ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [...] was not the agent of [...].  Apparent authority does not fit this factual scenario.  There is no reliance in this matter to the fact that he had an access card, to this Court, doesn’t appear to be a factor that impacts the analysis.  Furthermore, he was not a borrowed servant.  [...] did not control directly or broadly the actions of [...].  It’s generally, an employer is a person engaged to perform service for another employer.  The employee who is subject to the employer’s control or the control of the physical conduct provided (indiscernible) by the Plaintiff.  Stop There.  It’s generally understood, where an employee is a person engaged to perform services for another.  The employee is subject to the employer’s control and the control of physical conduct is necessarily required for such service in order to impose liability.  In this matter, the case did not control the conduct of [...].  If one looks at the factors involved in making the analysis, really apparent (indiscernible) is an independent contractor.  The café did not exercise control over the details.  [...], as a separate business, performed similar services for multiple other entities shopping for restaurants.  The case did not supply any tools or instrumentalities, et cetera.  He was paid on a 1099 form rather than as an employee and the services performed were ancillary to rather than party of the regular business of the café.  Furthermore, the parties did not believe they were in a relationship as to employee-employer.  All right, that’s that.  (1T:12:24-14:10)  As [...] was successful on its summary judgment motion, it did not participate in the remaining discovery and motions that ensued; this includes an interlocutory appeal, which was denied by the Appellate Division.  An order of judgment was entered against Hernandez on March 14, 2024 and Plaintiff filed a notice of appeal.  (Pa 0393-394, Pa0395-398)  [...] notes that the order granting summary judgment to it was not part of the initial notice of appeal and was only included in Plaintiff’s amended brief.
[brief] As a result of the [...] faculty’s statements, Plaintiff was induced to remain committed to [...], and did not seek transfer opportunities.  Furthermore, Defendant does not address the May 31, 2012 letter sent to the [...] (“[...]”), which included a proposed Concurrent Degree Enrollment Program Guidelines and Overview packet that comprised of language that stated, “A student must have a 3.00 cumulative GPA during their first year within the program to be considered for admission to this concurrent degree pathway. ” (Pa82).  This pertinent language was not presented to Plaintiff, or any other student, and therefore, it was a material omission.  Again, Defendant offers no rebuttal to those allegations and therefore should be deemed conceded.
[brief] ”  Id. at 334-35.  In determining the lodestar, the court must consider the factors of R.P.C. 1.5(a): (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitation imposed by the client or the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; [and] (8) whether the fee is fixed or contingent.
[brief] NJDEP found that [...]’s dock complied with the requirements of N.J.A.C. 7:7-9.7 (Navigational Channels) and N.J.A.C. 7:7-12.5 (Recreational Docks and Piers) and issued the 2017 WFD Permit.  In addition, despite the issuance of the 2017 WFD Permit, in connection with the 2019 Permit Modification  NJDEP again extensively examined the alleged impacts of [...]’s dock on navigability and access to adjacent water areas prior to issuing the 2019 Permit Modification.
[brief] To be sure, the rule in contract cases addressing less certain and more difficult-to-predict questions like consequential damages or lost profits, where damages are not a liquidated sum or readily ascertainable, may well be different.  But the Supreme Court has repeatedly reaffirmed that where damages are “capable of ascertainment” on a breach of contract claim, prejudgment interest should be awarded.  *E.g.*, *Meshinsky v. Nichols Yacht Sales, Inc.*, 110 N.J. 464, 471, 478 (1988).  The Court even acknowledged a loosening of the rigidity that existed prior to cases like *Rova Farms* in favor a more equitable approach that accounts for the plaintiffs’ loss of use and enjoyment of the funds.
[brief] (Pa191).  On December 2, 2022, appellant opposed [...]’s Motion for Summary Judgment.  (Pa190).  On January 6, 2023, oral argument was heard before the Honorable [...], J.S.C.  Following oral argument, Judge Santomauro issued her Opinion and entered Orders dated January 6, 2023 granting Summary Judgment in favor of [...] and [...] dismissing the Amended Complaint.  (Pa21-22).  On January 11, 2023, appellant filed a Motion for Reconsideration of the Trial Court’s Orders dated January 6, 2023 granting Summary Judgment to [...] and [...].  (Pa388).  Opposition was filed by [...] on January 25, 2023.  (Pa496).  Oral argument was heard on February 10, 2023 before the Honorable [...], J.S.C. and after oral argument, Judge Santomauro entered an Order on February 10, 2023 denying appellant’s Motion for Reconsideration.  (Pa24).  On March 20, 2023, appellant filed a Notice of Appeal with the Superior Court of New Jersey, Appellate Division for the January 6, 2023 Orders granting respondents’ Motions for Summary Judgment.  (Pa1).  On March 23, 2023, appellant filed an Amended Notice of Appeal with the Superior Court of New Jersey, Appellate Division.  (Pa7).  On July 21, 2023, appellant filed a court transcript request for the February 10, 2023 oral argument of the Motion for Reconsideration.  (Pa16).  COUNTERSTATEMENT OF FACTS
[brief] In addition, Appellant’s arguments regarding the use of the redevelopment plan itself as the zoning on the Date of Valuation is supported by the Appellate Division’s holding in *Jersey City Redevelopments Agency v. Mack Properties Co.*, 280 N.J. Super. 553 (App. Div. 1995).  There, [...]’s appraiser opined the highest and best use of the property to be industrial development based upon the property’s located in an “intensive industrial use zone. ”  However, the condemnee’s appraiser opinion the property’s highest and best use to be high-density office development based upon the surrounding development.  There, the court stated the condemnor’s “proposed use may be considered” in determining the fair market value of the property to be condemned.  *Mack, supra* at 569.  The Appellate Division confirmed that “there is no question that the proper basis for compensation is the value of the property as it would be at the time of the taking disregarding either the depreciating threat of or the inflationary reaction to the proposed public project.
[brief] At the hearing, The Court held that the interpretation and aim of OPRA remains subject to “reasonable controls to prevent abuse and protect the public officials involved. ”  MAG Entm’t, LLC v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Div. 2005).  (Pa153).  The Court also cited the Common Law right of access to documents noting that the Respondent successfully argued that said items requested would be damaged or mutilated.  (Pa153).  The Court proceeded to note that [...] does not have an individualized interest in this matter.
[brief] ”  Jamerson, 153 N.J. at 142.  The dispute over whether the injuries were the cause of death or the result of [...]’s admitted decision to destroy his body to cover up his accidental death was the only disputed issue at trial.  The State’s case was circumstantial.  The State presented no evidence that [...] had a motive to kill [REDACTED].  Police did not recover any presumed murder weapon during an exhaustive search of the home and the State did not advance any theory about how the murder was committed.  [...]’s defense was consistent with her statements in recorded jail calls with her sister and husband, in which [...] explained that she destroyed and disposed of [REDACTED] body because she panicked after discovering that he had died following an accidental fall down a staircase.  The jury should have been left to independently assess the trial evidence without the improper intrusion of “expert” testimony asserting that the death was a homicide.  Because [...]’s testimony, improperly admitted over defense objection, played an overwhelming role in the State’s case at trial, [...]’s murder conviction must be reversed.  Jamerson, 153 N.J. at 340-42.
[brief] (8T72-17 to 19).  [...] and other Illinois State Troopers arrested [...] and [...] and transported them to the [...] (“[...]”), where they were convinced to cooperate with law enforcement.  (8T193-11 to 15; 11T49-24 to 50-2).  [...] advised the police that defendant, who he knew as “[...],” was the intended recipient of the marijuana.
[brief] But the Court did not reach that decision because the plaintiff happened to be in visible pain, or needed to stretch, or permissibly walked through the courtroom.  The Court vacated the jury’s verdict because it was revealed that on the second day of trial, a juror’s brother-in-law placed a call to the president of the corporate defendant, from the juror’s home, in which he asked about the defendant’s policy limits.  *Id.* at 58-61.
[brief] a.  [...] Misinterprets N.J.S.A. 2A:53A-41(a).  [...] misinterprets the plain language of N.J.S.A. 2A:53A-41(a) by arguing that [...] must have spent the majority of his professional time to the active practice of that specialty or subspecialty during the year immediately preceding the date of occurrence.  Respondent Fleischer Brief at 4, n.4.  Appellant has already walked through the plain language of the statute in her initial brief.  [...] is attempting to implicate subsection (a)(2) of the statute, even though it is not required to satisfy the statute.  This is shown by the fact that subsections (a)(1) and (a)(2) are separated by an “or,” rather than an “and. ”
[brief] However, he also acknowledged that the first time he directly told police about his son’s dying declaration was in his formal, recorded statement on October 21 — after [...] had seen an online news story with [...]’s name and picture indicating that defendant had been arrested and charged with murder.  (6T73:9-17, 74-5 to 75-22).  [...] testified that he learned defendant’s real name from an online news story, though he recognized defendant’s face, and particularly his blue eyes, from seeing defendant regularly hang out with his son.  (6T52:16 to 21, 53-7 to 54-1).  The State’s also presented the testimony of witness [...], at trial.
[brief] h.  Cardinale’s facts further deviate from Respondent’s case: the Employer in Cardinale took a “hands off” position that does not appear in the benevolent and otherwise supportive goal-oriented language that the parties in the present action reached in the Separation Agreement sub judice.  Appellant here agreed to file the IOD application (unlike in Cardinale) and even now holds Respondent on a leave of absence (Da15, Par.3) in furtherance of other obligations found in the Separation Agreement sub judice.  Further, Cardinale held that an officer subject to termination for cause for use of CDS was retiring out of disciplinary charges and NOT from an issue of disability.  If Cardinale’s condition improved, the concern was he couldn’t be returned to his job because he had no job to which he could return.  That fact is not present here, but the parties were trying to work within Cardinale and included the 30-day return to work provision (Da18, Par. 17).  “Thus, from a practical standpoint, the Board cannot statutorily cease paying any approved disability benefits, once they have begun, for an individual who voluntarily resigns from duty to settle disciplinary charges and agrees never to return.  Allowing ongoing benefits under these circumstances unquestionably places a strain on the financial integrity of the fund and its future availability for those persons who are truly eligible for such benefits.  Doing so would drain, weaken, and over burden the disability retirement system available to [...] members.  Entertaining an ordinary disability retirement application – as the Board recognized – for members who irrevocably resign from service to settle disciplinary charges flowing from illegal use of drugs would violate public policy, contravene the rehabilitation statute, and encourage abuse of the disability retirement system. ”
[directive] N.J.S.A. by required in consulted general attorney prosecutor deputy or assistant appeal, an unless or sentencing to pursuant designated officer police supervisory or a Directive, of 3.2 this with Section accordance Section under presumptions overcome to Prosecutor County the by authorized is who 3.3.2 subsection overcome is complaint-warrant charging of by presumption the that Directive, determines this of 4 $ 4.5.9.' subsection pursuant to PreliminaryAutomatedPretrialRisk-AssessmentResultsAreNotAvailableor Would 4.5.6 Decisions.  Charging Making in Undue Delay in Result charging when departments the police on are burdens placed administrative that Recognizing that decision, pending of defendant maintain a custody to required are police and decision delayed is Judiciary's the Scan or system Live if the either 2.2.2, subsection of provisions notwithstanding the risk- pretrial automated preliminary of a results operational, the if or not is system PSA automated within of (e.g., time period reasonable a within available be not will or not are otherwise assessment general attorney deputy or assistant prosecutor an defendant), fingerprinting the of two hours designated officer supervisory or a this Directive, of 3.2 Section with accordance in consulted complaint-warrant versus complaint-summons make the to proceed 3.3.2, may subsection to pursuant on depend that 4 Section not do in forth set provisions/presumptions applying the by determination what to as determination The See 8. note risk assessment. pretrial automated an of the results of results awaiting the while decision charging the delay to time of period reasonable a constitutes ~~ 14.  note  See ~s trial, before detain defendant whether a to deciding in court, provides a expressly that Law  Reform Bail  The or parole, probation, on defendant eligible was the arrest, or offense current of the time the at "whether consider may under or law, federal offense another for of completion sentence or appeal, sentencing, trial, pending release other on the recognized thus Legislature (emphasis The added).
[brief] The State should not be permitted to shift blame for the Brady violation on [...]’s trial counsel, appellate counsel, or PCR counsel.  If the Court is inclined to agree that counsel could have discovered the Sworn Statement through reasonable diligence, the Court should also agree that counsel was ineffective.  The State hardly addresses Appellant’s arguments related to ineffectiveness of counsel, and for good reason.  Rather, the State argues, in purely conclusory fashion, that Appellant has not met his burden of establishing ineffective assistance of counsel.  This argument, however, belies the State’s own position that counsel could have identified and raised arguments related to the Brady violation but failed to do so.  More specifically, the State readily concedes that the blame falls on Appellant’s counsel, not the State, for the violation.  See State Br. at 20-24.  If the Court finds that counsel was required to take some further action, notwithstanding the State’s failure to disclose Brady material, [...] has met his burden of establishing that he was deprived of his Due Process right to constitutionally effective assistance of counsel as defined in Strickland v. Washington, 466 U.S. 668 (1984) and State v. Fritz, 105 N.J. 42 (1987).
[brief] A218.  [...] nonetheless worried about delaying trial if he permitted [...] as plaintiffs’ trial expert (1T8), and told plaintiffs’ counsel they already had [...] as their expert since defendant had withdrawn his motion to bar [...] from testifying.  “I don’t see the prejudice by allowing you to continue with the expert by which [...] has now withdrawn his objection as to the standard of care as to his client. ”  1T9.  [...] stressed that Monmouth County was “moving cases” as well.  “[A]ll I’m going to do is unnecessarily delay this case by allowing a new expert to come in at this late of a junction. ”  “[B]alancing the prejudice against” plaintiff with the “2018 docket number” warranted denying plaintiffs’ application, [...] ruled:  I have to balance, and I realize it was a cost to your client, but I also have to balance that interest against the court’s interest, the case is a 2018 docket number.  As I mentioned, we are trying medical malpractice cases here in Monmouth County.  That the prejudice to the other parties, and I think the issue towards the Court by allowing this case, you know, indefinitely -- I’m probably would be at a minimum no less than 60 days, probably more than that.  And then that’s not even talking about getting these depositions done that you indicated that you’re going to have a tough time complying with [...]’s order on.  So balancing the prejudice against your clients, the other parties, I really think the totality of the circumstances, you have an expert that can testify against [...]’s client.  He will be able, you know, kind of where cross examination may be now based upon his motion, so you have the ability to prepare for that.  [1T10-12]
[brief] The standard of review is *de novo* on issues of law and plain error on questions of fact.  Here, the trial court in its September 30, 2021, decision found that the Board’s actions were arbitrary, capricious and unreasonable but instead of remanding the matter to the Board for further proceedings imposed its own rent calculation.  Ultimately, the determination of whether the incorporation of value into the ordinance by the Board was arbitrary and capricious poses a legal question.  The decision of the trial court to impose its own rent calculation rather than to show deference and remand the matter back before the Board also poses legal question.  Our Supreme Court noted in Kramer, infra:  [P]ublic bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion.  Courts cannot substitute an independent judgment for that of the boards in areas of factual disputes; neither will they exercise anew the original jurisdiction of such boards or trespass on their administrative work.  So long as the power exists to do the act complained of and there is substantial evidence to support it, the judicial branch of the government cannot interfere.  A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable.  Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved….  Kramer v. Board of Adjustment, 45 N.J. 268, 296-297 (1965) (emphasis added) (internal citations omitted).  Therefore, as both issues involve legal questions, the standard of review is de novo.  LEGAL ARGUMENT I.
[brief] [...] Investigates the June 24, 2020 Incident.  On June 26, 2020, [...] emailed [...]’s Chief People Person, [...], to discuss [...]’s yelling at him.  (Pa178 at 80:17-23; Pa469).  Florentine forwarded it to [...], who was the HR Business Partner for [...]’s department, to address.  (Pa471; Pa100 at 68:8-14).  [...] then scheduled a meeting with [...] to address his concerns.  (Pa90 at 27:6-16; Pa100 at 69:4-7).  At that meeting, [...] and [...] discussed the June 24, 2020 incident and [...] told him that she would interview [...] “to get her statement,” and then proceed with the investigation.  (Pa101 at 70:15-71:10).  During her interview, [...] recounted the events of June 24, 2020 to [...], stating that [...] repeatedly questioned her on something she needed him to accomplish, and, after he refused to listen, she “got loud” with him.  (Pa102 at 74:5-16).  [...] considered [...]’s instigation of the conflict with [...] to be similar to a prior incident involving [...], and consistent with his past conduct.  (Pa99 at 63:16-65:9).  [...] had previously disobeyed an instruction from a Director of Nursing, [...], regarding the availability of N95 masks during the COVID-19 pandemic.  (Pa410 at 35:3-15).  Meanwhile, [...]’s June 24, 2020 conduct was “atypical,” and [...] found that [...]’s colleagues, including [...], did not consider her intimidating.  (Pa109 at 104:1-13; Pa454-55 at 24:25-25:4; Pa407 at 23:22-24:3; Pa455 at 25:5-15).  [...] informed the executives at [...] about the investigation into [...]’s conduct, and her conclusion that she had no reason to suspect that [...] had committed any wrongdoing.  (Pa107 at 94:14-95:5).  IX.
[brief] PLAINTIFF ADEQUATELY STATED A CLAIM AGAINST OLD REPUBLIC FOR BREACH OF FIDUCIARY DUTY (Pa651-652; 4T)  The trial court also dismissed Count VI in the Complaint, whereby Plaintiff alleged that [...] breached its fiduciary duty to Plaintiff, in colluding with [...] to cut Plaintiff out of the deal and in failing to be forthright and honest with Plaintiff, to Plaintiff’s detriment.  (Pa19-20).  Here, the longstanding relationship between the owners of Plaintiff and [...] was such that Plaintiff felt justified in reposing its trust and confidence in [...].  (Pa152-157).  Theirs was a relationship based upon trust and loyalty – and Plaintiff reasonably expected that [...] would deal with the utmost good faith and honesty.  (See id.).  It is respectfully submitted that, under these circumstances, there arose between Plaintiff and [...] a “special relationship” that went beyond the typical insurance carrier-policyholder relationship that [...] referenced before the trial court.  Hence, the pre-answer dismissal of this claim, with prejudice, was erroneous.
[brief] 3.  Third, the Court made a material error of omission in its Factual Background of the Order of 3/30/2023 when it stated (DA24, p. 5, lines 13-16):  “In turn, the court entered orders on June 28, 2012 and July 20, 2012 directing Probation to conduct an audit of the Defendant’s account, which was specified to span “for the period commencing Oct. 1, 1998 to the present date” in the Order dated July 20, 2012”  That is, the Court erred in failing to acknowledge a material requirement of the Order of July 20, 2012, item no. 2:  “2.  The audit shall be conducted by way of a hearing that shall be held on the record and upon noticed to the Plaintiff so that both parties can appear in person and/or obtain a copy of the record as necessary. ”  Thus, the Court overlooked or failed to consider the import of the trial Court’s material requirement for a hearing to be held, on the record, be held.  The Court failed to acknowledge Probation refused to comply, and upon Appellant’s motion for enforcement of the Order, [...] improperly declined to enforce his own Orders of 6/28/2012 and 7/20/2012, unfathomably stating he didn’t know if he had the authority to order [...].