ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] THE COURT CANNOT CONSIDER THE ISSUE OF PROXIMATE CAUSATION AS IT WAS NOT RAISED BELOW.  [...] addressed the issue of proximate causation in his initial brief out of an abundance of caution; however, the issue is not properly before this Court.  “Unless the question raised on appeal goes to trial court's jurisdiction or the matter is of great public interest, issues not raised before trial court are not considered on appeal. ”  Savage-Keough v. Keough, 373 N.J. Super. 198, 209 (App. Div. 2004).  In their motion for partial summary judgment, Defendants focused their argument entirely on the issue of whether the relationship between [...] and the Defendants gave rise to a duty of care.  They did not address issue of breach, proximate causation, or damages.  Neither did the trial court in its opinion.  The question presented does not go to the trial court’s jurisdiction nor is it a matter of great public interest.  Even if it wanted to, the Court cannot address these issues because the record is lacking in evidence addressing proximate causation or damages.  As Defendants’ point out in their brief, [...] intends to prove proximate causation through the testimony of his expert, [...].
[brief] THE TRIAL COURT ERRED IN ENTERING RESTRAINTS DESPITE A LACK OF CLEAR AND CONVINCING EVIDENCE OF SUBSTANTIAL AND IMMINENT IRREPARABLE HARM (Da393-417)  Plaintiffs failed to adduce clear and convincing evidence of substantial and imminent irreparable harm, as they are required to do.  Poff v. Caro, 228 N.J. Super. 370, 375 (Law Div. 1987).  Instead, Plaintiffs rely on generalized surveys and an article (Da204-220) -- none of which address the actual effects of a parental notification policy -- and unsupported assumptions that, as a result of the Revised Policy: (1) parents will subject their children to “mental health issues, … physical or emotional harm,” “suicide,” “drug and alcohol misuse” and “homelessness”; (2) it would be difficult for the school to provide LGBTQ+ students with support;² (3) “discrimination occurs”; and (4) “staff could be subject to discipline … for misreporting or misinterpreting the Revised Policy. ” (Pb43-47).  Plaintiffs failed to introduce any clear and convincing evidence to support any of the aforementioned assumptions.  **POINT IV**
[directive] Photographs  7.4.1  Photographs and video recording tapes can be useful tools if relevant to the investigation.  If a complaint involves excessive use of force, photographs of the complainant and the officer should be taken as close as possible to the time of the incident.  Photographs also can be used to create a record of any other matter the investigator believes is necessary.  Whenever possible, digital color photography should be used.  7.4.2  The law enforcement agency should maintain a recent photograph of each officer.  These can be used if a photo array is needed for identification purposes.  If a photo array is used, it must be properly retained for possible evidentiary purposes.
[brief] Moreover, in order to succeed on a motion for reconsideration of a final order, it must be shown that the prior decision was “based upon a palpably incorrect or irrational basis” or the prior judge “failed to appreciate the significance of probative, competent evidence. ”  Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).  The March 22, 2024 Order stayed Count One of the Complaint, the “Survival Action,” in favor of arbitration.  The later in time trial court judge on his own initiative “reconsidered” the March 22, 2024 “stay order” but failed to identify the “palpably incorrect or irrational basis” for such decision.  See Lombardi v. Masso, 207 N.J. 517, 537 (2011) (“once the judge has determined to revisit a prior order, he needs to do more than simply state a new conclusion.  Rather, he must apply the proper legal standard to the facts and explain his reasons”).  B.
[brief] The [...], which the [...] routinely consults when considering a HAD application, submitted a letter to the Department stating the Council had reviewed [...]'s application and found construction of the compressor station "consistent with the goals of the Highlands Act."  The Council noted [...] had sufficiently "avoided and minimized impacts to Highlands resources" by repurposing a "historically disturbed" former quarry from which "[c]ritical wildlife habitat areas are disconnected and non-functional," and that it did not object to the [...] issuing [...] an exemption for the project.  The [...] determined construction of the West Milford compressor station "meets the definition of 'Major Highlands Development'" under N.J.A.C. 7:38-1.4, but the project was not "regulated by the Highlands Act" because it qualified for Exemption 11 and was consistent with the Water Quality Management Plan rules.\(^7\) N.J.A.C. 7:38-2.4(a) and (e).
[brief] THE BOARD’S DENIAL OF PAROLE AND ESTABLISHMENT OF A THIRTY-SIX-MONTH FET SHOULD BE AFFIRMED BECAUSE SUFFICIENT, CREDIBLE EVIDENCE SUPPORTS IT.  (RESPONDING TO APPELLANT’S POINTS III and IV)  [...] argues the Board erred by failing to properly consider his “low to moderate” risk assessment, his institutional programming, and his various letters of support.  (Pb22-Pb27).  However, the Board considered the entire record and the record supports its finding that there is a substantial likelihood [...] would commit another crime if released on parole; thus, there is no basis to disturb the Board’s decision.  Judicial review of administrative agency determinations is limited to evaluating whether the agency acted arbitrarily or abused its discretion in rendering its decisions.
[brief] In that case, this Court framed the issue as follows:  This appeal arises in the context of the on-going efforts to redevelop the waterfront in the [...].  As such, it raises numerous issues of first impression.  More specifically, in this appeal we consider the relationship between the provisions of the Local Redevelopment and Housing Law, *N.J.S.A. 40A:12A-1 to -49* (LRHL), and the Municipal Land Use Law, *N.J.S.A. 40:55D-1 to -163* (MLUL), as those provisions affect the City’s authority to require contributions toward the cost of off-site infrastructure improvements.
[brief] ”  --- 26  In *Donovan v. Bachstadt*, 91 N.J. 434, 448, 453 A.2d 160 (1982), the fees spent by the plaintiff in a real estate purchase case was a “portion of the damages” because plaintiff proved the case of breach of contract and was awarded compensatory damages, which included the measure of damages of the fair  In the instant matter, the legal fees incurred by the Plaintiff were not to make corrections of the error committed.  There were no errors to correct after the Family Court vacated all original Chinese Agreements between the parties.  The Plaintiff went to court to set aside the entire deal with [...].  This incidentally means that the alleged mistake where Defendants to the instant action failed to incorporate market value of the property and the expenditures for the preparation of the closing.  This is because those fees were a portion of the compensatory damages.  This is not the situation here because, in the instant case, Plaintiff did not prove the underlying malpractice case against Defendants since the elements of causation and damage have still yet to be satisfied in the underlying matrimonial case.  In *Penwag Property Co., Inc., v. Landau*, 76 N.J. 595, 598, 388 A.2d 1265 (1978), the Supreme Court of New Jersey dismissed a counterclaim for malicious prosecution and vacated the legal fees awarded to defendant for defending an action of malicious prosecution.
[brief] Adequate Parking Was Key To The Overall Success Of The Project  The Project’s phases were designed to create a “synergy” between all the uses, and to revitalize downtown [...] to effectuate the purpose of the original redevelopment plan.  1T7:19-8:24.  The residential building (Phase III-B) and retail/office building (Phase III-C) were intended to drive customers to the Mall (Phase III-A).  1T 8:14-24; 1T40:8-20.  The Authority Garage (Phase IV) was to provide parking to support the other phases of the Project, particularly the residential and retail/office buildings.  1T8:14-24.  Indeed, the Redevelopment Agreement itself provided that “adequate, effective, and efficient parking [was] a major factor in the successful redevelopment of the Project Site. ”  Da60.  While the Project Garage would be utilized by Mall patrons, the Authority Garage was supposed to provide parking for both Mall patrons and parkers visiting the downtown area or patronizing the contemplated retail/office building and residential units.  2T41:2-6.  G.
[brief] ”  *Ibid.*  The expert also did not offer any “evidence to support any opinion that it is an industry practice to design and install bathroom towel racks to serve a dual function as a grab bar for a bathtub. ”  *Id.* at 10.  The Appellate Division should apply a similar analysis here.  Based on the case law above, the trial court did not abuse its discretion in finding that [...]’s report was an improper net opinion.  [...] did not testify within a reasonable degree of certainty, either within his purported area of expertise or under any industry standard, how defendant failed to exercise reasonable care in its bathroom design.  He offered no opinion regarding the cause of plaintiff’s slip, opting not to conduct slip resistance testing.  He acknowledged the bathtub itself was up to code and there was no requirement that defendant install a grab bar near the tub.  Nor did he opine that the towel rack failed industry standards or violated any regulation in terms of its location or ability to bear wait.  Rather, [...] opined in his personal opinion that the towel rack—which was holding towels at the time plaintiff fell and was too far away for plaintiff to hold onto while she was entering the tub—looked like a grab bar.  Consequently, based on its position “at the foreseeable entry point to the jacuzzi” it should have met the load-bearing requirements of grab bars or warned patrons it was not load-bearing.  [...]’s opinion is quintessential net opinion.  Plaintiff fails to articulate how the trial court’s rejection of this opinion under the relevant case law constitutes an abuse of discretion.  If any trial court decision warrants an affirmance, it is this one.
[brief] B.  [...], M.D. AND DR. [...], M.D., PH.D. a.  Appellant Has Informed the Court on the Exceptional Circumstances that Exist for Failure to Seek Relief Prior to the Discovery Deadline  Respondents argue that Appellant has not properly pled all of the elements required to show exceptional circumstances to extend discovery.  This argument willfully ignores Appellant’s pleadings.  Appellant, in her initial Appellate Brief, walked through each of these elements.  To briefly recap the arguments, first, Appellant’s initial expert, [...], was retained to provide the expert report and testimony in this matter.  [...] certified that, due to Appellant’s ongoing medical treatment, he could not provide an accurate expert report until such treatment was completed.  Appellant’s counsel kept in constant communication with [...] during this time regarding when the report could be drafted.  Second, it is undisputed that the expert report is essential to Appellant’s case.  Third, Appellant’s counsel admitted that it was an oversight due to uncontrollable circumstances that it did not seek an extension prior to the discovery deadline.  This was due to calendar issues and staffing shortages.  Counsel acknowledges that these are not preferable reasons for failure to seek relief, but they are the truth.  Lastly, these circumstances were beyond the control of Appellant’s counsel.
[brief] 2T79-14-24.  In fact, [...] testified that it is not generally accepted in the scientific community that injury can be caused by indoor-growing mold mycotoxins that settle on food.  That opinion is consistent with the Position Statement from the [...].  2T142-13 to 2T143-6; Pa572.  Based on these facts, [...] concluded that there was insufficient evidence to meet the fifth step in his exposure pathway analysis, *i.e.*, that [...] was injured by eating food contaminated by Stachybotrys Chartarum and trichothecene.
[brief] (10T 23-4 to 18, 26-5 to 14).  Defense counsel emphasized the absence of any physical and forensic evidence, (10T 27-2 to 28-8, 32-7 to 22), while highlighting that no other witnesses corroborated [...]’ out-of-court identification.  (10T 28-9 to 13, 28-21 to 29-5, 31-13 to 18, 34-16 to 35-6).  The State, on the other hand, argued that [...]’ pretrial statement was reliable because he was motivated to correctly identify the person who shot his friend.  (10T 58-14 to 21).  After the jury rendered its verdict, (Da 8-11), the trial judge sentenced defendant.  (Da 12-15).  On January 18, 2019, defendant timely filed a PCR petition, alleging that his trial attorney failed to adequately investigate an alibi defense which consisted of two witnesses and cellular telephone data.
[brief] Spectraserv, 416 N.J. Super. at 578.  At least in the case of a request for an “entire project file,” the requestor has made some effort to identify a subject matter.  Not so here.  The court’s reliance on [...] v. Galloway Township to support its reasoning fares no better.  (Da52; Da55-56).  There, the requestor sought specific information in emails, including the “sender,” “recipient,” “date,” and “subject” fields from the defendant.  229 N.J. at 343.  The custodian denied the request, asserting that it would require the town to create a record, which is not required under OPRA.  Id. at 344-45.  The Court, in overturning the Appellate Division’s decision to uphold the denial, issued a narrowly-confined decision on the issue of whether a request for an email log was improper because it required the custodian to “create” a record.  Id. at 347–49.  While it ultimately held that the request was one for information stored in a database and, as such, did not require the creation of a record, id. at 359, in no way did it find that [...] “was entitled to all emails sent by two government employees over a two week period,” as the trial court here wrongly held, (Da52).  In fact, the Court in *[...] v. Galloway Township* made abundantly clear that its decision did “not end the inquiry.
[brief] See Giglio, 405 U.S. at 153-55 (holding that Brady encompasses impeachment evidence); see also Henries, 306 N.J. Super. at 535-46 (finding that impeachment material was Brady material mandating disclosure); Nelson, 155 N.J. at 497 (explaining that evidence that simply bolsters a defendant’s claims may be Brady material).  Notwithstanding the foregoing, the PCR Judge erroneously refused to consider Jencks and Giglio in conjunction with his Brady analysis.  More specifically, in denying [...]’s petition for post-conviction relief, the Court incorrectly concluded that [...]r raised his Giglio and Jencks claims for the first time in a reply brief and thus, found that both arguments were procedurally barred.  (Da178-79).  The court reemphasized this finding in its denial of [...]’s motion for reconsideration.  (Da187).  This determination was rendered, notwithstanding the fact that Appellant’s Petition for Post-Conviction relief cited Brady, in addition to other authority, including Giglio.  The Superior Court’s decision to “not consider” Giglio and Jencks in conjunction with the decision to deny [...]’s petition for post-conviction relief based on Brady was palpably incorrect.
[brief] In [...] v. Hudson East, the Appellate Division explained that:  New Jersey's PIP statute[ . . . ] provides a limited discovery remedy, permitting disclosure only to the extent delineated in the statute.  [. . . ]  Nothing in this statute provides for disclosure of the broad range of materials [...] sought in its declaratory judgment action, namely corporate charters, partnership agreements, annual reports, shareholder agreements and lease agreements.  None of the requested documents relates to the "history, condition, treatment, dates and costs of such treatment of the injured person," N.J.S.A. 39:6A-13(b), and thus [...]’s discovery request falls far outside the limited reach of the PIP statute.
[brief] Regarding the Law Division’s finding that the State proved beyond a reasonable doubt that Appellant operated a vehicle while intoxicated, Respondent argues that [...] performed the alcotest\(^2\) of Appellant on November 5, 2019 in accordance with established procedures, as required under State v. Chun, 194 N.J. 54 (2008) and its progeny.  In so arguing, Respondent, without support from the factual record, states that “[...] allowed for \(^2\) As used herein, the term “alcotest” refers to a Breath Alcohol Test used to monitor the amount of alcohol in an individual’s system at the time of the test’s administration. the requisite waiting period between tests. ” (Resp. Brief at 22).  Respondent does not even attempt to argue that [...] waited for the entirety of the “two-minute lock-out period” before administering subsequent alcotests, as required under the plain language of Chun.  Chun, 194 N. J. at 81 (emphasis added).  Because [...]’s testimony, which did not give any indication as to the amount of time that elapsed between alcotests performed on Appellant, was insufficient to establish that [...] observed the mandatory two-minute lock-out period, the Law Division erroneously found that Respondent proved Appellant’s intoxication beyond a reasonable doubt under the per se standard of liability.
[brief] Petitioner also argues that the Commission should have reviewed the complaint with “depth and liberality. ”  That is true, but the Commission did so.  The Commission’s decision states that it “review[ed] the facts in the light most favorable to the non-moving party (Complainant). ”  (17a.)  The Commission assumed the facts pleaded in the complaint were true for purposes of Respondents’ motion.  Even so, and as explained above, those pleaded facts do not create a cognizable cause of action under the School Ethics Act.
[brief] This is a control factor.  The more an individual is integrated into the employer’s business, the more they are an employee.  Petitioner testified extensively about the interaction between her and [...]’s municipal court process.  Petitioner gave uncontradicted testimony of her extensive involvement in discussing matters with [...] police officers, Zoning Officers, Animal Control Officers and other enforcement officials.  She also has extensive interaction with the police liaison officers and must report to the Township Administrator at the beginning of each Court session.  On this last point, [...] conceded this is indicative of employee status.
[brief] a.  In disposing of the appellant’s case, the trial judge stated the following, expressing his belief that [...] was trying to work out a compromise on the matter, but the appellant was defiant (1T12, 20-23):  THE COURT: “Mr. [...], ‘-‘ I know you're trying to work out a compromise with him, but it doesn't seem that he's open minded at this time. ”  b.  This belief by the trial judge, apparently, was based on the misrepresentations certified to him by [...] via *Motion to Dismiss* (Pa137), certifying the following statement as being true: “this case is currently pending with HUD and there has been no final determination made by that department,” (Pa68).  “As recent as September 26, 2023 our office confirmed the HUD matter is still open pending the agencies final findings” (Pa70).  c.  Letters by HUD (Pa37), DOJ (Pa54), HUD (Pa55) prove that the said statements by [...] were material misrepresentations.  In a nutshell—[...] attributed to misrepresentations of material existing facts used below toward matters of controlling decisions.  Appellant believed that the trial court erred as it turned blind eye to *Duty Of Candor*.  **REASON THE CASE SHOULD BE REVERSED**
[brief] The Court’s function is "to engage in 'a careful and principled consideration of the agency record and findings,'" and not merely rubberstamp the agency’s decision.  Williams v. Department of Corrections, 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting *Mayflower Sec. Co. v. Bureau of Sec.*, 64 N.J. 85, 93 (1973)).  Final agency actions can be reversed if those actions are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'"  *N.J. Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric.*, 196 N.J. 366, 384-85 (2008) (quoting *Henry v. Rahway State Prison*, 81 N.J. 571, 579-80 (1980)) (alteration in original).
[brief] ”  Pa201, 207 ¶¶ 46, 79-80.  The Arbitrator heard and considered the entire litany of issues present at the Hackensack Project.  On cross-examination of [...], [...]’s counsel further questioned whether “executing on a particular project can be complicated by change orders issued by an owner,” and inquired into specific change orders themselves.  Pa358 at 557:14-558:14 (regarding “change orders” on “the design of the amenity package”).  In other words, [...] queried directly into amounts it believed it was owed under the Hackensack Project Completion Subcontract (offsetting Hackensack EGP amounts due to [...] under the PTA).  Moreover, in its post-trial submission, [...] argued that it “had to address many unexpected design issues, including a complete change to the project’s amenity package in the first quarter of 2020. ”  Pa401.  Thus, see supra at 11, evidencing [...]’s position in Q1 2020 (“Jan - March 2020”) that “Owner changes” decreased the Hackensack EGP down to $0.00.  Dealing with “Owner changes,” and other change orders, is something that can only occur within the scope of the Hackensack Project Completion Subcontract (not the PTA)—thus underscoring the arbitration not as a piecemeal “limited-issue” arbitration, but rather as an all-encompassing arbitration stemming from the same series of transactions.
[brief] Firoz v. Kolaranda, No. A-2886-05T1, 2007 WL 685447, at *5 (App. Div. Mar. 8, 2007) is on point.  There, defendant filed a motion months in advance of trial to bar introduction of a document.  The motion was denied.  At trial, before a different judge, defendant brought the same motion and was successful.  The Court found that the second judge should not have excluded the document where defendant’s earlier motion to do so was denied by the first judge.  The Appellate Division held that the practice of having one trial judge overturn or modify the order of a different judge should be avoided.  This case is no different.
[directive] The [...] shall be located at the [...] facility at [...] in [...], which consolidation of resources and personnel at the same location as the [...] ([...]) will streamline law enforcement efforts to investigate and prosecute cyber criminals.  2.  Supervision.  The Attorney General's New Jersey Computer Crime -2- Task Force shall operate under the cooperative partnership of the Supervising Deputy Attorney General (SDAG) of [...] in the [...] ([...]) and the Bureau Chief of the [...] of the [...] (DSP Bureau Chief).
[brief] ”  *Liberty Mut. Ins. Co. v. Land*, 186 N.J. 163, 172 (2006) (alteration in original) (internal quotation marks omitted).  “[T]he Act is a comprehensive statute designed to help remedy high insurance premiums which the Legislature deemed to be a significant problem. ”  *Ibid.* (internal quotation marks omitted).  It furthers the “strong public policy in New Jersey to curb and deter insurance fraud to reduce premiums. ”  *Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt. Osteopathic Med. & Physical Therapy*, 416 N.J. Super. 418, 432 (App. Div. 2010), aff’d on other grounds, 210 N.J. 597 (2012).
[directive] 8.2.1  Criminal interviews should be conducted only with the prior approval, or at the direction, of the County Prosecutor.  Once an investigation becomes criminal in nature, the subject officer shall be advised that he or she is not required to answer questions as a condition of employment.  Of course, an officer who is the subject of a criminal investigation may elect to voluntarily answer questions with or without an attorney so that the facts known to him and his perspective are available to the investigators.  48