ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The good news is that it’s not a close question.  Although SFRA might still be viewed as “constitutional on its face” because it is based on a laudable “design,” its unconstitutionality as applied at least to [...] is absolutely clear as both a substantive and procedural matter.  The commissioner’s annual certifications to the state treasurer supporting advance state aid loans to [...], now totaling more than $215 million, and certain to increase by ever-growing annual amounts if SFRA’s formula is not dramatically altered for [...], demonstrate conclusively SFRA’s inadequacies.  The fact that to the present time neither of the two constitutional conditions the New Jersey Supreme Court specified in Abbott XX 15 years ago for SFRA’s constitutionality as applied, and especially the one requiring periodic evaluation and adjustment, has been met add to the overwhelming case for unconstitutionality.  Add to that the acknowledgement in the State’s brief that for about half of SFRA’s life it has not even been the vehicle for the distribution of State aid to districts, including [...], the case for SFRA’s unconstitutionality as applied becomes even more overwhelming.  Finally, this court has ample record evidence that supports a decision ruling that both that SFRA is unconstitutional as applied to [...] and that the appropriate remedy is a long overdue legislative amendment to SFRA, or separate legislation dealing with [...]’s fiscal overburden, or both.
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[brief] LEGAL ARGUMENT  I.  APPELLEE IS JUDICIALLY ESTOPPED FROM A MONEY JUDGMENT ABOVE THE APPLICABLE LIABILITY COVERAGE(S)  TOTALLING $200,000 AND A MOLDING OF THE JUDGMENT IS THE CORRECT METHOD TO REFLECT SAME (Raised below: Da43-45, Da23-24, Da95-99)  Judicial estoppel bars a party who has successfully asserted a position before a court or other tribunal from asserting an inconsistent position in the same or a subsequent proceeding.  In terms of judicial estoppel, it is clear that Appellee successfully asserted and obtained a court order on his action to proceed with the State Court Action up to the policy limits--in this case $200,000.  Appellee, through attorney certifications, both in Bankruptcy and in the State Court Action, attested to the same limitation in recovery.  This is a limitation Appellee, not Appellant, chose in order to lift the automatic stay.  Initially, Appellee took the position that the verdict, only involving non-economic damages, case reflected a non-dischargeable debt under 11 U.S. Code § 523(a)(9) and further took the position that the August 18, 2021 Bankruptcy Court Order only applied to economic damages.  It was under this light that the Superior Court of New Jersey did not correctly apply the Bankruptcy Court’s August 18, 2021 Court Order in formulating a judgment against the Appellant.  However, Appellee’s position concerning the Bankruptcy Court’s August 18, 2021 Court Order was refuted by the Bankruptcy Court in its July 11, 2023 Court Orders.  The parties now agree that judicial estoppel was appropriately applied by the U.S. District Court of New Jersey on July 11, 2023 and that Appellee was limited in his recovery to $200,000 against the Appellant pursuant to the Bankruptcy Court’s August 18, 2021 Court Order prior to trial.  With this now shared understanding, it is Appellant’s position that molding the judgment is materially no different than a verdict being converted to a molded judgment based on a high/low agreement or in a UM case there being a molded judgment due to the UM limits.  See *Taddei v. State Farm Indem. Co.*, 401 N.J. Super. 449, 459 (App. Div. 2008); *Malick v. Seaview Lincoln Mercury*, 398 N.J. Super. 182 (App. Div. 2008) (the verdict was molded in accordance with the high-low agreement).
[brief] [...] [...], Plaintiff-Appellant, vs. [...], ESQUIRE, [...]; and JOHN DOES, ESQS., 1-10 and JANE DOES, ESQ., 1-10 (a fictitious designation for presently unknown licensed attorneys, professionals and/or unknown persons or entities), jointly, severally and in the alternative, Defendants-Respondents.  CIVIL ACTION ON APPEAL FROM SUPERIOR COURT OF NEW JERSEY, LAW DIVISION, PASSAIC COUNTY DOCKET NO.: [...]  Sat Below: HON. [...], J.S.C.  DEFENDANTS/RESPONDENTS’ BRIEF IN OPPOSITION TO PLAINTIFF/APPELLANT’S APPEAL OF A MOTION TO DISMISS [...]
[directive] Finally, the Court considers defendant’s request that the Court “impose an outer- 7. of detention” to “save the constitutionality of the CJRA. ”  That issue is not limit properly before the Court, and the Court has previously rejected a facial challenge to the CJRA on due process grounds.  See In re Request to Release Certain  Pretrial Court explained that “[w]hether the length Detainees, 245 N.J. 218, 232 (2021).  The of detention violates due process . . . ‘requires assessment on a case-by-case basis’ because due process is a flexible concept that ‘does not necessarily set a bright line limit for length of pretrial confinement. ’”  Id. at 231.  Defendants may bring individual due process challenges based on the length of their detention and must do so in the first instance before the trial court.  Pretrial Detainees lists a number of relevant considerations to assess such a challenge.  Id. at 232.  (pp. 33-35)
[brief] \(^10\)  Thus, a remand for \(^9\)  For the reasons explained in Section A, however, the sentencing court did not waive and could not have permissibly waived the evaluation in this case.  \(^10\)  The previous version of the statute required a report on mental health in cases involving certain convictions “unless the court direct[ed] otherwise. ”  1997 NJ Sess. Law Serv. Ch. 216 (ASSEMBLY 489 and 685).  In 1997, the statute was amended to make the report mandatory under these circumstances.  a psychological examination or report is also required because the case “involves” a child endangering conviction and because the information included in the presentence report does not constitute “a report on the defendant’s mental condition.
[brief] [Id.; Trans. ID: [...]]  Although the Order is dated, May 27th, 2022, it was uploaded into e-Courts on May 31st, 2022.  On June 21st, 2022, Plaintiff filed a motion to enforce litigant’s rights and the motion was resolved on September 23rd, 2022, by Order stating, “$4,600.00 held in escrow by [...] shall remain in escrow and shall not be released until further order of this court pursuant to a motion to release funds on notice to all parties.
[brief] *Id.* at 453 (emphasis added).  “To demonstrate a lawyer received confidential information from the prior relationship, the client must make more than bald and unsubstantiated assertions that the lawyer disclosed business, financial and legal information related to the matter for which disqualification is sought. ”  *Dental Health Assocs. S. Jersey, P.A. v. RRI Gibbsboro, LLC*, 471 N.J. Super. at 194 (emphasis --- ⁶ RPC 1.9(b) similarly requires a substantially related mater. added) (internal quotations omitted); *O Builders & Assocs., Inc. v. Yuna Corp. of NJ*, 206 N.J. 109, 129 (2011) (requiring more than mere “bald and unsubstantiated assertions” to grant disqualification).  Disclosed records and information are deemed significantly harmful if prejudicial to the former prospective client “within the confines of the specific matter in which disqualification is sought. ”  *Greebel v. Lensak*, 467 N.J. Super. 251, 258 (App. Div. 2021) (concluding that information disclosed was “significantly harmful” where the information was substantially related to the instant matter and goes to the heart of the instant litigation).  “Disqualification of counsel is a harsh discretionary remedy which must be used sparingly. ”  *Cavallaro v. Jamco Prop. Mgmt.*, 334 N.J. Super. 557 (App. Div. 2000).  Further, RPC 1.9(c) provides:  A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
[brief] Permitting the jury to hear and see them thus created a “strong negative inference” that he was guilty and unfairly punished him for simply exercising his constitutional rights.  United States v. Hale, 422 U.S. 171, 180 (1975); Clark, 251 N.J. at 293-94.  That is particularly true of his second, third, fourth, and fifth statements that he had “nothing” to say, which came just after the detectives spoke to [...] and confronted him for the first time with the fact that she did not confirm his alibi; and of the latter three, which immediately followed the detectives confronting him with the surveillance video of the alleged perpetrator running away at 2:12 a.m. and pressing him, “What do you have to say to that?” (9T 31-2 to 34-11)
[brief] Municipal Land Use Law ("MLUL") provides that if a proposed subdivision complies with the MLUL and local ordinances, than a planning boards "shall ...grant preliminary approval. ”  Meridian Quality Care, Inc., v. Bd. Of Adjustment of the Twp. of Wall, 355 N.J. Super 328, 344 (App. Div. 2002) (citing Pizzo Mantin Grp. V. Twp. of Randolph, 137 N.J. 216, 228 (1994) (quoting N.J.S.A. 40:55D-48)).
[brief] In other words, “absent an abuse of discretion,” appellate courts must “defer to the trial court’s decision” to sever or join counts or cases.  Chenique-Puey, 145 N.J. at 341.  When a defendant objects to the State’s motion to join offense and claims that such joinder would be prejudicial, the court must assess “‘whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges. ’”  Ibid (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)).  “If the evidence would be admissible at both trials, then the trial court may consolidate the charges because ‘a defendant will not suffer any more prejudice in a joint trial than he would in separate trials. ’”  Ibid. (emphasis added) (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div. 1983)).  Under N.J.R.E. 404(b), evidence of another crime or bad act “is admissible only if it is relevant to prove a fact genuinely in dispute ‘and the evidence is necessary as proof of the disputed issue. ’”  State v. Darby, 174 N.J. 509, 518 (emphasis added) (quoting *State v. Hernandez*, 170 N.J. 106, 118-19 (2001)).
[brief] The Resolution that Plaintiffs attempt to challenge in this action is entitled “Resolution of Approval – Application of [...] Approval of Conditional Use. ”  (Da453.)  The Resolution expressly indicates that the Planning Board was considering, and approving, an “Application for Conditional Use. ”  (Id.)  N.J.S.A. 40:55D-25a(4) provides that the planning board possesses jurisdiction over “conditional uses pursuant to article 8.
[brief] That is the definition of a contractual impairment.  The Department attempts to excuse its power grab by arguing that [...] actually pays the fees, not the subscribers.  But this is not correct.  Each individual subscriber agreed that 12.5% of his/her premium should be directed to [...] – not [...].  All [...] does is turn the fees over to [...] on behalf of each individual subscriber consistent with his or her instructions and the POA.  [...] has no control over the AIF Fee, and [...] has no control over the individual subscriber’s decision to pay the AIF Fee.  There is no element of common control.  Thus, the POA is not subject to SSAP No. 25 and neither are the fees paid pursuant to it.  The Department’s attempt to nevertheless control those fees under the guise of SSAP No. 25 and the Bulletin is a direct impairment of [...]’s right to contract with the subscribers to which the Department is not a party.
[directive] an  The governing body of every local unit shall employ a registered municipal accountant of New Jersey to prepare its annual audit or it shall enter into an agreement with the Director of the Division of Local Government Services for an annual audit to be made by qualified employees of the division.  The director shall establish a fee based upon the time spent and other expenses incurred by qualified employees of the division when conducting the annual audit for a local unit.  The local unit shall upon request for payment for audit services, forward a check to the director, payable to the State Treasurer.  Amended 1977,c.396,s.1; 1991 ,c.216. of Scope audit 40A 5-5.
[brief] Notwithstanding the Lease, the Property had not been used for over six (6) months.  No testimony was presented by the Plaintiff to refute this evidence.  The only evidence regarding the Lease was Plaintiff’s attorney’s explanation that the Property could no longer be leased because the LSRP needed to trench the building in order to identify the extent of the contamination under the building.  (T1, 13:8-23).  She explained, “my client allowed the lease to expire so that we could get in there and dig up whatever needed to be dug up, which we’re in the process of doing now. ”  (T1, 13:21-23).  According to the Memorandum prepared by Plaintiff’s LSRP, there are at least six (6) USTs on the Property which have been abandoned in place.  (Da144 & T1, 12:10-13).  That same report indicated that at least four (4) USTs were impacting groundwater, and lead and petroleum was in the soil.  (Da144).  In December 2019, LNAPL was discovered in the soil and in November 2021, naphthalene was found in the soil.  (Da144 & Da145).  Testimony indicated that benzene was found in concentrations of 10 to 11 micrograms per liter when the groundwater quality standard is 1 microgram per liter.  (T1, 34:7-15).  Plaintiff’s attorney admitted that the Property “has some contamination” and that “[i]t has an active remediation case.
[brief] Pa106-Pa112; see Caoili, 135 N.J. at 273.  This is the precise methodology that was also used by the [...]’s appraiser, who himself concluded that it was reasonably probable that the subject property would have received approvals on the date of value for an 87-unit multi-family development, and then also discounts the value for lack of approvals.  Pa80-Pa81; Pa86; Pa120-Pa122.  Moreover, [...]’s argument regarding the applicability of the “Project Influence Doctrine” and “Scope of the Project” is farfetched in light of the “reasonable probability” analyses undertaken by [...] and [...].  As demonstrated in [...]’s expert reports, an application of the outdated R-2 zoning, which has not been in place since the late 1990s, should not apply to determine just compensation in this matter as of June 3, 2019, because it would fall significantly short of satisfying the test to determine the “highest and best use.
[brief] 23 Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005) ...........................................................................................................  9 FTC v. Shaffner, 626 F.2d 32 (7th Cir. 1980) .................................................................................................  22 Galaria v. Nationwide Mut. Ins. Co., 663 F. App'x 384 (6th Cir. 2016) ....................................................................................... 12 Gburek v. Litton Loan Servicing LP, 614 F.3d 380 (7th Cir. 2010) ............................................................................................... 26 Gonzalez v. Wilshire Credit Corp., 207 N.J. 557 (2011) .............................................................................................................. 33, 34 Hodges v. Sasil Corp., 189 N.J. 210 (2007) .............................................................................................................. 8, 18 Hunstein v. Preferred Collection & Mgmt. Servs., 994 F.3d 1341 (11th Cir. 2021) ......................................................................................... 10, 11, 12, 14, 15, 25 Hunstein v. Preferred Collection & Mgmt. Servs., 17 F.4th 1016 (11th Cir. 2021) ......................................................................................... 10, 12, 14, 15 Hunstein v. Preferred Collection & Mgmt. Servs., 17 F.4th 1103 (11th Cir. 2021) ......................................................................................... 13 Hunstein v. Preferred Collection & Mgmt. Servs., 48 F.4th 1236 (11th Cir. 2022) .........................................................................................
[brief] He explained that each unit would include 2 off street parking spots and only one on street spot would be lost as a result of this development plan.  He further explained that a different development plan with exclusively single family homes would have caused a loss of between 6 and 9 on street parking spots.  T40-15 to T41-14.  •  He described the future landscaping to that occupy the front yard setback created by this plan.  T40-1 to T40-16.
[brief] Among other things, [...] and [...] gave the opinion that the standard of care required a respiratory therapist to see [...] every two to three hours.  (See 6T222:9-223:24; 8T6:6-15:8.)  The Court allowed the respiratory therapy testimony from [...] and [...], over defendant’s objections, although neither witness was qualified as a respiratory therapist or respiratory care expert, or in [...]’s case, a nurse or nursing expert.  (See, e.g., 5T51:10-60:25, 5T143:13-145:19, 5T151:4-208:7 6T102:10-141:13; 6T178:1-184:22, 6T188:6-192:3, 6T199:16-205:10, 6T214:15-221:5, 6T254:23-270:21.)  Plaintiffs’ experts, nursing home administrator [...] and [...] relied upon various federal and New Jersey regulations in their reports and again in giving their opinions at trial.  (See, e.g., Pa44-52; 7T84:10-123:17, 7T132:24-134:21; 8T35:3-37:9, 8T83:22-84:4, 8T109:24-115:21.)
[brief] Therefore, Defendants demonstrate “that the evidence would probably have changed the result, that it was unobtainable by the exercise of due diligence for use at the trial, and that the evidence was not merely cumulative. ”  See DEG, LLC v. Township of Fairfield, 198 N.J. 242, 262; 966 A.2d 1036, 1047.  Pursuant to N.J. Ct. R. 4:50-1(c) and N.J. Ct. R. 4:50-3, the relief of Amended Final Judgment from fraud upon the court shall be granted.  CONCLUSION
[brief] (Pb 27).  The State also maintained that defendant’s trial attorney made a strategic decision not to hire an expert witness to analyze the cellular telephone data after discussions with defendant.  (Pb 32).  Lastly, the State asserted that because its “proofs against defendant were significant,” the PCR judge correctly determined that defendant was unable to establish the prejudice prong of the Strickland/Fritz test.  (Pb 30-31, 33).  STATEMENT OF FACTS
[brief] Finally, for multiple reasons, including a long-standing contractual agreement between [...] and [...], as well as the Legislature’s ratification and validation of that agreement, the Legislature conferred and recognized the ability of municipalities to impose requirements and restrictions on the use of the rights of way of the municipalities.  Thus, the summary judgment entered by the court below was in error and must be reversed because (i) it applied the wrong standard of review to what was necessarily a facial challenge to the provisions of the ordinance, (ii) it made determinations of a factual dispute on a motion for summary judgment, and (iii) the court’s ruling was wrong on the legal merits of a municipality’s power to regulate the use of its own property.
[brief] On September 25, 2018, the [...] filed a Motion with the Surrogate of Bergen County to intervene in the Probate action, together with a Notice of Motion, Certification, and Brief.  (Da42).  That application sought to intervene on behalf of [...].  (Da42).  In his Certification, [...] of the [...] confirmed that he and his firm were the attorneys for defendant [...] Miranda. (Da44).  Also, in his Certification, [...] certified that [...], counsel for [...], consented to allow [...] to file an Answer.  Also, [...] confirmed in his Certification that he, on behalf of [...], contacted counsel for [...] on July 6, 2018 to request consent to participate.
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[brief] Defendant claims that any property acquired by any branch of the [...] must be held in the name of the national organization, The [...] of America, Inc.  (Pa228).  According to Defendant, this organizational rule overrides any claim by Plaintiff; Defendant alleges that all properties are effectively owned by the national entity.  (Pa228).  Plaintiff presented numerous documents, including the deed and transaction records, which purportedly demonstrate its rightful purchase and ownership of the Property.  (Pa100).  Despite Plaintiff’s request during discovery, Defendant failed to produce any documentary evidence that it, as the national organization, had either purchased the Property or had any legal or financial contribution towards its acquisition.  (Pa100).  There is a significant dispute over the interpretation of the organizational rules governing property ownership.  (Pa100; Pa228).  Plaintiff argues its autonomy as a local entity to purchase property, while Defendant asserts overarching control by the national organization.  (Pa100; Pa228).  During the hearing, the Court did not address these substantial factual disputes.  Instead, the Court focused on procedural formalities, leading to the decisions now under appeal.  (1T; Pa233).
[brief] The State’s positions cannot be reconciled.  Respondent cannot argue that everything is fine because Appellant’s motion to suppress was granted and at the same time argue that the primary justification for not dismissing the instant Indictment (the fact the motion to suppress was granted) should be vacated in a parallel appeal.  Respondent has accused the trial court of conflating the suppression and Brady issues when in fact it is the Respondent trying to boldly conflate the two issues by double talking to gain an advantage.
[brief] ” (4T, p. 46, lines-14), as the driving basis for his subsequent rulings.  He rejected & overlooked that my Motions substantiated Oct. ‘22 Rider & Feb. 17th rulings were palpably incorrect & irrational in contradiction to evidence; made in arbitrary & unreasonable, manner in contradiction to evidence, & overlooked significance of irrefutable evidence contradicting Judges’ rulings, all of which are legal criteria based on NJ Court Case rulings (See Section I) for supporting reconsideration of Orders, & those Motions were NOT filed due to any dissatisfactions with the Court rulings.  CONCLUSIONS