ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Even if Plaintiff’s discovery requests were too broad and non-specific, there is no manner in which Defendants can explain why they chose to file their Motion to Dismiss after one-hundred and twenty (120) days, rather than the initial sixty (60) days, other than that they did so in attempt to bar Plaintiff from ever being able to submit an affidavit of merit.  Even in other Affidavit of Merit cases, those defendants filed their Motion to Dismiss after the initial sixty (60) days had lapsed.  See e.g., Moschella v. Hackensack Meridian Jersey Shore Univ. Med. Ctr., No. A-7-23 (N.J. Jul. 11, 2024).  The very conduct of Defendants exemplifies why [...] stated that, [t]he availability of sanctions short of dismissal with prejudice would align the Affidavit of Merit procedure with R. 4:37-2(a) for the first time since the statute was enacted.  Moreover, it would provide judges with a response that is proportionate to most procedural violations and also would serve to save for trial the meritorious cases of injured victims of malpractice.  Ferreira, 178 N.J. at 158 (Long, J., concurring and dissenting).  Here, Plaintiff has a meritorious case that Defendants are attempting to escape liability in due to a procedural defect, which was caused by their own gamesmanship.  Upholding the dismissal of Plaintiff’s Complaint would be an unjust result that is not aligned with the purpose of the Affidavit of Merit Statute and promotes further gamesmanship of same.
[brief] [...]’s action in telling [...] that a “miscommunication” had occurred had the effect of aiding one set of [...]’s clients (the [...]) by detracting from the negligent training and supervision claim against them, while harming [...]’s other client [...], by undercutting his own defense regarding the actions he took on the night in question.  The above facts demonstrate that [...]’s conflict of interest was not merely a hypothetical one.  Rather, the actions of conflicted [...] counsel appear to have had a concrete impact on how [...] testified, impairing not only [...]’s personal interests but, more importantly, undermining the integrity of this litigation and the justice system.
[directive] b.  Included in the information supplied by the [VCCO] shall be information for victims of sexual offenses.  This information shall contain the location of rape crisis centers in all geographical areas throughout the State and shall instruct victims of sexual offenses that if a rape crisis center is not available in a victim’s immediate geographical area, the victim may contact the appropriate county victim-witness coordinator appointed by the Chief of the Office of Victim-Witness Advocacy established pursuant to P.L.1985, c.404 (C.52:4B-39 et seq.).
[brief] 10  STATEMENT OF FACTS AND PROCEDURAL HISTORY  The Appellant relies upon the statement of facts and procedural history set forth in his initial brief filed with this Honorable Court on June 20th, 2024, thereby incorporating the same herein.  As such, those facts and the procedural posture need not be repeated here.  LEGAL ARGUMENT I.  DESPITE THE RESPONDENT’S ASSERTIONS TO THE CONTRARY, PICARIELLO WAS NOT REMOVED FOR CHARGES OF MISCONDUCT RELATED TO HIS EMPLOYMENT (Aa61; Aa52-60; Rb6-11).  This appeal addresses a threshold issue, namely whether [...] is prohibited from receiving deferred retirement benefits as a matter of law.  More specifically, the issue is whether [...] is ineligible and/or disqualified from receiving deferred retirement benefits under the auspices of N.J.S.A. 43:16A-11.2.  This issue is a legal question of statutory interpretation, one which this Honorable Court reviews de novo.
[brief] (See Pb, pages 20-28).  To highlight just a few of the exceptions which solidly support the *bona fides* of the Plaintiff’s appeal requiring this Court’s reversal and entry of an order for a new trial, see: (1) *Perry v. Levy*, 87 N.J.L. 670, 672 (E. & A. 1915), discussing the exception to the exclusion for evidence of “the condition existing at the time of the accident. ”  (2) *Harris v. Peridot Chem. (NJ), Inc.*, 313 N.J. 257, 293 (App. Div. 1998), discussing the admissibility of subsequent remedial measures evidence where it bears on the Defendant’s “… liability, not [its] negligence. ”  (3)  Where the use of such evidence is for the purpose of affecting the credibility of a defense witness on cross examination.  *Hansson v. Catalytic Construction Co.*, 43 N.J. Super. 23, 27 (App. Div. 1956) citing *Lombardi v. Yulinsky*, 98 N.J.L. 332 (Sup. Ct. 1923).  The facts in *Millman v. U.S. Mortgage Title Guaranty Co. of New Jersey*, 121 N.J.L. 28 (Sup. Ct. 1938), where the evidence was determined to be properly admissible are almost identical to the within case.
[brief] | .................................................................. 10 | | Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1 | .................................................................. 10 | | Weiner v. Zoning Bd. of Adjust. of Glassboro, 144 N.J. Super. 509, 516| .................................................................. 10 | | Kramer v. Bd. of Adjust., Sea Girt, 45 N.J. 268, 288 (1965) | .................................................................. 11 | | Wyzykowski v. Rizas, 132 N.J. 509, 519-521 (1993) | .................................................................. 12 | | Charlie Brown of Chatham, Inc. v. Board of Adjustment, | .................................................................. 12 | | 202 N.J. Super. 312 (App. Div. 1985) | | | Angel v. Franklin Tp. Bd. of Adj., 109 N.J. Super 194, 197-199 | .................................................................. 12 | | Wolf v. Zoning Bd. of Adjustment of Park Ridge, 79 N.J. Super. 546 | .................................................................. 12 | Nuckel v. Borough of Little Ferry, 208 N.J. 95, 102 (N.J. 2011) .................. 12 N.J. Transit Corp. v. Franco, 447 N.J. Super. 361 (App. Div. 2016), certif. denied, 230 N.J. 504 (2017) ......................................................... 12 Menlo Park Plaza v. Woodbridge, 316 N.J. Super. 451 (App. Div. 1998), certif. den. 160 N.J. 88 (1999) ............................................. 13 Ferraro v. Zoning Bd. of Adjustment, 119 N.J. 61 (1990) .... 14, 15, 16, 17, 18 Ciocon v. Planning Bd. of the Borough of Franklin Lakes, 223 N.J.Super. 199 (1988)  ............................................................... 14, 18, 19 Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268 (1967)  ......................  16  Coventry Square v. Westwood Zoning Board of Adjustment, 138 N.J. 285 (1994)  ................................................................. 22, 23, 24 Grasso v. Boro of Spring Lake Heights, 375 N.J. Super. 41, 52-53 (App. Div. 2004) ................................................................. 25, 33, 34 Riggs v. Long Beach Tp., 109 N.J. 601, 619-622 ...........................................  31 Manalapan Realty v. Township Committee, 140 N.J. 366 (1995) ............... 31 New Jersey Constitution, Article 4, Section 6, Paragraph 2 .........................................................
[brief] “The commission [i.e., PERC] shall promulgate guidelines for determining the comparability of jurisdictions for purposes of paragraph (2) of subsection g. of section 3 of P.L. 1977, c.85 (C:34:13A-16).” as explaining how the statutory criteria (nine factors) factored into his final determination.  (Aa160)  Clearly, the Arbitrator fully complied with his obligations in rendering a legally proper interest arbitration award in this matter.
[brief] The list of “licensed persons” is explicit.  It does not include [...], a “senior grade engineering technician” who is not a professional engineer.  In that respect this matter is indistinguishable from Haviland, where the negligence alleged was that of an unlicensed “radiology technician” and not a radiologist.  Id. at 374.  Defendant [...]’s reliance on a federal trial court decision from 2005 and a Texas decision from 2011 is misplaced.  [...]b26-27.  Neither case is precedential and neither case adheres to the holdings of the Supreme Court of New Jersey that the statute must be construed narrowly and literally.  Plaintiffs’ claim does not trigger the third requirement because [...] is not a “licensed person. ”  To require an AOM from a “like-licensed” professional when the negligent actor is not a “licensed person” is not realistic.  It is not only contrary to the spirit and purpose of the AOM statute but also its express language.  No AOM is required to pursue the vicarious liability claims against [...] and [...].
[brief] Eminent domain may be utilized to acquire private property necessary for a legitimate public purpose.  American Tel. & Tel. Co. of New Jersey v. Ranzenhofer, 128 N.J.Super. 238, 319 A.2d 754 (A.D.1974).  In enacting the NJ Fair Housing Act, the New Jersey Legislature provided for “the acquisition, construction and maintenance of buildings, structures or other improvements necessary or useful for the provision of low- and moderate-income housing” by “purchase, lease, or acquire by gift or through the exercise of eminent domain”.  N.J.S.A. 52:27D-325.  Thus, the Trial Court was fully authorized by statute to compel the Township to exercise its power of eminent domain for improvements incidental to the provision of affordable housing if necessary - exactly as the Plaintiffs proposed to the SHO, and the SHO recommended in his Resolution.  Neither the SHO nor the Trial Court overstepped their authority, and the Trial Court's rulings in this regard should be upheld.
[brief] The RPC 1.5(d) prohibits contingent fee arrangements in domestic relations and criminal defense matters.  Plaintiff’s attorneys cannot assert that they are entitled to enhancement for contingency fee arrangement in a matrimonial case, because Plaintiff’s attorneys are prohibited by RPC 1.5(d) to engage [...] in a matrimonial case for contingency fee arrangement. \footnote{The record shows that on August 29, 2011, [...], Esq. entered two retainer agreements with [...].  One was for the representation in the matrimonial case \textit{Fou v. Fou}.  The other one was for the malpractice action against [...].  (See Da135-136)  [...], Esq. stopped receiving any more payment of legal fees from [...] after the $50,000 retainer was exhausted.  [...] promised to pay [...] legal fees after they get from [...]’s malpractice case.  (See Da136-137)  Nothing in the record showed that [...], Esq. agreed to represent [...] on pro bono basis in \textit{Fou v. Fou} matter.  His continuance of representation of the matrimonial action \textit{Fou v. Fou}’s was in fact contingency upon the fact that he can prevail on the malpractice action against [...] to collect his legal fees.}  Although on its face, the matrimonial action retainer agreement between [...] and her attorney is not a contingent fee arrangement case, in reality this practice is a de facto contingency fee case.  This is clearly a violation of the RPC 1.5(d), contingent fee arrangements are not permitted in domestic relations and criminal defense matters.  This is the financial motive for [...], Esq. to make various misrepresentations to Court for the purpose to collect his fees.  Therefore, Plaintiff has not demonstrated a compel reason that this case is an exception to the general principle that “enhancement for contingency is not permitted under the fee-shifting statutes”.
[brief] P.L. 2019, c. 157.  Under the Ricci Act, the [...] was required to promulgate rules and regulations necessary to implement the new law.  The Ricci Act states that the [...] “shall notify members and retirants in the retirement system of the enactment of this act, P.L. 2019, c. 157, within 30 days of enactment. ”  N.J.S.A. 53:5A-10(e)(4).  (Emphasis added).  The Board was required to notify all members of the [...] of the Ricci Act by August 7, 2019, including the requirement to “register” by filing a form indicating the dates and locations of service within two (2) years.
[brief] I don’t know whose phone that is.  That’s it. ”  (Da286-285; 14T99-13 to 100-10)  However, Defendant had been making similar statements as early as transcript page 104, very shortly after the detectives finally told him what the interrogation was about on transcript page 90.  (Da243; Da258)  For example, on transcript page 104, Defendant said, “I can’t tell you nothing, so I guess I can’t help myself.  Whatever ya’ll going to do from this point, you have to do, all right. ”  (Da258)  He then repeatedly stated to the police, “I can’t tell you something I don’t know. ”  (Da259, 261)  He soon after again protested the officers’ repeated questions:  “I don’t know what to tell you, man.  I can’t keep – you asking me questions I can’t keep – I can’t tell you what I don’t know or what I don’t remember.  . . .  So that’s just that. ”  (Da263)  He again seemed to attempt to end the conversation on page 128, stating, “I don't know about the phone, so if y'all want to keep asking about the phone, whatever y'all going to do, y'all going to do.  . . .  So that's it.  . . .  I don't know about the phone.  . . .  Whatever y'all going to do, y'all going to do. ”  (Da282)  While the trial court did not find that any of these statements amounted to the invocation of a right to silence it later found at page 132 of the transcript, they are all in the same vein as Defendant’s statement on page 132, and they all occur after the detectives finally informed Defendant they were questioning him in connection with their investigation of a homicide.
[directive] If the offense occurred on or after August 2, 1993 you must pay a $75 Safe Neighborhood Services Fund assessment for each conviction?  [...] a / Defendant’s Initials  Fòm Prensipal Deklarasyon Koupab/Fòm Revize Kreye pa Direktif #01-18, (02/23/2018), CN 10079-Haitian Creole paj 2 nan 7 Main Plea Form/Revised Form Promulgated by Directive #01-18, (02/23/2018), CN 10079-Haitian Creole page 2 of 7  5.
[directive] SUBJECT: Directive Governing Dismissals of Certain Pending Marijuana Charges  On February 22, 2021, the Governor signed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act and the marijuana decriminalization laws.  In light of these new laws, I am issuing this Directive, which supersedes my November 25, 2020 and January 22, 2021 guidance memoranda that instructed prosecutors to seek an adjournment of certain juvenile and adult marijuana cases.  Pursuant to the authority granted to me under the New Jersey Constitution and the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, which provides for the general supervision of criminal justice by the Attorney General as chief law enforcement officer of the State in order to secure the benefits of a uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State, I hereby direct all prosecutors operating under the authority of the laws of the State of New Jersey to dismiss pending marijuana-related charges in accordance with the guidance below.
[brief] Section IV of that code deals with prohibition of certain noises or sounds and provides as follows:  It shall be unlawful for any person to make, cause or suffer or permit to be made or caused upon any premises owned, occupied or controlled by him, or it, or upon any public street, alley or thoroughfare in this municipality, any unnecessary noises or sounds by means of the human voice, or by any other means or methods which are physically annoying to persons, or which are so harsh, or so prolonged or unnatural, or unusual in their use, time and place as to occasion physical discomfort, or which are injurious to the lives, health, peace and comfort of the inhabitants of this municipality or any number thereof.  In *Clarksburg Inn*, supra, 375 N.J. Super. 624, the Court clearly related that in order to be enforceable against the challenge of vagueness, a penal ordinance must contain “specific, objective criteria for a violation to occur”.  *Id.* at 637.  In *Clarksburg Inn*, the Court found that a standard of an audible noise at a distance of 100 feet from the building from which the noise emanated met that standard.  But, no such objective standard is given in the Model Nuisance Code.  Hence, if challenged, it likely would be found unenforceable.  Therefore, [...], and any other municipality within the [...], would be without any ability to regulate noise outside of the Noise Control Act by the Court’s decision below, despite Clarksburg Inn stating a municipality may regulate noise under the Home Rule Act, outside the limitations of the Noise Control Act.
[brief] On the other hand, there are instances where intentional torts, specifically relating to fraud and misrepresentation, do not require an affidavit of merit.  See Stoecker v. Echevarria, 408 N.J. Super. 597, at 619 (2009) (to prevail on the fraud claim, plaintiff did not need to present proof of the deviation from the applicable standard of care because expert testimony is not needed to determine whether a made statement is false and were known to be false); but see (St. Anargyroi, [...] v. [...], No. [...] (N.J. Super.  May 20, 2012) (a claim of negligent misrepresentation that arose directly from the defendant’s services as an attorney representing plaintiffs directly implicated whether there was a violation of the professional standard of care).
[directive] © 2017 [...] ODARA Scoring Form 10.  Prior domestic incident of assault in a police report or criminal record (against current or former Partner or Partner’s child)  Prior domestic:  The Defendant previously assaulted a Partner or a Partner’s child, and it is recorded in a police report or criminal record.  ✔The incident must include physical contact, the use or attempted use of a weapon to contact the victim’s body, or a threat of harm made while displaying a weapon.  If you do not have a detailed description of the incident, count a charge of assault or other violent offense against a Partner or Partner’s child as a domestic incident.  (Note: a charge is not required.)  ✔The prior incident must have been reported to the police.  ✔The prior incident must have occurred on a separate occasion, before the Index Assault.  If the Index Assault is part of a cluster of assaults documented in 1 police report, count any domestic assault against a Partner or Partner’s child that occurred at least 24 hours before the Index Assault as a prior domestic incident.  ✘Incidents involving only pets or property do not count for this Item.  11.
[brief] The Defendant Board erroneously concluded plaintiff submitted the same request, as a different applicant, which the Board previously denied by [...].  That first application sought a bulk variance for the frontage set back, and proposed over 3,600 square feet of building development, a breezeway, two impervious driveways, and 25,440 square feet of land clearing.  Plaintiff submitted a new application which drastically reduced the scope of the intended use.  Citing res judicata, defendant rejected plaintiff’s application.  In granting dismissal of plaintiff’s complaint in lieu of prerogative writs, the trial court also applied the doctrine of res judicata, mistakenly concluding the two applications were substantially similar and the significant changes did not differentiate plaintiff’s variance request.  Accordingly, finding plaintiff sought the “same relief” previously adjudicated and denied by [...], summary judgment was ordered.  On appeal, plaintiff maintains the hardship variance sought for her property ([...] on the tax map of the [...]) should have been granted.  As a matter of law, res judicata could not be applied to plaintiff’s application, because the parties and the subject matter are distinctly different requiring individualized review.  Further, the trial court, like the defendant, failed to properly consider the specific evidence, including: (1) in 1986 and 1987 the [...] issued a hardship waiver of strict compliance for plaintiff’s property, which directs a defined front yard setback; (2) plaintiff’s lot and proposed use are fully compliant with the Estell Manor master plan and ordinances, except for the 200-foot setback, which is overruled by the Pinelands waiver, permitting construction to occur within 100 feet of [...].
[brief] On May 30, 2022, the complaint was filed in the Special Civil Part, small claims section of the Ocean County vicinage.  (Pa1)  On June 13, 2022 the parties were notified that the matter was scheduled for trial on Aug 12, 2022.  (Pa7)  On Aug 11, 2022, defendant [...] filed a motion to dismiss, via its counsel, [...]  (Pa8)  During the calendar call on Aug 12, 2022, I raised the issue that the court should not hear Dirke’s motion at that time, because the motion had only been filed one day in advance, affording me no opportunity to formally oppose the motion.  As a result, the trial court granted my request for an adjournment, and then immediately sent our matter out to mediation, which did not conclude with a settlement being successfully placed on the record.  --- 1  The parties consented to abbreviated transcripts to include only the court’s rulings on 9/23/22 (1T) and 10/21/22 (2T), as we had agreed that all of our arguments are fully set forth via the parties’ certifications and exhibits.
[brief] Ibid.  (emphasis added) (citing Thiedemann, 183 N.J. at 251-53 (“CFA actions that may be brought by private individuals who actually experience a loss due to a consumer fraud violation”) (emphasis added).  More significantly, the Supreme Court reaffirmed “that a prospective buyer did not suffer an out-of-pocket loss caused by a seller’s forgery of the buyer’s signature on a loan application because *the buyer never made a payment on the transaction and the seller eventually repaid the bank.*”  *Ibid.* (emphasis added) (citing *Meshinsky v. Nichols Yacht Sales, Inc.*, 110 N.J.  464, 475 n.4 (1988)).  Here, Appellants’ CFA claim falls into the *Thiedemann* and *Meshinsky* line of cases and fails for the same reason because Appellants have not suffered any harm, damage, or loss as a result of the Concession Recovery Provision.
[brief] Having colluded with [...] to keep the closing and related details hidden from Plaintiff – particularly after promising to keep Plaintiff apprised of the new date – [...] actively aided and abetted [...] and thus breached its contractual duties to Plaintiff.  (See id.)  Under New Jersey law, “[l]iability for aiding and abetting "is found in cases where one party 'knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself."  See Shah v. Shroff, 2023 N.J. Super. Unpub. LEXIS 527, *47-48 (April 2023), citing McCormac v. Qwest Comm. Int'l Inc., 387 N.J. Super. 469, 481, 904 A.2d 775 (App. Div. 2006); Judson v. Peoples Bank Tr. & Co., 25 N.J. 17, 29, 134 A. 2d 761 (1957).  “To prove such a claim, a plaintiff must show that ‘(1) the party whom the defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; (3) the defendant must knowingly and substantially assist the principal violation. ’”  See McCormac, 387 N.J. Super. at 484-85 (quoting Tarr v. Ciasulli, 181 N.J. 70, 84 (2004)).  Aiding and abetting liability focuses on "whether a defendant knowingly gave substantial assistance to someone engaged in wrongful conduct, not whether the defendant agreed to join the wrongful conduct."  Podias v. Mairs, 394 N.J. Super. 338, 353, 926 A.2d 859 (App. Div. 2007).  Determining how much assistance is considered substantial is fact-sensitive.  Here, the factual allegations against [...] in the Complaint amply support each of these elements and, thus, adequately stated a claim for breach of contract and aiding and abetting the breach by [...].  See id.