ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (Da395.)  On September 16, 2021, [...] filed its amended answer to the Complaint (Da492) and discovery ensued.  On March 2, 2023, after the close of discovery, Plaintiffs filed a motion for summary judgment on Counts One and Two of the Complaint (the “Motion”).  (Da24.)  The Borough filed its opposition to the Motion on March 21, 2023 (Da614), and Plaintiffs’ filed their reply papers on March 27, 2023 (Pa1).  The trial court held oral argument on the Motion on March 31, 2023, and entered an order, along with an opinion, granting the Motion on April 4, 2023 (Da6).  The court subsequently amended such order to add “Exhibit A” on April 28, 2023 (Da1).  In the order granting the Motion, the trial court noted that it had determined to grant summary judgment to Plaintiffs on Count One of the Complaint, thereby rendering Counts Two and Three moot, and accordingly it deemed Counts Two and Three to be dismissed (Da2 at ¶¶ 2-3).  The Borough proceeded to file this appeal on May 3, 2023. ²  STATEMENT OF FACTS
[brief] (Da12-17; 1T5-13 to 6-6).  The Honorable [...], J.S.C., imposed sentence in accordance with the plea agreement.  (2T40-4 to 13).  Defendant appealed, and the matter was heard on the sentencing calendar before a panel of this Court, (3T), which transferred the case to the plenary calendar.  (Da1).  --- 1  "Da" – defendant’s appendix "PSR" – presentence report, December 27, 2022  "1T" – plea hearing, February 10, 2022  "2T" – sentencing, December 16, 2022  "3T" – sentencing oral argument, April 22, 2024  COUNTERSTATEMENT OF FACTS
[brief] I.  In the Burke Action, plaintiff alleged in part that stormwater runoff from the driveway on [...] damaged his property.  In October 2008, plaintiff filed the Burke Action against Caroline and [...] for property damage caused by stormwater running off [...] onto his property.  Pa44, ¶ 19; Pa329, ¶ 19; accord Pa88.  The Burkes were then the owners of the property located at [...], [...].  Pa44, ¶ 20; Pa329, ¶ 20; accord Pa88.
[brief] There is no indication that Appellant was able to provide same and the Court therefore had to rely on the plain language of the statute and apply it to the allegations of the complaint.  The question of disgorgement was not addressed below and no factual basis or details were ever offered in support of that claim.  In the instant matter, Appellant built her case on unsupported conclusions that any debts purchased by [...] were void “ab initio” because [...] needed a “consumer lender” license under the New Jersey Consumer Finance Licensing Act (“NJCFLA”) or a license as a “sales finance company.
[directive] Section become This Page 25  Olt  COMPLAINT-SUMMONS CHARGE BY TO DETERMINING WHETHER 4.  COMPLAINT-WARRANT  Considerations.  4.1  General Policy referred to as a CDR-1) (commonly by complaint-summons decision whether charge The to under the significance CDR-2) takes on enhanced a complaint-warrant (commonly referred to as or of triggering event for many the the of acomplaint-warrant is Reform Law.
[brief] A party operating in bad faith can hide harmful documents simply by designating them as irrelevant.  A party acting in good faith may have a different view of the scope of relevant issues, or may not grasp all of the nuances of the requesting party’s factual position.  *Id.* at 293-94.  Larger relevancy-review projects are often performed by junior associates, paralegals, and/or contract attorneys who may not fully understand the issues in the case.  *Ibid.*  And even when reviewers fully understand the case and strive for accuracy, human error will inevitably come into play.  *See ibid.*  In many cases, the benefits of pre-production review for relevancy may outweigh the downsides.
[brief] (“[T]onight just so everyone understands is just the subdivision.  It’s the drawing of lines on the property, where those lines will be drawn and so forth….  So, if you want to come up and talk about many of the issues that were spoken about during the use variance portion of this, remember a use variance was already granted. ”)  (1T6-3 to 1T6-5; 1T6-25 to 1T7-12).  (“I ask that you keep your opinion to what he presents, not to go outside and, outside of the application and talk about things again that were already during the use variance part of this or really things that are going to be part of the site plan…  Tonight we’re just talking about where we’re going to draw the lines. ”)  (1T8-4 to 1T8-9; 1T8-10 to 1T8-12).  These comments were appropriate to ensure the orderly progression of the hearing, something the Board attorney is allowed to do.
[brief] In that case, the defendant made the request after the jury was impaneled but before opening statements were heard.  The trial judge denied the request.  The Appellate Division affirmed the denial.  Ibid.  Similarly, this Honorable Court affirmed the denial of a motion for self-representation in State v. Roth, 289 N.J. Super. 152 (App. Div. 1996), where the request came one day before the scheduled trial date.  Here, there can be no question that defendant’s request was untimely.
[brief] I.  THE DISCIPLINARY CHARGES AGAINST [...] WERE NOT SUFFICIEN[...]Y SUPPORTED BY CREDIBLE EVIDENCE IN THE RECORD (ISSUE RAISED AT Pa9-Pa11, Pa12-Pa63; RAISED IN EXCEPTIONS AT POINT I, POINT II, POINT III)  .........................................................................................................................20  1.  MULTIPLE FINDINGS IN THE DECISION ARE NOT PREDICATED UPON FACTS IN THE HEARING RECORD (ISSUE RAISED AT Pa9-Pa11, Pa13, Pa43-Pa63; RAISED IN EXCEPTIONS AT POINT I (a))…………21  2.  THERE IS NO COMPETENT EVIDENCE SUPPORTING THE ALJ’S FINDING THAT [...] SUFFERED A DRUG OVERDOSE AT [...]’S HOUSE (ISSUE RAISED AT Pa43-Pa46, Pa54-Pa55; RAISED IN EXCEPTIONS AT POINT I(A))……………………………………………………………..21  3.  THERE IS NO COMPETENT EVIDENCE THAT [...] ABUSED HIS LAWFULLY PRESCRIBED MEDICATION (ISSUE RAISED AT Pa46-Pa50, Pa54-Pa55; RAISED IN EXCEPTIONS, POINT II)…………………………..22  a.  The ALJ’s Findings That Palinczar Made False Statements And Was Untruthful Are Not Based In Fact And Should Be Disregarded (Issue Raised At Pa52-Pa55; Raised In Exceptions, Point (B))………………………………………………………………………23  b.  The Disciplinary Charges Against Palinczar Cannot Be Sustained By A Finding Of Narcotics Abuse (Issue Raised At Pa46-Pa50; Raised In Exceptions, Point II)…………………………………………………………….29  c.  The ALJ Erred In Accepting The Opinions Of Dr.  Guller After Explicitly Rejecting Him As An Expert Witness Relating To Opioid Abuse (Issue Raised Specifically At T2 At 33:19-36:22; e.g., Pa48-Pa49; And Exceptions Point III)……………………………………………………………..31  II.  THE DOCTRINE OF PROGRESSIVE DISCIPLINE DICTATES A LESSER PENALTY THAN TERMINATION FOR OFFICER [...] AS TO ANY CHARGE WHICH CAN BE PROPERLY SUSTAINED (ISSUE RAISED AT Pa55-Pa59; RAISED IN INITIAL HEARING BRIEF POINT I(B) AND EXCEPTIONS POINT IV)
[brief] Second, although the “EDA vests title in the condemnor immediately upon the filing of a declaration of taking and the payment of compensation . . . it confers only a defeasible title on the condemnor when the validity of the taking is challenged. ”  *Id.* at 327 (citation omitted) (finding instructive decisions construing federal Declaration of Taking Act which hold that the government takes only defeasible title when the validity of a taking is challenged); see also *New United*, 2014 N.J. Super. Unpub. LEXIS 786, at *22.
[brief] Da71-72.  [...] rejected Defendants’ arguments again, opining that the New Jersey Appellate Division, in *Denville Amusement Co. v. Fogelson*, 84 N.J. Super. 164, 169 (App. Div. 1964), did not hold that pay-when-able loans are not enforceable.  Da81.  On June 22, 2021, Defendants moved for summary judgment on the same bases as their prior dispositive motions.
[brief] Appellants next argue that the insureds’ expectation of coverage was reasonable because the Injury to an Insured exclusion, which is included in the separate excess liability coverage part, has an exception stating that the exclusion does not apply to excess UIM coverage.  Again, this argument should be rejected.  The Injury to an Insured exclusion does not apply to excess UIM coverage because of the nature of such coverage.  UIM coverage functions similarly to first party coverage in connection with damages suffered by an insured when a tortfeasor (other than a resident family member) does not have sufficient insurance.  It would be nonsensical to include an exclusion for injuries to an insured with respect to UIM coverage when that is exactly the type of coverage contemplated by the policy.  Thus, the exception in the Injury to an Insured exclusion has no bearing on the Insureds’ reasonable expectation of coverage under the independent excess UIM coverage part.  Additionally, Appellants’ argument appears to again misconstrue UIM coverage.  As discussed above, policy definitions that exclude coverage for vehicles owned by or made available for the use of resident “family members” are routinely held to be unambiguous and applied as written by New Jersey courts to bar UIM coverage for intra-family accidents.  UIM coverage under the Pure Excess Policy then is not unclear or a trap, but rather is consistent with frequently applied definitional terms.
[brief] 66  [...] is the contract purchaser of Lot 5.  Pa179 at 23:20-22.  In June 2022, it filed a variance development application with the Board in connection with the parcel.  The proposal, which is the subject of this litigation, sought approval to construct a building with 29 residential units on two levels, 1,180 sq. ft. of office space and 1,246 sq. ft. of retail space on the ground level, and a split-level parking garage with 66 spaces.  Inclusive of the garage (which would have at-grade and below-grade floors), the building would be four stories.  Pa110 at ¶3; Da1-16.  The aforesaid was all sought to be built on a 0.59 acre lot, Plaintiff thus proposed development at a density of 49 units per acre.  [29 units/.59 acre].  The residential component of the project violated the B-3 Zone criteria, which restricts residential use to efficiency and garden apartments.  Plaintiff’s project proposed neither.  Instead, it included 11 one-bedroom units, 14 one-bedroom with workspace units, 3 two-bedroom units, and 1 three-bedroom unit.  Of the total units, 5 would be affordable units -- to include 1 one-bedroom unit, 3 two-bedroom units, and 1 three-bedroom unit.  Da1-7; Pa115 at ¶13; Pa268 at 40:3-13; 22-24.  Plaintiff could have sought approval for a project that complies with the B-3 residential use restriction; it chose not to do so.  66  [...] put forth a proposed development that so deviated from B-3 Zone criteria that approval of same required variance relief for the following:
[directive] In order to ensure the most efficient use of law enforcement resources, I have determined that it is necessary and appropriate to adjust the twice-annual requirement of the Semi-Annual Firearms Qualification and Requalification Standards for New Jersey Law Enforcement for calendar year 2020.  Law enforcement officers will be required to complete a single firearms requalification this year, which will keep them in compliance with N.J.S.A. 2C:39-6j, which requires officers to complete an initial firearms training course and then an qualification.  annual  1  A copy of these Standards can be found at https://www.state.nj.us/lps/dcj/pdfs/dcj-firearms.pdf.  New Jersey Is An Equal Opportunity Employer • Printed on Recycled Paper and is Recyclable  Page 2  Although adjusting the twice-annual firearm requalification requirement to a single requirement for 2020, I am not relaxing the training requirement in the Attorney General’s Use of Force Policy requiring officers to complete twice-annual training on the “lawful and appropriate use of force force. ”2 and deadly  This Use of Force training does not require the use of a firing range and is often completed via online and other electronic learning platforms.  It is an important component of New Jersey law enforcement’s robust in-service training requirements.
[brief] To prevail on a claim of breach of contract, “[o]ur law imposes on a plaintiff the burden to prove four elements: first, that “the parties entered into a contract containing certain terms”; second, that “plaintiffs did what the contract required them to do”; third, that “defendants did not do what the contract required them to do,” defined as a “breach of the contract”; and fourth, that “defendants’ breach, or failure to do what the contract required, caused a loss to the plaintiffs. ”  Goldfarb v. Solimine, 245 N.J. 326, 338 (2021), citing Globe Motor Co. v. Igdalev, 225 N.J. 469, 482 (2016).
[brief] Appellants’ position has always been that the agreement at issue is a commercial contract and is not a contract of adhesion.  The SPA and its incorporated documents, including the POS are a commercial contract that by operation of New Jersey Statute and Code mandates purchasers, like Respondents, possess the irrevocable opportunity to negotiate, cancel or terminate the agreement, with the assistance of Counsel.  Unlike Atalese, the SPA is not a contract of adhesion, and it certainly did not involve the purchase of a “needed” good or service.
[brief] SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. [...]  STATE OF NEW JERSEY, : CRIMINAL ACTION  Plaintiff-Appellant, : On Motion for Leave to Appeal from an Interlocutory Order, Superior Court of New Jersey, Law Division v. : Gloucester County, Granting in part  Defendant’s Motion to Suppress  [...], : Indictment [...]  Defendant-Respondent.
[directive] Mitigating Factor #3 applies when the defendant voluntarily and completely terminated participation in the criminal conduct before arrest or police intervention.  This factor would not apply where the defendant’s renunciation was in anticipation of his or her immediate apprehension or in anticipation of the imminent discovery of drugs in his or her possession by a search to be conducted by law enforcement authorities.  Rather, this factor, which is worth -4 points, would apply only in the case of a self-initiated, complete, and voluntary termination of the defendant’s participation in the criminal conduct.
[brief] ” (Pa435).  This advertisement was made with the intention Plaintiff rely on it to apply to, and accept admission to, the new Pharm.D program.  In fact, by letter dated May 31, 2012, the [...] wrote to the [...] (“[...]”), including a proposed Concurrent Degree Enrollment Program Guidelines and Overview packet, which included 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).  Yet, there is no indication that this document sent by the [...] to the [...] Council was, at that time or at any other time, provided to the inaugural class enrolled into the Pharm.D program.  This is despite the Defendant’s letter to the [...] counsel which indicated, “In addition, the School’s webpage has been restructured to ensure that students are fully aware of the master’s program options and necessary requirements for enrollment and completing of a master’s degree in conjunction with the Doctor of Pharmacy Degree.
[brief] PROCEDURAL HISTORY AND COUNTERSTATEMENT OF FACTS ......  1  ARGUMENT  I.  THE BOARD’S DENIAL OF [...]’S UNTIMELY ELIGIBILITY  REGISTRATION FORM FILED OVER ONE YEAR AND ONE MONTH PAST  THE STATUTORY DEADLINE IS REASONABLE AND SHOULD BE AFFIRMED .................................................  5 II.  CONSIDERATIONS OF ADEQUATE OR ACTUAL NOTICE  DO NOT COMPEL A DIFFERENT RESULT  ..................................................................................................................  10  CONCLUSION ...........................................................................................................................................
[brief] [...]’s representative, [...], acknowledged receipt of that email but, a week later, advised Plaintiff that she had “[j]ust been told the deal is ‘on hold. ’” (Pa11, Complaint ¶ 43; Pa345, ¶¶ 13-16).  Plaintiff responded by email and specifically asked [...] to advise him of the status of the transaction and rescheduled closing date.  In reply, [...] affirmatively agreed to do so, stating “Will do. ” (Pa11, Complaint ¶ 43; Pa345, ¶¶ 13-16).  Plaintiff reasonably relied upon [...]’s representation that she would keep Plaintiff apprised of the closing date.  (Pa11, Complaint ¶ 44).  Plaintiff and its principals had enjoyed a longstanding and well-established relationship with [...] and its principals, Susan and [...], over the course of approximately 25 years and over 100 transactions.
[brief] (Pa12)  I.  The New Jersey Supreme Court Decision in Haviland v. Lourdes Medical Center  After the dismissal of [...] from the case, the New Jersey Supreme Court in Haviland v. Lourdes Medical Center, 250 N.J. 368 (2022) held that no affidavit of merit was required to support a vicarious liability claim based only on the conduct of its non- --- 4  As noted above, in Haviland, plaintiff sued John Doe defendant who was the agent of Lourdes Medical Center.  While Appellant in this matter has sued the employee of [...], [...], at no time has Appellant sued [...] which is further evidence of the claim being brought only against the corporate entities. licensed employee.  In said case a radiology technician had the plaintiff, who had undergone a surgical procedure to “hold weights contrary to the [ordering physician’s] instructions.  While holding the weighs, the Plaintiff sustained an injury.  Unlike the case at bar, in Haviland, the Plaintiff did not raise any direct claim against the hospital for negligent hiring, training, or supervision of the non-licensed employee.  Indeed, plaintiff in Haviland did not dispute that, had he pursued a direct claim, it would have been properly dismissed for failure to provide a timely AOM.  As noted below, Appellant brings his claim against [...] and [...], not [...] and the complaint sounds in negligent supervision and design.  (Pa64)  **POINT I**
[brief] *Roberto*, 477 N.J. Super. at 366 (emphasis added).  *Roberto*’s pipeline retroactivity makes sense if limited to the foreclosure context.  See *Stone Wool 22, LLC v. Streater*, No. A-2613-22, 2024 WL 3241363, at *6 (N.J. Super. App. Div. July 1, 2024) (Characterizing *Roberto* as holding “that relief under Rule 4:50-1(f) is appropriately granted where a property owner makes a timely application to vacate a final judgment of foreclosure . . . accompanied by a credible proffer to timely redeem the certificate[.]”).
[directive] 2.  Upon receipt of a Nicole’s Law restraining order entered by a Criminal Division or Municipal Court judge that involves a child-victim, Family Division staff shall determine whether any Family Judge has issued an order authorizing contact between the defendant and the victim that would appear to conflict with that restraining order.  3.  When any such apparently conflicting order is identified, the Criminal Division or Municipal Court judge who issued the Nicole’s Law restraining order and the Family Division judge who entered the Family Part order shall consult with each other to resolve that conflict as expeditiously as practicable.  Any order modified as a result of that consultation shall be placed on the record and shall be distributed in accordance with paragraph 1 above, as well as forwarded to the Criminal and Family Divisions and to the municipal court (if the Nicole’s Law order was issued by a Municipal Court judge).
[brief] So, when I look at the variances that we’re seeking and balance, you know, the positive and negatives for this application, I look at the fact that, you know, when we’re looking at the negatives for this project, I don’t see a substantial negative to the additional units that we are seeking beyond what is permitted by the EMF-18 zone.  I do see, you know, in balancing these positives, this upkeep of the site, the additional landscaping, all these amenities that can be added at this point, and I see that as a positive.  I see an efficient use of land.  Infill development is always seen as a positive.  You know, when you have an area in [...] that is so – you know, has a wide variety of land, you know, I’d rather see development in existing development areas, as opposed to adding development, adding affordable housing, things like that, undeveloped farmland, and basically changes the character on the outside of the focal area.  I’d rather put it here.  It’s right near – it’s right near promotion corridors.  It’s right near other housing.  It’s in the multi-family zone.  This is where multi-families should be.  In terms of the design of the buildings.  Again, I think that you know this applicant, they built, you know, four-story, five-story, twelve-story buildings, you know, in urban areas.  This is a site that has been developed based on the design of the [1960s] garden style apartments.  That’s what we’re looking to put in place here.  We’re not looking to wipe it clean and bring something different.  We’re actually looking to something that would compliment the existing development here.  So, I think from an efficient use of land and also a visual...  I think we see some benefits with this application.
[brief] On appeal Plaintiff does not dispute that [...] and Defendant practice within different specialties that are recognized by the American Board of Medical Specialties ('ABMS'), that the care and treatment provided by Defendant arose out of a specialty that [...] does not practice or that Nicholas, supra is controlling.  Rather, Plaintiff contends that [...]’s “specialty of Surgical Critical Care is equivalent to the Critical Care [specialty] that [...] was practicing” and therefore the Affidavit of Merit ('AOM') is compliant.  Pl. Br. at 19.  In support of this argument, Plaintiff relies on [...]’s self-serving observations and a misplaced argument that ignores the plain language of statutory law and the express rulings of controlling case law.  Pl. Br. at 20 - 21.  In reality, as will be developed herein, Plaintiff’s argument stands in direct contravention to the plain language of N.J.S.A. § 2A: 53A-27, et. seq., which is commonly referred to as the Affidavit of Merit Statute ('AMS'), the seminal case of Nicholas and the recent Appellate Division cases of Pfannenstein ex rel. Est. of Pfannenstein v. Surrey, 475 N.J. Super. 83 (App. Div.), cert. denied, 254 N.J. 517 (2023) and Wiggins v. Hackensack Meridian Health, 478 N.J. Super. 355 (App. Div. 2024).
[brief] *Khimmat* at 710 (internal citations omitted).  The court in *Jackin v. [...]*, 606 F. Supp. 3d 1031 (E.D. Wash. 2022) also concluded the communication with a mail vendor violates the FDCPA.  As *Hunstein I* and *II* had done, *Jackin* at 1039: recognize[d] the economic burden that its holding may have on Defendant, as Defendant can no longer legally outsource its collection efforts to commercial mail vendors in the same manner.  But the Court must take Congress at its word, which here bars Defendant’s outsourcing practice.
[brief] 28.  [...]’s land use ordinances and regulations permit, under certain circumstances, the installation and operation of public utility facilities, public service infrastructure, public purpose uses and public improvements.  In some instances, as is the case with the Facility, site plan review is required—or may be waived—by the local zoning authorities.  In other words, the Facility generally and/or certain elements of it are subject to and require local zoning site plan approval.