ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] *See id.* at 251.  However, each case is fact-specific, and various forms of conduct have been held to constitute a violation of the covenant.  *See Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs.*, 182 N.J. 210, 225 (2005).  Thus, “a plaintiff may get relief if it relies to its detriment on a defendant’s intentional misleading assertions. ”  *Id.* at 226 (emphasis added) (citing *Bak-A-Lum Corp. v. Alcoa Building Prods.*, 69 N.J. 123, 129-130 (1976)).  “As a general rule, [s]ubterfuges and evasions in the performance of a contract violate the covenant of good faith and fair dealing even though the actor believes his conduct to be justified. ”  *Brunswick Hills Racquet Club*, 182 N.J. at 225 (citations and internal quotes omitted) (emphasis added).  This is exactly what is alleged in the Complaint, as against both [...] and [...].  Defendants both argue that Plaintiff failed to allege facts sufficient to state a claim for breach of the implied covenant of good faith and fair dealing.
[brief] There is ample precedent in the case law justifying the appointment of the Special Hearing Officer, and the Trial Court’s decision should not be disturbed.  The appointment of a Special Hearing Officer has its origins in the landmark case of Southern Burlington County NAACP v. Mount Laurel, 92 N.J. 158, 285 (1983) (“Mount Laurel II”).  The Mount Laurel II opinion provided our trial courts with a vast array of remedies and considerable discretion to bring about the speedy construction of affordable housing.  While not providing an exclusive list of remedies designed to bring about prompt compliance, the Supreme Court in Mount Laurel II held that “The point here is that we intend that the appointment of a master be viewed by the court as a readily available device, one to be liberally used. ”  Mount Laurel II, 92 N.J. at 283.  The Court continued:  We adhere to the belief that where conventional remedies are adequate to vindicate a right, they should be employed, that it is unwise to devise remedies that partake more of administrative and legislative than of judicial power where traditional remedies will do.  Judicial legitimacy may be at risk if we take action resembling traditional executive or legislative models; but it may be even more at risk through failure to take such action if that is the only way to enforce the Constitution.  In short, there being a constitutional obligation, we are not willing to allow it to be disregarded and rendered meaningless by declaring that we are powerless to apply any remedies other than those conventionally used.  We intend no discourse on the history of judicial remedies, but suspect that that which we deem “conventional” was devised because it seemed perfectly adequate in view of the obligation it addressed.  We suspect that the same history would show that as obligations were recognized that could not be satisfied through such conventional remedies, the courts devised further remedies, and indeed the history of Chancery is as much a history of remedy as it is of obligation.  The process of remedial development has not yet been frozen.  [Mount Laurel II, 92 N.J. at 287 (emphasis added)].
[brief] The life expectancy charge addresses a known and/or stipulated fact.  The time-unit charge addresses an argument counsel is permitted to make.  The choice to make that argument is based upon the circumstances of the case and counsel’s trial strategy.  If, as Plaintiff suggests, the time-unit argument is made in every case in which the life expectancy charge is given, MCJC 8.11G would not require subsections.  The reality, however, is that the argument does not follow each and every time a jury is charged as to a Plaintiff’s life expectancy.  The subsections provide options to be selected by counsel as the facts of a particular case warrant.  To the extent that Plaintiff argues either that the trial court limited the scope of his time-unit argument and/or that no such argument was presented to the jury, neither argument is supported by the record.
[brief] The trial court’s obligation to find and weigh factors thoroughly and appropriately is not at all changed in the context of a plea bargain.  *State v. Warren*, 115 N.J. 433, 447 (1989) (“[T]he sentencing court is enjoined to consider the aggravating and mitigating factors and other Code considerations in determining whether to follow a recommended sentence that is proffered as part of a plea bargain.  The court in discharging its sentencing responsibilities may not simply accept the terms of a plea agreement. ”) (internal citations omitted).  In other words, while the sentence recommended in the plea agreement is the maximum sentence allowed, the trial court still must exercise its discretion to determine if a lesser sentence is appropriate.  When a sentencing court fails to discharge its responsibility, the sentence must be vacated.  The trial court found aggravating factors (3) the risk that the defendant will commit another offense; (5) there is substantial likelihood that defendant is involved in organized criminal activity; (6) the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; and (9) the need for deterring the defendant and others from violating the law.
[brief] [3T75-7 to -9].  He told defendant, “No, [...], that’s not happening.  We’ve canvassed those issues before, too, some year-plus ago. ”  [3T75-7 to -9].  Defendant interrupted the trial again during the testimony of [...].  [3T126-12].  He asked to be taken to the back room.  [3T126-12 to -19].  The jury was excused.  [3T126-20 to -21].  Defendant demanded to fire his trial attorney and wanted to hire a private attorney.
[brief] **THE TRIAL COURT ERRED IN FINDING PLAINTIFF’S EXPERT OPINION WAS A NET OPINION.**  Defendants attempt to frame the trial court’s decision to bar plaintiff’s expert as based on “the lack of evidence of what was done, how it was done, and how it violated the design manual. ”  Db10.  There was no lack of evidence, however, on each of those points.  Although defendants failed to produce any records or plans, defendant [...] testified to what was done.  Plaintiff established through defendant’s own testimony, Pa66, defendant’s certification, Pa200, and defendants’ requests for admission, Pa213, that the sidewalk as it existed at the time of plaintiff’s fall was created by defendants.  Because defendants had rebuilt the driveway “completely new,” they were obligated to build it correctly, properly and safely.  There was no need to know what was there before; what was there at the time of the fall was **admittedly created by defendants**.  Defendants’ claim of “baseless assumptions” is false.  Db11.  As for the alleged lack of evidence of violation of the design manual, [...] addressed that issue.  He reviewed the testimony of the parties and photographs of the location.  Pa91-98.  He inspected the location.  Pa102.  He made measurements and documented the condition of the premises.  Pa102.  He related the documented conditions to the available standards for safe design and construction.  Pa102-03.  The testimony, photographs, measurements and defendants’ admissions all support the conclusion that defendants deviated from the 1995 design standard and created a hazardous condition.  There are three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at least at a state of the art that such an expert’s testimony could be sufficiently reliable and (3) the witness must have sufficient expertise to offer the intended testimony.  State v. Kelly, 97 N.J. 178, 208 (1984).  The report and proposed testimony of [...], P.E., satisfies those three requirements.  There was no lack of evidence to support the expert’s opinion.  As stated in N.J.R.E. 703, an expert's opinion must be based on "facts or data * * * perceived by or made known to the expert at or before the hearing."  An expert's conclusion is considered to be a "net opinion," and thereby inadmissible, only when it is a bare conclusion unsupported by factual evidence.  Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).
[brief] The reasons why the Court should reject the old, unworkable, common law doctrine were stated perfectly back in 1953 by the author of the law review article cited herein above, after having gone through an exhaustive analysis of the purpose of the common law's stranger-to-the-deed rule and considering how the various different jurisdictions have evolved therefrom as follows:  That a rule so incongruous with our modern social and legal philosophy has survived in even a modified form is in itself something of a mystery.  Certainly any rule which can only operate to defeat a grantor’s intention is undesirable and should be discarded unless some overriding public policy requires its retention.
[brief] The orders denying plaintiff’s motion to extend discovery and quashing the deposition subpoena on [...] were an abuse of discretion because the motion judges’ failed to follow the required factors in deciding the motion.  R. 4:24-1(c) states:  Extensions of Time.  The parties may consent to extend the time for discovery for an additional 60 days.  Such extension may be obtained by signed stipulation filed with the court or by application to the Civil Division Manager or team leader, by telephone or letter copied to all parties, representing that all parties have consented to the extension.  A consensual extension of discovery must be sought prior to the expiration of the discovery period.  Any telephone application for extension must therefore be confirmed in writing to all parties by the party seeking the extension.  If the parties do not agree or a longer extension is sought, a motion for relief shall be filed with the Civil Presiding Judge or designee in Track I, II, and III cases and with the designated managing judge in Track IV cases, and made returnable prior to the conclusion of the applicable discovery period.  The court may, for good cause shown, enter an order extending discovery for a stated period, and order shall also describe the discovery to be engaged in and such other terms and conditions as may be appropriate.
[brief] REPLY BRIEF ON BEHALF OF THE STATE OF NEW JERSEY  [...] (#022031978)  [...]  Administration & Records Bldg. P.O. Box 900  [...] (973)  285-6200 (973)  285-6226 (fax)  ATTORNEY FOR THE STATE OF NJ  [...] (#266292018)  SPECIAL DEPUTY  ATTORNEY GENERAL [...]  [...] OF COUNSEL AND ON THE BRIEF  TABLE OF CONTENTS
[brief] It questioned whether the claim was cognizable on a PCR petition under Rule 3:22-2(c), but, even if it was, ruled that the claim was procedurally barred as being expressly adjudicated and, if it was not previously raised, that it could have been.  (21T13-24 to 14-17 (citation omitted)).  Even further, despite those procedural bars, the court ruled the claim was meritless, finding defendant was convicted of multiple first- and second-degree crimes, many with periods of mandatory parole ineligibility, while the co-defendant pled guilty to a single offense.  (21T14-18 to 23).  The State submits that the PCR court properly denied defendant’s claim and its rulings are fully supported by the record.  The PCR court’s initial question of whether the claim was even cognizable was appropriate, given that in a PCR petition, if raised together with other PCR grounds, a defendant can only claim that a sentence is excessive or not authorized by law.
[brief] ”  The sentencing court accepted defendant’s representation that his request for a full probationary sentence was linked to his ability “to fulfill” his financial restitution “obligation:”  “defendant does need to secure employment, and does need to work, and … any period of incarceration would affect that. ” (13T:16-20 to 17-5; 25-13 to 25-15).  As requested by the defendant, the sentencing court found applicable mitigating factor six, though giving it only “light weight. ”  The sentencing court noted that this finding was based upon defendant’s concession that he “is, in fact, willing to pay restitution” and “has not challenged … the amount of restitution or whether the imposition of restitution would be fair or not fair. ” (13T:17-9 to 18-8; 26-23 27-11).  Defendant’s arguments before this Court with regard to his financial obligations represent an about face to the representations both he and counsel made below.
[brief] ….  [...] does not set requests for illuminants at intersections.  This was confirmed by plaintiff's expert, [...].  The theory of liability … by the plaintiff against [...], if accepted by this Court, would dramatically expand liability and countless scenarios.  Plaintiff seeks to place a duty upon [...] to determine design, … [and] the inadequacy of illumination.  As best this Court knows, this is a duty that has not heretofore been imposed upon [...] by case law or statute.  [(1T34:14-35:19). ]
[brief] See 35 U.S.C. §§ 101, 102(a), 103.  Some New Jersey government official could not readily have done the same and would inevitably have had to “comb through myriad transactions” to find 8:14-21, 11:12-13:8, 25:25-26:24, 61:10-18, 65:17-66:4.  Defendants mention neither this factual issue nor the concept of “trail of the fraud” at all in their brief.  With good reason, what would have set the government on the trail of the fraud is, on the facts of this unique case, a quintessential factual issue that would preclude summary judgment in their favor.
[brief] Page five refers to a deposit account agreement, but does not state where to find it.  It merely mentions an amendment effective on 7/25/23.  If Plaintiff had to wait for notice until he received a statement, then according to the application, he would already be bound because he used the account.  Notice after the fact is not reasonable notice.  Just like judges are not like pigs hunting for truffles buried in a party’s brief, U.S. v. Dunkel, 927 F2d. 955, 956 (7th Cir. 1991), a Bank customer should not have to resemble a dog negotiating an obstacle course before he can receive the “treat”, in this case, the arbitration agreement.
[directive] Victim Medical Information  4.  11  Did the Victim report any medical issues associated with the present offense?  I OYes ONo If Yes, please complete the section below.  Description of Reported Medical Issues Associated With the Present Offense (Please redact all victim personal identifiers from the description as this section is not redacted)  11  Restitution  5.  Prosecutor Victim If Yes, Amount Joint Several If Yes, Name(s) of Co-Defendant(s)  If Yes, Amount Restitution & Restitution (Last Name, First Name, Middle Initial)  Recommended? Recommended? Recommended  Requested? Requested D D 0Yes Yes 0No Yes 0No 0No  I I Restitution Amount Payable to Victim Restitution Amount Payable to VCCO (See Address Above)  VCCO  Claim Number I I I Restitution  Restitution Amount Payable to "OTHER"  Please Specify "OTHER"  Payee Type Payee Name Payee# I I City Payee Address: Street Zip Code State I Reference Number Payee Telephone Comments  Published 09/2017, CN: 11836  Court History
[directive] In New Jersey, patients are legally Increase public awareness of chaperone rights. entitled to have a “chaperone” present during a doctor’s breast, pelvic, genital, or rectal exam, and to receive notice of this entitlement.  If a chaperone acceptable to the patient is unavailable, the patient or the licensee may decline to receive or provide further care, respectively.  The Division will by December 2021 work with the Board of Medical Examiners to identify steps that can be taken, through rulemaking if necessary, to provide patients, including those with limited English proficiency, with better notice of their chaperone rights.  Page 3 observers.  C.
[brief] The trial court again disregarded a case cited by both the Appellants and the Respondents, Rogers v. Cape May County Office of Public Defender, 208 N.J. 414 (2011), which addressed the issue of claim accrual in a highly analogous context.  Remaining entirely consistent with the procedural logic as argued hereinabove, Rogers held that a malpractice claim against a criminal defense attorney did not accrue until the plaintiff’s exoneration in the underlying criminal proceeding.  Rogers presented the issue of whether the statute of limitations began to run when the plaintiff’s conviction was reversed, or later when the indictment was dismissed.  Even though the plaintiff was aware of his attorney’s negligence long before, Rogers held that the operative date for purposes of determining whether the action was timely was the date on which the court entered an order dismissing the indictment.  By refusing to select the earlier date of the reversal of the conviction, Rogers rejected the “knew or should have known” approach employed in personal injury litigation involving the discovery rule.  Moreover, Rogers endorsed the longstanding and high public policy principle of finality by setting the claim-accrual marker at the final disposition of the criminal proceeding.  Rogers stands as yet another case that did not indulge the instant and incredibly narrow distinction and backward application of the discovery rule made by the trial court, but instead looked to the date of the final disposition of the underlying criminal case.
[brief] P-19 September 13, 2019, Deed between [...], [...], heir to [...] and [...] filed with the Monmouth County Clerk on September 30, 2019  P-20 September 18, 2019, Deed between [...], [...], heir to [...] and [...] filed with the Monmouth County Clerk on September 30, 2019  P-21 November 6, 2019, Deed between [...] and [...] filed with the Monmouth County Clerk on November 18, 2019
[brief] (Pa17-27).  The Board determined that the application can be granted without a substantial detriment to the public good and will not substantially impair the intent and purpose of the Zone Plan, Master Plan, and/or Land Use Ordinances of the [...].  (Pa23).  The Board determined that the purpose of the Municipal Land Use Law would be advanced by a deviation from the Zoning Ordinance Requirement and the benefits from the deviation will substantially outweigh any detriment.  (Pa23).  The Board determined that special reasons exist to grant the variance for height and density for the townhomes to be constructed for the following reasons:  1.  The Application for Development will promote the public health, safety, morals and general welfare.  2.  The Application will secure from fire, flood, panic and other natural and man-made disasters.  3.  The application for Development provides for adequate light, air and open space.  4.  The Application promotes a desirable visual environment through creative development techniques and good civic design.  5.  The Application promotes the construction of single-family residential dwellings consistent with current base flood elevation and FEMA requirements and is a substantial benefit to the general welfare of the community.  6.  The site is particularly suited for the subject development as being consistent with the [...] Vision Plan.  [Pa23-24]  The decision was memorialized by Memorializing [...] of the [...] Planning Board [...], adopted by the Board on March 27, 2023.  (Pa17-27).
[brief] ”  Ibid.  Finally, the Court rejected the State’s argument that [...] was not in custody because officers “informed defendant he was free to leave the interrogation area,” because his “movements were circumscribed. ”  *Id.* at 367-68.  More recently, in *State v. [...]*, 246 N.J. 592, 599 (2021), detectives transported an apparent gunshot victim “in the back of a patrol car” to the police department.  [...] then “rode with his father” to the prosecutor’s office, with a police escort.  *Ibid.*  Detectives had some indication to believe that “defendant needed to be interviewed because he was a victim of a shooting. ”  *Id.* at 600.  Detectives did “not advise him of his *Miranda* rights.  *Id.* at 600.  The Supreme Court concluded that [...] was “in custody at the time he provided his statement.
[brief] On said date, the Board gave [...] access to 24 of the 33 ordered records (77a, ¶38).  To said date, the Board also had neither paid the twice ordered $78,646 attorney fee, nor the 8/29/22 ordered uncontested interest amount of $338.00 (77a, ¶39).  On September 13, 2022, [...] filed their order to show cause (79a) due to the Board’ failure to comply with the affirmed 8/28/20 (8a) and 8/29/22 (60a) court orders, imposition of monetary sanctions and civil penalty, and the omitted OPRA records.(68a-69a)
[brief] ” (Aa19).  The Commissioner goes on to mischaracterize [...]’s position, by describing their argument thusly: “that [...] as a standalone municipality that is part of a consolidated school district lacks standing to pursue withdrawal and request to join a regional school district pursuant to N.J.S.A. 18A:13-47.1 et seq.  They further argue that it is [...] and [...] that are responsible for [the]  4  A subsequent request under the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., seeking the September 8, 2023, Amended Petition was denied because the September 22, 2023, decision incorrectly referred to the date of [...]’s and the [...]’ correspondence as September 8, 2023, instead of September 6, 2023.  education [of] the students of [...], and therefore, only they have standing to seek withdrawal. ” [(Aa20). ]  Based upon this erroneous characterization of Appellants’ position the Commissioner held that “[t]his reading of the statute belies its clear language. ” (Aa20).  Instead, the Commissioner states, the statute applies to both boards of education and municipalities “‘the governing body of a municipality constituting a constituent district of a limited purpose regional district, part of an all-purpose regional district, or part of a consolidated school district’ as governmental bodies that may request to join or form an enlarged regional school district. ” (Aa20).  Therefore, the Commissioner held that [...] may seek withdrawal from [...] and Shore Regional under N.J.S.A. 18A:13-47.11, although she noted that [...]’s request was premature.  (Aa20).  What the Commissioner did not do, however, is address Appellants’ argument that, because the former [...] School District was not consolidated with [...], but was rather wholly eliminated as a district and reconstituted as part of a new, expanded [...], the municipality does not actually meet the description of any of the approved entities in N.J.S.A. 18A:13-47.11.
[brief] c.  **The Board’s Reasons for Denial are Entitled to Deference by the Court. **  Not only was the Board’s denial of the granting of the design waivers and of this application reasonable as per *Coventry Square* for the reasons cited above, but also, the Board was well within its purview to cite as reasons for its denial of the application the substantial concerns the Board had regarding safety in the surrounding neighborhood, and the deleterious effect an approval of this application would have on the same.
[brief] With respect to site suitability, “a builder's remedy should be granted unless the municipality establishes that because of environmental or other substantial planning concerns, the plaintiff's proposed project is clearly contrary to sound land use planning. ”  Mount Laurel II at 279-80.  For [...] to allege that Plaintiff did not present any competent evidence regarding the suitability of the Property for an inclusionary development (Db31) is disingenuous because Mount Laurel II clearly places that burden on the Township.  The trial court did not “erroneously shift” the burden to [...], as alleged by the Township.  (Db32).  [...] shows a complete disregard Mount Laurel precedent by completely failing to recognize the constitutional obligations imposed by Mount Laurel I or Mount Laurel II, or to even cite to those cases in attempting to justify its position under Crowe.