ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] NJDEP’S CONSISTENCY DETERMINATION IS NOT ARBITRARY AND CAPRICIOUS (RESPONDING TO APPELLANTS’ POINT  II)  As explained in Tennessee’s initial merits brief, the construction of a septic system that has a projected flow of less than or equal to 2,000 gallons per day does not require a treatment works approval under N.J.A.C. 7:14A-22.4 and, pursuant to N.J.A.C. 7:15-3.2(f)5, is deemed consistent with the adopted areawide WQM Plan.  TG Pb28-29.  Since the total amount of wastewater generated by [...] is less than 2,000 gallons per day, [...] is consistent with the adopted areawide WQM Plan.  However, Appellants again argue that NJDEP is required to consider the “totality of the circumstances” related to [...] when determining consistency with the areawide WQM Plan.
[brief] Defendant raised the following arguments:  POINT 1:  THE COURT SHOULD EXCLUDE AND NOT CONSIDER THE HEARSAY TESTIMONY REGARDING OUT OF COURT STATEMENTS BY THE POLICE AND DEFENDANT IS ENTITLED TO AN ADVERSE INFERENCE REGARDING THE PURPORTED IDENTIFICATION OF DEFENDANT BY POLICE.  POINT 2: THE COURT IMPROPERLY ADMITTED HEARSAY TESTIMONY REGARDING ALLEGED POLICE STATEMENTS AND ALLEGED STATEMENTS BY DEFENDANT’S FATHER’S WIFE.  POINT 3:  GIVING DUE EIGHT TO THE EVIDENCE, THE COURT SHOULD FIND THAT THE EVIDENCE IS INSUFFICIENT FOR THE STATE TO MEET ITS BURDEN TO CONVICT DEFENDANT BEYOND A REASONABLE DOUBT.  POINT 4: THE COURT IMPROPERLY DENIED DEFENDANT A STAY OF THIS MATTER PENDING APPEAL.  [Da49].  Defendant appeared before the Honorable [...], J.S.C., on April 24, 2023, for her trial de novo.
[brief] STATEMENT OF FACTS ....................................................................................4  LEGAL ARGUMENT..........................................................................................17  POINT ONE........................................................................................................17  THE COURT'S FAILURE TO APPLY THE PRESUMPTION OF UNDUE INFLUENCE ON RESPONDENT WAS A MISAPPLICATION OF THE LAW, WARRANTING REVERSAL (P35a, 12T177:4 to 178:11).......................  17  A.  The Standard of Review on a Motion for Judgment is De Novo ..................................................................................17  B.  The Court Erred by Placing the Burden on Petitioner to Prove Undue Influence by Clear and Convincing Evidence (12T191:15-23; 12T183:14-19)......................17  C.  The Court Applied the Wrong Standard When It Failed to Subject the Circumstances Surrounding the Making of the Will to Careful Scrutiny or Afford Respondent  Any Reasonable Inferences (12T177:7 to 178:11)..............................................19  D.  The Court Erred As a Matter of Law When It Found No Suspicious Circumstances Were Present (P34a)............................20  E.  A Spoilation Inference Was Warranted Due to The Loss of Decedent’s Client File by [...] When He Knew of The Likelihood of Litigation (P29a to 30a).............................31  “P_a” means Petitioner’s Appendix in Support of Appeal  “T12” means Transcript of Trial dated September 19, 2022  POINT TWO .........................................................................................................................34  THE DISMISSAL OF PETITIONERS  ALTERNATIVE CLAIMS FOR AN ELECTIVE SHARE OF THE ESTATE ARE INCONSISTENT WITH ACCEPTABLE LEGAL AND EQUITABLE PRINCIPLES AND COMPETENT EVIDENCE PRESENTED AT TRIAL (P36a-41a)
[brief] The Appellant, retired Trooper [...], relies on the Procedural History submitted in his original brief as if set forth herein in its entirety.  STATEMENT OF FACTS  The Appellant, retired Trooper [...], relies on the Statement of Facts submitted in his original brief as if set forth herein in its entirety.  LEGAL ARGUMENT POINT I THE DECISION BELOW WAS ARBITRARY, CAPRICIOUS, UNREASONABLE, AND NOT SUPPORTED BY THE SUBSTANTIAL WEIGHT OF THE EVIDENCE.
[brief] Moreover, absent enforcement of the No-Fault Law’s arbitration statute, insurers like [...] have absolutely no incentive to review and arbitrate PIP claims at the time medical practices submit the PIP claims.  Instead, insurers will simply pay PIP claims or arbitrate them and lose and then later—perhaps many years later like [...] did here and [...] did in the Mount Prospect cases—gather hundreds or thousands of paid PIP claims together, label them as one large fraud, and file an IFPA/RICO claim in Superior Court seeking to disgorge those payments and collect treble damages.  It is a great business proposition for insurers who then leverage settlements.  But it is a bad policy for New Jersey courts (and contrary to the statute adopted by the Legislature).
[brief] *Greenholtz*, 442 U.S. at 9-10.  One of these “imponderables” concerns a prediction about an incarcerated person’s future behavior, a highly subjective determination mandating broad discretion in the Board’s decision-making process.  *See Acoli*, 224 N.J. at 222.  Precisely because the parole release decision-making process is inherently subjective, the parole release decision must be made by those with experience and expertise in this field.
[brief] Graham, 560 U.S. at 78.  In addition to all these difficulties faced by children on the normative developmental track, [...] was also diagnosed with specific neurological and developmental deficits that would have made his experience of the criminal legal system even more difficult to navigate.  As a teen, [...] failed his high school competency exam, had difficulty processing thoughts quickly, and had the emotional maturity of a 9- to 10-year-old.  The court should have attributed substantial mitigation under factor 4 accordingly.
[brief] Plaintiff Fails to Address Its Express Waiver of Claims for Damages  In addition to limiting Plaintiff’s remedies to the return of the Deposit, Section 13.1 also bars all claims for the recovery of damages.  Specifically, the clause provided that “[Plaintiff] expressly waives its rights to seek damages in the event of [[...]’s] default hereunder. ”  It is well settled that parties to a contract may agree in that contract to limit their liability and that our courts must enforce such limitations.  See Wasserman’s Inc. v. Twp. of Middletown, 137 N.J. 238, 252 (1994).  In its appeal, Plaintiff completely ignores the unequivocal waiver.  Yet, the complaint sought an award of damages in excess of $30 million.  (Pa14, ¶ 65).  The contract explicitly limited Plaintiff’s monetary remedy to the return of the Deposit.  Plaintiff’s claim for damages was properly dismissed.  See Guaclides v. Kruse, 67 N.J. Super. 348, 364 (App. Div. 1961), certif. den. 36 N.J. 32 (1961) (“plaintiff is limited in her recovery of damages to those fixed by the parties in their agreement”).  III.
[brief] No further narrowing is required.  As [...] concedes, New Jersey’s case law on specificity requirements borrows from case law interpreting the federal Freedom of Information Act (FOIA).  Federal courts have held that a valid FOIA request for emails does not require a subject or keyword, and courts have found violations of FOIA when agencies require that level of specificity beyond what the statute demands.  Federal courts have also cautioned that although requestors must reasonably describe the records they seek, specificity requirements are not to be used as a “loophole through which federal agencies can deny the public access to legitimate information. ”  That is exactly what [...] is doing in this case.  [...]’s brief makes clear its disdain for the fact that email communications are subject to OPRA and thus [...] wants to make it as difficult as possible for a requestor to obtain emails.  It asserts that “government needs to operate with some degree of privacy” and labels Plaintiff’s request an “intrusion. ”  It not only demands far more specificity than is required by OPRA, but it also seeks to re-litigate issues that the New Jersey Supreme Court has already decided—i.e., whether email logs are subject to OPRA.  [...]’s goal seems clear: to do everything possible to make it harder to obtain a public official’s communications.
[brief] Defendants Breached Their Contractual and Fiduciary Duties to Plaintiff (46a-47a)  Defendants were negligent, breached their contractual and fiduciary duties, and violated the New Jersey Consumer Fraud Act by disbursing the Plaintiff’s funds without securing the necessary conveyancing documents, and by issuing title insurance to the Property’s seller instead of to its client, the Plaintiff.  The Commitment for Title Insurance document is the contract at issue in this appeal, and was an agreement between the Plaintiff and Defendants, obligating Defendants to perform certain tasks for the Plaintiff which it either failed to perform or failed to perform correctly.  But as an insurance producer, the contract also triggered the Defendants’ obligation under New Jersey Code to act in a fiduciary capacity.  [...] accepted Plaintiff’s money to act as title agent, and then disbursed those funds to pay off the tax sale certificate and the various parties, including itself, at closing -- all without securing the necessary documents to convey the property to its client.  The Trial Court’s finding that there was not binding contract because it was the Plaintiff’s responsibility to pursue and secure the proper conveyance documents and provide them to Defendants is without basis in the contract language, the many steps taken by Defendants to secure the documents, the standard of care in the industry, and New Jersey Statute and Code.  The Court’s finding that Plaintiff failed to fulfill a prerequisite of the parties’ agreement cannot withstand scrutiny for the same reasons.  First, the contract says nothing about the deed from [...] and [...] to the Plaintiff\(^2\) being either Plaintiff’s responsibility or a prerequisite to all other of Defendants’ obligations under the agreement and law.
[brief] Michels, N.J. Attorney Ethics, § 1:2-3 (2023).  The Advisory Committee’s opinions, as well as cases construing the RPCs, Court Rules, and administrative directives are, of course, binding on attorneys.  In re Stein, 97 N.J. 550, 565 (1984); In re Eisenberg, 75 N.J. 454, 456-57 n.1 (1978); Michels, N.J. Attorney Ethics, § 1:2-6 (2023).
[brief] Div. 1934) (holding that a party to a contract with conflicting options has an “obligation… to cho[o]se between two inconsistent or alternative rights or claims, in cases, where there is a clear intention of the person, from whom he derives one, that he should not enjoy both. ”) (quoting 2 Story Eq. Jur. (5th ed.) § 1075).  Indeed, it is black letter law that when a party chooses one alternative in a contract, he is foreclosed from exercising other inconsistent alternatives.  See, e.g., Melcer v. Zuck, 101 N.J. Super. 577, 583–84 (App. Div. 1968) (enforcing clause limiting buyer’s remedy to the return of the deposit and the payment of title search fees); Sugarman, 2014 N.J. Super. Unpub. LEXIS 1892, at *24 (enforcing clause limiting buyer’s damages to the return of the deposit, plus some incidental expenses).
[brief] (1T28-9 to 12).  [...], with the assistance of a marked patrol car, stopped defendant’s car.  (1T61-11 to 62-15).  The officers then asked defendant to get out, and he complied.  (1T63-25 to 64-4).  After he got out, [...] saw on the driver’s seat a clear-empty capsule matching those found in [...]’s vehicle.  She noted, based on her training and experience, such capsules are usually used for CDS. (1T72-23 to 73-2).  Police also asked defendant for his license.  When they ran his license, they learned it was suspended.  (1T68-6 to 26).  He was issued a motor vehicle summons for driving while suspended.  (1T68-6 to 16).  [...] called [...] and informed her that the search of [...]’s vehicle revealed a substance which field tested positive for cocaine.
[brief] J.S.A. 2C:39-5(b) | 18 | | N.J.S.A. 2C:44-1(a) | 40 | | N.J.S.A. 2C:44-3 | 41 | | N.J.S.A. 2C:58-4 | 18 | ## UNITED STATES SUPREME COURT CASES | Citation | Page | |----------|------| | Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) | 33 | | Frye v. United States, 558 U.S. 916 (2009) | 33 | ## NEW JERSEY CASES | Citation | Page | |----------|------| | In re Grand Jury Appearance Request by Loigman, 183 N.J. 133 (2005) | 43 | | Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366 (1995) | 16 | | State v. Alexander, 233 N.J. 132 (2018) | 27 | | State v. Brown, 170 N.J. 138 (2001) | 31 | | State v. Campfield, 213 N.J. 218 (2013) | 24 | | State v. Cassady, 198 N.J. 165 (2009) | 17, 27 | State v. Choice, 98 N.J. 295 (1985).........................................................28  State v. Denofa, 187 N.J. 24 (2006)......................................................28  State v. Dunbar, 108 N.J. 80 (1987).......................................................41  State v. Garron, 177 N.J. 147 (2003).....................................................27-28  State v. Gandi, 201 N.J. 161 (2010).......................................................16-17  State v. Ghigliotty, 463 N.J. Super. 355 (App. Div. 2020)..........................33  State v. Gross, 121 N.J. 1 (1990)............................................................34,35-37  State v. Heisler, 422 N.J. Super. 399 (App. Div. 2011)..............................30  State v. Jenewicz, 193 N.J. 440 (2008)...................................................33,39  State v. Jones, 242 N.J. 156 (2020).......................................................16,21 State v. Lane, 288 N.J. Super. 1 (App. Div. 1995)....................................21-22 State v. Marrero, 148 N.J. 469 (1997)....................................................31 State v. Marshall, 123 N.J. 1 (1991), cert. denied, 507 U.S. 929 (1993)........31 State v. Mayberry, 52 N.J. 413 (1968), cert. denied, 393 U.S. 1043 (1969)......18 State v. Olenowski, 253 N.J. 133 (2023)................................................33-34 State v. Pierce, 188 N.J. 155 (2006).......................................................41 State v. Prall, 231 N.J. 567 (2018).......................................................17 State v. Reves, 50 N.J. 454 (1967).......................................................18 State v. Rodriguez, 392 N.J. Super. 101 (App. Div. 2007), aff’d, 195 N.J. 165 (2008).................................................................23 State v. Samuels, 189 N.J. 236 (2007)..................................................16 State v. Savage, 172 N.J. 374 (2002)....................................................28 State v. Sugar, 240 N.J. Super. 148 (App. Div. 1990).............................21 State v. Thomas, 187 N.J. 119 (2006)...................................................28 State v. Thomas, 195 N.J. 431 (2008)...................................................40
[brief] 9  I.  The standard of appellate review of a grant of summary judgment is de novo ...........................................  9  II.  In Azurak, the Supreme Court established a “bright line rule” for indemnification clauses.  The language in the agreement must specifically reference the negligence or fault of the indemnitee.  ..................................................  10  A.  New Jersey courts will enforce indemnification clauses which explicitly reference negligence of the indemnitee.  ...........................................  10  B.  Indemnity provisions are enforceable when there is a clear understanding of the parties’ intentions, and the language is unequivocal ..........................................................  11  III.  The indemnity provisions in the contract are enforceable with regard to [...]’s own negligence because they are Azurak compliant ..................................................  12  A.  Paragraph 4 of the contract unequivocally requires [...] to indemnify [...] for its own negligence.  . . . . . .  14  B.  Paragraph two (2) of the Contract unequivocally articulated that [...] should indemnify [...] for its own negligence.  . . . . . . . . . . . . . . . . . . . 17  C.  The cohesive indemnification language of the contract clearly establishes the intent of the parties, thereby rendering the indemnification provisions enforceable.  . . . . . . . . . . . . . . . . . . . . . . . . . . . 25  CONCLUSION
[brief] First, Plaintiff must demonstrate a lack of prejudice to the Defendant.  In this case, Plaintiff asserted that no such prejudice exists, but did not seek to prove it with citation to any facts of record.  Furthermore, it cannot be denied that, at the very least, the potential for exceptional prejudice exists by extending discovery in this manner.  Plaintiff has already suggested that her expert will need one-hundred twenty days to produce a report, and Defendants’ expert will, likely, require significant time to reply to it, and for expert deposition to take place.
[brief] On November 13, 2017, [...] attempted to replace a non-working emergency light fixture in [...]’s warehouse in anticipation of an upcoming fire inspection.  (Pa0051).  Later that day, [...]’s co-workers found him lying on his back on a scissor lift, without a pulse.  “Live” black cables, which were connected to the emergency light fixture and carrying 277 Volts of electric power, were found dangling near [...]’s body.  (Ibid.)  [...] responded to [...]’s Randolph warehouse to a reported cardiac arrest as a result of electrocution.  (Pa0050-0051).  Upon arrival, police noted that [...] was laying supine on the scissor lift, blue in color and without a pulse.  (Pa0050-0051).  [...] was also observed to have a visible burn mark on the inside of his left hand.  (Pa0051).  Resuscitation efforts were attempted on [...] by Randolph Police and a responding E.M.S. unit.  (Pa0051).  Electricians from [...] were called to the scene to secure the exposed electrical lines that caused [...]’s catastrophic injuries and demise.  (Pa0051).  The responding electricians determined that [...] was working on an emergency light fixture with 277 Volts of electricity powering it and that the circuit breaker connected to same had not been turned off.  (Pa 0051).  As a result of the circuit breaker being left on, [...] sustained an electrocuted entrance wound in his right hand and a large exit wound in his left hand.  (Pa0051).  [...] was transported to [...], where he was pronounced dead at the age of fifty-five.  (Pa0050).  [...]’s cause of death was determined to be fatal electrocution.
[brief] Even If the Verbal Consent of the Landlord Was Insufficient, It was Reasonable for the Police to Believe He Delegated His Authority to [...]  [...] testified that he had spoken to the landlord, who was no longer physically present, and the landlord advised Simpkins that “it is okay to have Mr. Mills give permission to search for that video…” (3T128-8 to 13).  It was objectively reasonable for the police to rely on this statement and approach [...] as instructed by the landlord in order to obtain [...]’s consent to retrieve the video surveillance.  The State would submit that the landlord bestowed actual authority on [...] to consent to the entry—and if the authority was not actual, it certainly was objectively reasonable to believe that [...] had apparent authority to consent to the entry.
[brief] *Altman v. [...]*, No. 1 BIC 2021 (Pa. Cmwlth. Ct. Mar. 11, 2021) (Pa0510).  contrary to the law or an abuse of discretion” (the “June 29, 2018, Order and Opinion”).  (Pa0186-87).  The June 29, 2018, Order and Opinion expanded the SAM’s mandate to allocate [...]’s damages incurred after December 31, 2009, and to consider evidence discovered after the 2010 Liability Trial in doing so.
[brief] If a person, whether or not acting under color of law, interferes or attempts to interfere by threats, intimidation or coercion with the exercise or enjoyment by any other person of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, the Attorney General may bring a civil action for damages and for injunctive or other appropriate relief.
[brief] (5a, 8a-10a, 16a-17a)**  Plaintiff is under the mistaken belief that the injunction renders her unassailable and/or otherwise immune from any disciplinary action.  This is patently incorrect and none of the case law cited by Plaintiff supports such proposition.  Pb24-25.  Despite the existence of an injunction issued five years earlier in an entirely separate matter, Plaintiff is still required to abide by all district rules and policies.  In other words, an injunction is not a shield permitting Plaintiff to do whatever she pleases.
[brief] THE TRIAL COURT WAS IN ERROR IN NOT CONCLUDING THAT THE REDEVELOPMENT PLAN WAS INCONSISTENT WITH THE 1988 MASTER PLAN, AND THAT INCONSISTENCY WAS NOT RECOGNIZED OR ADDRESSED AS REQUIRED (APPEALING THE FINAL OPINION/ORDER (Pa1733)  The [...] and [...] rely heavily on the presumption of validity that attaches to the Zoning Ordinance; however, this presumption is not absolute.  The [...] and [...] essentially ignore the fact that the [...] Master Plan dates to 1988, approximately 34 years ago and that [...] and/or its [...] ignored doing any updates.  Although there have been Master Plan Reexamination Reports in 2003, 2012 and 2015, a Reexamination Report is not the Master Plan, it is only a recommendation that the Master Plan be revised or updated in some particulars.  Both the MLUL at N.J.S.A. 40:55D-62 and the LRHL at N.J.S.A. 40A:12-7 require “substantial consistency” with the Master Plan, not some Reexamination Report recommendation or vague platitude that was never implemented or incorporated into the Master Plan itself.
[brief] Continuation of Easement Trial, Nullification of Board Resolution  The Easement Litigation trial resumed before [...] on January 28, 2020 and, following delay imposed in part by the COVID-19 pandemic, concluded on August 2, 2021 (Ra240-Ra265).  On March 29, 2022, [...] issued an opinion and order ruling, among other findings, that Respondent had an express easement on the Sixth Street Lot and the Fifth Street Lot during religious services which existed as long as the Property was used as an Orthodox Jewish synagogue (Ra240-Ra265).
[brief] PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT JUDGMENT AGAINST HOLLAND TOWNSHIP WAS PROPERLY DENIED, SINCE THE SUMMONS AND COMPLAINT WERE NOT PROPERLY SERVED AND DEFAULT WAS NOT PREVIOUSLY ENTERED.  Plaintiff’s Motion for Entry of Default Judgment sought to have default judgment entered against [...].  In its supporting Certification, Plaintiff attached a Proof of Service of Process, dated 8/12/21 (Pa. 3331).  According to the proof of service, the [...] Clerk was not available to accept service, and the pleadings were then deposited in a mail drop box attached to the wall on the front of the building.  This does not constitute effective service.  Under Rule 4:4-4(a)(8), for serviced on a public body, the pleadings must be served as required by Rule 4:4-1(a)(1), which requires personal service.  Under Rule 4:43-2 final judgment by default may only be entered after default has been entered under Rule 4:43-1.  As noted by the Trial Court (Pa 3451), default may not be entered against a Defendant who fails to answer where service is improperly made.