ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] It is our position that such a claim is inappropriate given that it is contrary to best practices in the field of neuropsychology, and rather than safeguarding the testing process, may actually introduce error in the test data gathered.  APA Ethical standards of Competence and Assessment (2017) are likewise in conflict with the presence of TPO.  These include standards, 9.01 and 9.02 (Basis and Use of Assessments), 9.06 (Interpreting Assessment Results), and 9.11 (Test Security), which advise adherence to standardization procedures, reporting limitations to interpretation validity, and maintaining test security.
[brief] Ibid.  The Court determines whether the State “consinder[ed] impairing the obligations of its contracts on a par with other policy alternatives” and “imposed a drastic impairment when an ‘evident and more moderate course would serve its purposes equally well. ’”  Ibid. (internal quotations omitted).  In United Steel Paper, 842 F. 3d at 204-05, in response to a severe budget crisis, the Virgin Islands enacted the Virgin Islands Economic Stability Act of 2011 (“VIESA”), which reduced the salaries of most government employees by 8%.
[brief] TABLE OF CONTENTS  Page  TABLE OF AUTHORITIES ........................................................................................................ ii  QUESTIONS PRESENTED........................................................................................................1  PRELIMINARY STATEMENT .................................................................................................1  STATEMENT OF THE CASE .................................................................................................3  PERTINENT  PROCEDURAL HISTORY ..................................................................................15  DECISION BELOW..................................................................................................................16  STANDARD OF REVIEW ......................................................................................................18  LEGAL ARGUMENT................................................................................................................29  POINT I THIS APPEAL SHOULD BE DENIED IN ITS ENTIRETY (Pa003036 - Pa003055)...........................................................................................................21  A.  The Trial Court Properly Found that Appellants Could Not Successfully Claim Ownership of Land Approvals After Losing Control of the Land, Because Those Approvals Run With the Land.  (Pa003039 – 003055).........................................................................................21  B.  The Trial Court Correctly Held that Appellants Could Not Recover Damages for a Development Project When Appellants Lost Land Control by Refusing To Make Lease Payments.  (Pa003044-003055).........................................................................................23  C.  The Trial Court Correctly Dismissed the Claims Against [...] Where Appellants Admitted Their Causes of Action  Arose After the NDA Expired (Pa003036 – 003058)  .........................................................................................45  CONCLUSION............................................................................................................................50
[brief] The agency's findings of fact must be "supported by adequate, substantial and credible evidence."  In re Taylor, 158 N.J. 644, 656-57 (1999) (quoting Rova Farms Resort, Inc. v. Inv's. Ins. Co., 65 N.J. 474, 484 (1974)).  Arbitrary and capriciousness is more than this Court merely stating it would have "reached a different result.
[brief] THE PURPORTED “RESERVATION OF RIGHTS” AND THE DECLARATORY ACTION  On July 14, 2017 and July 17, 2017, [...] issued letters to [...] regarding the Underlying Action, with the July 17, 2017 letter stating that [...] was “handling” the matter.  (Da291-93.)  On July 20, 2017, [...] allegedly sent a letter which simultaneously appointed insurance counsel — the [...] — and purported to provide a “reservation of rights” under the Policy.  (Da64-68.)  This letter purported to reserve the right to “deny defense or indemnity” of the Underlying Action claiming that it potentially fell within the policy’s exclusion, as follows:  Applicable to Coverage L – **Business Liability**, this insurance does not apply to:  . . . .  17.  Personal And Advertising Injury  a.  Caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict “personal and advertising injury”; b.  Arising out of oral or written publication of material, if done by or at the direction of the insured with knowledge of its falsity.  (Da182.)  No proofs were provided in discovery to show that [...] received the July 20, 2017 letter, and [...] does not recall receiving same.  (Da203.)  On September 1, 2017, the Honorable [...], J.S.C. entered an order dismissing [...]’s complaint in the Underlying Action as barred by the statute of limitations for defamation, but allowed him to file an amended complaint.  (Da69-70.)  The order specifically stated that defamation and false light were not to be included in the amended pleading.  (Da69-70.)  Nevertheless, on September 17, 2017, [...] filed an amended complaint alleging (1) libel and slander, (2) tortious interference with business, and (3) false light.  (Da71-75.)  The parties to the Declaratory Action agree that [...] is only pursuing claims of tortious interference in the Underlying Action at this time.  The Underlying Action remains pending as of the time of this filing.
[brief] (Pa186-Pa205; Pa223-Pa284; Pa285-Pa290).  In addition, Appellant released all claims pertaining to violations of the NJCFLA and NJCFA in the class settlement. by this Court of the equitable doctrine of laches.  . . .  There is not a scintilla of evidence that enforcement would be unjust, especially by the way but, if we want to argue that, somehow, it would be unjust against plaintiffs being barred from pursuing a claim on the motion to vacate sat on for an additional four years, two years after the complaint was filed.  A motion -- timely motion, 2019, I found out in 2019, I hired a lawyer, took three months or whatever the case may be.  That's very, very different than 2023 and very different when there's actually a strategy with Counsel.  It's not even as if [...] took a long time to find Counsel, couldn't come up with the money, or anything of that nature.  There was a strategy employed here and that strategy included not doing anything about this case.  For all of those reasons, the motion to vacate default is denied.
[brief] **Settled Right To Relief.**  Appellants’ first response—that even if the State is likely to prevail on the merits, it lacks a “well-settled right” (Db12-17)—fails for multiple reasons.  As an initial matter, although some early cases described the “well-settled legal right” and “reasonable probability of success” analyses as two independent prongs under *Crowe*, courts have long since merged the settled-right inquiry into the reasonable-probability-of-success test.  See e.g., *Newark*, 469 N.J. Super at 387 (defining the prongs for preliminary relief as “(1) a likelihood of success on the merits; (2) irreparable harm; (3) a showing that on balance the harm to the moving party is greater than the harm to the party to be restrained; and (4) the public interest will not be harmed”); *Waste Mgmt.*, 399 N.J. Super. at 519-20 (same); *McKenzie v. Corzine*, 396 N.J. Super. 405, 413 (App. Div. 2007) (same).
[brief] In Mitchell v. United States, 526 U.S. 314 (1999), the U.S. Supreme Court pointed out that the Fifth Amendment privilege against being “compelled in any criminal case to be a witness against [one]self” applies with equal force at sentencing.  Accordingly, the Court held, a defendant may not be “enlist[ed] ... as an instrument in his or her own condemnation,” id. at 325, and a court may not draw [an] adverse inference” from the defendant’s failure to confess guilt at sentencing, id. at 317.  Similarly, the New Jersey Supreme Court has cautioned that “the sentencing judge should not himself seek to induce a defendant to confess,” or “increase[] the sentence because [the defendant] defended against the charge and did not admit his guilt at sentencing. ”  State v. Poteet, 61 N.J. 493, 497, 495 (1972); see State v. Jiminez, 266 N.J. Super. 560, 570 (App. Div. 1993) (“a sentencing judge may not enhance the penalty because [a defendant] contests his guilt”); see also State v. Marks, 201 N.J. Super. 514, 539- 40 (App. Div. 1985) (“a defendant's refusal to acknowledge guilt following a conviction is generally not a germane factor in the sentencing decision”).
[brief] He and his sister [...] intended to construct two homes on that lot; however, when applying for a building permit from [...], they were advised that their deed needed to have language granting them access to the driftway, which it did not.  Deposition of [...] Roth, T:17-7 to T:21-8, Da663-Da664; Da569.  [...] filed suit in the Chancery Division in 2005, against [...] and several other nearby landowners, including the [...] (“the [...]”), seeking a “determination [that he] is entitled to a right of residential access to and from his property over the lands of one or more of the Defendants” and related relief.
[brief] [...]’s clauses are instead the equivalent of recitations, hidden in hundreds of pages of boilerplate documents meant to disclaim and immunize [...] from the completely opposite, false representations made during the timeshare presentations.  The parol evidence rule was never intended as the “get out of jail free card” [...] seeks, to say anything so long as they write the opposite in the boilerplate contracts.  The facts adduced at trial – the testimony of sales agents, the corporate testimony of [...], the training manual, the specific language in [...]’s carefully crafted exculpatory clauses – all demonstrated [...]’s intended use of the parol evidence rule in just that manner.  Indeed, it was part of the company’s plot to insulate itself from any repercussions from its damaging misstatements to these Plaintiffs and others.  Importantly, [...] never made a motion at trial to exclude what it terms parol evidence.  Defendant’s Pretrial Memorandum argued only that Plaintiffs’ “claims are barred by the Parol Evidence Rule. ” (Da1124).  If a party fails to object to evidence at trial, the evidence is reviewed under the plain error standard—was its admission “clearly capable of producing an unjust result” per R. 2:10-2.  Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 317-18 (2006).  Given the overwhelming evidence of [...]’s deception throughout its sales process, it cannot be said that the jury’s verdict here was unjust.  The jury found unanimously that [...] had violated the CFA and the RETA by violating 14 statutes and code provisions.  (Da1190).  [...]’s parol evidence rule argument impacts, at most, five of these violations.  The rest were proven without any of the evidence [...] would have this Court deem as parol evidence, including the resort’s own admissions.  Even if this Court were to find the parol evidence rule applies to exclude some of the Plaintiffs’ testimony, there is more than enough evidence of [...]’s violations of the CFA and the RETA to sustain the verdict in all respects.  POINT II
[brief] Courts construe contracts as written and do not re-write them to favor one party over another.  Boyle, 257 N.J. at 478.  Moreover, because courts construe indemnity clauses strictly, they construe any ambiguity against the indemnitee, such as [...].  Ibid.  Further, the fact that Paragraph 4 and Paragraph 2 conflict shows that the indemnity provisions, even taken as a whole as the trial court did, are not Azurak compliant.  Englert, 389 N.J. Super. at 48, 57.
[brief] Tenants are given some protection against unfair rent increases for the entire time they remain in the apartment, including during any hardship applications.  The TPA provides in pertinent part:  In the case of a municipality subject to the provisions of this act that has a rent control ordinance in effect, a rent increase for a qualified tenant with a protected tenancy status shall not exceed the increase authorized by the ordinance for rent-controlled units.  Increased costs that are solely the result of a conversion, including but not limited to any increase in financing or carrying costs, and do not add services or amenities not previously provided shall not be used as a basis for an increase in a fair-return or hardship hearing before a municipal rent board or on any appeal from such determination.  N.J.S.A. 2A:18-61.52(b)  Essentially, while tenants continue to be covered by rent control, as a result of N.J.S.A. 2A:18-61.52(b), landlords are not allowed to include in a hardship application any costs that result from a conversion of the building to a condominium or cooperative.
[brief] The Directive dictates that law enforcement officers are not to consider a person’s race or ethnicity as a factor in drawing an inference or conclusion that the person may be involved in criminal activity, or as a factor in exercising police discretion as to how to stop or otherwise treat the person, except when responding to a suspect-specific or investigation-specific “Be on the lookout” (B.O.L.O.) situation . . .  The Directive further emphasizes that it does not prohibit officers “from taking into account a person’s race or ethnicity when race or ethnicity is used to describe physical characteristics that identify a particular individual . . . being sought by a law enforcement agency in furtherance of a specific investigation or prosecution. ”  Ibid.
[brief] Underlining designates the correct date, erroneous within Appellant’s Procedural History injury coverage available under Appellant’s applicable automobile insurance policy\(^8\), underwritten by [...].  Da013.  On January 26, 2023, Respondent supplemented her discovery responses with the January 13, 2023 neurosurgical evaluation from [...] Da051 (report), Pa010 (cover letter evidencing service).  Within said report, [...] specifies his opinion that “…Personal review of the cervical MRI does show multilevel age-appropriate changes that were aggravated by the injury with superimposed herniation at C6-C7 with clinically correlating neural compression.
[brief] Da133, 150 at ¶ 10.8 (“This Operating Agreement constitutes the entire agreement among the parties hereto regarding the operations of the LLC, regardless of anything to the contrary contained in the Certificate of Formation or other instrument, memorandum, or notice purporting to summarize the terms hereof, whether or not the same shall be recorded or published. ”).  Notably, the Operating Agreements are silent as to [...]’s claims of “equitable ownership” or any right to purchase the subject property – because such claims are meritless, at best.  Instead, the Operating Agreements make clear that [...] was appointed as manager only, could be terminated without cause, and had no ownership interest.  Da123, 125-26, 130, 136, 140 142-43, 147, 152.  Thus, the Operating Agreements make clear that the MOU was discarded and replaced by a new plan.  To be sure, neither the MOU nor the Operating Agreements arbitration provisions can be extended to encompass [...]’s claim of entitlement to purchase the subject property for $6 million under the 2022 Addendum.
[brief] As to the Dismissal Order, the appellate court reviews a dismissal for failure to state a claim pursuant to R. 4:6-2(e) de novo, following the same standard as the trial court.  State v. Grillo, 469 N.J. Super. 267, 273 (App. Div. 2021).  Although such dismissals are often without prejudice, “a dismissal with prejudice is ‘mandated where the factual allegations are palpably insufficient to support a claim upon which relief can be granted, [..], or if ‘discovery will not give rise to such a claim. ’”  Mac Property Group LLC & The Cake Boutique LLC v. Selective Fire and Cas. Ins. Co., 473 N.J. Super. 1, 17 (App. Div. 2022), quoting, Rieder v. State, 221 N.J. Super. 547, 552 (App. Div. 1987) and Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman and Stahl, P.C., 237 N.J. 91, 107 (2019).  As discussed further herein, the trial court did not abuse its discretion in denying Appellants’ motion for leave to file a Second Amended Complaint where discovery had concluded, Appellants had knowledge of the claims from the outset of the litigation and most other defendants had been dismissed by summary judgment.
[brief] Certification of [...] filed December 21, 2023 ..................................................96a  Exhibit A: Email from Plaintiff-Respondent to [...] dated November 18, 2019 ..................................................................................100a  Exhibit B: Email attachment containing various employment agreements ..................................................................................104a  Employment Agreement of [...] ..................................  105a  Employment Agreement of [...] ....................................  123a  Employment Agreement of [...] .............................. 132a Employment Agreement of [...] ................................. 141a  Employment Agreement of [...] ................................. 146a  Employment Agreement of Plaintiff-Respondent ......................... 155a  Correspondence from Respondent-Plaintiff regarding the plenary hearing, filed December 22, 2023 ........................................................................... 164a Defendants-Appellants' Motion to Compel Deposition of Respondent-Plaintiff filed March 13, 2024 .................................................. 166 Certification of [...], Esq. filed March 13, 2024 ............... 168a Exhibit 8: Cover letter from Defendant-Appellant to Plaintiff-Respondent's counsel, enclosing Notice to Take Deposition, dated January 3, 2023 ............................................................. 178a Notice to Take Deposition of Plaintiff-Respondent dated January 3, 2023 ......................................................................................... 180a Exhibit 9: Email correspondence dated January 11, 2024 regarding scheduling of deposition ........................................................................... 182a Exhibit 10: Email correspondence dated March 1, 2024 regarding scheduling of deposition ........................................................................... 185a Certification of [...], Esq. filed April 8, 2024 ................ 190a Exhibit A: Email correspondence from Defendants-Appellants to Plaintiff-Respondent enclosing letter dated November 10, 2023 .................................................................................. 192a Correspondence from Defendants-Appellants to Plaintiff-Respondent dated November 10, 2023 .......................................................................... 194a Exhibit B: Email correspondence from [...], Esq. to Plaintiff-Respondent dated December 19, 2019 attaching
[brief] In October of 2017, Appellant caused checks to be issued from [...]’s bank accounts showing the payor as [...].  (1T:179:6-180:18; Pa182).  In November of 2017, Appellant caused check to be issued by [...] identifying the payor as [...] Paying Agent for [...].  (2T:14:17-15:21).  **Appellant Falsifies [...]’s QuickBooks Files and Files Fabricated Documents With the Court**
[brief] Id. at 556 (citing United States v. Nardi, 633 F.2d 972, 977 (1st Cir. 1980)).  In this case, plaintiff’s expert [...] testified that he was familiar with the Medicare and Medicaid compliance annual survey process in giving his negligence—not proximate cause—opinions.  (See 7T123:24-125:18.)  [...] testified that the regulations, which in his opinion were violated, “serve as the basis for survey activities for purposes of determining whether the facility meets the requirements for participation in Medicare and Medicaid”.  (7T134:4-7; see 7T86:15-88:21; 7T123:18 to 125:18.)  Plaintiff thus “opened --- 8 42 C.F.R. § 483.1(b) provides: the door” by using her experts’ opinions that the regulations were violated in order to establish the defendant’s negligence.
[brief] Id. at 174.  This Court found that, in so doing, the Board had “singularly focused upon the admittedly horrific details of [...]’s crimes” and had “failed to address” the numerous psychological reports in the record which found that [...] had “‘good insight’ and maintained good impulse control and judgment. ”  Id. at 198.  This Court also highlighted “undisputed parole data” which found that “from January 1, 2019 to December 31, 2019 over 90 percent of the 445 inmates who were sentenced to life in prison that appeared before the Board were denied parole. ”  Id. at 178.  That data and [...]’s anecdote supported the ruling that, in light of its shortcomings, parole cannot provide the “meaningful opportunity to obtain release” which Comer requires.
[brief] The Civil Service Commission has no Obligation to Approve Retroactive Promotions  Appellant argues that the CSC’s one-time relaxation of its rules in order to cure the City’s good-faith administrative error was invalid, therefore he should have been promoted to fill one of the September or October 2022 vacancies.  However, this argument assumes that the September and October 2022 vacancies existed at the time of the December 2022 certification, which it has been established that they did not.  Once the CSC had used its discretion to craft a one-time “relaxation” of its rules to cure the City’s good-faith administrative error, it was under no obligation to retroactively re-classify the errors as “unlawful” and promote Appellant.  This Court has previously held that the CSC “is not required to approve a retroactive appointment even where there is an administrative error. ”  In re [...], 2011 WL 242023 at 3 (N.J. Super. Ct. App. Div. Jan. 27, 2011).  In [...], a police officer ([...]) was promoted to sergeant in 2006, over a year later than he would have been, if not for an administrative error on the part of the appointing authority.  Due to time in service requirements stemming from the appointing authority’s error, [...] was not eligible to sit for the lieutenant’s exam in 2006.  After [...] filed complaints with the law division, the appointing authority agreed to seek the CSC’s permission to retroactively move [...]’s appointment date to sergeant back to 2005, where it would have been if not for their error.  The authority also agreed to seek permission to retroactively move back [...]’s appointment date to lieutenant, in the event that [...] took the lieutenant’s exam and scored higher than the three who were promoted in 2006.  [...] eventually took the lieutenant’s exam and received a score that had he received in 2006, would have made him second on the eligible list.  The CSC ultimately decided not to approve [...]’s retroactive appointment to lieutenant, because it found that in addition to time in service requirements not being met, “no other factors” existed sufficient to justify retroactive appointment.  (Id. at 2).  In finding that the CSC’s decision was not arbitrary, capricious, or unreasonable, this Court recognized that circumstances may exist wherein it would be reasonable for the CSC to decide to relax its rules, however such instances are to be considered by the CSC on a case-by-case basis and just because such discretion is exercised in one case, does not mean that it must be exercised in others.