ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Preliminary Statement  Defendant-respondent, [...] ("[...]"), hereby opposes the appeal filed by plaintiff-appellant, [...], a director of the [...] (the “[...]”).  Dabney was sued in the Vermont Superior Court by former directors in the matter of Hokenson, et al. v. Malovany, et al., (the “Underlying Hokenson Action”).  Prior to entry of judgment against Dabney, [...] funded his defense subject to a reservation of rights.  Following a ruling included an express factual finding of self-dealing by Dabney and the underlying plaintiffs’ subsequent abandonment of their other claims, [...] ceased funding Dabney’s defense and declined to indemnify him against the attorneys’ and receiver’s fee awards entered against him.  Dabney then sued seeking reimbursement for his settlement of the fee claims.  The Law Division correctly found that Dabney is not entitled to coverage.  As detailed below, the Law Division determined that there are four (4) independent policy provisions that serve to extinguish coverage.  As a threshold matter, the D&O Form in the [...] policy affords coverage for “sums that the insured becomes legally obligated to pay because of ‘loss’ due to ‘wrongful acts’ committed by the insured…”  The D&O Form defines “wrongful acts” as “any negligent act(s), error(s), or omission(s) directly related to the operations of the condominium property…”.  The claims against Dabney were premised exclusively on alleged conflicts of interests and self-dealing; the Underlying Complaint contained no allegations of “negligence” and, thus, were beyond the scope of the insuring grant in the D&O Form.  Dabney has argued that negligence can be implicit in a breach of fiduciary claim.  As the Vermont Court correctly found, however, the claim against Dabney was premised on self-dealing and breach of the duty of loyalty and cannot be spun as negligence-based.  Thus, when [...] ceased its defense of Dabney, there were no potentially covered claims remaining in the litigation.  Even if the terms of the insuring grant were satisfied, coverage would be barred by Exclusion (g).
[brief] A May 4, 2020 Order modified the January 21, 2020 Order to appoint [...], CPA, as the independent expert.  (Pa275)  On October 14, 2021, the trial court denied Plaintiffs’ motion to fix the percentage of [...]’s interests in the Company, and ordered that the experts also opine on the percentage interest to be purchased along with the value.  (Pa309)  The trial court held a four-day hearing commencing on February 9, 2022 and continuing on April 6, April 7, and May 8 (the “Valuation Hearing”) relating to (a) the value of [...]’s membership interests in [...], and (b) the amount of those interests.
[brief] A dismissal based upon mootness is not a preclusive ruling upon the merits.  A dismissal based upon mootness is a procedural jurisdictional ruling, kicking certain substantive issues down the road.  This was not a novel solution.  In Feld XVIII ([...]), Judge [...] (at plaintiff’s urging) availed himself of this solution.  Judge Gardner kicked a repetitive issue of public importance down the road.  Bankruptcy Judge [...] used to warn all counsel:  Pigs who become hogs get slaughtered.  Also Essex County Civil Presiding Judge [...] repeatedly admonished defendants to mediate and not to litigate statutory interpretation disputes.  It was in the best interests of all parties and the trial court to revisit both Judges Moore’s admonishments and to reconsider whether dismissals of certain claims and causes of action based upon mootness was in the best interests of all parties and the judicial system.  VI.
[brief] Dal, ¶ 9.  A Preliminary Investigation Report adopted December 27, 1993 noted that “[a] substantial number of buildings located within the investigation area are characterized by unsafe, unsanitary, dilapidated, obsolete conditions that exist to varying degrees throughout the area.  Pa1.  In addition, many buildings within the investigation area are so lacking in sufficient light and space as to be conducive to unwholesome living or working conditions…[such as:] - Commercial establishments and apartment complexes that provide inadequate traffic circulation on-site cause awkward vehicular movements that impact traffic safety on the busy county road network that serves the central business district - Land uses that attract loiterers, drug dealers, and vagrants threaten the safety of residents and shoppers who visit the area -  Litter, debris, and poor trash containment facilities create an eyesore in the district and contribute to unsanitary conditions at some locations •  Old buildings in the district display dilapidated conditions that include soffits falling away from walkway overhangs, missing sections of roof, boarded up windows, siding falling away from walls •  Some buildings were built to the lot line with windowless walls, and security concerns among property owners have caused window openings to be closed in with siding, thereby restricting the amount of natural light allowed in to commercial and residential buildings.
[directive] Spontaneous Arrest, in distinction to a planned arrest, shall mean an arrest or taking into custody based upon probable cause to believe that an offense is being committed in the arresting officer's presence under circumstances where the officer could not have foreseen with certainty that the specific offense would occur and thus where the arresting officer had no reasonable opportunity to apply for an arrest warrant.  The term shall also include any arrest or taking into custody in response to a request by a school official pursuant to subsection G(l) of this Part.  Operating School Hours shall include the time in which a school is in session or when students are engaged in school-related activities under the supervision of professional school staff.  B.
[brief] The public should know what an applicant for a variance is asking the Zoning Board to do so that the affected individuals and all members of the general public can make an intelligent decision whether or not to participate in the hearing.  *Perlmart*, supra, at 237-38.  The requirement of clear and commonsense notice applies to educate the general public as well as Plaintiff in this matter.  "[T]he purpose for notifying the public of the "nature of the matter to be considered” is to ensure that members of the general public who may be affected by the nature and character of the proposed development are fairly apprised thereof so that they may make an informed determination as to whether they should participate in the hearing or, at the least, look more closely at the plans and other documents on file.  Perlmart, supra, at 237-38.  The notice given must be “clear and unambiguous” so that the notice can be “readily intelligible to the average person. ”  Rockaway, supra, at 347 (quoting 101A C.J.S. Zoning & Land Planning 6 (1979)).  The Notices provided in this case as delivered to the persons on the 200-foot list and by publication in the [...] were vague and obscure at best and misleading at worst.
[brief] For a Rule 4:6-2 (e) analysis plaintiff was entitled to every reasonable inference of fact.  Id. (citing Independent Dairy Workers Union v. Milk Drivers Local 680, 23 N.J. 85, 89 (1956).  The Judge’s statement clearly shows that a cause of action could be gleaned from the facts as presented as presented.  See Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 751 (1989); Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957).  Moreover, pursuant to Printing Mart, “at this preliminary stage of the litigation the Court is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint. ”  Id. (citing Somers Constr. Co. v. Board of Educ., 198 F. Supp. 732, 734 (D.N.J. 1961).  Additionally, since the defendants in this case did not pose any dispute against plaintiff’s contentions that she was barred from making her Court appearances, but the Judge believed that the defendants could pose a dispute, this clearly shows that the Judge was considering factors outside of the pleadings which required: (1) that the matter proceed to Summary Judgment and the parties gather more proofs to resolve the dispute or (2) since the judge believed that there could be a dispute, the matter should have been allowed to proceed to trial to be dealt with by the triers of facts in accordance with *Brill v. Guardian Life Insurance Co. of America*, 142 N.J. 520 (1995); See also *Lederman v. Prudential Life, Ins.*, 385 NJ 324, 337 (App. Div), certif. den. 188 NJ 353 (2006).
[brief] *Boyertown*, 897 F.3d at 523; see also *Grimm*, 972 F.3d at 597.  Researchers have found that gender-nonconforming children who have not socially transitioned experience higher rates of anxiety and depression, and lower self-worth, when compared to children who have socially transitioned.  [...] et al., *Mental Health and Self Worth in Socially Transitioned Transgender Youth*, 56 J. Am. Acad. Child  These risks are amplified with increased reports of parental rejection.  Klein, *supra*, at 194 (Da98).  This is because “familial rejection in itself is a stressor” that impacts mental health, economic security, and resulting health behavior, as well as depriving transgender individuals “of the protective buffering effects that are usually derived from social support from close others. ”
[brief] (2T21-11 to 18).  In the summer of 2013, OBPD Det. [...] (“Gougeon”) received information from a confidential informant (“CI”) and concerned citizens regarding the sale of narcotics in Old Bridge.  (1T13-16 to 14-16).  This lead to an investigation into a [...].  (1T16-14 to 16).  That investigation discovered that Zaffarese was purchasing his product for distribution from a supplier known as “[...]. ” (1T16-10 to 15).  Gougeon reviewed the investigation with [...], who informed Gougeon that “[...]” was, in fact, defendant.  (1T18-10 to 16).  At this point, Gougeon recognized that defendant’s involvement meant that the operation was “larger scale. ” (1T20-22 to 21-3).  In September of 2013, OBPD conducted a controlled buy of narcotics from Zaffarese.  (1T40-9 to 14).  The product retrieved from the buy possessed a stamp identifying that brand of heroin as “dog food. ” (1T40-14).  A CI advised that “dog food” was the brand of heroin distributed by defendant.  (1T40-15 to 19).  Contemporaneously, a Communications Data Warrant (“CDW”) was obtained for Zaffarese’s phone.  (1T41-24 to 25).  The CDW revealed that Zaffarese was often in contact with [...] (“Mundy”).  (1T42-3 to 4).  After checking this name with a previously reliable CI, Gougeon was advised that Mundy was distributing heroin.  (1T46-13 to 17).  Additional information from a CI indicated that Mundy was purchasing heroin from defendant in Red Bank for resale.  (1T51-11 to 15).  Gougeon added that the location of the transaction in Red Bank matched the data that a GPS transmitter installed to track Zaffarese’s location produced.  (1T51-20 to 24).  Between December 2013, and March 2014, OBPD observed at least four hand-to-hand drug transactions involving [...]; following at least one of these, the purchasers confirmed that they had, in fact, purchased heroin from [...], while the remaining involved controlled buys with informants.  (1T52-16 to 17, 56-23 to 24; 57-4 to 8; 1T60-13 to 24; 61-20 to 23).  As a result, OBPD applied for a search warrant for the person of [...]. (1T68-9 to 11).  This warrant was approved by Hon. [...], J.S.C. (1T70-20 to 25).  On March 19, 2014, OBPD attempted to execute the warrant on Mundy.
[brief] N.J.S.A. 2A:53A-27, the Affidavit of Merit Statute, provides that:  In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices.  The court may grant no more than one additional period, not to exceed 60 days, to file the affidavit pursuant to this section, upon a finding of good cause.  Accordingly, when a claim is asserted against a licensed professional for negligence in his or her profession, “an appropriate licensed person must submit an affidavit attesting to the suit’s merit. ”  Borough of Berlin v. Remington & Vernick Engineers, 337 N.J. Super. 590, 595 (App. Div.), certif. denied, 168 N.J. 294 (2001).  The purpose of this requirement is “to flush out insubstantial and meritless claims that have created a burden on innocent litigants and detracted from the many legitimate claims that require the resources of our civil justice system. ”  Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144, 154 (2003).  Significantly, where a plaintiff fails to timely serve an Affidavit of Merit, “it shall be deemed a failure to state a cause of action. ”  N.J.S.A. 2A:53A-29.  “Neglecting to provide an affidavit of merit after the expiration of 120 days . . . requires dismissal with prejudice because the absence of an affidavit of merit strikes at the heart of the cause of action. ”  Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 422 (2010) (citing Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 247 (1998)); see also Levinson v. D’Alfonso & Stein, 320 N.J. Super. 312, 315 (App. Div. 1999) (holding that the negligence-professional malpractice aspects of plaintiff’s claim should be dismissed due to plaintiff's failure to serve a timely affidavit of merit).  Courts will only excuse plaintiffs for their failure to serve a timely Affidavit of Merit in rare cases involving instances of “substantial compliance [with the statute or] extraordinary circumstances.
[brief] *Anspach* held that a public clinic was not required to notify parents that their 16-year old daughter exercised her privacy right to reproductive care by obtaining emergency contraception from the clinic -- “a facility that, unlike a public school, does not require attendance or exercise authority over its visitors. ”  *Id.* at 269, 271.  In contrast, no reproductive care rights are at issue in this matter and the relevant setting herein is not a public clinic but rather a public school which “require[s] attendance or exercise[s] authority over its visitors.
[brief] Defendant argues that Plaintiff cites to “no legal authority” which required the trial court to provide a more detailed analysis as to why it ordered Plaintiff to pay Defendant’s counsel fees (Def.’s Opp. 33), but Plaintiff did (Pl.’s Brief 16-17) (citing R. 5:3-5(c) and its seven factors).  Respectfully, the lower court abused its discretion when it awarded counsel fees without considering all relevant factors.  See Saffos v. Avaya, Inc., 419 N.J. Super. 244, 271 (App. Div. 2011); Loro v. Colliano, 354 N.J. Super. 212, 228 (App. Div. 2002) (“Simple omnibus references to the rules without sufficient findings to justify a counsel fee award makes meaningful review of such an award impossible . . .”).  The lower court only referenced factors one (financial circumstance of the parties), three (the reasonableness and good faith of the positions of the parties at trial), and seven (results obtained).  See R. 5:3-5(c).  The lower court failed to explain its conclusions with respect to factors one, three, or seven – for example, why Plaintiff’s arguments lacked reasonableness or good faith.  See Gotlib, 399 N.J. Super. at 315.  The Plaintiff prevailed on her medical reimbursement claims after 2014, and the lower court found that Plaintiff did not waive her right to seek reimbursement of medical expenses.  The lower court failed to explain why Defendant’s arguments were reasonable or in good faith when Defendant fraudulently hid his interests in his father’s home from his CIS and accepted the benefits of being responsible for [...]’s tuition by requesting and filing the 1098-T forms.  The lower court also failed to make any finding that Defendant did not have sufficient ability to pay his legal fees – factor two, or any of the other factors.  As such, the lower court failed make the requisite detailed findings under Rules 5:3-5(c), 4:42-9, and RPC 1.5(a), and therefore, remand is appropriate.  See Fiore v. Fiore, No. A-2539-21, at *26-27 (App. Div. Apr. 16, 2024) (remanding award of counsel fees when lower court only stated that some of the factors were reviewed and failed to make detailed findings) (P-846); Giarusso v. Giarusso, 455 N.J. Super. 42, 54 (App. Div. 2018) (citing Loro, 354 N.J. Super. at 227-28).  Therefore, we respectfully request that this Court should reverse the lower court’s order of counsel fees and remand for the lower court to consider the requisite factors and conduct the appropriate analysis.
[brief] Hard to read though.  Q  Well, let's give it a try.  It says right here confidential resident sample list, right?  A Yes.  Q  All right.  And then there's one, two, three, four columns below.  A  Yes.  Q  And one of the columns is not blacked out.  It says number 3, [...], right?  A  Right.  Q  And the other three are redacted, and those would represent other patients other than [...] that they looked at.  A  That's true.  Q  And even though they looked at four different patients, their conclusion was, if you don't mind turning to the last page -- last page, please.  I'll help you out.  There we go.  A  Thank you.  Q  Was that the facility is in compliance with requirements of 42 CFR Part 483(b).  Is that correct?  A  That's what it says.
[brief] See Pa344 at 501:5-19.  --- ²  The arbitration panel in the [...] awarded [...] the net total $435,087.70 on September 15, 2023 under the [...]-Owner prime contract at the Hackensack Project.  But this separate arbitration between [...] and the Owner is wholly irrelevant to the dispute between [...] and [...] at the Hackensack Project, as [...] has never had any payment rights under the [...]-Owner contract, but rather [...]’s payment rights at the Hackensack Project flow only [...], instead, not getting paid under the Hackensack Project Completion Subcontract by [...] (due to the Owner’s nonpayment to [...], which was due to [...]’s poor performance), opted not to sue [...] but rather strategically elected to not pay [...] any of the additional $899,051.20 in contractually-mandated EGP payments remaining to [...] with respect to the Hackensack Project (arguing that, instead, [...] was owed $2.1 million at the Hackensack Project).
[brief] 8  [...] should not be permitted to resurrect arguments regarding the Long Branch rule applicability for the first time in court in its reply brief.  Bacon v. N.J. State Dep’t of Educ., 443 N.J. Super. 24, 38 (App. Div. 2015) (“By failing to raise their original jurisdiction argument in their initial brief, plaintiffs have waived this contention. ”). governing waivers, and . . . no justifying litigation risk. ” (Ab19).  But this case differs from Dragon as only one rule was at issue there.  Here [...] explained the Long Branch Redevelopment Zone rules rendered the Scenic Resources and Design Rule inapplicable.  This is not a waiver, but rather, a logical application of the CZM rules in the narrow set of circumstances where the Long Branch rules apply.  Said differently, [...] could have not waived a regulatory requirement that never applied to begin with, therefore, Dragon does not apply.  The court should thus affirm [...]’s issuance of the CAFRA permit.  POINT II BLACKRIDGE ABANDONED ITS ADJUDICATORY HEARING REQUEST DENIAL APPEAL, BUT TO THE EXTENT IT DID NOT, [...] CORRECTLY DENIED THE REQUEST BECAUSE BLACKRIDGE DOES NOT HAVE A STATUTORY OR CONSTITUTIONAL INTEREST IN THE PERMIT.
[brief] [18T:71-7 to 73-4].  As the record and the trial court’s reasoned decisioned reflects, there was sufficient evidence presented for the jury to convict defendant of conspiracy to commit murder.  Likewise, the defense presented a case that the jury believed in part and rejected in part.  More specifically, defendant was acquitted of accomplice liability for the attempted murder, as well as both of the weapons offenses.  Thus, it is not plausible to believe that the jury did not weigh all the evidence in this case and render a just verdict.  The record does not support defendant’s assertion of a miscarriage of justice and as such, the trial court did not abuse its discretion in denying defendant’s motion for a new trial.
[brief] About thirty percent of the land was in [...] where it was zoned for residential use only.  The seventy percent of the property lying in [...] was part of a business highway zone where the use was permitted.  The New Jersey Supreme Court’s decision in *Ferraro* was principally about the issue raised on appeal of whether [...] had ceded its zoning authority over the subject property to [...] under a 1962 agreement that allocated tax assessments between the municipalities.
[brief] Hackensack Riverkeeper, Inc. v. New Jersey Department of Environmental Protection, 443 N.J. Super. 293 (App. Div. 2015)......7, 18 Gonzalez v. N.J. Prop. Liab. Ins. Guar. Ass’n, 412 N.J. Super 406 (App. Div. 2010)........................................................................................................6, 7 E.S. v. Div. of Med. Assistance & Health Servs., 412 N.J. Super. 340 (App. Div. 2010)..................................................................................................32, 33
[brief] For a claim to “arise out of” a contract, “there need be shown only a substantial nexus between the property damage or injury alleged in the claim and the activities encompassed in the . . . contract. ”  Vitty v. D.C.P. Corp., 268 N.J. Super. 447, 453 (App. Div. 1993); Leitao, 301 N.J. Super. at 193 (“In similar contexts, we have construed the words ‘arising out of’ in accordance with their common and ordinary meaning as referring to a claim ‘growing out of’ or having its ‘origin in’ the subject matter of the [party to the contract’s] work duties”).  Obviously, a dispute as to the parties’ rights and duties under the PSA “arises out of” the PSA.  The injury that [...] alleges – its perceived loss of its rights under the PSA – are necessarily within the subject matter of same.  Fourth, Section 17.1(b) of the PSA carves out an exception to the indemnification clause – that [...] should not be indemnified in the event that a claim is brought “arising out of the bad faith, gross negligence or willful misconduct of [[...]].” (Pa118-119).
[brief] --- ³  Note that 15 U.S.C. § 1692(a), the first paragraph in § 1692, is different from 15 U.S.C. § 1692a.  The first purpose is “to eliminate abusive debt collection practices by debt collectors. ”  15 U.S.C. § 1692(e).  The second purpose is “to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged. ”  15 U.S.C. § 1692(e).  Thus, Congress believed that enforcing the FDCPA would prevent law-abiding collectors from being compelled to engage in prohibited practices to remain competitive.  The third purpose, which is not involved here, is “to promote consistent State action to protect consumers against debt collection abuses.
[brief] Discovery Checklist (billing date 7/7/2020) (Attached at Pa028)  Consent to Search Vehicle 2/20/20-00:47 (Attached at Pa0029) Use of Force Report by [...] (Attached at Pa0030) Use of Force Report by [...] (Attached at Pa0031) Evidence Form (Marijuana) (Attached at Pa0032)  Evidence Form (Orange Pill) (Attached at Pa0033)  Evidence Form (Money) (Attached at Pa0034)  Evidence Form (1 Key and other items) (Attached at Pa0035)  Evidence Receipt from Lab (Tab/Marijuana) (Attached at Pa0036)  CJIS Transmittal Form 2/20/20 (Attached at Pa038)  Wanted Person Picture of Plaintiff (Attached at Pa039)  HIT Confirmation Wanted Person 02/20/2020 (Attached at Pa040)