ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Order and Opinion by Honorable [...], J.S.C., dated September 22, 2023 .................................................................Pa1 [...] Resolution No. 862-22, dated December 19, 2022 .................................................. Pa107 TABLE OF AUTHORITIES Cases: Advance at Branchburg II, LLC v. Branchburg Tp. Bd. of Adj., 433 N.J. Super. 247 (App. Div. 2013) ......................................................... 20 Beirn v. Morris, 14 N.J. 529 (1954) .................................................................................. 32,33 Bern v. Borough of Fair Lawn, 65 N.J. Super. 435 (App. Div. 1961) .......................................................... 32 Bove v. Bd. Of Adj. of Borough of Emerson, 100 N.J. Super. 95, (App. Div. 1968) ......................................................... 39 Burbridge v. Governing Body of the Twp. of Mine Hill, 117 N.J. 376 (1990) .................................................................................. 16 Comm. for a Rickel Alt. v. City of Linden, 111 N.J. 192 (1988) .................................................................................. 19 Commercial Realty v. First Atlantic, 122 N.J. 546, (1991) .................................................................................. 42 Coventry Square v. Westwood Zoning Bd. Of Adj., 138 N.J. 285 (1994) .................................................................................. 43 D. Lobi Enters., Inc. v. Plan./Zoning Bd. of Sea Bright, 408 N.J. Super. 345 (App. Div. 2009) ......................................................... 17 El Shaer v. Planning Bd. of Tp. of Lawrence, 249 N.J. Super. 323 (App. Div. 1991) ......................................................... 24 Elco v. R.C. Maxwell Co., 292 N.J. Super. 118 (App. Div. 1996) ......................................................... 19 Fobe Assoc. v. Mayor and Council of Demarest, 74 N.J. 519 (1977) .................................................................................... 23 Funeral Home Mgmt., Inc. v. Basralian, 319 N.J. Super. 200 (App. Div. 1999) .........................................................
[brief] However, that matter is distinguished by the difference in the analysis at issue: in Bellardini, the court considered expert testimony in the context of a medical malpractice matter, not a condemnation matter.  Further distinguishing Bellardini from the current matter is the method in which the in limine motion was brought before the trial court.  In Bellardini, the Appellate Division took issue with the trial court considering the motion at issue after jury selection for the trial had already begun; was “initially brought without papers or supporting briefs”; and trial judge having already set forth the schedule of opening arguments and witnesses.  See, Bellardini at 461.  The language cited by Respondent does not outright bar in limine motions; the Appellate Division only advises trial courts that such motions may be inappropriately considered outside the context of “facts adduced at trial. ”  Bellardini, supra at 464.  [...]’s current motion does not request any issues of fact to be addressed, but whether Respondent’s appraiser arrived at his opinion in accordance with established New Jersey condemnation law.  Further, the Appellate Division’s remand in Bellardini was based upon its disapproval of the trial judge barring the defendant’s expert from testifying based upon his failure to provide treatise supporting his opinions.
[brief] The only conclusion to be drawn from these not guilty verdicts is that the jury was not convinced beyond a reasonable doubt that [...] was the shooter of the weapon that killed [...].  Indeed, this conclusion was echoed by the Assistant Prosecutor at the time of oral argument on Defendant’s motion for JNOV before the lower court.  T9: 19, 20-25; 20, 1-6.  The trial court in the case before the Court charged the jury on the offenses of aggravated and reckless manslaughter, in addition to offense of murder, over the objection of both counsel (an error more fully addressed in Point II, infra).
[brief] State v. LaBrutto, 114 N.J. 187, 204 (1989).  "The test to be applied . . . is whether the charge as a whole is misleading, or sets forth accurately and fairly the controlling principles of law."  State v. Baum, 224 N.J. 147, 159 (2016) (quoting State v. Jackmon, 305 N.J. Super. 274, 299 (App. Div. 1997).  See State v. Walker, 322 N.J. Super. 535, 546-53 (App. Div. 1999) (reviewing the types of general and special instructions that should be given in a criminal case).  Instructions given in accordance with the model jury charge, or which closely track the model jury charge, are generally not considered erroneous.
[brief] For all the reasons stated above, Respondents respectfully submit that this Court should affirm the judgment of the trial court because there are no genuine issues of the material facts and N.J.S.A. 48:12-152 bars Plaintiff’s claims as a matter of law.  Respectfully submitted, By: /s/ [...]  [...], Esq.  By: /s/ [...]  [...], Esq.  RUPRECHT HART  RICCIARDULLI & SHERMAN, LLP [...]  Telephone: [...]  Fax: [...]  Attorneys for Defendants-Respondents: [...], improperly plead as [...], [...] Rail Operations, and [...]; [...], improperly plead as [...]; [...], improperly plead as [...], [...], and [...] Washington Division; and [...].
[brief] Filed: 10-06-22 ..............................................................................Pa-27 to 50  Answer of [...], Esq. on behalf of Third-Party Defendants [...] and [...]  Filed: 11-02-22..................................................................................  Pa-51-53  [...]' Motion for Summary Judgment.................................Pa-54 to 66  Exhibit A, No Attachments............................................................Pa-67  Exhibit B, No Attachments............................................................Pa-68  Exhibit C, No Attachments............................................................Pa-69  [...]'s Opposition To The [...]' Motion To Dismiss [...]'s Complaint.  Filed: January 19, 2023 .................................................................Pa 70 -111
[brief] [...] correctly found that Appellant was dishonest and made misrepresentations especially in light of the following exchange, where Appellant got caught lying in his OAL Trial testimony:  **[...]:**  Okay.  And by the way, during the clip we just heard [Exhibit R-9C at 12:36:30 through 12:38:06], you said that the only person who act - - actually showed you a license was [MW] and other cases you took their word for it.  Particularly if it was somebody you knew like, [DL].  Do you recall hearing that?  **Appellant:**  If I knew very well, yes.  If a - - I know her very well, I should.  ...  **[...]:**  If you recall that’s from during your direct testimony you said that in each case, you asked them - - everybody to - - for their driver’s licenses and they produced them.  In IA you said something different.  **Appellant:**  Well [MW], I had - - I did ask for her license.  I don’t remember if she produced it or not.  In some occasions, I mean it’s not like you ask somebody for their license every time they drive your car, it would just be kind of silly . . . maybe the first time they - - they drove it I did ask.  But not after that.  **[...]:**  (Out of microphone range)  []  When on direct you testified then that each of the cases that were cited and charges against you, you asked them for their licenses and they produced it, that was not accurate.  **Appellant:**  At one point in time they did produce it.  Maybe it was not the exact time they took the car.  But at one point in time they did.  ...  [...]:  Again, you test - - you told Internal Affairs that in most cases you simply asked and took peoples [sic] word for it, if particularly if you knew them, you heard that test - - that statement that you made (out of microphone range) Internal Affairs?  Appellant: Yes, I did.  [...]:  On direct testimony, when you were asked about the charges pertaining to allowing unlicensed or suspended drivers to use your vehicle, your testimony was that in each of those cases you asked for licenses and they showed them to you?  Appellant: Correct.  ...  [...]: Were you being untruthful to Internal Affairs or were you being untruthful to [...]?  Appellant: Neither, sir.  ...  [...]: All right.  Even though you told them diametrically different things, you were being truthful to both of them?  Appellant: That’s correct.  [6T91:22 – 6T94:19].  Accordingly, [...]’s credibility determination and determination that Appellant gave false and misleading statements was based on record evidence and is therefore should be upheld.
[brief] “Here, trial court's determination that the Appellant lacks standing to challenge the IA or the Fee Application is [NOT] correct as a matter of law”.  Furthermore, it is only [...]’s newly concocted, FALSE claim regarding Fee Applications, since he & trial court NEVER addressed my standing, nor lack of standing, in regards to the Fee Applications.  In his citing Article 10.6 of the Will, which is ONLY one of several instruments, in addition to his Verified Complaint, par. 4, & R.4:87, governing Respondent's accounting actions, he fraudulently omits “Prior to transferring any or all of the assets of each trust to a Successor professional Co-Trustee, the professional Co-Trustee may require an approval of its account either by a court of competent jurisdiction or by such of the beneficiaries it deems appropriate. ”  As such, I, as vested Remainder Beneficiary, who his Verified Complaint, par. 4, also deemed appropriate to review the IA, meant “Appellant has [EVERY] right to review or approve the IA [and] the Fee Application”.  My rights are further substantiated based on IA’s required compliance w/R.4.87-8, which allows for Exceptions by Interested Parties, incl. me, as per Verified Complaint, par. 4.  "To be sure, [Oct. 6, '22]  Judgment also [WRONGLY distorted] case law [& CONCOCTED FALSE SCENARIOS] holding that the Appellant is a contingent remainderman, who is unaffected by allowances out of income or from payment of corpus commission and, therefore, he cannot file exceptions challenging such items in an accounting."  Of course, all of that is diametrically contradicted by case law and the Court’s March 13, 2023 Order that I am a vested Remainder Beneficiary, who is affected by my IA Exceptions that focused on Trust Corpus and unwarranted and/or wrongfully reported Trust expenses, which impact Trust Corpus, & that did NOT focus on income nor Corpus commissions.  "Simply put, [my prior Brief and Court filings overwhelmingly substantiated that] the trial court [incorrectly and falsely] determined that the Appellant does not have standing to file exceptions to the IA or challenge the Fee Application, [when in fact he does have standing since he is a vested Remainder Beneficiary and his Exceptions focused on Trust Corpus and unwarranted & wrongly reported expenses that negatively impact Corpus, which affects him as a vested Remainder Beneficiary]".  Once again, it is only [...]’s newly concocted, FALSE claim regarding Fee Applications, since he & trial court NEVER addressed my standing, nor lack of standing, in regards to the Fee Applications.
[brief] . . .”  N.J.S.A. 52:14B-3a(d).  The Bulletin at issue here reminds the reciprocal insurance exchanges authorized to transact business in New Jersey of the insurance laws and requirements that apply to them, including the Holding Company Act and relevant Statements of Statutory Accounting Principles (“SSAPs”), including but not limited to SSAP No. 25.  (Ja1-2).  The Holding Company Act is a comprehensive law that regulates an insurance company system, defined as two or more affiliated persons, one or more of which is an insurer.  SSAP No. 25 is a Statutory Accounting Principle, requiring related party transactions to be arm’s-length and fair and reasonable to the regulated entity and its policyholders.  [...] contends that the Bulletin improperly applies the Holding Company Act and SSAP No. 25 to reciprocal exchanges (Ab1) and constitutes de facto rulemaking that should have been conducted through the Administrative Procedure Act’s notice-and-comment rulemaking procedure.  (Ab2).  However, neither allegation is correct; a reciprocal insurance exchange fits squarely within the Holding Company Act’s definition of an insurer.  Further, SSAP No. 25 does apply to a reciprocal exchange and its attorney-in-fact (“attorney-in-fact” or “AIF”).
[brief] Further, with respect to the Plaintiffs’ claim that the LTTEL “superseded” the HMFA Law, the LTTEL was enacted and became effective on April 17, 1992 and repealed a number of statutes, namely: P.L.1961, c.40 (C.40:55C-40 et al.)  P.L.1983, c.139 (C.40:55C-41.1) P.L.1986, c.86 (C.40:55C-41.2 et al.) P.L.1967, c.114 (C.40:55C-44.1 et al.) P.L.1978, c.93 (C.40:55C-46.1 et al.) P.L.1981, c.5506 (C.40:55C-52.1) P.L.1985, c.138 (C.40:55C-58.2) P.L.1965, c.95 (C.40:55C-77 et al.) P.L.1944, c.169 (C.40:14D-1 et al.) P.L.1950, c.107 (C.40:14D-6.1) P.L.1946, c.52 (C.55:14E-1 et al.) P.L.1950, c.111 (C.55:14E-7.1) P.L.1949, c.185 (C.55:14E-20 et al.) P.L.1965, c.92 (C.55:14I-1 et al.) P.L.1949, c.184 (C.55:16-1 et al.) P.L.1950, c.21 (C.55:16-5.1)  P.L.1950, c.112 (C.55:16-8.1) P.L.1967, c.112 (C.55:16-9.1 et al.) P.L.1962, c.249 (C.55:16-18.1) P.L.1950, c.69 (C.55:16-22) P.L.1992, c.79, § 56.  Notably, the HMFA Law is not listed as having been repealed by the enactment of the LTTEL.  The HMFA Law thus remains valid law, and any of Plaintiffs’ claims seeking invalidation of the Ordinance or the grant of tax abatement by the [...] to [...] because [...] or the [...] allegedly failed to comply with the LTTEL is without any merit and must be dismissed with prejudice.
[brief] THE RECORD DOES NOT SUPPORT A FINDING THAT [...] WAIVED HIS RIGHT TO ARBITRATION AND THE TRIAL COURT’S CONTRARY FINDING WAS CLEAR ERROR (Da033; T.3-1 – T.24-23). **  As noted in the Statement of Facts, the Parties’ contract contained an arbitration provision, the terms of which are clear and unambiguous.  The terms of that arbitration provision provided that if either party failed to arbitrate or otherwise abide by the arbitration paragraph, then “either party may specifically enforce” the arbitration provision in the Superior Court.  In utter defiance of the very contract that it seeks to enforce, [...] brought suit against Scarborough without ever having sought to arbitrate the dispute.  In failing to specifically enforce the arbitration provision and in finding that Scarborough waived his right to arbitration, not only did the lower court reward [...] for ignoring the contract that it seeks to enforce, but it penalized Scarborough for participating in a litigation process so as to avoid being in default.
[brief] Applying this principle and specific examples to the underlying case, it is clear that the common knowledge exception to the Affidavit of Merit Statute does not apply.  The very fact that Appellant alleged that [...] breached a professional duty, with citation to the professional engineer’s code of ethics, should be sufficient to establish that expert testimony is required to substantiate their claim.  Specifically, Appellants alleged that “[...] breached their professional and ethical duties to Plaintiffs by selling the engineering plans and drawings to [...]. ” (Pa1).  The Court is reminded again of the undisputed fact that [...] did not sell plans to [...], but rather simply continued development of its engineering plans (which [...] consistently retained ownership of throughout the entire Project) for purposes of completing the Project.  (Pa509).
[brief] [...] Is Not Entitled to a Remand (Responding to Appellants’ Point V). **  With its merits brief, [...] reiterates its request for a remand that this court rejected in May 2024.  [...] again urges this court to remand this matter to the [...] to do an “analysis of the present demand for public access,” whether nearby public access satisfies the demand, and other considerations not reflected in the Law.  (Ab34-35).
[brief] ”)  Indeed, the record on appeal includes the entire complaint - the very instrument that commenced the prosecution in this case - inasmuch as it is required by our Court Rules.  See Rule 7:13-1 which refers to Rule 2:5-4(a) and Rule 2:6-1 (a) 1(b) which reflects the following:  “Required Contents.  The appendix prepared by the appellant. . . shall contain. . . the complaint and all docket entries in the proceedings below. ”  (emphasis supplied)  The Rules foist a clear duty upon the appellant to supply the complaint in his appendix.  Defendant cannot seriously argue that this Court should not consider a part of the record he himself has a duty to supply.  Further, illustrating the importance of the pleadings in any action, Defendant’s duty to supply the complaint in his appendix is independent of the duty of the municipal clerk to forward the complaint to this Court.  It is therefore axiomatic that a trial de novo in the Law Division on appeal from Municipal Court conviction nullifies the proceedings before Municipal Court, including the judgment, but excepting the initiating proceedings of complaint and warrant.
[brief] (Da006).  On August 2, 2021, [...] filed an answer asserting claims against the [...] including deprivation of due process and lack of jurisdiction as affirmative defenses, as well as a claim for indemnity against the [...] for “all of his legal fees, costs and expenses incurred in relation to this matter and all matters that relate to or arise out of the July 3, 2019 OPRA request. ” (Da072-78).  On October 4, 2021, the [...] filed an amended answer to the verified complaint which included an answer denying [...]’s crossclaims.
[brief] No. 22-cv-6917, 2023 WL 5769500, at *5 (S.D.N.Y. Sept. 7, 2023) (Da266-271).  Prior agreements were raised in relation to the fairness of extending third-party beneficiary status to the plaintiff, who it was shown had his own account before it was suspended and he continued to use the third-party’s, not to somehow immunize a subsequent, ambiguous arbitration provision.  Ibid. (Da270).  C.  Federal and New Jersey law plainly permit courts to determine arbitrability  The delegation clause in [...]’s unclear and ambiguous arbitration agreement is equally unenforceable.  Both the Supreme Court of the United States and the Supreme Court of New Jersey are in alignment that in the absence of “clear and unmistakable evidence” the parties agreed to arbitrate arbitrability, “the parties have not waived a court resolution of that issue. ”  Kernahan, 236 N.J. at 331 n.3 (quoting Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 524, 530 (2019)).  In that respect, “[a]n agreement to delegate arbitrability to an arbitrator, like an arbitration agreement itself, must satisfy the elements necessary for the formation of a contract under state law. ”  Morgan, 225 N.J. at 295 (citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).  In Morgan, our Supreme Court held that where the underlying arbitration agreement does not satisfy Atalese, and the delegation clause does not otherwise “explain that arbitration is a substitute for the right to seek relief in court—information necessary for the formation of a valid contract”—both “the arbitration provision and its putative delegation clause are not enforceable. ”  Id. at 295-96 (citing First Options, 514 U.S. at 944).  That is the precise situation at hand, and this Court unquestionably has the authority to reach that same conclusion.
[brief] Referring to Campione, we noted that “[e]ven in the context of New Jersey’s highly regulated casino industry, the Court has held that the Legislature “did not intend to prevent patrons from seeking vindication of common law claims in the Courts. ”  [...], 464 N.J. Super. at 322.  (emphasis).  The Court held that [...]’s CFA claim could proceed in Superior Court because the advertisement he complained of did not pertain to arcane or technical rules of the game which the CCA required for its application.  The big picture is this: the alleged conflict alleged in [...] would have entirely prohibited [...] from seeking relief from the Court under the CFA.  That is not the case here.  In this appeal, Plaintiff/Respondents have alleged the same factual theory under two different statutes and only one of them specifically applies to timeshare transactions and everything involved from presale-solicitation to purchase.  And that statute is the RETA, not the CFA.  The [...] case Plaintiff/Respondents rely upon is not on point.  Third, Plaintiff/Respondents also claim that the CFA covers "real estate" and therefore the Legislature intended that it apply to timeshare transactions.  In a footnote, Plaintiff/Respondents cite a case explaining that the Legislature added "real estate" to the CFA in 1976.  But the Real Estate Timeshare Act was enacted 30 years after real estate was added to the CFA.  And the text and title of the RETA addresses real estate and timeshares as one.  And as stated throughout this Point, the RETA covers the same wrongful conduct as the CFA but with differing requisite mental states to be proved.  For all these reasons, this Appellate Division should reverse and vacate the trebled damage award under the CFA.
[brief] A.  The Bid Solicitation and Bid Specifications In January 2024, the [...] published the Solicitation for the Project.  0304a.  Pursuant to section 0.32 of the Solicitation  The successful Bidder for each public works contract and each listed subcontractor shall be registered in accordance with the requirements of the Public Works Contractor Registration Act (N.J.S.A. § 34:11-56.48 et. seq.).  The successful Bidder and each listed subcontractor shall possess a certificate at the time the bid proposal is submitted and shall submit the certificate(s) prior to the award of the Contract.  [0331a (emphasis added). ]  The Solicitation identified a list of subcontractors (“Bidder’s Proposed Subcontractors Form”) who [...] determined were so critical to the successful completion of the Anticipated Contract that each bidder was required to identify them at the time of bid.  0344a.  Specifically, the Bidder’s Proposed Subcontractors Form required each bidder to identify the entities who would perform: (i) general construction work; (ii) structural steel and ornamental iron work; (iii) plumbing work; (iv) heating and ventilating work; (v) electrical work; (vi) tank manufacturer; (vii) masonry; and (viii) archeology.  Ibid.  The Bidder’s Proposed Subcontract Form specifically provides, in relevant part:  Ibid.  That the archeological subcontractor was identified as one that necessitates pre-bid disclosure is no surprise.  Indeed, the archaeologist role is significant given that the Project site is listed on the National Register of Historic Places.  0678a, 0688a, 0745a.  The Solicitation also specifically identifies the subcontractor’s on-site activities and, through an addendum, created a separate schedule of values for certain additional work the archeological subcontractor is to perform on the Project site with laborers.  1334a.  Notably, the schedule of values for the archaeological work includes “all costs required to compensate the archaeologist for labor for on-site services. ”  Ibid.  B.