ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Examples of situations where the mode of operation doctrine has applied include Bozza v. Vornado, Inc., 42 N.J. 355, 358 (1964), where customers were permitted to carry food and beverages without lids, tops, or trays around a self-service cafeteria, resulting in multiple spills of food and beverages; Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 565 (2003), where customers handled grapes packaged in open-top, vented plastic bags, causing loose grapes to fall to the ground; and Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429 (1966), where customers scooped string beans from open bins into bags, inviting spillage of the beans onto the floor.  The sole argument the Appellant makes for application of the Mode of Operation Doctrine is that there had been some prior spills and the store had cleaning supplies.  These facts do not support application of the Mode of Operation doctrine.  Put simply, our case does not involve the type of self-service operation where the Mode of Operation Doctrine has been held to apply.  No self-service component of the business was involved.  There was no increased risk of injury from a self-service component of the business.  There was no “nexus” between a self-service component of the business and risk of injury in the area of the accident.  The fall did not occur in areas affected by the self-service operations.
[brief] AA6-7.  The Commission further emphasized that “the standard in this case is even higher because [[...]] seeks promotion to a higher-level law enforcement position, Sheriffs Officer Lieutenant, where incumbents supervise, evaluate, train and provide guidance to subordinate Sheriff Officer personnel. ”  AA7.  Although [...] continues to dispute whether she actually received the counseling related to the September 2022 incident, she did and does not dispute that she received the multiple other reprimands and counseling reflected in the record.
[brief] In *State v. Melvin*, the New Jersey Supreme Court ruled that, under the state-constitutional rights to trial by jury and fundamental fairness, the jury’s “verdict is final and unassailable” and “the findings of juries cannot be nullified through lower-standard fact findings at sentencing. ”  248 N.J. at 349, 352.  This Court construed the decision in *Melvin* in *State v. Morente-Dubon*, 474 N.J. Super. 197, 211 (App. Div. 2022).  Like [...], the defendant in *Morente-Dubon* was charged with murder and convicted of p/p manslaughter.  Because the sentencing court engaged in its own fact finding with respect to the jury’s p/p verdict, this Court vacated the sentence and remanded the matter for a new sentencing hearing.  *Id.* at 202.  The *Morente-Dubon* court noted that, prior to the Supreme Court decision in *Melvin*, the panel in *State v. Teat*, 233 N.J. Super. 368, 373 (App. Div. 1989), had allowed “a judge sentencing a defendant for p/p manslaughter [to] find as an aggravating factor … that the provocation to kill was slight or that reason had sufficient time to regain its sway before the defendant killed. ”  The *Morente-Dubon* court concluded that “*Melvin* silently overruled *Teat,*” 474 N.J. Super. at 212, and held that, once the jury returns a p/p verdict, a sentencing court “shall not consider the degree of provocation or whether defendant had sufficient time to cool off. ”  Id. at 213 (emphasis added).  Yet that is precisely what the sentencing court did here.  Notwithstanding the fact that the jury found, with respect to both homicide charges, that the provocation was adequate, the court stated that, “in evaluating the appropriate sentence,” it was its job to “evaluate ... the provocation. ”  (30T 59-7 to 9)  The court then determined that it “was on the lower end of passion/provocation” (30T 59-7 to 10) and, with that judicial fact finding, apparently applicable to both p/p convictions, it imposed the maximum ten-year term on both convictions.  In imposing sentence in accordance with its own fact finding concerning the level of provocation, the court violated [...]’s rights to trial by jury and fundamental fairness.  C.
[brief] (Db12-Db13).  Moreover, the inaugural class received the [...] student manual approximately the 19th, 20th, or 21st of August 2012, after the inaugural students began classes, which indicated that a 3.0 GPA was required to opt-into the master’s track.  (Pa356).  However, Graduate Student Manual (the “Manual”) did not explicitly provide that Plaintiff was **only** able to select or opt-out of the master’s pathway at the end of the students’ first professional year.  No such limiting language exists.  The Defendant entirely disregards the material fact that Plaintiff constantly inquired with [...] as to whether he would be able to opt-in to the Pharm.D program at a time after his first professional year and was consistently advised he would be able to.
[brief] 2006) | 37, 40, 44 | | East Brunswick Bd. of Educ. v. East Brunswick Educ. Ass'n, 235 N.J. Super. 417, 420-421 (App. Div. 1989) | 51 | | Ellerman v. Chicago Junction Railways, etc., Co., 49 N.J. Eq. 217, 232 (Ch. 1891) | 16 | | El Vocero de Puerto Rico v. Union de Periodistas, 532 F. Supp. 13, 16 (Dist. P. R. 1981) | 32 | | First Atlantic Federal Credit Union v. Perez, 391 N.J. Super. 419, 425 (App. Div. 2007) | 13 | Food Handlers Local v. Pluss Poultry, Inc., 260 F.2d 835, 836 (8th Cir. 1958)
[brief] 14  Standard of Review .........................................  18  Legal Argument .............................................  20 POINT I.  THE COURT ERRED IN DISMISSING THE WRONGFUL TERMINATION COUNT OF THE COMPLAINT WHERE GENUINE ISSUES OF MATERIAL FACTS IN DISPUTE EXIST REGARDING THE CITY OF NEWARK’S FAILURE TO SET, ENFORCE AND OR ADHERE TO THEIR POLICIES AND INTENTIONALLY VIOLATED  MR. ALLEN’S RIGHTS BY WRONGFULLY TERMINATING HIM IN VIOLATION OF ESTABLISHED RIGHTS (T1 P63 L15-18)  ..................................................  20 POINT II.  THE COURT ERRED IN DISMISSING THE BREACH OF CONTRACT AND IMPLIED  COVENANT OF GOOD FAITH AND FAIR DEALING COUNT OF THE COMPLAINT WHERE GENUINE ISSUES OF MATERIAL FACTS EXIST REGARDING THE UNDERLYING MALICE THAT JOSEPH MCCALLUM, JR. HELD AGAINST MR. ALLEN; AND THE CITY OF NEWARK’S FAILURE TO ABIDE BY ITS EXECUTIVE ORDER 008 AND THE APPLICABILITY OF THE ORDER, FACTS WHICH ONLY A JURY CAN DECIDE (T1 P62 L22-25; P62 L1-5)  POINT III.  THE COURT ERRED IN DISMISSING ARTICLE  1  PARAGRAPHS  1 & 6 OF THE COMPLAINT WHERE GENUINE ISSUES OF MATERIAL FACTS IN DISPUTE EXIST REGARDING THE DEFENDANT  JOSEPH MCCALLUM’S MALICE TOWARD MR. ALLEN AND HIS DELIBERATE EFFORTS TO CHILL  MR. ALLEN’S FREEDOM OF SPEECH BY ILLEGALLY TERMINATING MR. ALLEN WHEN HE SOUGHT ELECTIVE OFFICE (T1 P62 L15-18)  POINT IV.  THE COURT ERRED IN DISMISSING  ARTICLE  1 OF THE NEW JERSEY CONSTITUTION  FALSE LIGHT ALLEGATION IN WHICH JOSEPH MCCALLUM, JR. PLACED MR. ALLEN IN A FALSE AND NEGATIVE LIGHT BY PUBLISHING STATEMENTS ABOUT HIM WHICH WERE PRIVATE AND PART OF HIS PAST PERSONA, WHICH ARE QUESTIONS ONLY A JURY CAN DECIDE (T1 P63 L6-13)  Conclusion ...........................................
[brief] Appellant’s Counsel must be provided with the opportunity to question Appellant on redirect at the deposition to be scheduled.  This Counsel and Appellant were deprived of the redirect at the deposition and as a result, the deposition transcript is one-sided and incomplete.  The statement made by Respondents that the position taken that Plaintiff was not able to testify to the discrimination subjected to by [...] as being a farce simply delineates the fact that Respondents disregarded deposition protocol and benefitted.  There is no farce here.  It is requested that the Appellate Court reverse and remand this matter for completion of Appellant’s deposition with the requirement that the trial must take place thereafter.  **CONCLUSION**
[brief] As detailed above, the PCR court had the power to determine whether to allow [...] to seek evidence or rehearing regarding various issues raised in the PCR petition and new-trial motions, as well as making the ultimate decision on granting or denying relief.  In refusing to recuse herself, [...]’s crabbed analysis ignored the proper standard and her first-hand, contemporaneous, supervisory-level knowledge of [...]’s policies, procedures, and practices.  This knowledge, coupled with [...]’s conflicting representations with respect to those policies, demanded [...]’s recusal.  Even if [...] believed she could maintain impartiality, the appearance of impropriety demanded recusal.  The matter must be remanded for new PCR proceedings before a new judge.
[brief] Even if these policies did not so flagrantly subject LGBTQ+ students to disparate treatment, the trial court correctly found that the State also “provided unrefuted evidence of disparate impact. ” (Da408).  Under the LAD, an unlawful disparate impact exists if “practices that are facially neutral in their treatment of different groups … in fact fall more harshly on one group than another. ”  Peper, 77 N.J. at 81; see also, e.g., Gerety, 184 N.J. at 399 (agreeing an otherwise “facially neutral policy” still violates the LAD if it “resulted in a significantly disproportionate or adverse impact on members of the affected class”” (citation omitted)).  The State offered powerful evidence that even assuming Appellants’ Original and Revised Policies could somehow be understood as facially neutral, they disproportionately impact LGBTQ+ students.
[brief] The Court elaborated that:  [t]he MLUL evinces a legislative design to require consistency, uniformity, and predictability in the subdivision-approval process.  The legislative scheme contemplates that a planning board’s review of a subdivision proposal, including the layout of the entire design, must be made within the framework of the standards prescribed by the subdivision and, if pertinent, the zoning ordinances.  Because a municipality must exercise its zoning and subdivision powers by enacting ordinances, the conclusion follows that the municipality may not exercise such powers based directly on the general statutory purposes of the MLUL.  Municipalities may effectuate those statutory purposes only by incorporating them as standards in duly-enacted zoning and subdivision ordinances.  The mandate under N.J.S.A. 40:55D-48 that on compliance with the subdivision ordinance and the MLUL the application “shall” be approved supports such a conclusion.
[brief] In May of 2018, [...] was homeless and had been living out of his car—a white Chevrolet Impala—for about a year.  (7T64-6 to 65-10).  He had been suffering from worsening mental health issues for which he had recently been hospitalized, and he had been unable to hold a steady job for five years.  (4T85-19 to 23; 7T63-8 to 64-5, 94-8 to 95-5).
[brief] At the plenary hearing on January 4, 2024, the court heard testimony from plaintiff’s former attorney, [...], and plaintiff herself.  (1T:11-39).  Ms. Cannaday testified that on October 25, 2023, despite her recommendations to settle the matter globally, plaintiff called her and instructed her to accept the settlement of $100,000.00 from defendant [...], as that was her insurance policy limits, and to proceed to trial against codefendants (1T:22-23, 26).  Ms. Cannaday then drafted a letter and subsequently sent to plaintiff confirming her instructions to settle separately with defendant [...].  (1T:22, 28; DCa10²-DCa12).  Due to a breakdown of the attorney-client relationship thereafter, Ms. Cannaday filed a motion to be relieved as counsel.  (1T:22; Pa75-Pa78).  Plaintiff testified that she did not respond to Ms. Cannaday’s October 26 letter indicating that Ms. Cannaday did not have authority to settle the case.  (1T:28).  She further testified that Ms. Cannaday told her that plaintiff was --- ² DCa = Defendant/respondent’s confidential appendix.  All redactions in the confidential appendix are in the original documents submitted to the trial court and not subsequently added.  making a mistake in her decision to settle with defendant [...] only.  (1T:30).  She furthermore gave Ms. Cannaday permission to discuss placing the settlement proceeds in a special needs trust with specialized counsel.  (1T:33).  At the conclusion of the plenary hearing, the trial court determined that a settlement agreement had been reached between defendant [...] and plaintiff.
[brief] PROCEDURAL HISTORY  On May 28, 2021, Plaintiff filed a complaint against defendants [...] and [...] (Pa3 – Pa6). ¹  On June 30, 2021, Defendant [...] filed an answer and requested documents (Pa7 – Pa20).  On July 14, 2021, Defendant [...] filed a motion to dismiss (Pa21 – Pa34).  On August 16, 2021, Plaintiff filed a cross-motion to amend the original complaint to pursue ten causes of action and to request documents, encompassing contract-based claims, torts, and allegations of fraudulent concealment (Pa35 – Pa43).  On September 21, 2021, Defendant [...] filed a notice of appearance.  The court granted [...]’s request for an extension to file an answer.  On September 29, 2021, Plaintiff qualified as administrator ad prosequendum ([...]).  On October 13, 2021, the court held an oral argument on the defendant’s motion to dismiss and plaintiff’s motion to amend the complaint (1T).²  ¹ Pa = plaintiff/appellant’s appendix ² 1T = transcript of October 13, 2021  On October 14, 2021, plaintiff qualified as the general administrator ([...]).  On October 22, 2021, the court granted the defendant’s motion and dismissed plaintiff’s complaint and amendment without prejudice (Pa44 – Pa48).  The New Jersey court allowed plaintiff to amend the complaint upon her appointment as administrator pursuant to N.J.S.A. 2A:31-2.  The trial court's failure to clarify this requirement in the procedural guidelines for pro se litigants violated plaintiff’s due process rights pursuant to U.S. Const. amend. XIV, § 1.
[brief] The Court Below improperly failed to shift the burden of proof to the Defendants, even after finding that there was a Confidential Relationship, such that the Defendants had to prove by clear and convincing evidence that they were supposed to benefit from the house purchase and not the Elderly Parents, (Pa-1-7 ) (6T- 31-42) (Pa 28)  While the judge in the trial court level herein found a confidential relationship, he also failed to find undue influence, but placed the burden of proof on the wrong parties.  He should have placed the burden on the defendants.  Clearly, the Court ruled that there was not gift of $50,000.00:  So this $50,000, in my view, was not and cannot be described as being a gift that satisfies all of the elements of a gift with no string attached.  There were strings attached.  The string attached was you’re going to use this to buy a house that we can live in.  Check the box; done.  (Id at 6T 27).
[brief] B.  The Trial Court Erred in Ruling that the Rent Concession Chargeback Clause was Reasonable (Decided Below at 2T20-8 – 2T22-7).  The trial court’s ruling that the “charge-back” clause requiring Defendants “to immediately repay” $17,920 in promotional “free rent” to [...] as a remedy for a tardy rent payment is “reasonable” is frankly difficult to fathom.  The court’s attempt to explain its ruling is of little help:  The Court finds the provision to be reasonable because it only compensates [...] for the benefit it conferred on defendant's [...] in exchange for their promise to make full and timely rent payments.  While [...] contend the amount of that benefit is so large that it amounts to a de facto penalty, since -- de facto penalty since it was sought in addition to…. a five percent late fee, the provision does not afford [...] any greater value than its approximate actual damages caused by the breach.  The provision limits recovery to the rent and parking concessions [...] granted the tenant in reliance on their written promises of full and prompt rent payments.  Defendant, [...], were obligated to make [...] whole and return the benefit they already received because [...] did not timely pay rent.  The five percent late charge compensates [...] for the time value of money and damages from not receiving rent payment needed to pay its own expenses.  In contrast, the chargeback provision provides for recovery of the substantial rent concession that defendant, [...], has enjoyed, which was bargained for -- which was bargained for consideration for their agreement to make all rent payments timely, which they failed to do.  2T20-25 – 2T21-25.  As an initial matter, the court’s repeated assertion that the $17,920 “free rent” credit was “in exchange for [Defendants’] promise to make full and timely rent payments” is fundamentally incorrect.
[brief] POINT II  ALL CHARGES LEVIED BY [...] AGAINST [...] SHOULD BE DISMISSED SOLELY ON THE EGREGIOUS VIOLATIONS OF THE NEW JERSEY ATTORNEY GENERAL GUIDELINES CONCERNING IA INVESTIGATIONS.  (Pa218-Pa249; Pa288-Pa2425).  Disciplinary proceedings must be “conducted with fundamental fairness, including adequate procedural safeguards. ”  Sabia v. City of Elizabeth, 132 N.J.Super. 6, 14 (App. Div. 1975).  The hearing must be “fair and impartial” and must afford the officer “procedural and substantive due process. ”  See Ferrari v. Melleby, 134 N.J.Super. 583, 586 (App. Div. 1975); Quaglietta v. Haledon, 182 N.J.Super. 136, 143 (Law Div. 1981).  The Appellate Division decided in O’Rourke v. City of Lambertville, 405 N.J. 8 (App. Div. 2008), cert. denied 198 N.J. 311 (2009), that failure to comply with New Jersey Attorney General Guidelines on Internal Affairs Policies and Procedures mandates the dismissal of charges:
[brief] Before the officer put on his sirens, I did not commit any traffic violations and was not driving erratically (Da 1a, Da 2a, 1T:28-(12-16); When the sirens went on, I put on my hazards and pulled over immediately;  When asked to show my identification, insurance and registration, I did without issue; When asked to step out of the car, I stepped out immediately; when asked if I would perform SFST, I responded with "sure" despite not knowing what it was.
[brief] (1T106).  Plaintiff described being advised by a friend that Defendant might leave him shortly after receiving her green card.  (2T32).  Plaintiff recounted suspicions voiced by his family about Defendant, but he initially dismissed these concerns.  Plaintiff felt deceived and stupid for trusting Defendant from the beginning.  (2T34).  Plaintiff testified that he did not consider the December 2020 ceremony a "real wedding" after Defendant had indicated that it was not.
[brief] That said, the Judiciary has recognized that there are instances where layperson, *pro se* litigants do not fully understand or appreciate substantive rights and has acted accordingly.  For instance, in *Community Realty Mgt., Inc. for Wrightstown Apartments v. Harris*, 155 N.J. 212, 232 (1998), it was evident that *pro se* tenants-defendants failed to understand various statutory protections afforded to residential tenants facing summary dispossess proceedings and, as a result, the New Jersey Supreme Court directed the Special Civil Part Practice Committee to propose Rule changes designed to protect *pro se* tenants.  Here, once informed by counsel of his right to arbitration, [...] immediately and unequivocally sought to dismiss this matter and compel arbitration for efficient resolution.  Furthermore, as noted above, a waiver of the right to arbitration requires clear and convincing evidence that the party intended to seek relief in a different forum.  *Cole*, 215 N.J. at 276.
[brief] Although [...] stated that the walk and turn test has scoring factors, he did not know the number of scoring factors, and that the only factors he knew were the “[t]ouch heel to toe, swaying, walking off line. ”  (1T63:4-12.)  [...] testified that his scoring of the walk and turn test was subjective.  (1T64:12-22.)  During the motion to suppress, the State and Defendant stipulated that [...] does not have any standard operating procedures for roadside DWI investigations but that the Attorney General guidelines for prosecution of DWI as well as the five-day training for standardized field sobriety test, four-day training on Alcotest, and an Alcotest conversion training course would apply.
[brief] Plaintiffs accept [...]’s procedural history with the following additions and corrections:  On December 18, 2018, [...] filed a motion to dismiss Plaintiffs’ First Amended Complaint pursuant to R. 4:6-2(e).  This claim was based primarily on the parol evidence rule.  (Pa1-5).  On April 12, 2019, Hon. [...], J.S.C. denied the motion to dismiss.  (Pa6-7).  [...]’s July 30, 2020 summary judgment motion was again based mainly on the parol evidence rule.  (Pa8-13).  On October 26, 2020, Hon. [...], J.S.C. denied this motion.  (Da65).  [...]’s June 11, 2021, second motion for summary judgment was again based primarily on the parol evidence rule.  (Pa14-19).  On December 14, 2021, Hon. [...], J.A.D. (recall) denied this motion.  (Da1096).  On January 3, 2022, [...] filed a motion for the court to reconsider the denial of its summary judgment motion.  This motion for reconsideration was based solely on the parol evidence rule.  (Pa20-22).  On March 14, 2022, [...] denied this motion.  (Da1101).  This was the fourth time a judge had refused to dismiss this case based on the parol evidence rule, making [...] the third judge to reject [...]’s parol evidence rule argument.
[brief] (Pa49).  The defendant filed a Notice of Motion to dismiss the appeal on the grounds that it believed the Notice of Appeal was a legal nullity because the plaintiff passed away and her estate had not been substituted in as the plaintiff.  (Pa54).  Opposition to the motion was filed on behalf of the plaintiff and an Order was filed on October 24, 2023 denying the motion and providing that the plaintiff had one hundred and twenty days to have someone appointed by the Middlesex County Surrogate to prosecute the appeal on behalf of the plaintiff.  (Pa56).  The plaintiff’s daughter [...] was subsequently authorized by the Middlesex County Surrogate to continue this action on behalf of the plaintiff.
[brief] ”  Id. at 230.  In light of this standard, Plaintiffs’ new, different, and unrelated allegation of libel per se, pertaining to a new defendant and allegedly committed on a different date, cannot reasonably be said to relate back to the original filing of Plaintiffs’ complaint and is therefore time-barred.  Indeed, the conduct that is the subject of the libel per se claim – making a complaint to the police - is literally unrelated to the conduct at issue in the complaint and amended complaint – that is, Defendants’ removal of Plaintiffs’ illegally constructed walkover and Plaintiffs’ claimed entitlement to an implied easement appurtenant across the [...].
[brief] 13  B.  The Trust received constitutionally due process and is not entitled to a hearing .................................................................  17 POINT III  SUBSTANTIAL EVIDENCE IN THE RECORD SHOWS  [...] APPROPRIATELY APPLIED  THE DOCKS RULE AND TABLE OF JUDGEMENTS, ORDERS AND RULINGS  1.  [...]’s (“[...]’s”) March 14, 2023 denial of a request for an adjudicatory hearing submitted by Appellant, the [...] (the “Trust”) regarding [...]’s March 20, 2019 approval of a waterfront development (“WFD”) permit modification application submitted by [...] (“[...]”), [...] permitting file number [...], and Office of Legal Affairs file number [...].