ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Analogously, where N.J.R.E. 404(b) would permit the introduction of the same evidence at each trial, severance is inappropriate because the defendant will not suffer any more prejudice, if any exists, in a joint trial than he would in separate trials.  See e.g., *State v. Morton*, 155 N.J. 383, 451-52 (1998); *Chenique-Puey*, 145 N.J. at 341.  The court must assess whether prejudice is present, and the test is “whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under N.J.R.E. 404(b) in the trial of the remaining charges. ”  *Ibid.*  N.J.R.E. 404(b) requirements must be met.
[brief] **COUNTERSTATEMENT OF FACTS**  Appellant sued [...] and [...] individually and on behalf of a purported class for claims arising under the NJCFLA, CFA, and FDCPA.  (Pa1)  Because this appeal is based on the trial court having granted Respondents’ Motion to Dismiss, Respondents limit their Counterstatement of Facts to those alleged in Appellant’s Complaint.  (Pa1 – Pa25).  Likewise, Respondents limited their Motion to Dismiss to arguments supported by the pleadings alone. \(^1\) --- \(^1\)  For example, Appellants did not plead facts sufficient to allow Respondents to raise the otherwise dispositive argument that, as a strictly Prior to suit, Appellant incurred a credit card debt that she owed to the original card issuer, [...] (the “Obligation”).  See Compl. ¶ 39 (Pa 9).  Capital One ultimately sold the Obligation to [...] after charging the Obligation off its books as a receivable.  Id., ¶ 48 (Pa9).  Once [...] acquired the Obligation, [...] assigned the Obligation to [...] for servicing and collection.  Id., ¶ 39, 41-43 (Pa9).  Appellant acknowledges that she incurred the Obligation, and that the Obligation “was past-due and in default” when [...] acquired it and assigned it to [...].  Id., ¶ 43 (Pa9).  On April 23, 2019, [...] “mailed a collection letter to [Appellant] (the “[...] Letter”).”  Id., ¶ 50 (Pa9).  The [...] Letter stated that [...] “acted on behalf of [...] in an attempt to collect the Debt. ”  Id., ¶ 44 (Pa9).  Appellant “received and reviewed the [...] Letter,” which explained that “the current creditor is [...]. ”  Id., ¶ 52-53 (Pa10).  The [...] Letter also contained [...]’s letterhead and return service address, and the signature of [...]’s Customer Support Team.  Id.; see also Pa23.  The [...] Letter specifically identified [...] as the debt _____________________ passive debt buyer, [...] does not need to be licensed as a consumer lender, or otherwise, under the NJCFLA.
[brief] ”  3T76-2 to 12. which he placed on the desk or other furniture in the room, including surfaces found contaminated by mold.  3T14-13 to 3T15-21.  The foundation wall in the corner of the bedroom was the principal source of water intrusion into the condominium.  The highest concentrations of airborne and surface mold contamination were found in his bedroom.  [...] accepted [...] as an expert medical toxicologist but ruled that his testimony was not credible because it was not backed up by scientific studies, did not address mold dosage and the frequency of consumption of mold contaminated by mycotoxins (Da26-27), and erroneously relied on urine testing not recognized by the CDC and the FDA.
[brief] By: /s [...]  [...], Esq.  Ass’t County Counsel  Dated: December 27, 2023  January 3, 2024 Vis eCourts [...], Clerk  New Jersey Superior Court, Appellate Division  Richard J. Hughes Justice Complex  P.O. Box 006 Trenton, New Jersey 08625-006  Re: [...], Esq., [...]  D/B/A [...] and [...], V.  [...], [...], Newark Mayor [...], [...], Newark City Clerk [...], Newark Corporation Counsel  [...], Esq., Newark Business Administrator  [...], Esq., Newark Director of Economic and Housing Development  [...], Newark Director of Finance  [...], Newark Division of Tax Abatement And Special Taxes Manager  [...], CTC, Newark Tax Assessor [...], Esq., [...], Essex County Executive [...], [...], Attorney General of New Jersey [...], [...], [...], And [...], Docket Number: [...]  Civil Action: On Appeal from [...]
[brief] **Standard of Review**  An appellate court will not upset the ultimate determination of an agency unless shown that it was arbitrary, capricious or unreasonable, or that it violated legislative policies expressed or implied in the act governing the agency or where the findings on which the decision is based are not supported by the evidence).  *Campbell v. Dep't of Civil Serv.*, 39 N.J. 556, 562 (1963).  See *Prado v. State*, 186 N.J. 413, 427 (2006), which applies this standard to the Attorney General's decision denying a state employee's request for representation when the employee is sued.  *In re Proposed Quest Academy Charter School*, 216 N.J. 370, 385-87 (2013), applied the standard to an appeal from the Commissioner of Education's denial of a license to create a charter school.  The Court also noted that the standard assumes that there is sufficient credible evidence to support the decision; otherwise, the decision would be arbitrary, capricious or unreasonable.  Ibid.  **LEGAL ARGUMENTS**
[brief] The “non-exclusive” factors for determining a “voluntary” consent set forth in State v. King, 44 N.J. 346 (1965), are not intended to be a sort of legal accounting ledger, recording numerical plusses and minuses with a [...]’s fate hanging in the balance. \(^{16}\)  In this case, [...]’s first encounter with the police was in the parking lot of New Jersey the apartment, where he was rushed at and surrounded numerous armed police officers; handcuffed; and searched.  The court found that the State had failed to prove that any statement made by [...] from the time of his arrest \(^{16}\)  Even so considered, in this case it is clear that all of the factors tending to show coercion existed, while none of those tending to show the consent was voluntary was present.  (See Da42-43).  until the time of his sole on-the-record “confession” some 8 hours later were not made in violation of his Fifth Amendment rights, including those made in the tainted interview which occurred inside his apartment immediately after his arrest.
[brief] ”  Id. In State v. Madison, No. A-4086-09T2 (App. Div. April 11, 2011) officers were surveilling a high narcotics area when they observed the defendant approach the codefendant.  The officers recognized both the defendant and the codefendant from earlier narcotics investigations.  The defendant and codefendant then entered a unit, then exited a minute later and separated.  The officers began to follow the defendant’s vehicle during which they observed the driver place something in his mouth.  Based on these observations, a motor vehicle stop of the defendant was conducted.  The Court held that the officers had reasonable suspicion to stop the defendant’s vehicle based on the facts that the officers had received complaints --- 2
[brief] Defendant was fully aware of his Miranda rights and attempted to use them as a bargaining chip to escape prosecution.  Any assertion that defendant’s will was overborne is flatly contradicted by the fact that defendant—over and over—asked for leniency, and [...] repeatedly told him that leniency was not in his power.  Contrary to defendant’s claim, [...]’s theme during the interview was not leniency, but rather that if defendant cooperated, it would help mitigate his charges and a potential sentence.  Such a tactic does not conflict with Miranda warnings.  Cf. L.H., 239 N.J. at 44 (explaining that “[c]ertain lies” directly contradicting Miranda warnings may render a confession involuntary).  Defendant’s interview sharply contrasts with L.H. and O.D.A.-C, where police made false promises of leniency and confidentiality, and pre-emptively minimized the importance of *Miranda* warnings.  Instead, [...] directly referred to the *Miranda* form as a reason why he could not make promises.  Defendant’s will was not overborne, and his statements were voluntary.
[brief] Cf. Boston Gas, 454 Mass. 337, 340.  “Weighting” property damage “by AOC” is especially inappropriate in this case.  [...] admitted the property damage present here is not divisible by AOC, but rather “[t]his is one site-wide groundwater problem[.]” (Pa0285.)  As correctly recognized by the trial court in granting [...]’s motion for reconsideration: [...] indicated he used dates suggested by [...] counsel to represent the end of operations in the various AOC’s as end dates for the allocation of property damage.  [...] acknowledged these dates do not represent the end of property damage, and that it was a single plume of groundwater contamination, and impossible to determine the timing of the contamination from any one AOC and the relation to the property damage.  (Pa0204.)
[directive] 8  Because of the pandemic, the Court temporarily suspended the use of in- person grand juries in March 2020 and authorized the use of virtual grand juries two months later.  See Sup. Ct. of N.J., at 1 (Mar. 19, 2020 Order); Sup. Ct. of N.J., at 2-3 (May 14, 2020 Order).  9  Defendant properly points out that the court was not permitted to extend the two-year clock beyond his January 3, 2022 release date for reasons not defendant.
[brief] Notably, *between 2018 and 2022, [...]’s counsel’s rates increased by approximately 30% on average.*  (See Da109; Da149)¹¹.  Although their 2016 rates were not specified in the Global Fee Application, assuming they were increased by an amount similar to their increases between 2018 and 2022, *[...]’s counsel’s rates increased by an average of almost 53% between 2016 and 2022*¹².  --- ¹¹  The 2018 rates of Messrs. [...], [...], [...], and [...] were $400, $475, $575, and $675, respectively.  (Da109).  Their 2022 rates were $550 (37.5% increase), $635 (33.68% increase), $725 (26.09% increase), and $825 (22.22% increase, respectively.  (Da149)  ¹²  This is assuming the 2016 rates of Messrs. [...], [...], [...], and [...] were $325, $400, $500, and $600, respectively ($75 less than their respectively 2018 rates).  This is a reasonable assumption since, between 2018 and 2020 each of their rates increased by $75, except Mr. [...], whose rate increased by $100.  The Global Fee Application was filed on September 23, 2022.  Had [...] and his counsel decided to wait a few more months until the end of the calendar year, would they instead have been entitled to their even higher 2023 rates?  Such a finding would be a total distortion of Rendine and Delaware Valley and would incentivize all litigants, where applicable, to delay filing fee applications for as long as possible.  Therefore, if this Court determines that [...] and/or his counsel are entitled to any fees from the Global Fee Application – which it should not do – the rates in place when the work was conducted should be applied, not the 2022 rates.
[brief] Failure to charge the jury sua sponte regarding a lesser-included charge will warrant reversal where that error is “sufficient to raise ‘a reasonable doubt’ as to whether it “led the jury to a result it otherwise might not have reached. ””  Funderburg, 225 N.J. at 79 (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)).  That standard is met in this case.  Even if the jury believed [...] was the killer, there was still the important question of her intent.  There was no witness who could opine on [...]’s intent, and there was no confession that suggested a murderous intent.
[brief] In addressing that issue, the only relevant questions to consider were (i) whether the Roads were dedicated to the Borough on the subdivision map, (ii) whether the Roads were inspected and received final approval from the municipal engineer, and (iii) whether the Borough released Plaintiffs’ performance guarantees.  As the trial court correctly found, the answer to all of those questions is “yes,” and, as will be shown in this section, the Borough has not made a single valid argument to the contrary.
[brief] ”  The transcript plainly reveals that the State did not intend to have [...] identify Defendant in S-113 – a photo extracted from [...]’s cellphone depicting him before he obtained his teardrop tattoos – as the prosecutor opened by confirming with [...] that he was not providing any testimony as to the substance of the calls, and after Det [...]’s unintended statement the prosecutor clarified his question immediately:  [...]: Now, Detective, you're not testifying to the substance of these calls or messages; is that correct, sir?  [...]: No, sir, I'm not.  [...]: You were not party to any of those?  [...]: No, sir, I was not.
[brief] One policy had a face value of $350,000 when purchased and had the Policy Number [...], herein referred to as the [...] 611-policy.  (R-877)  The second policy had a face value of $250,000 when purchased and has the Incentive Life Legacy Policy Number[...] and is referred to as the 538-policy.  (R-858)  When the [...] was forced to reveal this information, they insisted that both the policies that were made payable to [...] had been changed and the new beneficiary on those two policies was [...].
[brief] Raising an affirmative defense in opposition to a motion for summary judgment is not appropriate and should not preserve same for appellate review.  Kopin v. Orange Products, Inc., 297 N.J. Super. 353, 375-376 (App. Div. 1997) (citations omitted).  Recoupment is an affirmative defense, and pursuant to the Court Rules, must be plead.  See R. 4:5-4 (requiring affirmative defenses plead); See also Associates Home Equity Services, Inc. v. Troup, 343 N.J. Super. 254, 270-271 (App. Div. 2001)(identifying recoupment as an affirmative defense).  Set-off is also an affirmative defense, but may also be construed as a counterclaim, which also must be plead.  See Beneficial Finance Co. v. Swaggerty, 86 N.J. 602, 609 (1981)(discussing difference between recoupment and set-off) (citations omitted).  Defendant did not plead recoupment and/or set-off as part of Defendant’s Answer but was required to plead such to properly present same to the trial court and preserve/seek appellate review.  PA – 10 to 11; R. 4:5-4; Brown, 208 N.J. Super. at 384; See also Alloco, 456 N.J. Super. at 145 (noting that the Appellate Division generally declines appellate review for questions or issues not properly presented to the trial court).
[brief] On October 1, 2021, Plaintiff [...] filed a Request to Enter Default (11a) and a Certification in Support of Default (12a-13a), attaching Affidavits of Service.  The filed Affidavit of Service for [...] alleges that he was served on August 23, 2021 at 9:25 a.m. by service upon individual named “[...], spouse of --- 2  The Court curtailed this line of questioning as not relevant which was error in that it was being offered to show Mr. Milov’s state of mind as being unaware of the Tax Foreclosure Complaint.  T3:115:19-p.116:24  3  No such person exists as will be shown here in further detail.  [...] wife”.  14a.  The Process server is [...] and the Affidavit is Notarized with a date two months before alleged service, June 23, 2021.  14a.  The second filed Affidavit of service purports to serve [...].  16a.  Also on October 1, 2021 the Plaintiff filed a Motion for An Order Fixing Amount, Time and Place for Redemption indicating taxes due on the Tax Sale Certificate of $20,694.64.  21a.  On October 15, 2021, the Court entered an Order Setting Time, Place and Amount of Redemption for December 14, 2021.  30a.  On November 15, 2021, Plaintiff filed a Motion to Substitute Plaintiff substituting [...] for [...].
[brief] Isaac v. NRA Grp., LLC, 377 F. Supp. 3d 211 (E.D.N.Y. 2019) ..........................................  32  Jablonowska v. Suther, 195 N.J. 91 (2008) ................................................................... 17 Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 90 ..............................................................................
[brief] Defense counsel, unprompted, congratulated all participants on a fair trial:  Thank you, Your Honor.  At this time, I’d also on the record, like to thank Your Honor and your staff.  It was a really well conducted trial, and I really appreciate that.  And also I’d like to thank my adversaries, and the gentlemen (indiscernible), and I appreciate it.  (5T, at 30:11-16).  When the jury returned, they unanimously found that: (1) Plaintiff suffered injuries proximately caused by the subject collision; (2) Plaintiff was entitled to $3,500.00 for lost earnings proximately caused by the collision; (3) Plaintiff suffered a permanent injury as a result of the collision; and (4)  Plaintiff was entitled to $927,000.00 in compensatory damages (5T, at 33:9-34:17).  Defendants moved for a new trial on July 25, 2023 (Da51-52).
[brief] Defendants failed to comply with the 8/20/20 Final Order (8a) after it was affirmed by this Court on 5/18/22.  On 12/16/22, [...] abused his discretion when he improperly denied Plaintiffs’ proposed Final Order (246a) for an OPRA civil penalty to be assessed against Defendants.  The amount sought of $1000 was in accordance with N.J.S.A. 47:1A-11(a) and the Penalty Enforcement Law, P.L. 199, c 274.  The point of contention between parties which bears the most decisive weight in this matter is whether [...] and [...], in his official capacity as the School Business Administrator and Board Secretary, violated [...]’s 8/20/20 Final Order and this Court’s 5/18/22 affirmation (12a).
[brief] On November 17, 2020, an Answer to Plaintiffs’ Complaint was filed on behalf of Defendants [...] and [...].  (Da10 to 14).  On April 5, 2021, an Amended Answer was filed on behalf of Defendants [...], [...] and [...].  (Da15 to 20).  On January 18, 2023, Plaintiff filed a motion in limine to bar testimony at trial from Defendant [...].
[brief] First, has the Supreme Court’s holding that all legal malpractice claims are exempted from the entire controversy doctrine been overruled by an unpublished opinion of this Court?  Second, does the reliance upon the Supreme Court’s holding referenced in the first question preclude a Court from barring a subsequent action when no demonstrable prejudice was in the record and the failure to join the prior claim was excusable and would have made no difference to the outcome in the prior case.  Third, is an attorney who negligently fails to convey a testator’s wishes in his will by drafting an ambiguous provision insulated from liability by a probate’s court application of the doctrine of probable intent?  Finally, can a Court ignore a discrete allegations of liability on a motion to dismiss and still dismiss the entire case?  This is an action for legal malpractice alleging that the Defendant, [...], Esq.  (“Balsamo”) was negligent in his representation of both [...], individually and Anthony’s father, [...] (“Francesco”).  It is undisputed that the key provision of Francesco’s will was ambiguously drafted by Balsamo.  An action captioned “In The Matter of [...]”, (hereafter “The Probate Action”), the Probate Court, found the provision was ambiguous.  While the Probate Court, after finding the provisions ambiguous, applied the doctrine of probable intent so as to defeat the bequest to [...] and to the benefit his now ex-wife, the issue of Balsamo’s negligence was not before the Probate Court and should not estop a fact found reaching a different conclusion in this action.  It is submitted that the Trial Court’s dismissal of this matter pursuant to the entire controversy doctrine is contrary to black letter precedent of our Supreme Court.
[brief] Akhtar v. JDN Props. at Florham Park, L.L.C., 439 N.J. Super. 391, 399 (App. Div. 2015).................................................................39  Bender v. Walgreen E. Co., 399 N.J. Super. 584 (App. Div. 2008)..................................................................................17, 18, 20, 26, 47  Berman v. Gurwicz, 189 N.J. Super. 89, 93–94, 458 A.2d 1311, 1313–14 (Ch. Div. 1981), aff’d, 189 N.J. Super. 49, 458 A.2d 1289 (App. Div. 1983)  ...........................................40  Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 783 A.2d 246, 253 (App. Div. 2001).......................................................23, 24 Brizak v. Needle, 239 N.J.Super. 415, 431-32, 571 A.2d 975 (App.Div.),certif. denied, 122 N.J. 164, 584 A.2d 230 (1990)......................................................................................23, 24 Couri v. Gardner, 173 N.J. 328, 340, 801 A.2d 1134, 1141 (2002).....................22, 25, 26 DePrimo v. Lehn & Fink Prods. Co., 223 N.J. Super. 265 (Law Div. 1987)…..38, 39 DiTrolio v. Antiles, 142 N.J. 253, 273–74, 662 A.2d 494, 505 (1995)
[brief] Pb20.  This is false.  [...] concluded that “the [...] did not cause or create a stormwater runoff condition that differed from the condition that existed under prior owners. Pa290-91.  Moreover, because plaintiff bears the burden to prove the elements of a claim of nuisance, he cannot fail to present a prima facie case of nuisance and then argue that the trial court improperly granted summary judgment.  Ross, 222 N.J. at 505-06.  Because plaintiff presented no evidence that the [...] made a negligent or unreasonable use of their property by repaving their driveway and replacing the railroad tie lining with Belgian block, T64:4-12; Pa252 at 19-33:13; Pa44:9-45:17, the Court should affirm the judgment below.
[brief] Earl, 14 N.J. at 132.  In concluding that holding, Earl undertook a historical analysis of New Jersey’s successive statute of limitations dating back to February 7, 1779, with the enactment of the “Act for the Limitation of Actions. ”  Id. at 129-132.  Throughout the decades following Earl, New Jersey jurisprudence has clarified the distinctions that govern and trigger the applicable statute of limitations.  Lautenslager v. Supermarkets General Corp., 252 N.J.
[brief] (Da63- --- 1  The procedural history and statement of facts are combined for purposes of concision and clarity.  65.)  The dismissal was without prejudice, and directed that “Plaintiffs may seek leave to file an amended complaint within 45 days. ”  (Da65.)  The order also granted defendants’ motion to change the discovery track from Track II, personal injury, to Track III, medical malpractice or professional responsibility, as unopposed.  (See ibid.; Da92.)  By orders filed April 28, 2023, [...] granted plaintiff’s motion for leave to file an amended complaint and denied defendants’ cross motion to dismiss the suit with prejudice, “as discovery still needs to be conducted with regard to the allegations. . . of medical malpractice, gross negligence, recklessness and/or willful misconduct.
[brief] On or about February 10, 2023, a young female paralegal at [...] texted Plaintiff and asked him to call her.  Plaintiff subsequently spoke to the paralegal on the phone.  The paralegal complained to him that Defendant [...] had, in the workplace, while in a third-floor conference room, inappropriately touched her body.  She told Plaintiff that she was also going to report the incident to an associate of [...], [...], whom she also worked for at the law firm, since he was currently in the office.  Da36, ¶ 70.  On or about February 10, 2023, Plaintiff told Defendant [...] that he objected to [...]’s sexual harassment of the female paralegal.  Plaintiff told [...] that he should not have engaged in such behavior towards a female staff member.  [...] did not express any remorse.  Rather, he asked Plaintiff if anyone else knew.  Plaintiff gave him the name of [...].  Id., ¶ 71.  G.  Plaintiff Objects to Other Unethical Conduct