ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (Pa9).  The trial court also concluded that the dispute resolution provision was neither substantively nor procedurally unconscionable.\footnote{Plaintiff’s brief cites T33:12-13 to suggest that the trial court had troubling concerns about the parties’ Agreement and stated “clearly there is [a problem] here. ”  The trial court never said this, nor does the transcript reflect such concerns expressed by the trial court.  The lines Plaintiff cites relate to a hypothetical scenario which does not relate to the merits of the arbitration clause.}  As to the former, the trial court found that the Supreme Court’s decision in \textit{Delta Funding Corp. v. Harris}, 189 N.J. 28, 48 (2006) was analogous, and, under that precedent, the dispute resolution provision was enforceable.  (Da10-11).  It also rejected Plaintiff’s claim that the dispute resolution provision was procedurally unconscionable.  Specifically, citing \textit{Printing Mart-Morristown v. Sharp Elecs. Corp.}, 116 N.J. 739, 746 (1989) the Court observed that “plaintiff has [failed to] allege any facts to support a reasonable inference that the contract or arbitration clause was ‘procedurally unconscionable. ’” (Pa12).  It also noted that “Plaintiff’s brief makes no argument regarding the procedural fairness of the contract (i.e. that plaintiff was given the contract on a ‘take it or leave it’ basis, that he had no opportunity to review the contract or arbitration clause before signing, etc.).”  (Id.)  Finally, it found that “Plaintiff’s complaint, similarly, makes no allegation that would support a finding of procedural unconscionability. ”  (Id.)  It thus rejected Plaintiff’s request for limited discovery on a finding that the contract was procedurally unconscionable.  (Id.)  Finally, the trial court rejected Plaintiff’s public policy argument.  In this regard, the trial court acknowledged that the dispute resolution provision permitted [...] “to file a claim in a court of competent jurisdiction” to collect monies.  (Pa13).  However, the trial court determined that the “one-sided aspect of the clause [was] neither harsh nor unfair,” because, if [...] filed a claim to collect monies “plaintiff would be permitted to file any third-party counter claims and defenses in that forum. ”  (Id.)  Further, the trial court observed that “Plaintiff is still entitled to bring such claims in a forum our legal system overwhelmingly supports.  Thus, the Court does not view the ‘one-sided’ nature of this clause to be ‘harsh or unfair. ’” (Pa14).  IV.
[brief] [...] recognized that [...] never moved into a Portuguese nursing home.  [...] offered the opinion, without proofs, that [...]’s decision to move in with [...], rather than move to his birthplace, was “abrupt and out of character. ”  In addition, [...] made the argument that because [...] became older and weaker, he relied on [...] for his care and assistance.  [...] offered the opinion that there were suspicious circumstances under Haynes v. First National, 87 N.J. 163 (1981).  [...] argued that [...] was hostile towards [...] and [...], and that she was an influencer.  However, [...] missed the point that [...] did not take [...] to the Union lawyers to draft the Will.  [...] was not present when the drafting took place.  [...] did not cite one case to support his opinion on that issue.  In fact, the facts in this case are lacking to establish suspicious circumstances and undue influence when one takes into consideration the testimony of the Union lawyers.
[brief] B.  The Trial Court properly excluded [...]’s not-to-scale crash diagram....................................................................................................................27  C.  The Trial Court properly admitted the police dash cam video with audio.................................................................................................................................33  i.  The MVR dash cam video with audio is relevant evidence concerning her pain and suffering damages.................................................. 34  ii.  The dash-cam MVR audio-video recording is the best evidence of Plaintiff’s pain and suffering...........................................35  iii.  Rule 403 did not bar the admission of the dash-cam MVR audio-video recording..........................................................  38  Point III
[brief] reconstruction, [and] repair”, but this would make no sense and thus would be an absurd interpretation.  Instead, basic rules of statutory interpretation dictate that the word “routine” modifies “maintenance and operations”, which is then followed by a comma and then a list of other exempted activities, including “rehabilitation, preservation, reconstruction, repair. ”  The Legislature thereafter included the word “or” to mean a different basis for the exemption.  As this Court has stated, “[w]hen items in a list are joined by a comma or semicolon, with an ‘or’ preceding the last item, the items are disjunctive” and the clauses “are distinct and separate from each other. ” State v. Smith, 262 N.J. Super. 487, 506 (App. Div. 1993).  Therefore, “routine maintenance and operations” is separate and apart from an “upgrade”, and the upgrade of utility lines, the upgrade of rights-of-way, and the upgrades of systems are all exempt activities.
[brief] However, the facts of Barett and Boritz are distinguishable from the instant matter.  In Barrett v New Jersey Mfrs. Ins., 295 N.J. Super. 613 (App. Div. 1996), the plaintiff was a passenger in a vehicle owned by her friend.  Plaintiff, also, was the named insured on her own policy of insurance, with underinsured motorist benefits of $100,000.00; and the vehicle in which she was a passenger had underinsured motorists benefits of $500,000.00.  Defendant, [...], had authorized plaintiff to settle her lawsuit in accordance with Longworth v VanHouten, 223 N.J. Super. 174 (App. Div. 1988); and, subsequently, confirmed the limits available, prior to the plaintiff providing a Release to the tortfeasor.
[brief] Appellant’s brief never grapples with this controlling text.  The purpose of the amendment is reinforced by *N.J.S.A.* 19:20-3, which requires the Chairman and the Clerk to certify that the canvass is “true, full, and correct. ”  *N.J.S.A.* 19:20-3.  Any board that knowingly leaves a transposed or omitted figure uncorrected would violate this statutory duty.  Reading *N.J.S.A.* 19:19-6 and 19:20-3  *in pari materia*, the Legislature plainly intended accuracy to prevail over inertia.  *State v. Governor* noted that no statute then permitted a board to alter its determination after adjournment.  The Legislature responded in 1938 by giving canvassers explicit authority to reconvene “at any time” to correct errors—authority the pre-Civil-War court said was lacking.
[directive] It shall be the responsibility of every law enforcement agency to review and where necessary modify its rules, regulations and standard operating procedures so as to reflect and enforce the provisions of this Executive Directive.  It shall also be the responsibility of every law enforcement agency to ensure that all officers are familiar and comply with such rules, regulations and standard operating procedures as amended.  5.  All operations conducted pursuant to this Executive Directive by any state law enforcement agency shall be subject to the approval of the Attorney General or his designee.  6.  All operations conducted pursuant to this Executive Directive by any county or local law enforcement agency shall be subject to the approval of the county prosecutor.  Part IV - Liaisons
[brief] [...] was wronged, and there are various provisions, and the testimony in the record will speak for itself.  He is entitled to attorney’s fees.  I mean, he shouldn’t have had to bring this case, but he had to bring it.  And I don’t know how a case like this could have been brought really any differently.  So, again, the counsel fees, costs, expenses, are [$1,181,874.51], and that includes [the attorneys], and the expert, and all the other fees.
[brief] Exhibit K to Certification, Affidavit of [...] dated October 24, 2022, filed October 25, 2022 499a Attachment 1 to Exhibit K, Curriculum Vitae, filed October 25, 2022 521a Attachment 2 to Exhibit K, Deposition of [...] filed October 25, 2022 (omitted here – see Pa207) -- Attachment 3 to Exhibit K, Crash Data Retrieval Report, filed October 25, 2022 (omitted here – see Pa475) -- Exhibit L to Certification, May 18, 2022, Report of [...], filed October 25, 2022 535a Exhibit M to Certification, Excerpts from the Deposition of [...], filed October 25, 2022 (omitted here – see Pa207) -- Exhibit N to Certification, Excerpts from the Deposition of [...], filed October 25, 2022 (omitted here – see Pa178) -- (Volume 5 of 5 – Pa545 to Pa738) Exhibit O to Certification, Request for Autopsy Report Acknowledgment, filed October 25, 2022 545a Exhibit O to Certification, Letter Request for Autopsy Report, filed October 25, 2022 546a Exhibit O to Certification, Autopsy Report, filed October 25, 2022 (omitted here – see Ca1) -- Exhibit O to Certification, Toxicology Report, filed October 25, 2022 (omitted here – see Ca7) -- Exhibit O to Certification, M.E. Investigative Data Sheet, filed October 25, 2022 (omitted here – see Ca8) -- Exhibit O to Certification, Report of Investigation by M.E., filed October 25, 2022 (omitted here – see Ca10) -- Exhibit O to Certification, M.E. Evidence/Property Record, filed October 25, 2022 (omitted here – see Ca12) -- Exhibit O to Certification, Release of Remains Authorization Form, filed October 25, 2022 (omitted here – see Ca13) -- Exhibit O to Certification, Morgue Check-In/Out Form, filed October 25, 2022 (omitted here – see Ca15) -- Exhibit P to Certification, June 3, 2022, Report of [...], filed October 25, 2022 563a Certification of [...], filed October 31, 2022 567a Exhibit 1 to Certification, August 1, 2022, Report of [...], filed October 31, 2022 570a Exhibit 2 to Certification, [...]’s Notice of Motion to Dismiss dated December 18, 2020, filed October 31, 2022 611a Exhibit 2 to Certification, [...]’s Memorandum of Law dated December 18, 2020, filed October 31, 2022 615a Exhibit 2 to Certification, [...]’s Certification of Counsel dated December 18, 2020, filed October 31, 2022 624a Exhibit A to Exhibit 2 to Certification, Complaint, filed October 31, 2022 (omitted here – see Pa5) -- Exhibit B to Exhibit 2 to Certification, Affidavit of [...], filed October 31, 2022 628a Exhibit C to Exhibit 2 to Certification, [...] Interrogatory Responses, filed October 31, 2022 633a Exhibit 3 to Certification, [...]’s Reply in support of Motion to Dismiss, dated January 19, 2021 648a Exhibit 4 to Certification, January 21, 2021, Order granting [...]’s Motion to Dismiss, filed October 31, 2022 Exhibit 5 to Certification, Plaintiff’s Memorandum of Law in opposition to Motion to Dismiss, filed October 31, 2022 Exhibit 5 to Certification, Certification of Counsel in opposition to Motion to Dismiss, filed October 31, 2022 [...]’s Reply to Response to Statement of Undisputed Facts and Counterstatement of Undisputed Facts, filed October 31, 2022
[brief] The Trial Court Correctly Denied Appellant’s Motion for Reconsideration**  Pursuant to R. 4:49-2, a motion for reconsideration shall "state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred."  R. 4:49-2.  Indeed, a motion for reconsideration is only appropriate where either "the Court has expressed its decision based upon a palpably incorrect or irrational basis, or it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence."  Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (citing D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).  As reflected by the argument transcripts (T), Appellant's counsel was provided with every opportunity to answer the Trial Court's questions and to argue to the Court why summary judgment should not be granted but failed to address either the law or specific points that supported [...]’s Motion.  When she filed her Motion for Reconsideration, the Trial Court again afforded Appellant the opportunity to justify her position.  When Appellant sought the same arguments, the Trial Court correctly rejected the same and denied her Motion.  II.
[brief] In any event, as the Trial Court correctly held (besides the overarching fact that the use of a mailing vendor is simply not “abusive” conduct) Plaintiff’s theory of recovery suffers from numerous legal deficiencies.  i.  Transmission Of Data To A Mailing Vendor Does Not Constitute A Communication  Under the FDCPA  First, the Trial Court correctly held that the transmission of Plaintiff’s data to a mailing vendor for the sole purpose of creating and printing a letter that was then sent only to Plaintiff, does not constitute a “communication” under the FDCPA because “to consider such transmission to have been a regulated communication is to apply what the United State Supreme Court has called ‘uncritical literalism’ in interpreting and applying the statute and thereby torture the meaning of the term, as used in the statue, beyond recognition.
[brief] \(^8\)  At the same time, the Department has opposed the introduction of evidence contrary to its position on the basis that it is not properly in the record.  This contradiction only serves to magnify the untenable procedural posture that interested parties, such as [...], face when challenging an administrative agency’s action on the grounds that the agency engaged in *de facto* rulemaking.  Indeed, R. 2:5-4 controls what comprises the record on appeal.
[directive] Each party shall be required to notify [...] in advance of the Centralized First Appearance (CFA)/Centralized Judicial Processing (CJP) session or detention hearing if they intend to request HDLE, Strict HD or HDEM.  Anytime any of these conditions is ordered, the attorneys shall fill out and sign a criteria form (see attached) based on the criteria described above.  [...] must review this form and raise any concerns with the judge prior to the court session.
[brief] [...] waived its policy limitation defense by failing to raise it as an affirmative defense.  (Raised Below: Pa5–Pa6).  The policy’s alleged four-year limitation period would have ended on January 10, 2022.  [...] could have invoked its limitation defense as soon as May 2, 2022, when [...] first notified [...] of her UIM claim.  [...] also failed to raise its four-year limitation defense in its Answer, filed on July 2, 2023.  This omission should have resulted in waiver of the affirmative defense.  Rule 4:5-4 requires that “[a] responsive pleading shall set forth specifically and separately a statement of facts constituting an avoidance or affirmative defense including . . . statute of limitations. ”  “The rule specifically prohibits general denials which had been the subject of considerable abuse[.]  Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 4:5-4 (2015).  “[T]he pleading of affirmative defenses must be, not merely by legal conclusion, but by a statement of facts. ”  Henebema v. Raddi, 452 N.J. Super. 438, 453 (App. Div. 2017).  “[A]n affirmative defense that is not pleaded or otherwise timely raised is deemed to have been waived. ”  Pressler & Verniero, Current N.J. Court Rules, cmt. 1.2.1 on R. 4:5-4 (2022).  For example, “the defense that a claim is time-barred must be raised by way of an affirmative defense, either in a pleading or by a timely motion, or it is waived.
[brief] However, so long as the testimony does not sit at the heart of the State’s case, such an error does not amount to plain error warranting reversal if the State presents admissible testimony and evidence which permit the jury to draw its own conclusions about the defendant’s guilt.  Id. at 446-47.  For example, in *Trinidad*, the defendant was a former police officer being tried for misconduct and other offenses “following an automobile stop gone awry.
[brief] Defendant argued that the court improperly relied and weighted hearsay testimony regarding the CI’s tip relayed to [...] by [...]. \(^4\) --- \(^3\)  Since the inventory search is not raised on appeal, it is not detailed in the State’s summary of facts.  \(^4\)  Defendant further argued that the State committed a discovery violation and violated defendant’s right to fundamental fairness by failing to turn over [...]’s supplemental report.  The court rejected this argument given the State’s multiple attempts to retrieve the report prior to the hearing and because the report  The court reiterated its reasons for finding [...] credible, including his testimony regarding the CI’s tip, as well as the CI’s history of reliability known to [...] at the time of the hearing.  (2T16-13 to 17-19).  The court re-emphasized the detail in the tip that matched [...]’s observations, including the model and color vehicle at a particular location bearing a license plate beginning with “L85.
[directive] Moreover, it has put the role of mental health in public safety at the fore through the ARRIVE Together (“Alternative Responses to Reduce Instances of Violence & Escalation”) initiative, which pairs a New Jersey State Trooper or municipal law enforcement officer, trained in crisis intervention and de-escalation techniques, with a mental health professional, to respond to 911 calls involving individuals experiencing a mental health crisis.  We need to build on this foundation and create the infrastructure for a more durable and restorative approach.  Through this Directive, the [...] will create the [...] (the Division, [...]).
[brief] The Supreme Court in *Burlington Northern* held that the question must be whether an employer’s retaliatory action would “dissuaded a reasonable worker from making or supporting a charge of discrimination” *id.* at 68 and soundly rejected the proposition that that the anti-retaliation provision of Title VII is limited to retaliatory actions that “affect the terms and conditions of employment. ”  *Id.* at 64.  The Supreme Court observed that the “significance of any given act of retaliation will often depend upon the particular circumstances.  Context matters. ”  *Id.* at 69.  The Supreme Court thus established the legal standard that a plaintiff claiming retaliation under Title VII need show only that a reasonable employee would have found the alleged retaliatory actions by an employer “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination. ”  *Id.* at 68 (quotation omitted).  Accordingly, an employer’s retaliation actionable under the anti-retaliation provisions of Title VII encompasses a broader range of actions than an “adverse action” subject to challenge under the non-discrimination provisions.
[brief] **Cases** - **Amatuzzo v. Kozmiuk**, 305 N.J. Super. 469 (App. Div. 1997)  ...........................................  5 - **Brundage v. Estate of Carambio**, 195 N.J. 575 (2008)  ......................................................  3, 4 - **Burnett v. Cty. Of Gloucester**, 415 N.J. Super. 506 (App. Div. 2010)  ......................... 5 - **Capparelli v. Lopatin**, 459 N.J. Super. 584 (App. Div. 2019)  ........................................  4 - **City of Jerey City v. Roosevelt Stadium Marina, Inc.**, 210 N.J. Super. 315 (App. Div. 1986)  .................................................................................................................. 5 - **Cumberland Farms, Inc. v. New Jersey Dep't of Env't Prot.**, 447 N.J. Super. 423 (App. Div. 2016)  ..................................................................................................................  3 - **Docteroff v. Barra Corp.**, 282 N.J. Super. 230 (App. Div. 1995); ............................... 8 - **Dzwonar v. McDevitt**, 177 N.J. 451 (2003)
[brief] A.  The Prosecutor Defendants are entitled to absolute prosecutorial immunity from liability for [...]’s NJCRA constitutional claims.  This court should hold that the prosecutors’ entitlement to common law absolute prosecutorial immunity to [...]’s federal constitutional claims under Section 1983 applies with equal force to [...]’s state constitutional claims under NJCRA.  This court has held that “[g]iven their similarity, our courts apply § 1983 immunity doctrines to claims arising under the Civil Rights Act. ”  Brown, 442 N.J. Super. at 425.  In Imbler v. Pachtman, 424 U.S. 409 (1976), the United States Supreme Court held that absolute prosecutorial immunity applies to activities “intimately associated with the judicial phase of the criminal process. ”  See id. at 430; see also Kalina v. Fletcher, 522 U.S. 118, 125 (1997) (holding absolute prosecutorial immunity applies where a prosecutor is “performing functions that require the exercise of prosecutorial discretion”).  Here, each of the Prosecutor Defendants’ alleged actions falls squarely into the category of activities “intimately associated with the judicial phase of the criminal process. ”  See Imbler, 424 U.S. at 430.  For example, [...]’s alleged decision to initiate the VOP prosecution against [...], (Pa9), has been recognized by the Third Circuit as a “core” prosecutorial discretionary duty.  See Kulwicki v. Dawson, 969 F.2d 1454, 1463-64 (3d Cir. 1992) (“The decision to initiate a prosecution is at the core of a prosecutor's judicial role.  A prosecutor is absolutely immune when making this decision, even where he acts without a good faith belief that any wrongdoing has occurred. ”) (emphasis added).  Similarly, as a matter of law, assistant prosecutors [...] and [...] would be entitled to absolute prosecutorial immunity for [...]’s allegation that the two “falsely, illegally, maliciously and unconstitutionally prosecut[ed] Plaintiff for a crime he did not commit.
[brief] *Id.*  Similarly, in *LVNV Funding LLC v.  Maialetti*, although the consumer was found not to have “a strong showing for excusable neglect under *Rule 4:50-1(a)*[,]” this Court held that the consumer’s claims of identity theft “are sufficiently exceptional to entitle defendant to relief under Rule 4:50-1(f).  Further, enforcement of the order or judgment would be unjust as a result of the trial court applying a higher standard than required for the meritorious defense prong, coupled with the court making improper credibility determinations on the motion record. ”  No. A-2809-20, 2022 N.J. Super.  Here, unlike *DeAngelo* and *Maialetti*, [...] has excusable neglect—he could not respond to the collection Complaint since he never received it.
[brief] A review of the brief of Plaintiff/Respondent [...] (“Plaintiff”) reveals the following:  Plaintiff did not oppose or even respond to Point I of the opening brief of Defendant/Appellant [...] (“Defendant”).  Point I of Defendant’s opening brief argued, among other things, that 1) Plaintiff’s fee application did not meet the requirements for the award of legal fees pursuant to R. 4:42-9(a)(2) because the equities of the case do not support fee shifting under the rule; 2) The litigation did not serve as a benefit to the beneficiaries other than Plaintiff; and 3)  By adopting the Administrator’s methodology for awarding fees, the probate court used a methodology that did not meet the requirements of the above rule and did not follow the Appellate Division’s instructions as set forth in its March 23, 2021 Decision.  Because Plaintiff’s Brief did not oppose any of the arguments in Point I, and because Defendant’s arguments have merit, Defendant submits that his arguments in Point I should be accepted.  Second, because Plaintiff’s argument that Defendant’s appeal was untimely is not supported by the court rules, by applicable case law, nor the facts of this case, the argument should be rejected.