ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Both Respondents also argue that the $2,000,000 payment was intended to carry out the purposes of the LRHL and the Oceanfront Broadway South Redevelopment Plan.  The senior citizens center is not mentioned in that plan.  And almost any capital improvement would fulfill the purposes of the LRHL and the Redevelopment Plan, i.e. to “reestablish the identity of [...],” “increase employment opportunities,” “improve the City’s image,” and the like.  Those goals are commendable, as was the goal in Nunziato to pay for affordable housing, but they do not allow the City to demand a $2,000,000 payment in consideration for a “density bonus. ”  No matter how laudable the City’s goal might be in the absence of a delegation from the Legislature and the adoption of an ordinance with adequate standards, that goal cannot be fulfilled by awarding “density bonuses” in return for large “give backs. ”  POINT II
[brief] Therefore, the defendant must rebut the presumption that the challenged action, under the circumstances of the trial, would be “‘considered sound trial strategy. ’”  Id. (citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164 (1955)).  “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."
[brief] 2T137:25-138:3.  [...] specifically testified on redirect, without objection from counsel:\(^2\) Q.  Okay.  So when you signed the [Redevelopment A]greement, you never thought you would actually have to build the garage, right?  A.  Exactly, yes, sir.  Because at the time it was all predicated on the mall being successful and generating the kind of foot traffic that we thought we can get.  Q.  So when would you have actually known whether or not the mall was going to be successful?  A.  Well, it all depends.  It all depends.  I don’t know what to tell you.  But from day one – obviously it took a long time for them to get to – to the level where, where they had the kind of traffic that we were anticipating.  [3T114:14-115:1.]  In fact, [...] was specifically asked, prior to allegedly speaking with [...] principal [...] (“[...]”) in 2009 about purported alternative proposals, if “the Authority intend[ed] to construct the Authority [G]arage as it agreed to in the [R]development [A]greement,” to which [...] responded, “No. ”  2T137:25-138:9; 3T113:24-114:2 ([...] confirming his deposition testimony that Defendant never believed it would actually have to construct the Authority garage).  \(^2\) [...] called [...] as a witness in its direct case.  H.  The Authority Never Took Any Steps To Prepare For The Construction Of The Authority Garage
[brief] (302a, ¶5).  Schedule B, Part I of the commitment contains twenty (20) separate requirements that had to be satisfied by Plaintiff before a final title policy could be issued.  (308a–10a).  Paragraph (4) of Schedule B, Part I specifically requires: (a) “Deed from [...] and [...] to [...]” had to be “properly authorized, executed, delivered, and recorded in the Public Records” and (b) “Mortgage to be properly executed by [...] in favor of TO BE ANNOUNCED, to secure the proposed loan in the amount of $105,000.00. ” (308a).  Indeed, Plaintiff did not satisfy the conditions to finalize the title commitment, nor could he because the underlying real estate transaction was invalid and illegal.  The Illegal Real Estate Sales Contract, Use and Occupancy Agreement and Disclosure
[directive] 6.1.8  Commencing a criminal investigation into the subject matter of an internal affairs complaint will suspend the 45-day rule pending the disposition of that investigation; such suspension remains until the disposition of the criminal investigation.  (Similarly, a criminal investigation will toll the notice requirements established in Sections 6.1.4 – 6.1.6.)  Upon disposition of the criminal investigation, agencies will once again be bound by the 45-day rule, with the 45-day period starting anew upon termination of the criminal investigation.  25
[brief] 4.  The Arbitrator improperly found the [...] project was subject to the PTA despite the parties never agreeing to an EGP for this project...........................................28  5.  The Trial Court’s conclusion that the Arbitrator based his findings on the parties’ course of conduct is erroneous and not supported by the record [Da31-32]  ....  31  POINT II  THE TRIAL COURT ERRED BY DENYING [...]’S MOTION TO MODIFY THE AWARD BECAUSE THE AWARD CONTAINS  MANY ERRORS IN THE CALCULATION OF INTEREST AND DESCRIPTION OF THE PROJECTS AT ISSUE  [DA32]
[brief] These new claims arose *after* they were uncovered by Plaintiffs during the course of litigation in the 2015 Action, overcoming years of Defendants’ concerted efforts to fraudulently conceal them.  It is inconceivable to conclude that Plaintiffs’ mere efforts to bring these new claims in the 2015 Action by way of a motion to amend constitutes Plaintiffs’ fair and reasonable opportunity to have fully litigated these new claims in the 2015 Action, especially considering the fact that The Honorable [...], J.S.C., did not deny Plaintiffs’ motion to amend in the 2015 Action for substantive reasons related to the merits of Plaintiffs’ new claims.  Instead, [...] solely denied Plaintiffs’ motion to amend because Her Honor did not want to delay the trial and found that Plaintiffs would not be barred from filing these new claims in a new action, where they would then be given a fair and reasonable opportunity to be fully litigated.
[brief] The facts of the *Nagy* case make it easily distinguishable – chiefly, that video of the fall was actually recorded on [...]’s surveillance camera and [...] was served with a preservation letter demanding that it preserve any and all surveillance video.  *Nagy*, supra, at *3.  Immediately after the fall, the plaintiff was taken from the premises by ambulance and [...] learned the next day that the plaintiff was in the hospital and waiting to undergo surgery.  *Id.* at *2.  The *Nagy* court found that [...] then “preserved some but not all of the most pertinent video evidence while allowing the rest to be overwritten” and that “the video at issue here was not merely overwritten in the normal course.  It was affirmatively not preserved after being viewed by an [...] employee and claims administrator, and it was allowed to be overwritten. ”  *Id.* at *15.  In *Nagy*, the allegedly dangerous condition (the grease spill) would have been readily apparent to anyone tasked with preserving the video.  Conversely, there is no evidence, via expert opinion or otherwise, of an dangerous condition that would have been readily apparent to the [...] employee tasked with identifying what, if any, video evidence should have been preserved.  Similar to *27-35 Jackson Ave., LLC v. Samsung Fire & Marine Ins. Co., Ltd.*, 469 N.J. Super. 200, 211 (App. Div. 2021), a case relied on by Plaintiffs, there are no published decisions in which an adverse or spoliation inference was used as a remedy in similar circumstances and an adverse or spoliation inference has no place in this litigation.
[brief] ”  Furst v. Einstein Moonjy, Inc., 182 N.J. 1, 21, 860 A.2d 435 (2004).  “The court must not include excessive and unnecessary hours spent on the case in calculating the lodestar. ”  Furst, supra, 182 N.J. at 22, 860 A.2d 435.  The court is required to make findings on each element of the lodestar fee.
[brief] See Williamson, 138 N.J. at 304.  In Jones, for instance, the defendant failed to signal a lane change on a weekday during rush hour, when there were “quite a few cars on the road. ”  326 N.J. Super. at 237, 239.  The Court held that, in light of the rush hour traffic conditions, it was reasonable to conclude that the lane change might have an effect on other vehicles.  Ibid.  The position of other traffic in relation to the car at issue is also a relevant consideration.  For example, in Williamson, a motorist driving on a three-lane highway moved from the center lane to the right lane without signaling.  138 N.J. at 303-04.  The record was not developed as to the condition of other traffic in the area, but the testimony established that there was a police car driving in the left lane behind the motorist.  *Ibid.*  The Supreme Court held that the undeveloped record did not demonstrate that the traffic stop was justified and remanded the matter to the trial court to focus on this issue.  *Id.* at 305-06.  In so doing, the Court explained that “the motorist was moving away from the trooper’s car, movement that would appear to facilitate the movement of the trooper’s car. ”  *Id.* at 304.  The Court thus indicated that the presence of the police car alone did demonstrate that a signal was required, given the position of the police car in relation to the motorist.  In this case, the testimony fails to establish that the sedan’s lane change was “in some degree likely to” affect other traffic, such that a signal was required.
[brief] See State v. Schumann, 111 N.J. 470, 478 (1988) (finding that improper summation comments compounded the prejudicial effect of other crimes evidence).  B.  The Prosecutor Began And Ended His Summation By Inflaming The Passions Of The Jury.  The prosecutor began and ended his summation with remarks intended to inflame the jury, engender sympathy for the victim, and convey that justice would not be done unless [...] was convicted.  We are here, ladies and gentlemen, because [...] was killed.  Okay?  It’s just the way trials work.  You don’t see hear a lot about [...], but he’s the reason we’re here.  His life was taken from him.
[brief] Beukas v. Bd. of Trustees of Fairleigh Dickinson Univ., 255 N.J. Super. 552, 566 (Law. Div. 1991), aff’d, 255 N.J. Super. 420 (App. Div. 1992).  The Beukas court continued: “in the absence of a showing of bad faith, arbitrariness or lack of prompt notice by defendants of their intention to close the dental college there is no purpose in forcing a contract analysis upon the relationship only to have the court reject whatever classic contract principle the court, in its discretion, thinks should not apply. ”  Beukas, 255 N.J. Super. at 564.
[brief] Further, the Commission had already heard Respondent’s Motion to Dismiss at an earlier stage in litigation.  On August 23, 2022, based on Respondent’s Motion to Dismiss in Lieu of an Answer, the Commission specifically determined that “Counts 1-2, Counts 4-5, and Counts 8-12 should not be dismissed” under its standard for complaint dismissal.  (Ca213).  In its decision on that Motion to Dismiss, the Commission specifically “denied” the motion as to Counts 1-2, Counts 4-5, and Counts 8-12.  (Ca214).  Now, for reasons it has failed to articulate, the Commission has changed its mind and decided to *sua sponte* “dismiss” the Complaint outright.
[brief] 42 Nicolosi v. Smith & Nephew, Inc., 2017 N.J. Super. Unpub. LEXIS 389 (App. Div. 16, 2017) ......................  70  NVR v. Nat’l Idem. Co., 2010 N.J. Super. Unpub. LEXIS 2336 (Super. Ct. Law Div. Aug. 20, 2010) ....................................................
[brief] THE TRIAL COURT PROPERLY DETERMINED THAT THE COMPLAINT FAILED TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED AGAINST FIBERVILLE  Given the conclusions of law based on undisputed facts made by the trial court in granting summary judgment to the [...] and dismissing the Appellants’ claims in the Prior Action, it is clear that Appellants’ belated claims against [...] in this action are not sustainable as a matter of law.  The trial court’s dismissal of Appellants’ Complaint in this action was appropriate based on, among other things, its unequivocal determination in the Prior Action that Appellants’ alleged losses in that action – the same losses alleged in this action - were “the direct and proximate result of [Appellants’] failure to cure the default under the Lease with [...]. ”  [Pa144].  Indeed, as the trial court noted in the Prior Action, “If [Appellants] had not defaulted under the Lease, they would have the Solar Rights and Solar Project, and the subject action would be moot. ”  [Pa144].  Further, the undisputed facts make abundantly clear that these claims facially lack merit, thereby justifying their dismissal as a matter of law for failure to state a claim upon which relief can be granted against [...].
[brief] F) I also had valid arguments as to the technical defects of the motions to dismiss.  In addition to all of the substantive defects which I have addressed above, there were also numerous procedural / technical defects with both versions of the motion to dismiss.  [...] had prepared his Aug 16, 2022 *R. 1:4-8* letter (Pa77) after he already filed a motion to dismiss on Aug 11, 2022 (Pa8) – a motion which was technically defective.
[brief] [...]’s Professional Relationship with [...]**  In 1998, [...] was enrolled into PERS as the municipal public defender for [...].  (Pa82).  He was reappointed annually through 2019 via municipal resolution.  (Pa87).  Specifically, from 2007 through 2019, [...] continued to be reappointed as public defender, for one-year terms, pursuant to annual resolutions passed by the [...] township council.  (Pa144-156).  Each resolution stated that “the Local Public Contracts Law (N.J.S.A. 40A:11-1, et seq.) requires that the resolution authorizing the award of a contract for professional services without competitive bids must be publicly advertised. ”  *Ibid.*  The resolutions further stated that:  WHEREAS, this contract is awarded without competitive bidding as a “professional service” under the provisions of said Local Public Contracts Law because said services are rendered or performed by persons authorized by law to practice a recognized profession, which practice is regulated by law, and which practice requires the knowledge of an advanced type in a field of learning acquired by a prolonged, formal course of specified education and instruction and because it is impossible at this time to know the exact dimensions of the services to be performed, and accordingly, written specifications, and additionally, because the said services of such a qualitative nature as will not permit the receipt of competitive bids due to the subjective difference in the work product of such persons and the fact that the ethical requirements of such profession will not permit such bidding; [Ibid.]  According to the language of the resolutions, public notice of each resolution was published in the newspaper.  Ibid.  On August 13, 2012, [...], the assistant treasurer for [...], wrote to the Division stating that four individuals needed “to be removed from the Pension System as of January 1st 2008.
[brief] With respect to Interrogatory No. 25, Plaintiff may not rest on the alleged typographical error (Appeal at 4), and is directed to respond to the Interrogatory as clarified by Defendant, which seeks “specific information as to your allegations of discrimination (in this case meaning your alleged perceived sexual orientation claim).” (Appeal, Ex. 5).  Moreover, the Court affirms [...]’s order to extent that she determined that Plaintiff’s response to Interrogatory No. 26 failed to provide specific, relevant information sought by Defendants.  •  Finally, [...] did not abuse her discretion in finding that Defendant may take a discovery deposition of Plaintiff regarding Defendants’ request for wage and hour information (a listing of Plaintiff’s job responsibilities with Defendants (Interrogatory No. 24)), factual information supporting the claim that Plaintiff was asked to perform tasks beyond his role (Interrogatory No. 36); and a factual basis for Plaintiff’s claim that he is entitled to overtime pay (Interrogatory No. 44).  Magistrate judges maintain broad discretion in determining whether depositions are warranted.  Net2phone, Inc. v. Ebay, Inc., No. CIV.A. 06-2469 (KSH), 2008 WL 4755612, at *1 (D.N.J. Oct. 27, 2008) (“[M]agistrate judge has wide-ranging authority to conduct discovery in the manner he or she deems fit. ”).  Accordingly, [...]’s decision is affirmed, and a deposition shall follow as directed.
[brief] APPENDIX  TABLE OF CONTENTS .................................................................................. iv TABLE OF AUTHORITIES ............................................................................................. v PRELIMINARY STATEMENT .........................................................................................  1  PROCEDURAL HISTORY ...............................................................................................  4 STATEMENT OF FACTS ...............................................................................................  5  POINT I  THE LOWER COURT’S CONSIDERATION OF THE COVID STATUTE WAS NECESSARY AND APPROPRIATE ...........................................  20  A.  The entire controversy doctrine requires that this matter be decided in a single proceeding ..............................................................................................................  23  B.  The doctrine of waiver should preclude [...] from asserting that the Superior court lacks jurisdiction to construe the COVID Statute .................................................................................................................................  25  C.  The Commissioner’s jurisdiction over Title 18A matters is not exclusive .................................................................................................................................  26  D.  The COVID Statute plainly contemplates a private right of action ...  28 POINT II
[brief] Immediately after receiving the tip information from [...], [...] observed the identified vehicle in the described area and noticed that the occupants were in violation of the motor vehicle code due to their failure to wear seatbelts.  Due to this motor vehicle violation, officers conducted a lawful stop.  Officers approached the vehicle and engaged the occupants.  While [...] was speaking with the defendant passenger, he noticed, consistent with the tip, the heavily weighed down crossbody fanny pack on defendant’s person.  In addition to the officer’s observations of the bag’s appearance, the defendant was holding the bag tight to his chest and appeared visibly nervous.  [...] described the manner as furtive and unnatural, and that based on his training and experience, consistent with someone trying to hide what was inside.  The court properly weighed [...]’s testimony and in-court demonstration, together with the body-worn camera footage, and found it credible.  One must only imagine what an officer is to do under such circumstances.  After responding to a tip from a previously reliable CI that was corroborated by (1) the vehicle description; (2) matching registration numbers; (3) location; and (4) a male inside wearing fanny pack, and then witnesses the furtive gestures and nervousness consistent with someone trying to conceal something dangerous, the officer, for his own protection, must be permitted to briefly remove that passenger from the vehicle.
[brief] Defendant next contends that trial counsel was ineffective for failing to call his brother and co-defendant [...] during the trial.  Specifically, defendant contends that [...] could have corroborated the testimony about “third-party planners” of the robberies and exculpated the defendant.  Contrary to defendant’s arguments, trial counsel competently represented the defendant throughout the trial and any decisions made by counsel were a matter of trial strategy.  Trial counsel’s strategy is “virtually unchallengeable. ”  Strickland, 466 U.S. at 690.  When arguing that counsel conducted an inadequate pretrial investigation, a defendant “must do more than make bald assertions that he was denied the effective assistance of counsel. ”  State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999).  Ineffective assistance of counsel is not proven by showing, with the benefit of hindsight, that counsel’s strategic decisions did not succeed.  DiFrisco, 174 N.J. at 221; see State v. Drisco, 355 N.J. Super. 283, 290 (App. Div. 2002), certif. denied, 178 N.J. 252 (2003).  Even if counsel could have performed better, defendant is not entitled to PCR relief if there is no “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
[brief] (3T: 298:09 – 315:21).  14.  The Trial Court also denied Respondent’s Motion for a directed verdict as to Appellant’s negligence, pursuant to *Dolson v. Anastasia*, 55 N.J. 2 (1969).  (3T: 315:22 – 318:07).  15.  Accordingly, the jury was left to determine Appellant’s negligence based upon Model Civil Jury Instructions 5.10A and 5.10B, which required the jury to determine whether Appellant acted as a reasonably prudent person; or if Appellant deviated from said standard.  (4T: 113:05 – 119:18).  16.  As a result of the subject collision, Respondent alleged personal injuries, including but not limited to an acute and permanent disc herniation in the cervical spine at C6-7, an acute and permanent radiculopathy found by EMG at C5-6 and an aggravation of pre-existing but asymptomatic degenerative findings in the cervical spine, most notably at C4-5 and C5-6.
[brief] The facts conceded by defendant show plaintiff suffered an ascertainable loss, in the form of improper charges and liens imposed and out of pocket costs due to the unlawful business practice of defendant.  Equitable estoppel is designed to ensure that the loss is born by the party who "made the injury possible or could have prevented it."  Foley Mach. Co. v. Amland Contractors, Inc, 209 N.J. Super. 70, 75 (App.Div.1986).  Although equitable principles in appropriates case can operate as a defense to the CFA, each case must be examined on its own specific facts and circumstances in order to determine its applicability.
[brief] Cases  Anastasio v. Planning Bd. of Tp. of West Orange, 209 N.J. Super. 499 (App Div.) ......................12 certif. den. 107 N.J. 46 (1986)  Beadling v. William Bowman Assoc., 355 N.J. Super. 70 (App.Div. 2002).................................14
[brief] [...] cited two “consumption exception” cases from other jurisdictions that restored coverage for mold losses resulting from the consumption of mold on food that the Trial Court found “instructive. ”  Acuity v. Reed & Associates of TN, LLC, 124 F.Supp. 3d 787 (D. Tenn. 2015) and Nationwide Mutual Fire Ins. Co. v. Dillard House, 651 F.Supp.2d 367 (N.D. Ga. 2009).
[brief] Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, **a debt collector may not communicate, in connection with the collection of any debt, with any person** other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.  [Emphasis added.]  The focus here is on the bolded text because there is no contention that a debt collector’s communication with a mail vendor falls within a statutory exception or was made to one of the authorized recipients.  Every federal court to consider whether a communication with a mail vendor violates § 1692c(b) finds the ordinary meaning of those statutory words are unambiguous and concludes that such a communication violates that provision without leading to an absurd result by frustrating the FDCPA’s purposes.  To the contrary, the federal courts’ construction is consistent with the statutory scheme and promotes the statutory purpose of protecting consumers’ individual privacy.  In *Hunstein v. Preferred Collection & Mgmt. Servs.*, 994 F.3d 1341 (11th Cir. 2021) (*Hunstein I*) and *Hunstein v. Preferred Collection & Mgmt. Servs.*, 17 F.4th 1016 (11th Cir. 2021) (*Hunstein II*), the court concluded that the consumer stated a claim for violation of § 1692c(b) when alleging the debt collector supplied information to a mail vendor used to generate, print, and mail a collection letter.