ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] . . .”  N.J.S.A. 20:3-6 (emphasis added).  Under the Eminent Domain Act an “action” is defined under the Eminent Domain Act as the legal proceeding in which: 1) property is being condemned or required to be condemned; 2) the amount of compensation to be paid for such condemnation is being fixed; 3) the persons entitled to such compensation and their interests therein are being determined; and 4) all other matters incidental to or arising therefrom are being adjudicated.
[brief] The citizens group thereafter initiated litigation on June 28, 1996 challenging both the preliminary site plan approval as well as the repealed zoning ordinance which served as a basis of the approval.  The citizens group contended, *inter alia*, that the zoning ordinance amendment was inconsistent with [...]’s Master Plan.  The developer filed an Answer and then a Motion for Summary Judgment which the trial court granted its entirety.  Specifically as to the challenge to the zoning ordinance amendment, the trial court held that it violated R. 4:69-6(a)’s 45-day limitation and that no basis existed to extend time because the ordinance’s validity involved a “private” and not “public” dispute.  The citizens group thereafter appealed and the Appellate Division reversed.
[brief] D. [...]’S MALPRACTICE IS A SUBSTANTIAL CONTRIBUTING FACTOR GIVING RISE TO PLAINTIFF’S LOSSES.  Had Defendants not deviated from the standard of care as detailed above, either [...] would have been able to terminate the Lease without recourse, or [...] would have been able to make a business decision on whether to take the risk of executing the Lease in the event [...] refused to allow changes to be made to the contract documents that would have given [...] more time to apply for zoning approval and/or limit [...]’s financial expenditure for the build out given the need to extend the sewer connection to the Property, a business decision [...] himself testified that would have resulted in [...] refusing to sign the contract documents.  [...]’s damages, as listed in answers to interrogatories, include: the funds advanced pursuant to the Lease for security and first month rent in advance in the amount of $80,000; engineering fees in the amount of $10,000; architect’s fees in the amount of $15,000; cleanup and maintenance costs for the building and grounds in the amount of $12,500; legal fees incurred by [...] in prosecuting its claim for breach of the Lease and defending [...]’s counterclaim for breach damages against [...] in the total amount of $67,057.05; the amount of legal fees paid to [...] in the amount of $10,000; the amount of the settlement paid to [...] in the underlying case in the amount of $120,000; and the difference between the cost of inventory purchased by or on behalf of [...] and the current auction value of the inventory as calculated by [...] of [...] in the amount of $250,772, plus interest on all elements of these damages.  In addition to the foregoing, the attorneys’ fees and litigation costs incurred by [...] in the instant case are a proper element of its damages.  See, Saffer v. Willoughby, 143 N.J. 256 (1996).  Since [...]’s deviations were made while he was an employee of the firm, the firm is also liable to [...] for its damages based upon the doctrine of respondeat superior.  [...] was deposed in the underlying litigation and asserted the attorney client privilege on behalf of the Plaintiff regarding his private communications with them.  As set forth above, [...], upon the advice of counsel settled the litigation in Bergen County with the substantial payment to the landlord.
[brief] My point, is, [...] stated articulately that he is stepping in the shoes, he is going to be responsible of the debt.  You are saying that is part of the consideration, he is responsible, he steps into the shoes.  So it would be very easy just to put a provision in to appease the situation so we don’t have this issue, because there could be a situation if things go array, that ultimately it is only the property that is going to be lost and there is potential exposure.  Now, you may say that is their tough luck, but yet you are saying, no, we are assuming the debt.  [...]: I am sorry.
[brief] *Estate of Ostlund*, 391 N.J. Super. 390, at 401 (App. Div. 2007); *Pascale v. Pascale*, 113 N.J. 20, at 34 (1988).  A confidential relationship alone does not raise a presumption that the beneficiary exercised undue influence.  “Circumstances suggestive of inequality, unfairness, imposition, or overreaching give rise to a presumption of undue influence ...”  *In re Will of Blake*, 21 NJ. 50, 55-56 (1956).  Other suspicious circumstances might include: a drastic change in testamentary plan; the person allegedly committing the undue influence is the sole beneficiary; the beneficiary participates in the preparation of the Will or trust (e.g., selects the attorney, gives instructions to the attorney preparing the Will or trust, has knowledge of the contents of the Will or trust, etc.); the beneficiary is present at the execution of the Will or trust or secures the witnesses; the beneficiary conceals the execution of the Will or trust and takes possession of the document; the beneficiary isolates the testator/settlor from the natural objects of the testator/settlor’s bounty; lack of independent legal counsel; secrecy and haste surrounding the making of the Will; or an unexplained change in the testator’s attitude toward those for whom he had previously expressed affection.  *See In re Will of Catelli*, 361 N.J. Super. 478 (App. Div. 2003).  Here, the record in no way justifies a finding of undue influence or even a shifting of the burden of proof.
[brief] The deferential standard is applied "because an appellate court's review of a cold record is no substitute for the trial court's opportunity to hear and see the witnesses who testified on the stand."  Balducci v. Cige, 240 N.J. 574, 595 (2020).  And "[l]imiting the role of a reviewing court is necessary because '[p]ermitting appellate courts to substitute their factual findings for equally plausible trial court findings is likely to undermine the legitimacy of the [trial] courts in the eyes of litigants.'"
[brief] Factor six requires the court to take into consideration the age of the case and whether arbitration or a trial date had been set.  While no trial or arbitration was scheduled at the time, the case was over three years old at the time of the oral argument on August 28, 2021.  Further, all parties were struggling with getting dates for depositions of experts and had a deadline to do so by October 17.  This was an old case and it would have only been further delayed by permitting the replacement of an expert who had already served his report and been deposed.
[brief] (See Table of Judgments, Orders and Rulings Appealed in [...]’s Brief of August 29, 2024, incorporated here by reference.)  ## TABLE OF CITATIONS | Cases | Page | |----------------------------------------------------------------------|------| | Akhtar v. JDN Properties at Florham Park, LLC, 493 N.J. Super. 391 (App. Div. 2015) | 4 | | D’Amato v McPherson v. D’Amato, 305 N.J. Super. 109 (App. Div. 1997) | 4 | | D’Oliviera v. Micol, 321 N.J. Super. 637 (App. Div. 1999) | 15 | | Housing Authority of City of New Brunswick v. Suydam Investors, LLC, 177 N.J. 2 (N.J. 2003) | 8 | | Marsh v. New Jersey Spill Compensation Fund and Environmental Claims Admin., 286 N.J. Super. 620 (App. Div. 1996) | 5 | | McCay Development Co., Inc. v. Jenny Oil Corp., 1996 WL 592654, (N.J. App. Div., August 8, 1996) | 8 | | Pamko v. Grimes, 40 N.J. Super. 588 (App. Div. 1956) | 4 | | State, Dept. of Environmental Protection v. Ventron Corp., 94 N.J. 473 (1983) | 5 | ### Rules and Statutes - 40 CFR §279.45 ........................................................................................................... 7 - N.J.S.A. 2A:16-56............................................................................................................. 14 - R. 2:5-6..............................................................................................................................
[brief] Recognizing the hole in their proofs, Plaintiffs attempted to assert some type of common knowledge claim that the hospital was not properly staffed because a doctor was not on standby and available to perform the emergency C-Section immediately when they claim it should have been performed.  Without any citation in the record, Plaintiffs argued that [...] testified the [...] defendants were liable because they did not have a doctor ready to perform an emergency C-Section when that procedure needed to be performed.  (Pa461; Pa471).  Plaintiffs did not provide a supporting citation to [...]’s testimony because he never offered such an opinion.  Similarly, at oral argument, Plaintiffs claimed Defendants attempted to excuse their alleged failure to expedite the delivery by admitting they were not properly staffed for a patient with a maternal hemorrhage, a claim they repeat in their merits brief.  (2T14; Pb33-Pb34).  Any such claim is disingenuous, at best, because it presumes Defendants could predict the unfortunate hemorrhage that their own experts admitted was only knowable in retrospect and was not predictable or preventable.  (Pa229, Pa339).  That aside, Plaintiffs never pleaded or provided an Affidavit of Merit to support a direct claim against [...], as such a claim would clearly require an affidavit of merit and supporting expert testimony from a qualified expert.  See Havilland v. Lourdes Med. Ctr. Of Burlington Cnty, Inc., 250 N.J. 368, 383-384 (2022); Labega v. Joshi, 470 N.J. Super. 472, 495 n.12 (App. Div. 2022).  Any claim [...] should have had additional attending obstetricians on stand-by present in the hospital during the relevant time is not a question of common knowledge, as [...] rightly noted.(Pa20).  There was no expert testimony the hospital was not appropriately staffed.  This entire point raised by Plaintiffs is curious because in its motion for reconsideration, Plaintiff claimed they never argued Defendants’ liability was based upon negligent staffing and insisted [...] retract her comments.  (Pa590-Pa591).  [...]’s comments rejecting any theory based upon alleged negligent staffing were made in direct response to Plaintiffs’ statements in their brief and at oral argument.  When Plaintiffs objected to this entire theory being addressed by the court in the motion for reconsideration, [...] retracted her comments, but appropriately noted that retraction did not affect the rest of her decision to grant summary judgment.  (Pa11-Pa12).  For reasons unknown, Plaintiffs continue to discuss this non-issue in their merits brief.  (Pb33-Pb34).  As discussed in Point III, *infra*, [...]’s decision and supporting statement of reasons was correct.  POINT III
[brief] [...] Attempts to Perform Three Alcotests on Appellant  Following Appellant’s arrest, [...] transported Appellant to the booking room at the Denville police station to perform an alcotest. \(^5\)  [...] went through the necessary procedures for performing an alcotest in Denville, but the “end result was a control test failure. ” (3T9:11-25).  Based on the control test failure, [...] was required to perform the alcotest using a different machine.  (Id.).  As such, [...] next transported Appellant to Rockaway Borough to perform an alcotest.  (Id.).  [...] performed the same procedure in Rockaway Borough, but again the result of the test was a control test failure.  (Id.).  As a result of the second control test failure, [...] transported Appellant to the Town of Boonton to perform an alcotest there.  (3T10:2-3).  Following a twenty minute observation period, [...] proceeded to perform an alcotest on Appellant, instructing Appellant how to properly perform a breath sample.  (3T12:8-12).  Appellant then proceeded to provide his first breath sample, at which point [...] noted that the minimum volume for the breath sample was not achieved.  (3T13:10-11).  [...] \(^5\)  As used herein, the term “alcotest” refers to a Breath Alcohol Test used to monitor the amount of alcohol in an individual’s system at the time of the test’s administration.
[brief] In other words, “there is a ‘distinction between the use of evidence of extrinsic circumstances to illuminate the meaning of a written contract, which is proper, and the forbidden use of parol evidence to vary or contradict the acknowledged terms of an integrated contract. ’”  YA Global Investments, L.P. v. Cliff, 419 N.J. Super. 1, 12 (App. Div. 2011) (quoting Garden State Plaza Corp. v. S.S. Kresge Co., 78 N.J. Super. 485, 497 (App. Div. 1963)); Clementon Sewerage Auth., 365 F.2d at 613 (“[E]vidence, whether parol or otherwise, of antecedent understanding and negotiation will not be admitted for the purpose of varying or contradicting the writing.
[brief] As if the trial court’s instruction was not enough to show the materiality of [...]’s notes, Respondent’s supplemental discovery --- \(^1\)  This is consistent with State v. Nunez, 333 N.J. Super. 42, 51 (App. Div. 2000) where this Court found that “the fact of whether a door is locked or unlocked a … reliable predictor of a reasonable expectation of privacy. ” request and renewed motion to suppress solidified this issue.  Respondent’s argument completely ignores the fact that on September 12, 2023, Appellant served a supplemental discovery request on Respondent.  Da14-15.  Appellant’s supplemental request asked for the identities of all the officers that made up the TEAMS unit, the identity of the officer who breached Appellant’s door, and the identity of any officers that possessed a Halligan tool.  [...]’s notes were responsive to the trial court’s instructions as well as Appellant's detailed request.  On September 18, 2023, months before [...] testified for a second time, Respondent replied to Appellant’s supplemental discovery requests by letter.
[brief] ” (Da34).  While [...] did not provide [...] with a deadline to provide the requested information, he did state that the [...] had ordered the records produced “on or before 2/29/21. ” (Da34).  [...] did not provide [...] with a copy of the OPRA request or the referenced [...] order at that time.  (Da33).  In response to a request from [...], on February 9, 2021, counsel for the [...] provided [...] with the OPRA request and the January 26, 2021 Interim Order of the [...].  (Da91).  On February 18, 2021, [...] informed the [...] that there were over 45,000 potentially responsive records, and that it would take an estimated 80 hours to review and retrieve the records at [...]’s hourly rate of $300.  (Da96).  [...] also requested that the [...] provide him with legal representation related to the [...] Complaint.  (Da83).  On February 18, 2021, the [...] refused to pay [...] the requested hourly rate.  (Da102-103).  The [...] ignored [...]’s request for legal representation.  (Ibid.).  On February 18, 2021, [...] wrote to the [...] that, once the [...] approved his reimbursement rate, it would take him approximately eighty hours to complete the review and retrieval of the responsive records.
[directive] Double jeopardy applies not only to dual prosecutions for the same offense, but also to prosecutions for a lesser offense, after conviction, dismissal for successful PTI participation, or acquittal of a greater offense and to prosecutions for a greater offense after conviction or acquittal of a lesser offense.  State v. Calvacca, 199 N.J. Super. 434 (App. Div. 1985).  This applies to motor vehicle offenses as well as criminal offenses.  State v. Dively, 92 N.J. 573 (1983).  Therefore, prior to consenting to the dismissal or downgrade of a DWI offense, for any reason, or to commencing prosecution when the defendant has represented that they will plead guilty, the Municipal Prosecutor should obtain a representation, on the record, from the defendant, that there is currently no collateral legal proceedings, whether criminal, quasi-criminal or civil, pertain to the subject matter or facts upon which the DWI offense if based.
[brief] Since the Law Division had crippled Plaintiffs’ case by excluding [...], Defendants all moved for summary judgment yet again on January 30, 2019, on the grounds that Plaintiffs could not establish damages.  1094a-1095a.  Plaintiffs’ opposition had to candidly acknowledge that because [...]’s report had erroneously been barred, Plaintiffs could not establish lost profits damages.  The Law Division thus entered two Orders on February 15, 2019, granting summary judgment and dismissing Plaintiffs’ Amended Complaint with prejudice.  1176a-1178a.  Plaintiffs timely filed a notice of appeal on March 28, 2019.  1180a.
[brief] ”  (Pa381).  [...]’s fear of physical harm is so great that “[...] has not been allowing her to staff the on-site office since November 17, 2016.  (Pa12, Pa187).  The acts of [...] alleged to have interfered with “Plaintiff [...]” in the course of her work have included, but are not limited to the following: (1) Intimidating her on at least three occasions; (2) Intimidating a Board member with his size; (3) Disrupting the Annual Meeting of the Members; (4) Returning to the Association’s clubhouse and threatening three Board members; (5) Sending emails in great volume, several of which contained threats and several of which sought to get Plaintiff fired; (6) Contacting the Association’s legal counsel and [...] in attempts to get her fired; (7) Insulting her and others; (8) Cursing [...]; (9) Screaming at her and others; (10) Refusing to leave the Annual Meeting.  (Pa185, Pa186; Pa381).  Plaintiff [...]’s certification included allegations of bodily injury including mental anguish.  (Pa11, Pa12, Pa13).  Of note, the complaint did not allege [...]’ conduct was “without justification” and did not allege that [...] “expected or intended” to inflict bodily injury.  (Pa265).  [...] swore that he did not “expect or intend” to cause any harm.  (Pa265, Pa294).  [...]’s statement that [...] “cannot view himself as having done anything wrong” supports [...]’ position that he did “not expect or intend” to cause bodily harm. ” (Pa294).  [...] alleged that [...] “pays attention to no one”; “has no insight into the effect he has upon other people”; and he cannot “view himself as having an intimidating or scary demeanor. ” (Pa212).  On August 3, 2018, Count Three was dismissed with prejudice.
[brief] Opinion 552, 102 N.J. at 206.  [...]’s arguments about incompatibility largely ignore the [...] and invoke allegations concerning only the [...].  Pb22-23 (explaining the Complaint has allegations about [...]’s medical director, that there are sworn statements from [...] subordinates, that the [...] threatened workers to take improper diagnostic actions or intimidate subordinates, that other [...] personnel undertook improper decisions).  [...] cannot disqualify the [...] under RPC 1.7(a)(2) with arguments geared toward an entirely separate set of defendants.  See Dental Health Assocs. S. Jersey, P.A., 471 N.J. Super. at 193-94 (explaining there is a heavy burden of persuasion on the movant seeking disqualification); In re Grand Jury, 200 N.J. at 491 (conflict evaluation is highly fact specific).
[brief] D.  The Trial Court Improperly Dismissed Count Two Of Plaintiffs’ Complaint In Holding That the Limited Attorney Exemption Is Not Unconstitutionally Vague.  (T. at 17:20-24:6).  The Limited Attorney Exemption also violates the vagueness doctrine because it fails to define “principally engaged” or “attorney-at-law of this State,” and without any guidance from Defendants as to their definitions, attorneys are unfairly left guessing as to their meaning in determining whether they are violating the Act.  A statute is unconstitutionally vague and void as a matter of due process where “persons of common intelligence must necessarily guess at its meaning and differ as to its application. ”  Pazden v. N.J. State Parole Bd., 374 N.J. Super. 356, 370-71 (App. Div. 2005); Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983).  The New Jersey Supreme Court has found that “even granting to the Legislature the utmost power which has been claimed for it, it must still be conceded that the exercise of such power requires explicit, unambiguous language. ”  State v. Packard-Bamberger, 123 N.J.L. 180, 184 (1939).  The trial court first erred by applying less stringent scrutiny to the Limited Attorney Exemption even though the Act \textit{criminalizes} the practice of debt adjustment services without a license, and also infringes upon an attorney’s First Amendment right to provide legal advice to clients.  This Court recently reiterated that “[a] criminal statute challenged as vague is subject to sharper scrutiny and given more exacting and critical assessment under the vagueness doctrine than civil enactments.
[brief] When a complaint has a disposition of exonerated, not sustained or unfounded, there shall be no indication in the employee's personnel file that a complaint was ever made.  Where a complaint is sustained and discipline imposed, the only items to be placed into the employee's personnel file are a copy of the administrative charging form and a copy of the disposition form.  See form DPF-31C in Appendix O for an example.  No part of the internal affairs investigative report shall be placed in the personnel file.  Ra70 (emphasis added).
[directive] Statute Charge Description  Degree Bail Range  10%  Cash Bail Option  Actor  (1) knowingly holds, recruits, lures, entices, harbors, transports, provides or obtains, by any means, another to engage in sexual activity as defined in paragraph (2) of subsection (a) of 2C:34-1, Prostitution, or to provide labor or services: (a) by threats of serious bodily harm or physical restraint against the person or any other person; (b) by means of any scheme, plan or pattern intended to cause the person to believe that the person or any other person would suffer serious bodily harm or physical restraint; (c) by committing a violation of 2C:13- 5, Criminal Coercion, against the person; or (d) by destroying, concealing, removing, confiscating, or possessing any passport or immigration–related document as defined in 2C:21-31, or other document issued by a governmental agency to any person which could be used as a means of verifying the person’s identity or age, or any other personal identifying 2C:13-8 Human Trafficking 1st Degree $150,000 to $400,000 No 10% information; or (e) by means of the abuse or threatened abuse of the law or legal process; or (f) by means of fraud, deceit, or misrepresentation against the person; or (g) by facilitating access to a controlled dangerous substance or controlled substance analog as set forth in chapter 35 of Title 2C of the New Jersey Statutes; or (2) receives anything of value from participation as an organizer, supervisor, financier or manager in a scheme or course of conduct which violates paragraph (1) of this subsection; or (3) knowingly holds, recruits, lures, entices, harbors, transports, provides or obtains, by any means, a child under 18 years of age, to engage in sexual activity as defined in paragraph (2) of subsection a. of N.J.S. 2C:34-1, whether or not the actor mistakenly believed that the child was 18 years of age or older, even if that mistaken belief was reasonable.
[brief] Use Of Subsequent Remedial Measures And Lay Witness Testimony For Impeachment Of Expert Witness Was Properly Excluded  Plaintiff argues that she should have been permitted to use evidence of Defendant’s subsequent remedial measures to impeach the credibility of Defendant’s liability expert [...].  At trial [...] testified that the possibility of slipping on water given the type of floor present within the [...] facility was “one in a billion”.  The fact that water was on the floor was never contested by Defendant or [...].  Plaintiff argues that evidence of [...] placing a cautionary sign evidenced Plaintiff’s belief and lay opinion that a “defective condition” existed.  This is, again, evidence of a subsequent remedial measure and is not evidence that Defendant was on notice of any conditions.