ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The legislative intent underlying the retaliation conviction, under N.J.S.A. 2C:27-5, “expresses a clear mandate of public policy that serves to protect public officials” in the exercise of official duties.  MacDougall v. Weichert, 144 N.J. 380, 398 (1996).  That aspect of protecting public officials is entirely distinct and absent from the anti-stalking statute, evidencing the legislative intent to punish bad conduct for different reasons.
[brief] [...]’s opinion on this issue does not involve any level of evaluation supplemental to his dangerous condition analysis.  In a nutshell, [...] has provided the circular opinion that the existence of the allegedly dangerous condition proves that plaintiff’s accident was caused by the condition.  Once again, [...]’s opinion is not predicated on any meaningful support or analysis.  This is despite the fact that [...], or any other expert retained by plaintiff, has always had access to all of the information necessary to perform a causation analysis.  More specifically, the following information is known to plaintiff: - The size and weight of plaintiff; - The size and weight of the motorcycle operated by plaintiff on the day of the accident; - The speed of the motorcycle at the time of the accident; - The opportunity to physically inspection the motorcycle post-accident; and - The magnitude of the roadway defect (close-up photo – Pa1861 and Da42).  Plaintiff therefore has always had every piece of information at available to perform a causation analysis and educate the jury as to whether plaintiff was actually caused to lose control of his vehicle upon encountering the subject roadway condition.  [...], however, is clearly not qualified to perform such an analysis as he has conceded that he is not an expert in the field of accident reconstruction.  (Pa0086; Pa0201; and Pa0216 at 60:22; 175:1-4; 175:15-17; and 190:10-20).  Unsurprisingly, [...] also admitted that he did not perform any calculations concerning the physical forces associated with the accident (Pa0064 at 38:22-25) and that he never inspected plaintiff’s motorcycle following the accident.  (Pa0065 and Pa0066 at 39:6-40:22).  In sum, plaintiff has failed to provide the trier of fact with any basis to evaluate the assertion that the subject roadway condition caused plaintiff to lose control of his motorcycle.
[brief] THE TRIAL COURT ORDER [Pa163]  DISMISSING FIRST ZION’S COUNTERCLAIMS MUST BE UPHeld BECAUSE IT IS UNDISPUTED THAT FIRST ZION IS NOT THE RECORD OWNER OF THE PROPERTY AND FIRST ZION CANNOT SATISFY THE STRINGENT REQUIREMENTS FOR ADVERSE POSSESSION...........................................................................................................................................22  A.  [...]’s first three Counterclaims related to its purported record ownership of the Property must be dismissed as a matter of law because [...] is not the record owner of the Property.................................................................22  1.  The trial court Order dismissing [...]’s First Count of its Counterclaim for Trespass must be upheld because [...] is not the record owner of the Property ....................................................................................25  2.  The trial court Order dismissing [...]’s Second Count of its Counterclaim for Conversion must be upheld because [...] is not the record owner of the Property.........................................................................................27  3.  The trial court Order dismissing [...]’s Third Count of its Counterclaim for Quiet Title must be upheld because [...] is not the record owner of the Property.......................................................................................28  B.  The Order dismissing [...]’s claim for adverse possession must be upheld as a matter of law as [...] cannot satisfy the required elements to sustain its claim.  1.
[brief] *Cnty. of Essex v. First Union Nat’l Bank*, 373 N.J. Super. 543, 553 (App. Div. 2004) (citing *SEC v. Wang* 944 F.2d 80, 85 (2d Cir. 1991)).  See id. (citing *Warren v. Century Bankcorporation, Inc.*, 741 P.2d 846, 852 (Okla. 1987)) (“In modern legal usage the term [disgorgement] has frequently been extended to include a dimension of deterrence.  Disgorgement is said to occur when a ‘defendant is made to cough up what he got, neither more nor less. ’  From centuries back equity has compelled a disloyal fiduciary to ‘disgorge’ his profits. ”); *Kaye v. Rosefielde*, 223 N.J. 218, 236 (2015) (quoting *Restatement (Third) of Agency* § 8.01 cmt. d(2) (2005)) (noting in the context of a claim of a breach of the duty of loyalty, that disgorgement “may also have a valuable deterrent effect because its availability signals agents that some adverse consequences will follow a breach of fiduciary duty. ”); *Johnson v. McClellan*, 468 N.J. Super. 562, 577 (App. Div. 2021) (quoting *SEC v. Hughes Cap. Corp.*, 124 F.3d 449, 455 (3d Cir. 1997) and *Cnty. of Essex v. First Union Nat’l Bank*, 186 N.J. 46, 58 (2006) (stating “disgorgement is . . . designed to deprive a wrongdoer of his unjust enrichment and to deter others” from engaging in unlawful activity.).
[brief] New Jersey law further provides that “the determining factors as to the rights of third-party beneficiaries is the intention of the parties who actually made the contract. ”  *Broadway Maint. Corp. v. Rutgers, State Univ.*, 90 N.J. 253 (1982).  The Defendants have failed to produce any facts in this record to support any of their laundry list of arguments to bind [...] and [...] to a Contract, let alone these binding arbitration and waiver provisions.  E.  The Validity and Enforceability of this Contract Should Be Decided Upon This Record
[brief] 9.  At a Minimum, There Was and Still Is a Genuine Dispute of Material Fact as to Whether the Route Through Westfield is Required to Provide Adequate Service  The evidence before the trial court establishes that at least four other routes were available and feasible.  DA-347a.  The same documentary evidence shows that [...] did not select the route through Westfield because it was the only route that would permit the provision of adequate service; rather that route was preferred and selected by [...] because it was the least expensive to [...].  DA at 348a et seq.; DA-353a (preferred and selected route has the lowest cost of all alternative routes).  Just because one alternative is less expensive than other alternatives does render the cheapest one “required. ”  The undisputed fact that other alternative routes for the transmission lines exist which are not subject to Ordinance means that the particular route chosen by [...] is not necessary to provide adequate service; and therefore, the Ordinance is not in conflict with the statute [...] says it conflicts with.
[brief] With respect to appeals to the Commission, *N.J.A.C. 4A:2–1.1(d)* provides that an appeal may be reviewed by the Commission on a written record unless the Commission finds that “a material and controlling dispute of fact exists that can only be resolved by a hearing. ”  See *Fraternal Order of Police Lodge # 1 Camden v. City of Camden Police Dep’t.*, 368 N.J. Super. 56, 62 (Law Div. 2003) (“a hearing on a record consisting only of written documents is appropriate where there is no genuine issue as to any material fact”).  With respect to the *State Policy*, although no “mandatory right” to a hearing exists on the face of the regulations, the reference to *N.J.A.C. 4A:2-1.1(d)* “is recognition that in certain instances a hearing is required. ”  In re [...], [...], 2013 WL 2301090, at *4 (N.J. Super. Ct. App. Div. May 28, 2013).  As a matter of fundamental fairness and administrative due process, “[a]n agency must grant a plenary hearing [ ] if material disputed adjudicative facts exist.
[directive] Thursday [...] 0912 [...] Tuesday, Thursday [...] 1002 [...] 2nd and 4th Tuesday (Shared court) [...] 1018 [...] 2nd and 4th Tuesday (Shared court) [...] 1012 [...] 2nd and 4th Tuesday [...] (shared w/[...] 1004 [...] 2 Thursdays a month County) [...] 1027 [...]
[brief] “During operations and after completion of operations, customer,” being [...], “agrees to indemnify and save harmless the contractor,” that being [...], “and save its employees against any and all claims by the customer,” [...], “its employees and third parties arising on account of death or injuries to persons or damage to property, whether or not such claim, damage, injury or death results from the negligence of the customer,” being [...], “the contractor,” [...], “or others. ”  “Customer,” [...], “shall defend all lawsuits and claims arising from or incidental to the work of the agreement, without expense or annoyance to the contractor,” being [...], “or its employees. ”  Da44-Da45.  “Therefore, the Court notes that paragraph 4 of the snow removal contract applies, which pertains specifically to indemnification.
[brief] Appellate review of a summary judgment order is *de novo*.  Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012).  In deciding a motion for summary judgment, the court must determine whether the competent evidential materials, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party.  *Id.* at 540.  However, if the summary judgment turns on a question of law, or if further factual development is unnecessary in light of the issues presented, then summary judgment need not be delayed.  *United Savings Bank v. State*, 360 N.J. Super. 520, 525 (App. Div. 2002).  (1)
[brief] (Pa24 – Pa36)  After discovery ensued, and after objecting to [...]’s deficient --- \(^1\)  The stenographic transcripts are cited by Volume number, with the June 5, 2023 Summary Judgment Motion Transcript being 1T, the October 7, 2022 Summary Judgment Motion Transcript being 2T, the November 30, 2022 Deposition of [...] being 3T, the November 30, 2022 deposition of [...] being 4T.
[directive] *Ambient light may be  If light dimming goggles are used, handheld lights must be deployed where 9-76  Semi-Annual Firearms Qualification and Requalification Standards  In-Service Requalification  HQC  1 (5 Shot)  Range: 25 yards  Target: FBI “Q” type 50 rounds Rounds  Position  Course of fire Time Range  Shooter will start standing 2 yards behind the barricade.  On command the shooter will move Kneeling strong side 4 forward and fire 4 rds from the strong side of cover 30 sec. of cover kneeling.  Remain behind cover in a ready position with visual focus towards the threat area.  On command fire 1 rd over the top of cover, reload and fire 2 shots over the top of cover.  Remain 25 yds 3  Over the top of cover 30 sec. behind cover in a ready position with visual focus towards the threat area.  On Command fire 3 rds with the strong hand Support side of cover, (supported is recommended) from the support side 3 kneeling or standing of cover kneeling or standing.  30 sec.  (Strong hand)  Reload if necessary and holster.  Replenish loading devices  Standing Draw and fire 3 rds standing, and holster 5 sec.  15 yds  10  Draw and fire 2 rds standing, assume a kneeling 25 sec.  Standing & kneeling position reload and fire 5 rds kneeling  From the ready position fire 2 rds on each of the 3 sec.  10 yds  5  Ready first two commands to fire and 1 rd on the last (3X) command  Draw, fire 3 rds, and holster 4 sec.  7 yds  10  Standing Draw, fire 2 rds, reload, fire 2 rds, and holster 15 sec.  Draw, fire 3 rds, reload and holster 4 sec  Draw fire 2 rds one handed with the strong hand, Standing one hand, 4 sec. and holster on the first two fire commands and 1 rd strong side (3X) on the last fire command  Weapon should be in the support hand at the 5 yds 10 ready.  Fire 2 shots one handed with the support  Standing one hand, 3 sec. hand on each of the first two commands, and 1 rd support hand (3X) on the last fire command.  Return to the ready after each set.  Assume an interview stance position.  Draw and Standing, weapon 2 sec.  1 yd 5 fire 2 rds from the weapon retention position, and retention (3X) holster.  On the last command fire only 1 rd.  End course, score targets (2 points per hit; 40 hits = 80%)
[brief] ‘What is crucial is not the witness' job description but rather his knowledgeability about the basic elements that afford reliability to computer printouts.  . . .  The witness must be a person who is familiar with computerized records not only as a user but also as someone with some working acquaintance with the methods by which such records are made. ’”  In this case, [...] testified that he was familiar with the procedures by which the bank enters data into the computer system, outlined those procedures and stated that he and other bank officers found the procedures reliable.
[brief] THE TRIAL COURT ERRED AS A MATTER OF LAW BY NOT PROVIDING A CLEAR STATEMENT OF REASONS AS TO WHY THE MOTION SHOULD BE GRANTED  (Not Raised Below)  The trial court’s statement of reasons on the record on March 17, 2023 did not address numerous arguments made by [...], as set forth above.  (Supra, §§I.B, IV, V, VI.)  Nor did his statements on the record make it clear which allegations in the Underlying Action were found to fall within which exclusion of the Policy.  (See generally 1T at 22:4 to 23:18.)  The order does not include a separate statement of reasons, but instead states that the reasons were set forth on the record.  The trial court’s reasoning on the record was limited to articulating that it “believe[d] in this particular case the allegations made here do fall within the exclusion,” and with that explanation, it granted [...]’s motion for summary judgment on its declaratory judgment pleading and dismissed [...]’s counterclaims in their entirety.
[brief] Defendant [...] was properly served with the summons and complaint by the clerk of the court and waived any challenge to *in personam* jurisdiction when attorney [...] appeared by Substitution of Attorney to argue subject matter jurisdiction on her own behalf and to request leave to proceed with arbitration.  POINT 5.  THE LOWER COURT’S LETTER FILING IS ACCURATE AND PROPERLY DECIDED  THE ISSUE OF REINSTATEMENT OF THE COMPLAINT AFTER DEFENDANT LASK COMPLETED THE ARBITRATION PROCESS, AS WELL AS ENTRY OF JUDGMENT AGAINST DEFENDANT LASK (Pa8)  [...]’s legal analysis and statement of the facts and procedural context are accurate, well-reasoned, and were based upon His Honor’s feel for the case and consideration of the arguments made.  [...]’s decision is sound and should be affirmed based upon these circumstances.
[brief] The appellants argue that the trial court abused its discretion by discharging the receiver because [...] failed to comply with notice requirements under N.J.S.A. 14A:14-15.  However, the trial court carefully examined the issue, and that is clear from the transcript.  The appellants’ argument that [...] failed to comply with notice requirements under the statute is wrong.  For example:  The court: What notifications did you make in this case?  [...]: I did not make notifications.  I did not – the people who were involved were notified.  The court: Right.  You did not do a publication to the world – [...]: No.  The court: -- but to the extent that you had no creditors that were making applications to you for payment – [...]: Right.  The court: -- Was there anyone that sought payment from you as receiver on behalf of that entity that you were the receiver for, that they said that that entity owed them money?  Anybody who you did not address?  [...]: Not one, no. 1T21-20 – 1T22-11.  As noted above, [...] did not have a notice of any creditors other than the landlord and the bank.  In any event, as noted by [...], not one creditor contacted him with a claim.  As noted by [...], nothing which the receiver did adversely affected [...].  It must be remembered that the landlord/owner received a property that was worth $1.4M more than when the original tenant leased it as [...].  (c).  **N.J.S.A. 14A:14-19 – Discontinuance of receivership**
[brief] First, the Special Master was considering a fee application requiring him to evaluate the reasonableness of [...]’s work and fees.  Second, simultaneously, [...] offered the Special Master a paid opportunity to serve as a mediator, and the Special Master accepted.  Third, the offer and acceptance took place during the pendency of the fee application in this case.  Highly significant, the Special Master failed even to disclose these circumstances to either the Trial Court or the [...].  The Special Master was required to recuse himself, or at least, to disclose [...]’s paid-mediator offer so that the parties and the Trial Court could reevaluate whether he should continue to serve in this case.
[brief] N.J.S.A. 40:55D-2(e).  The preservation of the character of a neighborhood or property values in that neighborhood has also been recognized as legitimate purposes of zoning."  Home Builders League of S. Jersey. Inc. v. Twp. of Berlin, 81 N.J. 127, 145 (1979).  "In addressing the so-called negative criteria, the applicant would need to demonstrate that the increase in density would not have a more detrimental effect on the neighborhood than construction of the project in a manner consistent with the zones"  Price v. Strategic Capital Partners, LLC, supra at 306.  "Our discussion of how an applicant might sufficiently demonstrate the positive and negative criteria in a density variance application is purely illustrative.  We do not mean to imply that in any particular situation, satisfactory proof of such matters should compel the zoning board of adjustments approval of the requested variance."  Id.  In addressing the positive and negative criteria, in our present case, the Appellant must clearly articulate why such a significant departure from the established density does not impair the purposes of the EMF-18 or MF-8 zone.
[brief] As noted in plaintiff’s brief, plaintiff’s complaint and the [...]’s survey were first mentioned during the testimony of plaintiff [...] on March 20, 2023.  Defense counsel and [...] reviewed her complaint to the state in detail.  [...] confirmed that she received a response and indicated that she was unhappy with the response.  The Court sustained plaintiff’s objection and directed the jury to disregard [...]’s testimony regarding the response to her complaint.  (See Pa66-71; 2T86:24-98:24; 2T136:9-160:9; Pb11.)
[brief] Plaintiff dropped the request slip to [...] stating that she had followed the correct procedure to be taken to church as the rest of the female inmates who requested to go to church, but Plaintiff had not been allowed to go and asked to know why.  As of January 13, 2020, Plaintiff still had not received any psych meds that she had been requesting since January 7, 2020.  On January 15, 2020, [...] told Plaintiff that he told [...] that Plaintiff was on the list to go to church, and he did not understand why [...] had told Plaintiff that she wasn’t on said list.
[brief] Nor can Plaintiff offer any cases that support her backwards theory that [...]’s public advocacy for a marginalized community renders her categorically unreliable.  In fact, the Supreme Court’s decision in *St. Amant v. Thompson*, which Plaintiff repeatedly cites, contradicts this theory.  There, the Court found that the Plaintiff had failed to demonstrate that it was “reckless disregard of truth” to “heedless[ly]” rely upon a source who was personally involved in the labor dispute at the heart of the statements merely because he had a personal stake in the issue.  390 U.S. 727, 730-31, 733 (1968).  It explained that “reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.  There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. ”  *Id.* at 731 (emphasis added).  The Court found this standard could not be met in the absence of evidence “indicat[ing] an awareness by [the defendant] of the probable falsity of” the statement at issue, and noted in particular the plaintiff’s failure to demonstrate a “low community assessment of [the source’s] trustworthiness or unsatisfactory experience with him by [the defendant].”
[brief] The Complaint was based almost exclusively on allegations arising out of the alleged “de facto” joint venture/partnership between [...] and [...].  (Pa50a-Pa79a). ¹  Specifically, Plaintiffs alleged various “informal arrangements” beginning in or around 2002, in which [...], the owner of several optical companies, would refer his patients in need of ophthalmologic surgeries to [...] while [...] worked in [...]’ [...] office approximately one day per week rent free.  (Pa51a-Pa52a ¶¶ 9-11).  Plaintiffs further alleged that these arrangements became “more formal” once [...] introduced [...] to two doctors, both of whom practiced adjacent to [...]’s office but no longer intended to perform ophthalmology surgeries.  (Pa52a ¶ 12).  [...] purportedly benefitted from this introduction by performing all surgeries for one of the doctor’s patients.  (Pa53a ¶ 15).  ¹ “Pa” refers to Plaintiffs’ appendix; “Pb” refers to Plaintiffs’ brief; “Da” refers to NJ Retina’s appendix; 1T refers to the August 6, 2021; 2T refers to the November 19, 2021 transcript; and 3T refers to the February 4, 2022 transcript.  In or around 2004, [...] allegedly convinced [...] to move his office from [...] to a building [...] had purchased at [...].  (Pa53a ¶¶ 16-17).  Prior to the relocation, [...] allegedly promised [...] that he would “not abandon [[...]] for any reason once the move was made,” on account of [...]’ alleged receipt of [...]’s customer list.  (Pa53a ¶¶ 20-21).  According to Plaintiffs, [...] and [...] discussed combining their practices within the building in a manner resembling the relationship [...] had had with [...] and [...].  (Pa53a ¶ 18).  Plaintiffs alleged that once [...] moved his office to 900 Stuyvesant Avenue, [...] required [...] to pay rent at “far greater than market [value]” to Defendant [...], a company allegedly owned by [...].  (Pa54a-Pa55a ¶¶ 24, 26).  The practices of [...] and [...] ultimately became “combined for many purposes” as a result of the purported informal arrangement between [...] and [...].  (Pa54a ¶ 22).  In or around 2014, [...] allegedly opened a second practice in [...].  (Pa55a ¶ 27).  Prior to the opening, [...] allegedly promised [...] “that he would be able to run the Springfield store, would be able to hire opticians, would earn the profits at that store, and would pay rent to the landlord .  . . .” (Pa59a ¶ 51).  “After Mr. [...] had taken affirmative steps to [begin] the process of opening such new store[,]” however, [...] allegedly told [...] that “‘they are going in a different direction’ and, thus, cut Mr. [...] out of the very profitable and valuable Springfield optical practice .  . . .” (Pa60a ¶ 52).  Plaintiffs also alleged that [...] falsely held himself out to [...], a large insurer of optometric services in the United States, as owning at least 51% of the [...] business so as to satisfy [...]’s requirements that an ophthalmologist and/or ophthalmology practice own at least 51% of any optical practice which was vending to insureds of [...].  (Pa56a, Pa57a, Pa58a ¶¶ 34, 38, and 42).  II.