ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The Parties, through counsel, extensively negotiated the terms of the Agreement and discussed the ramifications of such terms over a six month period from May 2020 to until the signing of the Agreement in November 2020.  See DA096-103  On May 14, 2020, Plaintiff, through counsel, wrote to the [...] specifically requesting that the [...] “dismiss misconduct charges as related to [Plaintiff’s] disability and move to benevolently file for [IOD] rather than terminate [Plaintiff][.]”  See DA096.  On May 20, 2022, the [...], through counsel, advised Plaintiff, through counsel, that the [...] agreed to proceed with an IOD application, however, the [...] would not agree to proceed with its disciplinary charges against Plaintiff if the [...] did not deem Plaintiff disabled and retired, rather, any agreement with Plaintiff would require cessation of employment upon a decision by the [...], regardless of whether Plaintiff appealed such decision.  See DA100.  On June 4, 2020  Plaintiff, through counsel, agreed that Plaintiff’s IOD could fail under N.J.A.C. 17:1-6.4 and thus proposed that the underlying misconduct charges specifically be “withdrawn and dismissed [under the Agreement] because they are related to or were caused by the disability” to increase the likelihood of a favorable IOD application.  See DA103-106.  Plaintiff’s June 4, 2020 letter additionally recognized that if Plaintiff’s IOD application failed, the underlying misconduct charges would render Plaintiff ineligible for the Deferred Benefits provided by N.J.S.A. 43:16A-11.2.  Ibid.  On May 26, 2021, the [...] administratively denied Plaintiff’s IOD application pursuant to N.J.S.A. 43:16A-8(2) because his irrevocable resignation would leave him with no position to return to if, at any point in the future, his disability diminished to the point that he could return to employment.
[brief] Id. 13.  In May 2020, [...]’s submission of revised concept plans and bulk standards to the Township Defendants.  Pa016-Pa017.  14.  On May 15, 2020, the Township Defendants’ rejection of [...]’s revised proposal and concomitant demand for “engineered site plans[,]” which the Special Adjudicator found to be “particularly ridiculous because detailed engineering efforts are not undertaken by a developer when zoning is not yet in place due to the significant costs associated with the same.
[brief] ii.  The easement is not perpetual and is only enforceable so long as [...] operates in accordance with Orthodox Jewish tenets.  (Da13-18; Da751; Da980)  In its June 25, 2020 decision, the Appellate Division stated “if an easement was established, there remain issues of material fact as to whether the easement is perpetual [and] if a perpetual easement had been established, there remain issues of material fact as to whether the easement was subsequently terminated. ”  (Da751)  As noted by the Appellate Division, “[p]erpetual contractual performance is not favored in the law and is to be avoided unless there is a clear manifestation that the parties intended it. ”  In re Estate of Miller, 90 N.J. 210, 218 (1982).  The Congregation never took the position the easement is perpetual, acknowledging the easement was granted in exchange for and conditioned upon [...]’s express promise to operate the synagogue in accordance with Orthodox Jewish tenets.  (Da13-18)  An easement may “be created for a fixed term or for the accomplishment of a specific purpose,” although the “extent of the easement created by a conveyance is fixed by the conveyance.
[brief] [...] filed a timely motion for leave to amend to add [...] as a defendant and to add claims for (1) malicious prosecution; (2) libel per se; (3) violation of the Consumer Fraud Act; and (4) violations of the Westerholds’ civil rights.  The trial court denied the motion in its entirety on May 25, 2021, and on June 25, 2021 denied the Westerholds’ motion for reconsideration.
[brief] The Court specifically recognized that a good faith negotiation would involve the items that the [...] contended were essential to the agreement:  [...]:  Just for clarification, what I think your Honor is saying, but just for clarification is, you recognize the MOU as an agreement.  There is an obligation of both parties to negotiate in good faith a sales agreement.  Is that what the Court is saying?  THE COURT: Yes.  [...]: Yes, okay.  Good.  THE COURT:  Well, I mean, let’s say – I mean, consistent with this – I am not saying all of a sudden we are going to have all new terms – [...]: Consistent with the agreement.  THE COURT: -- consistent with the agreement, I think that is what it calls for.  But I don’t think you want more than this ultimately until the closing takes place, but some of these other things that are important to your client and that may be important to [...]’s client, perhaps there is some leverage to get concessions on those and I think you can negotiate that in good faith.  1T80-5.  On October 17, 2023, the [...]’ transactional counsel emailed Plaintiff’s counsel a draft Assignment and Assumption of Membership Interests and Agreement (the “Assignment”).
[brief] Moving on, exception (c) permits any fundamental constitutional claim to be raised on post-conviction review, such as ineffective assistance of counsel or a due process violation, even if it could have been raised before.  Preciose, 129 N.J. at 460; State v. Mitchell, 126 N.J. 565, 585-86 (1992).  As the Court explained in Preciose, “an ‘error that denies fundamental fairness in a constitutional sense and hence denies due process of law' can be asserted in post-conviction proceedings as long as it was not litigated previously.
[brief] [...]  [...]  [...] (Attorney ID# 030521989)  [...]  [...] (Attorney I.D. #240742018)  [...]  Physical Address: [...]  [...]  Mailing Address: [...]  Telephone: [...] | Facsimile: [...]  Attorneys for Defendant, Arthur E. Balsamo, Esq. Of Counsel and On the Brief: Marshall D. Bilder, Esq.  On the Brief: [...]  # TABLE OF CONTENTS | Section | Page | |------------------------------------------------------------------------|------| | Table of Authorities | iii | | Preliminary Statement | 1 | | PROCEDURAL HISTORY | 4 | | COUNTERSTATEMENT OF FACTS | 4 | | Legal Argument | 9 | | Point I: Collateral Estoppel Precluded Plaintiffs' Action | 9 | | Point II: Plaintiffs' Action Was Barred By The Entire Controversy Doctrine | 17 | | Point III: Plaintiffs' Claims Based on Negligent Advice And Attorneys Feed Are Groundless | 24 | | Conclusion | 31 | ### TABLE OF AUTHORITIES | Cases | Page(s) | |----------------------------------------------------------------------|---------| | **Cogdell v. Hosp. Ctr. at Orange** | 17, 18 | | 116 N.J. 7 (1989) | | | **Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C.** | 19, 21-22 | | 237 N.J. 91 (2019) | | | **DiTrolio v. Antiles** | 19-21 | | 142 N.J. 253 (1995) | | | **Jefferson Loan Co. v. Session** | 24 | | 397 N.J.Super. 520 (App.Div. 2008)) | | | **Kent Motor Cars, Inc. v. Reynolds and Reynolds, Co.** | 17-18 | | 207 N.J. 428 (2011) | | | **Manhattan Woods Golf Club, Inc. v. Arai** | 18 | | 312 N.J. Super. 573 (App. Div. 1998) | | | **Olds v. Donnelly** | 22 | | 150 N.J. 424 (1997) | | | **Oliver v. Ambrose** | 18 | | 152 N.
[brief] Schools should not socially transition students in secret from their parents.  Based on these considerations, schools should not socially transition minors “without consultation with parents and appropriate professionals. ”  ACa31 ¶ 42.  Indeed, no professional body “has endorsed school-facilitated social transition of minors without parental [involvement].”  ACa36-ACa47 ¶ 81.  School policies “excluding parental involvement [in the decision whether to socially transition their child are] contrary to widely accepted mental health principles and practice” and are “likely to lead to student harm. ”  ACa47, ACa49 ¶¶ 82, 86.  ARGUMENT  The State has not satisfied its burden of demonstrating the preliminary injunction factors by “clear and convincing[]” evidence.  *Waste Mgmt. of New Jersey, Inc. v. Union Cnty.  Util. Auth.*, 399 N.J. Super. 508, 519–20 (App. Div. 2008) (setting forth preliminary injunction factors).  I.  THE STATE IS NOT LIKELY TO SUCCEED ON THE MERITS  Below, the court concluded that the Parental Notification Policy violated New Jersey law, and it enjoined that Policy and required the District to reinstate the Parental Secrecy Policy.  This was error.  Under the Supremacy Clause of the United States Constitution, parents’ federal constitutional rights trump any other state-law rights that might be at issue.  *Montgomery v. Louisiana*, 577 U.S. 190, 205 (2016), *as revised* (Jan. 27, 2016).  Moreover, it is black-letter law that a state-court injunction may not violate federal constitutional rights.  *Horizon Health Center v. Felicissimo*, 135 N.J. 126, 148–49 (1994) (modifying injunction that “impermissibly exceeds [federal constitutional] standards”); see also *N.A.A.C.P. v. Claiborne Hardware Co.*, 458 U.S. 886, 916 n.51 (1982) (noting that in a “civil lawsuit between private parties,” the “application of state rules of law by . . . state courts in a manner alleged to restrict [constitutional] freedoms constitutes ‘state action’ under the Fourteenth Amendment” (quoting *New York Times Co. v. Sullivan*, 376 U.S. 254, 265 (1964))).  Here, for the reasons set forth below, the lower court’s injunction, which requires the District to reinstate the Parental Secrecy Policy, violates the federal constitutional rights of parents in the District.  Thus, this Court should reverse.  A.
[brief] 1. / 2.  “whether the matter at issue is within the conventional experience of judges”; “whether the matter is peculiarly within the agency’s discretion, or requires agency expertise” (Argued at Pa369 – Pa370)  The matter at issue is not within the conventional experience of judges, and is peculiarly within the [...]’s discretion and expertise.  The \textsuperscript{22}  Nordstrom v. Lyon, 424 N.J. Super. 80, 99 (App. Div. 2012), internal quotations and citations omitted \textsuperscript{23}  Nordstrom v. Lyon, 424 N.J. Super. 80, 99 (App. Div. 2012), internal quotations and citations omitted  \textsuperscript{24}  Bower v. Bd. of Educ. of City of E. Orange, 149 N.J. 416, 420 (1997) interpretation and litigation over violations of the school laws fall within the province of the [...].  Especially violations of N.J.S.A. 18A:7F-9, where the legal remedy is for the Commissioner to order specific performance for 18A statutory violations and withhold State aid.
[brief] The excerpt of the above statements from the deposition was the primary focus of the Respondent-Defendant’s Motion for Summary Judgment.  In their moving papers, the following were stated:  "[The Appellant-Plaintiff] she is not having any pain or restrictions as a result of the motor vehicle accident.  As an injury shall only be considered permanent when the body part or organ has not healed to function normally and will not heal to function normally with further medical treatment, its [sic] clear that Plaintiff [...] cannot pierce the verbal threshold.  As a result, Defendant [...] is entitled to Summary Judgment under AICRA."
[brief] On April 9, 2019, Appellant moved to limit the record in Respondent's complaint in lieu of prerogative writs to the record that was before the Board on the Second Application (Aa179-Aa194).  ³  “1T” designates the October 15, 2018 [...] transcript  “2T” designates the May 24, 2019 motion in limine transcript  “3T” designates the September 22, 2022 trial transcript  On May 24, 2019, the parties argued the motion in limine before [...] (Aa214-Aa218).  Disposition of that matter was substantially delayed due to the COVID-19 pandemic (Ra235-Ra239), such that no order on the motion in limine would be entered “due to administrative oversight” until three years later when the motion was denied (Aa214).  Meanwhile, on June 25, 2019, the Appellate Division, in an unpublished decision, [...],\(^4\) reversed the Trial Court’s prior partial summary judgment order and remanded the case for further proceedings.
[brief] But the admittance of that voluminous file into evidence did not occur simply.  [...]’s attorney objected to it.  There are multiple conflicting accounts within the record regarding whether the 21 boxes, (also referred to as the [...] file and Exhibit D-4) were ever exchanged during discovery in this matter.  [...]’s attorney raised this concern and despite the confusion and conflicting accounts, where even [...]’s witness’s testimony conflicted with that of his own attorney on the issue, nevertheless [...] overruled [...]’s objection and admitted D-4 into evidence.
[brief] There is no need for a “trial within a trial” as to Defendant [...]’s ultimate criminal liability for statutory harassment.  In Mehlman, supra., the New Jersey Supreme Court held that an employee’s belief in the illegality of conduct does not need to be ultimately proven correct for the activity to be protected under CEPA.  153 N.J. at 193.  Rather, the only question is whether Plaintiff, as well as other individuals such as [...] and [...], had a reasonable belief that Defendant [...]’s conduct was illegal, and whether that conduct falls within a law that gives rise to the protections of CEPA.  Based on the facts and the text of the statute, the issue should not have been decided by the Court on summary judgment.
[brief] II.  **PLAINTIFFS SUFFICIENTLY PLED CONSTITUTIONAL LAW CLAIMS AGAINST DEFENDANTS, AND THE TRIAL COURT ERRED WHEN IT DISMISSED THESE CLAIMS WITHOUT ANALYSIS.**  (1029a-1031a); (1T13:3-21; 1T14:7-15:2; 1T20:6-22; 1T21:3-15; 1T22:1-24; 1T22:25-23:10).  As set forth above, the Trial Court granted Defendants' motion for reconsideration without considering Plaintiffs' constitutional claims.  (1029a).  No analysis was provided by the Trial Court regarding whether the facts Plaintiffs pled in their Complaint "suggested" causes of action under the CRA or direct constitutional violations.  *Printing Mart*, 116 N.J. at 746.  Based upon the Trial Court's failure to conduct this analysis, this Court should grant Plaintiffs' appeal.  However, as set forth at greater length below, even if this Court decides to analyze the merits of these claims, this appeal should be granted because the Plaintiffs have pled "the fundament of a cause of action" as required by the motion to dismiss standard.
[brief] (1T).  The factual record shows the contrary – there was sufficient evidence presented outlining the fact that there were genuine disputes of material fact which precluded the matter from being decided summarily without the benefit of further discovery relating to the disputes, including deposition testimony.  (Da383).  Indeed, at various times throughout the course of oral argument by the parties, the Court acknowledged the fact that there were disputes relating to this sale.  Specifically, the Court stated:  [...]’s papers reference objections to the sale.  You have highlighted a litany of complaints to include that [...] did not list this property for what you contend is the fair market value of other properties similarly situated in that neighborhood.  And I am asking you very specifically, did you – did your client communicate that concern or issue in writing to [...].  And the answer I think is no because there is nothing in this record that supports that.  (1T29:15-24)  This conclusion is plainly erroneous and contrary to the record before the Court at the time.  (Da383).  This is especially so in light of the fact that there were numerous submissions by the parties that contained factual evidence supporting the argument that there were factual disputes and objections relating to the sale of the Subject Property to [...] for $500,000.
[brief] Alloco v. Ocean Beach & Bay Club, 456 N.J.Super. 124 (App.Div. 2018).................................................................  10  GM Acceptance Corp. v. Jankowitz, 216 N.J. Super. 313 (App.Div.1987)...............................................................  5, 6 Rendine v. Pantzer, 141 N.J. 295, 336 (1995) ..............................................................................  4  #  TABLE OF CONTENTS TO APPENDIX | Description | PAGE | |-----------------------------------------------------------------------------|------| | Notice of Appeal, dated July 2, 2023 filed on behalf of Plaintiff, [...], Dkt. No. [...] | 1a-3a | | Civil Case Information Statement, dated July 2, 2023 filed on behalf of Plaintiff, [...], Dkt. No. [...] | 4a-8a | | Order Entering Judgment for Award of Attorneys Fees and Costs, Dkt. No. [...], filed on May 19, 2023 | 9a-10a | | Statement of Reasons Attached to Order Entering Judgment for Award of Attorneys Fees and Costs, Dkt. No. [...], filed on May 19, 2023 | 11a-21a | | Letter of Transmittal to Court Forwarding Plaintiff’s Notice of Motion for Judgment Awarding Attorneys Fees and Costs, Dkt.
[brief] The Department denied the CAFRA Application on June 22, 2021 (the “Denial”).  Aa16-21.  The Department determined, in pertinent part, that the Project did not comply with the 30% open view corridor and 2-to-1 setback requirements under Subsection D of the SRD Rule.  Aa18.  The Department found that the Project would provide only a 25% open view corridor, and the 99-foot high Proposed Building was required to be “separated from the inland edge of the boardwalk” by approximately 198 feet (i.e., two times the height of the Proposed Building), but the separation was approximately 88 feet.  Aa18.  The Department did not rely on the visual compatibility provision under Subsection C as a basis for the Denial.  See Aa17-21.  Notice of the Denial was published in the July 7, 2021 issue of the DEP Bulletin.  2Ra127-28.  E. **[...]’s Request For Reconsideration And Administrative Appeal Of The Denial.
[brief] On May 27, 2022, [...] conducted a hearing.  [...] raised concerns that [...] failed to obey [...]’s January 25, 2022 Order requiring a settlement conference.  (2T 9 Ln 20)  Instead, the Trustee chose to conduct a sealed bid, without [...]’s consent.  [...] said “This is a bad faith move.  It violates the trustee’s duty to administer the trust in good faith in accordance with the terms and purposes of the trust. ”  (2T 12 Ln 15)  Shortly after concluding the hearing, on May 27, 2022, [...] granted Defendants’ request for an injunction.
[brief] Therefore, should this Court disagree with Points I through IV, a remand for resentencing is required.  Under Yarbough, courts imposing sentences for multiple offenses must first consider whether: (1) “the crimes and their objectives were predominantly independent of each other”; (2) “the crimes involved separate acts of violence or threats of violence”; (3) “the crimes were committed at different times or \textsuperscript{26}  State v. Yarbough, 100 N.J. 627 (1985), superseded in part by L. 1993, c. 233, § 1. separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior”; (4) “any of the crimes involved multiple victims”; and (5) “the convictions for which the sentences are to be imposed are numerous. ”  100 N.J. at 643-44.  A sentencing court must “consider all of the Yarbough guidelines,” State v. Rogers, 124 N.J. 113, 121 (1991) (emphasis added), and expressly “place on the record its statement of reasons,” State v. Torres, 246 N.J. 246, 267 (2021).  A court’s failure to do so requires a resentencing.
[brief] Like the award in *Carteret*, [...]’s award is reasonably debatable.  It mandates that covered employees may only be disciplined or discharged for “just cause,” a term which the CNA leaves undefined.  The Arbitrator considered that provision in light of the remainder of the CNA and the both parties’ submissions and issued his ruling accordingly.  This Court does not have to believe that the Arbitrator’s ruling is the only reasonably debatable conclusion, or even that the Arbitrator’s interpretation is better than the Authority’s.  Rather, the Court need only conclude that the Arbitrator’s interpretation is “reasonably debatable.
[brief] Consequently, the defendant’s convictions should be reversed, and the matter remanded for retrial.  The photos of the surveillance cameras on Ellsworth were offered for a simple purpose: to show that police should have gotten footage from that camera, if available, because the cameras -- positioned near 33 Ellsworth, i.e., across Ellsworth Avenue and just a few houses down from the 22/24 walkway where the perpetrator exited the view of police -- could have shown where the perpetrator ran when police lost sight of him in the 22/24 Ellsworth walkway.  The photos of the walkways between houses on Edgemere Avenue -- that were almost directly behind the 22/24 Ellsworth backyards -- were offered for a similar, related reason: to show how easily the perpetrator might have run out onto (or across) Edgemere from that 22/24 Ellsworth walkway (and through the walkways on Edgemere) after police lost sight of him.  But the judge, as noted, denied the admission of any of that evidence and forbade defense counsel from making an argument to the jury that the real perpetrator might have escaped onto Edgemere.  Her reasoning was dead wrong.
[brief] Thereafter, on April 29, 2020 counsel for [...] issued a letter to [...] and the guarantors demanding payment of the rent due through April 19, 2020 of $13,536.77.  Pa104.  In addition, the letter indicates [...] would owe Mr. [...] $83,429.00 pursuant to the Consent as of May 1, 2020.  In addition, the subtenant failed to make its $4,000.00 monthly payments directly to the landlord for the month of April 2020 and therefore the tenant owed that amount as well.  The undisputed amount owed as of April 19, 2020 was $100,965.77.
[brief] ”  Pa1088.  On that same date, the Trial Court issued an oral opinion providing his findings of fact and conclusions of law supporting the entry of final judgment dismissing [...]’s claims.  9T.  On October 20, 2023, [...] filed a Notice of Appeal from the May 11, 2020, Order of [...] as well as from the Order of final judgment dismissing [...]’s Complaint entered by [...] on September 25, 2023.
[brief] See, Shah v. Shroff, 2023 N.J. Super. Unpub. LEXIS 527, *20 (Law Div. 2023) (if a party was not a member of the LLC, no fiduciary duty arises).  Further, as the Trial Court found (Pa42-44), plaintiff has not proven a breach by [...], or by [...], for that matter, even if [...] were subject to a such a duty:  ...Mr. [...] was not a signatory to the [...] account.  Thus, Mr. [...] was not in any position to stop [...].  [...] controlled the finances of [...] alone, and only he is responsible for [...]’ demise.  Mr. [...]’s role as Chief Financial Officer was extremely limited....  ...Absent credible proof that Mr. [...] and Mr. [...] intentionally failed to act in the face of a known duty to act and enriched themselves, plaintiff’s claims for breach of fiduciary duty, self-dealing, and waste against Mr. [...] and Mr. [...] are dismissed with prejudice.
[brief] The State presented no expert testimony on drug distribution or narcotics investigations -- no expert testimony about digital scales, no testimony about the razor blade whatsoever, no testimony about the relationship between drug deals and the amount of cash or the quantity of drugs found, and no evidence of packaging materials.  And the State’s only evidence of drug transactions fell into two categories, both involving [...]: (1) the inadmissible testimony that [...] sold her drugs for months before the incident, which could not be considered as evidence of the charged crimes (see Db 18-25 and Reply Point I, supra), and (2) the evidence that he gave her drugs during their road trip.  Accordingly, jurors in this case may have improperly convicted [...] of intending to distribute drugs based on the road-trip transactions, without ruling out the possibility that [...] jointly possessed the drugs.  For the reasons laid out in Point III of [...]’s opening brief, that error renders the verdict unreliable and requires reversal.