ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] project: **The Hackensack Project**.  Pa76 ¶ 11.  [Pa123.]  Section 1.5(a) of the PTA governs the “Transfer of Backlog Projects,” wherein:  [...] and [...] acknowledge and agree that each Backlog Project is a Project in which **[...] shall serve as a subcontractor of [...]** with respect to such Project and perform all of the obligations (and, subject to the terms of this Agreement, receive all of the benefits) of [...] under the construction contract with the Owner for such Project (each, a “Completion Contractor Backlog Project” and collectively, the “Completion Contractor Backlog Projects”).  [Pa90 (emphasis added). ]  Section 1.5(b) of the PTA governs the Completion Contractor Backlog Projects and adds:  With respect to each Completion Contractor Backlog Project, **[...] and [...] shall enter into a subcontract agreement** as it relates to the construction agreement for such Completion Contractor Backlog Project, utilizing AIA Document A401 *(Standard Form of Agreement between Contractor and Subcontractor)* or such other subcontractor agreement as may be required by a lender or third party owner…(each, a “Completion Contractor Backlog Project Construction Agreement”).  [Pa90 (emphasis added). ]  The parties executed the PTA on May 31, 2019.  The next day, on June 1, 2019, [...] and [...], pursuant to Section 1.5 of the PTA, entered into an AIA Document A401-2017 Standard Form of Agreement Between Contractor and Subcontractor, which designated [...] as the “Contractor” and [...] as [...]’s “Subcontractor” for the Hackensack Project.  Pa595.  [...] thus had no privity with the owner of the Hackensack Project (“Owner”), and the Hackensack Project “Completion Subcontract” required that “the Contractor [[...]] shall make progress payments on account of the Subcontract Sum to the Subcontractor [[...]].”  Pa607 § 11.1 (Progress Payments).  Meanwhile, Schedule 1.7(a) of the PTA provided the agreed-upon EGP for the Hackensack Project: $1,677,588.00.  [Pa125.]  Thus, [...]’s 65% EGP share on the Hackensack Project (65% of $1,677,588.00) was $1,090,432.20.  Pa76 ¶ 15.  [...] performed poorly at Hackensack, including delays, cost overruns, and mismanagement.  Pa176 ¶ 18.  [...] only paid [...] $191,381.00 in EGP payments on the Hackensack Project and refused to pay the remaining $899,051.20.  Pa77 ¶ 16.  [...]’s poor performance caused the Owner of the Hackensack Project to stop paying [...] under the construction contract between [...] and the Owner.  See Pa176 ¶ 19.  [...] accordingly commenced a separate arbitration against the Owner under the [...]-Owner contract (the “[...]”).  See Pa907.  [...] invited [...] to join that arbitration (because it was [...]’s subcontracted work with which the Owner was dissatisfied), but [...] declined because it had no contractual privity with the Owner—in other words, [...] knew that its right to payment at Hackensack came exclusively from the Hackensack Project Completion Subcontract, and not the [...]-Owner contract, under which [...] stopped paying [...] in December 2020.²
[brief] “[E]ven if the jury believed [[...]’s] version of the events, and even if they believed that [...] was acting within the scope of his employment at the time, they could not have ruled in Plaintiff’s favor on respondeat superior with these instructions .  . . .”  [Pb33-34].  But Plaintiffs do not dispute that [...] cannot be vicariously liable for [...]’s conduct that was outside the scope of his employment.
[brief] “Supervisory acts performed by the employer will not give rise to vicarious liability where the supervisory interest relates only to the result to be accomplished, not to the means of accomplishing it. ”  *Mavrikidis v. Petullo*, 153 N.J. 117, 135 (1998).  Other than providing [...] with a list of products, [...] retains no control over the details of Miguel [...]’ activities.
[brief] ”  O’Malley v. Dep’t of Energy, 109 N.J. 309, 317 (1987).  And while “[e]quitable estoppel is rarely invoked against a governmental entity,” “particularly when estoppel would ‘interfere with essential governmental functions[,]’ . . . equitable considerations are relevant to assessing governmental conduct, and may be invoked to prevent manifest injustice. ”  Id. at 316 (first citing Cipriano v. Dep’t of Civil Serv., 151 N.J. Super. 86, 91 (App. Div. 1977); then quoting Vogt v. Borough of Belmar, 14 N.J. 195, 205 (1954); then citing Skulski v. Nolan, 68 N.J. 179, 198 (1975)).  In this matter, the Board found that, unlike those cited cases by [...], equitable principles are not applicable in [...]’s favor because she could not have detrimentally relied upon the December 28, 2021 quotation letter, which was issued based on the incorrect information provided by her former employer.  (Pa94).  First, the quotation letter specifically advised [...] that it “was prepared based on current information available in our system and projected information reported by your employer” and that “[y]our benefit may be recalculated in the future due to an audit based on new information received from your employer or for a discrepancy in your account. ” (Pa16).  As such, it was known to [...] that the projected retirement benefits were subject to revision and recalculation if the information provided by her former employer was inaccurate.  More importantly, the Board found that the two estimates dated May 25, 2021, provided clear notification to [...] that she would not have ten years of service credit and would therefore not be entitled to group life insurance benefits if she stopped working in September 2021.  (Pa94; Pa1; Ra1).  Notably, [...] herself acknowledged in her appeal letter that she knew if she had stopped working in September or October, 2021, she would lack the required ten years of service credit to receive group life insurance benefits.
[brief] [...] then pointed out:  the Board attorney can probably instruct you that on an applicant that's coming in with a permitted use, offsite traffic is not something that gets reviewed.  It gets reviewed to the extent of safety, but as far as are nine houses going to disrupt the pattern here, the governing body by zoning this as R12 has determined that residential development is in accordance with the R12 and we are compliant with the R12.  It is, it's suitable for the area.
[brief] (8T222-16 to 223-4; 8T224-21 to 225-1; 8T225-23 to 24).  He saw two men in hoodies walk down the block past his trailer and meet up with a third person.  (8T226-4 to 7).  All three headed toward the [...]’ trailer when something startled them and they started to run.  (8T226-17 to 19).  But one of them said “F that, I’m not running,” stepped into the street, pulled a gun out of his pants, and fired one shot towards the [...]’ house.  (8T226-21 to 227-2).  All three men then ran and jumped into a van that fled the trailer park, followed by a small, black car.
[brief] Under Rule 4:46-2, a motion for summary judgment requires a 28 day advance notice, not 16 day regular motion notice and: shall be served with briefs, a statement of material facts and with or without supporting affidavits.  The statement of material facts shall set forth in separately numbered paragraphs a concise statement of each material fact as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted.  *R. 4:46-2(a)*.  Furthermore, a motion for summary judgment, “may be denied without prejudice for failure to file the required statement of material facts. ”  *Id.*  Under New Jersey law, the standard applicable to summary judgment motions is whether there are any “genuine issue as to any material fact” in a case.  R.4:46-2.  The New Jersey state-court standard of summary judgments is “in line” with the federal standard under Rule 56 of the Federal Rules of Civil Procedure.  *Brill v. Guardian Life Insurance Co. of America*, 142 N.J. 520 (1995).  Summary judgment is only proper if, viewing all facts of record in a light most favorable to the non-moving party, no genuine issue of material fact remains for adjudication.  *Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 247-50 (1986); *Nebraska v. Wyoming*, 507 U.S. 584, 591 (1993).  Finally, the moving party bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial.  See *Celotex Corp. v. Catrett*, 477 U.S. 317, 323 (1986).  The original complaint was filed March 18, 2019; and issue was joined in April 2019 when three separate answers were filed on behalf of defendants a few days apart.  A first amended complaint was filed on July 19, 2021.
[brief] Sadly, [...] adopted Respondents’ distortions as his sole stated justification for his finding in his Order of Summary Judgement of December 7, 2022 that Appellants required expert testimony to support all elements of their damage claims. \(^2\) (See, first paragraph of Page 8 of [...]’ Statement of Reasons, at Pa12).  Now once more, in their brief in opposition to the instant appeal, Respondents repeat their same distortions of [...]’s remarks made during oral argument in 2020.  In the Transcript (1T59-10 to 60-8), [...] first discusses the need for expert testimony to prove one single element of damages, i.e. the loss of opportunity to rent to multiple tenants, rather than just one tenant, in the [...]. \(^3\)  On this one element of damages, [...] explains that too many variables and too many complexities exist to allow a jury to decide without expert testimony whether the alleged grading error proximately foreclosed plaintiff’s ability to rent to multiple tenants for the [...] by applying for a variance.  (1T59-10 to 60-8).  ---
[brief] Plaintiff Is Not Subject to the Protections of the Executive Order Because He Was Not Certified as a Candidate Prior to Being Terminated  An executive order is essentially a piece of legislation governing the relationships of the parties to whom it applies.  Talmadge Vill. LLC v. Wilson, 468 N.J. Super. 514, 517 (App. Div. 2021).  All legislative enactments in New Jersey are first read to mean what they say; that is, when interpreting a piece of legislation, the Court’s “first obligation” is to consider the enactment’s “plain meaning. ”  State v. Marchiani, 336 N.J. Super. 541, 546 (App. Div. 2001).  Here, the Executive Order plainly states that to be protected from termination the employee running for office must be “certified” as a candidate for municipal elective office in the City of Newark.  (Pa76.)  To become certified as a candidate to run for council member for the West Ward of Newark, a candidate must submit 307 qualified signatures, and only after the signatures are checked to confirm that the signees are voters in the West Ward of Newark, does the clerk certify the individual as running for office.  (Pa72, Pa55.)  Prior to that, the individual is solely a person interested in running for office and nothing more.  As the trial court correctly found, “Plaintiff is not part of the class of citizens that the executive order intended to protect, as it plainly states that the employee running for office must be certified as a candidate for municipal office in the City of Newark. ”  (T62:22-63:1.)  Plaintiff was terminated on January 12, 2018, and was not certified as a candidate until February 22, 2018, almost a month-and-a-half later.  (Pa47, Pa70, Pa74.)  Therefore, the trial court properly ruled that because “Plaintiff admit[ted] he was not yet certified as a candidate prior to being fired [, he] is not subject to the protections of the executive order. ”  (T62:19-21.)  Plaintiff’s baseless arguments, including that the Executive Order was implemented to ensure that “all employees terminated due to their running for elective office shall receive their jobs back,” (Pb28), regardless of when they were certified, creates an obviously untenable and absurd situation.  Such a warped interpretation of the Executive Order would allow for the restoration of a former employee’s job months, or even years, following their termination, if they eventually become certified as a candidate for municipal elective office in the City of Newark.  Respectfully, this Court must, therefore, reject Plaintiff’s arguments and affirm the trial court’s ruling in this regard.  C.
[brief] Here again, the trial court was under strictures regarding its consideration of evidence.  Estate of Roach v. Trw, Inc., 164 N.J. 598, 612 (2000) required that the trial court accept as true all testimony and documents and evidence presented by [...]; and required that she receive all legitimate inferences from that evidence.  In denying the R. 4:40-1 motion to dismiss, the trial court made very clear that the denial was entered after hearing only one side of the case and made within the dictates of case law.  The Plenary Hearing & The Trial Court’s Decision
[brief] 2.  [...] waived argument on “imposition” or a lack of “good faith. ”  In any event, neither argument is supported by the evidence.  [...] argues that placing him in a position to ask what he was signing or for copies of the governing terms was an “imposition” that allows [...] to disregard his agreement to arbitrate.  (See Appellant Br., 22-24.)  However, [...] failed to raise this argument to the trial court.  (See SA001-032.)  Thus, [...] waived his argument on imposition, and this Court should not consider it.
[brief] The court's instruction on own-conduct robbery correctly charged the jury that defendant could not be found guilty of robbery if it found that he had formed the intent to commit a theft after the use of force (26T135-9 to 13).  But the jury was never provided with a Whitaker instruction as part of the accomplice liability instructions on robbery (26T140-15 to 26T141-2).  It was never told that, as with own-conduct robbery, it could not find defendant guilty as an accomplice to robbery if it determined that defendant's involvement began only after [...] had already obtained the victim's debit card through the use of force.  "[A]ll robberies are thefts, but not all thefts are robberies."  State v. Mejia, 141 N.J. 475, 495 (1995).
[brief] ”  Wellington v. Est. of Wellington, 359 N.J. Super. 484, 496 (App. Div. 2003) (citing Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 (1988)).  Accordingly, when “‘critical facts are peculiarly within the moving party’s knowledge,’ it is especially inappropriate to grant summary judgment when discovery is incomplete. ”  Velantzas, 109 N.J. at 193 (quoting Martin v. Educ. Testing Serv., Inc., 179 N.J. Super. 317, 326 (Ch. Div. 1981)).  “Where discovery on material issues is not complete the respondent must, therefore, be given the opportunity to take discovery before disposition of the motion. ”  [...] & [...], cmt. 2.3.3 on R. 4:46-2.
[brief] "The more attenuated and the less probative the evidence, the more appropriate it is for a judge to exclude it."  *State v. Medina*, 201 N.J.Super. 565, 580 (A.D.), cert. den., 102 N.J. 298 (1985).  Moreover, no jury instruction would have been sufficient to cure the affect this hearsay testimony had on the jury.  "A curative instruction must be immediate and specific in order to alleviate potential prejudice from inadmissible evidence and its substance must be adequate.  *State v. Vallejo*, 198 N.J. 122, 134-35 (2009).  This jury was given the following instruction six days later at the end of the case:  "During the video testimony of plaintiff's expert [...] [sic], you heard hearsay deposition testimony of the police witnesses.  I hereby instruct you that you're not to consider the hearsay deposition testimony for its truth because you are the judges of the facts here, not the police."  (11T160:23-161:4)  This jury was faced with the task of determining which of these two parties was telling the truth.  The fact that two professional investigators, one of whom ([...]) did not even testify, concluded that the plaintiff threw the bag of grout at [...], would, and it is submitted, did, impact their deliberations and prejudice them against the plaintiff.  Even though the plaintiff testified that he felt that the police were accusing him of assault (7T115:16-19), now the jury would hear that the professional investigators both testified that they not only blamed the plaintiff, but also that there's only one way [...] could have gotten grout on his back, and that's if the plaintiff threw it at him.  First, they heard that [...] stated that "we saw this kid he had it on the back of his head and down his back and there's only one way that could happen is if your back was towards him."  Emphasis added.  (8T103:4-6).  Then they heard that [...] testified that "as far as the grout being on the back of Mr. [...] I said, you would have had to have thrown that at him for it to be on the back of him."  Emphasis added.  (8T104:1-12).  D.
[brief] I certify that the foregoing statements made by me are true.  I am aware that if any of the foregoing made by me are willfully false, I am subject to punishment.  [...]  [...] 2/27/24  [...]  Plaintiff-Respondent. vs. REZA FARZAN; [...], FICTITIOUS SPOUSE OF REZA FARZAN; [...], AS NOMINEE FOR [...]  Defendant-Appellant.  SUPERIOR COURT OF NEW JERSEY APPELLATE  DIVISION  DOCKET NO.: [...]
[brief] The Board’s acknowledged failure to do so was a denial of procedural fairness and subjects the Board’s approval for reversal.  *DeMaria v. JEB Brook, LLC*, 372 N.J. Super. 138, 146 (Law Div. 2003) (citing *Kramer v. Board of Adjustment*, 45 N.J. 268, 280 (1965)).  Moreover, with respect to the environmental impact assessment requirement of § 142-77(B)(26)(f), merely submitting an environmental impact assessment is not sufficient to comply with the Ordinance.  Pursuant to § 142-77(B)(26)(f):  No application for development shall be approved unless it has been affirmatively determined, after an environmental assessment, that the proposed project:  [1]  Will not result in a significant adverse impact on the environment.  [2]  Has been conceived and designed in such a manner that it will not significantly impair natural processes.  [3]  Will not place a disproportionate or excessive demand upon the total resources available to the project site or to the impact area.  [[...] Ordinance § 142-77(B)(26)(f)].  Pursuant to the clear and unambiguous language of the ordinance, it must be “affirmatively determined” by the Board that the proposed development will not have the various negative impacts listed in [...] Ordinance § 142-77(B)(26)(f).  However, absent testimony on any of the environmental criteria explicitly listed in § 142-77(B)(26)(f), the opportunity for Plaintiffs or individual Board members to cross-examine Applicant’s witnesses on said topics, or the opportunity for Plaintiffs to present their own witnesses on these topics, there is no evidence that the Board considered the environmental impact assessment when granting subdivision approval.
[brief] (Pa90; Pa95-96).  During the pendency of the motion [...] filed in January 2023, [...] located $2 million in an account in Slovakia held in [...]’s name, and an additional $1 million held by [...].  (Pa105-106).  When notified of this, [...] proceeded with the motion anyway, claiming that now there was really nothing left being hidden overseas (despite $17 million being unaccounted for).  The motion was denied, and [...] later frivolously sought reconsideration of the decision, which was also denied.  (Pa212-215; 1T38-43).  iv.
[brief] The Trial Court’s conclusion that Defendants are subject to general jurisdiction in New Jersey results from a wholesale disregard for the governing legal standard.  For general jurisdiction to attach, Defendants’ contacts with New Jersey must be “so ‘continuous and systematic’ as to render [each] ____________________ as “[u]nlike the express consent statute at issue in Mallory, New Jersey’s registration statute does not include such an express consent requirement. ” essentially at home in the forum State. ”  FDASmart, Inc. v. Dishman Pharm. & Chems., Ltd., 448 N.J. Super. 195, 202 (App. Div. 2016) (quoting Daimler AG v. Bauman, 571 U.S. 117, 128 (2014)).  This standard is thus “a difficult one to meet, requiring extensive contacts between a defendant and a forum. ”  Id. at 202–03 (citation omitted).  For business entities like [...], typically the “principal place of business and place of incorporation establishes where the [entity] is ‘at home’ and subject to general jurisdiction.
[brief] On October 1, 2014, the [...] also entered into a contract with Defendant [...] for the supervision of construction services related to the contract between the [...] and [...].  (Pa2184).  According to the Contract with the [...], [...]’ “scope of services” included the maintenance and protection of traffic and compliance with the MUTCD.  (Pa2187, Pa2205).  [...] Chief Inspector, [...], testified that part of that responsibility was to identify the type of condition that caused Plaintiff’s accident.
[brief] Pa64; Pa1737.  Plaintiffs contended that the employees of [...], an agent of [...], who were present and responsible for the day-to-day operations at the construction site, were negligent in the performance of their duties.  Pa96-99.  None of those employees were professional engineers.  Specifically, in the Nineteenth Count of Plaintiffs’ Second Amended Complaint, ¶¶147 and 148, Plaintiffs alleged that [...] and [...] “negligently, carelessly and/or recklessly operated, designed, controlled, supervised, maintained, inspected and/or created a system of oversight. ”  Pa96.  In the Twentieth Count of the Complaint, ¶154, Plaintiffs alleged that [...] and [...] “via their agents, servants, and/or employees, negligently, carelessly and/or recklessly supervised and/or monitored the construction site. ”  Pa98.  [...] and [...] were vicariously liable for the negligence of their employees and agents.  Plaintiffs did not allege a claim of professional negligence.  Pa96-99.  This case was assigned, as requested by Plaintiffs in the CIS, to Track II, 605 Personal Injury, with 300 days of discovery.
[brief] See Ibid.; Fusco, 349 N.J. Super at 461 n.1.  Plaintiff’s Notice of Appeal specifically states that Plaintiff is “Appealing Orders dated 8-7-23 and 10-11-23 in favor of [...]. ” (¶ 8).  In *Campagna ex rel. Greco v. Am. Cyanamid Co.*, the Appellate Division found that an order not identified in Plaintiffs’ notice of appeal was not properly before the court for review stating, “The comment to the relevant court rule states that ‘it is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review. ’  *See Sikes v. Township of Rockaway*, 269 N.J. Super. 463, 465-466, 635 A.2d 1004 (App.Div.), aff’d o.b. 138 N.J. 41, 648 A.2d 482 (1994); Pressler, *Current N.J. Court Rules*, comment 6 on R. 2:5-1(f)(3)(i) (2001). ”  *Campagna*, 337 N.J. Super. 530, 550 (App. Div. 2001); see also *30 River Court E. Urban Renewal Co. v. Capogrosso*, 383 N.J. Super. 470, 473-74 (App. Div. 2006) (*citing to R. 2:5-1(f)(3)(i)*), Appellate Division determined that orders not included in appellant’s notice of appeal were not within the scope of her appeal and did not address them.).  Here, like the appellant in *Campagna*, Plaintiff’s Notice of Appeal fails to identify either the August 7, 2023 Order dismissing the Complaint against [...] with prejudice, or the October 11, 2023 Order denying Plaintiff’s motion for reconsideration of the August 7, 2023 Order in favor of [...] such that those Orders are not within the scope of Plaintiff’s appeal and not properly before this court.  *See Campagna*, 337 N.J. Super. at 550.