ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Once again, the parties would be identical, the acts complained of and the demand for relief would be the same in both actions (non-payment of rent) and the theory of recovery would also the same (breach of contract).  All the same parties, witnesses, discovery and other proofs would also be the same.  Appellant had the benefit of counsel and the same arguments would be made.  Whatever agreement was reached between Appellant and the Franchisor to continue making rent payment has no bearing on the settlement reached with Respondent.  In short, there is nothing further for the parties to litigate, including claims not previously raised.  What must also be considered are the parties relative circumstances which we detailed in many prior submissions.
[brief] 16, 17, 32  Farese v. McGarry, 237 N.J Super 385, 390-392 (App. Div. 1989)  11  Farmer v. Brennan, 511 US 825 (1994)  29 GMC v. City of Linden, 143 N.J. 336, 341 (1996)  29  Greason v. Kemp, 891 F.2d 829, 835 (11th Cir.1990)  35  Hafer v. Melo 502 U.S. 21 (1991)  38  Hudspeth v. Figgins, 584 F.2d 1345, 1347 (4th Cir. 1978)  17  Johnson v. Avery, 393 U.S. 483 (1969)
[brief] (290ca-416ca).  Rather than applying and relying on the criteria the Borough set to govern the applications, the Borough, as the trial court put it, allowed the Subcommittee members and, therefore, the Borough to “dr[a]w their own conclusions” based on each application.  (13a-14a).  That approach not only was inconsistent with the Borough’s stated procedure but also allowed for subjective and apparently biased evaluation of the applications untethered from the governing criteria established by the Borough.  (801a).  For example, one of the subcommittee members expressed bias and possible hostility toward larger companies, without explaining why she “leaned” towards smaller entities or what that had to do with the evaluation process.
[brief] relief was justified.  [...]’s site plan shows that there are a total of 3,401 square feet of constrained slopes, of which [...] could lawfully disturb 1,387 square feet of the 292,795 square feet of the Property.  [Pa51; Pa256].  Regulated slopes thus account for 1.1% of its area.  Those areas are in the front yard in precisely the location where [...] needs to disturb soil to locate its proposed driveway and vehicle circulation area.  [7T 56-7 to 56-22].  The only findings with respect to the design waiver for steep slope disturbance is found in Paragraph 46 of the Resolution where the Board concluded that [...] failed to prove that compliance was impractical.
[brief] Fifth, the Court wrote: “Private Actors.  Did law enforcement elicit from the eyewitness whether he or she had spoken with anyone about the identification and, if so, what was discussed?”  Ibid.  The Court ordered:  “officers should instruct witnesses not to discuss the identification process with fellow witnesses or obtain information from other sources. ”  Id. at 271 (emphasis added)  Here, there is no indication officers warned the witnesses not to seek third-party feedback.
[brief] On August 22, 2023, [...] filed her Verified Complaint seeking specific performance of a “May 21, 2022 written agreement with her uncle, [...], wherein [...] agreed to transfer legal title to the Property in exchange for $6 million” and for declaratory judgment “regarding [[...]’s] equitable title to the Property and her right to have the legal title transferred to her upon the payment of --- 6  1T shall refer to the June 20, 2024 Transcript of Motion to Compel Arbitration.  2T shall refer to the September 22, 2023 Transcript of Motion on Plaintiff’s Order to Show Cause.  $6 million. ”  Da5, 17-20.  [...]’s Complaint contains a Certification of Rule 4:5-1, which includes a representation that “No other action or arbitration proceeding is presently contemplated. ”  Da21.  On the same day, Appellants filed a Verified Complaint in the Law Division captioned [...], et al. v. [...]-Elian, et al., [...] (the “Law Division Case”) alleging, amongst other counts, [...]’s breaches of the Operating Agreements of the Companies and her fiduciary obligations as manager of the Companies as well as civil RICO and conspiracy claims against all defendants in that case.
[brief] (Da6-29)  [...] subsequently denied [...]’s motion for reconsideration on May 8, 2020.  (Da30)  1  “1T” Refers to the April 4, 2019, motion to suppress transcript; “2T” Refers to the May 21, 2019, motion to suppress transcript; “3T” Refers to the September 23, 2019, suppression motion transcript; “4T” Refers to the March 2, 2021, Miranda hearing transcript; “5T”  Refers to the April 5, 2021, Miranda motion oral decision; “6T”  Refers to the March 15, 2022, trial transcript;  On March 2, 2021, a hearing was held before the Hon. [...], J.S.C., on [...]’s Miranda motion to suppress any and all evidence obtained following [...]’s arrest in the parking lot of his apartment complex in [...], on March 1, 2017, based upon the police violation of [...]’s Miranda rights.  On April 5, 2021, [...] issued an Order, suppressing [...]’s statements made to the police in the parking lot of his apartment complex and “inside Apartment B” at and immediately following his arrest at “approximately 3:00 P.M.” on March 1, 2017; as well as his “unrecorded statements” made to the police at police headquarters 11:00 P.M. on March 1, 2017.  However, she denied [...]’s motion with regard to “other statements” made to police officers on March 1, 2017.(Da31)²  On December 10, 2021, [...] denied [...]’s Motion for reconsideration, (Da32), having issued a Statement of Reasons on December 8, 2021.
[brief] Ibid.  Defendant also knew that his cell phone was wiretapped, and scolded [...] for calling him back on the wrong phone.  (23T:50-5 to 51-1, 83-20 to 84-9).  Indeed, a second phone number was used over 50 times on February 8, 2019, at the address in Manchester, New Jersey where defendant was staying prior to his arrest.  (20T:56-18 to 57-11).  After that recorded telephone conversation, police found defendant’s second phone, and tapped that as well, where defendant called [...]’ cousin, complaining that [...] shouldn’t have called him on the tapped line, and repeatedly asked [...]’ cousin to tell “her,”\(^6\) that defendant was keeping his mouth shut, and to pass that information to [...].  (23T:69-1 to 9, 73-16 to 23, 74-7 to 79-22, 114-2 to 119-2).  This information was corroborated when cell phone data showed defendant’s cell phone at or near [...]’ address in Pennsylvania between October 26 and 28, 2018, when [...] claimed to have given defendant the gun.  (20T:55-20 to 25).  [...] identified the gun used on the night of the murder as the same one he gave to defendant.
[brief] For an evidentiary hearing, the standard is even lower.  In addition, the judge ignored all the evidence submitted to her.  And finally, she completely discounted that, especially with so many reliability issues (show up, duration, opportunity to view, weapons focus, stress, virtually all systems variables, etc.), the jury’s understanding of how to evaluate the reliability of a “familiar” eyewitness identification was central to the case.  There is more than enough evidence in the record to show that counsel’s failure to consult with and obtain an expert like [...] contributed materially to [...]’s convictions.
[brief] By permitting fee-shifting in a legal malpractice case where causation and damage were never established in the underlying matrimonial case, more and more unscrupulous attorneys will be encouraged to abuse the legal process for their own personal gain and greed.  In the instant matter, the attorneys for the Plaintiff fabricated a non-existing malpractice case simply for their personal financial gains by repeatedly misrepresenting facts to various courts.  Plaintiff’s attorney finally admitted during the investigation before an Attorney Ethics investigator after the completion of the malpractice trial.  Now, the Court seeks to reward astronomical and excessive attorney fees to Plaintiff’s attorneys who have abused the legal process and committed fraud upon the court and who have not successfully proved actual damages sustained by the Plaintiff.  Where does the justice lie to award attorney fees of $1,311,832.94 to attorneys who had openly admitted to commit fraud upon the court at the expense of the innocent victim!
[brief] **STATEMENT OF FACTS**  On or about June 26, 1991, Plaintiff purchased the Property from [...] for $1,250,000.  Pa0065.  Prior to his purchase of the Property, Plaintiff obtained the 1991 Survey prepared by [...]  Pa0070.  The Smith Survey was consistent with the legal description of the Property contained in the 1991 Deed, which included the Strip as part of “Tract II”.  Pa0065.  The Plaintiff also obtained a title insurance policy for the Property.  Pa0071.  By deed, dated July 30, 1999, [...] purchased the adjacent Lot 3 from [...] for $1,900,000.  By deed, dated December 22, 2000, the [...] conveyed the adjacent Lot 3 to the Defendant for no consideration.  Pa0077.  This matter arises out of a dispute related to the ownership of the aforementioned Strip, which is approximately 6,262.80 square feet and ten feet wide at its widest point.
[directive] Attachments  (1)  Judgment of Conviction ([...]) (2)  Presentence Investigation Report ([...]) – first page only (3)  Juvenile Disposition Order ([...]) (4)  Municipal Court Sealing Order ([...]) (5)  Order for Judgment ([...])  cc: Chief Justice [...]  Special Assistants to the Administrative Director  Criminal Presiding Judges  [...], Clerk, Superior Court Family Presiding Judges  AOC Criminal, Family, Municipal Chiefs  Municipal Court Presiding Judges  Criminal Division Managers and Assistants  [...], Chief of Staff  Family Division Managers and Assistants  AOC Directors and Assistant Directors  Municipal Division Managers and Assistants  Attachment
[brief] 1T86  Q  And your theory that you said you had was that somebody else shot the gun and threw it, correct?  A Yes.  Q  All right.  So your theory is the same as the statement you gave after your arrest, is that correct?  A Yes.  Q  All right.  Cause you did give a statement after your arrest, right?  A Yes.  Q  And you stated you did not have a gun, is that right?  A Yes.  1T87
[brief] Cases  Albright v. Burns, 206 N.J. Super. 625, 632-33, 503 A.2d 386 (App.Div.1986).......  24 Bahrle v. Exxon Corp., 145 N.J. 144, 156 (1996)  ..................................................  15 Baldasarre v. Butler, 132 N.J. 278, 291 (1993)  ..........................................................  15  Carter Lincoln-Mercury v. EMAR Group, supra, 135 N.J. at 195-204, 638 A.2d 1288 .........................................................................................................................
[brief] 2.  Section 1:7-2 of the Revised Statutes is amended to read as follows:  1:7-2.  The Court, upon the presentation to it of a petition as provided by section 1:7-1 of this Title, shall inquire summarily into the 5 facts and circumstances alleged in the petition, and, for that purpose, to 6 order the petition to be filed by the clerk of the court and order witnesses 7 to be subpoenaed and sworn and their depositions taken, to appoint a time for 8 hearing the petition, and to order such notice to be given of the taking of dep- 9 ositions and the hearing of the petition by publication in newspapers or 10 otherwise as it deems reasonable and just.  [The final hearing shall be had 11 before the Chief Justice and at least three of the associate justices of the 12 court.]
[brief] AS THE COURT CONDUCTED AN EXTENSIVE EVIDENTIARY HEARING, THERE WAS NO NEED TO CONDUCT ORAL ARGUMENT PRIOR TO GRANTING SUMMARY JUDGMENT.  Plaintiff’s argument on this issue completely ignores the unique procedural history associated with this matter.  It is true that each party requested oral argument upon filing for summary judgment in March of 2022.  Upon receipt of the motions, the Hon. [...] declined to hear oral argument.  Judge Winkelstein held that as the motions largely concerned the issue of whether the opinions provided by plaintiff’s liability expert were admissible, an evidentiary hearing was required.  In so holding, the Court relied upon *Kemp v. State*, 174 N.J. 412 (2002).  Thereafter, the Hon. [...], on May 9, 2022, conducted a full-day evidentiary hearing during which the bases for expert [...]’s opinions were extensively explored.  The parties then submitted Findings of Facts and Conclusions of Law for Judge Pickering’s consideration.  Ultimately, on April 10, 2023, Judge Pickering issued an order dismissing plaintiff’s complaint as to each party.  With particular relevance to [...], Judge Pickering held that [...] failed to provide admissible expert opinions necessary to support a prima facie malpractice claim.  Given the trial court’s considered ruling, the need for oral argument was mooted.  Summary judgment is clearly warranted in the absence of expert opinion supporting the basic elements of plaintiff’s malpractice claim.  The hearing conducted by the trial court and the post-hearing papers submitted for the Court’s consideration afforded plaintiff with a substantially greater opportunity to support the asserted admissibility of [...]’s testimony than would have provided by way of oral argument on the filed summary judgment motions.  Accordingly, this matter is ripe for this Court’s consideration.  II.
[brief] Count IV of Plaintiff’s Second Amended Complaint is captioned “Establishment and Application of Unlawful Sick Leave Policy.  (Pa50).  Plaintiff claimed the [...] established General Order 19-16 relating to sick leave and has been applying same in an “arbitrary and capricious” manner” in “issuing violations” for excessive absenteeism. (Pa43-44 at ¶119-123).  No one Plaintiff member was identified, nor is such person’s sick leave record/dates, the reason(s) for same or a description of how General Order 19-16 has been applied to their circumstance.  (Pa50-Pa60).  Plaintiff alleged that the operation of General Order 19-16 has resulted in the arbitrary “fine” of a loss of compensatory days to unidentified alleged fire fighters.  (Pa53 at ¶129).  Plaintiff further claimed unidentified fire fighters had been “fined/penalized” with loss of compensatory days without just cause or due process in violation of N.J.S.A. 40A:14-19, and that same constituted “arbitrary and capricious action” by the [...].  (Pa53-54 at ¶130-133).  Plaintiff claimed employees are “not provided with notice or an opportunity to be heard” under General Order 19-16 and that violations have been “applied arbitrarily and capriciously. ” (Pa54-56 at ¶135-138, 143).  Plaintiff asserted that this constitutes an “impermissible penalty under the [LAD].” (Pa55-56 at ¶139, 142).  Plaintiff claimed that, “in many cases,” employees have utilized sick leave “protected under the LAD” and the [...] was “obligated to accommodate such employees. ” (Pa 48-49 at ¶140-141).  As in Count I, Plaintiff advanced a claim against the [...] in Count IV for failure to accommodate disability/disability discrimination but failed to identify any particular alleged member; the qualifying disability involved; their limitations and the severity and duration of same; the nature of the request for accommodation made, when and to whom; that such request was denied, by whom, when and the details of same.  (Pa58 at ¶149).
[brief] [Pa668 ([...] Deposition) at 234:24-25 and Pa. 669:1].  The only reason [...] went to the premises on March 16, 2017 was to have dinner at [...].  [Pa664 ([...] Deposition) at 143:14-16 and Pa665 at 148:21-25).  Plaintiffs concede that only the Court can interpret the meaning of the language of the lease between [...] and [...].
[brief] Feldman accepted, as precluding preemption, precisely the sort of “stop selling” claim that the United States Supreme Court later found preempted in Bartlett.  “[W]e find no basis for concluding that [defendant] was required to continue marketing [the drug] in [the] forms and packaging [at issue] – or indeed to continue marketing at all. ”  125 N.J. at 152.  See R.F. v. Abbott Laboratories, 162 N.J. 596, 629 (2000) (viewing Feldman as holding “that even if the drug manufacturer could not have provided a warning, it could have suspended production of the drug”).  Since Cir. 2010).  21  Abrogated on irrelevant grounds by McCarrell v. Hoffmann-La Roche, Inc., 227 N.J. 569 (2017) (choice of law).  Bartlett, the remove-from-the-market rationale Feldman employed to reject preemption is no longer viable.  To the contrary, defendants are “not required to cease acting altogether in order to avoid liability. ”  Bartlett, 570 U.S. at 488.  Plaintiff’s reliance on Feldman’s decades-old preemption argument, directly repudiated by the United States Supreme Court in Bartlett, only further demonstrates that her state-law demand for an anticipatory recall is preempted.  Where “[p]laintiffs’ state law claims would directly contradict the FDA’s requirements and interfere with the FDA’s objectives,” such claims under New Jersey law are preempted by reason of that conflict.  R.F., 162 N.J. at 627 (2000).  Here, the decision when, and how, to recall the defendant’s medication “was the FDA's decision; [and] we should not second guess it. ”  Id. 630.  IV.
[brief] Plaintiff did not challenge the tax sale foreclosure of her home, which began in 2017 and was completed in early 2018.  Instead, years later, she sought to collaterally attack that proceeding through this lawsuit based on a new law – *Tyler*.  But just as in *George*, a new interpretation of law does not grant rights to people whose cases were fully and finally adjudicated before that new law.  “New legal principles, even when applied retroactively, do not apply to cases already closed. ”  *George* at 751 (quoting *Hyde*, supra, 514 U.S. at 758).  If a party can simply file a new case that relates to the old one and avoid the foregoing principle, then it means nothing.  **D.
[brief] The above-quoted language used by [...] at Appellant’s sentencing hearing was not included in the version of N.J.S.A. 39:4-50(a)(1)(ii) in effect on the date of Appellant’s arrest, November 5, 2019.  Indeed, under the version of the statute in effect on that date, there is no reference at all to ignition interlock devices under N.J.S.A. 39:4-50(a)(1)(ii), let alone the fact that same is a mandatory part of the sentence for an individual found guilty under that subsection of the statute.  N.J.S.A. 39:4-50(a)(1)(ii) (Nov. 2019).  In fact, guidance released by the Appellate Division on December 4, 2019, specifically notes that changes to ignition interlock sentencing under N.J.S.A. 39:4-50 applies “only to defendants charged with a DWI . . . on or after December 1, 2019. ”  Administrative Directive #25-19, “Implementation of New DWI Law (L. 2019, c. 248) – Includes Expanded Use of Ignition Interlock Devices for First-Time Offenders (Dec. 4, 2019).  Because [...] erred by sentencing Appellant under the incorrect version of N.J.S.A. 39:4-50, this Court should remand this matter to the Law Division for re-sentencing in accordance with the version of the statute in effect on November 5, 2019.
[brief] N.J.S.A. 40:55D-38(a).  The MLUL also provides guidance regarding the discretionary contents of municipal ordinances related to subdivision and site plan review and approval.  See N.J.S.A. 40:55D-39; N.J.S.A. 40:55D-40.  Consistent with the MLUL, [...] has adopted ordinances for these purposes.
[brief] By contrast, the new administration abandoned the plan and never created a new one to provide a ______________________ site portion is false.  Pb5-6.  But the Borough cites from meeting minutes from December 2016—a year before the events in the certification—when in late 2017, early 2018, [...] certifies he and the council instructed [...] to purchase Block 610.  83a ¶¶ 11-12.  That the council may have been unsure of its decision in 2016 does not mean it failed to make a decision in 2018.  realistic opportunity to fulfill its court-ordered affordable housing obligation set forth in the judgment.  That is a violation for which Mount Laurel II provides a remedy.
[brief] ”  Silva, 267 N.J. Super. at 556.  Similarly, the Special Master noted that certain broad categories of facts were potentially relevant to both RICO and non-RICO claims, but did not engage in any granular analysis of what Plaintiffs’ counsel actually did prior to September 2009 (for [...]) or afterwards (for both Plaintiffs) so as to determine whether such work was in fact “reasonably devoted” or “reasonably necessary” to the RICO claims.  (39146a-50a).  Again, as [...]’s counsel announced to the Special Master, “I brought the RICO claim to this action. ”  256T at 87:2-4.  [...] argues that the [...]’ position improperly requires an analysis of time entries or specific projects.  But applying the remand directive of this Court requires evaluating whether specific work was, in fact, “reasonably devoted” to those claims.
[brief] So, the fact that even though [...] still sits serving the 30-year sentence on the homicide, even though there’s no real reason for [...] to think that [...] at this point in time is going to have his conviction vacated, is going to get out of jail, is going to stop serving the 30-year sentence, his co-defendant acts on that threat to make sure that [...] knows you better stay the course and you better some reasons already with respect to how that went about and why.  He has made it in his own pro se papers and so I think that that is definitely something that is for the Court to consider.  And then in terms of -- I would also say with respect to being misinformed or having a different understanding of what a material element is of plea negotiation, you know, it was his reliance on conversations that he had with his attorney.
[brief] Although the trial court “fell on its sword” and accepted responsibility for not reading a request for the time-unit charge into Plaintiff’s request to charge “Model Civil Jury Charge 8.11G(i): Life Expectancy,” it was not the Court’s or defense counsel’s responsibility to do so.  The Rule requires that the party intending to make the argument request the charge prior to summations.  No such request was made.  To the extent that any party should have been disadvantaged as a result of the failure to include that charge, it should have been Plaintiff and not the Defendants.  Precluding Plaintiff’s counsel from making the argument would not have had any impact upon the evidence relied on to prove his case and would not have prevented him from responding to or commenting upon any aspect of the defense’s arguments.  By contrast, the defense was severely disadvantaged by being deprived of the opportunity to address the argument which included Plaintiff’s counsel’s reference to its sanction by the same court rules raised by defense counsel in closing.  In essence, plaintiff’s counsel advised the jury that the argument was permitted by the Rules and was one of the few ways the jury could “contextualize” the consequences of Plaintiff’s permanent injury.  The Defendants’ silence on the subject and failure to offer any alternative means by which to “contextualize” Plaintiff’s claims had the clear capacity to be seen as a tacit acceptance of Plaintiff’s argument, practically guaranteeing that the jury would use it in calculating non-economic damages.  Thus, Plaintiff’s presentation of the time-unit argument “unchecked” by Defendants’ counter-argument unduly prejudiced the defense, produced a miscarriage of justice and warrants reversal.