ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] I.  **Legal Standard on Appeal.  (not raised below)**  Appellate review of a motion to dismiss pursuant to Rule 4:6-2(e) is reviewed de novo using the same standard as is used by the trial court below.  *Wreden v. Twp. of Lafayette*, 436 N.J. Super. 117, 124 (App. Div. 2014).  When considering a motion to dismiss, the complaint must be liberally reviewed to determine if it states a “‘fundament of a cause of action. ’”  *Mack-Cali Realty Corp. v. State*, 250 N.J. 550, 553 (2022).  In doing so, the Court may consider “‘the facts alleged on the face of the complaint…’”  *Ibid.*  The Court may also consider “documents specifically referenced in the complaint…” and “matters of public record…”  *Myska v. N.J. Mfrs. Ins. Co.*, 440 N.J. Super. 458, 482 (App. Div. 2015).  When undisputed facts show that there is a statute of limitations defense, such a defense is “akin to failure to state a claim” and can be raised by way of Motion to Dismiss pursuant to Rule 4:6-2(e).  CKC Condo. Ass'n, Inc. v. Summit Bank, 335 N.J. Super. 385, 387 n.1 (App. Div. 2000).  Review of requests to enlarge the time to file an action in lieu of prerogative writ pursuant to Rule 4:69-6(c) are based on an abuse of discretion standard.  Point Pleasant Borough PBA Local No. 158 v. Borough of Point Pleasant, 412 N.J. Super. 328, 334 (App. Div. 2010).  This is because the decision as to whether to enlarge the time under Rule 4:69-6(c) lies within a trial court’s discretion.  Hopewell Valley Citizens' Grp., Inc. v. Berwind Prop. Grp. Dev. Co., L.P., 204 N.J. 569, 578 (2011).
[brief] Yet, the facts in the matter before this Court provide an even stronger argument for deference than in Ferraro.  In Ferraro, the project was not yet approved by [...] when the applicant was denied a use variance by [...].  See Ferraro v. Zoning Bd. of Adjustment of Twp. of [...], 228 N.J. Super. 33, 39 (App. Div. 1988), rev’d, Ferraro v. Zoning Bd. of Adjustment, 119 N.J. 61 (1990).  Here, Plaintiff had already received preliminary site plan approval from [...] when it was denied the use variance by Defendant.  Ja085-Ja095.  Additionally, in Ferraro, the proposed use as a car wash was permitted in [...], but not in [...].
[brief] “[I]t has always been held that the right to bring an action in the courts of this state is possessed by the injured person alone, unless the injured person assigns his [or her] right to someone else which cannot be done before judgment when the action sounds in tort. ”  Cherilus, 435 N.J. Super. at 178 (quoting *U.S. Cas. Co. v. Hyrne*, 117 N.J.L. 547, 552 (E. & A. 1937)).  The assignment of tort claims has uniformly been deemed invalid by courts applying New Jersey law.  Alcman Servs. Corp. v. Bullock, 925 F. Supp. 252, 258 (D.N.J. 1996) (finding legal malpractice claim a tort action that could not be assigned prior to judgment under New Jersey law); Conopco, Inc. v. McCreadie, 826 F. Supp. 855, 867 (D.N.J. 1993) (finding that professional malpractice claims are choses in action arising out of tort and are therefore not assignable prior to judgment under New Jersey law).
[brief] \textsuperscript{4}  The open space proposed in the Amended Redevelopment Plan mitigates the higher density permitted on the other half of the tract.  The two proposals represent different choices from a planning perspective.  Plaintiffs’ final argument, that if Ordinance 22-1516 is allowed to stand, then any ordinance increasing open space must be deemed valid, does not merit serious consideration.  Each ordinance must be evaluated based on each municipality’s master plan and the particular planning concerns specific to that municipality.  Ordinance 22-1516 is not valid simply because it provides for more open space, and the Borough is not asking the Court to make such an unnuanced finding.
[brief] Plaintiff filed this legal malpractice matter on July 25, 2016, against [...], [...], [...], and [...].  (Pa0001).  On October 19, 2017, Plaintiff assigned his interests in the proceeds of Focazio v. [...] legal malpractice action to [...], as part of a settlement of a lawsuit between Tsairis and [...].  (Pa0339).  The Focazio v. [...] lawsuit was dismissed by the Trial court but on June 7, 2021, the Appellate Division reversed and remanded for additional consideration by the Trial Court of substantive rulings that are not at issue on this appeal.  (The Trial Judge who reversed in the earlier matter is not the same Trial Judge that entered the order of dismissal that resulted in this appeal) (Pa0059).  On March 8, 2022, Plaintiff assigned his interest to the proceeds of the Focazio v. [...] legal malpractice action to his former lawyer, [...], who represented him in the litigation between Focazio and Tsairis.  (Pa0350).  Both of the assignments were not produced to Defendant in discovery but rather were served in December 2022, shortly before the February 2023, Trial despite being entered into in 2017 and March 2022 respectively.  (Pa0335).  On February 21, 2023, co-defendant Nagel Rice filed a motion to dismiss based upon newly discovered information that Focazio assigned his interest in the legal malpractice action to third parties.  Defendant [...] joined and argued the motion orally before the Trial Court.  (Pa0335).  On February 23, 2023, the Trial Court, the Honorable [...] dismissed the case for reasons set forth on the Record.  (T1).  On March 24, 2023 the Plaintiff filed an initial Notice of Appeal.  (Pa0356).  LEGAL ARGUMENT I.
[brief] ”  Pb20.  For this assertion, [...] sites nothing, and does not dispute the substantial evidence of bad faith on the record.  64a-85a.  Regardless, on issues of “the municipality’s fair share of the regional need and defendant's proof of its satisfaction.  Good or bad faith, at least on this issue, will be irrelevant. ”  Mount Laurel II, 92 N.J. at 222.  Here, there is no dispute that the municipality has failed to comply with the judgment: it is the remedy, or total absence of one, imposed by the trial court to which [...] objects.
[brief] CUMULATIVE ERROR DEPRIVED THE DEFENDANT DUE PROCESS OF LAW AND A FAIR TRAIL.  U.S. CONST. AMENDS V, VI, XIV; N.J. CONST. (1947)  ART I, PARS. 1, 9, 10.  It is argue that the errors presented above, which independently may have been harmless, but when viewed cumulatively, deprived the petitioner of a fair trial and due process.  As the New Jersey Supreme Court has recognized, even when "an individual error or series of errors does not rise to reversible error, when considered in combination, their cumulative effect can cast sufficient doubt on a verdict to require reversal," State v. Jenewicz, 193 N.J. 440, 474 (2008).
[brief] See Est. of Noyes v. Morano, 2019 WL 149521, at *4, n. 3 (App. Div. Jan 8, 2019) (“we are not convinced that the Court in Atalese limited its holding only to consumer transactions,” acknowledging that “our courts have also applied its holding to other contracts and statutory causes of action”); Estate of Watson v. Piddington, 2020 WL 2710168 (App. Div. May 26, 2020) (in a dispute between members of an LLC, the Appellate Division upheld the trial court’s determination that the arbitration provision was unenforceable since “nowhere in the agreements was there a statement that the right to sue was being waived”).  The Appellate Division has recently clarified the applicability of Atalese in [...] v. [...], 474 N.J. Super. 498 (App. Div. 2023) (“Passaic”), by ruling that the “express waiver of the right to seek relief in a court of law to the degree required by Atalese is unnecessary when parties to a commercial contract are sophisticated and possess comparatively equal bargaining power.
[brief] Additional remediation was necessary to address the impacted soil, and until that remediation is complete, the public health continues to be at risk from that contamination.  The Borough does not allege that the tanks are actively leaking.  It is the prior unremediated leaks that are posing the health and safety concerns.  The Borough was free to reject the LSRP’s testimony.  See Kinderkamack Rd. Assocs., LLC v. Mayor & Council of the [...], 421 N.J. Super. 8, 21-22 (App. Div. 2011) (a local governing body is free to reject expert opinion because to hold otherwise would divest the governing body of discretion).
[brief] (Da547).  Significantly, the plaintiffs’ motion to amend to include the alleged Administrative Code Regulations came ten (10) days after [...]’s second motion for summary judgment arguing that the plaintiffs’ claims of oral misrepresentations were barred by the Parol Evidence Rule.  On July 8, 2021, the parties appeared for oral argument on plaintiffs’ motion to amend and the Court denied that motion indicating that the Court believed the proposed amended complaint attempted to introduce new causes of action.  (Da549).  Two months after that, on August 31, 2021, the plaintiffs cross-moved for summary judgment on the same Administrative Code violations rejected by the trial court when denying their motion to amend.
[brief] (Da751)  After the Appellate Court Remand, [...] filed a Motion requesting [...] to recuse himself and the Remand to proceed to a new judge.  (Da764 to 814)  The basis was that [...] had incorrectly made a summary Ruling that an easement existed on inadequate facts and had thereafter heard extended testimony by witnesses for the [...] and [...] on the issues of parking use and/or possible expiration of any parking use on the School property.  [...] then entered a Final Opinion/Order on June 5, 2017 based upon firm credibility determinations in favor of [...] witnesses, and also discounted or found non-credible the [...] witnesses in confirming his earlier ruling that the 1963 Agreement effectuated an easement, and that the “easement” had not expired or been waived or abandoned.
[brief] ”  Da111.  Finally, Section 8.7(d) of the Redevelopment Agreement provides:  In the event that [...] does not agree to insure the Authority's bonds or other obligations expected to be issued to finance the Authority Garage, the parties agree to negotiate other financial alternatives in good faith for a period of 90 days after [...]’s determination.  Da112.  Simply put, the decision to construct the Authority Garage is not in the sole discretion of the Authority.  The trial court clearly recognized the requirement, set forth in Section 8.7(a), that [...], now known as [...], must consent to the Authority’s construction of the Authority Garage.
[directive] 2C:29-2b 본인, 은(는)  위의  제목에 표시된 사유(들)에 근거하여  에 의한 도피죄로  N.J.S.A.  유죄 판결을 받은 피고인으로서, 위의 법을 위반하여 면허가 정지된 기간 동안 운전한 처벌에 관한 서면 통지를 받았음을 확인합니다.  또한 본인은 이런 결과에 대해 판사가 공개  법정에서 구두로 알려 주는 것을 들었습니다.  I, , the defendant in the above-entitled cause(s) having been convicted of Eluding pursuant to 2C:29-2b, hereby N.J.S.A. acknowledge receipt of written notice of the penalties for driving while suspended for a violation of said statute.
[directive] Police Department Policies Governing Deployment and Use of BWCs and Recordings  3.1  Promulgation of Police Department Policies and Procedures.  To ensure an efficient and orderly transition to universal BWC implementation, every law enforcement agency shall promulgate and enforce a policy, standing operating procedure, directive, or order, in a form as may be appropriate given the customs and practices of the agency, which shall comply with the policies, standards, and requirements of this Policy.
[directive] The agency chief executive officer shall designate a supervising firearms instructor for each qualification session conducted.  Firearms Instructor.  Proper instructor-participant ratios should be maintained during qualification sessions.  (See Section 7.  Supervising/Firearms Instructor Responsibilities).  Ammunition.  Each participant shall be provided with service or equivalent loads for qualification with agency or department issued firearms.  Firearms.  Qualification shall be conducted with a handgun approved by the 9-14 Revised (5/03)  Semi-Annual Firearms Qualification and Requalification Standards participant's agency.  Shotgun qualification shall be conducted with the agency approved shotgun.  Before any firearm is used, the supervising firearms instructor (or designee) shall inspect and approve the firearm.  Approval of a firearm shall be based on department or agency standards.  The process of approving the service handgun, off-duty handgun or shotgun shall be governed by the agency or department policy.  A copy of records of approval shall be kept on file by the agency or department.  Any off-duty handgun determined to be similar to the agency's service handgun and, therefore, not fired for qualification must be presented to the supervising firearms instructor (or designee) for inspection during each of the agency's qualification periods.
[brief] In Doe v. [...], No. 216-2022-cv-00117, at *7 (N.H. Super. Ct. Sept. 5, 2022), argued, No. 2022-0537 (N. H. Apr. 27, 2023) (Aa66), the court held that a policy prohibiting school personnel from disclosing information that may reveal a student’s transgender status or gender-nonconforming presentation without the student’s consent did not infringe on parents’ fundamental rights:  [T]he policy does not encourage or prevent students from sharing information with their parents.  Moreover, the Policy does not prevent parents from observing their children’s behavior, moods, and activities; talking to their children; providing religious or other education to their children; choosing where their children live and go to school; obtaining medical care and counseling for their children; monitoring their children’s communications on social media; choosing with whom their children may socialize; and deciding what their children may do in their free time.  In short, the Policy places no limits on the plaintiff’s ability to parent her child as she sees fit.  See also Parents Defending Educ. v. Olentangy Loc. Sch. Dist. Bd. of Educ., No. 2:23-cv-01595, 2023 WL 4848509, at *18–19 (S.D. Ohio July 28, 2023) (no due process violation where “[t]here is nothing in the Policies that suggests that they prohibit parents from discussing gender identity issues with their children, or reach in some other way into the privacy of families’ homes”), appeal docketed, No. 23-3630 (6th Cir. July 31, 2023) (Aa99–101); John and Jane Parents 1 v. Montgomery Cnty. Bd. of Educ., 622 F. Supp. 3d 118, 134 (D. Md. 2022) (no “coercive interference with the parent-child relationship” in school guidelines that prohibit disclosure of student’s gender identity over student’s objection), vacated and remanded for lack of standing, 78 F.4th 622 (4th Cir. 2023), petition for cert. docketed, No. 23-601 (U.S. Dec. 5, 2023); Regino v. Staley, No. 2:23-cv-00032-JAM-DMC, 2023 WL 4464845, at *3 (E.D. Cal. July 11, 2023) (declining to expand parental substantive due process rights to require affirmative notice of child’s transgender identity and parental consent to use child’s requested name and pronouns), appeal docketed, No. 23-16031 (9th Cir. July 25, 2023) (Middletown Ra65–66).7
[brief] As [...] astutely noted:  “Furthermore, the fact that Lot 22 is enclosed by a chain link fence does not support a claim of adverse possession as there is no evidence that [...] placed the fence there.  Thus, it is irrelevant to its assertion that it has engaged in hostile possession of the property. ”  Pa175.  In sum, [...] cannot prove any of the five elements of its claim for adverse possession and its claim for adverse possession fails.
[brief] ”  Pa259.  Counsel clarified that “[d]espite comments that were made this is not an ordinance for unlimited density,” since the “bulk and building volumes and square footage calculations’ would limit the number of units, and that “[t]he actual number of units proposed is 109 units. ”  Ibid.  Counsel further clarified that “[t]he building is essentially the same height as surrounding units” with a deviation of five feet.  Ibid.  Ordinance No. 26-20 was passed upon first reading at the November 24, 2020 meeting.
[brief] For the above stated reasons, Respondent [...] respectfully requests that this Court enter an affirming the trial court’s March 1, 2024 Order dismissing the underlying case with prejudice, along with such other relief as this Court deems necessary, just and proper.  Dated: July 24, 2024  Resubmitted: July 25, 2024  By: /s/ [...]  [...]  Counsel for [...] Health Plans of New Jersey, Inc.
[brief] IT WAS MANIFEST ERROR AND SIGNIFICANTLY PREJUDICIAL FOR THE MUNICIPAL COURT AND LAW DIVISION TRIAL COURT TO IMPOSE A WRONGFUL SENTENCE.  FOLLOWING MY NOVEMBER 14,2021  CITATION FOR AN ALLEGED VIOLATION  I APPELLANT  [...] WAS ENTITLED TO A FAIR TRIAL TO DISPUTE IT.  HOWEVER, THE MUNICIPAL COURT AND LAW DIVISION TRIAL COURTS DENIED MY CONSTITUTIONAL RIGHTS INCLUDING, BUT NOT LIMITED TO, RECEIVING COMPLETE DISCOVERY, WITNESSES AND TO BE REPRESENTED BY AN ATTORNEY.
[directive] Order #2 - Order Committing Defendant for Purposes of Attachment 3  3.  a Competency Evaluation Pursuant to N.J.S.A. 2C:4-5 of of  This order commits a defendant to the custody the Commissioner the Department of of Health for the purposes a competency evaluation as described N.J.S.A. 2C:4-5.  This in form of order to be used instances where a qualified psychiatrist or licensed in is psychologist has already examined the defendant pursuant screening Orders #1A and to B but was unable to make a determination as to the defendant's competency.  #1  Order #3 - Order Committing a Defendant Who Is Attachment 4  4.  Incompetent to Stand Trial and Dangerous to Self, Others and/or Property for Further Evaluation after 90 Days of  This order is to be used committing a defendant to the custody the Commissioner of in the Department of Health when the defendant has been found by the court to be incompetent of and dangerous to self, others, or property a result mental illness.  See N.J.S.A. 2C:4- as The court shall hold a hearing regarding the defendant's condition three months after 6. the defendant has been committed.
[brief] This was not merely a “procedural” issue.  It was the denial of a right to counsel in a final hearing.  It required a reason in order to be justified.  See, Bisnoff v. King, 154 F. Supp. 2d 630, 637 (S.D.N.Y 2001), “In evaluating an arbitrator's decision to deny a postponement, courts consider whether there existed a reasonable basis for the arbitrator's decision and whether the denial created a "fundamentally unfair" proceeding.
[brief] The court by not recognizing and curing this error once challenged (Pa1 – Pa2: Pa133) doubled down by articulating “NONE” of these following elements were PRESENT in this case” (Pa2) but “undeniably” the existent facts of this case contradict the court’s statements : 1) “the court has based its decision upon palpably incorrect basis, or 2) the court did not consider or failed to appreciate the significance of probative competent evidence (the court ignored the evidence presented as established in this appeal).  The standard for reconsideration requires proof of error, mistake, missed case law or statute, which is NOT present in this case” (Pa1 -Pa2).  As previously documented, missed case law “IS” in fact present and cited as being erred by the court (Pa17 – Pa18) for the court misapplied the treatment of laches citing Clarke v. Clarke, 359 N.J. Super. 562, 570 (App. Div. 2003) (citing L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002) as alleged legal justification to deny claim of having this Defendant’s Procedural Due Process Rights violated 34- years ago.
[brief] STATEMENT OF FACTS ....................................................3  STANDARD OF REVIEW ..................................................12  LEGAL ARGUMENT .......................................................15  POINT I  THE ARBITRATION AWARD MUST BE VACATED BECAUSE IT WAS PROCURED BY UNDUE MEANS AND IS NOT REASONABLY DEBATABLE.  (Raised Below: T6-25)1  ..............................................15  POINT II  THE ARBITRATION AWARD MUST BE VACATED BECAUSE THE ARBITRATOR EXCEEDED OR SO IMPERFECTLY EXECUTED HIS POWERS THAT A MUTUAL, FINAL, AND DEFINITE AWARD UPON THE SUBJECT MATTER SUBMITTED WAS NOT MADE.  (Raised Below: T7-18, 2T16-2)  ......................................25  CONCLUSION .................................................................33
[brief] On March 15, 2019, the [...] filed Neptune Township Municipal Court Complaints against plaintiff-appellant [...], to wit: - Complaint [...] charging a November 26, 2018 violation of Ordinance Section 1102 by constructing walkways on the Property without obtaining zoning approval.  - Complaint [...] charging a November 26, 2018 violation of Ordinance Section 413.02 by constructing structures in the Historic Flared Avenue Open Space Area without obtaining Zoning approval.  - Complaint [...] charging a November 26, 2018 violation of Ordinance Section 900 by failing to obtain a Certificate of Appropriateness (CofA) from the Historic Preservation Commission (HPC).  On or about March 5, 2020, the parties, upon information and belief (there is no Municipal Order/Judgment or Settlement on the record below) allegedly consented to dismiss Complaint [...] and [...].
[directive] Authorization Process for Investigative Assistance or Dissemination of 3.  Investigative Information.  a.  Before seeking investigative assistance or disseminating investigative information, the Independent Investigator shall conduct a conflict check and take any necessary remedial actions, using the same procedures required of the OPIA Director in Sections II.C.2 and II.C.3 above.  b.  After addressing any actual, potential, or perceived conflicts, the Independent Investigator may, for good and sufficient cause, authorize the use of investigative assistance or the dissemination of investigative information as described in Sections II.D.1 and II.D.2 above.  If such authorization is granted, then the Independent Investigator shall record the names and titles of any personnel who will provide investigative assistance or will receive investigative information, and provide a record of such information to OPIA.  c.  In any case involving any of the circumstances described above in Section II.C.1.A (use of force resulting death or likely death; death of civilian during law enforcement encounter; death of civilian while in custody), the Independent Investigator may not obtain investigative assistance from the personnel described above in Section II.D.1, unless those personnel are designated as Special Deputy Attorneys General or Special State Investigators and are operating under the direct supervision of the Independent Investigator.  d.  To facilitate the prompt designation of Special Deputy Attorneys General or Special State Investigators, the OPIA Director may issue standing orders, procedures, and standardized forms for use for by local, county, state, or federal law enforcement agencies.  Public Statements Regarding Law Enforcement Incidents.
[brief] ”  *Lemelledo*, 150 N.J. at 262 n.1.  When the NJCLA was combined with the New Jersey Residential Mortgage Lending Act (“NJRMLA”), N.J.S.A. 17:11C-51 to -89, under the umbrella of the Licensed Lenders Act (“NJLLA”), the consumer-lending based provisions formerly known as the NJCLA became known as the “Consumer Finance Licensing Act.