ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] THE TRIAL COURT CORRECTLY FOUND JACOBS DID NOT HAVE A CONTRACTUAL DUTY TO INSPECT THE GARDEN STATE PARKWAY FOR PRE-EXISTING CONDITIONS  Plaintiffs argue that [...] was contractually obligated to inspect the entire road surface for pre-existing conditions.  They are wrong.  As explained by the trial court, there is no evidence of this contractual obligation.  (May 24, 2023 Opinion of the Court at *42).
[brief] Accordingly, “plaintiffs in toxic-tort litigation, despite strong and indeed compelling indicators that they have been tortiously harmed by toxic exposure, may never recover if required to await general acceptance by the scientific community of a reasonable, but as yet not certain, theory of causation. ”  *Rubanick v. Witco Chem. Corp.*, 125 N.J. at 434.  “We agree with the reasoning and conclusion of the Appellate Division, and hold that a plaintiff in an occupational-exposure, toxic-tort case may demonstrate medical causation by establishing: (1) factual proof of the plaintiff’s frequent, regular and proximate exposure to a defendant’s products; and (2) medical and/or scientific proof of a nexus between the exposure and the plaintiff’s condition. ”  *James v. Bessemer Processing Co.*, 155 N.J. 279, 304 (1998).  [...]’s proofs in the underlying case and in this case met both of these factors.
[brief] It is also troubling and of note that, when confronted at the local level on the question of the cause of the delays, [...] testified:  I guess there was a number of reasons.  We were trying to finalize the previous IA and that took time to try to get the -- there was going to be another hearing on that, that IA, so it was hard to nail down a hearing date so it went on for a while.  So, at that point, my Chief said, listen, you got to deal with one at a time, so just hang tight on this investigation and deal with the one at hand that's already completed.  (4T27:7-25).  However, during supplementation of the record, [...] changed his response to the inquiry and instead testified that the reason for the delay was [...]’s counsel.  (13T99:4).  Specifically, [...] testified:  So is it your reason that it took you almost a year to interview Don [...] because I refused to sit down with you?  A.  It was extremely hard to get a meeting with you and us on the same – at the same time, and I believe there was a lot of times it was either postponed, you wouldn’t get a hold of me or I couldn’t get a hold of you.  I do know that there was an email sent to me, it was July of possibly 2018, if my memory serves me correctly, that you weren’t even sure if you had another IA involving Don [...].  And I believe that’s in the record as well.  (3T99:4-16).  Whether it be a fabrication, falsehood, inaccuracy, or misrepresentation, [...]'s newfound explanation fails to absolve [...] from its responsibility under N.J.S.A. 40A:14-147, the New Jersey Attorney General's IA Guidelines, and Aristizibal.  The letter from the [...] designating the matter as administrative, not criminal, was sent on December 29, 2017, but is stamped received January 8, 2018 by [...].  Accordingly, the latest date which began the forty-five (45) day clock under N.J.S.A. 40A:14-147, the New Jersey Attorney General's IA Guidelines, and Aristizibal was January 8, 2018.  [...] was not even interviewed until November 7, 2018, which is 303 days after the Prosecutor's Office designated the matter administrative in nature.  [...] was not charged until March 27, 2019, which is 443 days, almost 400 days more than N.J.S.A. 40A:14-147, the New Jersey Attorney General's IA Guidelines, and Aristizibal permit.  Even attributing some delay to scheduling issues, as [...] said during the supplementation of the record no documents in the record can attribute the entire 443 days of sloth and negligence to [...].  Accordingly, [...] was prejudiced by these unlawful and impermissible delays, the statute and Guidelines have been violated, and the remedy the law requires is dismissal of the charges.  Therefore, the charges must be dismissed, and the penalty of removal must be reversed.
[brief] Finally, defendant contends that trial counsel was ineffective for failing to present a meritorious argument.  Specifically, counsel failed to consolidate the Somerset and Middlesex County matters so that he could have received a favorable plea deal.  Defendant’s contentions are belied by the record.  Trial counsel provided adequate and effective representation and defendant cannot establish otherwise.  When an ineffective assistance of counsel claim is based on the failure to raise an argument or failure to file a motion, a defendant must establish that his claim is meritorious.  *State v. Goodwin*, 173 N.J. 583, 597 (2002); see also, *State v. O’Neal*, 190 N.J. 601, 619 (2008) (holding “[i]t is not ineffective assistance of counsel for defense counsel not to file a meritless motion”); *State v. Worlock*, 117 N.J. 596, 625 (1990) (“The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel”); *State v. Fisher*, 156 N.J. 494, 501 (1998) (citing *Kimmelman v. Morrison*, 477 U.S. 365, 375 (1986)).
[brief] As the [...]’ expert admitted, many of the items would be required simply to get a certificate of occupancy from the Township:  Q: Do you need, don’t you need, you need a bathroom, the restaurant needed a bathroom to get a certificate of occupancy, correct?  A  Correct. ”  5T90:11-14.  “Q: Okay.  To get a certificate of occupancy you needed to provide electricity and heating to the restaurant, correct?  A: Correct. ”  5T91:11-14.  [...] testified that he is not qualified to make a conclusion as to the enhancement value that the 516 items identified in his report brought to the Property as he is not a real estate appraiser:
[brief] These include consideration of the particular contractual provision, an overview of all the terms, the circumstances leading up to the formation of the contract, custom, usage, and the interpretation placed on the disputed provision by the parties’ conduct. ”).  [...] accordingly falls far, far short of establishing its heavy burden that the Arbitrator’s interpretation of the PTA, and the parties’ rights and obligations thereunder, was not “reasonably debatable. ”  *N.J. Transit Bus*, 187 N.J. at 548 (“So long as the arbitrator’s interpretation of the contractual language is ‘reasonably debatable,’ a reviewing court is duty-bound to enforce it. ”); see also Perini, 129 N.J. at 542 (defining private-contract arbitration “errors of law” as those “so egregious that one need only look at the cover page, at the award, to know that a horrible mistake had been made”).
[brief] The Commission erred when, instead of reviewing the returned Certification and Appellant’s Notices of Appeal and ordering the appointment of Appellant as required by N.J.A.C. 4A:5-2.2(c), it instead ordered that Appellant’s name be removed from the List, even though the Respondent [...] did not request removal of the disabled veteran’s name.  Appellant’s promotional appointment to Sheriff Lieutenant was required upon the Respondent [...] returning the completed Certification because the Respondent [...] requested to bypass her, not to remove her name.  Instead of ordering Appellant’s appointment by operation of law pursuant to N.J.A.C. 4A:5-2.2(c), the Respondent Commission’s DARA issued a March 8, 2023 letter stating “... in response to the appellant’s appeal, it is requested that the appointing authority submit the reason(s) why the same ranked eligible(s) was selected instead of the appellant,” and further stating “[t]he appointing authority may also submit any argument in response to the appeal at that time.
[brief] A.  **The $2,000,000 Payment Was Made In Return for Permitting Increased Density**  1.  **The Original 1996 Redevelopment Plan and Design Guideline  6**  The 1996 Redevelopment Plan (Pa135 to Pa170) contained a number of provisions designed to limit the bulk of buildings to be erected within the redevelopment area.  (Pa144 to Pa145).  As set forth in Ordinance § 345-84C, “density of development is a major factor in this plan.  It is reflected in building bulk and height . . . requirements. ” (Pa978).  According to that plan, the property of [...] along with others in the redevelopment area, were subject to Design Guidelines Handbooks 1 and 6 adopted by the City Council (the “Design Guidelines”).  (Pa980; Pa172 to Pa180).  The Design Guidelines were described as the “standards governing redevelopment in the City of Long Branch. ”  Ordinance § 345-101B.  (Pa980).  --- \(^1\)“1T” refers to the transcript of the oral argument held on December 16, 2022.  “2T” refers to the transcript of the deposition of [...] dated May 2, 2022.  “3T” refers to the transcript of the deposition of [...] dated July 21, 2022.  Design Guideline Handbook 6 sets forth the land use and design requirements in the Beach Front South Sector, the sector at issue in this matter, (Pa172 to Pa180), and this document became the initial Redevelopment Plan.  (Pa174).  That Design Guideline stated that its objective was to “reinforce the existing mid-rise residential pattern of 4-8 story structures that maximize views of the Atlantic Ocean. ” (Pa175).  It required that all new construction “be fully compliant with the Beachfront South Design Guidelines Handbook 6. ”  In pertinent part, it provided for a: a. Maximum density of 30 dwelling units per acre; b. Minimum distance between buildings of 40 feet; c. Maximum building coverage of 35% of the tract area which could be increased to 50% upon satisfaction of certain conditions; and d. Maximum building height of 80 feet.  (Pa176 to Pa178).  Plaintiff developed its property under this guideline.  2.  The 2020 Redevelopment Plan Amendment  In 2020, the City amended the 1996 Redevelopment Plan.
[brief] --- \(^1\)  Defendants improperly present purported \textit{N.J.R.E. 408} settlement communications with Plaintiffs (Db22), without citing to the record, regarding Defendants failure to comply with the 8/28/20 final order (8a) after this Court's affirmance on 5/18/22.  Plaintiffs object to Defendants inclusion of said unsupported communications which have no effect on the fact Defendants refused to comply with the final affirmed order until Plaintiffs' enforced it.  As set forth in previous arguments, Plaintiffs are also entitled to attorney’s fees associated with motions brought against the Boards’ violations of litigant’s rights, again for failure to comply with the 8/28/20 Final Order after it was affirmed on 5/18/22.  Defendants argument that Plaintiffs’ motion practice was “completely avoidable” and “solely served to unnecessarily protract this case” (Db-21) is an attempt to make a mockery of Plaintiffs’ legitimate exercise in enforcing litigant’s rights after the Board had failed to comply with [...]’s 8/28/20 Order after two years.
[brief] The arbitrator measured the employee’s conduct against the standard of “just cause” for dismissal and found “just cause” to exist.  Despite the fact that the contract provided for no more, the arbitrator went a significant step further by requiring [...] to engage in progressive discipline of its employees as a prerequisite to discharge.  In so doing, the arbitrator exceeded his authority by adding a new term to the contract.  [Id. at 397 (emphasis added). ]
[brief] (Pa16).  [...] argued that he did not receive the postcard notice from the Division, so the Board should relax the statutory deadline for filing.  (Pa19-20).  At its meeting on July 25, 2023, the Board considered [...]’s arguments, found that there were no material issues of fact in dispute, and therefore directed the Board Secretary to draft findings of fact and conclusions of law for its review and approval at its next meeting.  (Pa9).  The Board issued its Final Administrative Decision on September 27, 2023.  (Pa9).
[directive] The proper exercise of discretion in such matters cannot be codified.  5.1.13  Even if the complainant is satisfied with the informal resolution, the process should be recorded on an internal affairs report form.  Regardless of the means of resolution, the integrity of the internal affairs process, particularly the receipt of complaints, demands that 21 INTERNAL AFFAIRS POLICY & PROCEDURES | August 2020 complaints and inquiries from any member of the public be uniformly documented for future reference and tracking.  The form should indicate that the matter was resolved to the satisfaction of the complainant and sent to internal affairs for review and filing.  The internal affairs supervisor should periodically audit those reports indicating that the complaint was informally resolved to ensure that the agency's supervisors are properly implementing their authority to resolve complaints from members of the public.  5.1.14  Once a complaint has been received, the subject officer shall be notified in writing that a report has been made and that an investigation will commence.
[brief] [...], Esquire, [...]'s Assistant County Counsel, and the person who spearheaded [...]'s document production, addressed [...]'s document search in his affidavit and statements made at court hearings held on December 4 and 20, 2012.  The following colloquy took place on December 20, 2012:  THE COURT: In your best judgment, have all reasonable efforts been taken to identify and produce the responsive electronically stored information?  [...]: Yes, sir, I can make that assertion.  THE COURT:  Are you aware of any reasonably accessible sources of information relevant to the issues in this case that have not been searched for responsive information?  [...]: No, sir.  Tr. 41:25–42:8, Doc. No. 168.  With this background the Court will separately address plaintiff's motions.
[brief] See *Rosenberg*, 169 N.E.3d at 461 n.23.  Moreover, there is simply no way to square the rationale of these rulings with either the U.S. Supreme Court’s clear command that “news media” under the federal FCA public disclosure bar must have a “broa[d] sweep,” *Schindler Elevator*, 563 U.S. at 408 (quotation marks omitted) (alteration in original), or the numerous authorities broadly applying “news media” to nontraditional sources of technical information and data that target niche audiences.  See *U.S. ex rel. Kester v. Novartis Pharmas. Corp.*, 43 F. Supp. 3d 332, 346 (S.D.N.Y. 2014) (“The term ‘news media’ includes not only news articles, but also disclosures directed to ‘smaller’ or ‘professionally specialized’ reader bases. ”); see also *U.S. ex rel. Alcohol Found., Inc. v. Kalmanovitz Charitable Found.*, Inc., 186 F. Supp. 2d 458, 463 (S.D.N.Y. 2002) (“scientific and scholarly works” that are “too technical” for the average reader are “news media”), aff’d, 53 F. App’x 153 (2d Cir.); Green, 843 F. Supp. 2d at 33 (webpage promoting union training was “directed to a select audience” and was news media (quotation marks omitted)); Staples, 932 F. Supp. 2d at 40 (website that “compiles manifest information submitted to Customs by all shippers” qualifies as news media (quotation marks omitted)), aff’d, 773 F.3d 83.
[brief] The prosecutor had “control” over [...] that the defense did not, in that he could have issued a subpoena for him, prepared a writ, and compelled him to comply.  Mr. [...]’s location in state prison was well known; his status as an eyewitness strongly enhanced the potential value of his testimony, and that testimony would have been superior to that of the videotape because, unlike the videotape, his view of the shooter was unobstructed.  In addition, his testimony would have been subjected to cross-examination, “the greatest legal engine ever devised for the discovery of truth. ”  Wigmore on Evidence, §1367.  Moreover, in this specific case, the judge’s analysis should not have been limited to the four Hill factors.
[brief] *In re Estate of Lash*, 169 N.J. 20 (2001), is one such example.  There, the Supreme Court upheld the award of prejudgment interest “from the date each improper use of funds was made by the administrator. ”  *Id.* at 25.  The Supreme Court agreed with the Appellate Division’s conclusion that “the date of defalcation should serve as the commencement date from which interest should be assessed,” quoting directly from this Court’s opinion in the matter:  [W]e conclude simple interest should be calculated from the date the improper use of the funds was made.  Under these circumstances, we view lost interest as an element of the estate's damages claim.  . . .  We are persuaded this approach is more equitable in that lost interest is an integral part of the estate's damage claim as a result of the defalcation.  . . .  Id. at 35.
[brief] TABLE OF CONTENTS  VOLUME I  Page  Verified Complaint on behalf of Plaintiffs, [...], individually, and derivatively on behalf of [...].  (“Plaintiffs”), filed April 6, 2023.................................................................Pa001  Order of Dismissal filed April 24, 2023.  ......................................................Pa017  Order to Transfer to Another Venue filed October 19, 2023.  .......................Pa018  Notice of Motion to Dismiss Plaintiff’s Complaint in Lieu of Filing an Answer on behalf of Defendants filed on November 21, 2023.................................Pa019  Certification of [...] dated November 21, 2023 ........................................Pa021  Proposed form of Order filed on November 21, 2023.................................Pa023a  Exhibit A: Shareholder’s Agreement dated October 18, 2019........................................Pa024 Exhibit B: Order of Dismissal filed April 24, 2023 .....................................................* Exhibit C: Letters from Defendants to Plaintiffs demanding arbitration .........................Pa042  Certification of [...] dated November 28, 2023 ..............................Pa048  Order denying Defendant’s Motion to Dismiss Plaintiff’s Complaint filed on January 11, 2024.................................................................Pa059 Notice of Appeal on behalf of Defendants filed January 17, 2024 .................Pa061
[brief] (Not Raised Below).  ...........................................................................................................  33  A.  Capped Asbestos does not Pose the Same Danger as a Leaking UST.  (T3, 26:3-13 & 28:6-24 & Trial Briefs).  .........................................................  34  B.  The Trial Court Erred in Concluding that the Evidence on the Record Indicated that the Property was Safe.  (See Trial Briefs).  ...............  39  IV.  The Trial Court Erroneously Focused on Future Potential Condemnation Rather than on Whether there was Substantial Credible Evidence that the Statutory Criteria were Satisfied.  (T3, 30:10-31:21)  ...........................................................................................................  43  V.  Plaintiff has not Timely complied with its Remediation Obligations.  (T3, 11:18-12:3 & 32:22-33:3 & Trial Briefs)  ......................  47  CONCLUSION
[directive] It is anticipated that 13 Rule 3:3-1(d), as recently amended, authorizes a judge to overcome the presumption of charging by complaint- summons where the judge finds that: Page 33 the decision to overcome the presumption of charging by complaint-summons established in this subsection will not be overcome when the most serious charge is a petty disorderly persons offense absent extraordinary circumstances suggesting a high risk that the defendant, if released, would commit a new offense, fail to appear in court when required, or obstruct or attempt to obstruct justice.
[directive] Therefore, in the event a County Prosecutor has initiated a criminal investigation of an internal affairs matter, the internal affairs function must remain in contact with the County Prosecutor on a regular basis to determine the investigation’s progress.  Where a County Prosecutor has decided to terminate a criminal investigation and return the matter to the agency for appropriate disciplinary action, the internal affairs investigator and County Prosecutor must be able to document the date on which the County Prosecutor disposed of the criminal investigation.
[brief] THE COURT:  And it's -- and I know this from having conducted some hearings, the Pennsylvania charges are specifically related to alleged crimes [...] committed at the 7-Eleven in Falls Township, New -- Pennsylvania?  [...]:  That's correct, Judge.  Your Honor I believe has seen the video.  The offense occurred about a half-an-hour prior to the robbery in Hamilton.  The proofs are essentially the same.  THE COURT:  Thank you.  [...], is that the plea you negotiated?
[brief] General.**  Plumbing fixtures shall be properly installed and maintained in working order, and shall be kept free from obstructions, leaks and defects and be capable of performing the function for which such plumbing fixtures are designed.  Plumbing fixtures shall be maintained in a safe, sanitary and functional condition.  All plumbing fixtures must operate adequately and perform their intended functions.  Fixtures must drain quickly without permitting sewer gases to enter the structure.  Fixtures are not to leak from either the water supply piping or the waste discharge piping.  Fixtures must not be worn or deteriorated so that they cannot be adequately cleaned.  Kitchen sinks and lavatories that have defects that prevent them from being kept clean increase the likelihood that disease-causing organisms can be spread to food sources or from person to person.  Fixtures with structural cracks can fail suddenly, possibly causing personal injury and further property damage.  \(^{2}\) **305.1.1  Unsafe conditions. **  The following conditions shall be determined as unsafe and shall be repaired or replaced to comply with the *International Building Code* or the *International Existing Building Code* as required for existing buildings:  1.  The nominal strength of any structural member is exceeded by nominal loads, the load effects or the required strength.  And the reason [...] gives for those opinions is that given the design of the jacuzzi, the towel bar is, “in a location and configuration with that excessively deep and wide jacuzzi tub to be anticipated for a layperson to use as a grab bar. ”  (Pa99, Deposition of [...],42:2-11)  Simply put, the Trial Court failed to consider the above reasons Mr. Sass offered to logically support his opinion which was not contradicted by any other expert.  The Trial Court as such abused its discretion in disallowing the testimony of Mr. Sass.