ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] I.  Plaintiffs have standing to seek disqualification.  A party has standing when it has a stake and real adverseness in the subject matter of the litigation, and a substantial likelihood that harm will fall upon it in case of an unfavorable decision.  *N.J. Citizen’s Action v. Riviera Motel Corp.*, 296 N.J. Super. 402, 415-16 (App. Div. 1996).  Where “the proceeding serves the public interest” and a party “is not simply an interloper,” the court will likely find standing.  *Id.* at 415 (quoting *In re Quinlan*, 70 N.J. 10, 34-35 (1976)).
[brief] On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. [...].  Attorneys and Law Firms [...], Public Defender, attorney for appellant [...] ([...], Designated Counsel, on the brief).  [...], Public Defender, attorney for appellant [...] ([...], Designated Counsel, on the brief).  [...], Bergen County Prosecutor, attorney for respondent ([...], Senior Assistant Prosecutor, of counsel and on the briefs).
[brief] ”  Duvin v. Bd. of Trs., Pub. Emps.’ Ret. Sys., 76 N.J. 203, 207 (1978).  Here, [...] seeks to evade an obvious legislative restriction outlined in the Ricci Act that provides he is ineligible for the presumption or recalculation after July 8, 2021.  And even if [...] did not receive the postcard or any of the other notice provided by the Division, it does not permit him to evade the two-year limitation period.
[brief] Respondent’s reliance on the clear and convincing standard in \textit{In re Niles Trust}, 176 N.J. 282, 300 (2003) overlooks the particular facts in that case involved undue influence by a fiduciary, to which the higher “clear and convincing” standard of proof was required to rebut a presumption of undue influence that arose.  The high “clear and convincing” standard is applicable only in limited circumstances where a presumption of undue influence arises that must be rebutted by a fiduciary/attorney or the recipient of a gift.  Neither of those circumstances are present here.  Therefore, the Court’s finding that Petitioner was required to prove undue influence of the Decedent by the Respondent by clear and convincing evidence was erroneous as a matter of law.
[brief] [Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011) (omission in original). ]  Stated differently, Rule 702 imposes three 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 a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.
[brief] (Pa2567; Pa2569; Pa2572.)  [...] reaffirmed its coverage denial to [...] under the CCIP on January 29, 2019.  Thereafter, in February 2019, [...] put forth significant effort to have both [...] and [...] prosecute a declaratory judgment action seeking coverage under the CCIP.  (Pa2575-2579.)  However, by March 12, 2019, it became clear that [...] was not interested in pursuing a declaratory judgment action.  This resulted in [...] revising its draft declaratory judgment complaint to name [...] as a defendant, which would then force “[...] to assert cross claims” against [...], which, in [...]’s words, would “then realign parties” and their respective interests.  (Pa2577.)  Notwithstanding [...]’ unwillingness to pursue coverage, on April 11, 2019, Plaintiffs filed this action (the “DJ Action”) alleging [...] failed to defend and indemnify [...] under the CCIP.
[brief] In affirming the trial court’s dismissal of the CFA counterclaims, the *[...]* court reasoned:  Here, the CFA is inapplicable to defendant's claim against the collection agency because any misrepresentations by the collection agency, even if made, were not in connection with the sale of merchandise to defendant.  The alleged prohibited conduct occurred later on, when the collection agency was attempting to collect the debt from defendant.  The collection agency's contacts with defendant were not an offer to sell merchandise, nor did defendant buy anything from the collection agency.  Debt collection activities on behalf of a third party who may have sold merchandise are not unconscionable activities “in connection with the sale” of merchandise.  *See, e.g.*, *Chulsky v. Hudson Law Offices, P.C.*, 777 F. Supp. 2d 823, 847 (D.N.J.2011) (holding that the CFA does not cover the debt collection activities of a third party that purchases consumer debt); *Joe Hand Promotions, Inc. v. Mills*, 567 F. Supp. 2d 719, 723-24 (D.N.J.2008) (finding that a letter demanding payment of a settlement did not fall within the CFA because plaintiff was not induced to purchase merchandise or real estate).
[brief] In his two separate depositions, plaintiff testified that before the [...] bought their property, stormwater runoff from the driveway on [...] damaged his property.  When plaintiff was deposed in the Burke Action, he testified that the [...] had extended their driveway.  Pa45, ¶ 24; Pa330, ¶ 24; accord Pa112-14 at 10:4-12:3.  He further contended that the extension of the [...]’ driveway was one of the conditions on the Burke’s property that caused his property to flood.  Pa45, ¶ 25; Pa330, ¶ 25; accord Pa117-119 at 15:21-17:1, Pa121 at 24:5-:18, Pa122 at 64:3-:16.  When plaintiff was deposed in the Dwyer Action, he reiterated that the [...] had extended and regraded their driveway.  Pa45, ¶ 27; Pa330, ¶ 27; accord Pa141 at 66:20-67:12.  He admitted that part of the damages that he claimed in the Burke Action was that by extending their driveway, the [...] caused water runoff to flow from their property onto plaintiff’s property.  Pa45, ¶ 28; Pa330, ¶ 28; accord Pa143 at 75:12-:16.  He also contended that by adding fill to extend their driveway, the [...] narrowed the opening for water to flow, channeling it onto his property.  Pa46, ¶ 29; Pa330, ¶ 29; accord Pa143 at 77:9-:18.  Last, he testified that the [...] graded their driveway toward his property, causing water runoff to flow onto his property and damage his trees.  Pa46, ¶ 30; Pa330, ¶ 30; accord Pa144 at 80:3-81:24.  C.
[brief] Reply at 7-9.  Defendant claims that because Plaintiffs’ production included only 1,537 pages of documents, such “limited” production is not possible “unless either Plaintiffs have been taking an overly restrictive definition of ‘relevant’ or…have not maintained any documents over the last thirty years. ”  Id., at 6 n.3.  Defendant thus asks the Court to grant its motion to compel.  Id., at 9.
[brief] S.S., 229 N.J. at 374.  After [...] sat down on the curb, [...] testified that he saw a firearm in plain view in the open bag.  (T8-14 to 18, 10-3 to 10)  [...] then searched the bag and found a handgun and drugs.  (T10-8 to 9)  From [...] arriving on the scene to searching the bag, this entire incident was about fifteen seconds long.
[brief] The interrogation began with standard questions about [...]’s relationship with [...] and their interactions on the night in question; however, [...] eventually began to assert his belief that [...]’s alibi about turning onto Governor was not true:  MALDONADO: You sure you didn’t walk past Governor with him?  GRANT: I walked to -- (indiscernible).  MALDONADO: You walked up -- you didn’t go past Governor?  GRANT: No.  MALDONADO: One hundred percent sure?  GRANT: Yeah.  MALDONADO: A hundred percent?  GRANT: Uh-huh.  MALDONADO: Or you just don’t remember?  GRANT: I remember I walked up Governor.  MALDONADO: What if I told you, you walked past Governor.  [Da 67, 17:21 to 17:40 (emphasis added). ]  [...] then announced, “I’ll get straight to the point,” and proceeded to directly assert that [...]’s alibi was not true and that he killed [...]:
[brief] ” (5T10: 11-13).  As such, the [...]’ failure to transfer the Share for $250,000 was the direct proximate cause of [...] having to pay the Purchase Price instead of only $250,000 to purchase the Share.  Courts recognize rescissory damages for an adjudicated breach of the duty of loyalty in cases involving self-dealing or where a fiduciary puts personal interests ahead of the interests of its beneficiary.  Where a disloyal fiduciary wrongfully deprives its beneficiary of property, the rescissory damages measure seeks (i) to restore the plaintiff-beneficiary to the position it could have been in had the plaintiff or a faithful fiduciary exercised control over the property in the interim and (ii) to force the defendant to disgorge profits that the defendant may have achieved through the wrongful retention of the plaintiff’s property.  In re Orchard Enters., Inc. S'holder Litig., 88 A.3d 1, 38 (Del. Ch. 2014).  Here, [...] deprived [...] of the Share, which they purchased for $250,000 using [...].  [...] could have sold or transferred the Share to [...] for what they paid for it, but instead they orchestrated events such that [...] had to spend $1,500,050.55.  As such, damages in the amount of $1,250,050.55 shall restore [...] to the position it “could have been in” if [...] or a faithful fiduciary had purchased the Share instead.
[brief] The standard of review of a trial court’s decision granting or denying a motion to dismiss is de novo.  See Rezem Family Assoc., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.), cert. denied, 208 N.J. 366 (2011).  The Court “review[s] such a motion by the same standard applied by the trial court; thus, considering and accepting as true the facts alleged in the complaint; [it] determine[s] whether they set forth a claim upon which relief can be granted.  *Sickles v. Cabot Corp.*, 379 N.J. Super. 100, 106 (App. Div. 2005).  Further, an appellate court has the broad latitude to search the record before it and affirm the final judgment of the trial court on grounds other than those upon which the trial court relied.  See *New Jersey Div. of Child Protec. and Permanency v. K.M.*, 444 N.J. Super. 325, 333–34 (N.J. Super. App. Div. 2016) (internal citations omitted).  See also *Hayes v.  Turnersville Chrysler Jeep*, 453 N.J. Super. 309, 313–14 (N.J. Super. App. Div. 2018).  **POINT II**
[brief] POINT 2(AA0094)  THE ACTIONS OF THE DEFENDANT  VIOLATED  THE NEW JERSEY CONSUMER FRAUD ACT (N.J.S.A. 56:8-1 et. seq.)  The New Jersey Consumer Fraud Act states, in pertinent part:  The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice; N.J.S.A. 56:8-2.  To violate the Act, a person must commit an "unlawful practice" as defined in the legislation.  Unlawful practices fall into three general categories: affirmative acts, knowing omissions, and regulation violations.  The first two are found in the language of N.J.S.A. 56:8-2, and the third is based on regulations enacted under N.J.S.A. 56:8-4.  A practice can be unlawful even if no person was in fact misled or deceived thereby.  D’Ercole Sales v. Fruehaf Corp., 206 N.J. Super 11 (App. Div. 1985).  When, as here, the alleged consumer-fraud violation consists of an affirmative act, intent is not an essential element, and the plaintiff need not prove that the defendant intended to commit an unlawful act.  *Chattin v. Cape May Greene, Inc.*, 124 N.J. 520, 522 (1991) (Stein, J. concurring).  In respect of what constitutes an "unconscionable commercial practice," this Court explained in *Kugler v. Romain*, 58 N.J. 522 (1971), that unconscionability is "an amorphous concept obviously designed to establish a broad business ethic."  *Id.* at 543.  The standard of conduct that the term "unconscionable" implies is lack of "good faith, honesty in fact and observance of fair dealing."  *Id.* at 544.  Because any breach of warranty or contract is unfair to the non-breaching party, the law permits that party to recoup remedial damages in an action on the contract; however, by providing that a court should treble those damages and should award attorneys' fees and costs, the Legislature must have intended that substantial aggravating circumstances be present in addition to the breach.  *DiNicola v. Watchung Furniture's Country Manor*, 232 N.J. Super. 69, 72 (App.Div. 1989) (finding that breach of warranty in supplying defective furniture and denying that defect existed was not unconscionable), certif. denied, 117 N.J. 126, 564 (1989);  This transaction employed unconscionable means, contrary to the public policy of New Jersey, by purchasing an assignment of an interest in a pre-judgment personal injury claim.
[brief] See Medici v. BPR Co., 107 N.J. 1, 21 (1987) (“intent and purpose of the governing body when the ordinance was passed”).  Not every zoning provision advances *every possible general purpose listed in N.J.S.A. 40:55D-70*.  And third: “promot[ion]” of the factors in N.J.S.A. 40:55D-2 is part of the *positive criteria*, not the *negative criteria*.  See Pullen, supra.⁸  The second problem creates an entirely different negative criteria analysis than exists under N.J.S.A. 40:55D-70(c).  The trial court says “the intent and purpose --- ⁸  The distinction is inherent in “positive” and “negative. ”  The “positive criteria” requires proof of the existence of the applicable criteria, such as undue hardship.  The “negative criteria” requires proof the absence of the applicable criteria, such as substantial detriment to the “zone plan.
[brief] *(Aa141)*  [...] alleges that the Defendant’s avoidance of payment of taxes denies it any good faith argument.  All property owners whose failure to pay local property taxes, “because of inattention, willful disregard or impecuniousness, results in issuance of a tax sale certificate, are permitted to redeem their property if they pay the tax sale holder what is due and is the lateness in paying, excusable or forgiven.
[brief] [*2]  As stated in the Court's Dismissal Order, "[t]o state a claim for retaliatory discharge, an employee must plead that (1) the employer discharged the employee, (2) the discharge was in retaliation for the employee's activities, and (3) the discharge violates a clearly mandated public policy."  Roberts v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 2019 IL 123594, ¶ 23, 135 N.E.3d 891.  The Court previously held Plaintiff had satisfied the first two elements at this stage of the proceedings.
[brief] Finally, Plaintiff’s contention that the trial court erred in holding that there were no material facts in dispute is equally meritless.  In his appellate brief, Plaintiff states that he “disputes” [...]’s positions regarding whether the streetlight was out and whether [...] had adequate notice of the outage.  Yet as set forth at length at Point I.B., supra, Plaintiff presented no evidence to support his position that the streetlight was out at the time of his accident, nor that [...] had notice of any alleged outage.
[directive] Internal affairs personnel, if available, should accept complaints.  If internal affairs personnel are not available, supervisory personnel should accept reports of officer misconduct, and if no supervisory personnel are available, complaints should be accepted by any law enforcement officer.  At no time should a complainant be told to return at a later time to file their report.  5.1.2 Members of the public should be encouraged to submit their complaints as soon after the incident as possible.  If the complainant cannot personally appear at the agency to file the complaint, a member of the agency, preferably a member of the internal affairs function, should visit the complainant at their home, place of business or other location if necessary to complete the report.  Law enforcement agencies are encouraged to establish systems to enable complaints to be accepted by telephone or by email if a complainant does not wish to be interviewed in person or wishes to remain anonymous.  Under no circumstances shall it be necessary for a complainant to make a sworn statement to initiate the internal affairs process.  Furthermore, every police agency shall accept and investigate anonymous complaints.
[brief] R. 1:13-4(a).  If such action is appealed without having been transferred, the appellate court may decide the appeal and direct the appropriate judgment to be entered in the court to which the action should have been transferred.  R. 1:13-4(b).  However, we choose not to do so in light of the limited proceedings below, the essential thrust of the defense being the lack of jurisdiction and not the merits of the controversy."
[brief] The next time [...] attempted to collect [...]’s semen after September 26, 2018 was on October 3, 2018, the day of the attack.  On October 3, 2018, around 9:30 am, Plaintiff [...] was leading [...] from the barn to the breeding shed for his semen to be collected and frozen.  (Pa655a).  Plaintiff [...] testified that, on the way to the breeding shed, [...] attacked him, knocked him down, and struck, stomped, and bit him.  (Pa662a).  [...] testified that [...] tried to kill him.  (Pa662a).  [...] was wearing a protective helmet and vest during the attack because, he testified, “with a stallion … you never know when they’re going to turn on you. ” (Pa665a).  [...], a veterinary technician at [...], was in the lab connected to the breeding shed, washing a bucket in preparation for collecting semen from [...], when she heard a noise outside.  (Pa763a).  She looked outside and saw Plaintiff [...] on the ground with [...] on top of him.  (Pa763a-764a).  [...] took the bucket and ran outside and threw the bucket at [...] to break his attention.  (Pa765a).  The bucket of water seemed to “snap [...] out of it and he backed off. ” (Pa765a).  [...] has been a stallion behavior scientist and clinical specialist at the [...] since 1985.
[directive] The law also provides that in those situations the presentence investigation must include: (1) an inquiry and verification that the person who will be responsible for the child’s care and custody during the period of the sole caretaker’s incarceration has agreed to assume responsibility for the child’s care and custody; and (b) a PROMIS/GAVEL network check, juvenile central registry check and domestic violence central registry check on the person who will be responsible for the child’s care and custody during the period of the sole caretaker’s incarceration as well as any other adult or juvenile over twelve years of age who is a member of that person’s household.  The law further provides that the court shall provide [...] with the information resulting from these inquiries.  Upon receiving this information collected by the court, [...] must conduct a child abuse record information check to ascertain whether there have been any substantiated incidents of child abuse or neglect against the person who will be responsible for the child’s care and custody or any adult or juvenile over twelve years of age who is a member of that person’s household.  If, based on the information provided by the court and the check of its child abuse records, [...] determines that the incarcerated person’s minor child may be at risk of abuse or neglect or that the child’s emotional, physical, health care, and educational needs will not be met during the period of the sole caretaker’s incarceration, [...] must take appropriate action to ensure the safety of the child.  Additionally, the law also addresses the separate situation where an individual has been convicted of any of a list of specifically enumerated offenses and the victim of the offense was under the age of 18 at the time.
[brief] Contra (Db19-29).  By its own terms, the order does not prevent students from voluntarily sharing information about their sexual orientation or gender identity or expression with their parents; does not influence or encourage students to withhold this information from their parents; and does not compel or coerce students to identify as transgender or gender nonconforming.  See John & Jane Parents, 622 F.Supp.3d at 130-134 (emphasizing parents’ demand to be “informed of” a child’s gender identity is constitutionally distinct from cases in which a school coerces a student not to speak with their parents).  Nor does it restrict any parents from communicating with or counseling their children about this topic.  All this injunction does is prevent Appellants from discriminating against LGBTQ+ students via a blanket affirmative notification policy, and even then only for so long as [...]’s administrative action remains pending.  The cases on which Appellants rely—and all of the United States Supreme Court’s cases involving fundamental parental rights—fit the distinction between failure to inform and actual interference easily.
[brief] Nonsensically, [...] extols "the uniqueness of the design that I was referencing and with the architectural design what we've done is the top floor, the fifth floor, is actually a slightly smaller floor when compared to the floors below it" (1T42-25 to 1T43-4).  Making the top floor slightly smaller than the floor beneath it is not a unique architectural innovation and (again) it means that the neighbors can elevate to 50-55' or more if only they make the lower stories slightly larger.
[brief] [...] utilized the “paired sales technique” to analyze “sales or rental data on nearly identical properties . . . to isolate a single characteristic’s effect on value or rent,” such as the construction of a regulator station, and determine the impact of the Project on nearby property values.  (Aa74; Aa1037).  \(^9\)  Pursuant to N.J.A.C. 7:36-26.1, the proposed use of properties funded by the Green Acres Program “for other than recreation and conservation purposes” requires State approval.
[directive] These include, but are not limited to, deadlines imposed as part of Law Enforcement Directive Nos. 2019-5 (Internal Affairs Directive) and 2019-7 (Municipal Prosecutor Directive), as well as my December 4, 2019 Letter to the Police Training Commission.  3.  In light of the likely disruptions in available courses necessary for law enforcement to fulfill their numerous training obligations, the date of completion for trainings and the expiration date of certifications governed by prior directives due or set to expire between today, March 20, 2020, through June 30, 2020, are extended until August 31, 2020.
[brief] Id.  By contrast, in AGS Computers, Inc. v. Bear, Stearns & Co., this Court reversed the wholesale denial of prejudgment interest because the trial judge’s findings on the question were simply that interest “was not expected by plaintiff.  . . .”  244 N.J. Super. 1, 5 (App. Div. 1990).  But even the AGS court’s analysis surpasses what the trial court engaged in below.
[brief] Because defendant [...] was not charged with offenses concerning [...], evidence concerning him is set forth here only as pertinent to [...]’s case.  [...] told the police that she had heard gunshots, but testified that she had mistaken the sound of [...]’s car striking the others for gunshots, and no gun was at the scene.  (8T 237-21 to 238-2).  [...] also told police that she had heard a noise that could have been gunshots, but it could also have been the result of an automobile collision.  (8T 116-17 to 117-18).  Eric [...] testified\(^5\) that he went to [...]’s home with [...], who sold drugs for him.