ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Under such circumstances the court will interfere.  The *Ellerman* rule, granting wide discretion to corporate directors, is sound, but it is obviously inapplicable to a situation involving fraud, self-dealing, or unconscionable conduct....  Instances of directors' self-dealing are always subject to the closest scrutiny by the court, particularly here where the votes of [...] and [...] were necessary to constitute the majority which authorized the questioned action at the directors' meeting of March 31, 1953.  The propriety of judicial supervision to prevent or redress fraudulent or inequitable conduct on the Part of directors has never been questioned.  *[Id. at 93-94 (emph. added)(citations omitted)].  Thus, If a challenger rebuts the business judgment rule by showing bad faith or another disabling factor [i.e. self-dealing] then, the presumption of good faith is reversed and the burden of proof shifts to the defendant to show that the transaction was, in fact, fair to the corporation.
[brief] This matter arises out of the installation of an Arcadia Louvered Roof System (hereinafter “louvered system” or “louvered roof”) at Plaintiff, [...]’s (hereinafter “[...]”), hotel in Avalon, New Jersey.  The system, which is a louvered pergola that can be opened to let the sun in and closed to provide shade and some rain protection, was manufactured by Defendant, [...] f/k/a [...]  (hereinafter “[...]”), and installed by Defendant, [...] (hereinafter “[...]”).  [...] claims the system was defective and failed to perform as represented by the manufacturer and installer.  As a result, [...] filed a Complaint against both Defendants, alleging violations of the New Jersey Consumer Fraud Act, breach of contract, breach of implied covenant of faith and fair dealing, unjust enrichment, and breach of warranty.  Proof of damages is an element of each of these claims, but there is no evidence that [...] suffered any financial damages in connection with the louvered system.  Therefore, the Trial Court properly granted summary judgment in favor of [...], finding that [...] failed to meet its burden of proof as to damages on all counts of its Complaint.
[brief] To illustrate the independent nature of wrongful death claims, the New Jersey Supreme Court permitted a decedent’s heirs to bring a wrongful death claim even though the survivorship action was barred by the statute of limitations.  Miller v. Estate of Sperling, 166 N.J. 370, 382 (2001) (holding that a different result could extinguish a wrongful death action even before it came into existence); see also, Kibble v. Weeks Dredging & Const. Co., 161 N.J. 178, 189 (1999) (holding that the class of litigants in a wrongful death case often includes minor children, dependent upon the decedent for economic support); see also, Miller, supra, 166 N.J. at 383-84 (holding that as a matter of law, a wrongful death action does not accrue to the decedent).
[brief] (Db, p. 4). 5  [...] also exaggerates in arguing “there are at least 430 billing entries submitted by [...]’s counsel the include the term ‘choice of law. ’  The values of these entries is in the millions of dollars. ”  In support of this statement, [...] cites 234 pages in its appendix, without identifying any single specific page or entry or otherwise providing any basis for its calculation that the billing entries represent “millions of dollars” in fees.  Simply, the suggestion that [...] incurred “millions of dollars” in attorneys’ fees for choice of law briefing is absurd.  Leaving aside [...]’s misrepresentations, the fact that [...] did not succeed on its choice of law position, or any other single issue does not prevent the court from finding that [...] was a successful claimant.
[brief] Pa178 at ¶¶1-2; Pa189 at ¶¶1-2; Pa500; Pa674:7-23; Da33-34, ¶¶1-5, Da39-40, ¶¶6-9.  The entire system -- including the tracks, track bed, signals, warnings, protections, stations, crossings, and traffic control devices where the collision occurred -- was designed and constructed by [...]’s contractors, with [...]’s approval.  Pa479-480; Pa579:20-580:11; Pa626:24-268:11.  Plaintiff did not dispute that [...] owns the physical elements that make up the crossing itself (the signals, the warning signs painted on the surface of the crossing, the track bed, or the materials comprising the surface of the crossing, etc.) in the record below.  Compare Pa153, ¶12 with Pa762¶12; and Pa154, ¶17 with Pa762¶17.  Moreover, in its cross motion for summary judgment  Defendant [...] confirmed that [...] owns and controls the crossing where the incident occurred, and that [...] does not.  Da33-34, ¶¶1-5, Da39-40, ¶¶6-9.  [...]’s Director of Traffic Engineering, Division of Traffic Engineering, Department of Infrastructure for the City of [...] certified that, “[t]he crossing, the tracks, and track beds, within the [...] Light Rail System in the City of [...] are owned maintained and controlled by [...], including the crossing, tracks at the crossing of York Street and Hudson Street as well as the track bed on Hudson Street. ”  Da39-40, ¶¶1 and 9.  Plaintiff did not dispute these facts or oppose [...]’s cross motion, and the court adopted the unopposed factual and legal arguments made by [...] in granting the motion.  T5:9-6:10.
[brief] .................................................................  3 U.S. ex rel. Kuriyan v. HCSC Ins. Servs. Co., No. CV 16-1148 JAP/KK, 2021 WL 5238332 (D.N.M. Jan. 29, 2021) .. 13-14 U.S. ex rel.  Mitchell v. CIT Bank, N.A., No. 4:14-CV-00833, 2022 WL 135438 (E.D. Tex. Jan. 13, 2022)  ...............  12 U.S. ex rel. Rahimi v. Rite Aid Corp., 3 F.4th 813 (6th Cir. 2021)  ...........................................................................  14 U.S. ex rel. Reagan v. E. Tex. Med. Ctr. Reg’l Healthcare Sys., 384 F.3d 168 (5th Cir. 2004)  ......................................................................  13 U.S. ex rel. Reed v. KeyPoint Gov’t Servs., 923 F.3d 729 (10th Cir. 2019)  .....................................................................  13 U.S. ex rel. Springfield Terminal Ry. Co. v. Quinn, 14 F.3d 645 (D.C. Cir. 1994)  .....................................................................  14 U.S. ex rel. Zizic v. Q2Administrators, LLC, 728 F.3d 228 (3d Cir. 2013)  .....................................................................  4 U.S. ex rel. Feingold v. AdminaStar Federal, Inc., 324 F.3d 492 (7th Cir. 2003)  .....................................................................  7  United States v. CSL Behring, LLC, 855 F.3d 935 (8th Cir. 2017)  ....................................................................  12 United States v. Omnicare, Inc., 903 F.3d 78 (3d Cir. 2018)  .....................................................................  12 United States v. Sodexho, Inc., No. CIV.A. 03-6003, 2009 WL 579380 (E.D. Pa. Mar. 6, 2009)  ..................  12
[brief] Defendant was resentenced on September 18, 2019.  DA69.  In April 2020, defendant filed a petition for post-conviction relief, but the trial court dismissed it procedurally without assignment of counsel and without substantive ruling on any claims.  DA32.  In May 2022, defendant re-filed his petition, with counsel, asserting that he received ineffective assistance.  DA1.  The trial court held an evidentiary hearing on two issues: (1) Trial counsel's omission to request that the Court conduct an individual voir dire of the jurors after one juror recognized a named individual during testimony at trial, and (2) Trial counsel's omission to cross-examine the State's ballistics expert at trial.
[brief] [...] cites *McClellan v. Feit*, 376 N.J. Super. 305 (App. Div. 2005), for the proposition that an amended definition of “occurrence” in a renewal policy was ineffective after the insurer failed to provide proper notice.  Relying on *Bauman*, the *McClellan* Court, reached a similar conclusion holding that an insurer which reduces coverage under a homeowner’s policy upon renewal must provide the broader coverage offered in the prior policy where the reduction was not *adequately* called to the homeowner’s attention.  *McClellan*, 376 N.J. Super. at 315.  As a result, the Appellate Division remanded the case for a determination as to whether proper notice of the renewal was in fact provided.  *Id.*, at 316.  The *McClellan* decision called for an insured to be “specifically and clearly informed,” which is exactly what happened here when [...] was notified of its unenrollment, acknowledged that and increased its proposal.  Notably, as [...] concedes, relying on the plain language of N.J.A.C. 11:1-20.2, upon which the homeowners also relied, the McClellan Court held that it was not applicable because, at the time, the regulation only applied to notice of cancellation of a policy and not renewal.
[brief] This point here is a simple one: the judge ran roughshod over the Hampton/Ridout rule when he instructed the jury that the “court has determined that [the photographic reenactment] is properly admissible, and it is admitted into evidence.  It is appropriate for the jury to view the photos. ”  (8T 46-19 to 23)  In doing so, the judge severely impinged upon the jury’s factfinding role in assessing the proper weight to given this evidence, thereby violating defendant’s Sixth Amendment right to an impartial jury, his Fourteenth Amendment right to due process, and his corresponding state-constitutional rights.  Defendant had the right to unfettered jury determination of the appropriate weight -- ranging from a lot to none at all -- to be given the reenactment photos, but no reasonable juror could be expected to make such a determination unaffected by the knowledge that the judge was telling the jury that those photos were “properly” in evidence and “appropriate” for the jury to view.  Yet it is that very unfettered jury deliberation to which defendant is guaranteed.  Ridout, 299 N.J. Super. at 239.  “If the evidence is admitted, the jury must determine its credibility based on essentially the same circumstances that the judge considered, and, of course, without a judicial seal of approval.
[brief] As noted, many of the documents concerned communications by or between [...], [...] and/or [...] that specifically addressed plaintiff.  These documents are directly related to plaintiff's claim that defendants conspired against him because he complained about the alleged *ex parte* communications with [...].  In short, [...] cannot seriously dispute that it produced relevant documents late.  The Court also finds that [...] cannot seriously dispute that plaintiff incurred substantial incremental costs because of its late production.  For example, plaintiff not only participated in numerous in-person and telephone conferences to address [...]'s late production, and he filed numerous related letters and briefs, but he also had to depose or re-depose key witnesses about the new documents.  These depositions include [...], [...] and [...].  Although the Court finds that [...] produced relevant documents late, the Court does not find that [...] acted willfully or in bad faith.  Although the thoroughness and accuracy of [...]'s document production leaves much to be desired, the Court has not seen evidence that [...] purposely neglected to produce relevant documents.  Further, based on the extensive record submitted by [...] and the substantial searches it did after November 19, 2012, the Court finds that [...] has satisfied its duty to produce its relevant requested documents.
[brief] First, unlike the refinance transaction in *Omar*, the short payoff here was made on behalf of a non-borrower, third party purchaser of the Property.  There was no such transfer of ownership of the Property in *Omar*, and therefore no consideration in *Omar* as to the impact of such a transfer on the prepayment clause in Note or the balancing of equities among the parties.  Rather than recognizing that *Omar* did not address this transfer of interest and its impact and rather than consider this impact, the trial court relegated [...]’s decision to return these funds to a “ridiculously silly business decision.
[brief] **Minimum Parking Setback from Structure:**  Pursuant to Ordinance Section 108-9.1(E)(1) a 30 foot setback from structures to parking areas is required.  The Applicant proposes 7 feet.  The Applicant submits that the seven-foot parking setback from the building provides adequate room for sidewalk and some green area.  As noted above, the purpose of this Zone is to create a less intense downtown and this variance does not advance that purpose, nor does the Applicant provide a sufficient reason for this relief.
[brief] ”  15 U.S.C. § 1692d(3); Appx., at 10a.  This provision of the FDCPA, however, is intended to prevent collectors from “publishing shame lists,” similar to the public posting of a dishonored check at a business.  *Brake v. Slochowsky & Slochowsky, LLP*, 504 F. Supp. 3d 103, 112 (E.D.N.Y. 2020).  See also *Quinn v. Ocwen Fed. Bank FSB*, 470 F.3d 1240, 1246 (8th Cir. 2006) (identifying the “publication of shame lists” as the conduct § 1692d(3) seeks to prevent).
[brief] In other words, there is no point in permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted."  Id. at 256-57 (citing Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (Ch. Div. 1995)(emphasis added).  Therefore, [...] was within her authority to refuse Plaintiff leave to amend her complaint as she did.  The denial of such a motion is also sustainable when made on the eve of trial...  "  Pressler, Current NJ Court Rules, comment 2.2.2 on R. 4:9-1 (2019).  See Fisher v. Yates, 270 N.J. Super. 458,467 (App. Div. 1994) (holding no abuse of discretion in denying late motion to add new claims); DuWel Products, Inc. v. United States Fire Ins. Co., 236 N.J Super. 349, 365 (App. Div. 1989) (denial of late motion to permit new claims), certif. denied, 121 NJ. 617 (1990).
[brief] 7T23 – 21 to 25; 24 – 1.  The Court held Ordinance Sec. 413-02B “is a limiting or restricting provision, again to restrict the use of those flared areas in order to preserve their historical uniqueness. ”  7T25 – 1 to 3.  “A reading of the term “walkway” to include the plural “walkways” would be contrary to what this Court finds to be the clear intention of [Ordinance Sec. 413.02B].  Which is to restrict the structures that are installed or built upon the flared area. ”  7T25 – 9 to 12.  The Court concluded “that replacement of those existing walkways with the stone pavers is violative of the principles outlined here and that in fact the replacement and removal of the preexisting concrete slab walkways discontinued the ability of the plaintiff to use those existing nonconforming structures. ”  7T20 – 25; 21 – 1 to 5.  Ordinance Section 413.02B states in pertinent part
[brief] 1T37:11-15.  On cross-examination, [...] confirmed that the police dispatcher who directed him to respond to the scene had received the information about the suspect from a 9-1-1 caller.  1T40:25-41:6.  Defense counsel asked [...] to confirm that the information he received from the dispatcher was that there had been a 9-1-1 call reporting that a black man who was walking with crutches and --- \(^5\)
[brief] ’  The claims ignore [Appellants’] payment default under the Lease and consequent loss of site control over the Property… even if [Appellants] proved a violation of the NDA, it was [Appellants’] Lease default that led inevitably to their loss of the solar rights tied to the Property.  As a result of [Appellants’] own failures, [Appellants] lost the ability to continue with the solar project at the Property.
[brief] As noted above, Defendants’ Underwriter, [...], never contended that the OAE Proceedings constituted an “Investigation” within the meaning of Questions 10 and 11 of the Application.  The trial court’s conclusion that it was an investigation and was required to have been reported completely disregarded, and overlooked, the Policy Terms which either conclusively show otherwise or create a material issue of fact.  We know from the Policy definitions that the term “investigation” is intended to require the provision of Legal Services, same as Disciplinary Proceeding.  The definition of Disciplinary Proceeding includes—and thus subsumes—the term investigation under its scope.  Disciplinary Proceeding is defined to include “any proceeding initiated by a regulatory or disciplinary official or agency to investigate charges….”  [Pa602, § II.F (emphasis added)]  Thus, an investigation is a part of a Disciplinary Proceeding.  To the same degree a Disciplinary Proceeding must be linked to Legal Services, so to must an investigation.  The trial court erred in creating its own definition of “investigation” without any consideration of the fact that the Policy provides a definition that led the insured to reasonably conclude that the OAE Proceeding did not constitute an “investigation” within the meaning of the [...] and Application.
[brief] (1T8-21)  Instead, the court announced that it would be doing a calculation of payments starting with the very first month [...] had come into possession.  (1T9-2, 1T9-8)  Thereafter the court proceeded on a month by month inquiry of [...] demanding from her proof of payments she had made to Plaintiff starting with 2020.  (1T9-8)  Plaintiff interjected that she had never given the Ortiz household rent receipts.  (1T11-23)  "The rent receipts that I give my tenants are here.  I never gave her one because they were paying little-by-little.  They didn’t want a receipt."  (1T11-23)  With the court focused on solely examining the Zelle transfers, Plaintiff addressing the court made it known that Defendant had also paid some months in cash.  (1T12-2).  "...she was sending some by Zelle and she was paying some in cash."  (1T12-4).  The court’s response was “Hang on, I’m just going by the [Zelle] transfers. ”  (1T12-6)  Looking at the receipt produced by [...] showing a Zelle transfer to Plaintiff in December 2020 in the amount of $1,200, the court noted that a double payment to Plaintiff had occurred:
[brief] The foregoing is not meant to suggest that a pro se litigant is not required to know and follow our rules of procedure and our statutory laws.  On the contrary, in his initial submission [...] acknowledged the controlling principles relative to pro se litigants as articulated in cases such as Tuckey v. Harleysville Ins. Co., 236 N.J. Super. 221(App. Div. 1989).  That said, there is no question that in Spaeth this Court clearly considered the fact that the party seeking arbitration was a pro se litigant.  By contrast, in Marmo the party who sought arbitration was represented by counsel and, therefore, was “better equipped to recognize its right to arbitration and act upon it swiftly” --Marmo, 487 N.J. Super. at 611—and [...] contends that the same presumption cannot be made with regard to pro se litigants.
[brief] [...]  DATED: July 11, 2023  CONGREGATION  SONS OF ISRAEL VS. [...]  ZONING BOARD OF ADJUSTMENT, [...] AND CONGREGATION  MEOROSNOSSON, INC.  DOCKET NO. [...]  AMENDED TABLE OF CONTENTS  TABLE OF CONTENTS.........................................................  i TABLE OF AUTHORITIES....................................................  iv TABLE OF TRANSCRIPTS.................................................. vii TABLE OF ORDERS...........................................................  viii  APPENDIX TABLE OF CONTENTS........................................ ix  PREMILINARY STATEMENT...............................................
[brief] (7T 82:23-83:25).  Defendants highlighted to the court that the commercial landowner’s duty to remove snow and ice from its walkways was different than the general duty to maintain premises in a reasonably safe condition for invitees since 5.20B(2)(b) specifically deals with the duty to clear snow and ice within a reasonable period of time after the snow.  (7T 82:23-83:25)(emphasis added).  Defendants maintained that 5.20B(2)(b) would still apply even though there was no active or ongoing snow event at the time of plaintiff’s fall since it specifically addresses the duty to remove snow and ice within a reasonable period of time thereafter.  (7T 84:21-85:3).  Defendants further argued that 5.20B(2)(b) would apply in this situation even though it occurred in a parking lot and not a public sidewalk.  (7T 85:10-86:10).  Plaintiff, however, opposed the use of 5.20B(2)(b) claiming that this jury charge only applied to falls occurring during an active or ongoing snow event and that the charge was not “expanded” to instances when the fall occurred after a storm event, such as the case before the court (7T 87:15-88:18).  In addition, Plaintiff claimed that 5.20B(2)(b) was not applicable because that jury charge only applies to cases involving a public sidewalk and not a fall in a parking lot.  (7T 87:15-88:18).  After considering arguments, the court determined that as to the duty of care, the court would only charge 5.20F (duty to invitees) since it was “right on point” and since 5.20B(2)(b) was limited to active or ongoing storms and was limited to pedestrians on a sidewalk and not extended to invitees in a parking lot such as this case.
[brief] ”  Meanwhile, the motion court overlooked the second of a short two-paragraph description of the Act’s prohibited practices contained in the Senate Report which states:  In addition, this legislation adopts an extremely important protection recommended by the National Commission on Consumer Finance and already the law in 15 States: it prohibits disclosing the consumer’s personal affairs to third persons.  […]  Such contacts are not legitimate collection practices and result in serious invasions of privacy, as well as the loss of jobs.  S. Rep. No. 95-382, at 4, 1977 U.S.C.C.A.N. at 1699.  The Senate Report’s section-by-section summary includes the following with respect to § 1692c(b):  There is a general prohibition on contacting any third parties (other than to obtain location information) except for: the consumer’s attorney; a credit reporting agency; the creditor, the creditor’s or debt collector's attorney; or any other person to the extent necessary to effectuate a postjudgment judicial remedy.  S. Rep. No. 95-382, at 7, 1977 U.S.C.C.A.N. at 1701 (emphasis added).  Nothing in the legislative history states or implies any limit on the meaning of “any person” in § 1692c(b) (other than the inapplicable exceptions).
[brief] Palamar Constr., Inc., 196 N.J. Super. at 241 (holding that bidder’s failure to submit mandatory qualification statement at time of bid opening was a waivable defect); Thassian Mech. Contr., Inc., 2020 N.J. Super. Unpub. LEXIS 27 at *5 (holding that a public agency should have waived a defect even though the defect pertained to a mandatory document in the bid specifications).  This is particularly so where, as here, the omitted information pertained to facts that existed at the time of bid opening and could not be altered, irrespective of whether the omitted document was submitted.  Tec Elec., Inc., 284 N.J. Super. at 486 (holding that bidder’s failure to submit prequalification affidavit was curable after bidding, stating “[t]he truth or falsity of the [omitted document] would have had the same consequences if given concurrently with, or after, the bids were opened, but in no event could the [omitted document] alter the facts that existed on the day the bid was opened”).  If the law was as [...] argues (i.e., that a document deemed non-material and waivable cannot be furnished after bid opening) then the [...] would effectively be meaningless.
[brief] Nothing in N.J.S.A. 40A:12A-5(b) requires a separate finding that an unoccupied building is detrimental to the welfare of the community.  By contrast, a finding of detriment to the welfare of the community is a specific requirement under criterion (d).  When language is used in one part of a statute but is omitted from another part, the omission demonstrates a Legislature intended the provisions to be different.