ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] In every contract there is an implied covenant of good faith and fair dealing that demands that “neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. ”  Palisades Props., Inc. v. Brunetti, 44 N.J. 117, 130 (1965) (quoting 5 WILLISTON ON CONTRACTS § 670, pp. 150-160 (3d ed. 1961)).  “The covenant is among the few terms that ‘[c]ourts have been called upon to supply. ’”  Wilson v. Amerada Hess Corp., 168 N.J. 236, 244 (2001) (citation omitted).  While a covenant will not be implied so as to override an express term of a contract, “a party’s performance under a contract may breach that implied covenant even though that performance does not violate a pertinent express term.
[brief] [DEFENSE COUNSEL]:  Your Honor, I’ll discuss with him that.  THE DEFENDANT: I would like to – THE COURT: Please do.  THE DEFENDANT: – represent myself here, Your Honor, from now on out.  THE COURT: We are done for today, [...].  If you want to make an application to represent yourself, you do so – THE DEFENDANT: I am.  THE COURT: – after consultation with [defense counsel].  [(1T33-13 to 34-5)].  No application was made.  The court did not abuse its discretion by advising defendant that to proceed pro se he would have to file an application.
[brief] PETITIONERS’ APPLICATION SHOULD BE DISMISSED AND NOT REMANDED.  Perhaps recognizing that their challenge under N.J.S.A. 1:7-1 to -7 will fail, Petitioners request as an alternative that the matter be transferred to the Law Division so that they may challenge the substantive nature of the legislation.  (Pb44).  But that request for a remand should be denied as they lack standing to challenge the constitutionality of Chapter 375’s provisions.
[brief] 2  As this appeal is strictly limited to the lower court’s decision on the Motion to Suppress, the transcript of plea was not provided in connection with this appeal. summonses and granted a stay of the jail portion of the sentence for thirty (30) days.  (Da21).  Wherein, on November 20, 2024, the Defendant filed the instant Notice of Appeal that is now the subject of the matter before the Court.  (Da24 to Da25).  On November 26, 2024, the Defendant filed a Notice of Motion to Admit the Defendant to Bail Pending Appeal Pursuant to R. 2:9-4.  (Da28 to Da29).  Oral argument was heard on December 3, 2024, at the conclusion of which, the court released the Defendant on his own recognizance and stayed the incarceration portion of his sentence pending the resolution of the appeal.  (Da30).
[directive] The NGRI acquittee is hereby committed to the custody the Commissioner the 1. of Department Health pursuant to N.J.S.A. 2C:4-8(b )(3) to be confined in an appropriate institution and treated as a person civilly committed, where the acquittee shall undergo treatment as determined to be clinically appropriate; and If of the Commissioner or designee the institution to which the NGRI committee has been 2. of committed is the clinical opinion that the committee may be unconditionally released or released on conditions without danger to self, others, or property, or that they may be transferred to a less restrictive setting for treatment, then the Commissioner or designee at the institution shall provide this court and the counsel identified below with a report pursuant to N.J.S.A. 2C:4-9; and by Form Promulgated Directive #21-20 (08/05/2020), [...] (KROL Order 3)  At any time the NGRI committee may apply to this court for release pursuant to N.J.S.A. 3. 2C:4-9; and The NGRI committee shall not be administratively discharged by the institution without 4. of further order this court; and _____________ (Any additional conditions ordered by the court) _ as 5.  ____  A review hearing shall be held on _ 6.  ____  Reports to the court and counsel shall be due on _ 7. of The NGRI acquittee's maximum period commitment or supervision under N.J.S. A. 2C:4-8 8. is_ and_ years months and terminates on [fill in the date] of  of  A copy this Order will be forwarded to the County Adjuster's Office by the Clerk the Court of within two (2) days its signing.  Judge Date
[brief] Service are defective. ” (Pa6).  The motion failed to dispute default on the underlying loan, the indebtedness memorialized in the judgment, or even dispute being served (Pa6).  The motion simply alleged the Affidavits of Service were “defective. ”  (Pa6)  3.  In an effort to cooperate with these efforts, [...] completed a personal information subpoena and a business one, to update the ones he had provided in the spring of 2022.  4.  These information subpoena answers were sent to Plaintiff’s counsel in my letter of June 21, 2023.  . . . .  8.  Although we oppose the deposition of [...], we do not contest the deposition of [...], and I have already reached out to Plaintiff’s counsel to schedule a date for same via zoom. 9.  On July 7, 2023, I reached out to Plaintiff’s counsel to discuss the facilitation of proper post-judgment discovery.
[brief] Finally, Plaintiff does not squarely address why it apparently avoided serving at the [...] address that it already had associated with [...], or the deficiencies in proofs submitted to the lower court in support of its motions to authorize substituted service or to enter final judgment by default.  Instead, Plaintiff argues that Defendant’s reliance upon *M & D Associates v. Mandara*, 366 N.J.Super. 341, 353 (App. Div. 2004) is misplaced because service was not made by publication.  However, the import of *M & D Associates* is not the manner of service, but rather that if the plaintiff had complied with R. 1:6-6, it would have obtained the correct service address of a necessary defendant.  The *M & D* plaintiff’s attorney filed an affidavit of inquiry indicating that he had “contacted the [...], checked the telephone book, and reviewed the records of the tax office,” but had been unable to locate an address to serve the defendant in question.  *Id.* at 347.  However, that defendant had been living at the same New Jersey address since 1990, and was in fact listed in the voting rolls.  The Appellate Division reasoned that if the plaintiff had obtained “a certification from a custodian of documents from the Board of Election” rather than relying upon “hearsay statements,” it would have identified the appropriate address for service of process.  *Id.* at 355.  The issue at bar is largely the same insofar as the Plaintiff could easily have determined that [...] was [...]’s correct address for service of process, and that Plaintiff similarly relied upon hearsay in order to obtain an Order authorizing service.  Plaintiff repeatedly attempted service at non-existent addresses, all in the vicinity of [...]’s actual [...] residence (Da52; Da55; Da43; Da44; Da49, Process Service Reports).  Indeed, Plaintiff’s initial process server evidently advised that it had “located the house owned by Martin J. [...] [a]s [...]” (Da43).  And, when Plaintiff initially attempted service at [...], the report from the process server again pointed back to [...] (Da58).  Furthermore, when Plaintiff obtained a USPS address change report, that document also pointed to [...] (Da63).  So, why did the Plaintiff choose to serve by mail at [...] instead of [...]?  Defendant submits it is because Plaintiff was hoping to obtain a default.  **CONCLUSION**
[brief] In addition, the statement of law applies to all matters on appeal, regardless of whether they are public bidding cases or not.  See Ernest Bock & Sons, 477 N.J. Super. at 263. with the [...] ("[...]") at the time of bid opening.  N.J.S.A. 34:11-56.51, provides, without qualification, that:  [N]o contractor shall list a subcontractor in a bid proposal for the contract unless the subcontractor is registered pursuant to P.L. 1999, c.238 (C.34:11-56.48 et seq.) at the time the bid is made.  No contractor or subcontractor, including a subcontractor not listed in the bid proposal, shall engage in the performance of any public work subject to the contract, unless the contractor or subcontractor is registered pursuant to that act.  Given the clear statutory language, courts have held that contractors and subcontractors cannot perform work on a public project without being registered.  See Ernest Bock & Sons-Dobco Pennsauken JV, 477 N.J. Super. at 267.  The legislative history (which the trial court completely ignored) explains the reasoning behind PWCRA’s broad application.
[brief] In Marmo the party that sought arbitration was the party that initiated the litigation.  Marmo, 478 N.J. Super. at 598.  By contrast, in this case [...] ignored the arbitration provision in the contract that it seeks to enforce and sued [...].  That action by [...] cannot be ignored nor underestimated particularly since all of the enumerated Cole factors are measured against various aspects of the litigation process.  In this case had [...] simply initiated arbitration as required by the contract that it seeks to enforce rather than suing [...], there would be no litigation process to examine.  That is why [...]’s litigation activity cannot be viewed in isolation from [...]’s action in initiating the litigation in the first place.
[brief] THE BULLETIN IS NOT INFERABLE FROM STATUTORY AUTHORIZATION, HAS NEVER BEEN PREVIOUSLY EXPRESSED AND ABSOLUTELY REPRESENTS A MATERIAL CHANGE IN POSITION.  (JA1-2)  The Department cites, but then effectively ignores, the Metromedia factors regarding improper rulemaking.  Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 313, 331-332 (1984).  The Department’s passage of the Bulletin contains all of the hallmarks of improper rulemaking and none of the characteristic of proper agency action.  First, the Bulletin’s pronouncements are not clearly inferable from the Holding Act or SSAP No. 25 and cannot be.  As stated above and not denied by the Department, the Department repeatedly admitted during examinations that it could not apply the Holding Act or SSAP No. 25 absent the passage of new legislation, which never occurred.  Additionally, in 2010, the NAIC noted that [...] (just like [...]) was not subject to the Holding Act.  Its own auditors admit that SSAP No. 25 compliance as to the AIF fees was a “new request. ”  The Department simply ignores these uncontested facts. \(^5\)  Second, noticeably absent from the Department’s brief is any citation to a determination, adjudication or rule applying the Holding Act to reciprocals who are not part of an actual insurance holding company system and involved in an acquisition or merger or applying SSAP No. 25 to the AIF fees of reciprocal.  This includes the 2022 [...] Order, which is not evidence of the Department’s past practice; it is evidence of the beginning of the Department’s ultra vires actions.  \(^5\)  Moreover, SSAP No. 25 is an accounting principle, not an agency determination, adjudication or rule.  The Department’s reliance on it is particularly misplaced.  The Bulletin is a complete rejection and reversal of the Department’s past interpretation as evidenced by its historic course of conduct and its admissions—which the Department has utterly failed to address in its opposition.
[brief] The Kronos Time Card Audit Trail establishes that [...] entered “hourly charge” pay on [...]’s behalf thirty-two times over a period of two months, comprising five pay periods, from May 30, 2020 to July 25, 2020.  (Pa483-529; Pa531).  It further shows that [...] entered “hourly charge” pay on [...]’s behalf fifteen times over a period of two pay periods, from July 11, 2020 to July 25, 2020.  (Pa483-529).  [...] does not dispute that she entered “hourly charge” for [...] and [...].  (Pa249 at 94:13-15; Pa250 at 97:8-10).
[brief] On appeal, Plaintiff maintains she did not agree to pursue her claims in arbitration and asserts that she can avoid the MAA because Defendants did not take certain steps above and beyond presenting her with an explicit and clear agreement for her review and execution prior to her employment with [...].  As will be set forth in more detail below, Plaintiff’s arguments are contrary to the well-established case law in New Jersey regarding enforceable arbitration agreements and should be rejected.  First, an examination of the four corners of the MAA shows that Plaintiff agreed to pursue any potential claims arising out of her employment with [...] and/or her assignment at [...] through confidential arbitration.  The MAA clearly defined the type of claims that fall within its scope and expressly waives a jury trial as to those claims.  Plaintiff also agreed to the MAA’s terms as evidenced by both her signature and her acceptance of employment with [...].  Plaintiff has not pointed to a single fact that establishes that the MAA was anything other than clear and unambiguous as to these issues.  Second, [...] is a “client or customer” of [...] as plainly defined in the MAA, and thus, [...], as well as [...], is entitled to enforce the MAA.  Plaintiff does not actually dispute that [...] meets the definition of client or customer within the MAA, and even if she did, the MAA itself evidences that [...] was an intended third-party beneficiary to the agreement.  Plaintiff, therefore, must litigate her alleged claims against both [...] and [...] in arbitration.  Third, while Plaintiff attempts to cast doubt on both the voluntariness and her knowledge of her electronic signature on the MAA, Plaintiff’s Certification supporting her opposition to arbitration in this case is devoid of any genuine allegation that her acceptance of and continued employment with [...] was either the product of fraud or is otherwise insufficient to evidence her consent to and acceptance of the MAA.  **PROCEDURAL HISTORY**
[brief] 42 U.S.C. §1983 .........................................................................................................................passim  N.J.S.A. 10:5-1 et seq.  ...............................................................................................................11, 36 N.J.S.A. 10:5-4 ............................................................................................................................36  N.J.S.A. 10:5-12(f)(1) ................................................................................................................36  N.J.S.A. 10:6-2(c) .......................................................................................................................19, 28, 31 N.J.S.A. 2C:29-1(a); and (2) .....................................................................................................10, 27 N.J.S.A. 2C:29-1(a); and (3) .....................................................................................................9  N.J.S.A. 2C:29-2(a)(1) ................................................................................................................9, 10, 27 N.J.S.A. 2C:35-10(a)(4) ..............................................................................................................9  N.J.S.A. 2C:35-10(c) ...................................................................................................................10  N.J.S.A. 59:1-1 ............................................................................................................................38, 40 N.J.S.A. 59:1-1 et seq.  ................................................................................................................38, 40 N.J.S.A. 59:1-2 ............................................................................................................................38  N.J.S.A. 59:2-1 (a) ..................................................................................................................40  Rules R. 4:46........................................................................................................................................ passim R. 4:46-2(a) ................................................................................................................................. 13, 15, 16 R. 4:46-2(b) ................................................................................................................................ passim R. 4:46-2(b); (3) ..........................................................................................................................15  Other Authorities  New Jersey Constitution, Article I.............................................................................................20  U.S. Constitution, 4th Amendment ..............................................................................................20, 21, 28  PRELIMINARY STATEMENT
[brief] (PPCIa251-349).  The trial court picks up the procedural history from here:  “On January 13, 2023, [...] moved to have the matter reassigned to Track 4 discovery and, accordingly, to extend the discovery and date. ” (PPCla350-56).  “On January 20, 2023, Counsel for [...] moved to withdraw and asked that [...]’s summary judgment motion be adjourned to let [...] retain new counsel. ” (PPCla357-56).  “On January 30, 2023, [...] and [...] entered into a consent order to which [...] was not a party, allowing Counsel for [...] to withdrawal.  Such order did not set the new date on which [...]’s summary judgment motion would be heard or set a date by which [...] would have to retain new counsel or be in default. ” (PPCla357-63).  “On February 6, 2023, the Court signed the [...]-[...] consent order.  Despite the order neither having been settled on a motion on notice to all parties nor with the written approval of Counsel for [...], an affected party, and [...] argues that that is required by Rule 4:42-1.
[brief] 1T – Transcript of Hearing dated June 22, 2018  2T – Transcript of Hearing dated July 26, 2019 # TABLE OF CONTENTS – APPENDIX (Volume 1 of 15 – Pa1 to Pa191) | Description | Page | |----------------------------------------------------------------------------|------| | Order granting summary judgment to [...], filed June 22, 2018 | 1a | | Memorandum Opinion in support of Order granting summary judgment, filed June 22, 2018 | 3a | | Order granting summary judgment to [...], filed July 26, 2019 | 12a | | Order granting summary judgment to [...], filed July 26, 2019 | 14a | | Memorandum Opinion in support of Orders granting summary judgment, filed July 26, 2019 | 16a | | Notice of Motion for Summary Judgment of [...], filed April 26, 2018 | 40a | | Movant’s Statement of Undisputed Material Facts, filed April 26, 2018 | 42a | | Certification of [...], filed April 26, 2018 | 58a | | Exhibit 1, Second Amended Complaint, dated January 26, 2016, filed April 26, 2018 | 64a | | Exhibit 2, Answer of [...], to Second Amended Complaint, dated February 25, 2016, filed April 26, 2018 | 104a | | Exhibit 3, Excerpts from Plaintiff’s Answers to Interrogatories of [...], undated, filed April 26, 2018 | 131a | | Exhibit 4, Excerpts from Plaintiff’s Answers to Interrogatories of [...], dated March 9, 2015, filed April 26, 2018 | 135a | | Exhibit 5, Excerpts from Plaintiff’s Answers to Interrogatories of [...], undated, filed April 26, 2018 | 140a | Exhibit 6, Excerpts from [...]’s Answers to Interrogatories of Plaintiff, dated June 16, 2015, filed April 26, 2018 144a Exhibit 7, [...] Investigation Report, dated August 7, 2014, filed April 26, 2018 149a Exhibit 8, Agreement between [...], and Northeast Sweepers, dated December 2013, filed April 26, 2018
[brief] EVEN IF PLAINTIFFS’ LAWSUIT AGAINST FRALINGER WAS COMMENCED IN GOOD FAITH, IT WAS MAINTAINED IN BAD FAITH AFTER SERVICE OF FRALINGER’S SAFE HARBOR LETTER  Although the record does not support such a finding, even if this Court were to give Plaintiffs the benefit of the doubt with respect to whether the suit against [...] was initiated in bad faith, no reasonable argument can be made that it was properly maintained following service of [...]’s safe harbor letter.
[brief] 75 State v. J.R., 227 N.J. 393 (2017)  ....................................................................................................................  74 State v. J.T., 455 N.J. Super. 176 (App. Div.), certif. denied, 235 N.J. 466, 467 (2018) .................................................................  74 State v. James, 144 N.J. 538 (1996) ....................................................................................................................  74 State v. Jarbath, 114 N.J. 394 (1989) ....................................................................................................................  87 State v. Johnson, 120 N.J. 263 (1990) ...................................................................................................................
[brief] N.J.S.A. 52:27BBBB-5(3)(i) applies squarely to the facts of this case.  That provision provides . . . with respect to any expired collective negotiations agreement to which the municipality in need of stabilization and recovery is a party, unilaterally modifying wages, hours, or any other terms and conditions of employment[.]”).  The remaining cases cited by Plaintiffs are similarly unpersuasive.
[brief] (Da24).  The city of [...] subsequently sold the debt as [...] to [...], a third party purchaser of municipal tax liens.  (Da24).  In August 2011, [...] served a notice of tax foreclosure on the [...].  (Da24).  [...], a person of little formal education, and his homemaker wife panicked upon receiving the notice of impending foreclosure.  (2T46-6).  Desperate to save their home and not knowing what to do, they reached out to [...], a landlord with numerous properties for whom Mr. Soto had done repair work.  (2T22-3, 2T53-12, 2T54-14).  They believed Mr. Nieves would have the knowledge to counsel them.  (2T22-3, 2T53-12, 2T54-14).  [...] then told Ramon that he would help.  (2T22-3, 2T53-12, 2T54-14).  On September 30, 2011, on the instruction of Mr. Nieves, [...] appeared at the law office of [...].  (Da15, Da22, Da37).  Present there were [...], [...], Esq. and [...].  (Da15, Da22, Da37).  There, Mr. Soto was told that liens on his home totaling $28,200 needed to be paid quickly if the home was to be saved.  (2T14-11, 2T22-3, 2T53-12, 2T54-14).  Mr. Agrait then presented Mr. Soto with a rescue plan that involved [...] making a loan to the [...] and the [...], in the form of collateral to insure repayment of the loan, transferring title in their home to [...], an entity Mr. Nieves had just set up.  (2T24-16) (Da15, Da22, Da37).  Mr. Agrait further explained to [...] that if he and his wife made monthly payments of $2,100 to [...] for the next twelve (12) years, the loan would be repaid and they would regain title to their home.  (2T24-16, 2T53-15, 2T53-1).  At the instruction of the lawyers, [...] then called his wife to the office.  (2T53-20).  Once she had arrived, the [...] then executed the documents they were told were necessary to the plan that would save their home.  (2T53-20).  Among the documents executed was a HUD-1 settlement agreement, a deed transfer and a mortgage note assumption.  (1T4-19, 2T13-6) (Da15, Da22, Da37).  One document not presented to the [...] nor executed was a sales contract involving the home.  (1T4-19, 2T13-6) (Da15, Da22, Da37).  Believing that they had done what was needed to save their home, the [...] walked out of [...]’s office with no money in their pocket from the transfer of title, with a higher monthly financial obligation and without title to their home.  (2T21-16, 2T53-12) (Da15, Da22, Da37).  Now saddled with a $2,100 monthly obligation to [...], [...] took on a part time job as a health aide in order to assist her husband with the payments.  In March 2020, Mr. Soto passed away.  (2T33-6).  Approximately two months later, [...] called [...] and, addressing her and her daughter [...], [...] then offered to sell the home back to [...] for $300,000.