ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] \textit{Lombardi v. Masso}, 207 N.J. 517, 536 (2011).  Nor does the fact that a prior judge entered the earlier order provide it any particular deference.  See \textit{Lawson v. Dewar}, 468 N.J. Super. 128, 135 (App. Div. 2021) (finding a new trial judge erred by giving “undue deference to the interlocutory rulings of the [prior] judge” and recognizing that “[i]f a prior judge has erred or entered an order that has ceased to promote a fair and efficient processing of a particular case, the new judge owes respect but not deference,” with the “polestar [being] always what is best for the pending suit”).  [...] fails to point to anywhere in the court rules or caselaw that requires separate motions concerning an entitlement to an award of attorneys’ fees, and the quantification of attorneys’ fees.  Indeed, the rules expressly contemplate, and at times require, both issues to be addressed in one motion.  For example, a motion for an award of fees incurred in the Appellate Division must be accompanied by an affidavit concerning the fees incurred, thus contemplating \textsuperscript{11}  That fee application was made at an earlier stage of the post-judgment proceedings – just after the court had ordered [...] and [...] to return the funds transferred overseas and when it was anticipated they would comply with that order – and under a different legal theory, seeking an award under the “fund in court” provision of Rule 4:42-9(a)(2).  the issues will be decided together.  See R. 2:11-4.  Likewise, in family actions, the rules expressly provide that “[a]ny applications or motions seeking an award of attorney fees shall include an affidavit of services at the time of the initial filing. ”  R. 5:3-5(c) (emphasis added).  The general civil practice rules do not provide to the contrary, and the chancery judge acted within his discretion in declining to reject Plaintiff’s motion based on its inclusion of a fee affidavit.
[brief] TABLE OF CONTENTS ...........................................................................................................  i  TABLE OF AUTHORITIES ..................................................................................................  ii  PRELIMINARY STATEMENT .................................................................................................1  PROCEDURAL HISTORY AND COUNTERSTATEMENT OF FACTS...2  LEGAL ARGUMENT..................................................................................................................6  I.  STANDARD OF REVIEW .................................................................................................6  II.  THE TRIAL COURT PROPERLY APPLIED  THE AFFIDAVIT OF MERIT STATUTE IN DISMISSING THE COMPLAINT AND ALL CROSSCLAIMS AGAINST [...].  .........................................................................................6  A.  Appellants’ Factual Allegations in the Underlying Case Implicate the Need for Expert Testimony and thus the Affidavit of Merit Statute Applies..............................................................................................................................................6  B.  The Appellants’ Complaint was Properly Dismissed as to [...] due to Appellants’ Failure to Serve an Affidavit of Merit Pursuant to the Statute........................................................................................................................................14  C.  The Common Knowledge Exception Does Not Apply because [...]’s Professional and Ethical Duties are Not Known to Average Jurors........................................................................................................................................16  III.  THERE WERE NO EXTRAORDINARY CIRCUMSTANCES THAT ALLEVIATED APPELLANTS’ OBLIGATION TO OBTAIN AN AFFIDAVIT OF MERIT AGAINST [...].  .........................................................................................19  CONCLUSION............................................................................................................................23
[brief] After engaging in this detailed analysis, the *Navarette* Court specified that “(N)one of this is to suggest that tips in 911 calls are *per se* reliable. ”  *Id.* at 401  However, the *Navarette* Court pointed out that, considering the technological and regulatory developments, “a reasonable officer could conclude that a false tipster would think twice before using such a system. ”  *Id.*  As such, the *Navarette* Court concluded, “(T)he caller’s use of the 911 system is therefore one of the relevant circumstances that, taken together, justified the officer’s reliance on the information reported in the 911 call. ”  Id.  The Navarette Court also acknowledged that a caller’s veracity can be verified through presentation of evidence that the report was made contemporaneously to the crime, or through evidence that the tipster utilized the 911 system.  Id. at 399-401.
[brief] Evers, 175 N.J. at 387; Jabbour, 118 N.J. at 6; State v. Hodge, 95 N.J. 369, 375 (1984); Roth, 95 N.J. at 355.  “In determining what sentence to impose, the judge ‘must identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case’ and ‘[t]he finding of any factor must be supported by competent, credible evidence in the record.
[directive] (b)  The review shall include an examination of all available sources of information about the incident, including any video of the incident, reports, officer or other witness statements, medical records and records of injuries; (c)  The review shall include an analysis of whether force was used in a non- discriminatory fashion to ensure officers are treating every person equally without discrimination based on race, ethnicity, nationality, religion, disability, gender, gender identity, sexual orientation, or any other protected characteristic; (d)  The reviewing supervisors shall make a recommendation of what action, if any, should be undertaken, including commendation of the officer, policy changes, remedial training, administrative action, disciplinary action or, if appropriate, referral for criminal prosecution; (e)  The law enforcement executive, or a command level officer no more than one rank below the law enforcement executive for departments with more than 100 officers, shall review each use of force investigation and approve or reject the recommendations of the supervisors who conducted the review.
[brief] Id. at 461.  The Court held that the construction of the “perception” requirement is extremely strict: lay opinion is admissible only if it is “firmly rooted in the personal observations and perceptions of the lay witness in the traditional meaning of the [sic] N.J.R.E. 701,” id. at 459.  Citing State v. Labrutto, 114 N.J. 187, 199-200 (1989), the McLean Court defined the “perception” requirement as “rest[ing] on the acquisition of knowledge through use of one's sense of touch, taste, sight, smell, or hearing.
[brief] Pa001.  This Order, which was the form of Order submitted by legal counsel for the Township: (i) invalidated the Stealth Resolution; (ii) affirmed the validity of the Original Resolution; (iii) found that the Board’s adoption of the Stealth Resolution constituted bad faith conduct; (iv) awarded [...] counsel fees and costs incurred in connection with its Motion to Enforce, subject to the submission of a certification of services; and (v) permitted [...] to submit an application for the Per Diem Penalty, along with a calculation of the amount sought.  Pa002-Pa003.  In accordance with the Trial Court’s August 8, 2023 Order, [...] subsequently filed a certification in support of its attorney fee award and an application for the Per Diem Penalty, which both the Township and the Board opposed.  Pa023.  In response to Township Defendants’ opposition, [...] submitted an amended brief and certification, slightly reducing the amount of attorneys’ fees that was previously submitted, and the Board subsequently filed an unauthorized sur-reply.  Id.  On December 8, 2023, as [...] had retired, the Honorable [...], Esq., P.J.Cv. held oral argument to fix the amount of attorneys’ fees and consider the Per Diem Penalty to which [...] was entitled in connection with its Motion to Enforce.
[brief] [...] appears to be a very large business located in New York City with at least 109 different services, only one of which relates to archaeology.  See wsp.com/en-us/services.  [...] did not submit any information showing that this sizable entity’s registration under the PWCRA had anything to do with archaeology.  As such the [...] does not concede that [...]’s archaeologist is PWCRA-registered or that its bid is without defects.
[brief] F  Photos of buses and garbage  EXHIBIT  G  Correspondence from [...], Esq. to [...] dated December 7, 2017 with attached Information Subpoena.  ---  3  Poor quality photo was provided and filed in this condition, no other is available.  4  Poor quality photo was provided and filed in this condition, no other is available.  5  Poor quality photo was provided and filed in this condition, no other is available.  Certification of [...] in Opposition to Order to Show Cause to Enforce Litigant’s Rights Without Restraints filed by the [...] on January 16, 2018.
[brief] Instead, as is more particularly shown below, the Chancery Court was not only permitted to vacate that part of the award for violation of public policy under Tretina, supra, it was required to do so, pursuant to Weiss v. Carpenter Bennet and Morrissey, 143 N.J. 420, 442-443 (1995).  C.  [...] Had a Special Duty to Review and Vacate Any Arbitration Award that Violated Public Policy
[brief] . . . . . . .  Da066 Exh F (Email of [...] to [...] dated April 3, 2023)  . . . . . . . .  Da068 Exh G (Email chain between [...], Esq. and [...] from May 4, 2023 through May 24, 2023)  . . . . . . . . . . . . . . . . . . . . . . . . . .  Da069 Exh H (Second Addendum to Agreement of Sale Executed by [...] (undated))
[brief] In the Rider thereto, the Court provided the basis for its conclusions.  More specifically, the Court incorporated the language of its prior April 1, 2024 Order denying the award of any counsel fees.  However, as Appellant now argued entitlement to counsel fees related to a fund in court, the Court considered R. 4:42-9(a)(2) and the two-step process outlined in Porreca v. City of Millville.  After analysis, the Court held that it was abundantly clear that Appellant was only serving his own interest in litigating this matter, and accordingly, no such attorney’s fees are warranted.
[brief] Ibid.  In fact, not once during his deposition did [...] indicate that he had confirmed the presence of any of the 516 items in 1994 to [...].  It is clear from the deposition testimony and [...]’s sworn certification that [...] never confirmed the existence of any, let alone all 516 of the items listed in his report.  The absence of these stores at the Property in 1994 contradicts Mr. [...]’s report, which states:  At your request we have examined the trade fixtures for the commercial ventures which were operating at the [...] on January 1994.  The attached reports detail the improvements which were on the premises on May 28, 2018.  In our opinion the reproduction value of the fixtures which inure to the real estate is $734,948 and the sound, or depreciated, value of these fixtures is $616,635 as of January 27, 1994.
[brief] The court should have concluded that the State failed to present sufficient evidence to sustain a conviction for either first- or second-degree robbery with respect to [...] or for first-degree robbery with respect to [...].  [...]’s conviction must be vacated as a result, and double jeopardy considerations prevent retrial of [...] for first-degree robbery altogether. \(^8\)  See *State v. Krieger*, 285 N.J. Super. 146, 154 (App. Div. 1995) (holding that since the State presented no evidence of a required element of an offense, defendant could not be retried for that offense).  **POINT IV**
[brief] Additionally, [...]’s other 30(b)(6) witness, [...], testified that the Ozurdex applicator was not designed to release a silicone particulate.  (Da0720-Da0721)  [...]’s September 17, 2018 Field Alert Report to the FDA identified the cause of the silicone particulate to be a defect that occurred “as part of the manufacturing assembly process. ” (Da0640; Da0646).  [...]’s October 3, 2018 Dear Health Care Provider letter, that [...] never sent, sets forth that a silicone particulate was being dispensed by some of the Ozurdex applicators and that a number of Ozurdex applicators that [...] had already distributed may contain the silicone particulate.
[directive] (2)  Você entende que ser condenado à supervisão comunitária vitalícia [Sim/Yes]  [Não/No] [Não significa que: você será supervisionado por pelo menos 15 anos corresponde/NA] como se estivesse em liberdade condicional e sujeito às condições apropriadas para proteger a população e promover a reabilitação, inclusive, mas sem limitações, terapia, acesso ou uso da internet e outras restrições que podem incluir restrições sobre onde poderá morar, trabalhar ou viajar?  Do you understand that being sentenced to community supervision for life means that: you will be supervised for at least 15 years as if on parole, and subject to conditions appropriate to protect the public and foster rehabilitation, including, but not limited to counseling; Internet access or use; and other restrictions, which may include restrictions on where you can live, work or travel?
[brief] While “the failure to provide a separate alibi [jury] charge does not constitute reversible error,” Echols, 199 N.J. at 363, here the jury was still instructed that defendant’s “presence at the scene of the crime” and “his/her participation” in the crime were each elements that the State was required to prove beyond a reasonable doubt for each offense.  However, if “events at the trial should be thought to suggest to the jury that the defendant has the burden of proving he could not physically have committed the crime,” the trial court should “dissipate that danger” by clarifying that “the defendant does not have the burden of proving where he was at the critical time” but that any evidence offered in that respect should be considered in the overall determination of reasonable doubt as to guilt.  Garvin, 44 N.J. at 274.  As such, the Court determined that the failure to give an alibi instruction was harmless because the instructions “made it clear that the prosecution had to prove beyond a reasonable doubt that defendant was present at the scene and committed the offense charged.
[brief] First, Plaintiff incorrectly maintains that its newly raised “collateral contract” theory can be established without the court examining the underlying real estate contract.  Despite Plaintiff’s argument that “this issue is not raised on appeal,” there is no scenario in which this court can disregard the illegal real estate transaction to provide a sufficient basis to reverse the trial court’s well-reasoned opinion and find the title commitment to be a valid enforceable contract.  Second, in light of this new argument being improperly raised for the first time on appeal, it would be improper for this court to consider Plaintiff’s arguments since this new “collateral contract” legal theory would require this court to perform an extensive fact-finding mission in order to contradict the trial court’s holding.  Third, Plaintiff again improperly asserts a new argument that this court can alternatively find that there was an “implied contract” by rewriting the plain language of the title commitment’s conditions precedent necessary to form a binding contract.  Fourth, the Plaintiff still fails to appreciate [...] argument that under the Foreclosure Rescue Fraud Prevention Act (“FRFPA”) is not asserted as a claim, counter-claim, or affirmative defense.  In turn, Plaintiff fails to respond to [...] actual argument that the trial court should have considered whether the FRFPA renders the underlying real estate contract illegal just as the court found under the New Jersey Tax Sale Law.  Fifth, once again, Plaintiff improperly raises a new issue that even if the court agrees with [...] that Plaintiff’s expert report is an inadmissible “net opinion,” that it alternatively can decide Plaintiff’s professional negligence claim applying the common knowledge doctrine.  However, Plaintiff’s assertion that this exception is applicable in this case is wholly unsupported and Plaintiff attempts to deceive this court by misrepresenting the long-established standard.  Finally, Plaintiff misrepresents the holding in Plemmons and Shaw, which correctly hold that insurance brokers are exempted from liability under the Consumer Fraud Act.  Thus, [...] respectfully requests that [...] cross-appeal be granted, and that its motion for summary judgment be decided in its entirety, while also upholding the trial court's opinion.
[brief] ...........................................................................  2 POINT II  THE TRIAL COURT PROPERLY FOUND THAT COLLATERAL ESTOPPEL IS IMPROPER.  (Dma 7-54)  ..............................................................................................................  9  A.  The Union County Order Denying Suppression is Not A Final Judgment for these Purposes .................................................................................................  10  B.  The Issues to be Precluded Are Not Identical .............................................  15  TABLE OF CONTENTS CONTINUED
[brief] BECAUSE [...] FAILED TO COMPLY WITH PARAGRAPH (b) OF STATUTE, PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON THE ISSUE OF LIABILITY (1T24)  Assuming, arguendo, that the Court upholds the finding of the court below that [...] presented adequate proof of sending the Cancellation Notice through its reliance on the Certification of Mailing, then [...] will have satisfied the condition precedent contained in N.J.S.A. 17:29C-10(a)(2).  But the statute has an entirely separate condition which must also be satisfied, and in that regard [...] has failed.  The current version of N.J.S.A. 17:29C-10 is not what was originally enacted by the Legislature in 1968.
[brief] Indeed, the New Jersey Supreme Court declared that it is “[t]he long-standing judicial policy in construing cases governed by the [LPCL] and its predecessors, . . . to curtail the discretion of local authorities by demanding strict compliance with public bidding guidelines. ”  *L. Pucillo & Sons, Inc. v. New Milford*, 73 N.J. 349, 356 (1977).  In *Hillside Twp. v. Sternin*, the New Jersey Supreme Court articulated the importance of bidding laws and the perils that may ensue if public agencies are even given the slightest flexibility around the statute.  *The fact that the waiver is attended by good faith on both sides and is not harmful in the particular situation is not sufficient to justify it.*  If erosion of the policy is to be avoided, even in such a state of affairs, the municipality cannot be permitted to breathe validity into an invalid bid by waiver.  *In this field it is better to leave the door tightly closed than to permit it to be ajar*, thus necessitating forevermore in such cases speculation as to whether or not it was purposely left that way.  . . .  Only by this approach can the desirable protection be afforded to the taxpayers; only in this way can perfect equality be maintained among bidders.  The fundamental principle, as well as the evil to be avoided, remain the same whatever the status of the person who challenges the action.  *[Hillside, 25 N.J. at 325-26](emphasis added)*  Thus, the trial court was wrongful when it examined the bid results, post-bid opening, and assessed the severity of the defect based on the impact such mistake had on the bidding results.  Doing so violated the well-established rule set forth by the Supreme Court in *Hillside* and opened the door to evils of corruption, fraud and favoritism that the public bidding laws are intended to prevent.  In other words, by leaving the proverbial door open, the trial court effectively approved the erosion to the integrity of public procurement.  Thus, even if [...]’s failure to list a PWCRA-registered archeological subcontractor is not a statutory violation (though it is), such defect could not be waived because doing so would create an unlevel playing field and provided [...] with an unfair advantage over other bidders and prospective bidders.
[brief] (Da467: 4-7; Da492: 23-493:1)  He stated that off-shore contours change daily and are impacted by the existing groin at [...].  (Da484:4-12)  In support of his opinions, [...] identified and relied upon the physical conditions constructed, including the "pocket" discontinuity in the transition area; the elimination of the relief valve at the southwest curved portion of the [...] existing seawall, and that the new seawall would channel overtopping onto the property.
[directive] Revocation/suspension & fines fines court no no consecutively  Zone DWI less not for same $600, $300, years  1st 1st mandatory mandatory year to IDRC the not suspension  Suspension  N.J.S.A. N.J.S.A. consecutive School from of $100 $100 2 1 than than Suspension than than to discretion referral arising run less less  DDEF DDEF under under Other Other more more (Non any DL  To no no or 39:4-50.4a.  Zone Zone School School Refusal 39:4-50.4a.a.  39:4-50.4a.b.  N.J.S.A. a - in Revoke/Suspend  Revoke/Suspend Zone  DWI  Refusal Penalties
[brief] In deciding the prior appeal, this Court cited the same standard when reversing summary judgment on Plaintiffs’ vicarious liability claim.  Accordingly, the jury was properly instructed as follows:  Restatement § 228(1) describes four factors that collectively support a finding that an employee’s act is within the scope of his or her employment: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master; and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
[brief] The only case cited by [...] that interprets R. 4:42-9(a)(6) is Occhifinto v. Olivo Const. Co., LLC, 221 N.J. 443 (2015).  (Prb5.)  Occhifinto is inapposite.  In that case, an insurer filed a declaratory judgment action seeking a finding of no --- 1 [...] does not dispute that a de novo standard of review applies to the “successful claimant” issue.
[brief] An ordinance will only be declared invalid if it fails to “substantially comply with the requirements of a statute requiring publication. ”  Wolf, supra, 182 N.J. Super. at 295 (emphasis added).  See also Kirylak v. Edgewater, 131 N.J. Super. 461, 465 (Super. Ct. 1974) (upholding the validity of an ordinance because there was substantial compliance with N.J.S.A. 40:49-2).
[brief] .................... 11, 16 Carroll v. New Jersey Transit, 366 N.J. Super. 380, 388 (App. Div. 2004) ....................................... 11, 12, 13, 14, 15 Troupe v. Burlington Coat Factory Warehouse Corp., 443 N.J. Super. 596, 602 (App. Div. 2016) ....................................... 12, 13 Grzanka v. Pfeifer, 301 N.J. Super. 563, 573 (App. Div. 1997) ............... 12, 13 Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990) ............ 12, 13 Brown v. Racquet Club of Bricktown, 95 N.J. 280, 291 (1984) ..............  12, 14 Ryder v. Ocean Cnty. Mall, 340 N.J. Super. 504 (App. Div.  2001) ...........  14  Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J. 245, 248 (2015) .......... 15, 16  Bozza v. Vornado, Inc., 42 N.J. 355, 358 (1964) ..................................  16  Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429 (1966)