ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] *In re Estate of Ericson*, 74 N.J. 300 (1977) (upholding the trial court’s application of the Doctrine of Probable Intent to excise from a will a provision that would have defeated the testator’s intent to provide for his wife).  The overly literal interpretation of Section 4.1A of the Trust urged by the Defendants would lead to a result that the Decedent could not conceivably have intended.  The Decedent presumably designated the Trustee to serve because he trusted her to assure that the provisions he had made for the disposition of his property would be followed. \(^4\)  The Defendants’ interpretation would have resulted in the Trustee abdicating her powers and duties to administer these two substantial assets, as once the Trust no longer owned the properties, it obviously would have no control over them.  The three beneficiaries would have been left to squabble among themselves.  Even [...] acknowledged during the plenary hearing that the beneficiaries might have ended up in court if his interpretation had been implemented (8T82:1-15).
[brief] Lawrence v. Armontrout, 900 F.2d 127, 129 (8th Cir. 1990) (unreasonable to not interview potential alibi witness); Acola v. Woodford, 334 F.3d 862, 870-71 (9th Cir. 2003) (ineffective not to present particular alibi witness); State v. LA., 433 N.J. Super. 1, 14-16 (App. Div. 2013).  [...] made a prima facie claim.  See, e.g., State v. Petrozelli, 351 N.J. Super. 14, 24-25 (App. Div. 2002) (remanding for evidentiary hearing to explore counsel’s reasons for not calling exculpatory witness).
[brief] b.  The Trial Court’s ruling to dismiss Plaintiff’s Complaint with prejudice was in error because Plaintiff substantially complied with the Affidavit of Merit Statute.  (Transcript, 18:23–25, 19:1–9).  “A complaint will not be dismissed with prejudice if the plaintiff can show that he substantially complied with the [affidavit of merit] statute. ”  Ferreira, supra 178 N.J. at 151.  “The [substantial compliance] doctrine is invoked so that technical defects will not defeat a valid claim. ”  Id.  “The doctrine requires the moving party to show: ‘(1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner’s claims; and (5) a reasonable explanation why there was not strict compliance with the statute. ’”  Id. at 151–52 (quoting Galik, supra 167 N.J. at 353, 347–48).
[brief] The Legislature did not define these terms in the Act.  [...] further acknowledged that it did not define these terms, or provide any guidance as to the meaning of these terms, in the regulations promulgated under the Act, in any bulletins that it issued or any other publication.  [...] itself (through [...]’s testimony) cannot identify the meaning of “principally engaged. ”  [...] could only acknowledge that there are several \textit{potential} factors or considerations that \textit{may} be reviewed in determining whether an attorney is “principally engaged,” including the attorney’s number of clients, matters, and hours spent, and amount of fees billed or collected.  It is also unclear as to whether these factors are reviewed on a daily, weekly, or other basis, or the threshold percentage for any of these categories that, once exceeded, constitutes a principal engagement.  It is further unclear if these factors are applied to a single attorney or in the context of an entire law firm where multiple attorneys do some debt adjustment legal work.  It is impossible to reconcile the fact that the agency charged with enforcement of the Act cannot understand its terms with the trial court’s holding that a person of common intelligence can do so.
[brief] Plaintiffs complaint proposed amended complaint (Pa 30-33) and he moving papers filed and attached demonstrate that the [...] defendants denied Plaintiff’s multiple in person request for adjournments on February 21, 2023, and his written request filed in person March 1st, 2023.  Opposing Counsel [...]’s letter dated March 21, 2023 (Pa 145), clearly demonstrates that the defendant [...] deprived and interfered with Plaintiffs N.J. Const. Art. I right to be free from harassment and discrimination, his N.J. Stat. § 2A:17-36 statutory right (Pa 165) and had no intentions to grant the adjournments upon Plaintiffs request until Counsel [...] suggested by explanation to him that Plaintiff was entitled to two adjournments.  Opposing Counsel [...] clearly stated facts on the record demonstrating the defendant [...] had refused to adjourn on February 21st, 2023, and March 1st, 2023, request for adjournments and therefore defendant [...] is liable under N.J.S. 10:6-2 (Pa 175-176).  Plaintiff maintains that the deprivation of his civil rights accrued January 2023, February 21st, 2023, and March 1st, 2023.
[brief] Finally, since Election Day fell on a Saturday, any such postmark deadline should be pushed to the following business date.  Under the New Jersey Rules of Court, “[i]n computing any period of time fixed by rule or court order, the day of the act or event from which the designated period begins to run is not to be included.  The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor legal holiday.
[brief] The fact that the bulk of discovery has been completed should weigh in favor of arbitration because it obviates the need for an arbitrator to determine the scope and extent of discovery to be conducted which an arbitrator otherwise would have the authority to address pursuant to N.J.S.A.  2A:23B-17c.  e.  Whether the party raised the arbitration issue in its pleadings, particularly as an affirmative defense or provided other notification of its intent to seek arbitration.  As to this factor, in Cole the Court elaborated:  “A court will consider an agreement to arbitrate waived, however, if arbitration is simply asserted in the answer and no other measures are taken to preserve the affirmative defense. ”  Cole, 215 N.J at 281.  Stated differently, if a party raises the defense of the requirement to arbitrate and then does not pursue arbitration, the courts should consider the right as having been waived.
[brief] Defendants contend that no motion, summary or otherwise, was brought before the trial court by Plaintiff or Co-Defendant requesting these determinations.  Instead, the basis for the trial court’s decision came from oral argument.  (3T4-17)  (3T11-16)  (3T16-24)  Furthermore, Defendants argue that the May 27, 2022 Order did not explicitly provide notice that the trial court would be making these specific determinations.  The Order explained:  Temporary restraints will remain in place until adjudication of Plaintiffs application for ejectment and removal, Defendants’ counterclaim in opposition, and Defendants’ application for removal of Plaintiff in addition to other injunctive relief, all currently scheduled for a hearing by this Court on June 8, 2022, at which time the Court hear argument on the merits of the underlying action and will thereafter enter an Order directing the parties on how they may proceed with the sale or transfer of the Property.
[brief] (3T42:5-14.)  To that end, the trial court stated, in relevant part, as follows:  The only argument in front of me, I think plaintiff counsel agrees, is they want a chance to argue this bad faith argument based on the promise of the school.  I disagree with [the City’s counsel].  I do not believe that generalized suspicions that this record reflects of [...] before the phone conversation in February ’21 would have justified or required him to include that claim in the first Complaint.  So on that basis alone that’s not enough to say that he’s estopped from raising them now or the entire controversy doctrine operates [to] bar, his claim.  The real question is whether the attempt to get the claim regarding the school in the first case when it was barred by [...], and that question is now up on appeal, should bar the second Complaint now.  . .I’m going to dismiss the second Complaint now without prejudice pending the results of the Appellate Division.
[brief] Ibid.  The Applicant's 18,564-sf property is zoned for multi-family, but the Borough regulates density by requiring minimum-1,200-sf units (15 units).  The Applicant proposes to cram two additional units into the site, and the question is whether the Board had sufficient evidence under the (d)(5) standards identified above.  [...]'s testimony failed in that regard:  Moving on to the density variance, again, we are seeking a variance to permit 1,092 square feet per unit where 1,200 square feet is required.  So, a variance for density is subject to a weighing analysis.  That is, the applicant must demonstrate that the site can accommodate the problems typically associated with a use with a greater density.  The most obvious problems that you would see would be traffic and parking.  1T40-6 to 1T40-14.  The word "traffic" appears only one other time in the entire Board hearing transcript.  1T50-17 to 1T50-20 ("[W]e didn't want to propose a gate between the buildings or restricting access, because the vehicles would be cueing on Ocean Terrace.  The last thing we want to do is stop traffic.").  Each residential unit adds two cars of the occupants, in addition to the vehicles of invitees and guests, to the traffic congestion just across the street from the Boardwalk.  No traffic studies were submitted.  [...] had no basis for opining that the traffic increase would be "mitigated" (1T40-15) -- and he offered no such opinion.  And the Applicant is not "minimizing the loss in on street parking" (1T40-18 to 1T40-19).  Indeed, the application itself displaces an entire parking lot, leaving that many more vehicles on the streets -- where the Applicant eliminates more parking.
[brief] On this record, the jury should have been instructed that firing a warning shot up in the air does not constitute deadly force, and that if it found that the warning shot struck [...], it could acquit [...] of [...]’s homicide by reason of self-defense.  It is axiomatic that “[c]lear and correct jury charges are essential to a fair trial,” State v. Robinson, 165 N.J. 32, 40 (2000), and “[e]rroneous instructions on matters or issues material to the jury’s deliberations are presumed to be reversible error,” State v. Jordan, 147 N.J. 409, 422 (1997).  The failure to charge that firing a warning shot does not constitute deadly force was plain error as it “prejudicially affected the substantial rights of the defendant and [is] sufficiently grievous to justify notice by the reviewing court and convince the court that of itself the error possessed a clear capacity to bring about an unjust result. ”  State v. Montalvo, 229 N.J. 300, 321 (2017) (internal quotation marks omitted).  The error infringed [...]’s constitutional right to due process and a fair trial and mandates reversal of his manslaughter conviction with respect to Nahshon [...].
[brief] (12T 225-5 to 14)  The defense argued that [...] was “[...],” whom [...] said [...] picked up the day of the shooting.  (14T 40-2 to 18)  The defense attempted to elicit that Mason was arrested a block away from the scene of the shooting a month and a half before the homicide for dealing heroin, the same drug found in [...]’s vehicle, with different branding than [...]’s, but was allowed to elicit only the date and location of the arrest and that it was for possessing and distributing undisclosed CDS.
[brief] **  The gravamen of [...]’s complaint against defendants are allegations of fraud in violation of the NJIFPA, N.J.S.A.§17:33A-1 (1983).  The NJIFPA was enacted as L.1983, c.320, s.1. in the year 1983 and provided the NJDOBI or insurers an optional cause of action against fraudulent health care providers in the Superior Court.  Approximately fifteen years later, the New Jersey Legislature enacted the Automobile Insurance Cost Reduction Act ("AICRA"), N.J.S.A.§39:6A-1.1 (1998), implementing various safeguards to combat fraud which were discussed supra, such as Care Paths for treatment, precertification, mandatory appeals, and the mandatory arbitration process.  See, N.J. Coalition of Healthcare Providers v. NJDOBI, 348 N.J. Super. 242 (App. Div. 2002).  As an after enacted statutory scheme, the Legislature clearly intended for AICRA to supersede the NJIFPA as it applies to New Jersey No-Fault as it was implementing statutory safeguards to address fraud in No-Fault claims.  The NJIFPA still remained fully valid for other insurance claims such as property damage, homeowner’s claims, and others, but the enactment of AICRA in 1998 superseded the option provided to insurers to file suit in State Court in favor of its express, mandatory arbitration process, if the insurer opted into the arbitration process through its DPR plan and AOB.  The Appellate Division in Coalition, supra, made this abundantly clear.
[brief] [...]:  I think Your Honor’s tone is always appropriate.  THE COURT:  I know I’m loud.  I know I’m loud.  You know, sometimes people say oh, you’re yelling.  …  THE COURT:  You gentlemen, your voice is not as loud as mine.  So I don’t know.  Just being my regular self and, like I said, I don’t think I go around screaming at the top of my lungs.  But if I were to go out to a restaurant, you know, I have to make a conscious decision sometimes when I’m out to say, oh, I might be talking a little too loud.  [...]:  Well Your Honor, the standard is 50 feet from the property line.
[brief] ”  Akalwadi v. Risk Mgmt. Alternatives, Inc., 336 F. Supp. 2d 492, 505 (D. Md. 2004); Lipscomb v. Aargon Agency, Inc., No. PWG-13-2751, 2014  WL  This US District Judge in Maryland in 2016 explained to [...] that they could not start servicing a mortgage on a defaulted loan.  My loan was defaulted in Sep of 2008, certainly after filing the first Foreclosure Complaint of 3/10/09 the loan was in default.  In 2016 [...], who pleads to be a debt collector in its literatures, claimed that it started servicing that defaulted loan in 2015.  [...] sold the alleged debt to another self claimed debt collector: [...], on 6/30/22.  [...] claimed that it started servicing that defaulted loan since purchase.  On 12/15/23 [...] sold the alleged debt to [...] and [...].  [...] allegedly started servicing the defaulted loan in December of 2023.  They are all alleged debt collectors disguised as mortgage lenders and servicers.  They try to collect the full amount of the time barred Note plus interests plus attorney fees while they paid a penny or two per dollar for the alleged debt.  In 2010, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act, which created the CFPB and granted it authority to promulgate rules under the FDCPA as well as to enforce compliance with the Act's requirements.
[brief] He states:  Importantly, disorder and property crimes can pose a risk of violent physical harm to people.  Nonviolent crimes like panhandling, disorderly conduct, and criminal trespassing bring the theoretical potential for physical harm given that these crimes can sometimes escalate to violent crimes.  Incidents involving disorderly conduct and panhandling, for example, may turn violent if a confrontation ensues.  (156a).  [...]’s own records overwhelmingly show that they had notice of ongoing criminal activity at the [...].  [...] testified that the [...] was known for drug activity the entire 19 years he had been a [...] police officer:  Q.  Okay.  Does [...] have a you know, a reputation for violence or for drugs or anything at all, any type of you know, this is a place that we need to keep our eye on, anything like that?  A.  Traditionally a long time.  There’s drug activity in and around that station, it’s been known for people to utilize our trains to try to loiter, to obtain drugs, to maybe use the bathroom, it’s been a constant, my whole career.  (239a).  The [...] Police Department was not the only arm of [...] with notice of assaults at the [...].  [...] also testified that he had heard about assaults at the station by simply talking to various train crews.  (253a).  All this evidence shows that [...] had notice of criminal activity at the [...], including previous violent acts against their employees.  The trial court erred when it determined that [...] could not have foreseen this incident, foreseeability was for a jury to determine.
[brief] For the foregoing reasons, and those set forth in Appellant’s merits brief, Appellant [...] respectfully requests that this court reverse the [...]’s determination rejecting his appeal of the LOD and request for a fact-finding hearing.  Because the [...]’s determination demonstrates the existence of a genuine dispute of material fact over what [...] said to Complainant and why, the matter should be remanded and referred to the [...].  Further, the court should conclude that [...]’s jurisdictional holding was arbitrary, capricious and unreasonable and should accordingly order that the allegations about the incident at the local union office be dismissed because, under the circumstances, [...] lacked jurisdiction under the State Policy to investigate and premise a policy violation in connection with those allegations.
[brief] The police did not contact the landlord to determine whether the second-floor apartment had been leased, and nothing in the record indicates that the first-floor resident was asked about the status or possible occupants of the upstairs apartment.  Nothing in the record suggests that defendant was not an invitee in the apartment, and indeed the State argued at trial that the mail addressed to defendant found inside the apartment was evidence of his presence in the apartment.  *[Id. at 589.]*  The Court in *Randolph* also set forth that:  Importantly, at the suppression hearing, the prosecutor did not argue that defendant lacked standing to challenge the search on the basis that the apartment was abandoned.  Instead, the prosecutor contended that the police conducted a lawful search pursuant to the exigent-circumstances and protective-sweep exceptions to the warrant requirement.  The trial court never addressed the substantive grounds on which the prosecutor attempted to justify the search.  The trial court, moreover, did not apply our well-established principles governing standing.  Rather, the court turned to the reasonable expectation of privacy test, typically used in federal courts, and then came to a conclusion—not supported by the evidence—that the apartment was vacant.  [Ibid.]  The Court concluded that the trial court erred in its analysis and remanded for a new suppression hearing, at which “the State and defendant should be afforded the opportunity to present evidence concerning the prosecutor's claimed justification for the warrantless entry and search.
[brief] See, e.g., Bayway Ref. Co. v. State Utilities, Inc., 333 N.J. Super. 420, 429–32 (App. Div. 2000) (mailings to plaintiff’s New Jersey office as instructed did not “militate in favor of … jurisdiction”).  Second, Plaintiff paying [...]’s bills via “New Jersey bank accounts,” Pb19.  See, e.g., id. at 432–33; Baanyan Software Servs., Inc. v. Kuncha, 433 N.J. Super. 466, 478 (App. Div. 2013) (receipt of payment from plaintiff in New Jersey did not support personal jurisdiction).  And, third, [...] communicating with Plaintiff’s CFO via email and phone while the CFO was in New Jersey, Pb19.5  See, e.g., Baanyan, 433 N.J. Super. at 477 (phone and electronic communications with individuals and entities in New Jersey insufficient to establish personal jurisdiction).  In this regard, Plaintiff, like the Trial Court, disregards entirely three fundamental tenets of the specific jurisdiction inquiry.
[brief] Brief in Support of Motion for Summary Judgment of Defendants [...], Esquire, and [...] ...........................................................................................................(omitted, see 201a)  Exhibit C, 8/21/2018  Order Denying Summary Judgment Motion of Defendants [...], Esquire, and [...] ...........................................................................................................(omitted, see 229a)  Exhibit D, 8/21/2018 Order Denying Summary Judgment Motion of Defendants [...] and [...] ...................................................................................(omitted, see 222a)  Exhibit E, 9/4/2018 Brief of Defendants [...], Esquire and [...] in Support of Motion for Reconsideration  Pursuant to R. 4:49-2 ...........................................................................(omitted, see 245a)  Exhibit F, 9/28/2018  Order and Opinion Denying Motion for Reconsideration of Order Denying Summary Judgment by Defendants [...], Esquire, and Cooper Levenson, April, Niedelman & Wagenheim, P.A. ...........(omitted, see 300a)  Exhibit G, 9/12/2018  Defendants, [...] and [...]'s, Brief in Support of Motion to Exclude Expert Testimony of [...]..(omitted, see 261a)
[brief] In taking the step to make the variance criteria for height variances consistent with the standards applicable to the other lesser variances under N.J.S.A.40:55D-70(d), the Grasso court explained about these criteria as applied to height variances:  We believe that the special reasons necessary to establish a height variance must be tailored to the purpose for imposing height restrictions in the zoning ordinance.  See Coventry Square, supra, 138 N.J. at 298, 650 A.2d at 346 (standards for conditional use variances must be “appropriate for the purposes and characteristics of conditional uses”); Randolph Town Ctr., supra, 324 N.J.Super. at 416-17, 735 A.2d at 1168 (the criteria for evaluating a FAR variance application must be relevant to the purposes of FAR restrictions).  See also N. Bergen Action Group v. N. Bergen Township Planning Bd., 122 N.J. 567, 578, 585 A.2d 939, 944 (1991) (“[I]t is fundamental that resolutions granting variances undertake to reconcile the deviation authorized by the Board with the municipality's objectives in establishing the restriction. ”).
[directive] In cases where discharge of a firearm does not result in criminal charges, the prosecutor, OPIA, or other designee of the Attorney General will refer the incident back to the agency for an internal affairs administrative review.  7.11.8  Officers conducting administrative investigations of firearm discharges must strive to conduct a thorough and objective investigation without violating the rights of the subject officer or any other law enforcement officer.  All supervisors and any other officer who may INTERNAL AFFAIRS POLICY & PROCEDURES | November 2022 42 be called upon to participate in a firearm discharge investigation therefore must be thoroughly familiar with the agency's entire internal affairs policy, including protection of the subject officer's rights and the procedures for properly investigating firearm discharges.  Investigators should review all administrative reports the agency requires.  These reports should include a description of the incident, the date, time and location of the incident, the type of firearm used, the type of ammunition used and number of rounds fired, the identity of the officer, and any other information a superior officer requests.  The involved officer's supervisor must assist the internal affairs investigator as needed.  7.11.9
[brief] (20T176-7 to 177-9; 20T178-7 to 11).  Concerning Count Four (tampering with records), which on the verdict sheet was also structured identically to Count Five, (Da14-15), the judge instructed the jury that Question B involved a fourth element that also had to be found beyond a reasonable doubt, but only needed to be answered if the jury found defendant guilty of the first three elements, which was the subject of Question A.  (20T190-13 to 192-23).  In three instances, the jury was told that its answer to Question B should be determined by the beyond-a-reasonable-doubt standard.