ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] See Defendants Brief at pp. 20-21.  As noted in Point IV.A.iii, supra, the Defendants have waived any such argument by failing to address it in their brief.  As such, as a practical matter, even if the Defendants were correct with regards to their arguments concerning Plaintiff’s hostile work environment damages (which, per this point, they are not), they have nonetheless waived the right to challenge damages that were issued because of the Jury’s findings on retaliation.  amount as ‘inevitably to give rise to the inference of mistake, passion, prejudice or partiality, and by that standard to be palpably against the weight of the evidence. ’”  Carlucci v. Stichman, 50 N.J. Super. 96, 98 (App. Div. 1958); Wytupeck v. City of Camden, 25 N.J. 450, 466 (1957).  We may not invade the constitutional function of the jury and substitute our judgment for that of the jury as to the amount of plaintiff's damages in a personal injury action, unless the verdict is found excessive by the foregoing standard.  Cabakov v. Thatcher, 37 N.J. Super. 249, 258 (App. Div. 1955).  We are not authorized on appeal “to substitute our admeasurement of damages for that which appears to be a different but conscientious appraisement of the jury. ”  Lukasiewicz v. Haddad, 24 N.J. Super. 399, 406 (App. Div. 1953).  We may set aside a verdict as excessive if “the jury, from some cause, have done the defendants gross injustice.  We cannot exercise this power rudely because we may think the verdict is high; we cannot convert ourselves into a tribunal of fact; the law has not invested us with that power. ”  Somerville Easton R.R. ads. Doughty, 22 N.J.L. 495, 497 (Sup. Ct. 1850), cited in Moore v. Public Service Coord. Transport, 15 N.J. Super. 499, 505 (App. Div. 1951).  Massotto v. Pub. Serv. Coordinated Transp., 71 N.J. Super. 39, 54 (App. Div. 1961) (emphases added).  In other words, a “jury's constitutional duty to render a verdict should not be interfered with unless the overall amount is ‘against the weight of the evidence so as to constitute a miscarriage of justice .’”  Horn, 260 N.J. Super. at 178 (quoting Dolson v. Anastasia, 55 N.J. 2, 12 (1969)).  Under these high standards, “[v]erdicts should be upset for excessiveness only in clear cases. ”  Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970).  Turning to the facts of this case, in arguing for that the Jury’s Economic/Compensatory Damages award was against the weight the evidence, the Defendants simply repeat their unsupported allegations that there was no evidence that Plaintiff was subjected to a hostile work environment because of her disability.
[brief] The Appellate Division rejected that argument and noted that in a negligence action, the proof required to establish proximate cause need not be absolute; it is sufficient that the evidence establish the probability or likelihood of the event occurring in the manner alleged.  Quoting the decision in *Mazzietelle v. Belleville Nutley Buick Co.*, 46 N.J. Super. 410 (App. Div. 1957), the [...] Court held the circumstantial evidence on proximate cause must provide a reasonable probability, as distinguished from a mere possibility, that the accident occurred in the manner alleged.  Thus, the court noted:  Plaintiffs were unable to present direct evidence of the route [...] used to obtain access to the tracks, because he was alone on the night of the accident and is now comatose.  However, plaintiffs presented evidence that [...] lived on one side of the tracks in the general vicinity of the station, that he had friends and relatives who lived on the other side of the tracks, and that he generally walked when he visited those friends and relatives.  Although the precise location of the accident is unclear, plaintiffs presented evidence from which the jury could have found that [...] was only 100 feet from the top of one of the stairways leading to the station when the accident occurred.  Plaintiffs also presented evidence that the nearest other means of access to the tracks, located at Penn Station and in the area of Hunter Tower, were approximately a mile from the site of the accident.  Therefore, plaintiffs presented adequate circumstantial evidence from which the jury reasonably could have inferred that [...] gained access to the tracks by climbing one of the stairways to the abandoned South Street Station.  Id. at 153-154.  Bergquist was a wrongful death case and the injured plaintiff in [...] was comatose.  There was no direct evidence offered in either case to establish proximate cause.  Nonetheless, the courts permitted the jury to draw inferences from the circumstantial evidence to establish proximate cause.  [...] is in a similar position.  There were no eyewitnesses and because of his head injury he had no recollection of exactly what precipitated this fall.  Nonetheless, there was evidence from which a jury could conclude that plaintiff probably fell as a result of the negligence of the defendants.  The trial court recognized all of the circumstantial evidence from which a jury could conclude that he either slipped or tripped on the strewn plywood.  Instead of permitting a jury to draw inferences from the evidence of the probable cause for the plaintiff’s fall, the court concluded that such evidence was insufficient and would require the jury to speculate.  To the contrary, the evidence was sufficient for the jury to make a determination that his fall was probably caused by the defendants’ negligence and so should have been presented to the jury.  CONCLUSION
[brief] [...]’s reliance on Ensslin v. Board of Trustees, Police and Firemen’s Retirement System, 311 N.J. Super. 333 (App. Div. 1998), is misplaced.  (Pb11).  In Ensslin, a police officer had been terminated from service and the subsequent action he brought against his employer under the Law Against Discrimination was ultimately dismissed.  Ensslin, 311 N.J. Super. at 334.  After the LAD litigation, Ensslin applied for Ordinary Disability Retirement Benefits but the Board of Trustees, Police and Firemen’s Retirement System, determined he was ineligible as he was not a member in service at the time.  Ibid.  The PFRS Board found that under N.J.S.A. 43:16A-3(3), PFRS membership ceases “if more than 2 years have elapsed from the date of [the member’s] last contributions,” and under N.J.S.A. 43:16A-6(1) an application must be made “by a member in service” or on his behalf.  Id. at 335.  This court reversed the Board, holding “that the two-year standard of N.J.S.A. 43:16A-3(3) is not jurisdictional, especially in the circumstances presented” in the particular matter.  Id. at 337-38.  In his LAD action, Ensslin’s position was that he was not disabled from his employment with a reasonable accommodation.  *Id.* at 335.  To be considered for Ordinary Disability, Ensslin was required to certify he is disabled.  *Id.* at 336.  Thus, Ensslin was legally barred by the operation of “the doctrine of judicial estoppel” from filing his application for Ordinary Disability while his LAD action was pending.  *Ibid.*  The court noted that it has found “equitable and countervailing considerations” in particular circumstances to allow a plaintiff to assert a claim.  *Id.* at 337 (quoting *SMB Assocs. v. Dep’t of Env’t Prot.*, 264 N.J. Super. 38, 59 (App. Div. 1993) (“[A]n “agency has inherent power to waive *de minimis* violations of objective standards. ”)).  The court concluded that under the circumstances presented, fairness and equity required Ensslin to be permitted to apply for Ordinary Disability.  *Id.* at 338.  Here there was no such legal impediment to [...] filing his Eligibility Registration Form nor would he have been sacrificing discrimination claims or other litigation positions by doing so.  [...] simply failed to file his Eligibility Registration Form until one year and two months past the statutory deadline, which is not a *de minimis* violation.
[brief] PLAINTIFF’S NON-FDCPA CLAIMS WERE PROPERLY DISMISSED Plaintiff’s appeal focuses on the dismissal of her FDCPA claims and her brief is largely dedicated to this singular claim.  There is good reason for this because although Plaintiff pled separate causes of action based on the New Jersey Consumer Fraud Act (“CFA”); negligence; and invasion of privacy, these claims are based on the same factual allegation that [...] used a mailing vendor.  Thus, these causes of action fail for the same reasons as her FDCPA claim.  Indeed, the Trial Court put it best when it reasoned that “the transmission of information to a letter vendor is simply not an unconscionable commercial practice by such debt collector warranting sanction under the CFA.  There is nothing deceptive, fraudulent, or unconcealable about either engaging a letter vendor for a legitimate purpose or transmitting to such vendor the information the latter needs to perform its function.  As noted, there is no invasion of the debtor’s privacy from the mere transmission of data to a letter vendor, as the information remained private even after the transmission. ” (Pa58a).  Moreover, as will be explained below, these other causes of action also suffer for additional defects and the Trial Court was correct to dismiss all of them.
[brief] In particular, [...] was aware that on a previous occasion, law enforcement was attempting to execute a search warrant related to defendant and he fled in his vehicle causing several accidents.  (1T22-7 to 15).  Law enforcement then made the decision to not approach defendant in his car to avoid potential danger to the public.  (1T22-22 to 23-1).  Approximately 30 minutes later, a second female approached the driver’s side window of defendant’s car and handed the driver an unknown quantity of currency in exchange for a small item.  (1T23-2 to 10).  This transaction took approximately two minutes, which is longer than a typical narcotics transaction which usually takes approximately 30 seconds.  (1T23-11 to 20).  Officers did not stop the buyer at that time because they did not have back-up to conduct a stop of the buyer, nor did they want to disclose their location to defendant.  (1T39-1 to 15; 1T43-6 to 43-22).  [...] radioed for assistance; other units arrived approximately 10 to 15 minutes later and they continued their surveillance.
[brief] ”  Pb21.  Appellant argues counsel’s so-called “monolog” violated the Committee’s “duty to deliberate on the ordinance and make findings. ”  Pb22.  In support of this argument, Appellant cites *New York SMSA, Ltd. P’ship v. Board of Adj. of Twp. of Weehawken*, 370 N.J. Super. 319 (App. Div. 2004) for the proposition that remarks made by any one person, in this case the Township’s counsel, are not a substitute for “statutorily required findings” and “cannot be equated with deliberative findings of fact.
[brief] State v. Parker, 124 N.J. 628, 637, 592 A.2d 228 (1991).  In State v. Frisby, the Court found that a specific act of endangerment needed to be explicitly found because the State had alleged two distinct theories that were conflicting with each other.  174 N.J. 583 (2002).  In that case the State alleged the defendant had either “actually inflicted injuries on [the victim] or failed to supervise him adequately thus resulting in his injury [or] (2) that she abandoned him. ”  174 N.J. 583, 591 (2002).  The Court found that a unanimity charge was required because "different theories were advanced based on different acts and entirely different evidence."  Id. at 599.  However, in rendering its opinion the Court also confirmed that a unanimity charge is not always required.  The Court indicated for example, that the "conceptually similar" facts in State v. Parker would not require such a charge, "where defendant showed the child victims pornography, informed them of her sexual desires, and used foul language."  Id. (citing 124 N.J. 628, 639 (1991).  The Court also noted that a unanimity charge was not required in State v. T.C., where "different sadistic acts towards a child victim including hitting, verbal abuse, starvation, and humiliation did not require a specific unanimity charge because there was a single theory of ongoing emotional and physical abuse advanced and the acts alleged were conceptually similar."
[brief] **  *i.*  **Burt remains applicable on the facts of this case. **  The binding effect of *Burt* on the trial court can only be vitiated if *Burt* was repudiated or overruled by subsequent appellate precedent.  Yet, plaintiffs cannot point to a single instance in which the appellate courts of New Jersey analyzed the logical and equitable underpinnings of *Burt* and rejected its viability.
[brief] Here, Plaintiff’s pleadings fall far below the threshold showing necessary to survive a motion to dismiss.  Not only does Plaintiff fail to allege “a low community assessment” of [...] or and prior suspect dealings between [...] and the [...], St. Amant, 390 U.S. at 733, her Complaint also describes [...] in glowing terms as a nationally respected model citizen who Plaintiff herself deeply admired.  These alleged facts are not only insufficient to plead actual malice, they are utterly incompatible with it.  C.
[directive] 4  SEXUAL ASSAULT FORENSIC EVIDENCE REPORTING (SAFER)  WORKING GRP., NAT’L INST. JUST., OF NATIONAL BEST PRACTICES  SEXUAL ASSAULT KITS: A MULTIDISCIPLINARY APPROACH 17 (2017), FOR https://www.ojp.gov/pdffiles1/nij/250384.pdf.  5  [...], et al., Y-STR Profiling in Extended Interval (≥3 Days) Postcoital Cervicovaginal Samples, 53 J. FORENSIC SCI. 342, 344 (2008).  6  [...], AL., IMPROVED DETECTION MALE DNA POST-COITAL SAMPLES 66–68 (2012), ET OF IN https://www.ojp.gov/pdffiles1/nij/grants/241298.pdf.  7  [...], DNA PROFILING SEMEN DONOR EXTENDED INTERVAL POST-COITAL SAMPLES 55 OF IN (2012), https://www.ojp.gov/pdffiles1/nij/grants/241299.pdf.  8  [...] & [...], Systematic Review: Effectiveness of Psychosocial Interventions on Wellbeing Outcomes for Adolescent or Adult Victim/Survivors of Recent Rape or Sexual Assault, 27 J. HEALTH PSYCH. 305 (2020).  9  [...], et al., The Effectiveness of Sexual Assault Nurse Examiner (SANE) Programs: A Review of Psychological, Medical, Legal, and Community Outcomes, 6 TRAUMA, VIOLENCE, & ABUSE 313, 318 (2005).  10  [...], et al., Qualitative Analysis of Prosecutors’ Perspectives on Sexual Assault Nurse Examiners and the Criminal Justice Response to Sexual Assault, 13 J. FORENSIC NURSING 62 (2017).
[brief] SUPERIOR COURT OF NEW JERSEY  APPELLATE  DIVISION DOCKET NO. [...]  CIVIL ACTION ON APPEAL FROM SUPERIOR COURT OF NEW JERSEY GLOUCESTER COUNTY LAW  DIVISION DATED OCTOBER 2, 2023  SAT BELOW:  HON. [...], A.J.S.C.  BRIEF OF RESPONDENTS, [...] AND [...]  [...] [...] [...]  [...], Esq. mherbert@parkermccay. com  I.D. No.: 007691992  Attorney for Respondents, Daniel and Linda Tomarchio  Submitted: July 26, 2024 TABLE OF CONTENTS
[brief] At the second hearing, [...] provided additional testimony and evidence that the proposed billboard did not create any safety risk at the subject intersections:  (i)  Driving behavior does not change in the “presence or absence of billboards” (2T:5-6) (ii)  1.6 seconds of distraction is required to present a safety risk and billboards do not cause that extent of distraction (id.)  (iii)  In studies, billboards are comparable to traffic signs in terms of distraction (id.)  (iv)  The New Jersey Department of Transportation determined the proposed billboard was safe and granted an “outdoor advertising permit” (id. at 9-11; Pa165-166)  (v)  There is no “safety reason for the” Distance Regulation (2T:8)  (vi)  Traffic signals are not impeded by or “in the backdrop” of the proposed billboard (id.) (vii)  “There is no research support for the thousand feet and a safety component” (id. at 27)  (viii)  The proposed billboard could be double its proposed size but [...] limited the size to accommodate [...] and the surrounding area (id. at 31)  (ix)  The 350-feet distance-to-an-intersection proposed by [...] is consistent with “state…regulation” (id. at 38)  The Board’s professionals conceded that the Distance Regulation was not based on “safety,” but instead “it’s sighting [sic] requirements…” (Id. at 60.)  The Board’s professionals themselves determined that [...]’s testimony on safety was “very compelling…” (Id.)  In denying the application, the Board’s members overwhelmingly cited “safety.
[brief] While the *de novo* court is to give deference to the findings of the original tribunal, the ultimate obligation of the Law Division requires thorough and independent findings:  Although a court conducting a *de novo* review must give due deference to the conclusions drawn by the original tribunal regarding credibility, those initial findings are not controlling.  *Ibid.*  Rather, the court reviewing the matter *de novo* is called on to "make reasonable conclusions based on a thorough review of the record.  That process might include rejecting the findings of the original tribunal."  *Id.*, at 580.  In sum, the additional layer of review underscores "the fundamental purpose" of having an independent, neutral, and unbiased forum review the disciplinary conviction.
[brief] Indeed, in *Kalman*, *supra*, this Court held – and the Supreme Court thereafter affirmed – that “we see no statutory or current philosophical bar to a contract clause . . . [that] permits unilateral triggering of the arbitration clause. ”  *Id.*  It also observed that there is “no inherent unfairness in enforcing a contractual clause which gives [defendant] alone the right to compel AAA arbitration. ”  *Id.* at 29 (emphasis added).  Thus, the *Kalman* court ruled, similar to the trial court here, that a “one-sided” arbitration clause is, by itself, neither harsh nor unfair.
[brief] APPELLATE DIVISION DOCKET NO. [...]  CIVIL ACTION ON APPEAL FROM THE SUPERIOR COURT OF NEW JERSEY, LAW DIVISION, GLOUCESTER COUNTY SAT BELOW:  HON. [...], A.J.S.C. [...]  [...], Esquire (015542002)  Staffordshire Professional Center [...]  Phone: [...]  Fax: [...]  Attorneys for Plaintiff/Appellant  [...]  PLAINTIFF/APPELLANT  CASELLA FARMS HOMEOWNERS ASSOCIATION, INC. ’S BRIEF IN SUPPORT OF APPEAL
[brief] Because the Motion Judge committed reversible error in his interpretation and application of N.J.S.A. 48:12-152, the Appellant respectfully requests that the Order granting Summary Judgement in favor of defendants be reversed.  Dated: May 13, 2024  Respectfully submitted, By: /s/ [...]  [...], Esq.  By: /s/ [...]  [...], Esq. [...].  [...] Tel.: [...]  Fax: [...]  By: /s/ [...], Esq. [...], Esq. [...].  [...]  Tel.: [...]  Fax: [...]  Attorneys for Plaintiff [...], Administratrix of the Estate of [...]; [...], Guardian Ad Litem for [...], an infant, Plaintiff, v. [...]; [...] Rail Operations, Inc.; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...] Washington Division; [...]; [...], [...], Defendants.
[brief] [...] [...]  Telephone: [...]  Attorneys for Respondents Of Counsel and On the Brief  [...], Esq.  (Attorney ID No. 021891993)  On the Brief  [...], Esq.  (Attorney ID No. 030531993)  # TABLE OF CONTENTS OF BRIEF | Section | Page | |------------------------------------------------------------------------|------| | PRELIMINARY STATEMENT | 1 | | SUPPLEMENTAL PROCEDURAL HISTORY | 3 | | STATEMENT OF FACTS | 7 | | LEGAL ARGUMENT | 9 | | POINT I | 9 | | THE TRIAL COURT DID NOT COMMIT ANY ERROR IN ITS DETERMINATION THAT DEFENDANTS WERE ENTITLED TO SUMMARY
[brief] The large parking area contained several T-intersections between vehicular travelways.  The T-intersection close to the hospital (i.e., in the administrative/patient/visitor parking area) was replete with vehicular stop signs, traffic markings, a peninsula, and pedestrian warning signs/safeguards.  Pa660; Pa697.  In contrast, the very same type of “T” intersection in the distant part of the employee lot where [...] was required to park, and where the fatal accident occurred had none of these safety features.  Id.  As [...] explained:  The safety features in this parking lot are not consistent.  The safety features diminish from the south end of the parking lot [i.e., the administrative/patient/visitor parking area] to the center of the parking lot and to the north or rear of the parking lot.  Yet the same configuration of intersecting travelways exists within the parking lot the same as at the front of the parking lot, adjacent to the rear of the hospital.
[brief] He admitted that he caters from the Oceanport facility and does so in order to “expand his area to do business. ” (T1 at 129:13-24).  He further admitted that there are other different appliances that he brought onto the premises and uses as part of his operation that were not there when [...] merely had a pizza oven.  (T1 at 153:2-5).  He admitted that he had cooktops, an air fryer, a food warmer, steam table, slicer, refrigerators all that were added by him and were not present when [...] ran his operation.  (T1 at 153:20-24; 155:1-6; 157:21-22).  Finally, he admitted that work was done on the premises without permits and it was not until after suit was filed on June 5, 2020 that he went to the municipality to obtain permits and it took a number of months to finally get those permits for work that had previously been done.  (T1 at 178:13-180:25).  Next to testify was [...], a neighbor who lives at [...].
[brief] As the New Jersey Supreme Court further explained in Schmid:  Private educational institutions perform an essential social function and have a fundamental responsibility to assure the academic and general well-being of their communities of students, teachers and related personnel.  At a minimum, these needs, implicating academic freedom and development, justify an educational institution in controlling those who seek to enter its domain.  The singular need to achieve essential educational goals and regulate activities that impact upon these efforts has been acknowledged even with respect to public educational institutions.  Hence, private colleges and universities must be accorded a generous measure of autonomy and self-governance if they are to fulfill their paramount role as vehicles of education and enlightenment.  [emphasis added]  84 N.J. at 566-67 (internal citations omitted).