ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (Pa49 to Pa58).  On August 5, 2023, [...] issued a written decision determining that the Board’s Resolution was legally deficient without specifying the analysis undertaken by the Board in denying the application.  (Pa72 to Pa101).  Therefore, [...] remanded the matter back to the Board to adopt a legally sufficient Resolution to properly articulate its findings and reasoning, while retaining jurisdiction on the alternate merits of the case.
[brief] N.J.S.A. 52:27D, et seq.  (American Building Officials Code) ............................  19  TREATISES  Restatement of Torts, Section 358 ......................................................... 12, 13, 18, 19, 20  First Restatement of Torts, Sec. 358 (1934) .................................................. 12  Second Restatement of Torts, Sec. 358 ......................................................... 13, 15, 19, 22  STATEMENT OF FACTS
[brief] (TR2 38-2 to 15).  The motion court held that if a jury accepted defendants’ continued retention of [...]’s services and defendants’ continuous promises to pay [...] would give rise to claim of unjust enrichment and a breach of a covenant of good faith and fair dealing.  (IT2 38-7 to 39-16).  The motion court granted defendants’ motion for summary judgment because [...] could not establish that the complaint seeking damages for $255,000 was filed within the six year statute of limitations for breach of contract set by N.J.S.A. 2A:14-6.(IT2 34-7 to 35-21; IT236-22; IT2 40-2 to 14).
[directive] b.  When a person is charged with a criminal offense on a summons, the court, upon application of a law enforcement officer or prosecuting attorney pursuant to section 3 of P.L. 2001, c.365 (C.2C:35-5.9) and except as provided in subsection e. of this section, shall, at the time of the defendant's first appearance, issue an order prohibiting the person from entering any place defined by subsection b. of section 3 of P.L.1999, c.334 (C.2C:35-5.6), including a buffer zone surrounding the place or modifications as provided by subsection f. of this section.  c.  When a person is charged with a criminal offense on a juvenile delinquency complaint and is released from custody at a detention hearing pursuant to section 19 of P.L.1982, c.77 (C.2A:4A-38), the court, upon application of a law enforcement officer or prosecuting attorney pursuant to section 3 of P.L. 2001, c.365 (C.2C:35-5.9) and except as provided in subsection e. of this section, shall issue an order prohibiting the person from entering any place defined by subsection b. of section 3 of P.L.1999, c.334 (C.2C:35-5.6), including a buffer zone surrounding the place or modifications as provided by subsection f. of this section.
[brief] At the Zoning Board’s June 20, 2022, meeting, [...] presented testimony from [...], who testified regarding the reduction in the proposed size of the structure, the reduction in the number of units and the inclusion of five affordable housing units that were one, two and three bedroom units.  Pa180, at 26:23-27:18.  [...] next testified that the building size had been reduced by twenty-four feet and building area had been reduced by 5,500 square feet and that retail space (as requested by the Zoning Board) had been added to the ground floor in addition to office space.  Pa186, at [...] explained that the new FAR at 1.42 would be significantly less than the previous 1.99 proposed.  Id.  He noted that this plan complies with the Borough’s Ordinance No. 19-05, which requires a 15% affordable set-aside for affordable rental units, and that the inclusion of the two and three-bedroom apartments, which were specifically implemented in the design to ensure compliance with the Borough Ordinance.
[brief] (Pa3).  Defendant moved to suppress evidence, specifically the firearm and large quantity of marijuana found pursuant to a search warrant, and on May 28, 2024, the parties appeared before the Honorable [...], J.S.C., for oral argument on defendant’s motion.  (1T3-1 to 20).  Prior to oral ¹  The record is cited as follows:  Pa = State’s appendix.  Pca = State’s confidential appendix.  1T = Transcript of motion to suppress, May 28, 2024.  argument, the parties agreed that the pertinent facts were undisputed, there was a written and judicially authorized search warrant, and therefore live testimony was unnecessary.
[brief] Despite its extensive redactions, defendant argues that the trial court erred by admitting defendant’s redacted interrogation video.  As defense counsel did not object to the admission of the redacted interrogation video, and in fact referred to it as “squarely in line with” the prior remand order after reviewing it with the defendant himself, its admission is reviewed for plain error.  (State v. Trinidad, 241 N.J. 425, 445 (2020)(stating that evidential errors not objected to at trial are reviewed for plain error); 2T:48-13 to 50-16; see also 8T:6-13 to 16).
[brief] TABLE OF CONTENTS  TABLE OF CONTENTS ..................................................................................................................  i  TABLE OF AUTHORITIES ...........................................................................................................  iii  TABLE OF ORDERS, JUDGMENTS, AND RULINGS BEING APPEALED .................................................................  vi TABLE OF TRANSCRIPTS ........................................................................................................ vii  PRELIMINARY STATEMENT .....................................................................................................  1  PROCEDURAL HISTORY ..............................................................................................................  3  COUNTER-STATEMENT OF FACTS .........................................................................................  5  LEGAL ARGUMENT ....................................................................................................................  8  I.  STANDARD OF REVIEW .......................................................................................................  8  II.  PLAINTIFF WAIVED CERTAIN ISSUES DECIDED BY THE TRIAL COURT BY FAILING TO BRIEF SAME ..................................................................................................................  10  III.  PLAINTIFF’S WAIVER OF NECESSARY ELEMENTS OF THE TORT CLAIMS ACT RENDERS THE APPEAL MOOT.  ..................................................................................  11  IV.  THE TRIAL COURT’S ORDER PROPERLY GRANTED SUMMARY  JUDGMENT IN FAVOR OF THE TOWNSHIP AND SHOULD BE AFFIRMED IN ITS ENTIRETY.  [PA1-PA19]  ........................................................................ 14  A.  PLAINTIFF’S CERTIFICATION IN OPPOSITION TO THE TOWNSHIP’S MOTION FOR SUMMARY  JUDGMENT IS A BELATED, SELF-SERVING “SHAM” AFFIDAVIT.  [PA4-PA6]..  14  B.  THE TRIAL COURT PROPERLY DETERMINED NO DANGEROUS CONDITION EXISTED AND THE DECISION SHOULD BE AFFIRMED.  [PA7-PA9]  ........................................................................  15  C.  THE TRIAL COURT CORRECTLY DETERMINED PLAINTIFF DID NOT SUFFER A PERMANENT INJURY AND THAT DETERMINATION SHOULD BE AFFIRMED.  [PA12-PA13]  ......  23  D.  THE TRIAL COURT PROPERLY FOUND THE TOWNSHIP HAD NO NOTICE, ACTUAL OR CONSTRUCTIVE, AND THAT DETERMINATION SHOULD BE AFFIRMED.  [PA9-PA11]  ........  26  E.  THE TRIAL COURT’S HOLDING THAT THE TOWNSHIP DID NOT ACT PALPABLY UNREASONABLE SHOULD BE AFFIRMED.  [PA11-PA12]  .................................................................  30  F.  THE TRIAL COURT’S FINDING THAT PLAINTIFF FAILED TO ESTABLISH A LOSS OF CONSORTIUM SHOULD BE AFFIRMED.  [PA13-PA14]  ...........................................................................  34  CONCLUSION .................................................................................................................. 36  ### TABLE OF AUTHORITIES
[brief] The trial court’s acceptance of [...]’s non-existent proofs is particularly troublesome here because one of the purported substantial government interests is plainly invalid as a matter of law under *E & J Equities, LLC*: *safety*.  Remember: the Board itself did not actually accept safety as the interest, but the trial court listed it as one.  While *E & J Equities, LLC* left open the possibility that safety could be a substantial government interest for billboard regulation, it required competent evidence, not “supposition. ”  By lumping all [...]’s hypothesized interests together, the trial court effectively built in a remand because there is no record of the actual interest or the evidence for it and one of the interests, safety, is clearly invalid, but cannot be divorced from the others on the current record.
[brief] Next, Respondent cites no law at all in support of her vague First Amendment argument.  Pbll.  This appears to be the result of a failure to copy and paste the entirety of the First Amendment argument made in the companion case now before the Appellate Division.¹ Pbll (“school personnel do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse’” [sentence abruptly cuts off]).  Construing this vaguely raised argument generously, and assuming that Respondent intended to insert the same cases into both briefs – the only cases cited ¹ [...], et. al. v. [...], App. Div. Docket No. [...]. by Respondent in the companion case are inapplicable, as each of those 2 cases refers to the First Amendment rights of public school teachers being disciplined by a school board.
[brief] Specifically, [...] reversed course and argued for application of the “time necessary to litigate approach,” instead of the “relative culpability approach” argued in the Original Motion.  --- 5  The “relative culpability” approach calculates compensable fees based on a party’s allocated share of fault (in this case, [...]’s 6.4% share of property damage).  The “time necessary to litigate approach” requires the party seeking fees to meet its burden of identifying compensable legal fees incurred because of a specific party and issue.  Empower Our Neighborhoods v. Guadagno, 453 N.J. Super. 565, 583 (App. Div. 2018).  The March 2021 Motion also included yet another calculation of prejudgment interest by [...].
[brief] This Court should mandate the award of prejudgment interest be calculated at the simple interest rate in accordance with *Rule 4:42-11*.  A recent case from the District of New Jersey, applying New Jersey law, is analogous and instructive.  In *Int'l Transp. Mgmt. Corp. v. Brooks Fitch Apparel Grp., LLC*, the District Court awarded plaintiff in a high-value contract action simple interest at the rate supplied by *Rule 4:42-11*.  No. CV111921ESJAD, 2020 WL 5525510, at *5 (D.N.J. Sept. 14, 2020).  In doing so, the court found that compounding interest over “a long period of time (eight years) on a substantial sum ($4,195,000)” was “harsh and oppressive. ”  *See id.*  In this case, the trial court awarded compound interest on more than $15 million in compensatory damages beginning in 1994 for [...] and [...]. (126a-127a; 40006a-40007a; 40009a-40010a).  The award far exceeds the “period of time” and “substantial sum” that the District Court addressed in *Brooks Fitch*, and should likewise be rejected by this Court as incompatible with New Jersey law.  There is neither an equitable mandate nor adequate explanation for imposing the 8.875% interest rate after December 20, 2013 and adding compounded interest.  Furthermore, any prejudgment interest awarded for the period after the December 20, 2013 Final Judgments must be based exclusively on the rate embodied in *Rule* 4:42-11 without compounding.
[brief] “The notice must be clear and unambiguous and must be readily intelligible to the average citizen.  It must not be overly general or misleading. ”  *Rockaway Shoprite Assocs., Inc. v. City of Linden*, 424 N.J. Super. 337, 347 (App. Div. 2011) (quoting 101A C.J.S. Zoning & Land Planning 6 (1979)), certif. denied, 209 N.J. 233 (2012).
[directive] In order to ensure the most efficient use of law enforcement resources, effective immediately, I am relaxing a series of general reporting, training, and certification deadlines—none of which are required by statute, and none of which are related to law enforcement’s preparedness to handle the COVID-19 pandemic.  It is my hope that these changes will allow law enforcement professionals to focus on keeping both the public and themselves safe during this emergency.  To be clear, this Directive extends a series of deadlines that are due in the next three months, and at this time, does not extend any deadlines that come due beyond that point.  For example, many law enforcement agencies have asked about the twice-annual firearm requalification requirement.  While I know that many agencies conduct their first round of requalification in the spring, there is no requirement that this training occur six months after the last requalification; the requirement is only that these two requalification sessions occur at least three months apart.  We hope, of course, that this pandemic will subside soon enough and that officers will have adequate time this summer, fall, and winter to meet this training obligation.  New Jersey Is An Equal Opportunity Employer • Printed on Recycled Paper and is Recyclable Page 2  As we continue to address this crisis together, we will, of course, revisit firearm requalification requirements and any other deadlines, including those coming due this summer, should circumstances require.  Therefore, pursuant to the authority granted to me under the New Jersey Constitution and Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 to -117, I, [...], hereby DIRECT all law enforcement agencies operating under the authority of the laws of the State of New Jersey to implement and comply with the following policies, procedures, standards, and practices:
[brief] [...]’S ROLE AT THE PROJECT AND CCIP COMMUNICATIONS | | | A.  [...]’s Initial Retention for the Project and CCIP Submissions | 6 | | B. [...]’s Confirmation That [...] Was Excluded | 10 | | C. Communications Confirming [...]’s Unenrollment from the CCIP | 13 | | D.  [...]’s Subsequent Acknowledgments That Its Work Was Unenrolled from the CCIP | 15 | | III.
[brief] . . .").  Indeed, in 2005, the Attorney General issued Law Enforcement Directive 2005-1, which established a statewide policy prohibiting the practice of racially influenced policing.  See Attorney General, Directive Establishing an Official Statewide Policy Defining and Prohibiting the Practice of “Racially-Influenced Policing” (June 28, 2005) (Directive 2005-1).
[brief] It is not to be used as direct evidence of guilt.  *State v. Mesz*, 459 N.J. Super. 309, 319 (App. Div. 2019).  Whether the expert is testifying on behalf of the State or the defendant, the rule is the same.  Jurors must be immediately instructed that the substantive information defendant provided is to be used by them only to assess the expert's opinion.  It is not to be used as direct evidence of guilt.  *State v. Mesz*, 459 N.J. Super. at 319.
[brief] (9T57:2 to 58:25).  [...] (hereinafter “[...]”), regularly observed Respondent interact with Decedent from the time that Respondent moved next door to her in 2013 until Respondent moved into her own home in late 2019.  (9T58:3-25).  [...] found that Respondent was always butting heads with Decedent, intimidating Decedent and manipulating her to get what she wanted.  (9T64:9-16; 9T61:9-11; 9T75:24 to 76:17; 9T63:11 to 64:5; 9T65:11-22).  [...] observed that Decedent and Respondent fought constantly, with Respondent regularly yelling at Decedent, bringing her to tears.  (9T65:14-20; 9T65:4- 17).  [...] heard that Respondent often referred to the Decedent as a “bitch. ” (9T63:23-25).  Petitioner also observed Respondent bully, yell and disrespect Decedent.  (9T63:13-22; 9T73:2-11; 9T759 to 76:17; P573a).
[brief] First, the trial court did not find that [...], hypothetically, may lack sufficient affordable housing for the Third Round.  The trial court made a factual finding that the Township lacked sufficient affordable housing, by many hundreds of homes.  [...] does not dispute this fact.  And even then, the trial court did not hold that [...] “loses its right to eminent domain,” (*ibid.*) or “erase a municipality’s condemnation and redevelopment powers” (*id.* at 1).  Instead, after considering the factual history and procedural posture of the case, the trial court temporarily limited [...]’s right to use eminent domain with respect to the Property, so that the next stage of the builder’s remedy suit could progress.  In sum, there is a reason for the scarcity of case law: no town has been brazen enough to sidestep their *Mount Laurel* obligation in the way that [...] now proposes, because of the solid Supreme Court law on the availability of the builder’s remedy.  In the face of this fact, the trial court was well within its discretion to find that a preliminary injunction was necessary to prevent imminent harm based on the unique factual circumstances present.  The Trial Court Correctly Evaluated the Settled Nature of the Claim, the Likelihood of Success on the Merits, and Preserved the Status Quo in Temporarily Limiting Certain Actions After [...] was Deemed Constitutionally Non-Compliant.
[brief] B.  The Arbitration Agreement is Enforceable Against [...]’s Estate  Even if this court were to entertain the argument raised by the Association that arbitration agreements are not enforceable against non-parties, the Association’s blanket proposition is simply incorrect.  “As a matter of New Jersey law, courts properly have recognized that arbitration may be compelled by a non-signatory against a signatory to a contract on the basis of agency principles. ”  See, Alfano v. BDO Seidman, LLP, 393 N.J. Super. 560, 569-70 (App. Div. 2007)(compelling arbitration after finding agency relationship existed between non-signatory and signatory to contract); see also Crystal Point Condo. Inc. v. Kinsale Ins. Co., 466 N.J. Super. 471, 482 (App. Div. 2021), rev'd on other grounds, 251 N.J. 437 (2022) (“Non[-]signatories of a contract ... may compel arbitration or be subject to arbitration if the nonparty is ... a third[-]party beneficiary to the contract. ”) (internal citations omitted.); see also Jansen v. Salomon Smith Barney, Inc., 342 N.J. Super. 254, 261 (App. Div. 2001) (“Although plaintiffs did not sign the arbitration provision, they were the intended successors to Jansen's interest in the accounts.  They are thus bound by the arbitration clause. ”).  The unpublished case of Matter of Est. of Hekemian, while not binding on this court in any event, is inapposite.  In Hekemian, the court addressed whether an arbitration clause in a will was binding and found that it “was not the product of mutual assent under traditional contract principles. ”  Hekemian at *6.  This fact is obvious because “A will ... is a unilateral disposition of property that does not require a ‘meeting of the minds’ to be effective. ”  Ibid.  The same is not true here.  Unlike a will, the Arbitration Agreement is a bilateral contract signed by both parties.  Hekemian is further distinguishable because here, the Arbitration Agreement specifically refers to wrongful death claims, whereas in that case, the court found that the claim asserted was not a ‘dispute’ within the scope of the arbitration clause.  Id. at *7.  Nor would it be equitable to disturb the agreement of the [...] and [...] based on the doctrine of equitable estoppel.  Courts of this state hold that non-signatory may be compelled to arbitrate based on the doctrine of equitable estoppel upon proof of detrimental reliance by one of the parties to the contract.  See Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 189 (2013).  Even if the court were to entertain arguments as to enforceability of the arbitration agreement against third parties, the Estate of [...] is bound by the Arbitration Agreement as a third-party beneficiary through equitable estoppel because the [...] detrimentally relied on the fact that [...] and her heirs would arbitrate and disputes as [...] specifically testified that he would not have performed the procedure if a patient did not sign the agreement.  (Pa21,T78:14-21).  **CONCLUSION**
[directive] Procedure of Jersey State Forfeiture Program Administration  Standard Operating Paw: . . Internal 2 7  Review Audit and Compliance  In [...] addition to regular audits by the and other State agencies responsible for basis auditing, the Department’s forfeiture program shall be reviewed on an annual by of personnel assigned from the Divisions [...] and Criminal Justice and managed this by [...] firm the internal audit section, or private auditing hired for purpose.
[brief] A consent judgment is “an agreement of the parties under the sanction of the court as to what the decision shall be. ”  Harris, 155 N.J. at 226 (quotation omitted).  “[A] consent judgment has equal adjudicative effect as one entered after trial or other judicial determination.  As such, a consent judgment may only be vacated in accordance with R.  4:50-1. ”  Ibid. (quoting Stonehurst at Freehold, 139 N.J. Super. at 313 and other quotations omitted (emphasis added)); Pope, 40 N.J. at 173.  Following the July 15, 2021 adjudication of the [...], the September 13, 2021 sixty-day filing deadline for a Refiled Action passed without any of the parties filing a Refiled Action.  Appellants admit this.  Therefore, as of September 14, 2021, the parties no longer had the ability to file a Refiled Action without seeking to vacate the Consent Order under Rule 4:50-1.  Appellants failed to seek such relief.  Further, in opposing the motion to dismiss, Appellants failed to show that they were entitled to such relief under the exacting standards of Rule 4:50-1.  Indeed, Appellants have chosen not to offer any explanation, whatsoever, for their extreme delay.  There was no evidence of mistake, inadvertence, surprise, or excusable neglect.  And no such request was timely made.  Cf. Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315, 319 (App. Div. 2012)(time deadlines); DEG, 198 N.J. at 263 (standards for “mistake”); Mancini v. EDS, 132 N.J. 330, 335 (1993) (standards for “excusable neglect”).  Conclusion
[brief] 24, 25 New Jersey Ass’n for Retarded Citizens, Inc. v. Dep’t of Human Services, 89 N.J. 234 (1982)  ..................................................................................  15  New Jersey Dept. of Transp., Division of Aeronautics v. Brzoska, 139 N.J. Super. 510 (App. Div. 1976) .........................................................
[brief] D. [...] v. Bd. of Trs., 2023 N.J. Super. Unpub. LEXIS 332, *1  Appellant’s reference to [...] also supports Respondent, not Appellant - once again, as in the above noted cases, [...] was removed for reasons not related to disability.6 --- 6  “By way of background, it is well established "that eligibility for disability retirement benefits requires members to make a prima facie showing that they cannot work due to a disability.  To that end, voluntary or involuntary termination of employment, for non-disability reasons, generally deems a member ineligible for disability benefits."  In re Adoption of N.J.A.C. 17:1-6.4, 454 N.J. Super. 386, 394 (App. Div. 2018).  Appellant’s reference to these cases is contrary to Respondent’s situation as outlined in the Agreement.  Respondent was not removed for cause (he remains on a medical leave) he is retiring due to an agreed upon medical disability, and Respondent’s charges related to the disability were dismissed (and there was no criminal charge, or other such charge, implicated).  Respondent’s case differs from all the cases cited by Appellant; the above cases concern charges “for cause” unrelated to the disability and the individuals had no job to return to in the event their condition improved.  Appellant presented the argument on the above cases to the Trial Court, and the Trial Court heard Respondent’s opposition, reviewed the papers, and considered arguments of counsel as noted in the Order (Da202).  The Trial Court issued a sound ruling and the Appellant’s appeal should be dismissed.