ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] D.  [...]’s second-filed suit in Missouri  Since the commencement of this Action, Defendants have repeatedly sought to avoid litigating in New Jersey in favor of their home court in Missouri, despite Missouri’s lack of any material connection to this dispute.  On September 1, 2017, Defendants filed their second-filed action in Missouri seeking to enforce the Special Undertaking.  (Pa082).  That action is a mirror image of this action involving the same parties, the same underlying transactions and occurrences, and the same proof. \(^7\)  Though Defendants have attempted to distinguish their second-filed action, all of the claims Defendants raised in their second-filed action could have been filed here in New Jersey as counterclaims.  See R. 4:7-1.  \(^7\)  Defendants later amended their petition in August 2022 to assert similar claims against five other defendants—former customers (or their successors) who also signed similar Special Undertaking agreements.  (Pa105-06).  The subsequent addition of new parties to the Missouri Action does not affect the dispute between [...] and [...] or the comity analysis here.  Defendants simply joined together six separate breach of contract actions that could have been sued separately.  Defendants’ claims against third-parties under separate Special Undertaking agreements have no relevance to [...]’s alleged liability to Defendants under the Special Undertaking between them.  E.
[brief] When reducing Appellant’s argument to its most basic terms, the Appellant is attempting to say that seller [...]’s relationship with the buyer [...] created an incentive to falsify the original service of process – assumedly for the reason of making a profit.  But [...]’s entire business existence is admittedly for the purpose of conducting business to make a profit.  Essentially all businesses exist for this reason (except “non-profit” entities).  The relationship with the buyer does not impact this profit-making goal of [...]; it always exists.  The end goal of wanting to acquire and sell the property for profit was and is always at play.  But there is nothing in the record to indicate that some illegal, nefarious business methodology was employed so as to make such profit.  There is no such evidence in the record.  The Trial Judge heard these arguments, weighed the evidence, and rejected the conclusion that the buyer’s identity (whether arms-length or not) impacted the actions of the original service of process.
[brief] LEGAL ARGUMENT I.  BECAUSE DEFENSE COUNSEL NOT ONLY FAILED TO PRESENT BUT ALSO UNDERMINED HIS CLIENT’S DEFENSE, THIS COURT SHOULD VACATE THE CONVICTION AND REMAND FOR A NEW TRIAL (Da13a, 16a-18a)  [...] sought to introduce “a psychiatric defense” of “persecutory paranoia....”  5T48-8/13.  According to [...], “I’ve been to a few psychiatrists.  They’ve given me multiple diagnoses, and I for a fact know I suffer from amnesia, and it occurs under a few beers, one beer, no beer.  It’s an abnormality that I have no control over. ”  5T49-10/14.  Rather than develop or present this defense, trial counsel for [...] undermined it, saying, Your Honor doesn’t have to put him under oath because…it has nothing to do with the case, so to speak, but he wants to pursue a line of defense which [in] my understanding of the law is improper and inadmissible.
[brief] [...] indicates in its marketing material that its products “bring the indoors out” and are “engineered and designed to withstand all types of weather conditions from heavy snow to high winds”.  According to [...], “the louvers open to allow sunlight in and close to provide shelter and shade.  Water is directed from the louvers to gutters, and down through downspouts either independent or incorporated into columns. ”  [...] indicates these pieces come together “to make it all work perfectly. ”  The parties engaged in discussions necessary to plan for the installation to occur at a particular piece of property.  As indicated above, this type of “dialogue” is hardly unique to this contract.
[brief] (2T; P000484).  [...] complied and submitted the certification of fees on November 6, 2023, requesting $89,072.19.  (Pa000478).  On November 14, 2023, Plaintiffs filed Opposition that did not dispute the hourly rate charged but disputed the reasonableness of the time expended and billed.  (Pa000557).  In a written order dated December 5, 2023, the trial court reduced [...]’s fee award to $30,000.
[brief] Before you send or deliver the Transcript Request-Municipal Court form, contact the court for the estimated cost of the transcript and who to make the check out to.  part, addressing hearsay arguments were unfortunate due to waiver of appearance and by not objecting (2) hearsay arguments brought up by the defendant and (3) defendant’s answers on hearsay that were being considered at the Superior Court, now being objected to, were brought as answers to questions posed during defendant’s cross-examination of the plaintiff’s witness (2T10:9-20)  [...] redirects the Superior Court to the submitted plaintiff’s brief, citing *State v. Allen* regarding defendant’s risk of proceeding as pro se after being advised of the risks inherent of representing oneself in court and if the defendant would have made those objections, the complaints could have been waived\(^{25}\) (2T10:21-25, 2T11:1-6).  She furthers fault to the defendant for opening the doors of hearsay, repeatedly questioning the plaintiff’s witness, [...] and redirects back to the defendant for opening the doors due to risks brought up by the Municipal Court via *State v. Allen*\(^{26}\).  [...] directs the Court to, “…look at the record she – the matter was postponed, did give her time to hire an attorney, to apply for the public defender, and she proceeded to trial without an attorney in this matter and then was advised --- \(^{25}\)  The Municipal Court overruled all of her objections based on excited utterance, and not being offered as hearsay so – [1T23:21-23, 1T45:3-5 -11/29/2022]  \(^{26}\)  The defendant did not open the doors of hearsay during cross-examination, the Plaintiff’s witness opens the door initially with [...] [1T18:25-26 -11/29/2022] and initially on cross-examination [1T27:11 -11/29/2022]. of the risk of proceeding pro se by [...]\textsuperscript{27}…” (2T11:22-25, 2T12:1-3).  In actuality, the defendant began as pro se and hired an attorney who in turn was dismissed by the defendant on the record at the September hearing\textsuperscript{28}.
[brief] Falcone v. Branker, 135 N.J. Super. 137 (Law Div.1975)  . . .  14  Frugis v. Bracigliano, 177 N.J. 250 (2003)  . . . . . . . . .  27  In re Adoption of N.J.A.C. 7:15-5.24(b), 420 N.J. Super. 552 (App. Div. 2011)  . . . . . . . . . . . . . . . . . .  34  In re New Jersey Dept. of Environmental Protection Conditional Highlands Applicability Determination, [...], 433 N.J. Super. 223 (App. Div. 2013)  . . . . . . . . . . . . . . . . . passim  In re N.J. Pinelands Com'n Resolution, 356 N.J. Super. 363 (App. Div. 2003).  . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  11  In re Six Month Extension of N.J.A.C. 5:91-1 et seq., 372 N.J. Super. 61 (App. Div. 2004).  . . . . . . . . . . . . .  11  Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576 (2013)  . . . . . . . . . . . . . . . . . . . . . . . . . . .  13  Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . .  11 U.S. Bank, N.A. v. Hough, 210 N.J. 187 (2012) . . . . . . . . . .  14  STATUTES
[brief] As he indicated: “So if it isn’t, with all due respect, I don’t think you have jurisdiction”.  (Pa566)  (Transcript, p. 22)  [...], the Board Engineer also indicated that: “the Board does not have jurisdiction because it’s a use variance”.  (Pa566)  (Transcript, p. 24)  Thereafter [...], the Board Engineer indicated: “the only question out there is whether or not the governing body took acceptance of the roadway and dedicated it for public use, that it’s no longer private.  And I respectfully disagree, because if it is private, that little strip of land that you have ingress and egress is not zoned for this use.  And I understand this is a Court case, and it’s based on COAH and it’s based on this specific lot.  The problem, in my opinion, as an engineer and a planner, they left one of the lots out, if it’s private.
[brief] IN THE SUPERIOR COURT OF NEW JERSEY  APPELLATE DIVISION  DOCKET NO. [...] ON APPEAL FROM ORDER AND FINAL DECISION SIGNED AND SERVED TO PARTIES ON APRIL 4, 2022, SEPTEMBER 14, 2023, AND OCTOBER 27, 2023  IN DOCKET NO. [...]  SUPERIOR COURT OF NEW JERSEY, ATLANTIC COUNTY, LAW DIVISION SAT BELOW:  THE HONORABLE STANLEY L. BERGMAN JR., J.S.C.  THE HONORABLE DANIELLE WALCOFF, J.S.C. [...]  PLAINTIFF-APPELLANT, V. [...]  F/K/A [...]; [...]; AND JOHN DOES 1-10; ABC CORP. AND XYZ COMPANY, FICTITIOUS PARTIES, DEFENDANTS-APPELLEES.
[brief] 21 N.J.S.A. 2A:53A-26 to -29 ...................................................................................  6 N.J.S.A. 2A:53A-26 ............................................................................................  11 N.J.S.A. 2A:53A-27 ............................................................................................ 9-10, 13, 16 N.J.S.A. 2A:53A-29 ............................................................................................  10 N.J.S.A. 2A:53A-37 to -42 .................................................................................. 13 N.J.S.A. 2A:53A-41 ............................................................................................  13 N.J.S.A. 26:13-33 ...............................................................................................  19 N.J.S.A. 26:2H-2 ...............................................................................................  11  N.J.S.A. 45:9-1 ..................................................................................................  11  N.J.S.A. 45:11-23 to-52 .....................................................................................  11  Other Authorities Model Civil Jury Charge 5.12 .................................................................  20  New Jersey Governor’s Executive Order No. 103 (Mar. 9, 2020) ..................................................................................  18  New Jersey Governor’s Executive Order No. 112 (Apr. 1, 2020)  ..................................................................................  18-19  PRELIMINARY STATEMENT  In this professional malpractice case, the Honorable [...], J.S.C. held that a family medicine physician, [...], M.D. was qualified to offer an affidavit of merit (“AOM”) against “the facility” or “[...]” for its “institutional failures” or “administrative negligence” in responding to the COVID-19 pandemic, allegedly leading to the death of plaintiff’s decedent.
[brief] (Pa231 at ¶5).  According to [...], "[t]he TMS log would not include useful information. ” (Pa232 at ¶6).  It would mostly be things like when a movie file was transferred to local storage two days before the movie opened or to tell the ticketing system that "Batman is scheduled in Auditorium 3 on Wednesday at 3 p.m." (Pa232 at ¶6).  It would not contain an accurate representation of when something actually played at a given auditorium."  (Pa232 at ¶6).  [...] further stated: "[t]he 'gold standard' for determining what actually played back in a theatre is the Security Log ("SL"), which Plaintiff received.
[brief] (Da2396-Da2398).  It is highly likely that, from their location two blocks away, [...] and the others actually observed people walking on the neighbor’s lawfully permitted, non-NBA walkover.  4  Defendants correctly point out that Plaintiffs stated in their initial brief that the criminal complaint alleged [...] had personally witnessed [...] commit the alleged criminal acts.  (Drb6-Drb7).  Those words—“personally witnessed”—do not appear in the text.  However, [...] testified he was the only witness and did not rely on anyone else.  (Da2230; Pa317-Pa320).  Coupled with his handwritten text in the criminal complaint, the logical conclusion was that [...] represented he observed [...] commit the alleged crimes.  But, [...] unequivocally testified that he did not see [...] do the things alleged in the criminal asked repeatedly if he saw either [...], his wife or any member of his family cut the fence, Mr. [...] candidly admitted he had not.
[brief] N.J.S.A. 2C:44-3a.  [...] had exactly that, barely meeting the legal requirement for an extended term.  [...] had one conviction for a 2013 incident for fourth-degree criminal trespass.  (PSR 6)  He received probation for that offense.  (PSR 6)  [...] had another conviction stemming from a 2015 incident for fourth-degree criminal sexual contact, for which he also received probation.  (PSR 6)  The trial court overweighed this minor criminal record in sentencing him to an extended term.  Weighing such a minor prior record heavily enough to push [...] into an extended term does not serve the purpose of the statute.
[brief] 29 - **Alperin v. Mayor and Township Com. of Middletown Township**, 91 N.J. Super. 190 (Ch. Div. 1966) .................................................................................................................. 29 - **Berninger v. Board of Adjustment**, 254 N.J. Super. 401 (App. Div. 1991), aff'd o.b., 127 N.J. 226 (1992)
[brief] (9T82-14 to 20).  [...] ran up the stairs to help his wife.  (6T68-15 to 17; 7T147-16 to 148-4).  More gunshots rang out as defendant shot his father four times.  (7T85-13 to 23).  One bullet entered the top of [...]’s head, travelled downward, and exited at the midline of his jaw.  (9T35-9 to 36-19).  The force and kinetic --- \(^1\)  Although he shared a bedroom with [...], defendant slept in their parents’ room.  (6T110-1 to 14).
[brief] The Dangerous Condition Caused Plaintiff’s Accident  As the Court is aware, proximate cause is a fact issue and thus, “proximate cause is generally an issue for the jury. ”  Miller v. Estate of Sperling, 166 N.J. 370, 386, 766 A.2d 738 (2001); accord Winstock v. Galasso, 430 N.J. Super. 391, 418, (App. Div.), certif. denied, 215 N.J. 487, 73 (2013).
[brief] The court found that, “if you pay close attention to [...]’s statement…[...] was not the ringleader.  It was a situation where it was very much a collaborative effort.  The parties preplanned it, according to [...]’s own statement[.]”  (4T62-11 to 16)  Nothing in [...]’s allocution, however, supports this finding.  In 2018, [...] testified that “I stick to the original version of what happened.  I’m not changing any of that stuff.  But, I mean, alls [sic] I could say is, I mean, it was wrong.  I know that. ”  (3T83-14 to 17)  At that same hearing, the State argued that “[...] actually, when this case was investigated, he was described as the leader of the group.  He was the one calling the shots, he was the one that had the gun, and brought it to the scene.  He was the one that shot [...].  He started the violence.  He started the process.  Everything escalated from there. ”  (3T66-17 to 23)  (emphasis added)  And in his PSR, [...] “agreed with the details as noted in the official version [and] stated that the burglary was Beltran’s idea because he wanted to get more guns and took one with him to the burglary.  [...] admitted shooting [...], at the urging of Beltran. ”  (PSR3)  At his March 2023 resentencing, [...] said, “I take full responsibility for what I did.  Mr. and [...] were killed and I’m responsible for their deaths.  No description of who did what or how will ever change that. ”  (5T55-21 to 24)  None of these statements contradict the facts as established at [...]’s plea.  And none of these statements undermine the expert findings that [...] was generally prone to peer pressure, or that [...] was specifically urged into taking the gun during the incident.  The court’s finding was thus not based on a proper evidentiary basis, and it improperly rejected testimonial evidence that should have given mitigating effect to [...]’s vulnerability to peer pressure.
[brief] b.  A summary action pursuant to this section shall be filed within 120 days after the aggrieved party receives notice of the award pursuant to section 19 of this act [FN3] or within 120 days after the aggrieved party receives notice of a modified or corrected award pursuant to section 20 of this act, [FN4] unless the aggrieved party alleges that the award was procured by corruption, fraud, or other undue means, in which case the summary action shall be commenced within 120 days after the ground is known or by the exercise of reasonable care would have been known by the aggrieved party.  c.  If the court vacates an award on a ground other than that set forth in paragraph (5) of subsection a. of this section, it may order a rehearing.  If the award is vacated on a ground stated in paragraph (1) or (2) of subsection a. of this section, the rehearing shall be before a new arbitrator.  If the award is vacated on a ground stated in paragraph (3), (4), or (6) of subsection a. of this section, the rehearing may be before the arbitrator who made the award or the arbitrator's successor.  The arbitrator shall render the decision in the rehearing within the same time as that provided in subsection b. of section 19 of this act for an award.  d.  If the court denies an application to vacate an award, it shall confirm the award unless an application to modify or correct the award is pending.  The gravamen of the Plaintiffs’ Order to Show Cause and Verified Complaint is that the nine med-pay subrogation demands filed by [...] with [...] were not within the terms of the Agreement.
[brief] **PLAINTIFF STATED A CLAIM AGAINST OLD REPUBLIC FOR NEGLIGENT MISREPRESENTATION**  *(Pa651-652; 4T)*  The trial court also erroneously dismissed Count V of the Complaint, wherein Plaintiff sought damages from [...] based upon a common law theory of negligent misrepresentation.  *(Pa651-652; 4T).*  Contrary to [...]’s contentions, Plaintiff established a *prima facie* claim for negligent misrepresentation under New Jersey law, which requires allegations of “‘[a]n incorrect statement, negligently made and justifiably relied on,’ which results in economic loss. ”  *See McClellan v. Feit*, 376 N.J. Super. 305, 313 (App. Div. 2005), quoting *Kaufman v. i-Stat Corp.*, 165 N.J. 94, 109 (2000).  Plaintiff alleged false statements by [...]’s [...] regarding the transaction being on hold and regarding her intentions to keep Plaintiff informed.  *(Pa18-19, Complaint, ¶¶ 86-94).*  Plaintiff also alleged that it reasonably relied upon [...]’s statements, believing that [...] and [...] would keep Plaintiff apprised of the progress of the transaction and ensure Plaintiff was notified of the rescheduled closing.  *(See id.)*  [...] failed to provide that information to Plaintiff, apparently because it was willing to serve the interests of [...] to the detriment of Plaintiff – and because it wanted to earn fees on the transaction.  *(See id.)*  Plaintiff also alleged that its reliance on [...]’s misrepresentations was reasonable under the circumstances, in light of [...]’s role as title company and escrow agent under the PSA and the parties’ long-standing relationship of trust and confidence.  *(Pa19, Complaint, ¶¶ 96-99; Pa152-157).*
[brief] The trial court erred in holding the December Terms unenforceable.  1.  **The December Terms’ arbitration agreement satisfies *Atalese*.**  An arbitration agreement is enforceable in New Jersey if it is “sufficiently clear to place a consumer on notice that he or she is waiving a constitutional or statutory right. ”  *Atalese*, 219 N.J. at 443.  “No particular form of words” is required to convey that waiver.  *Id.* at 444.  Rather, an arbitration clause must explain “at least in some general and sufficiently broad way … that the plaintiff is giving up her right to bring her claims in court *or* have a jury resolve the dispute. ”  *Id.* at 447 (emphasis added).  Other courts applying *Atalese* have correctly observed that the Supreme Court described that standard as disjunctive: an arbitration agreement must make clear *either* that the party is waiving her right to sue in court *or* that she is waiving her right to a jury trial.  *See, e.g.*, *Columbus Circle NJ LLC v. Island Constr. Co., LLC*, No. A-1907-15T1, 2017 WL 958489, at *4 (N.J. Super. Ct. App. Div. Mar. 13, 2017) (unpublished opinion) (holding *Atalese* does not require an arbitration agreement to “explain a plaintiff is giving up the right to bring claims in court *and* have a jury resolve a dispute”) (emphasis in original).
[brief] In this case, Plaintiff [...] asserted claims under the New Jersey's Consumer Fraud Act (CFA or the Act), N.J.S.A. 56:8-1 to -210.  The CFA is a powerful "legislative broadside against unsavory commercial practices" in the marketplace.  Real v. Radir Wheels, Inc., 198 N.J. 511, 514, 969 A.2d 1069 (2009).  When initially enacted, the CFA addressed the elimination of sharp practices and dealings in the marketing of merchandise.  Cox v. Sears Roebuck & Co., 138 N.J. 2, 16, 647 A.2d 454 (1994).  Continuously expanded by the Legislature over the years, the CFA's reach now extends beyond "fast-talking and deceptive merchant[s]" to protect the public even when a merchant acts in good faith.  Ibid. (alteration in original) (quoting *D'Ercole Sales, Inc. v. Fruehauf Corp.*, 206 N.J. Super. 11, 23, 501 A.2d 990 (App. Div. 1985)).  Given the CFA's remedial purpose, courts liberally enforce the Act to fulfill its objective to protect consumers from prohibited unconscionable acts by sellers.
[brief] (Pa388-Pa390).  He then offered a new opinion that the infant was going to suffer injury if not delivered by 10:18pm (30 minutes after 9:48pm).(Pa388).  This “explanation” completely retracted his prior answers to the multiple clear questions that asked for his opinions assuming the baby was born between 5 and 30 minutes earlier than her actual 10:27pm delivery and his clear opinion the delivery needed to be 25 minutes earlier to have a chance at a better outcome.  (Pa340-Pa341).  --- 6  This certification should have been rejected as a sham affidavit pursuant to Shelcusky v. Garjulio, 172 N.J. 185, 202 (1985) and/or Ritondo by Ritondo v. Pekala, 275 N.J. Super. 109 (App. Div.), certif. denied, 139 N.J. 186 (1994).
[brief] See Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 107-08 (2019).  “In deciding whether to grant dismissal, the complaint’s allegations are accepted as true and with all favorable inferences accorded to plaintiff. ”  MacProp. Grp. LLC & The Cake Boutique LLC v. Selective Fire & Cas. Ins. Co., 473 N.J. Super. 1, 16 (App. Div. 2022) (procedural history omitted).  “A complaint should be dismissed for failure to state a claim pursuant to Rule 4:6-2(e) only if the factual allegations are palpably insufficient to support a claim upon which relief can be granted. ”  Id.  “If the complaint states no claim that supports relief, and discovery will not give rise to such a claim, the action should be dismissed. ”  Dimitrakopoulos, 237 N.J. at 107-08.
[brief] When [...] continued to insist that she did not know her son had the insurance policy, [...] asked her:  Court: Since you were the recipient-you eventually got the money, it was payable to you right?  (5T-69, 21-23)  [...].: Okay.  The Court: You were able to cash the check or deposit the check, a copy of the policy we need to know where you deposited it—where you put the money and the checks written to the children.  (5T-69 l25 and 70, 1-3)  The Court responded:  Right now, my objective is to get as much information as we can so we can sort out who is supposed to get what, and let's see where the money went.  And if there's any left, I can only say, [...], I would advise you not to spend it, and were going to put that in a court order,... (5T-70, lines 16-23).