects in the Highlands Region preservation area were exempt from the Highlands Act through Exemption #1A (Aa224; Aa290).
[brief] Investigation into Defendant [...]’s Conduct is Derailed By Defendant [...] Escalating An Issue That Leads to Plaintiff’s Termination.  [...] reported the June 2020 incident to [...], the Chief People Officer, and Defendant [...], Defendant [...]’s Director of Labor Relations, complaining about Defendant [...]’s actions (Pa660).  Plaintiff also reported the incident to [...].  (Pa246).  Defendant [...] was assigned to investigate the matter.  (Pa90, Pa101).  Defendant [...] told [...] that she would need to get Defendant [...]’s statement, speak to other witnesses look at the facts involved, and then alert Defendant [...]’s boss who would make a decision as to discipline or coaching for Defendant [...].  (Pa102).  Defendant [...] informed Defendant [...] that there was going to be an investigation of her conduct.  (Pa668).  Defendant [...] responded by saying: “what now. ”  (Pa102).  On September 1, 2020, Defendant [...] sent an email to Defendant [...], initiating an investigation into Plaintiff, [...], and [...], for unauthorized receipt of what Defendants refer to as “charge pay. ”  (Pa662).  Charge pay is an additional dollar per hour on top of a given hourly rate for a given shift, which was payable to the “charge nurse” on a particular nursing unit.  (Pa44).  Charge pay could be given to non-nurse employees with approval from Defendant’s upper management.  (Pa44).  Verbal approval was sufficient to enter charge pay.  (Pa662).  In the Spring of 2020, at the height of the pandemic, Defendant [...] offered certain staff members COVID-19 incentive pay.  (Pa43).  The staffing coordinators, however, were deemed to be ineligible for this incentive pay because they were not “direct patient care staff. ” (Pa43).  [...] requested that the staffing coordinators receive the COVID incentives, but it was denied by management.  (Pa362.)  Defendant [...] told Plaintiff that the staffing coordinators could receive charge pay as long as it did not lead to negative consequences for her.  (Pa662).  Following Defendant [...]’s approval, Plaintiff, [...], and [...] received charge pay for certain shifts during the Summer of 2020.  (Pa46 – Pa47).  In initiating the investigation into charge pay, Defendant [...] essentially derailed any investigation into her harassment.  Defendant [...] was never interviewed regarding the most recent complaint about her for harassment related to the June 2020 incident with [...].
[brief] In *Liberty Mutual Insurance Company v. Land*, 186 N.J. 163 (2006), the New Jersey Supreme Court examined the preponderance standard as follows:  Under the preponderance standard, “a litigant must establish that a desired inference is more probable than not.  If the evidence is in equipoise, the burden has not been met. ”  [...], Current N.J. Rules of Evidence, comment 5a on N.J.R.E. 101(b)(1) (2005); see also McCormick on Evidence, supra, § 339 (“The most acceptable meaning to be given to the expression, proof by a preponderance, seems to be proof which leads the jury to find that the existence of the contested fact is more probable than its nonexistence. ”).  Application of the preponderance standard reflects a societal judgment that both parties should “share the risk of error in roughly equal fashion. ”  *Addington v. Texas*, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323, 329 (1979).  *Land* at 169.  (Emphasis added).  Webster's dictionary defines equipoise as "a state of equilibrium" or "counterbalance."  https://www.merriam-webster.com/dictionary/equipoise.  In other words, the New Jersey Supreme Court has provided that, even where a fact is equally as likely as not to have occurred, a party has not met its burden of proof.
[brief] The rule requires the parties to certify "whether any other action … is contemplated; and, if so, the certification shall identify such actions and all parties thereto."  R. 4:5-1(b)(2).  When the Trial Court examined the potential for another action emanating from the underlying facts, the Court determined that a malpractice claim against Defendants was contemplated by the Plaintiff well before the termination of the Lease Litigation, as Plaintiff believed that Defendant [...]'s alleged malpractice was a substantial contributing factor for Plaintiff’s losses.  R. 4:5-1(b)(2); (T14:10-15).  There is ample evidence in the record for the Trial Court to have found that Plaintiff's representatives admitted that the decision to pursue a legal malpractice action against the Defendants was made during the Lease Litigation with the landlords.  (T24:14-18)(Pa0844,T203:1-5;T205:15-21).  In fact, as part of a settlement in the Lease Litigation, Plaintiff secured a provision in the settlement agreement, that the landlord would cooperate in a subsequent malpractice action against the Defendants.  (T24:19-23)(Pa08745, T206:24,T207:12)(Pa0260,T196:26)(Pa0255, T195:18-T196:6).  Notably, the provision securing cooperation used language which directly connected the claim for malpractice against Defendants with the transaction which is the subject of the Lease Litigation.
[directive] 3.1  Recruitment and Selection  3.1.1  Selecting and appointing the highest quality individuals to serve as law enforcement officers must be a priority of every law enforcement agency.  During the selection process, written tests, psychological tests, background investigations and individual interviews should be completed by each candidate in an attempt to identify those who would be best suited for law enforcement employment.  Background investigations must include a review of the prior internal affairs files of any candidate.  3.1.2  New Jersey law enforcement agencies are required by this policy to disclose the entire internal affairs file of a candidate to prospective law enforcement employers.  See Section 9 (“Internal Affairs Records”).  Candidates with out-of-state law enforcement experience must sign waivers of confidentiality regarding their internal affairs files so that they may be reviewed by the prospective employer, where legally permissible.  These procedures may also be used for promotional testing, and assignment to especially sensitive responsibilities or those that pose the greatest opportunities for abuse or wrongdoing.  Each agency should establish policies and procedures for recruitment, oral and written examinations, selection and the promotional process.
[brief] First, his opening statement, in its entirety, consisted of: “*That man* is not this man.  That man is white, possibly Hispanic, definitely not [B]lack.  *That man* is not this man.  You don’t need an expert to tell you that. ” (4T58-6 to 9) (emphases added).  And, in closing, defense counsel added more about the investigation and the reliability of fingerprint evidence, but his view that the man in the two videos were the same remained:  That man is not this man.  You don’t need an expert to tell you that.  The prosecutor wants you to disregard common sense and your own two eyes.  As you saw on the video, that man is white, possibly Hispanic, definitely not [B]lack, definitely not [defendant].  The police saw that too.  They reviewed the video and they developed a suspect.  That suspect was white, possibly Hispanic.  [(7T5-14 to 21) (emphases added). ]
[brief] At defendant's sentencing on June 11, 2018, the judge denied the State's motion for a discretionary extended term.  The judge then sentenced defendant on count one to a term of ten years, subject to an eighty-five percent period of parole ineligibility pursuant to NERA.  The theft conviction (count nine) merged into count one.  On June 13, 2018, the judge issued a judgment of conviction.  This appeal followed.
[brief] [Id. at 177 (quoting Coventry v. United States Steel Corp., 856 F.2d 514, 523 (3d Cir. 1988)).]  The goal is to ensure that the parties know that in electing arbitration, they are waiving their time-honored right to sue.  Marchak, 134 N.J. at 282.  Applying these factors here, the Plaintiffs could not knowingly and voluntarily waive their right to bring claims in the New Jersey Superior Court, and [...]’s suggestion that Plaintiffs were “ignorant” is belied by their own admissions and their former employee’s, [...].
[brief] ”  Similarly, [...] was convicted of second-degree burglary, and it was an element of burglary that he had the purpose to commit an offense, here robbery and homicide with a deadly weapon.  Thus, the burglary was not a “separate act” from the robbery and homicide, nor did it have a “predominantly independent” objective; rather, the burglary, robbery, and homicide all involved a single act of violence against a single victim during a single period.  Similarly, [...] was convicted of fourth-degree possession of a serrated knife; whoever committed this crime used this deadly weapon in the homicide, robbery, and burglary.  Thus, the possession was not “predominantly independent” of the homicide, robbery, and burglary, nor were there multiple victims or separate acts of violence.
[brief] Appellants [...] and [...]  (“Appellants”) filed this action seeking to enjoin the potential termination of their Wholesaler Agreement with defendant [...]  (“[...]”).  In so doing, they seek to enforce the Wholesaler Agreement selectively and to avoid two of its key provisions – the arbitration and choice-of-law clauses.  The Wholesaler Agreement specifically requires that Plaintiffs arbitrate any dispute relating to or arising from the Wholesaler Agreement and states that New York law applies.  The trial court correctly enforced those provisions and dismissed the case with prejudice.  This Court should affirm.
[brief] Defendant [...] disputes Plaintiffs’ contention that the validity of an arbitration agreement is a question of law subject to de novo review.  (Pb11)  Instead, [...] mistakenly asserts that Plaintiffs appeal from an interlocutory motion to vacate that “should be reviewed under an abuse of discretion standard. ”  (Db8)  [...] is uncertain “whether Plaintiffs are trying to appeal the June [20, 2024] Order or the January [4, 2024] Court Order. ”  (Db6)  Plaintiffs’ Notice of Appeal answers [...]’s doubts.  (Pa263)  All issues proposed in this Notice reference the validity and enforceability of the binding arbitration and waiver provisions in the Contract.  None of the proposed issues in this Notice reference the January 4, 2024 Order (that expired by its own terms four months later on May 4, 2024.  (Dr35).  Plaintiffs’ motion filed on May 10, 2024 (decided by the Court Order on June 20, 2024) contained 5 separate requests for relief.  (Pa165)  One request was for vacation of the January 4, 2024 Order; however, on May 8, 2024 [...] filed a notice of motion to further stay the litigation pending [...] arbitration.  This relief was denied by Order of the trial court dated May 24, 2024 wherein the court ruled that the parties could have decided to extend the January 4, 2024 Order but did not do so.  (Dr44)  Thus, the January 4, 2024 Order providing for binding arbitration outside the court system was moot by the time of the June 20, 2024 Order that is the subject of this appeal.  Defendant’s request to vacate the January 4, 2024 Order was also moot and is not an issue in this appeal.
[brief] R.4:46-2.  The New Jersey state-court standard of summary judgments is “in line” with the federal standard under Rule 56 of the Federal Rules of Civil Procedure.  Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520 (1995).  Summary judgment is only proper if, viewing all facts of record in a light most favorable to the non-moving party, no genuine issue of material fact remains for adjudication.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986); Nebraska v. Wyoming, 507 U.S. 584, 591 (1993).  Finally, the moving party bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial.  See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).  The original complaint was filed March 18, 2019; and issue was joined in April 2019 when three separate answers were filed on behalf of defendants a few days apart.
[brief] ”) (internal citation omitted).  For the fourth factor, video S-38 does not afford the viewer any ability to discern facial features, skin complexion, or the details of clothing.  In such circumstances, where the “video recording is of such low quality that no witness – even a person very familiar with the defendant – could identify the individual who appears in it, lay opinion testimony will not assist the jury, and may be highly prejudicial. ”  *Id.* at 471 (emphasis added)  The identification was thus not only impermissible, but highly prejudicial.  Accordingly, [...] was not permitted to identify the defendant on video under *Sanchez.*  She lacked the knowledge necessary to render her identification helpful, particularly where [...]’s ex-girlfriend and mother were available to make identifications.  And the video is so blurry that no one – regardless of their familiarity – could identify the person on screen.  Because identification was the paramount issue at trial, and because the State’s case on identification was far from overwhelming, the admission of the lay identification amounted to plain error, requiring reversal.  --- 4  [...] was also prohibited from identifying the defendant under *Watson*, where the Court held that identification of a defendant on video is improper if identity is disputed.  *Watson*, 2023 WL 4918557, at *24.  POINT II
[brief] (Aa45-64; Da56-58 (SMF 4)).  In his August 31, 2022 Opinion accompanying his Order dismissing plaintiff’s federal claims, [...] stated that “Insofar as Plaintiff’s claims are analogous to the tort of malicious prosecution, the accrual date will be the date the violation of probation charge “ended without a conviction” and hence the plaintiff’s cause of action “accrued on March 6, 2018, the date the New Jersey Supreme Court reversed Plaintiff’s violation of probation charge. ”  (Aa55; Da68 (SMF 5)).  On October 17, 2022, the remaining Counts of plaintiff’s Complaint were remanded to the Superior Court of New Jersey, Law Division, Somerset County under Docket No: [...].
[brief] As indicated in the Board’s Brief in Support of Cross-Appeal, the [...] advised the Respondents of the change in the [...] position concerning the Route 33 Signal in February 2019; one month prior to the hearing on the 2018 Amended Application in March 2019.  Despite this changed position by the [...], the Respondents proceeded with the hearing on the 2018 Amended Application; proffered the Route 33 Signal; and made no mention of the change in the [...]’s position concerning the Route 33 Signal to the Board or its professionals.  It is noted that while a Township representative (the Township Engineer) was present at the 2015 [...] meeting and the 2021 [...] meeting, he was not present at the 2019 [...] meeting.  Ba17-Ba30.  Therefore, only the Respondents were aware of the change in the [...] position concerning the Route 33 Signal in 2019.  Regardless, the Respondents were clearly aware of the change prior to the 2019 hearing at which time they proposed the Route 33 Signal as a voluntary condition of approval; and cannot now assert the reiteration of the position of the [...] regarding the Route 33 Signal at the 2021 hearing is a changed circumstance.
[brief] The court noted that [...]’s opinion regarding the dangerous condition that caused the accident changed throughout the litigation and was unreliable.  (See Pa2165).  [...] testified that he did not inspect the roadway and based his opinion on: (1) a video the Plaintiff recorded of the general area of the accident; (2) a memo prepared by project consultant [...] that mistakenly identified “settlement” on the southbound side of the Garden State Parkway; (3) the deposition testimony of Plaintiff [...]; (4) the [...] bridge inspection report prepared for [...]; and (5) a photograph in that bridge report showing the allegedly defective bridge joint.
[brief] [...] testified that shortly after his arrest, [...] called his mother and asked them to get in contact with [...], who was previously unknown to [...]’s parents.  (4T211:4-8).  [...] went to [...]’s house and described her behavior as very hyper and crazy.  (4T213:11; 4T214:24).  He noted the strong smell of marijuana and observed a white powder on the table and [...] rubbing her nose.  (4T213:13-14; 4T215:8-13).  iii.
[brief] Some courts in New Jersey have also noted that, though a civil cause of action for harassment has not been recognized, “[i]t suffices to recognize…that a civil claim of harassment would be subject to the same analysis given to intentional infliction of emotional distress claim… which requires evidence of physical illness or serious psychological sequelae capable of being diagnosed by trained professionals. ”  *Griffin v. Royle*, No. 133-11, 2013 WL 5337527, at 1 (App. Div. Sept. 25, 2013).  Thus, even if the Court were to construe Plaintiff’s harassment claims as a claim for intentional infliction of emotional distress, it would fail because there is no evidence that Plaintiff’s experienced any physical or psychological illness as a result of Defendant’s actions.
[brief] RESENTENCING IS REQUIRED BECAUSE THE COURT FAILED TO ADDRESS ANY MITIGATING FACTORS RAISED BY DEFENSE COUNSEL, AND IMPROPERLY FOUND AGGRAVATING FACTORS THREE, SIX, AND NINE BASED ON [...]’S LIMITED CRIMINAL HISTORY AND THE ACTIONS OF HIS CODEFENDANTS.  (9T:5-10 to 6-24, 14-11 to 15-15)
[brief] (28T 117-21 to 119-23)  [...] claimed that defendant said [...] was there to get a laptop of his, which defendant was going to exchange for jewelry that [...] had stolen from [...].  (28T 120-10 to 21)  Defendant allegedly told [...] that he had no intent to actually give back the laptop, and that his “defense” was that [...] brought a gun that they then struggled over, but that the gun was really defendant’s.  (28T 120-1 to 121-14)  [...] claimed that defendant said that [...] was dropped off at the house by “a girl and a guy” who then went to a hotel, and that defendant was going to drive [...] home once they exchanged the items.  (28T 121-21 to 122-3)  Defendant also allegedly told [...] that he planned to say that [...] was a “prowler” who had broken a lock on a gate to the carriage house, but that the gate was already broken and “anybody could walk through there. ”  (28T 123-1 to 13)  [...] testified further that defendant told him that on January 9, [...] went into the carriage house and spoke with defendant, but then, when he did not get what he wanted, [...] went outside “and started banging on windows and doors,” whereupon defendant “[w]ent outside and he shot” [...], who was unarmed, “in the leg and in the chest” with a handgun that had “an extended clip” that held, according to [...], “I believe 17 shots. ”  (28T 124-1 to 23)  [...] claimed defendant told him that the first shot was to the leg, and the second to the chest when [...] said, “This ain’t going to be over. ”  (28T 125-16 to 20)  Then defendant allegedly told [...] that he left the gun “there beside” [...].  (28T 129-11 to 12)  [...] also testified that defendant told him conflicting stories about whether neither, either, or both of his parents were home at the time, and even said that he told [...] to arrive at a time when his mother would be at the grocery store.  (28T 130-17 to 132-16)
[brief] 1.  Breach of contract at Section 14, Force Majeure (Argued at Pa418)  Section 14, Force Majeure, of the contract states:  Neither party hereto will be liable or responsible to the other for any loss or damage or for any delays or failure to perform due to causes beyond its reasonable control including, but not limited to… epidemics,…a U.S. Department of State Travel Warning or any other circumstances of like character (force majeure occurrence).  The COVID-19-related school closures qualifies as force majeure occurrence because it is an “epidemic”, declared state of emergency, and resulted in a “travel warning” and stay at home order.  As a force majeure occurrence, under Section 14 of the contract, the COVID-19 epidemic that forced school closures meant that [...] is not “liable or responsible to” [...] for “any loss or damage or for any delays or failure to perform”.  Despite the force majeure occurrence, [...] sought to hold [...] liable or responsible for [...]’s financial burdens and loss of income/profit when it solicited payment for April – July 6, 2020 invoices despite no services being rendered.  These solicitations thus constituted a breach of the Section 14, Force Majeure, by seeking to hold [...] financially responsible to [...] despite the COVID-19 epidemic.  [...]’s refusal to return the $1,301,300 obtained from the April / May / June 2020 constitutes a breach of Section 14, Force Majeure, because it held [...] liable or responsible to [...] to pay them for no services rendered due to the force majeure occurrence of the COVID-19 epidemic.  [...]’s breach of contract underscores why the parties were required to renegotiate a contract under N.J.S.A. 18A:7F-9(e)(3) as a prerequisite for payment.  The court’s dismissal of the Complaint without requiring a renegotiated contract to allow payment rewarded [...] for its breach, and punished [...] for attempting to comply with the statute.