ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Mass. Bay Ins. Co. v. Hall Bldg. Corp., 2018 N.J. Super. Unpub. LEXIS 7858 (Law Div. 2018) (See TPDa29-TBDa47).  The facts of Mass. Bay are substantially like our case. \(^{12}\)  However, the indemnification clause included the substantially different language.  Id. at *5-*6.  Unlike D’Avila and our case, the Mass. Bay indemnification clause included the phrase “to the extent caused” making the clause identical to that found in Mautz and Englert.  Ibid.  However, citing D’Avila, the Mass. Bay Court reached a finding directly at odds with Englert, finding this specific clause did --- \(^{11}\)  [...] does not cite the following unpublished opinions as somehow legally binding or authoritative.  Rather, [...] cites these cases as additional examples of our courts reaching divergent conclusions when addressing substantially similar indemnification clauses.  \(^{12}\)
[brief] See id.  Ultimately, the Court held that the professional and fiduciary obligation imposed on a lawyer requires that the lawyer discuss with the client the basic advantages and disadvantages of a provision in a retainer agreement that mandates the arbitration of a future fee dispute or malpractice claim against the attorney.  Id. at 496.  In the absence of such an explanation in *Delaney*, the Court found the arbitration provision to be invalid.  See id.  Importantly, this additional *Delaney* requirement to explain the advantages and disadvantages of an arbitration provision, either in writing or orally, applied to a retainer agreement.
[brief] PROCEDURAL BACKGROUND  The lengthy procedural background of this case is set forth in the Brief of the Plaintiff-Appellant/Cross-Respondent.  (Pb, pp. 3-15).  [...] incorporates that background here.  FACTUAL BACKGROUND  The factual background of this case is set forth in the Brief of the Plaintiff-Appellant/Cross-Respondent.  (Pb, pp. 15-25).  [...] incorporates that factual background here.
[brief] ARGUMENTS  1.  THE STATE’S MISREPRESENTATION OF THE RECORD AS TO WHAT OCCURRED BOTH AT THE MUNICIPAL COURT AND AT THE SUPERIOR COURT IS AN EFFORT TO JUSTIFY THE SUPERIOR COURT’S DECISION TO IGNORE THE FACTUAL BASIS FOR MR. PFEISTER’S CONDITIONAL GUILTY PLEA  In its brief, the State in several instances misrepresents both the record developed at the municipal court and [...]’s motives for why the record was made the way it was.  Such misrepresentation directly relates to the weakness of the State’s argument that the Ocean County Superior Court can ignore [...]’s conditional guilty plea.  The State claims that defendant’s refusal at the municipal court to have a trial and his refusal to withdraw his conditional guilty plea at the Superior Court was an attempt by the defendant to hold the courts “hostage” to the record developed at the municipal court.  (State’s brief, page 9, first full paragraph).  This is quite strange, since taking the courts as hostage would mean that an illegal demand is being made by the defendant on the courts.  But [...] was represented both at the municipal court and at the Superior Court by an officer of the court, i.e. a lawyer, who is bound by the relevant court rules and rules of evidence.  The State does not explain how [...] exercising his legal right not to have a trial by entering into a conditional guilty plea under the relevant rule in municipal court (R.7:6-2(c)), is somehow him holding either the municipal as hostage.  The State does not explain how [...] exercising his legal right not to withdraw his conditional guilty plea and the court not exercising its legal discretion to order a withdrawal of that plea at the Ocean County Superior Court (R.3:9-3(e)), somehow means that he was holding the Ocean County Superior Court “hostage”.  [...] conditionally pled guilty for one reason and one reason only, i.e. whether a pumphouse is a structure contemplated with the relevant fish and game statute for which he was cited.  The Ocean County Superior Court ignored, without a proper legal justification, the factual basis for the conditional plea and did not reach the issue for which the appeal was made.
[brief] The Trial Court held that no new panel need be appointed, in accordance with the general rule because the liability had already been decided, saying that:  In Trade Transport, we concluded that the general rule was not controlling because of the special circumstances of that case.  There, the parties had asked the original panel to issue a prompt partial final decision as to liability, and the panel complied.  Following the partial final decision, one of the arbitrators died.  We affirmed the district court's ruling that that event did not revive the question that the panel, pursuant to the parties' agreement, had already finally decided.  Upon the rendering of the requested partial decision, the liability question was no longer pending, that decision was final, and the panel was without power to revisit that question.  Accordingly, we rejected the appellant's contention that, in accordance with the general rule, an entirely new panel should be chosen and the arbitration of all issues should commence anew.  That rule, in light of the parties' agreement, simply was not applicable.
[brief] *The court should not torture the language of the [contract] to create ambiguity.*”  *Stiefel v. Bayly, Martin & Fay of Conn., Inc.*, 242 N.J. Super 643, 651 (App. Div. 1990) (emphasis added).  When viewed in this lens, [...] contends that the indemnification provision is not ambiguous or susceptible to two reasonable alternative interpretations.  Instead, the trial court tortured the language of the Subcontract, engaged in its perversion, and created ambiguity.
[brief] The MLUL is very clear about \(^8\) “MLUL” is the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. the purpose of the zone plan and the way zoning ordinances may be adopted.  See Db 42-47, Point III.  [...] made no attempt to reconcile the substantial violation of the second portion of the negative criteria in its application to the Board for this recently rejected use.
[brief] Further, on nearly every page of its appellate brief, the Borough makes (incorrect) assertions about the construction and compliance of the Roads, yet not a single one of them is supported by a citation to the record, let alone a certification of a person with personal knowledge of the matter.  B.  All of Plaintiffs’ Material Facts Were Properly Deemed Admitted by the Borough (Da11-Da16)  As the trial court correctly found, as a matter of law, the Borough’s response to Plaintiffs’ statement of material facts did not suffice to dispute any of the asserted facts.
[brief] **C.  Defendants’ motion to reconsider merely repeated the same arguments and authorities that had been advanced three times previously**  Even if Defendants’ motion to reconsider did not amount to an improper attempt to obtain a “lateral appeal,” the trial court should have declined to reconsider the motion because Defendants simply repeated the same arguments and authorities that they had already advanced *three times* since 2017.  Rule 4:42-2(b) provides that interlocutory orders are subject to revision prior to final judgment “in the sound discretion of the court in the interest of justice. ”  Although a trial court has discretion to review prior interlocutory orders under Rule 4:42-2, that discretion should be exercised sparingly: “the power to reconsider an interlocutory order should be exercised only for good cause shown and in the service of the ultimate goal of substantial justice.
[brief] (Not Raised Below)  ......................8  TABLE OF CONTENTS (CONT'D)  POINT III  THE ADMISSION OF TESTIMONY THAT DEFENDANT REFUSED A BUCCAL SWAB AND ALLEGEDLY MADE A CONTEMPORANEOUS ORAL STATEMENT AS PROOF OF CONSCIOUSNESS OF GUILT  VIOLATED HIS RIGHT TO A FAIR TRIAL  BECAUSE DEFENDANT ULTIMATELY CONSENTED TO A BLOOD DRAW AND HAD HONEST (THOUGH MISGUIDED)  REASONS FOR OPPOSING THE BUCCAL SWAB.  (Partially raised below, 18T27-20 to 32-5)  ..................................................................................................................12  CONCLUSION  .................................................................................................................................14
[brief] THE TRIAL COURT ERRED IN FAILING TO COMPEL AN ACCOUNTING WHERE THE FIDUCIARY DID NOT PROVIDE REASONABLE INFORMATION THAT IS REQUIRED UNDER THE NEW JERSEY PROBATE CODE.  (Pa434-35; Pa525-26; 1T15:22 – 1T19:3; 2T23:14 – 2T27:10).  Rule 4:87-3(b) governs the form of accounts to be submitted in a formal accounting, and provides that all accounts shall include the following components: (1) a full statement or list of the investments and assets composing the balance of the estate in the accountant's hands, setting forth the inventory value or the value when the accountant acquired them and the value as of the day the account is drawn, and also stating with particularity where the investments and assets are deposited or kept and in what name; (2) a statement of all changes made in the investments and assets since they were acquired or since the day of the last account, together with the date the changes were made; (3) a statement as to items apportioned between principal and income, showing the apportionments made; (4) a statement as to apportionments made with respect to transfer inheritance or estate taxes; (5) a statement of allocation if counsel fees, commissions and other administration expenses have been paid out of corpus, but the benefits of the deductions from corpus have been allocated in part or in whole to income beneficiaries for tax purposes; and (6) a statement showing how the commissions requested, with respect to corpus, are computed, and in summary form the assets or property, if any, not appearing in the account on which said commissions are in part based.  R. 4:87-3(b).  The responsive papers submitted by Defendant can be deemed to have mostly satisfied subpart “(1)” of Rule 4:87-3(b), except that he has not provided a full inventory value for each asset, and did not even reference every asset that came into his possession.  For each and every other component of an accounting, there is absolutely no information to be found in the papers submitted to the trial court or previously provided to Plaintiff, despite numerous requests.  Even without filing for an accounting, the limited information previously requested by Plaintiff was required to be provided by [...].  See N.J.S.A. § 3B:31-67(a).  Defendant’s failure to provide this information is a breach of his fiduciary duty.  Plaintiff’s status as a debtor of the Estate as well as a beneficiary does not alleviate Defendant of his fiduciary responsibilities.  Moreover, as seen from Defendant’s responsive papers, he went to great lengths to avoid providing an accounting in this Estate and Trust – an accounting that would be provided not only to Plaintiff, but also the other beneficiaries, namely, [...] and the [...].  Said responsive papers provided voluminous details with respect to the assets that came into Defendant’s hands, but virtually nothing about what has become of said assets.  Most curiously, Defendant has stated to the trial court that “there is nothing in the estate.
[brief] (14T 29-14 to 19).  That the State produced cellular telephone data during discovery presupposes questions about defendant’s whereabouts at the time of the shooting for which defense counsel, who was unable to interpret the data on his own, did not investigate.  (14T 30-5 to 14; 19T 14-19 to 25).  Without dispute, defense counsel’s trial strategy was to attack [...]’ credibility, (14T 37-4 to 10), since he was the only witness to identify defendant as the shooter.  As a result, defendant’s whereabouts at the time of the shooting 6  Defendant’s trial attorney did not specifically deny that he was unaware of defendant’s potential alibi.  (14T 21-22 to 22-1). were critical to defense counsel’s trial strategy.  That being so, defense counsel’s inability to recall details about discussions with defendant over his whereabouts at the time of the shooting appears contrived.  Accordingly, defense counsel’s failure to explain his reasons for not undertaking a reasonable investigation into defendant’s whereabouts at the time of the shooting renders the attorney’s performance deficient.
[brief] (Pa1-Pa10)  In connection with this application for relief from the Law Division’s Summary Judgment Order, the Appellant is requesting that this Court reconsider and extend the law as it applies to property owners, and impose a stricter standard, whether it be a commercial standard or a hybrid standard that would take into consideration properties under construction.  In Luchejko v. City of Hoboken, 207 N.J. 191 (2011), the New Jersey Supreme Court’s decision distinguished the two types of property – commercial versus residential, and pointed out that New Jersey Courts have not moved from the holding that does not “impose sidewalk liability on homeowners.
[brief] [...] continued that [...] was trying to hit him again, but he had grabbed the tire iron and prevented him from doing so; [...] let go when the police arrived, and threw it into the woods.  (3T 78-2 to 22).  [...] acknowledged that his statement reflects him telling the police that he had been hit six to seven times with the iron; however, he maintained that he was struck once.  [...] testified that he did not recall saying in his statement that someone had brought the iron to [...]; rather, he had said that [...] threw it into the woods.  (3T 70-14 to 71-20).  [...] added that an officer, whose identity he did not know, told him that he would find the iron.  (3T 73-7 to 23; 3T 78-23 to 79-21).  [...] testified that he received a “head injury,” while acknowledging that he was released from the hospital “within hours.
[directive] members [...] can agree to a pre-determined percentage  Lastly, it is acceptable if one of the federal agencies (whether [...] or [...]) again, for ease - of operation agrees to execute all the forfeitures and receives a fair and appropriate - percentage to cover that administrative burden.  When an investigation becomes protracted, and the moment of sharing occurs long after an initial agreement has been generated, said agreement should be revisited to ensure that the interests of all parties are fairly addressed.
[directive] AVISO: Este es un documento público, lo cual significa que el documento tal como se envíe estará a la disposición del público cuando se solicite.  Por lo tanto, no anote en el mismo ningún identificador personal, como por ejemplo: el número de Seguridad Social, el número de la licencia de conducir, el número de la matrícula del vehículo, el número de la póliza del seguro, el número de una cuenta financiera activa, o el número de una tarjeta de crédito activa.  NOTICE:  This is a public document, which means the document as submitted will be available to the public upon request.  Therefore, do not enter personal identifiers on it, such as Social Security number, driver’s license number, vehicle plate number, insurance policy number, active financial account number, or active credit card number.
[brief] ## TABLE OF AUTHORITIES | CASES | PAGE | |----------------------------------------------------------------------|------| | **388 Route 22  Readington Realty Holdings, LLC v. Township of Readington,** | 221, N.J. 318, 338 (2015)  ........................................................................... | 1 | | **Atlantic Container, Inc. v. Eagleswood Planning Bd.,** | 321 N.J. Super. 261, 269 (App.Div. 1999)  .................................................. | 27 | | **Burbridge v. Mine Hill Twp.,** | 117 N.J. 376, 385 (1990)  ............................................................................... | 37, 38 | | **Chicalese v. Monroe Twp. Planning Bd.,** | 334 N.J. Super. 413,419 (Law Div. 2000)  .................................................... | 1, 38 | | **Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Twp. Of Franklin,** | 233 N.J. 546, 558 (2018) ............................................................................... | 1, 38 | | **Estate of Fisher,** | 443 N.J. Super. 180, 190 (App. Div.2015) .................................................... | 28 | | **Jantausch v. Borough of Verona,** | 41 N.J. Super. 89, 96 (Law Div. 1956).  ....................................................... | 1, 27, 38 | | **Kramer v. Bd. of Adjustment, Sea Girt,** | 45 N.J. 268, 296 (1965).  ............................................................................... | 37 | | **Md. Ctr. V. Princeton Zoning Bd. of Adjustment,** | 343 N.J. Super. 177, 198 (App. Div. 2001) ................................................... | 37 | | **New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adjustment,** | 160 N.J. 1, 14 (1999)  .................................................................................... | 38 | | **Pullen v. Tp. of South Plainfield,** | 291 N.J. Super. 1, 6 (App. Div. 1996) .......................................................... | 27 | | **Reich v. Borough of Fort Lee Bd. of Adjustment,** | 414 N.J.Super. 483, 499 (App. Div. 2010). .................................................. | 1 | | **Route 22 Readington Holdings, LLC v. Township of Readington,** | 221 N.J. 318, 338, 113 A.3d 744 (2015) .......................................................... | 38 | | **Rowatti v. Gonchar,** | 101 N.J. 46, 51-52 (1985) .............................................................................. | 38 | | **State v. Olivero,** | 221 N.J. 632, 639 (2015), certify. denied, 224 N.J. 528 (2016) ..................... | 28, 37 | | **Toll Bros. Inc. v. Township of W. Windsor,** | 173 N.J. 502, 549 ......................................................................................... | 1 | | **Township of Pennsauken v. Schad,** | 160 N.J. 156, 170 (1999) .............................................................................. | 28 | Wyzkowski v. Rizas, 132 N.J. 509,518 (1993) ........................................... 27 STATUTES N.J.S.A. 40:55D-70(c) ..............................................................................
[brief] of other counsel reflecting a rate higher than awarded by the trial court, Defendant aptly pointed out that these rates were not for MMWA actions like here but were for class actions.  Instead, Defendant argued that the hourly rate, based upon Defendant’s counsel’s own experience in the specific subject area, should be $250/hour.  See Statement of Reasons at p. 11, P019a.  Therefore, the trial court properly exercised its discretion here, considering the arguments of the parties regarding the hourly rates and ultimately using a rate between the rates requested by the parties.  Second, the trial court outlined specifically what it deemed to be the reasonable number of hours expended in this action.  See Statement of Reasons at p. 13, P021a.  Once again, the trial court was afforded discretion to determine the amount of reasonable fees in this matter and exercised that discretion.  See Hansen, 253 N.J. at 217.  Furthermore, regarding the third and fourth factors, the trial court stated that it was “awarding the reasonable fees based upon the result obtained. ”  See Statement of Reasons at p. 13, P021a.  In conducting an analysis of the “reasonableness” of fees based upon the result obtained by Plaintiff and reducing the lodestar accordingly, the trial court acted well within its discretion.
[brief] As noted by our Supreme Court in Shepard v. Woodland Tp. Comm., 71 N.J. 230, 248 (1976):  \begin{quote}  [I]t is a major question to decide whether the aged should live in special segregated areas, or scattered among the general population; a decision on this is likely to be phrased in terms of a land-use decision.  Why should the courts invoke judge-made policy to preclude responsible local officials from implementing such policies?  (citing (Williams, American Planning Law: Land Use and the Police Power, s 1.11 at 22 (1974)))  \end{quote}
[brief] Permit, and DEP’s denial of [...]’s adjudicatory hearing request, ignored a factual navigational harm that is unique to Appellant and which is sufficient to establish a particularized property interest.  But as applied to [...]’s interests, DEP found no rights were implicated or affected.  (Aa135).  DEP responded that navigation is a generalized consideration, akin to traffic concerns, that may result from adjacent development.  (Id.).  DEP likens navigation impacts to traffic impacts, where private development can increase burdens on the general public—even disproportionately to those in the immediate vicinity of the proposed development—but the impacts are nonetheless general in nature and do not give private parties individual standing for an adjudicatory hearing on the permit.  In re Amico, 371 N.J. Super. at 211.
[brief] the same protections to distributors as the MBPA.  See Citibank, N.A. v. Errico, 597 A.2d 1091, 1095 (N.J. Super. Ct. App. Div. 1991) (“there is no impediment to applying a contractual choice of substantive law provision as long as the public policy of the forum state is not violated”); Bulut v. JPMorgan Chase Bank, N.A., No. 22-04276, 2023 WL 869402, at *6 (D.N.J. Jan. 27, 2023) (Da104-Da110) (finding that Delaware law governs agreement under New Jersey choice-of-law rules because “there is no reason to believe that applying Delaware law is contrary to a fundamental policy of New Jersey”) (internal quotations and citations omitted).12
[brief] The [...] had jurisdiction to approve or deny the variance request of [...].  The 1986 Waiver of Strict Compliance obtained by [...] as memorialized in the January 29, 1987 NOTICE OF FILING does not constitute an approval.  Ja197, Ja271.  “It does authorize any other agency to review and act on the proposed development. ”  Ja197  A municipal planning board has the right to reject a proposed development within the Pinelands if it determines that the criteria for a variance is not met even if a waiver of strict compliance is obtained.  The Pinelands Comprehensive Management Plan contains minimum standards for development within the Pinelands.
[brief] The deferred disposition had been dismissed by the time of the sentencing.  (5T:24-12 to 18; 2T:14-17 to 24)  [...]’s adult co-defendant, “were influenced by [...]. ”  (2T:19-10 to 21)  While the court imposed concurrent sentences for the four robbery convictions because they were committed “so close in time and place as to indicate a single act or crime,” it ran the robbery convictions consecutive to the homicide convictions, “notwithstanding the fact that they occurred at the same place, in a relatively short span of time,” because they involved “separate acts of violence” and “predominantly independent objectives.