ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] In or about November 2016, prior to commencement of the instant Action, Respondent informed its Collection Counsel, [...] (“[...]”), that Appellant’s last known address and mailing address was the NJ Address.  (Pa\textsuperscript{1}35-Pa44, ¶ 22; Pa53-Pa62, ¶ 21).  In November 2016 (still prior to the commencement of the Action), [...] completed the following search to verify Appellant’s address obtained by Respondent: CPE results (Transunion), TLO, Accurint, and Presort obtained from the National Change of Address database through the Post Office.  (Pa35-Pa44, ¶ 23).  The results of each confirmed that Appellant’s address was the NJ Address at the relevant times.  (Pa35-Pa44, ¶ 24).  Appellant never notified Respondent or [...] of a change of address.  (Pa35-Pa44, ¶ 25).  Prior to the commencement of the Action, [...], on behalf of Respondent, sent Appellant a letter dated November 1, 2016, by first class mail to the NJ Address – as obtained by Respondent and confirmed by [...] in the address verification search.  (Pa35-Pa44, ¶ 27; Pa45-Pa48).  The November 1, 2016 letter was not returned as undeliverable or otherwise.  (Pa35-Pa44, ¶ 29).  Appellant did not contact [...] after the November 1, 2016 letter to advise [...] that the NJ Address was not his address, advise that he moved, or provide a new address.  (Pa35-Pa44, ¶ 30).  On or about January 3, 2017, Respondent initiated the instant action in the Superior Court of New Jersey, Law Division, Special Civil Part of Bergen County by filing a Summons and Complaint under Docket Number [...] --- \textsuperscript{1}“Pa” refers to Plaintiff-Respondent’s Appendix filed on November 26, 2024.
[brief] Id. at *11-12.  The court went on to reject the exact argument [...] has made here:  “Even assuming that [...]'s negligence was the proximate cause of [...]'s injuries, the particular negligent conduct at issue was clearly not covered by the policy. ”  *Id.*  [...]’s injuries indisputably were caused by his exposure to mold, not by any other agent, and he sought to hold [...] liable because its negligence allegedly caused him to be exposed to toxic mold.  Although [...] has contended that coverage exists because [...]’s liability was predicated on its negligence, *Sherwood* reiterates the well-accepted rule that the basis for the insured’s tort liability is irrelevant when an exclusion bars coverage “for the particular negligent conduct at issue.
[brief] (Db4-15).  Regarding the pleadings themselves, Defendants will not detail every single iteration of the pleadings for the sake of efficiency.  Nonetheless, the Defendants have provided complete copies of the First Amended Complaint and key orders/decisions from the Federal Court action to provide this Court with a proper understanding of the pleading deficiencies, the many opportunities provided to Plaintiff to correct those deficiencies and Plaintiff’s failure to do so.  (Da037-170).  1.  The State Court  First Amended Complaint – The pleading that was subject to removal to Federal Court.  Plaintiff filed his initial Complaint on April 18, 2016, and a First Amended Complaint on or about January 26, 2017.  (Pa115; Pa118).  The First Amended Complaint was removed to Federal Court based on federal question jurisdiction on February 20, 2017.
[brief] The [...] lien document does not break down the health insurance carrier’s payments by CPT codes, but only gives lump sums for a particular date of service.  As this breakdown was not provided by Plaintiff, he was essentially asking that the arbitrator guess or speculate as to which CPT codes were reimbursed by the health insurer and which were not.  This information is essential to formulating an award, as Defendant is only required to make reimbursement on the ERISA lien to the extent that it complies with the New Jersey Fee Schedule.  When multiple CPT codes are at issue and there is no indication which are being reimbursed, it is impossible to know if that reimbursement comports with the Fee Schedule.  The arbitrator’s determination was not erroneous based on the law at issue and the facts presented at the time of arbitration.
[brief] Defendant then testified that as he was driving on Route 9, he observed that several officers had pulled a woman over and appeared to be administering field sobriety tests.  Defendant claimed that [...]’s patrol car was in the lane to his left preventing him from safely changing lanes.  On cross-examination, defendant acknowledged that he drank one beet at a bar earlier that night and later refused to provide breath samples after the Standard Statement was read to him.  Defendant claimed he refused to provide the samples because he had “a lawsuit against multiple police officers” and he does not trust police.  Trial continued January 9, 2024.  After summations, the judge found defendant not guilty of DWI and dismissed the reckless driving charge.  Based solely on the video, the judge found defendant guilty of the refusal.  On the lane change, the judge found that [...] testified credibly that defendant “did not maintain in his lane properly. ”  Da2-6.
[brief] I.  **THE PROJECT AND PARTIES**  This insurance coverage case arises out of a construction site accident that occurred on December 11, 2015, on the [...] construction site at [...] (the “Project” or the “Project Site”).  Pa3.  The Project’s general contractor was [...] (“[...]”).  Pa3.  [...] retained [...]  (“[...]”) as a subcontractor to perform certain work on the Project.  Pa3.  [...] retained [...], a New Jersey corporation, as a subcontractor to perform concrete saw cutting work.  Pa3.  At that time, [...] was [...]’s primary CGL insurer, with a coverage limit of $1 million.  Pa224.  The [...] Policy contained an endorsement providing an exclusion for injuries arising out of “all projects subject to a wrap-up insurance program with limited exceptions for certain ongoing operations,” including “any contractor-controlled, owner-controlled or similar insurance program. ”  Pa285.  [...] was [...]’s excess CGL insurer, providing $9 million of coverage over [...]’ coverage.  Pa34.  The [...] Policy also contained a “Contractors Limitation” endorsement providing that “the insurance provided by this policy shall not apply” for any loss “[a]rising out of any joint venture or any project insured under a ‘wrap up’ plan. ”  Pa72.  [...] also contracted with [...] to provide a CCIP, under which enrolled contractors were entitled to, among other coverages, general liability coverage from [...] against claims by persons injured while working on the Project.  Pa77.  II.
[brief] In rejecting defendant’s claim about the timeliness of the State’s production of [...]’s report, [...] properly considered that the issue of cell site analysis was on defendant’s radar as early as 2019 and his own expert had already prepared a report in response to an earlier report from the State on the issue.  The judge further considered that the State’s second expert report was occasioned by recent caselaw clarifying the limits of expert testimony on the issue.  Rather than the draconian remedy of preclusion, the judge reasonably resolved the issue by giving defendant time to consult the expert he had already retained years earlier and provide a proffer in response to the State’s expert.  As to the reliability of PCMD data, [...] properly found [...]’s opinion satisfied the Frye standard, and that his expert opinion on PCMD gave a general area without overstating its precision.
[brief] [...] has taken eight-hundred-plus individual PIP claims submitted by the defendants dating from 2009 through 2022, see Pa123-149; Pa67 ¶ 306; Pa69 ¶ 315, many of which it had pre-authorized or have been arbitrated to finality, characterized them fraudulent, and bundled them together under the banner of IFPA, RICO, and declaratory judgment claims in Superior Court.  Insurers like [...] jettison the “PIP dispute” nomenclature to circumvent the No-Fault Law’s arbitration command and to get a second bite at the apple in many cases.  Allowing [...] to avoid arbitration merely by calling PIP disputes IFPA and RICO claims would, as the trial court and others rightly noted, “fling open the courthouse doors” when the Legislature purposely closed them to PIP claims.
[brief] (Da57³ at ¶ 3.)  The 2002 aerial view of the Original Tract shows that at such time, it was simply undeveloped land without any roads.  (Da67.)  Shortly thereafter, the Original Tract (which --- ²  It should be noted that in the Borough’s Statement of All Summary Judgment Items that it filed in this court on October 19, 2023, it does not actually list all of the items submitted to the trial court in connection with the Motion (i.e., it leaves out the reply certification of [...], and response to counterstatement of material facts, submitted to the trial court by Plaintiffs on March 27, 2023) and accordingly, Plaintiffs include same in their appendix submitted herewith.
[brief] (3T132:5-9) (Plf.’s brief at 35).  As stated above, Plaintiff and Defendant each used the pharmacy account for personal expenses.  (3T124:13-19).  Each personal draw would go against each other’s respective profits in business.  (3T107:15-18; 3T168:13-169:16).  In addition to the single business checking account, the parties also each used credit cards.
[directive] 1.0.7  This policy contains mandates that, at the Attorney General’s direction, every law enforcement agency must implement.  In some areas, the manner in which these agencies must implement these mandates is a decision that is left to the individual law enforcement agency’s discretion.  For instance, every agency must establish an internal affairs function.  But certain aspects of the manner in which the mandate is satisfied are left to the discretion of the individual agencies.  Individual agencies shall decide, based on the characteristics of their jurisdiction and the workload of their agency, whether the internal affairs function is a full- or part-time unit and how many officers are assigned to work in that unit.  1.0.8
[brief] Ia1.  On October 14, 2022 Plaintiff served the pleadings by certified and regular mail (as well as by publication and posting as required) to [...] at six different addresses, including that of its foreclosure counsel\(^2\) and its registered office.  Ia22-24.  [...] received all notices but “assumed Plaintiff’s foreclosure would near conclusion between six months to a year from filing. ”  Ia144, ¶13.  This was despite the Notice that clearly stated “45 days following publication, we will move for the entry of final judgment…”  Ia22.  On November 9, 2022, Plaintiff filed a motion to declare the property as abandoned, mailing it by certified and regular mail to all six addresses.  Ia39-41.  The motion was granted unopposed December 29, 2022.  Ia42.  On January 6, 2023, --- \(^2\)  We presume that [...]’ foreclosure counsel provided a copy to him as well.  Plaintiff filed a motion to substitute the Plaintiff, again mailing by certified and regular mail.  Ia54-56.  The order was entered January 20, 2023.  Ia57.  Final judgment entered January 23, 2023, Pa131, and was mailed certified and regular mail that same date.  Ia135.  Plaintiff’s foreclosure took 159 days, not much less than the 193 days that [...]’ foreclosure did.  [...] hired an attorney who filed an appearance post-judgment, February 12, 2023, but took no action thereafter.
[brief] The instant case at hand focuses on a classic fraud committed upon the court by an attorney under the *Throckmorton* doctrine.  Despite the *Throckmorton* doctrine having been firmly established for well over one hundred years, the exact miscarriage of justice that the *Throckmorton* doctrine was designed to prevent was repeated here when the attorneys and fellow officers of the court representing [...] committed fraud upon the trial court by presenting false evidence and certifications against the non-party attorney, who was not afforded an opportunity to defend himself or present his case to the trial court below before negative findings of fact were rendered against the non-party attorney.  To revisit this principal in this instant case will not only to assure to safe guard the innocent victim from the fraud upon the court, but also will promote the public confidence in the trust of the integrity of our judicial systems.
[brief] ”  In re City of Newark, 469 N.J. Super 366, 387 (App. Div. 2021) (citing Crowe, 90 N.J. at 133); see also Waste Mgmt. of N.J., Inc. v. Union Cnty. Util. Auth., 399 N.J. Super. 508, 520 (App. Div. 2008) (confirming that while “all the Crowe factors must weigh in favor of injunctive relief, a court may take a less rigid view than it would after a final hearing when the interlocutory injunction is merely designed to preserve the status quo”).  This court also refuses to take “a grudging or narrow approach” to such relief if the State is seeking merely to maintain the status quo pending resolution of a DCR administrative action.
[brief] Trial on the allocation issues (“Allocation Trial”) proceeded before the [...] in 2015, following a period of allocation-specific discovery.  (Pa0256; 1T.)  The issues before the [...] were straightforward – to determine an “end date” for the allocation period and to allocate throughout that period consistent with binding Massachusetts law in Boston Gas Co. v. Century Indem. Co., 454 Mass. 337, 373 (2009) (“Boston Gas”).
[brief] [...]’s opinion on the critical issues of exposure and causation were riddled with holes.  He testified that [...] could survive a pre-trial motion on exposure based on his reliance on [...]’s underlying expert, [...].  3T172-1-9.  Tai concluded that [...] was exposed to toxic mold in his condo unit.  To conduct his sampling, Dr. Tai relied upon the ERMI Method, which has been validated for research purposes only.  2T140-16-18.  As the trial court recognized, “[...] was unfamiliar with the ERMI Method used by Dr. Tai but admitted that the likelihood of a successful verdict would be impacted if [...] used a scientifically invalid mold sampling method. ”  Da20a.  [...]’s testimony was similarly incomplete on the issue of causation.  He acknowledged there is disagreement in the scientific community on whether the mycotoxins [...] claimed caused his injury were capable of producing that result, (3T209-2-16) that the doctor [...] planned to rely on to prove that connection, [...], had credibility issues because of her long-standing business dealings with [...], (3T218-25 to 3T219-5), and that [...] had retained well-credentialed experts to contest causation.  3T218-1-13.  Given these issues, he would not even venture a guess on whether [...] would prevail on causation.  3T210-9-17.  The trial court again recognized as much in its verdict, finding that “[i]n addition to credibility issues with Hankins as [...]’s business partner, [...] knew her opinion on causation could be problematic because there is scientific disagreement on whether exposure to mycotoxins could in fact cause the deficits [...] allegedly experienced. ”  Da20a.  In summary, [...] relied exclusively on [...] to meet his burden of production.  But because that testimony was based on [...]’s self-validating, unsubstantiated personal beliefs, it was insufficient for [...] to meet his burden of production.
[brief] **PROCEDURAL HISTORY**  Complainant [...] (“Complainant”) filed a Complaint with the School Ethics Commission (“SEC”) on January 13, 2020 alleging that Appellant violated multiple provisions of the School Ethics Act.  Sg008-067.  In particular, Complainant alleged that Appellant violated the following provisions of the School Ethics Act: N.J.S.A. 18A:12-24(b)(Count 1); N.J.S.A. 18A:12-24.1(b)(Count 5 and Count 8); N.J.S.A. 18A:12-24.1(c)(Count 2); N.J.S.A. 18A:12-24.1(e)(Counts 3 and 6); and N.J.S.A. 18A:12-24.1(f)(Counts 4, 7, and 9).  Sg008-067.  On February 24, 2020, Appellant filed a Motion to Dismiss in Lieu of an Answer.  On March 20, 2020, Complainant filed a response to the Motion to Dismiss and allegation of a frivolous filing.  On May 19, 2020, the SEC denied Appellant’s Motion to Dismiss as to Counts 1-4, but granted said Motion as to Counts 5-10.  Sg216-231.¹  The SEC also denied Appellant’s frivolous filing allegation and prayer for sanctions, and ordered Appellant to file an Answer relating to Counts 1-4 of the Complaint.  Sg216-231.  On June 1, 2020, Appellant filed an Answer as to Counts 1-4 of the Complaint.  Sg068-072.  On July 21, 2020, the SEC found probable cause for ethics violations as alleged in Counts 1-4 of the Complaint against Appellant.  Sg205-212.  Consequently, the SEC submitted the matter to the Office of Administrative Law (“OAL”) for a hearing on Counts 1-4.  Sg231.  ¹  At the appellate level herein, the parties are designated as Appellant and Respondent.  Therefore, documents contained in the Appellant’s Appendix and cited herein are designated “Sg” (Appellant’s name initials) for the court’s reference to avoid confusion.
[brief] 1 PROCEDURAL HISTORY .....................................................................................................  1 STATEMENT OF FACTS ......................................................................................................  2  A. Oceanfront-Broadway Redevelopment Plan .................................................................  2  B.  Amendment of the Oceanfront—Broadway Redevelopment Plan .........................4  C.  [...] Is Designated as Redeveloper .................................................................13  D.  The [...] Redevelopment Agreement and Redevelopment Payment ..................................................................................................................13  E.  Dismissal of Plaintiff’s First Amended Complaint ....................................................16  APPELLATE STANDARD OF REVIEW ...........................................................................20
[brief] Rule 4:50-1(d) permits a party to vacate a default judgment if it is void. \(^3\)  But, the Judgment is not void pursuant to Rule 4:50-1 (d) because: (a) Appellant’s Motion was not filed within a reasonable time; (b) Appellant’s --- \(^3\)  Appellant did not seek to move to vacate the Judgment pursuant to Rule 4:50-1(a) on the basis of excusable neglect.  But, even if Appellant did move under these grounds, Motion to Vacate would be deemed untimely as the Motion was not made within one year of the Judgment.  Rule 4:50-2 (“[t]he motion shall be made within a reasonable time, and for reasons (a), (b) and (c) of R. 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken. ”); Orner v. Liu, 419 N.J. Super. 431, 437 (2011) (If the motion is made on the basis of excusable neglect, then it must be brought within one year after the judgment).  And, even if it was timely, Appellant failed to establish excusable neglect, including a meritorious defense.  Motion is barred by the doctrine of laches; and (c) any NJCFLA claim lacks merit and is barred by res judicata.
[brief] Point II  Trial Counsel Failed to Advocate for His Client to Obtain a Fair Sentence, as He Made No Argument to Refute the State’s Request for More than Ninety Years Parole Ineligibility but Instead “Offered” His Client for Sentencing; Further, This Court Should Find That it is Per-Se Ineffective Assistance for Trial Counsel Not to Submit a Memorandum Prior to Sentencing in a Contested Sentencing Matter Where the State is Seeking a Term on the Extreme End of the Scale and the Court Has Discretion to Impose a Lesser Sentence
[brief] Appellant, accordingly, was not required to raise the affirmative defense of recoupment or set-off in the pleadings.  J B Pool Mgmt., LLC, supra.  B.  Affirmative defense of recoupment or set-off raises genuine issue of material fact, thereby precluding grant of summary judgment.  One of the affirmative defenses which R. 4:5-4 permits is fraud.  In Lithuanian Commerce Corp., Ltd. v. Hosiery, 179 F.R.D. 450, 476-477 (D.N.J. 1998), the plaintiff claimed the affirmative defense of fraud.  The court denied the defendant’s motion for summary judgment.  The Lithuanian Commerce case stands for the proposition that an affirmative defense is a “material fact. ”  Respondent was required to show that there is “no genuine issue of any material fact. ”  R. 4:46-2(c).  Appellant’s affirmative defense raises a genuine issue of “material fact”, precluding the issuance of the motion for summary judgment.
[brief] Furthermore, “the reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in the light of all the circumstances. ”  *Goodwin*, 173 N.J. at 598 (quoting *Kimmelman*, 477 U.S. at 375).  In *State v. Rountree*, the Appellate Division noted that the Supreme Court recently modified R. 3:25A-1 “to enable a defendant to request consolidation of charges pending in multiple counties for purpose of offering pleas and for sentencing,” and to recommend that such applications be made “prior to the offer and entry of guilty pleas. ”  399 N.J. Super. 190, 210 (App. Div. 2006) (quoting *State v. Pillot*, 115 N.J. 558, 577 (1989)).  The court in Rountree noted, “the emphasis of the decision in Pillot was upon consolidation of plea bargaining and sentencing in order to avoid sentencing disparity. ”  *Rountree*, 399 N.J. Super. at 210.  In this case, those concerns are not implicated here.
[brief] To the extent that [...] is permitted to proceed with this unpleaded cause of action, the facts must be considered in the light most favorable to the insurer, [...].  Northfield Ins. Co. v. Mt. Hawley Ins. Co., 454 N.J. Super. 135, 138 (App. Div. 2018).  A great deal of the estoppel argument is supported by [...]’s speculation that [...] never sent a reservation of rights letter.  But a plaintiff must do more than raise mere speculation and conjecture when opposing summary judgment.  Bass v. House of Prayer Cogic of Orange, No. A-1284-20, 2021 N.J. Super. Unpub. LEXIS 3173, at *6 (App. Div. Dec. 29, 2021) (citing R. 4:46-2(c)).
[brief] **The trial court properly declined to exclude the members’ vote to assume long-term liabilities from the valuation of [...]’s interests. **  [...] argues the trial court erred in failing to exclude the Company’s assumption of certain long-term liabilities from valuing [...]’s interests, because some of these long-term liabilities (he argues) are comprised of the individual members’ legal fees.  [...] relies heavily on pontification regarding the “American Rule” and the exceptions to the business judgment rule, and takes the position that the individual members’ actions are not protected by the latter, and are prohibited by the former, in that they impermissibly shift their legal fees to [...].  The trial court declined to allow [...] to slide this argument through the proverbial valuation “back door” well after he was denied by both the Arbitrator and the SDNY Action his ability to bring these claims directly through the front door.  He should not be allowed to revive these claims here.  As argued below, [...] did not attempt to comply with any of the requirements of a proper challenge by an LLC Member to allegedly improper actions by the management of that LLC.  [...]’s claim seeks to invalidate management action and, if they exist at all, are derivative in nature because the purported harm was suffered equally among the members of the Company.  Compare N.J.S.A. 42:2C-67(b) (“A member maintaining a direct action under this section shall plead and prove an actual or threatened injury that is not solely the result of an injury suffered... by the limited liability company”) with [...] Br., p. 4 (arguing the long term liabilities resulted in a “dollar for dollar” reduction of the Company’s value and harmed [...] based on his pro rata ownership).