ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] “Flood hazard area design flood” means a flood equal to the 100-year flood plus an additional amount of water in fluvial areas to account for possible future increases in flows due to development or other factors.  This additional amount of water also provides a factor of safety in cases when the 100-year flood is exceeded.  [N.J.A.C. 7:13-1.2, effective until July 17, 2023.]  The “flood hazard area design flood elevation” is governed by stormwater runoff and is a critical measurement in the DEP’s assessment of any proposed development that it regulates under the FHACA.  The extent of a flood hazard area on a given site is determined by applying the “flood hazard area design flood elevation” to the best topographic data available.  This is the requisite scientific procedure to predict the location and extent of flooding in New Jersey.  Thus, the DEP must take into account “an additional amount of water” when the DEP determines that there will be reasonably foreseeable impacts to the “flood hazard area design flood” and the associated flood hazard area.
[brief] However, this Court does agree with [...]'s calculation of the commencement of the accrual date.  [...] was dealing with the same statute of limitations with which we're dealing here, meaning a two-year period of statute of limitations, and [...] found, and this Court is of the view correctly found, that the statute of limitations began running regardless of the length of the statute of limitations between federal and state cases.  And here, we've acknowledge that as far as the remaining or the agreed-upon state claims that we're discussing here, Judge -- it's a two-year statute of limitations.  [...] found that it's when that the -- the accrual date commenced on the day that the defendant was found guilty, [sic] which is June 6th, 2017.  Transcript of Motion to Dismiss, Page 23, line 8 through Page 25, line 5.  Finally, [...] found that the Plaintiff/Appellant's arguments concerning equitable tolling of the statute of limitations simply had no merit whatsoever.
[brief] This personal injury trip and fall negligence action was instituted by [...] (hereinafter “the plaintiff”) on January 2, 2020, by filing a Complaint in the Superior Court of New Jersey, Law Division, Middlesex County against [...]  (hereinafter “the defendant”) and [...].  Plaintiff alleged that the defendant was negligent in permitting a dangerous condition to exist in the garden department of its store in [...], which caused the plaintiff to fall and sustain serious and permanent injuries.  On March 16, 2020, the defendant filed an Answer to the Complaint, denying the allegations.  Thereafter, discovery was conducted during which depositions of the respective parties and the depositions of their liability expert witnesses were taken.  On May 16, 2023, the defendant’s damages expert, [...] testified at a de benne esse deposition.  Trial commenced on June 5, 2023 before the Honorable [...], J.S.C. and a jury and continued on June 6, 7, 8, 9, 12 and 15, 2023.  The plaintiff moved in limine to bar evidence of the plaintiff’s prior medical conditions, prior history of falls and to strike portions of [...]’ testimony regarding the --- 1  The Procedural History and Statement of Facts sections have been combined due to their interconnected nature, to reduce repetition and for the convenience of the Court.
[brief] T15-1-8.  In addition, the trial court recognized that the Defendant and [...] pursued the baseless motion, even though they knew that the motion for reconsideration should have been brought before the Appellate Division.  T6-17-19.  However, since the Defendant was time-barred from filing a timely motion under R. 2:11-6, he deviously requested that the trial court reconsider the Appellate Division’s Order and Opinion in order to obtain an appealable order and thwart the time limitation imposed by R. 2:11-6.  As such, the order denying Defendant’s second motion for reconsideration should be affirmed.  C.
[brief] Similar to its previous ruling that was vacated and reversed by this Court, the Trial Court found again that “[m]any facts that pertain to plaintiffs non-RICO claims were essential in establishing defendants’ violation of RICO,” and that “[i]t would be illogical to state the facts discovered from 1992 to 2009, which gave rise to and informed plaintiffs’ understanding that defendants had violated the RICO statute, had nothing to do with plaintiffs’ prosecution of their RICO claims. ” (39996a) (emphasis added).  The Trial Court used this confusing logic to reject the claim-specific analysis mandated by this Court, and instead focused on Plaintiffs’ counsel “achiev[ing] an excellent result for their clients, prevailing on both non-RICO claims, and convincing the trial court punitive damages were appropriate. ” (40072a-73a; 40076a).  The mandate from this Court was to “limit [the] award to the fees and costs reasonably devoted to plaintiffs’ pursuit of their respective RICO claims” — not to decide (contrary to this Court’s holding) that there was a common core of facts and, therefore, apply the Silva rule focusing on the “overall relief obtained.
[brief] As the Simon court explained, citing New Jersey’s Tax Sale Law, specifically N.J.S.A. 54:5-98 and N.J.S.A. 54:5-89.1:  “In the post-foreclosure complaint period, two separate provision of the Tax Sale Law mandate intervention by a third-party investor before seeking redemption of a tax certificate.  . . .[N.J.S.A 54:5-98] strongly implies that a person seeking to redeem a tax certificate must be either a party to the [foreclosure] action or a person intervening in the action. ”  Simon v. Cronecker, 189 N.J. 304, 320–21.  Further, “[b]ecause N.J.S.A. 54:5-89.1 prohibits a third-party investor from becoming ‘a party to [the foreclosure] action’ and redeeming a tax certificate if he acquires an interest for only ‘a nominal consideration,’ it necessarily follows that he must be a party to the action if he pays nominal consideration. ”  Id. at 32 (quoting N.J.S.A. 54:5-89.1).  There is no dispute that the underlying foreclosure action in this matter before the Court was based on tax certificates, and thus the relevant sections of the Tax Sale Law apply here.
[brief] The trial court inquired whether the witness could testify as to whether the camera was operational.  (15T: 4-15 to 16).  The defense proffered that someone had told the witness something that would suggest the camera was working at that time.  (15T:5-7 to 12).  The defense requested a second adjournment in order to locate the proposed witness, but since only hearsay would be offered to show that the camera was operable at the time, the trial court determined that the evidence would not be admissible, and the trial would proceed. (15T: 46-22 to 48-16; 15T: 49-25 to 53-19).
[directive] c.  You must pay a minimum Victims of Crime Compensation Office Assessment of $50 ($100 [Yes/Tak]  [No/Nie] minimum if you are convicted of a crime of violence) for each count to which you plead guilty?  (Penalty is $30 if offense occurred between January 9, 1986 and December 22, 1991 inclusive.  $25 if offense occurred before January 1, 1986.)  Bc;dzie Pan(i) musial(a) zaplacic minimaln11 nawil!Zk«; na VCC0 w kwocie 50 USO (minimalnie 100 USO w przypadku skazania za przestc;pstwo z uzyciem przemocy) za kai:dy zarzut, do kt6rego sic; Pan(i) przyznaje?
[brief] There is no dispute as to the elements of a claim for violation of the CFA: (1) unlawful conduct by the defendants; (2) an ascertainable loss on the part of the plaintiff; and (3) a causal relationship between the defendant’s unlawful conduct and plaintiff’s ascertainable loss.  See Hoffman v. Hampshire Labs, Inc., 405 N.J. Super. 105, 113 (App. Div. 2009).  The CFA claim plead by Plaintiffs satisfies each of these elements.  The claim arises from Defendants’ unlawful conduct in rescinding the Policies contrary to its own stated policies.  Further, Defendants’ conduct in rescinding the Policies against the Innocent Insureds constitutes a second violation.  Plaintiffs have suffered an ascertainable loss: (a) the [...] claim was denied based upon the rescission of the Policies and, but for the unlawful rescission, would have been covered; and (b) Plaintiffs were forced to immediately find substitute coverage at greater cost for a lesser policy.
[brief] ” (citation omitted)), aff’d in relevant part, 473 F.3d 506.  Morris USA Inc., 826 F.3d 466, 475 (D.C. Cir. 2016) (memorandum publicly disclosed by being posted in online database containing nearly 4.5 million documents from over 400 litigations); United States v. Alcan Elec. & Eng’g, Inc., 197 F.3d 1014, 1019–20 (9th Cir. 1999) (public disclosure is not “limit[ed] . . . to information the government is likely to learn”).
[brief] *Strickland*, 466 U.S. at 688; *Gaitan*, 209 N.J. at 350; *State v. Echols*, 199 N.J. 344, 358 (2009).  The right to counsel only guarantees the right “to competent counsel. ”  *Gaitan*, 209 N.J. at 350 (citing *State v. DiFrisco*, 174 N.J. 195, 220 (2002)).  Deficient performance is established by proving that “counsel’s acts or omissions fell ‘outside the wide range of professionally competent assistance’ considered in light of all the circumstances of the case. ”  *State v. Castagna*, 187 N.J. 293, 314 (2006) (quoting *Strickland*, 466 U.S. at 690); *Gaitan*, 209 N.J. at 350; *Echols*, 199 N.J. at 358.  Judicial scrutiny of counsel’s performance should be “highly deferential. ”  *Strickland*, 466 U.S. at 689; see *State v. Martini*, 160 N.J. 248, 266 (1999) (finding that a reviewing court must assess the performance of counsel with a “heavy measure of deference to counsel’s judgments”); DiFrisco, 174 N.J. at 220.  “No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. ”  Echols, 199 N.J. at 358 (quoting Strickland, 466 U.S. at 688-89).  As a practical result, there is “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. ”  Ibid. (quoting Strickland, 466 U.S. at 689); State v. Quixal, 431 N.J. Super. 502, 507 (App. Div. 2013); Castagna, 187 N.J. at 314.  The reasonableness standard under Strickland extends to counsel’s performance associated with the plea-bargaining process.
[brief] “Common sense” is plainly insufficient under N.J.R.E. 702 and 703 to prove causation; see, e.g., Jay v. Royal Caribbean Cruises Ltd., 2022 U.S. Dist. LEXIS 108558, at *14-15 (S.D. Fla. June 17, 2022) (holding that the plaintiff’s expert’s testimony was insufficiently reliable to satisfy the requirements of Daubert because the expert did “not explain any scientific methodology or testing used in forming the opinion, nor provide any basis to believe anything other than common sense was used to reach his opinion. ”); Jacquillard v. Home Depot USA, Inc., 2012 U.S. Dist. LEXIS 19889 (S.D. Ga. Feb. 16, 2012) (“The Court cannot allow Hunt to attach his ‘expert’ conclusion to an opinion that is merely based on common sense and not a scientific method”); McCreless v. Global Upholstery Co., 500 F. Supp.2d 1350, 1358 (N.D. Ala. 2007); (“‘intuition,’ ‘common sense,’ and ‘general experience’ in a particular field are not acceptable methods for reaching sound scientific conclusions”).  Nor did [...] address the trial court’s conclusion that [...] “did not know at what dose [...] consumed mycotoxins at any point in time.  Nor did he know with what frequency [[...]] consumed food contaminated with mycotoxins. ”  Da27a.  Yet these requirements are necessary to prove causation in a toxic tort case.  James v. Bessemer Processing Co., 155 N.J. 279, 299-301 (1998).
[brief] State v. [...], No. A-2107-19 (App. Div. Mar. 3, 2022) (slip op. at 11-12).  (Da42-43)  Specifically, this Court ordered the sentencing court on remand “to identify whether 3A applies, and also include comparisons to 1  The following abbreviations will be used: Sb – State’s Response Brief Pa – State’s Response Appendix Db – Defendant-Appellant’s Initial Brief Da – Defendant-Appellant’s Initial Appendix Dra – Defendant’s Reply Appendix the factual record of this case, and provide ‘[a]n explicit statement, explaining the overall fairness of a sentence imposed on a defendant’ pursuant to State v. Torres, 246 N.J. 246, 268 (2021). ”  Ibid.  In light of this Court’s directive in ordering resentencing, the sentencing court’s rationale for applying Yarbough factor 3A is the most critical component of its decision.  As set forth in Point I.A. of [...]’s initial plenary brief and this reply brief, the court’s findings of Yarbough factor 3A (and 3C) was impermissibly based on its belief that [...] had committed the Autozone armed robbery that had been dismissed, as well as on speculation not supported by competent credible evidence in the record.  Because the sentencing Court’s Yarbough reasoning was erroneous and impermissible, this Court must reverse the sentence on that basis alone.
[brief] APPELLANT’S POINT I(D)  FAILS TO IDENTIFY HOW THE TRIAL COURT DEPARTED FROM CASELAW  (Raised below at 1T 10:9 to 1T11:1, 1T 15:8-24)  Appellant’s net conclusion that the Trial Court departed from well-established caselaw concerning Disability Pension Cases is without support in its brief or in the record and constitutes error (Db20-Db24)].  The Trial Court considered the very same arguments made at Db21-24 and was not swayed by Appellant’s incorrect analysis of the caselaw (argument on Carr at 1T 10:9 to 1T11:1, argument on Cardinale at 1T 15:8-24).  Here, Appellant has not identified any genuine issue of material fact or issue of material fact overlooked by the Trial Court that warrants reversal.
[brief] Three judges found that the Board’s determination of [...]’s equity in the Unit and/or the Board’s elimination or reduction of expenses paid by [...] were arbitrary and capricious.  Indeed, the Board’s most recent determination that [...]’s equity in the Unit was $12,804.88 based upon an unsupported, illogical formula was preposterous and is not defended by [...] in this Appeal.  That determination would perpetuate [...]’s subsidization of the Unit, thereby defeating its constitutional entitlement to a “just and reasonable return” on the Unit.  [...]’s testimony established its annual losses on the Unit for several years before its hardship application for a rent increase.  1T:11.  Three judges properly rejected the Board’s rulings that would continue [...]’s losses by artificially and illogically decreasing [...]’s equity in the Unit to a negligible amount and by eliminating or reducing expenses paid by [...] in the normal course unrelated to the conversion of the Property into a condominium property.  The outcome sought by [...]—to which the Board obliged—flouts the right of a landlord to receive a “just and reasonable return” on its property.
[brief] Defendant [...] has a progressive discipline policy, a four-step process including the following steps: 1) verbal warning; 2) written warning; 3) suspension and, finally, 4) termination.  (Pa655).  Prior to September 2020, a group of Defendant [...]’s managers and directors had been caught entering time as time worked when they were, in fact, on vacation.  (Pa668).  As salaried employees, doing so entitled them to significant payouts of unused PTO time when such time was “cashed out. ” (Pa668).  The employees who had participated in this scheme were not terminated and, instead, were only required to pay the money back to Defendant [...].  (Pa668).  To terminate an employee, Defendant [...] was required to work with Defendant [...].  (Pa663).  Ultimately, however, it is up to Defendant [...] to make a recommendation for termination.  (Pa663).  Despite the fact that Defendant [...] had an open HR complaint pending against her, Defendant [...] did not believe it was a conflict of interest to consult with her regarding the employment decisions made with regard to Plaintiff, [...], and [...].  (Pa117).  Once a request for termination is made, the request proceeds to Defendant’s “termination panel. ” (Pa663).  Defendant [...], working with Defendant [...], recommended immediate termination (skipping all of the stages of the progressive discipline policy) for Plaintiff, [...], and [...] and the action was approved by the panel.  (Pa51).  [...] and [...] were terminated on September 14, 2020, while Plaintiff as terminated on September 17, 2020.  (Pa666).  LEGAL ARGUMENT POINT I
[brief] Per Rule 2:5-4(a) this appeal is solely based on the papers filed below seeking review based on harmful errors, which (1) resulted in unjust results, *State v. Mohammed*, 226 N.J. 71, 87 (2016), and (2) undermined fairness, *State v. Weaver*, 219 N.J. 131, 15 (2014).  This appeal questions the tyranny manifested below, as evidence was overlooked (turned blind eye to) to deny disability accommodation urgently needed for a 92 years old, as the trial judge, demonstrably, made key decisions without hearing and or in advance of conducting hearing.  The prose appellant admits that he was less than proficient below, but his personal faults and or shortcomings should not have satisfied the bar for the manifested tyranny resulted below from *With Prejudice* disposal of the appellant’s case.  PROCEDURAL HISTORY
[brief] However, the Court below doesn’t cite one case.  The Court below had before it a Statement of Material Facts which were presented to the Court in 2020 and had no less viability in 2022.  The Plaintiff relied on the law of the case which should have precluded the Defendants from proceeding with a whole new application.  Instead, [...] threw out the law of the case, and found that the statute of limitations prevailed.  All this without one cited case.  Also, the Defendants argued without citing one case, but in fairness to the Defendants, in the Notice of Motion for Summary Judgment, they do cite the case of Green, supra.  There, the Supreme Court decided that “the one-year statute of limitations began to run from the final act of retaliation. ”  [...] never considered that concept and counsel for the Defendants never argued that concept.  In other words, Green, supra, stands for the fact that as retaliation continues, the statute of limitations does not run.  What was found in this case by [...] was a hostile work environment which argues against discrete acts.  The Judge below never even addressed that.  The Judge below was more concerned with getting rid of a case than dealing with the legal concepts involved.  He concluded that after one year, everything is out, when in fact, if he had read Green, he would have found that that was not the case.  So the Motion for Summary Judgment ended.  The trial Court threw out “law of the case,” ignored Green and found violations of the statute of limitations.  All of this without citing one case.  The Plaintiff responded, first, with a Motion for Reconsideration and then, a request that since the Court had refused to recognize the law of the case, the Plaintiff should be given an opportunity to address the issues that the Court addressed, like “continuing hostile work environment,” and “statute of limitations. ”  Because the trial Court below erroneously rejected the law of the case, which the Plaintiff justifiably relied upon, the Plaintiff contended that the same Court should reopen the Motion so that the Plaintiff could address the issues which [...] had addressed in the first Motion for Summary Judgment.  The Plaintiff asserted the proper defense: “law of the case. ”  The Court rejected that and the Plaintiff sought permission for the Court to reopen the Motion for Summary Judgment since the “law of the case,” was no longer available because the Court below did not understand State v. Hale, supra.  POINT IV
[brief] Model Civil Jury Charge 4.10C.  \(^10\)  *Pami Realty, LLC v. Locations XIX Inc.*, 468 N.J. Super. 546 (App. Div. 2021); *Leodori v. Cigna Corp.*, 175 N.J. 293, 304-05 (2003) ("[u]nless required by the Statute of Frauds, N.J.S.A. 25:1-5 to -16, or as otherwise provided by law, contracts do not need to be in writing to be enforceable"); *Williams v. Vito*, 365 N.J. Super. 225, 232 (Law Div. 2003) ("absent a statute to the contrary," the enforceability of an oral contract was "central to American contract law")); *Weichert Co. Realtors v. Ryan*, 128 N.J. 427, 436 (1992) ("An offeree may manifest assent to the terms of an offer through words, creating an express contract, or by conduct, creating a contract implied-in-fact.").  \(^11\)  *Weichert Co. Realtors v. Ryan*, 128 N.J. 427, 435 (1992).  See also *McBarron v. Kipling Woods*, 365 N.J. Super. 114 (App. Div. 2004)(citations omitted).  \(^12\)  See *Smith v. Squibb Corp.*, 254 N.J. Super. 69 (App. Div. 1992)(oral employment contract); *Edwards v. Wyckoff Elec. Supply Co.*, 42 N.J. Super. 236 (App. Div. 1956)(same); *Klockner v. Green*, 54 N.J. 230 (1969)("Oral contracts which have been performed by one party are frequently enforced where to do otherwise would work an inequity on the party who has performed.  Thus, the cases hold that such performance takes the contract out of the statute of frauds.").  contract.\textsuperscript{13}  New Jersey law permits recovery “to the extent of [any] benefit conferred upon and knowingly accepted by the municipality. ”\textsuperscript{14}  Further, no controlling cases hold that a municipality must make a profit or operate as a business to be sued for breach of contract.  \textit{K.S.B. Tech. Sales v. North Jersey Dist. Water Supply}, 75 N.J. 272, 381 A.2d 774 (1977) isn’t controlling because there, the court wasn’t concerned with a suit by a resident against its municipality for the sale of water services involving the delivery of contaminated water.
[brief] See (Da46) “This guideline is met because the certain persons crime is inherently distinct and separate from the robbery itself. ”); (Da48) (“Going back to the separate and distinct offense, the facts also support a finding that the case-at-bar meets Yarbough guideline 3C. ”)).  Defendant points to State v. Cuff to argue that “the sentencing court’s ‘no free crimes’ and ‘separate and distinct’ rationales are identical to those rejected by the Supreme Court.
[brief] An example of the photographic evidence at the earlier February 14, 2018 hearing (Da284) exemplifies this condition of having cars parked haphazardly in a school courtyard with no fire lane, no parking space lines, absolutely none of the requirements usually mandated by site plan approval.  After the 2017 Trial, the Trial Court apparently realized it did not have the jurisdiction to lay out a site plan for the parking use of the courtyard.  However, rather than mandate a requirement or referral for an application to a [...] for such review and approval - an action that should have taken place in 1963 or 1972 if [...]’s claim had any validity - the Trial Court ordered that [...] “shall have priority rights to use the parking lots.
[brief] Next, relying on Adams v. DelMonte, 309 N.J. Super. 572, 582 (App. Div. 1998) and Gregory v. Borough of Avalon, 391 N.J. Super. 181, 191 (App. Div. 2007), [...] urges the JLUB hearings (to consider the separate site plan application) are relevant because the “full nature and extent” of the Redevelopment Plan “did not become apparent” until those hearings.
[brief] Based upon the foregoing, [...] respectfully requests that Appellant’s appeal be denied, and the trial court's May 28, 2021 and July 14, 2023 Orders be affirmed.  [...]  Attorneys for [...]  Court-Appointed Administrator  C.T.A. of the Estate of [...]  BY: DATED: December 15, 2023  SUPERIOR COURT OF NEW JERSEY  APPELLATE DIVISION DOCKET NO. [...]  CIVIL ACTION  On Appeal from the Superior Court of New Jersey  Chancery Division, Probate Part Bergen County  Sat Below: [...], J.S.C.  Docket No. Below: [...]  REPLY BRIEF OF PLAINTIFF/APPELLANT, [...] [...]