ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The Supreme Court’s decision in Meadowbrook Carting Co. v. Bor. of Island Heights & Consol. Waste Servs., 138 N.J. 307, 313 (1994), is the seminal case on the materiality of a Consent of Surety when one is required by public bidding contract specifications, as is the case with the Redecking Project.  The import of the Consent of Surety was explained by the Court:  The … Consent of Surety assures the public entity that the surety will provide the performance bond if the contract is awarded to and signed by the bidder [citation omitted].  The significance of a Consent of Surety is that it provides the [public entity] with some assurance at the time of the bid submission that the low bidder will have the capacity to perform the contract and to supply the necessary bonds.  Id. at 316.  As further articulated by the Court, A Consent of Surety is a direct undertaking by the bonding company, enforceable by the [public entity].  Its purpose is to provide a guarantee to the [public entity], at the time of the submission of bids, that if the bidder were to be awarded the contract, the surety would issue the required performance bond.  Id. at 321.  Indeed, without a performance bond, “the bidder cannot be required to enter into and perform the contract. ”  *Ibid.*  Therefore, the failure to submit a Consent of Surety with the bid is “a material defect that [could] be neither waived nor cured. ”  *Meadowbrook*, 138 N.J. at p. 316.  As the *Meadowbrook* Court held, “to permit waiver of the consent-of-surety requirement would undermine the stability of the public-bidding process. ”  *Id.* at 321.  “For example, if a low bidder that had failed to submit a Consent of Surety” later decided it no longer wished to perform the contract because its bid was too low, “that bidder could decline to obtain the Consent of Surety and the performance bond. ”  *Ibid.*  In numerous other cases and in an unbroken line of authority in the ensuing 30 years since *Meadowbrook* was decided, our courts have held that a consent of surety, to be valid, must be clear on its face, and must unconditionally bind the surety to provide the required performance bond at the time of contract award.
[brief] *Raspantini*, 364 N.J. Super. at 533.  Therefore, reversal is warranted.  **CONCLUSION**  For the foregoing reasons, plaintiff’s counsel respectfully requests that the judgment below be reversed and the matter remanded for a determination of a reasonable fee award consistent with state and federal public policy guaranteeing equal access to courts, together with the legal precedent and principles governing this determination, and a clear articulation of factual findings correlated to the relevant legal principles.
[brief] Plaintiff similarly relied upon (Pa277) (the letter from [...]) as conclusive proof of automatic dedication.  This letter, which was not from the municipal engineer, clearly indicates that:  [W]e have no records of the roads either being requested by the applicant to dedicate the roads or recommending that the Mayor and Council dedicate the roads.  My recommendation would be that if the application is approved, a condition of the application should be that the public right of way be dedicated by Ordinance..."  (Pa277)  Such a record clearly does not satisfy Plaintiff's heavy burden in this case which requires competent evidence that the planning board approved plats indicating street dedication and that such streets were inspected and given final approval by the municipal engineer.  The record does not support an "approved" plat designating the roadways as intended for dedication as public streets.  Nor does the record support any final approval by the municipal engineer.  The Statute relied upon by the trial court thus remains unsatisfied and it was error for the trial court to conclude otherwise.
[brief] That date accounts for the nearly 20 years of delay between when [...] first received notice of EPA action at the Site, and when it finally filed suit.  See Goodyear Tire & Rubber Co. v. Kin Properties, Inc., 276 N.J. Super. 96, 103 (App. Div. 1994) (“equity aids the vigilant, not those who sleep on their rights. ”).  While the trial court made clear that it accepted [...]’s position that it was “forced” to litigate this coverage dispute for over a decade (Pa0058), it appears that the trial court did not consider the pre-suit circumstances.
[brief] In *Allstate*, the court held that “plaintiff’s position would have been no better that it was at any later time . . .  Whatever delay occurred caused no prejudice to plaintiff and resulted at least in part from plaintiff’s acquiescence and contributions thereto. ”  *Id.*, at 491.  Here, the opposite holds true – Appellant, although it became aware of the Collection Action at the latest in 2019, waited until 2023, *after* first commencing a Class Action and following the expiration of the statute of limitations, to raise claims as to Respondent’s licensure status, in the presumed hopes that Appellant’s Motion would be granted, Respondent’s Collection Action would be dismissed, and Respondent would be time-barred from recommencement of the Action.  Specifically, the exchange between Appellant’s Counsel and the Lower Court was, as follows:  THE COURT:  It’s not that complicated.  He has been aware of a complaint against him for $600 from 2019 and took no action until, I believe, July of 2023, for four years.  [...]:  Well, the action you’re talking about – THE COURT: On a debt -- on a debt and a lawsuit that was filed back in 2017.  [...]: Right, Your Honor.  THE COURT: So, almost magically -- almost magically, when the statute of limitations would have expired.  [...]: Well, right around the time.  Well, -- THE COURT: Yes.  Right around the time.  (2T21-24-25; 2T22-1-13).  Indeed, if Appellant moved to vacate when he became aware of the Collection Action, or, upon service of the pleadings, Respondent would have been able to recommence the Collection Action, if required to do so.  Now, any ability to recommence the Action would be time-barred and, thus, Respondent is significantly prejudiced by Appellant’s conceded delay in moving to vacate his default.  Thus, the Lower Court did not abuse its discretion in determining that Appellant is barred by Laches.
[brief] See also, Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161(1985)(court finding employer’s conduct deceptive).  Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002)(employer’s deception of OSHA).  Mull v. Zeta Consumer Products, 176 N.J. 385 (2003)(employer’s alteration of design safety features on winding machine).  Crippen v. Central Jersey Concrete Pipe Co. 176 N.J. 397(2003)(employer’s repeated disregard of and failure to correct known OSHA violations).  Correctly focusing on the defendant’s conduct here - that being a decision to compel non-management employees to park in a designated area of the parking lot - the trial court properly found that such conduct did not rise to the level of an intentional wrong within the meaning of the statute and case law interpreting the statute.
[brief] [...]’s Counterclaim was filed over two years later on September 16, 2022, which is obviously well past the 45-day statute of limitations for forcing the Board to comply with a statute.  Hence, even if the court were to retain jurisdiction and infer that N.J.S.A.  18A:7F-9(e)(3) created an implied private right to a cause of action for [...] to sue the Board, it should still dismiss the Counterclaim because [...]’s attempted claims are barred by the 45-day statute of limitations (R. 4:69-6) to force a public entity to comply with a statute.
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[brief] “A trial court’s ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion. ”  State v. Rose, 206 N.J. 141, 157 (2011).  “When a trial court weighs the probative value of evidence against its prejudicial effect pursuant to N.J.R.E. 403, its ruling should be overturned only if it constitutes ‘a clear error of judgment. ’”  State v. Cole, 229 N.J. 430, 449 (2017) (quoting State v. Koedatich, 112 N.J. 225, 313 (1988)).  But if the party “appealing did not makes its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is ‘clearly capable of producing an unjust result. ’”  Rose, 206 N.J. at 157 (quoting R. 2:10-2).  Under N.J.R.E. 404(b), “evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. ”  “The threshold determination under Rule 404(b) is whether the evidence relates to ‘other crimes,’ and thus is subject to continued analysis under Rule 404(b)[.]”  Ibid.  While testifying in court, [...] narrated the events related to defendant’s confession, including an interaction between her and defendant.  After bathing, defendant asked if [...] would lie down with her because she was scared.  (6T109-12 to 13).  [...] agreed and held her at defendant’s request.  (6T109-24 to 110-8).  [...] testified that at one point, she woke up to defendant “pushing on my throat, on my, close to my neck, on my chest,” saying that she was seeing blood and in response, [...] told her, “Don’t worry, don’t worry, there’s nothing here, you’re in my house[.]” (6T110-15 to 23; 6T110-24 to 111-2).  On cross-examination, defendant asked whether [...] told [...] that defendant was screaming in her sleep, “They’re going to kill me.  Help me. ” (6T122-23 to 123-1).  In response, [...] stated that she told Guzman that defendant was choking her and that she screamed that she needed help.  (6T123-2 to 4).  Defendant clarified that [...] was the one who made the request for help.  (6T123-2 to 7).  Defendant never provided [...]’s statement to [...] to impeach this statement.  This interaction between defendant and [...] was not other crimes evidence but rather part of the narrative detailing defendant’s confession to [...].  Throughout the direct-examination, there was no reference to any form of assault or choking by defendant on [...].  Instead, the narrative depicted defendant experiencing a nightmare, with [...] offering comfort and assurance.  It was only during cross-examination when defendant strategically sought to introduce testimony suggesting she may have felt threatened that [...] refuted such assertions, stating she was the one asking for help.  Thus, the State did not introduce any other-crimes evidence requiring an N.J.R.E. 404(b) analysis.
[brief] STATEMENT OF FACTS  On or about November 4, 2022, the [...] received a Certification of Eligibles For Appointment from the [...] for Certification No: PL221601 – Sheriff’s Officer Lieutenant.  AA118; AA122.  In relevant part, [...] (a nonveteran) was first on the list, [...] (a disabled veteran) was second on the list, and [...] (a nonveteran) was third on the list.  AA118; AA122.  When presented with this certification, the [...] bypassed the first and second ranked eligibles, [...] and [...], and instead promoted [...] AA122.  In considering [...]’s suitability for promotion it considered her disciplinary history, which included multiple prior reprimands and counseling in addition to major discipline related to [...]’s prior untruthfulness and insubordination.  AA119; AA131.  Of most concern, as part of a settlement agreement to avoid a more significant penalty and dismissal of additional charges, [...] previously pled guilty to untruthfulness, insubordination, and related misconduct and served a forty-five (45) day suspension without pay.  AA133-137.  The discipline involved her losing her service firearm in an unsecured location and then being untruthful about its location and related insubordination in an effort to avoid accountability.  See ibid.  In late 2019, the New Jersey Attorney General issued a directive to all law enforcement agencies to address the significant issues surrounding law enforcement officers who have been found to be untruthful in the past and the inconsistent past practices regarding such serious offenses throughout this State.  Ra1-10.  That directive required heightened scrutiny of law enforcement officers who have been subject to “a sustained finding that an investigative employee was untruthful or has demonstrated a lack of candor[.]”  Ra5.  Subsequent to the closing date for the Sheriff’s Officer Lieutenant promotional examination and the issuance of the certification at issue in this appeal, on November 7, 2022, the [...] served a Final Notice of Disciplinary Action demoting [...] to the position of Sheriff’s Officer, and he thereafter filed an appeal with the [...] on or about November 9, 2022.  AA118-19; AA124-129.  [...] appealed the [...]’s decision to bypass her and to instead promote [...] to the rank of Lieutenant to the [...].  AA1-7.
[directive] Attachment B of Order 2 - Mandating Observation and Treatment  NGRI Acquittee of Who has Refused to Cooperate with the Psychiatric Evaluation Dangerousness  * * * of  This order ([...]) is to be used after an acquittal by reason insanity is found by the trial court where the NGRI acquittee refuses to cooperate with the psychiatric examination.  Pursuant to N.J.S.A. 2C:4-8(a) the acquittee shall of undergo a psychiatric examination by a psychiatrist the prosecutor's choosing.  of  In cases where the Department Health is to provide the psychiatrist, this order of may be used.  For the examination to occur by a psychiatrist in the Department 1 of Health the acquittee shall be committed to one the State psychiatric hospitals.  The order provides that the examination is conducted to provide an opinion to as of current dangerousness to self, others or property as a result mental illness and to recommend a disposition to the court.  The examining psychiatrist would need all discovery in the matter and that should be transferred simultaneously with the of of order to the Department Health, Office Court Coordination in the designated State psychiatric hospital where the evaluation shall be conducted. of  Medical clearance will need to be coordinated with the Department Health prior to an admission into a State psychiatric hospital.  1 N.J.S.A. 2C:4-5(c) provides that the court may permit examination without cooperation, may appoint a different psychiatrist or may commit the defendant for observation for a period not exceeding days 30 except good cause shown, or exclude or limit the testimony of defense psychiatrist or licensed on psychologist (as applicable).  Attorney Name ----------- NJ
[brief] 2)  **[...] had Constructive Notice** (Raised below, Pa2149, Pa2152)  Although it is submitted that this prong of the analysis has already been met since the [...] had actual notice of the dangerous condition that caused the accident, in further support of this argument it is also submitted that the [...] had constructive notice as well.  A public entity is considered to have constructive notice if the condition existed for such a long period of time and was of so obvious a nature that the public entity, exercising due care, should have discovered the dangerous condition and its dangerous character or if an employee performing his/her job with reasonable care should have discovered the dangerous condition and its dangerous character, then the public entity is assumed to have had constructive notice of the condition.  See State of New Jersey Model Jury Charge 5.20A.  In this case, on the facts before the court, for the reasons stated above, not only did the “dangerous condition” exist but it existed for such a significant period of time (approximately 5 months) before Plaintiff’s accident that it should have been identified by the [...] during routine inspections.
[brief] Pa223–Pa224.  Appellant never received treatment other than from [...] during the duration of her employment.  Pa050; DSOF ¶ 31.  Appellant never directly communicated that she was diagnosed as obese or had high blood pressure to [...].  Pa050; DSOF ¶ 32.  Appellant could not recall what her blood pressure is or if she had actually been diagnosed with high blood pressure, nor could she provide any documentation of her having such a condition.  Pa050; DSOF ¶ 33.  During her employment at [...], Appellant was not taking medication for any of her alleged conditions.  Pa050; DSOF ¶ 34.  Appellant never discussed any risks of coronavirus with a medical professional during her employment at [...].  Pa050; DSOF ¶ 35.
[directive] After an adjudication of delinquency, the notice may include a photograph.  I acknowledge that I received a copy of this Notice of Restraining Order.  I understand that a Restraining Order containing the above terms and conditions will issue unless a Superior Court judge orders further modifications.  Juvenile's Name (Print)  Juvenile's Signature and Date  Juvenile's Parent/Guardian's Name (Print)  Juvenile's Parent/Guardian's Signature and Date Name and Title of Person  Issuing Notice and Date
[brief] This principle of summary judgment practice is often referred to as the “sham affidavit doctrine. ”  Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 251 (3d Cir. 2007).  Plaintiff has not offered a single explanation for the contradictions in his January 30, 2023 affidavit, and instead contends that the affidavit is somehow consistent with his prior testimony.  Correctly, the trial court highlighted why the sham affidavit doctrine must be applied in this case in deciding the summary judgment and reconsideration motions:
[brief] When we had asked the applicant for my client the number of units it had on this site for the purpose of doing the calculations of parking and density, they gave us the units that are on both the east side of the [school] lot and the west side of the [school] lot because from a leasing standpoint, it all is seen as under one roof...  So, when they gave us the number of units, it was for, basically everything they lease which is both the left side and the right side.  Everything else on the application which was based on surveys and anything out in the field was solely the right size.  So, lot area was correct coverage.  The impervious coverage.  The landscaping – all that was correct because all that in the (indiscernible) verified through survey and going to the site.  Unfortunately, knowing the unit mix and unit type, unless we’re going to count every single (indiscernible) and knock on every door and look in the bedrooms, we, unfortunately, relied on our client’s information to get what is correct but of a greater area than what we were anticipating as part of this application...
[brief] More specifically, [...] has failed to identify any contractual obligation or any other documentary support for the position that [...] was obligated to identify and remediate the pre-existing roadway condition.  [...] has also failed to provide any support for the contention that [...] was on actual or construction notice of the pre-existing condition or that the condition was dangerous and caused plaintiff’s accident.  [...]’s opinions have been limited to broad assertions and easily distinguished conclusory positions.  During the course of his testimony, he has repeatedly recognized the deficiencies associated with these positions and has conceded the irrelevance of numerous factual assertions upon which plaintiff continues to rely.  In light of [...]’s inability to sufficiently ground plaintiff’s malpractice claim against [...], plaintiff’s complaint against [...], as well as against all other named defendants, were dismissed with prejudice.
[brief] The United States first addressed this issue twenty years ago in United States v. Patane, 542 U.S. 630, 634 (2004).  In that case, the police arrested a suspect and did not fully administer Miranda warnings.  The police nonetheless questioned the suspect, a convicted felon, about a firearm located in his residence.  Defendant eventually admitted that he had a firearm in his residence, and he gave the police permission to retrieve it.  The police then retrieved the firearm in the house.  Id. at 635.  Defendant filed a motion to suppress the gun, arguing, among other claims, that the police obtained it due to the Miranda violation.  The district court and court of appeals agreed that the evidence was inadmissible at trial, with the latter court basing its decision on the Miranda violation.  Id. at 635.  The United States Supreme Court reversed the court of appeals, reasoning that the admission of nontestimonial physical evidence “does not run the risk of admitting into trial an accused’s coerced incriminating statements against himself” and could not otherwise be justified under the exclusionary rule.  *Id.* at 644-45 ([...], concurring).
[brief] [...]’s assertion that [...]’s motion to compel arbitration is a delay tactic that enables insurers to make investment income on the funds they purportedly owe is baseless.  Pb22.  [...] has not cited a single fact in making this accusation against [...].  [...]’s contention that [...]’s failure to seek arbitration during the four stays in the DJ Action (when a bilateral arbitration was futile) somehow shows that [...] is acting with ulterior motives is equally infirm.  Id. at 23.  [...]’s decision to seek arbitration once [...] settled with the Utilities and other parties to the DJ Action was a function of the developments in those cases.  Once [...]’s Indemnity Claim was ripe and [...] became the sole defendant in the DJ Action and could obtain complete and binding relief in arbitration, it promptly exercised its rights.  D.