ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] At primary issue during this appeal are orders dismissing Plaintiff’s complaint as to all Defendants.  Appellate review of a Motion to Dismiss is de novo.  *Frederick v. Smith*, 416 N.J. Super. 594, 597 (App. Div. 2010) (*citing* *Seidenberg v. Summit Bank*, 348 N.J. Super. 243, 250 (App. Div. 2002)).  “A complaint should be dismissed for failure to state a claim pursuant to Rule 4:6-2(e) only if ‘the factual allegations are palpably insufficient to support a claim upon which relief can be granted. ’”  *Ibid.*  (*quoting* *Rieder v. State Dep't of Transp.*, 221 N.J. Super. 547, 552 (App. Div. 1987)).  “This standard requires that ‘the pleading be searched in depth and with liberality to determine whether a cause of action can be gleaned even from an obscure statement. ’”  *Ibid.*  (*quoting* *Seidenberg*, 348 N.J. Super. at 250); *see also* *Printing Mart-Morristown v. Sharp Elecs. Corp.*, 116 N.J. 739, 746 (1989).  Motions to dismiss for failure to state a claim must “be accorded... meticulous and indulgent examination” and, accordingly, “such motions... should be granted *in only the rarest of instances.*”  *Printing-Mart Morristown v. Sharp Electronics Corp.*, 116 N.J. 739, 772 (1989) (emphasis added).  The reviewing court must “view the allegations with great liberality and without concern for the plaintiff’s ability to prove the facts alleged in the complaint. ”  *Sickles v. Cabot Corp.*, 379 N.J. Super. 100, 106, (App. Div.), certif. denied, 185 N.J. 297, 884 A.2d 1267 (2005).  Applying this standard, motions to dismiss are for failure to state a claim are “granted only in rare instances and ordinarily without prejudice. ”  [...], Current N.J. Court Rules, comment 4.1.1 on R. 4:6-2(e) (2010).  Thus, if simply “the fundament of a cause of action may be gleaned” from the Complaint at issue, then the pleading cannot be dismissed for failure to state a claim.  NCP Litig. Trust v. KPMG LLP, 187 N.J. 353, 365 (2006).  To that end, it is therefore the duty of the trial court to “search the complaint in depth and with liberality” to identify the asserted causes of action pursuant to the above standards.  Lieberman v. Port Authority of N.Y. and N.J., 132 N.J. 76, 79 (1993) (internal quotation omitted).  Moreover, when the Court considers a R. 4:6-2(e) motion, it must assume that the non-movant's allegations are true and give that party the benefit of all reasonable inferences, such that the motion must be denied if a “generous reading” as much as “suggests a cause of action. ”  Smith v. SBC Communications, Inc., 178 N.J. 265, 282 (2004) (emphasis added); see also Burg v. State, 147 N.J. Super. 316, 319, 371 A.2d 308 (App. Div.) (citing Rappaport v. Nichols, 31 N.J. 188, 193, 156 A.2d 1 (1959)), certif. denied, 75 N.J. 11 (1977).  LEGAL ARGUMENT I.
[brief] [...] is a national long-term care insurance company admitted in New Jersey that once offered Long Term Care Insurance (“LTCI”) policies.  (Ra359).  As of December 31, 2019, [...] had approximately 13,339 Choice 2 policies in force in New Jersey.  [...] brought this action to challenge the Department’s decision not to approve its 2020 premium rate increase requests for its Choice 2 policies.  (Cra198).  [...]’s premium rate increase requests were its third increase requested in four years.  (Aa170 and 174).  A.  Overview of LTCI Policies  LTCI policies are unique products in the healthcare insurance industry.  They are often in force for decades before an insured makes a claim.  LTCI policies defray costs of care provided in a nursing home, assisted-living facility, or home setting for policyholders who need assistance with activities of daily living, usually after suffering from illness or disability.  (Ra499-500).  Claims usually arise late in the policyholder’s life.  (Aa58).  A typical policyholder maintains the policy by paying premiums over an extended period of time – often decades – before benefitting from the policy.  (Ra501-502).  For new LTCI products, carriers set initial premiums using actuarial assumptions that project experience decades into the future, with the understanding that as claims arise and a carrier learns policy behavior, rate increases may be needed to realign premiums with experience.
[brief] The State has also agreed to provide defendant with the second-most important piece of the profile, proof of [...]’s age.  The State informed the judge it intended to introduce in its case-in-chief that [...] is an adults-only website and that “[...]’s” profile said he was at least eighteen.  (1T18-17 to 20).  The Deputy Attorney General said, “He presented himself as an adult[]” and “[t]he profile gave an adult age. ” (1T18-23 to 24; 1T24-20).  “And that information is going to come up on the State’s direct, or in the . . . State’s case in chief.  So it’s not like that’s going to be hidden. ” (1T18-17 to 20).  Consequently, the two pieces of the profile which both defendant and the judge referenced as being crucial to his defense have already been or will be provided.  And defendant will be able to recreate the remaining contents of the [...] profile during the cross-examination of [...]—the investigator who created the profile—or the other detectives involved in the investigation.
[brief] (IT2 38-7 to 39-6).  [...] asserts that [...]’s ruling that the issue of whether [...]’s lateness in completing his charts was a material breach of contract constituted a jury question was correct.  Roch v. BM Motoring, 228 N.J. 163, 174-175 (2017); Magnet Resources, Inc v Summit MRI Inc. 318 N.J. Super. 275, 286-287 (App. Div. 1998); Lo Re v. Tel-Air Communications, 200 N.J. Super. 59, 72-73 (App. Div. 1985); Du Ponte v. Mutual Contracting Co., 18 N.J. Super. 142, 146 (App. Div. 1952)  Defendant’s claim that [...] agreed to accept $10,000 to compromise his claim for $255,000.00 in unpaid fees and the payment constituted an accord and satisfaction of [...]’s claim against defendants.  (Db 40, paragraph 2 to Db 41, paragraph ).  [...] held that defendants failed to present the Court with a copy of the cashed $10,000.00 check and a copy of a release indicating that [...]’s receipt of the check constituted a compromise of his disputed claim.(1T2 37-13 to 38-1).  [...]’s asserts that defendant’ failure to present the deposited check to [...]’s and a release signed by [...] indicating that his acceptance of the money was a compromise which extinguished all claims against defendants precluded defendant’s argument that the alleged payment constituted an accord and satisfaction of all claims against defendant.  Zekker v. Markson Rosenthal & Company, 299 N.J. Super. 461 (App. Div. 1997); Peterson v. Hartford Accident & Indemnity Co., 32 N.J. Super. 23, 31-32 (App. Div.1958).  Defendants failure to advise the Superior Court, Appellate Division that the Law Division rejected most of the arguments advanced in support of its Motion for Summary Judgment is disingenuous and misleading.
[brief] [Aa94.]  The permit modification application noted that the previously approved and constructed pier dock extension was mislocated to the east by 1.7 feet.  [Aa101.]  The modification also requested approval for the installation of an open rail jet ski lift in place of one of the two boat lifts previously approved in 2017.  [Aa101.]  Similar to the 2017 WFD permit application, the modification application contained a policy compliance statement.  [Aa102.]  To demonstrate a need for the new waterfront facilities that cannot purported by satisfied by existing facilities, [...] stated that “this is a private lot and the two proposed boat lifts will allow the property owner mooring and access for the use of pleasure crafts. ”  [Aa106.]  [...] again stated that the proposed waterfront facilities “will not hinder navigation or access to adjacent water areas. ”  [Aa107.]  Again, [...] ultimately asserted that its WFD permit application met “the intent and the policies of the State of New Jersey, Department of Environmental Protection. ”  [Aa109.]  On March 20, 2019, the NJDEP approved a permit modification for WFD permit No. [...] to [...] over the objection of Appellant.
[directive] To that end, law enforcement officers should avoid using:  The term “hermaphrodite. ”  The preferred term is “intersex person. ”  •  The phrases “sex change,” “pre-operative,” or “post-operative. ”  The preferred terms • are “transition” or “transitioning. ”  The word “transgender” as a noun (“transgenders” or “a transgender”) or as a verb • (“transgendered”).  Instead, the word is an adjective, as in “transgender person. ”  Any slurs that demean LGBTQ+ individuals.  The following offers a list of illustrative • terms never to be used: “she-male,” “he-she,” “it,” “transvestite,” “trannie/tranny,” “d*ke,” “f*ggot,” and “gender-bender.
[brief] ”  Slip Op. at 18-19 (Pa480) (bold added).  “Likewise, employers are required to "make sufficient provision for the complete payment of any obligation which [the employer] may incur to an injured employee or his [or her] administrators or next of kin under said article 1 of this chapter [N.J.S.A. 34:15-1 to -6, the tort system for those employees who opt out of workers' compensation]."  N.J.S.A. 34:15-72 (emphasis added). ”  Slip Op. at 19 (Pa481) (bold added).
[brief] Pa080  Exhibit A: Complaint for Declaratory Judgment and Damages and Jury Demand filed by [...] on behalf of [...]  Exhibit B: Correspondence from [...] to [...] dated March 5, 2020, enclosing Report and Exhibit of [...], Esq.  Exhibit A: Curriculum Vitae of Edward C. Eastman, Esq.  Exhibit B: Riparian Grant recorded in Liber E, beginning on Page 79  Exhibit C: Deed dated January 15, 1909, recorded in the Monmouth County Clerk’s Office on January 18, 1909  Exhibit D: Map of [...] filed June 25, 1909  Exhibit E: Deed dated April 6, 1920, and recorded in the Monmouth County Clerk’s Office on April 12, 1920  Exhibit F: Deed dated June 16, 1920, and recorded in the Monmouth County Clerk’s office  Exhibit G: Tax Foreclosure Action against [...], et al Exhibit H: Corporate Status Report of [...]  Exhibit J: 1942  Lease obtained by the Borough from the State of New Jersey  Exhibit M: Map dated April 1956 – “The [...], Monmouth County, N.J., Layout of Parking Area  Exhibit N: October 8, 1991, letter from Keansburg Borough Attorney to [...]  **Pa343 Exhibit O: May 17, 1995, Lease between [...] and [...] Company, Inc.  **Pa969  Exhibit P: Keansburg Borough Resolution #56 **Pa982  Exhibit Q: May 14, 1999, Lease between [...] and [...] Company, Inc.  **Pa992  Exhibit R: Keansburg Resolution Nos. 55 and 61 dated March 16, 1999, and April 27, 1999  **Pa1000  Exhibit S: June 10, 1999  Revocable License of the Borough and the State of New Jersey **Pa1006 Exhibit T: Tidelands License from State of New Jersey to [...] **Pa1011 Exhibit V: [...]’s Report of Title dated December 5, 2018 **Pa631 Certification of [...], Esq. in Support of Defendant/Third-Party Plaintiff [...]’s Opposition to Plaintiffs Motion in Limine Seeking to Bar the Expert Report and Testimony of Edward C. Eastman, filed April 30, 2020 Pa107 Exhibit A: August 21, 2019, Scheduling Order **Pa041 Exhibit B: November 12, 2019, correspondence from [...] identifying Plaintiffs’ Expert witness Pa110 Exhibit C: Expert Reports by [...] along with Curriculum Vitae dated March 11, 2020 Pa113 Exhibit D: Correspondence from [...] to David Clark, Esq., dated March 25, 2020 Pa120 Order of the Honorable [...], P.J. Ch., filed on May 11, 2020 denying Plaintiff’s Motion in Limine Correspondence to Court from [...], Esq. on behalf of Plaintiff [...] with Plaintiff’s Trial Exhibits dated May 12, 2020; filed May 14, 2020 Notice of Motion to Reinstate Defendant/Third Party Plaintiff [...]’s Claims and Request for a Case Management Conference filed September 1, 2020 Certification of [...], Esq., in Support of Defendants Motion to Reinstate the Borough’s Claims and Request for a Case Management Conference filed September 1, 2020
[brief] The following excerpt is exemplary of nature of the sergeant’s testimony and concludes with the longest answer provided during the sergeant’s narration testimony – just barely five transcript lines:  Q: This is Still 34.  What is this a still of?  A: The subject entering [...].  Q: Which entrance is this?  A: The front door that’s in the parking lot.  It’s considered like a fire door by the bathrooms.  Q: Okay.  Is it a customer entrance?  A: No.  Q: Does it connect to the main bar that we just saw?  A: It does.  Q: This is … S-35, this is the back at the main bar?
[directive] The supervising firearms instructor is responsible for:  • Conducting firearms activities in accordance with the standards set forth in this manual.  • Ensuring the safety of all individuals engaged in firearms activities.  Complying with all requirements set forth in this policy and manual with respect to all participants involved in qualification activities and training.  • Ensuring proper firearms instructor-participant ratios at all times on the firing line.  The following ratios are recommended:  1.  One firearms instructor for six participants using handguns during day-time firing.  2.  One firearms instructor for three participants using handguns during night-time firing conditions.  3.  One firearms instructor for each participant firing a shotgun.  •  Ensuring that personnel equipped to provide first aid are present on the firearms range during all qualification activities.  (This person can be a 9-16 Revised (5/03) Semi-Annual Firearms Qualification and Requalification Standards certified member of a local volunteer first aid squad, an agency member certified as a first responder or emergency medical technician, or a member of the agency who is otherwise adequately trained.)  •  Ensuring that adequate first aid supplies are on-site at all times.  •  Ensuring that a suitable communications link exists between the firearms range, the local agency (especially if using a host facility), and local emergency services.  •  Inspecting weapons and ammunition used in firearms training and either approving or disapproving their use.  •  Verifying that any repaired weapon has been repaired by a competent individual or company and recording this information in the appropriate records.  •  Ordering and removing from the range any participant, instructor, or other individual whose conduct or activity constitutes a danger to those individuals using the firearms range.  Informing the chief or agency executive of the action taken and the reason.  • Determining the time allotted and method of instruction for participants who require remedial training after failing to achieve the qualification scores required.  • Supervising remedial training and subsequent qualification attempts.  • Submitting to the chief or agency executive a comprehensive report on each officer or participant who fails to achieve the minimum qualification score as set forth in this manual.  • Ensuring that appropriate records are completed for each participant, including the model and serial number of every weapon used, the scores achieved and other appropriate information.
[brief] On September 1, 2017, [...] failed to make that annual payment due under the Lease in the amount of $206,045.00.  On September 5, 2017, counsel for [...] sent notice of default to [...] stating that [...] was in default under the Lease, that it was required to make the payment within ten (10) days from the date of notice, and that if payment was not received [...] had the right to terminate the Lease.  Upon termination, [...] was required to surrender and return the Property.  [...] never made the payment under the Lease.  As a result, [...] terminated the Lease with [...] on October 17, 2017. ”  [Pa144]; •  In dismissing Count 1 of the First Amended Complaint (breach of contract), “Therefore, the loss of the Property was the direct and proximate result of [Appellants’] failure to cure the default under the Lease with [...].
[brief] It is well-established that the elements necessary for foreclosure are as follows: (1) the validity of the mortgage, (2) the amount of the indebtedness, and (3) the right of the holder to resort to the mortgaged premises.  See e.g., Investors Bank v. Torres, 457 N.J. Super. 53, 65 (App. Div. 2018); Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993).
[brief] To be clear, too, Defendant is incorrect when he avers that the Appellate Court determined that the trial Court did not make “robust findings. ”  That observation was limited to the trial Court’s determination to not award Plaintiff counsel fees and was certainly not a reflection on the trial Court’s determination of Defendant’s fraud claims.  (A49)  Defendant is also wrong in focusing on the principle of the “law of the case. ”  State v. K.P.S., 221 N.J. 266 (2015) addresses circumstances in which a co-defendant had erroneously been denied the opportunity to be heard on a separate appeal.  A published Appellate Decision upholding the trial court’s decision is not a non-binding legal principle, it is, in fact, a binding determination.  The trial court’s decision to apply the contractual penalty was already reviewed and upheld on [...]’s own direct appeal.  The trial transcript, the transcript of the trial court decision, and the Appellate Decision all repeatedly reference Defendant’s allegations of fraud.  Defendant is now attempting to use new “magic words” by claiming that Plaintiff came to the Court with unclean hands.  However, the trial Court determined, based on findings of fact and conclusions of law, that Plaintiff did not defraud Defendant.  That finding was upheld by the Appellate Division.  There are no unclean hands.
[brief] LEGAL ARGUMENT POINT I REVERSAL IS REQUIRED BECAUSE THE STATE FAILED TO MEET ITS BURDEN OF PROVING THAT TINTING ON THE FRONT SIDE WINDOWS INHIBITED THE OFFICER’S ABILITY TO CLEARLY SEE INSIDE DEFENDANT’S VEHICLE.  (1T 95-1 to 105-24; Da 13)  At the motion hearing, the prosecutor failed to “present evidence that tinting on the front side windows inhibited officers’ ability to clearly see the vehicles’ occupants or articles inside. ”  State v. Smith, 251 N.J. 244, 266 (2022).  Thus, the State did not meet its burden of proving that the vehicle was violating N.J.S.A. 39:3-74 and that a warrantless stop was justified.  Accordingly, defendant’s suppression motion should have been granted, and reversal of his convictions is required.
[brief] POINT V THE TOWNSHIP'S OBLIGATION TO FULFILL ITS CONTRACTUAL AGREEMENTS WITH BELLEVUE ESTATES, LLC  NECESSITATES THE ENFORCEMENT OF THE ORDINANCES  The Township’s contractual obligations to [...], as delineated in the Ordinances, are legally binding and essential to uphold.  The enforcement of these Ordinances is not only a matter of legal obligation but also one that significantly impacts on the public interest.  The contractual exchange, which includes the acquisition of open space and the reduction of traffic congestion, clearly serves the public good.  Such governmental actions aimed at enhancing public welfare are consistent with legal precedents that support the enforcement of valid governmental decisions and contractual commitments.  As expressed herein and as expressed in the Ordinances and contract, the Township believe it is more prudent to enter into an exchange of properties so that the religious dormitories would be located in an area which would decrease traffic, school bus expenses, and congestion for the residents of the Township.  That is because the students in the dormitories would undoubtedly be attending school in [...], not [...].  In addition, the Township found this to be an excellent opportunity to create approximately 40 acres of open space in the center of town.  Furthermore, the legal and financial implications for the Township in failing to meet these obligations are severe.  Potential litigation and financial losses stemming from a breach of contract with the Appellant would not only harm the Township but also its residents and taxpayers.  This underscores the necessity of enforcing the Ordinances, in alignment with the legal precedent and public interest.  POINT VI
[brief] Pursuant to New Jersey Court Rule 2:6-2(b), please accept the within Amended Letter Memorandum of Law in lieu of a more formal brief in support of the within Defendant-Appellant’s appeal.  TABLE OF CONTENTS  Table of Contents ........................................................................................................  i  Table of Appendix .......................................................................................................  ii  Table of Judgments, Orders & Rulings ......................................................................  iii  Statement of Facts and Procedural History .................................................................
[brief] (17T 33-1 to 35-8)  The trial judge not only denied this ploy, but scolded trial counsel stating that:  THE COURT:  I'm not happy that we're dealing with this now.  I've heard about this for weeks and weeks and weeks and weeks, and this should have been dealt with months ago, not by serving somebody two days ago at the [...].  (17T 37-3 to 9).  The defendant argued on his PCR that he also requested trial counsel to obtain a cross-racial identification expert given that the detectives that alleged to have witnessed the defendant during surveillance operations on specific dates and times the defendant was not in the State of New Jersey.
[brief] Id.  “If there is the slightest doubt as to the facts, the motion should be denied. ”  Friedman v. Friendly Ice Cream Co., Metuchen, 35 N.J. 193, 195-196 (1961).  In fact, the burden is on the judgment to show the clear absence of a genuine issue of material fact.  Monmouth Lumber Company v. Indemnity Ins. Co. of N. America, 21 N.J. 439, 440 (1956).  Under the holding of Brill v. Guardian Life Insurance Company, 142 N.J. 520 (1995), our Supreme Court set forth the following test:
[brief] The intent of the drafters of the Rule is manifest in Recommendation 4.1, in which they advised the New Jersey Supreme Court that "[t]he rules should state the discovery period for each track, and make it clear that once the discovery period is over and an arbitration or trial date is set, no more discovery must occur, unless authorized by the court on a showing of 'exceptional circumstances.'"  *Montiel v. Ingersoll et al.*, 347 N.J. Super. 246, 254 (Law Div. 2001)(emphasis added.)  See, also, *Ponden v. Ponden*, 374 N.J. Super. 1, 11 (App. Div. 2004).
[brief] THE TRIAL COURT ERRED BY DENYING MY REQUEST TO ATTEND THE ORDER TO SHOW CAUSE HEARING IN PERSON.  THE TRIAL COURT FORCED ME TO ATTEND THE HEARING VIA ZOOM AGAINST MY WILL.  Raised Below:  I raised this issue at the very beginning of the hearing and [...] dismissed it as not relevant to the hearing.  I looked for that conversation in the transcript 1T, but could not find it.  It was obvious that attending the hearing on 9/25/23 in person would have been a lot better than attending that by Zoom.  I was proactive and actually drove to the court in early morning to make it happen.  But [...] Chambers did not allow me to attend the hearing in person.  That was violation of my constitutional rights.  On the hearing date of 9/25/23 I raised it with [...], he ignored it and the transcriber did not cover it in the transcript.  LEGAL POINT II.
[brief] Based upon the foregoing, Defendant-Appellant, [...], respectfully requests that this Court reject the Plaintiff-Respondent’s argument in opposition and reverse the trial court’s determination on remand and reinstate the trial court’s original dismissal of the Plaintiff’s action.  [...]  Attorneys for Defendant-Appellant [...]  Dated: April 29, 2024  By: ___________________________  [...]  April 29, 2024  Via Electronic Filing Appellate Division  Clerk’s Office  Richard J. Hughes Justice Complex  P.O. Box 006 Trenton, New Jersey 08625-0970  Re: [...] v. [...] Docket No. [...]  To the Honorable Judges of the Appellate Division: