ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] THE TORT CLAIMS ACT MUST BE STRICTLY CONSTRUED BY THE COURTS IN FAVOR OF PUBLIC ENTITIES AND PUBLIC EMPLOYEES, SUCH AS THE CITY.  The Act must be strictly construed, *Brooks v. Odom*, 150 N.J. 395, 402 (1997); and courts may not diminish a legislatively intended immunity by inventive judicial interpretation.  *Civalier v. Estate of Trancucci*, 138 N.J. 52, 68 (1994).  The New Jersey Supreme Court has stated: "We do not intend to become, and in the past we have not been, advocates of compensation for injured parties in conflict with the legislative will.  We have sustained the legislative immunities in the most tragic settings."  *Ibid.*  The Court has also stated that the Tort Claims Act is not an insurance plan; it was designed to restore sovereign immunity not to assure compensation to injured victims.  *Fielder v. Stonack*, 141 N.J. 101, 113 (1995).  Thus, with respect to the Act, the Court has emphasized: "We do not seek a means of finding compensation in an immunity statute any more than we seek a means of finding immunity in a compulsory insurance statute."  *Id.* at 116.  See e.g. *Levin v. County of Salem*, 133 N.J. 35 (1993); (plaintiff was diving from a bridge into a river below when he struck a submerged sand bar, rendering him a quadriplegic; the bridge was used as a well-known diving platform; the Law Division granted summary judgment under the Act, and the Appellate Division and Court affirmed); *Fleuhr v. [...] of Cape May*, 159 N.J. 532 (1999) (plaintiff was an experienced surfer who broke his neck surfing in a hurricane; plaintiff’s liability expert faulted the municipality’s lifeguards for not closing the beach under the circumstances and for failure to warn; the Law Division granted summary judgment, the Appellate Division reversed, the Court then affirmed the Law Division’s grant of summary judgment to the municipality under the Act).  Accordingly, the fact that Plaintiff may have been severely injured, as tragic as that may be, does not alter or skew a decision in favor of finding a municipality liable.  See Parsons v. Mullica Tp. Bd. of Ed., 440 N.J. Super. 79, 97 (App. Div. 2015) (reversing the Law Division failure to grant summary judgment to the public entity under the Act; holding that notwithstanding plaintiff’s loss of vision in an eye, “the judiciary’s focus must be ‘on the meaning of the statute,’ despite “where the facts ‘involve a profound tragedy’ and ‘evoke sympathy’”), aff’d, 226 N.J. 297, 308-09 (2016) (“In 1972, the Legislature enacted the TCA to serve as ‘a comprehensive scheme that “seeks to provide compensation to tort victims without unduly interfering with governmental functions and without imposing an excessive burden on taxpayers”’”; “The TCA’s immunities are absolute and any ambiguities must be resolved in favor of immunity”).  Thus, the [...] respectfully urges this Court to affirm summary judgment on its behalf.
[brief] See Cole, 215 N.J. at 279 (citing Hoxworth, 980 F.2d at 925-27).  Respondents have already benefited from the full scope of civil discovery to obtain the necessary information, yet now, relying on the language in the Arbitration Agreement, which they were aware of from the outset of litigation, they ask this Court to compel arbitration.  This is unjust.  This order would severely prejudice the [...], who have acted in good faith throughout this litigation.  The Respondents are only pursuing arbitration now because they have exploited 426 days of discovery, and now seek to enforce an ambiguous agreement that [...] never consented to, to his significant detriment.  For these reasons, and in accordance with the Howe factors, the Respondents waived any right to arbitration, and the trial court’s decision should be reversed and remanded.  See Howe, at 980 F.2d at 926-27.  III.
[brief] (Pa 348, [...] Dep. 10/28/22, T33:22-25, T34:1-7; Pa328, Email from [...] Re 2019 Observations)  His failure to conduct a third Observation was inconsistent with what he was required to do per the education statutes.  As a result of this, any claim made that the Appellant did not receive satisfactory Observations is refuted as there was a failure to conduct the three required Observations.
[brief] And so, for the foregoing reasons, [...] is granted summary judgment against [...], pursuant to the MCS-90 surety endorsement for $750,000. ” (1T39:9-16).  On March 12, 2024, 2023, [...] filed a Motion for Reconsideration for the court to reconsider its February 23, 2024 order granting [...]’s Motion for Summary Judgment on the MCS-90 surety endorsement.  (PPCIa452).  [...] again argued that the February 23, 2024 final judgment was not a final judgment because it did not address [...]’s counterclaims and crossclaims against [...] seeking declaratory judgment that the policy does not provide insurance coverage to [...], and it did not address the guarantee agreements of [...]’s principals obligation to reimburse [...] on any MCS-90 payment [...] makes.  The court stated, “the court’s decision is, the court did not make an error entering the final judgment.  It was the final judgment against [...] and there is no basis to reconsider this decision. ”  [Emphasis added].  (2T:12:24-13:2).  **STATEMENT OF MATERIAL FACTS**
[brief] In *Muckrock, LLC v. Cent. Intelligence Agency*, 300 F. Supp. 3d 108, 114 (D.D.C. 2018), a FOIA requestor filed a request with the [...] ([...]) seeking “‘[a]ll email messages (and attachments) sent to the CIO–IMS– --- \(^6\) *Vaughn v. Rosen*, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974) (requiring an index to determine the validity of the agency’s withholdings in the case).  STAFF or CIO–IMS–ALL mailing lists by the Director or Deputy Director of IMS’ during four different time periods that correspond with the quarters of the 2013 fiscal year. ”  Id. at 114.  The [...] denied the request, stating “[w]e require requesters seeking any form of ‘electronic communications’ such as emails, to provide the specific ‘to’ and ‘from’ recipients, time frame and subject. ”  Ibid.  The requestor filed a lawsuit, arguing that the “[...]’s purported ‘per se’ policy of refusing to process any FOIA request for email records that does not contain four specific pieces of information” violates FOIA.  Id. at 112.  Then U.S. District Judge [...] ruled in favor of the requestor, “easily” finding that the [...]’s policy of requiring requests for emails to contain the to, from, time frame, and subject “per se . . . violates the FOIA. ”  Id. at 136.  The court held that a request is valid and sufficiently identifies the records sought where “a professional employee of the agency who was familiar with the subject area of the request [could] locate the record with a reasonable amount of effort. ”  Ibid. (citing Kenney v. U.S. Dep’t of Justice, 603 F.Supp.2d 184, 188 (D.D.C. 2009)).  “And in the context of the instant dispute, the [...] has done nothing to demonstrate that the agency’s employees need all four pieces of information—the sender, recipient, subject, and time frame—in order to locate email records in the agency’s information systems. ”  Ibid.  Judge Jackson noted that the [...] acknowledged that it “can often determine what email records are being sought, and can conduct a search for those records, without having all four pieces of information[.]”  Ibid.  In *Am. Oversight v. United States Env’t. Prot. Agency*, 386 F. Supp. 3d 1, 9–12 (D.D.C. 2019), requestor similarly alleged that the [...] ([...]) maintained a per se policy of “refusing to process any request for communications records unless it provides a subject matter or keyword for the search.
[brief] For all the reasons set forth in Points I-IV, [...]’s convictions must be reversed.  In the alternative, for the reasons set forth in Point V, her sentence must be vacated and the matter remanded for a new sentence.  Respectfully submitted, [...]  Public Defender Attorney for Defendant-Appellant  BY: ___/s/ [...]___  Assistant Deputy Public Defender Attorney ID: 063222014  Superior Court of New Jersey  APPELLATE DIVISION DOCKET NO. [...]  Criminal Action  STATE OF NEW JERSEY, : Plaintiff-Respondent, : v. : [...], : Defendant-Appellant.
[brief] III.  PLAINTIFFS RAISED THEIR CONSTITUTIONAL ARGUMENTS BEFORE THE TRIAL COURT AND, AS SUCH, THOSE CLAIMS ARE NOT WAIVED.  At page 29 of their brief, footnote 5, Defendants argue that Plaintiffs' constitutional arguments are waived on appeal.  The Court should reject this argument as Plaintiffs raised their constitutional claims below.  Those claims were briefed at length by way of several rounds of motion practice.  "Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below."  State v. Galicia, 210 N.J. 364, 383 (2012).  "[A]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]"  Galicia, 210 N.J. at 386; R. 2:10-2.  Further, the Appellate Courts retain the inherent authority to "notice plain error not brought to the attention of the Trial Court[,]" provided it is "in the interests of justice" to do so.  R. 2:10-2.
[brief] (Pa 4a.)  During those proceedings, the Appellant made representations to the Court during oral argument on which the Court relied.  (Da 41.)  After the eviction action was filed, on August 28, 2015, Brian and [...] filed a hardship stay of the eviction and sought to extent the eviction until October 31, 2015, on the grounds that they were building another house that would not be ready until that time.  (Pa 38a.)  The hardship stay proceeding was before the Honorable [...], J.S.C., in the New Jersey Superior Court, Special Civil Part.  In opposition to the application for stay, the Appellant advised the Court that he and his wife were prepared to take title as-is, notwithstanding any alleged environmental contamination, and further represented on the record:  It was discovered during the inspection process, that [the Puglia’s] had done some things to the property that needed to be remediated.  For example, he put a parking lot on part of it with what I’ll refer to as asphalt millings.  I’m not a construction guy, but that had to be removed.  And that’s been done.  (Da 41.)  Based on the representations made by the Appellant, [...] set the eviction as of September 30, 2015, a month shorter than requested by the [...].  (Pa 38a.)
[brief] Plaintiff walked from the house under renovation carrying waste material to deposit into the dumpster without incident.  At or about the time he attempted to deposit the material in the dumpster, plaintiff was caused to fall.  He could not identify what caused him to fall, but after walking to the dumpster his next sensation was awakening on his back on top of the plywood.  Thus, indisputably, he went from an upright position to a prone position, i.e. suffered a fall and a serious head injury in the process.  Plaintiff's position before the trial court was that the circumstances of the accident render a rational inference, i.e. a presumption grounded in a preponderance of probabilities, that he either slipped on the snow covered plywood or tripped on the plywood precipitating his fall and head injury.
[brief] (Pa14-15).  While a Board is generally bound by its enabling statutes, it has inherent authority to reopen administrative matters upon a showing of good cause, reasonable grounds, and reasonable diligence.  Minsavage for Minsavage v. Bd. of Trs., Teachers’ Pension & Annuity Fund, 240 N.J. 103, 109 (2019).  A member seeking relief by way of the Board’s inherent powers also “must demonstrate extreme hardship and a clear equity in his favor. ”  Buono v. Bd. of Trs., Teachers’ Pension & Annuity Fund, 188 N.J. Super. 488, 493 (App. Div. 1983).  Contrary to [...]’s assertions, (Pb13), the Board considered its inherent power as well as his affidavit and the affidavits of the other troopers that he submitted in support of his contention that he did not receive the postcard.
[brief] The requirement that a party exhaust administrative remedies before resort to the courts is a firmly embedded judicial principle.  Garrow v. Elizabeth General Hospital & Dispensary, 79 N.J. 549, 558-559 (1979), relying on Central R.R. Co. v. Neeld, 26 N.J. 172, 178, cert. den. 357 U.S. 928, 78 S. Ct. 1373, 2 L. Ed. 2d 1371 (1958).  This principle requires exhausting available procedures, that is, "pursuing them to their appropriate conclusion and, correlatively awaiting their final outcome before seeking judicial intervention."  Id. quoting Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752, 767, 67 S. Ct. 1493, 1500, 91 L. Ed. 1796, 1806 (1947).
[brief] In McLean, a police officer conducting a surveillance operation witnessed two transactions.  Id. 205 N.J. at 443.  Each time, the defendant was approached by a second individual, left, went to a car, and returned within a brief period of time.  Id. 205 N.J. at 443-44.  The defendant handed some small items to the second person, and that second person then handed defendant what appeared to be money.  Ibid.  At trial, the officer testified as to what he saw during the surveillance, identified defendant by name, and stated he saw “hand-to-hand drug transactions.
[brief] (Pa395-440).  [...] asserted that it was entitled to recover its reasonable attorneys’ fees and costs as the prevailing party in this action.  Plaintiff opposed the motion.  (Pa441-474).  On September 29, 2023, the motion court entered an order granting the motion in part as to [...]’s entitlement to attorneys’ fees as the prevailing party, and denying the motion in part, without prejudice, as to the amount of the award of fees to allow the parties to attempt to resolve the motion on consent.
[brief] In the Statement of Reasons issued with the final judgment in this action, the Trial Court recognized the presumption of validity accorded to the actions taken by the [...] and the [...] and the limited role that the court must play in reviewing these actions.  The Trial Court noted that:  The court’s role is not subjective.  It is not to determine whether the Plan was the best plan that could be put forward.  The court’s role is not to develop a better plan.  Nor is the court’s role to determine whether the Plan is completely compliant with the Master Plan.  Rather, the court’s role is far more circumscribed.  The limited question before the court is whether [...]’s decision was amply supported by facts of record such that it is not arbitrary or capricious.  As the well-developed record demonstrates, it is.
[brief] The Trial Court Erroneously Applied the Discovery Rule and the Dismissal Should be Vacated & the Matter Remanded to the Law Division ([...])  The Plaintiff [...] certified that she first learned of the legal problem of not registering as a charity with New Jersey on December 18, 2020, when the complaint was served.  However, her first notice of actual harm or damage from the same occurred on April 27, 2022, when the underlying court granted summary judgment.  The seminal case of Grunwald v. Bronkesh, 131 N.J. 483, 494 (1993) is directly on point and dispositive of this case.  In Grunwald, the Supreme Court had to decide when the statute of limitations begins to run on a legal malpractice action.  The trial court said it ran when the trial court decided against Plaintiff.  The Appellate Division reversed finding it started to run when the appellate process had been concluded.  Id. at 487  Factually, Plaintiff engaged Bronkesh to negotiate an option agreement for sale of real estate property in Atlantic City.  Bronkesh prepared the option agreement and attached a contract of sale for buyer’s approval.  The buyer signed the option agreement and erroneously signed the contract too.  Id., at 488  Bronkesh erroneously advised that the buyer now entered into an enforceable contract.  In reliance, Grunwald passed up another opportunity to develop the property.  The buyer never exercised the option.  Id.  On Bronkesh’s advice, Grunwald retained another firm and in April of 1984, sued buyer for specific performance or damages.  On July 31, 1984, the court held the agreement unenforceable because buyer did not intend to buy the property.  Plaintiff hired a third attorney to appeal and on November 30, 1985, the court affirmed the trial court.  With a fourth attorney, Plaintiff filed a legal malpractice case on September 28, 1990, more than six years after the dismissal.  Plaintiff said no one told him he had a possible legal malpractice case.  Id.  The trial court granted summary judgment holding that the statute of limitations barred the action.  Applying the discovery rule, the court concluded that Plaintiff should have known he suffered damages attributable to Defendant’s negligence on July 31, 1984.  Id., at 489.  The Appellate Division reversed and found that Plaintiff could not have established a prima facie legal malpractice case until he exhausted the appeal.  Until the appellate process ran its course, Plaintiff’s damages were merely speculative.  Id.  The Supreme Court then went on and reversed the Appellate Division as we will discuss.
[directive] These hearings should be conducted remotely.  8.  Due to the nature of these proceedings and the need to have these determinations made as expeditiously as possible, the court should conduct the hearing sooner than the scheduled date and/or make its determination as soon as reasonably practical if all necessary information has been submitted.  9.  An order granting compassionate release shall not be final for 10 days pursuant to N.J.S.A. 30:4-123.51e(g).  Court staff will need to provide notice to the Department of Corrections and the State Parole Board when compassionate release orders are entered via email until electronic notifications can be generated by the Judiciary’s system, and also when an appeal has been filed via email.
[brief] The Trial Court based its decision of defendant [...]’s Motion on false statements in his Answer, his attorney Certification, and his Brief, as well as incompetent evidence.  Accordingly, the Appellate Division reversed the Order dismissing the Complaint against the Lutheran defendants, which owned the facility where the malpractice occurred.  In plaintiffs’ instant case before this Court, the Motion to Dismiss decision by the trial court was not based upon an inadequate or insufficient Affidavit of Merit.  No Affidavit of Merit was ever filed.
[brief] Skuse v. Pfizer, Inc., 244 N.J. 30 (2020)  ....................................................................43  Stamato v. Morgan Stanley Smith Barney, 2020 N.J. Super. Unpub. LEXIS 322 (App. Div. Feb. 13, 2020)..................49  Sydnor v. Conseco Fin. Servs. Corp., 252 F.3d 302 (4th Cir. 2001)  .......................................................30  The Citizens Bank v. Alfabco, 539 U.S. 532 (2003)..................................................................26  Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212 (3d Cir. 2007)  .......................................................30  Trenta v. Gay, 191 N.J. Super. 617 (Ch. Div. 1983).............................................40  PRELIMINARY STATEMENT
[brief] The trial judge was not required to recuse himself from the remand proceedings merely because certain orders entered by the Trial Court had been reversed on appeal or because the Trial Court rendered a final decision following a full trial.  There was no allegation of malice or ill will against the Defendant.  Defendant has failed to make any showing of bias or prejudice.  Finally, the Appellate Division did not make any findings warranting recusal or disqualification, and the absence of the Appellate Division requiring the case be reassigned on remand is further evidence recusal was unwarranted.  Thus, denial of Defendant’s Motion to Disqualify was proper and should not now be disturbed in this appeal.
[directive] not ready to N.J.S.A. 2A:162-22(a)(2)(a) (emphasis added).  The Act considers the State prepared “to proceed to voir dire or to opening ready if the prosecutor is argument, or to the hearing of any motions that had been reserved for the time of trial. ”  Only “delays attributable to the” defendant can be excluded Ibid. from the two-year cap.  Ibid.  Rule 3:25-4 echoes and complements the Act.
[brief] Under [...]’s policy, notification is triggered by a “student’s change in gender identity or expression,” and under the [...] and [...] policies, notification is triggered when a student requests “a public social transition accommodation. ”  [...] Amend. Pol’y (D2a45); [...] Amend. Pol’y (Da152); [...] Amend.  Pol’y  Notification is required even when the student objects unless the harm exception applies.  The school districts’ pre-amended (2019) versions of the policies (“Original Policies”) are currently in place under the trial court’s orders of August 18, 2023, preliminarily enjoining the Mandatory Notification Policies pending resolution of this matter.
[brief] There were not at that time – or any time since – any public hearings, studies, reports or public comments cited by the Township to support the stated purpose.  Only after Defendants filed their opposition to the taking did Plaintiff adopt a subsequent ordinance that acknowledged the real need for Defendants’ properties to facilitate the land swap with a private developer [...] (“Developer”).  While that Ordinance cites to the preservation of open space, it again fails to cite to the basis for the conclusion, purported need and planned use of land as “open space. ”
[brief] [...] reviewed the filings carefully to measure compliance with Rule 1.5 and for all factors identified in Rendine and its progeny.  [...] carefully adjusted and subtracted out billing amounts he found inadequately supported, too general in description or reflecting conferences between lawyers or a partner researching at a higher rate than an associate.  Da71-81.  This full analysis, including the calculating of the lodestar, was necessary and proper so the fee award should not be disturbed.
[brief] In fact, the Legislature requires a special process before a municipal judge may issue a warrant that extends beyond their municipality.  First, a --- 7 N.J.S.A. 2B:12-16(a) exempts charges brought under N.J.S.A. 27:25-5.15 from this strict jurisdictional limit, allowing municipal judges to adjudicate certain offenses taking place on public transportation if the conveyance has traveled through the municipality—e.g., fare evasion, N.J.S.A. 27:25-5.8.  8  There is one narrow exception to this general prohibition: N.J.S.A. 2C:25-28(j) provides that municipal judges may authorize a statewide search warrant to recover weapons in a domestic violence matter.  That it was necessary for the Legislature to draw this narrow exception further demonstrates that municipal search warrants otherwise have strict jurisdictional boundaries.
[brief] A.  The Arbitration Agreement is Enforceable  Even if it is Considered to be a Contract of Adhesion (Da027-Da028; Da070-Da079; Da090-Da092; Da162-Da163)  The [...] do not dispute that the Arbitration Agreement was not negotiable, but if that fact alone allows it to be characterized as a contract of adhesion, that does not make the agreement unenforceable.  The medical procedure that decedent sought (liposuction) was an elective, cosmetic procedure that was presented to decedent during her initial consultation, as opposed to, on the day of or soon before the procedure; decedent could have demurred and found a surgeon who did not require disputes to be submitted to arbitration, or decided to forego the procedure all together.  The availability of the same services from another provider without the restrictive condition has been held to militate against “procedural unconscionability. ”  See Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286, 310 (2010)(health club contract with liability waiver not a “procedurally unconscionable” adhesion contract: plaintiff “could have taken her business to another fitness club, could have found another means of exercise aside from joining a private gym, or could have thought about it and even sought advice before signing up and using the facility’s equipment”).