ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ..........Pa712  ##  TABLE OF AUTHORITIES | AUTHORITY | PAGE | |------------------------------------------------|------| | **Cases:** | | | Beasley v. Passaic County, 377 N.J. Super. 585 App. Div. 2005) | 21 | | Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) | 5 | | DeWees v. RCN Corp., 380 N.J. Super. 511, 528 (App. Div. 2005) | 16, 22 | | Donofry v. Autotote Systems, Inc., 350 N.J. Super. 276 (App. Div. 2001) | 22, 23 | | Dzwonar v. McDevitt, 177 N.J. 451 (2003) | 19 | | Fahey v. City of Jersey City, 52 N.J. 103, 107 (1968) | 17 | | Greenberg v. Camden County Vocational and Technical Schools, 310 N.J. Super. 189 (App. Div. 1998) | 16 | | Hernandez v. Montville Tp. Bd. of Educ., 354 N.J. Super. 467, 474 (App. Div. 2002) | 18 | | Kachmar v. SunGard Data Sys., Inc., 109 F. 3d 173, 177 (3d Cir.1997) | 16, 22 | | Kelly v. Bally’s Grand, Inc., 285 N.J. Super. 422, 432 (App. Div.  1995) | 16 | | Kolb v. Burns, 360 N.J. Super. 467, 478 (App. Div. 1999) | 14, 15 | | Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) | 5 | | Massarano v. N.J. Transit, 400 N.J. Super. 474, 492 (App. Div. 2008) | 14 | | Mehlman v. Mobile Oil Corp., 153 N.J. 163, 193-94 (1998) | 18, 19 | McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)  .. passim Miller v. Beneficial Mgmt. Corp., 855 F. Supp. 691, 707 (D.N.J. 1994)  .........................6  Parks v. Rogers, 176 N.J. 491, 502 (2003) .................5  Regan v. New Brunswick, 305 N.J. Super. 342, 355 App. Div. 1997) .............................18  Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543 (1995) .......................22  State v. Hoffman, 149 N.J. 564 (1997) ......................17  Wilson v. Amerada Hess, 168 N.J. 236, 253-54 (2001)  .......5  Young v. Hobart West Group, 385 N.J. Super. 448, 467 (App. Div. 2005)  .......................22  Young v. Schering Corp., 275 N.J. Super. 221, 233 App. Div. 1994)  ............................18  Zive v. Stanley Roberts, 182 N.J. 436, 448 (2005)  ........15  Statutes & Rules: N.J.S.A. 2C:33-4 ..............................................17  N.J.S.A. 34:19-4 ..................................................14, 21 R. 4:46 .................................................................5  PRELIMINARY STATEMENT
[brief] LEGAL ARGUMENT I.  THE MSRA DOES NOT PROVIDE AUTHORITY FOR DEFENDANTS TO RETROACTIVELY ELIMINATE VESTED TERMINAL LEAVE BENEFITS.  Contrary to the arguments by Defendants' in their opposition brief, the Municipal Stabilization and Recovery Act ("MSRA"), N.J.S.A. 52:27BBBB-1, et seq., does not explicitly grant Defendants the power to retroactively strip employees of rights that have already vested.  Defendants' opposition brief overlooks the crucial distinction between prospective modification of employment terms and the retroactive elimination of already accrued benefits.  In Caponegro v. State Operated School District of the City of Newark, Essex County, 330 N.J. Super. 148, 151 (App. Div. 2000), the plaintiffs were separated from their employment with their employer by way of an involuntary separation.  Because the employment relationship ended, the plaintiffs-employees' right to accrued vacation and sick time had vested.  Caponegro, 330 N.J. Super. at 151.  The principle in Caponegro that terminal leave benefits vest upon retirement applies regardless of whether a state takeover statute is involved.
[brief] •  [...]’s expert conclusion was that [...] “took complete responsibility for the crime…[offered] no alternative theories [and] blamed no one….He expressed remorse and empathy for his victims, as well. ”  (3T11-2 to 7)  Neither the court nor the State deny that [...] made these expressions of remorse, or that he positively changed his behavior over time.  (Sb25)  (5T80-1 to 3)  When mitigating information is amply demonstrated in the record, as is the case here, the court cannot simply disregard it.
[brief] B.  Summary Judgment Standard under Rule 4:46  This Court’s review of the trial court’s grant of summary judgment is de novo under the same standard as the trial court.  Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016).  Our Supreme Court reviewed the history of summary judgment practice and the evolving standard in the seminal case of Brill, supra.  In 1986, the United States Supreme Court upheld summary judgments in three cases: Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
[brief] ¹  In fact, under R. 4:30A, [...] would have risked losing its ability to assert its claims against [...] if it had not filed its Counterclaim in the same action as [...]’s Complaint.  [...]’s suggestion that [...] may only invoke the COVID Statute in a proceeding before the Department of Education contradicts each of those fundamental purposes.  First, allowing [...]’s case against [...] to continue before the trial court, while forcing [...] to seek relief elsewhere, would result in the opposite of a “complete and final” disposition.  Second, [...]’s position is completely unfair to [...] because both [...]’s Complaint and [...]’s Counterclaim turn on whether N.J.S.A. 18A:7F-9e(3) requires [...] to make the payments under discussion here; obviously this dispute should be decided in a single forum, and obviously, the effect of the COVID Statute should be considered in that single forum.  Third, the notion that two parties should litigate the same issue before two separate tribunals is the very definition of inefficiency and wastefulness.  In sum, [...]’s entire argument, which calls on this Court to force [...] to seek relief before the Department of Education while [...]’s case remains in the court system and the Court engages in the fiction that the COVID Statue does not exist, runs directly counter to the entire controversy doctrine.
[brief] Plaintiff’s argument otherwise to this Court partially rests on his misreading of D’Agostino, which he claims (along with Rule 4:14-2(c)) supports a conclusion that “[t]he only circumstance under which a corporate party lacks control, and requires consent, is when the witness is not a director, officer or managing agent. ” (Pb13) (emphasis in original).  However, D’Agostino involved a fact-sensitive inquiry regarding whether a company had control over certain officers and directors of subsidiary companies, as such control was required before those individuals could be compelled to appear for deposition pursuant to a deposition notice issued to the parent company.
[directive] Typically, this conflict will become most apparent during subject officer interviews.  As already explained, a subject officer has the right to remain silent during a criminal investigative interview.  But the same officer must cooperate and answer questions posed by their employer during an administrative disciplinary interview.  So while the internal affairs investigator cannot require a subject officer to answer questions during a criminal interview, he or she can require that officer to answer questions during an administrative disciplinary interview.  8.1.4
[brief] Similarly, the New Jersey Supreme Court has found that the five-year procedural bar to bringing any petition for post-conviction relief is not absolute.  State v. Milne, 178 N.J. 486, 492 (2004).  Rather, Rule 3:22-12’s time bar may be relaxed for “‘compelling, extenuating circumstances,’” which may be determined by examining “1) the extent and cause of the delay [in bringing the claim]; 2) the prejudice to the State; and 3) the importance of the petitioner’s claim.
[brief] (Id. ¶ 10).  On that same date, plaintiffs sent defendants a letter (along with the subject Rule 30(b)(6) Depo Notice) identifying “obvious irregularities for 18 of the 20 custodians from whom [defendants] produced [ESI] documents. ”  (Id.).  They “invited” defendants to “work informally with Plaintiffs to address the list of issues appended to the Rule 30(b)(6) deposition notice ... but cautioned that Plaintiffs intended to proceed with the deposition if [their] questions were not fully answered. ”  (Id.).  *3
[brief] Specifically, the term “development” is defined under both the MLUL and the LHRL as “the division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any building or other structure, or of any mining, excavation or landfill, and any use or change in the use of any building or other structure, or land or extension of use of land, for which permission may be required pursuant to the [MLUL].”  N.J.S.A. 40A:12A-3 (LRHL); N.J.S.A. 40A:55D-4 (MLUL).  The term “application for development” is also defined under the MLUL as “the application form and all accompanying documents required by ordinance for approval of a subdivision plat, site plan, planned development, cluster development, conditional use, zoning variance or direction of the issuance of a permit .
[brief] *See Karns Prime & Fancy Food, Ltd. v. C.I.R.*, 494 F.3d 404 (3rd Cir.2007), citing Comm’r v. Indianapolis Power Light Co., 493 U.S. 203, 207-08, 110 S.Ct. 589, 75 L.Ed. 591 (1990)  A key question is whether as the time of receipt of the funds, the recipient of the loan was unconditionally obligated to make repayment.  See Karns, at 408.  Here, Plaintiff was not unconditionally obligated to make repayment and when the parties entered into the Contracts, they did not know if or when it would be paid, and did not know how much would be paid.  B.  There is no ascertainable loss by Plaintiff
[brief] Neither did any of the other court personnel who were present in the courtroom, including: both in-court sheriff’s officers; the court clerk; Defendant [...]; Defendant [...]’s mother, [...]; the Defense insurance adjuster; [...]’s law clerk; and three observing interns (6T, at 55:8-19; 7T, at 14:7-12; 26:8-16; 27:22-25).  Due to the glaring absence of any contemporary allegations of improper influence, Plaintiff strongly contests Defendants assertion that it is incumbent upon Plaintiff to affirmatively prove none occurred.  Much like how Defendants neglect to provide a Standard of Review, they cite no authority that shifts the burden of their plea for relief to Plaintiff.
[brief] (Da56).  The defendants placed substantial weight on the fact that the Governor issued an executive order at 2:31 p.m. on January 21, 2014, declaring that a state of emergency existed.  (Id.)  The recitals of the executive order referred to “impending weather conditions,” and stated that New Jersey was “expected to experience a severe winter storm. ”  (Id.)  In making its decision, the trial court noted that “the Governor did not impose any travel bans, nor did he order the closing of State or other governmental offices.  (Id.)  He generally authorized emergency management and public safety officials to utilize emergency powers to respond to the snowstorm as needed.  Those powers included the closing of roads. ”  (Id.)  In Weiss, the defendants failed to establish that the weather at the time of the sale was so severe, and traveling conditions so treacherous, as to demonstrate that the trial court mistakenly exercised its discretion in declining to disturb the sale.
[brief] 4 Statement of Facts ..........................................................................................................  7  A. Background .................................................................................................................. 7  B. The Accident ...............................................................................................................  9  C.  The CCIP ....................................................................................................................  11  1.  The [...] And [...] Policies ................................................................. 11  2.  The CCIP Manual ............................................................................................... 13  3.  The Underlying Construction Contracts ......................................................  14  4.  [...] Enrolled In The CCIP ...........................................................................  16  5.  The Certificate Of Insurance Confirming [...]’s [...] Coverage ..............  16  D.  The [...] Policy .................................................................................................  17  E.  [...] Improperly Denies [...]’s Request For Coverage For The Underlying Action Based Upon Its Wrongful Termination Of Coverage ..................................................................................................................
[brief] #### CASES - **State v. Rechtschaffer**, 70 N.J. 395 (1976) ..................................................42 - **State v. Sanchez-Medina**, 231 N.J. 452 (2018) ..................................................64 - **State v. Sette**, 259 N.J. Super 156 (App. Div. 1992) ...........................................60 - **State v. Sims**, 250 N.J. 189 (2022) .....................................................................24 - **State v. Singh**, 245 N.J. 1 (2021) .......................................................................61, 62 - **State v. Spano**, 64 N.J. 566 (1974) .....................................................................53 - **State v. Stott**, 171 N.J. 343 (2002) ....................................................................17, 21 - **State v. Townsend**, 2020 N.J. Super. Unpub. LEXIS 1648 (App. Div. Aug. 28, 2020) ..................................................................................58 - **State v. Williams**, 190 N.J. 114 (2007) ..............................................................47 - **State v. Williams**, 93 N.J. 39 (1983) ..................................................................29, 31 - **Thompson v. Keohane**, 516 U.S. 99, 112 (1995) ...............................................18 - **United States v. Carter**, 884 F.2d 368 (8th Cir. 1989) .........................................18 - **United States v. Griffin**, 922 F.2d 1343 (8th Cir. 1990) .......................................18, 22 - **United States v. Harris**, 660 F.3d 47 (1st Cir. 2011) ..........................................43 - **United States v. Torres**, 128 F.3d 38 (2d Cir. 1997) ...........................................31
[brief] Moreover, the *Fasano* case was still at the pleading stage despite approximately six years of litigation because motions to dismiss had been appealed to the Second Circuit twice and remanded twice.  Da302 at *4.  Therefore, the motion to compel arbitration in *Fasano* was timely filed contemporaneously with a motion to dismiss an amended complaint, something that [...] failed to do here.  Also, unlike here where [...] asserted and prevailed upon a partial summary judgment motion, there had “been almost no litigation on the merits” in *Fasano* and the “parties ha[d] engaged in virtually no discovery. ”  *Id.* at *10.  The *Fasano* case, therefore, is irrelevant despite any superficial similarity in duration.  The longest delay considered by any New Jersey state court that our research found in a reported case was in *Cole* (which is also cited by [...]), where the New Jersey Supreme Court ultimately held that defendant waived its right by delaying twenty-one months into the litigation to file its motion to compel arbitration.  *Cole*, 215 N.J. at 281 (“A twenty-one month delay is substantial, particularly in light of the fact that [defendant] otherwise failed to provide notice of its intent to seek arbitration. ”).¹  Like the defendant in *Cole*, [...] failed to provide notice of its intent to seek arbitration.  However, [...]’s waiver here is far more egregious because [...]’s delay is over *three times longer* than the delay in *Cole*.  As [...] reasoned below, [...]’s delay here “pales in comparison to what the Court approved was … an unreasonable length of time in *Cole* of 21 months. ”  Hearing Tr. 69:14-215.  Granting [...]’s request would set a groundbreaking new precedent and would encourage insurers to hide their intent to arbitrate from other parties and drag coverage litigations through our state courts for years before moving to compel arbitration.  *See* Hearing Tr. 71:10-12 (“There’s also a policy argument that if it did not establish, this factor would permit dragging coverage before moving to compel arbitration. ”)  That cannot be the law of our State.  Accordingly, as [...] correctly held, this factor weighs in [...]’s favor against compelling belated arbitration.  Hearing Tr. 71:12-20.  --- ¹  Just last year, this Court found a far shorter delay of 16 months to be “extensive” and long enough to support waiver even though “seven of those months consisted of a period when the case had been referred to a mediator.
[brief] As the court in *Polk v. Daconceicao*, 268 N.J. Super. 568, 575 (App. Div. 1993) recognized:  A diagnosis of aggravation of a pre-existing injury or condition must be based upon a comparative analysis of the Plaintiff’s residuals prior to the accident with the injuries suffered in the automobile accident at issue.  This must encompass an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post-trauma.  Without a comparative analysis, the conclusion of the pre-accident condition has been aggravated must be deemed insufficient to overcome the threshold of N.J.S.A. § 39:6A-8.  It is the Plaintiff who is in the best position to present evidence as to aggravation or exacerbation and to establish what, if any, damages were caused by the particular Defendant.
[directive] Do you understand that if you are found to be a drug dependent person and if you are otherwise eligible for special probation under 2C:35-14, then as a result of this guilty N.J.S.A. plea you will be deemed “a person in need of treatment” who is eligible to be sentenced to a mandatory period of special probation for the purpose of participating in a court-supervised drug treatment program (“Drug Court”)?  [Wi/Yes] [Non/No]  4. Èske w konprann ke 2C:35-14.2 la mande ke amwens ke yo ta reyini N.J.S.A. sèten eksepsyon, tribinal la oblije enpoze yon santans de libète kondisyonèl egzijib pou kab patisipe nan pwogram tretman pou dwòg ki sipèvize pa tribinal la ("Tribinal pou koze Dwòg").
[brief] See also Trafton v. City of Woodbury, 799 F.Supp.2d 417, 443 (D.N.J. 2011).  “Courts have repeatedly construed the NJCRA in terms nearly identical to its federal counterpart. ”  Chapman v. New Jersey, 2009 WL 2634888, *3 (D.N.J. 2009).  Accordingly, the analysis of Plaintiff’s false arrest and excessive force claims should be analyzed under 42 U.S.C. §1983, which provides as follows:
[directive] In those rare cases when the charging agency does not fingerprint the juvenile, either the charging agency at a later date, or an appropriate law enforcement agency designated by the County Prosecutor, shall fingerprint the juvenile as soon as possible or at the time of adjudication.  The CCH and Family Automated Case Tracking System (FACTS) should be checked by the Prosecutor’s Office prior to adjudication and if there is no record that the juvenile was fingerprinted, the juvenile should be fingerprinted at adjudication in accordance with a policy to be established by the Prosecutor’s Office.
[brief] A  According to the testimony, yes.  Q  According to the testimony.  And that was testimony called by the prosecution, correct?  A  It says direct, so yes.  Q  Okay.  And juror 14, and correct me if I’m wrong, had said [...] is a name I know, he wasn’t on the witness list, right?  A  Something to that effect, yes.  1T26  Q  And what did juror 14 say the relationship was?  A  Her -- he was in a relationship with her daughter’s grandmother and she hadn’t seen him in years.  Q  Okay.  So at one point at least according to what the transcript references this was somebody that she knew at one point, right?  A  It seems that way, yes, at least the name, but -- and she hadn’t seen him years, so yeah, she knew him.  Q  And at least according to [...], one of the prosecution witnesses, this man who juror 14 knew, right, was one of the alleged robbery victims inside the store?  A  I don’t know if he was an alleged victim.  I -- based on the testimony he was in the store.  I – I don’t know if he was a victim at the time.  I don’t know what his role was.  But based on the testimony I just know he was there.  1T28  Q  All right.  So in other words, according to [...]’s prosecution testimony [...] was in the store with him and [...] was one of the ones whose watches was taken allegedly by your client, [...].  A  Based on Darby’s testimony, yes.  Q  But she did at one point apparently know him, right?  A  Yes.  Q  And he was technically one of the victims in the case, right?  A  Yes.  1T29  Trial counsel said Darby being one of the alleged victims of the robbery was the reason counsel wanted Juror 14 excused in the first place:
[brief] Rather, the cases [...] cites only confirm that the fee enhancement analysis under \textit{Rendine} is “generally limited to ‘setting fee awards in civil rights and discriminations cases, or other fee shifting contexts. ’”  \textit{Ginsberg v. Bistricer}, 2012 N.J. Super. Unpub. LEXIS 497, at *26-27 (Super. Ct. App. Div. Mar. 7, 2012) (citing \textit{Distefano v. Greenstone}, 357 N.J. Super. \textsuperscript{10}  For example, see the blatant double 5-hour billing entry by [...] on May 27, 2021.  That is, \textit{[...] literally billed 5 hours for “Prepare for and participate in hearing on a variety of motions” twice at $825 per hour – thus billing an extra $4,125} (Da147).  The failure of the Chancery Court to notice this obvious double entry supports the notion that the review of the Global Fee Application was deficient.  352, 362 (App. Div.), certif. denied, 176 N.J. 278 (2003))); See, New Jerseyans for Death Penalty Moratorium v. New Jersey Dep’t of Corr., 185 N.J. 137, 143 (2005)(cited by Plaintiff) (“This appeal requires us to address once again the standards that govern an award of attorney's fees under a state fee-shifting statute)(emphasis added); JHC Indus. Servs., LLC v. Centurion Cos., Inc., 469 N.J. Super. 306, 309 (App. Div. 2021)(cited by Plaintiff)(relating to fee awarded under the Prompt Payment Act, N.J.S.A. 2A:30A-2(f), a fee-shifting statute).
[brief] (Pa831-Pa832; Pa644).  Retaliatory harassing conduct that may dissuade a reasonable person from making or supporting a charge of discrimination is actionable even if it is not severe or pervasive enough to alter the terms and conditions of employment.  Roa, 200 N.J. at 574-75.  See also Martinelli v. Penn Millers Ins. Co., 269 F. App’x 226, 230 (3d Cir. 2008) (citation omitted).  Defendants assert in their brief that “[a] plaintiffs own self-serving assertion is insufficient to create a material issue of fact defeating summary judgment” relying on Martin v. Rutgers Cas. Ins. Co., 346 N.J. Super. 320, 323 (App. Div. 2002).  Martin, however, involved a proponent’s self-serving statement which lacked documentary evidence in the record.  The proof upon which [...]’s case is based are facts of record and a jury could find that the retaliatory actions set forth above, were taken against [...] after and because he engaged in activity protected by the NJLAD and that these retaliatory actions would dissuade a reasonable person from engaging in protected activity and violate the law.
[brief] Given the broad definition of “public use,” it is not essential that the entire community or even any considerable portion of the community directly enjoy or participate in the condemned property for the taking to constitute a “public use. ”  *State v. Totowa Lumber*, 96 N.J. Super 115 at 121 (“The number of people who will participate in or benefit by the use for which the property is condemned is not determinant of whether the use is or is not a public one. ”) (quoting *County of Essex v. Hindenlang*, 35 N.J. Super at 479, 491).  Further, the fact that a private party may benefit from the taking does not render the taking private and not for “public use.