ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] TABLE OF DECISIONS, ORDERS, JUDGMENTS ........................................ ii  TABLE OF AUTHORITIES ........................................................................ iii  PRELIMINARY STATEMENT ......................................................................1  STATEMENT OF FACTS .........................................................................4  PROCEDURAL HISTORY .........................................................................8  LEGAL ARGUMENT ..................................................................................12  THE TRIAL COURT ERRED IN REFORMING THE REDEVELOPMENT AGREEMENT AND OPERATING AGREEMENT (Da49-Da53)  ........................................................................12  CONCLUSION ..........................................................................................20
[brief] (Da331).  [...] testified that the elevation of the access area was 18 feet, whereas the height of the seawall on the Defendant’s property after the project was only 15 feet, leading to the likely increase in overtopping.  (Da473).  Thus, [...]’s opinions were based upon his physical observation of the difference between the before condition and the after condition.  He provided the whys and wherefores of his opinion.  Plaintiff argues that Defendant’s expert did not provide detailed calculations, charts, and technical scientific data to provide additional support for his conclusion that the project will increase the likelihood of wave overtopping on Defendant’s property.  Defendant’s expert was not required to do so.  [...]’s opinion was based upon his experience, expertise, and personal observations of the subject property and project, and he is qualified and able to render an opinion, which he sufficiently supported in detail, that the project will cause an increase in the likelihood of overtopping.  [...] found it unnecessary to make calculations to reach his conclusions related to the increased vulnerability from a low frequency (50 year) storm.  (Da460: 6-461:9; Da464: 1-21).  Plaintiff retained its own expert in rebuttal of the conclusions of the Defendant’s expert, about which Plaintiff is able to cross-examine Defendant’s expert at trial.  The proper limiting factor here should have been the weight of evidence and not the exclusion of the evidence entirely.  See Bellardini, 222 N.J. Super. at 463.  Based on the foregoing, it is respectfully submitted that the court below erred in excluding Mr. [...]’s opinion as a net opinion.
[brief] ”  Francois v. Bd. of Trs., Pub. Emps.’ Ret. Sys., 415 N.J. Super. 335, 349 (App. Div. 2010) (citation omitted).  Here, the statute provides for the benefit if a retiree files for it within two years of the effective date of the Ricci Act, i.e., by July 8, 2021.  [...] did not file for the benefit within the time permitted by the statute, so even under a liberal construction, the statute expressly states he is ineligible for the benefit he now seeks.  Nevertheless, [...] argues that the limitation period in the statute should not be strictly applied because it “fails to advance the legislative purpose of the Ricci Act.
[brief] Among the key reasons, however, that the Trial Court found that the exception to the mold exclusion in this case did not apply, and that [...] did not breach its duty to defend, was a finding that [...] never alleged the consumption of mold contaminated food as a source of his injuries:  “The policy exception to the exclusion [in [...] and in [...]] was nearly identical to the one at issue, but it is distinguishable because [...] did not allege that his injuries were caused by consumption of mold in any pleadings, including those of the underlying action. ”
[brief] The Court in Borough of Verona v. Shalit dealt with this very situation of a Board of Health ordinance that assessed a maximum penalty higher than that permitted by statute.  That Court held that the penalty clause in the ordinance was totally void.  It also held that the invalidity of the excessive penalty could not be cured by the imposition of a penalty that did not exceed the statutory maximum.  (emphasis added)  Borough of Verona v. Shalit, 96 N.J. Super 20 (App Div. 1967)
[brief] (Da9 ¶¶ 20, 29.)  Plaintiffs’ argument also does not comport with the governing legal standard: “The traditional rule is that a cause of action accrues on the date when ‘the right to institute and maintain a suit’ first arises. ”  Russo Farms v. Vineland Bd. of Educ., 144 N.J. 84, 98 (1996) (quoting Rosenau v. City of New Brunswick, 51 N.J. 130, 137 (1968)) (emphasis added).  Even if Plaintiffs are correct that continuous residency is statutorily required to serve on the BOG (they are not, see infra Point II), then the moment [...] relocated, she would have become ineligible, and Plaintiffs’ claim would have accrued then.  The continuous violation theory is unavailing for other reasons.  That doctrine ordinarily is applied in tort and discrimination cases, not a case of the kind here.  See Pressler & Verniero, Current N.J. Court Rules, cmt. 36.7 (“Continuous tort” and “Discrimination cases”) on R. 4:5-4 (2024).  For support before the trial court, Plaintiffs cited Jones v. MacDonald, 33 N.J. 132, 138 (1960).  Their reliance on this one phrase in Jones—“each purported exercise of the right of office by one without title to it constitutes a fresh wrong”—is misplaced.  Jones was about dual officeholding, specifically whether the defendant in that case could serve as a member of both a county taxation board and the “incompatible” office of borough council.  The Supreme Court concluded that holding the first office did not trigger the limitations period, which only would be triggered if the defendant attempted to claim the second office.  As the Court observed:  We gather defendant would measure the time [the action accrued] from the day he assumed office as a member of the county board.  But his assumption of that office did not in itself constitute a public wrong.  At that juncture, there was nothing to complain about.  The public wrong arose from the subsequent claim to the [second] office.  . . .”  [Jones, 33 N.J. at 138 (emphasis added). ]  Here, assuming their pleading can survive its many infirmities (which it cannot), Plaintiffs had, in the words of Jones, “something to complain about” once [...] moved out of Middlesex County.  It is that phrase, not the one relied on below by Plaintiffs, that portrays the relevant meaning of Jones.  Under a correct reading of Jones, no continuous act would be necessary or warranted for accrual purposes.  There would be one act—the relocation as an out-of-county resident—that triggers the 45-day accrual language under Rule 4:69-6.
[brief] See Docket No. [...].  ³ “Pa” refers to [...]’s appendix.  “Pb” refers to [...]’s brief.  Section 1, paragraph 1, which provides that “the legislative power shall be vested in a Senate and General Assembly. ” (Pa10).  And the Third Count alleges that the “delegation of regulatory authority . . . to the Council constitutes an improper delegation to a private entity or to a body controlled by private entities and individuals and is arbitrary and unreasonable. ” (Pa11).  [...]’s arguments in support of each of these claims, however, all rely on a private nondelegation theory.
[brief] Moschella v. Hackensack Meridian Jersey Shore Univ. Med. Ctr., [...], at *26–27 (N.J. Jul. 11, 2024) (citing A.T. v. Cohen, 231 N.J. at 346) (emphasis added).  Plaintiff concedes that failure of a court to hold a Ferreira Conference, in and of itself, does not constitute extraordinary circumstances.  See Paragon Contractors, Inc. v. Peachtree Condo. Ass’n, 202 N.J. 415 (2010).  However, in A.T. v. Cohen, the Supreme Court of New Jersey found that failure to hold a Ferreira Conference and a confluence of other factors would render a case sufficiently extraordinary to allow an untimely affidavit of merit to be accepted and to require that the matter proceed on its merits.  231 N.J. at 348.  In A.T. v. Cohen, an inexperienced practitioner became confused by timelines and failed to submit a timely affidavit of merit.  Id. at 349.  Nevertheless, counsel in that case filed the affidavit of merit after the motion to dismiss was filed.  Id.  The Supreme Court of New Jersey held that: [w]e made the conference mandatory to underscore its importance.  We imposed the burden of complying with the conference requirement on both attorneys and the Judiciary.  We created the failsafe mechanism within our system of case management envisioning that the required conference would be held unless it were knowingly waived.  But systems can be imperfect, as this case reflects.  The failure of the Judiciary’s current mechanisms to ensure the scheduling of the required Ferreira Conference will not be permitted to work an injustice in this matter.  Id. at 353 (emphasis added).  Plaintiff’s case is sufficiently analogous to A.T. v. Cohen, as a confluence of factors contributed to sufficiently extraordinary circumstances that compel this Court not to uphold the dismissal of Plaintiff’s meritorious claim, as to do so would be an injustice and contrary to the purpose of the Affidavit of Merit statute.
[brief] – Discussing whether a wife, *through her conduct*, waived her right to enforce a judicial decree that had conveyed property to her by failing to enforce it earlier.  - *Christ Hosp. v. Dep’t of Health & Senior Servs.*, 330 N.J. Super. 55, 63–64 (App. Div. 2000)  – Analyzing whether a license holder, *through its conduct*, waived its right to a hearing to challenge a licensing decision because it participated in a circumscribed licensing pilot program.  - *Amir v. D’Agostino*, 328 N.J. Super. 141, 160 (App. Div. 1998)
[brief] Cases  Antonelli v. Planning Bd. of Waldwick, 79 N.J. Super. 433 (App. Div. 1963)..................35  Borough of Princeton v. Bd. Of Chosen Freeholders of County of Mercer, 169 N.J. 135 (2001).................................................................19  Brunetti v. New Milford, 68 N.J. 576 (1975)..............................................19  Carbone v. Planning Board of Weehawken, 175 N.J. Super. 584 (Law Div. 1980).................................................................27  Cohen v. Thoft, 368 N.J.  Super. 338 (App. Div. 2004)....................................24  Commercial Realty & Resources Corp. v. First Atl. Properties Co., 122 N.J. 546 (1991).................................................................42  Davis Enterprises v. Karpf, 105 N.J. 476 (1987)...........................................48  Do-Wop Corp. v. City of Rahway, 168 N.J. 191 (2001)....................................42  Heffner v. Jacobson, 100 N.J. 550 (1985)..................................................42  Hopewell Valley Citizens’ Group, Inc. v. Berwind Prop. Group Development Co., L.P., 204 N.J. 569 (2011) .....................................................23, 24, 25 Isko v. Planning Bd., 51 N.J. 162 (1968)......................................................42  Kempner v. Edison, 54 N.J. Super. 408 (App. Div. 1959).................................35  Kramer v. Board of Adjustment, 45 N.J. 268 (1965).......................................35  Landmark Land, L.L.C. v. Hazlet Twp. Planning Bd., 2007 N.J. Super. Unpub. LEXIS 787 (App. Div. 2007).....................................................40  Mack-Cali Realty Corp. v. State, 466 N.J. Super. 402 (App. Div. 2021)...........43, 44
[brief] [...] testified that [...] had spent the night before the shooting with her at her home, and when she left for work that morning, she saw he was wearing gray, red, black, and white sneakers.  (11T107-10 to 11, 110-13 to 111-4, 111-7 to 21)  [...], [...]’s on-and-off-again girlfriend, testified she called him several times, but he did not answer until about noon and again at 12:13pm.  She drove herself and her child, in her Jaguar, from her Pleasantville home to [...].  She picked him up in front of [...]’s house on [...], and they drove to the Back Maryland area of Atlantic City to pick up [...]’s daughter from her mother, [...].  [...], [...], and the children had lunch at [...]’ house and drove back to [...] mid-afternoon.  They picked up Cross and went to a playground after 4pm, where [...] played with his daughter.  [...] drove her back to Atlantic City, while [...] and Cross stayed at [...].  (11T10-16 to 22, 12-11 to 24, 13-1 to 15-2, 28-20 to 22, 30-11 to 20, 32-6 to 13, 42-12 to 15, 43-5 to 25, 44-9 to 46-5, 51-15 to 52-12, 59-20 to 24, 60-8 to 13, 61-2 to 6, 64-12 to 66-3, 80-9 to 13, 81-2 to 19, 83-1 to 21, 84-20 to 85-1; 12T78-17 to 79-1)  [...]’s cell phone records also corroborated his alibi and testimony of [...], [...], and [...].
[brief] An agreement between parties upon search terms represents a consensus on how to first cull a voluminous set of ESI records, and is *not* an agreement to produce every electronic record containing the terms.  Litigants’ agreement on search terms (prior to assessing relevance) is essential to controlling discovery costs; the search terms allow the parties to efficiently exclude all documents that do not contain a responsive word or phrase, without the need for an attorney to run up billable hours by ---
[brief] The proposed State Court Second Amended Complaint (a/k/a the “SAC”) – The pleading subject to [...]’s April 1, 2021, oral decision.  As described above in the Procedural History Section, this case was remanded back to New Jersey Superior Court on October 17, 2019.  (Da023, District Court Docket Report, ECF #111).  A telephonic case management conference was conducted on May 29, 2020.  (Da033 eCourts Case Jacket Transaction ID: [...]).  At the conclusion of the status conference, the Court gave Plaintiff’s counsel twenty (20) days to file a motion to amend his complaint.  Plaintiff filed his motion to amend on June 25, 2020, with a proposed Second Amended Complaint, which is the pleading at issue in this appeal.
[brief] **STATEMENT OF FACTS AND PROCEDURAL HISTORY**  A.  **[...]’ Termination**  The [...] is a labor organization, and its [...] is affiliated with the [...].  The Authority and the Union are both signatory to the Building Trades Council’s applicable Collective Bargaining Agreement, which provides that employees may only be disciplined or discharged for just cause.  (Pa 20, 22-24).  [...] is a journeyman carpenter and members of the Union.  She was first referred to work for the Authority in June of 2018, and she remained --- 1
[brief] A confirming Order accompanies this Statement of Reasons.  Furthermore, it cannot go unnoticed or unmentioned that [...] fails to cite to any statute or judicial decision that would permit it to pursue its Med-Pay subrogation claims.' (Da130 – Da138).  That affirmative defense was addressed by the arbitrator who stated:  Denied for Respondent  1 - Affirmative Defense denied.  [...] relies on Orders from two OTSC brought against them to vacate med pay arb decisions obtained BY [...], in 2015 and 2019.  The decisions in the OTSC is binding upon those parties, in those cases alone, with those facts and arguments raised.  While both have been read and considered here, neither is binding and are not a bar to [...] hearing this matter.
[directive] 1.  The [...] determines, in writing, that no reasonable prosecutor reviewing the evidence presented to the grand jury would conclude that probable cause exists to support the crime charged against a particular defendant in a particular count of the indictment; 2.  The [...] reviews the Executive Director’s written determination and concurs; 3.  The decedent’s family representative is notified of this determination and the prosecutor’s ethical obligations pursuant to Rule of Professional Conduct 3.8(a) are explained; and 4.
[brief] Rather than cite to the contract or specific contractual provision where the Board was required to pay, [...]’s sole contention in the Counterclaim is that the school law statute, *N.J.S.A.* 18A:7F-9(e)(3), obligated the Board to pay its April and July 2020 invoices.  For example, the Statement of Facts section to the Counterclaim specifically quotes *N.J.S.A.* 18A:7F-9(e)(3) and cites to it several times.  Within the three counts, in Paragraph 15 of the Counterclaim, [...] states, “By virtue of N.J.S.A. 18A:7F-9, Plaintiff could not claim to refuse payment because [...] did not provide custodial services in those months”.  Even Count Three is entitled, “Failure to Follow a Statutory Obligation”, *i.e.*, *N.J.S.A.* 18A:7F-9(e)(3).  In Paragraph 23 of the Counterclaim, [...] wrongly asserts that “*N.J.S.A.* 18A:7F-9(e)(3) mandates” that the Board pay [...], and asks the court to enforce this mandate. \(^{16}\)  [...]’s Counterclaim attaches five exhibits to it, and not one exhibit is of the 2019-2020 or 2020-2021 contract that the Board allegedly breached. \(^{17}\)  And most telling of [...]’s real claim is its original summary judgment brief and statement of material facts mentions and cites the statute, *N.J.S.A.* 18A:7F-9, no less than 89 times.  The entirety of [...]’s three main arguments in the summary judgment brief rests \(^{16}\) Pa111 – Pa115 \(^{17}\) Pa118 – Pa150 wholly on the (mis)interpretation and (mis)application of N.J.S.A. 18A:7F-9.  Each of the three point headings in the summary judgment brief specifically reference N.J.S.A. 18A:7F-9(e)(3).  In contrast, [...]’s summary judgment motion states “breach of contract” only six times, but all references to a breach of contract refer only to [...]’s summary of the Board’s original Complaint.  Not one of the three main points in the summary judgment brief mention the elements of a breach of contract cause of action, nor do they analyze how the Board’s breach of contract is the basis for judgment.  Instead, the alleged violation of the school law statute, N.J.S.A. 18A:7F-9(e)(3), forms the sole basis for [...]’s claim for relief.  For example, [...]’s summary judgment brief asserts, “Therefore, under the plain language N.J.S.A. 18A:7F-9(e)(3), as well as the legislative history and spirit of the statute, [...] is required to pay [...] the money that [...] is owed in the amount of $697,391.49. ”  Of course, [...] does not allege that the money is owed pursuant to a breach of contract, but instead admits that its claim for payment is based wholly on the application of the school law statute, N.J.S.A. 18A:7F-9(e)(3), under the Commissioner’s jurisdiction.  It is impossible to ignore the observable reality that [...]’s entire claim for judgment rests in the interpretation and application of N.J.S.A. 18A:7F-9(e)(3).  Hence, [...]’s Counterclaim is nothing more than an attempted claim to enforce an alleged violation of an 18A school law statute under the Commissioner’s jurisdiction.
[brief] Q.  Okay.  Did you have any problems controlling your car at any point in time prior to getting on Route 73?  A.  No.  Q.  So you get over to Route 73, can you take us through what happened?  A.  Sure.  So I was in the right lane, um-hmm, there was clearly a red light.  So I was going, I was in the right lane and I was slowing down.  I don’t recall if I had stopped completely or if I was like crawling.  And at that point I saw there was a lot less vehicles in the left lane, probably like 8 to 10 less vehicles.  So I moved over to the left lane.  And when obviously, you know, I was still in the left lane like we were saying, so I was slowing down coming to a stop and I just was coming to a stop and I just couldn’t control it.  My foot was on the floor at that point.  And I just was hydroplaning and I just could not stop.  I lost control.  (T2 189-18 through T2 190-15).  7.  Respondent admitted at trial that she did not see the Appellant’s vehicle prior to the accident and thus was unable to offer any testimony whatsoever regarding the role played by weather, ponding water and hydroplaning in the happening of the accident.
[brief] Like franchise relationships, the MBPA was intended to address concerns relating to “unequal bargaining power that exists…and the unavailability of prompt judicial relief” to the wholesaler.  *B & S Ltd., Inc. v. Elephant & Castle Intern., Inc.*, 388 N.J. Super. 160, 169 (Ch. Div. 2006).  In this case, [...], which singly \(^8\)  Moreover, the choice-of-law provision should be deemed void since it directly contradicts or waives the entire MBPA, or at the very least, violates the MBPA’s requirement that the Agreement “conform to State law,” thereby voiding that provision.
[brief] (24T)  On June 29, 2020\(^2\), the jury delivered a verdict of guilty on all four counts with which they had been presented.\(^3\) (41T8-19 to 10-13; Da28-29)  The jury also specifically found that Defendant committed the murder of [...] “as consideration for the receipt of, or in expectation of the receipt of anything of pecuniary value. ”  (41T9-3 to 7; Da28-29)  On August 19, 2020, [...] was sentenced as promised to the aggregate sentence of twenty years with eighty-five percent pursuant to NERA.  (Da78)  On that same date, Defendant, was sentenced to life without parole.  (Da30; 42T42-1 to 4).  A Notice of Appeal was filed on October 22, 2020.
[brief] The Trial Court Abused Its Discretion in Failing to Consider the Factors Required by the Court on the Prior Appeal.  (Pa150.)  The trial court abused its discretion by failing to consider the Supreme Court’s direction where it remanded the case for the trial court to consider whether the exam should be recorded due to [...]’s language barrier, cognitive limitations, and psychological deficits.  *DiFiore*, 254 N.J. at 241.  The trial court further erred because Defendants provided no additional reasoning to address the Court’s concern that “for a person with limited English proficiency who will already be accompanied by an interpreter, despite the trial court’s holding regarding [...]-Robalino, it is not immediately obvious how an unobtrusive recording device would call the validity of the examination into question in a way that the interpreter would not. ”  *DiFiore*, 254 N.J. at 239.  The very reason for the DME under Rule 4:19 is so that the defense can assess [...]’s cognitive limitations.  *Id.* at 233-34.  In fact, plaintiff’s own psychiatric examiner, [...], found [...]’s “concentration was moderately impaired and short-term memory was mildly impaired. ”  (Pca4.)  [...] opined that because of the medical malpractice, plaintiff presents “with significant psychiatric impairment,” including posttraumatic stress disorder, major depression, and moderate anxious distress.  (Pca7.)  The trial court abused its discretion in failing to apply the factors set forth by the Supreme Court in considering whether to grant a protective order under R. 4:10-3.  (Pa150.)
[brief] Pa60 Ex. P: June 16, 2020  Correspondence serving June 1, 2020  Order.  . . . . . . . . . . . . . .  Pa63 Ex. Q: June 25, 2020  Correspondence from Defendants Pa68 Ex. R: July 18, 2020  Correspondence from Defendants Pa70 Ex. S: July 31, 2020  Correspondence . . . . . . .  Pa73 Ex. T: Aug. 6, 2020  Correspondence from Defendants .Pa75  | Authority | Page | |-----------------------------------------------|------| | **Statutes** | | | N.J.S.A. 2A:14-1 | 16 | | **Court Rules** | | | R. 4:50-1 | 20 | | **Cases** | | | Besson v. Eveland, 26 N.J. Eq. 468, 472 (Ch. 1875) | 15 | | Ford v. Willits, 237 Kan. 13 (Kan. 1985) | 16 | | Gladden v. Public Employees’ Retirement Sys. Trustee Bd., 171 N.J. Super. 363, 370-71 (App. Div. 1979) | 15 | | Last v. Audobon Park Associates, 227 N.J. Super. 602 (App. Div. 1988), certif. denied, 114 N.J. 491 (1989) | 15 | | Rosa v. Araujo, 260 N.J. Super. 458 (App. Div. 1992), cert. den., 133 N.J. 434 (1993) | 16 | | State v. Johnson, 42 N.J. 146, 162 (1964) | 12 | | State v. Locurto, 157 N.J. 463, 474 (1999) | 12 | | State v. Robertson, 228 N.J. 138, 148 (2017) | 12 | | Wohlegmuth v. 560 Ocean Club, 302, 314 N.J. Super. 306 (App. Div. 1997) | 15 | PRELIMINARY STATEMENT