ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The transcript of the motion hearing dated April 1, 2024 will be referred to as 1T and the transcript of the motion hearing dated May 10, 2024 will be referred to as 2T.  Defendants do not refer to the transcripts in this supporting brief but will make such references, if necessary, in its reply brief.  Div. July 21, 2020) (Da24).  A decision of the Local Finance Board can be appealed the same way any final State agency decision may be appealed.  N.J.S.A. 40A:9-22.9.  Therefore, review from the Local Finance Board may be undertaken pursuant to Rule 2:2-3(a)(2), but it cannot originate in the trial court.  Plaintiffs’ complaint did not allege any cause of action that provided the trial court with jurisdiction to review the matter (Da16).
[brief] The Trial Court Improperly Usurped the Zoning Board’s Powers and Conferred A Mount Laurel and Builder’s Remedy Upon Respondents.  (M1-64).  In a Mount Laurel lawsuit, "the cause of action is the alleged unconstitutionality of the defendant-municipality's zoning because of its failure to provide for the municipality's fair share of affordable housing."  See S. Burlington Cty. N.A.A.C.P. v. Mount Laurel Twp., 92 N.J. 158, 214-216 (1983); see also Oceanport Holding, L.L.C. v. Borough of Oceanport, 396 N.J. Super. 622, 630 (App. Div. 2007).  There is no finding or fact in the matter below that sets forth that this is a Mount Laurel lawsuit.
[directive] Many different measures of officer performance can be regularly examined for any of these troubling patterns or practices.  Law enforcement executives shall determine what performance measures are appropriate for the communities they serve, but at a minimum an agency must track the following performance indicators:  (a)  Internal affairs complaints against the officer, whether initiated by another officer or by a member of the public; (b) Civil actions filed against the officer; (c) Criminal investigations of or criminal complaints against the officer; (d)
[directive] Post-Operation Seminars  To maximize the deterrent impact of an undercover school operation, the law enforcement agency conducting the operation shall make available officers to participate in seminars which, upon the invitation of appropriate school officials, may be held in the school in which the operation was conducted.  The purpose of these seminars shall be to discuss with teachers, parents and/or students the nature of the completed operation, the procedures employed pursuant to this Executive Directive to minimize the intrusion into the educational environment, and to discuss the substance abuse problem from a law enforcement perspective.  See SNAP Guideline 5.10.  It shall be the policy of the State's law enforcement community to promote the frank and open discussion of issues concerning the need for such operations, and to solicit opinions and recommendations from teachers, parents, students and members of the community-at-large.  No such seminar or lecture shall be held, however, except with the approval of the building principal or local superintendent of the school in which the operation was conducted.  10.
[brief] The Court properly ruled:  “Here, plaintiff [...] had every opportunity to assert the instant claims at any time prior to the consent order being entered, or within the 60 days following the Nacirema arbitration award. ” (Pa13 (Opinion)).  This is especially true given the inexplicably long delay by Appellants of 560 days beyond the deadline in attempting to revive their Chancery Action claims – a delay that, again, Appellants have never attempted to explain or otherwise justify.  As noted below, the purposes of the entire controversy doctrine include the aim to avoid “fragmentation of litigation” and “to promote fairness and judicial economy and efficiency. ” (Pa10 (citing Pressler & Verniero, supra, R. 4:30A at cmt. 1 and Hobart Bros. Co. v. Nat. Union Fire Ins. Co., 354 N.J. Super. 229, 241 (App. Div.), certif. denied, 175 N.J. 170 (2002)).
[brief] As this Court held in *Ingraham v. Trowbridge Builders*, 297 N.J. Super. 72 (1997):  Mitigation of damages is a concept which takes into account the injured party's acts or failure to act when computing the amount of his recovery.  *White v. North Bergen Township*, 77 N.J. 538, 546, 391 A.2d 911 (1978).
[brief] The Trial Court found:  “Here, the Court finds no genuine issue of material fact exists.  The Separation Agreement clearly states that any provision “declared illegal, unenforceable, or ineffective in a legal forum . . . shall be deemed severable. ” (Da199).  There is no requirement under the Court rules [R. 1:6-2(f)] that the Trial Court mark, catalog, and reply to every case cited in a brief.  Appellant’s argument seeks shift the focus from Appellant’s obligation under Par. 18 to an unfounded accusation of the Trial Court’s failure to analyze each of the various cases Appellant argued at the Trial Court level.  There is no error – the Court’s ruling is based on the language of the contract, and “A contract is subject to the ordinary principles of contract law. ”  Thompson v. City of Atlantic City, 190 N.J. 359, 374, 921 A.2d 427 (2007).  Again, the question before the Court was whether the terms declared to be illegal, unenforceable, or ineffective by the [...] should be stricken under the terms of the Separation Agreement – this is a question of contractual interpretation.  Appellant reiterates his Trial Court argument concerning analysis of cases where employees were declared ineligible for their pensions or could have been fired for cause for criminal behavior – these are not controlling on this contract question, nor do these cases involve involuntary disability applications and severance clauses.  The facts sub judice are quite different than the matters raised in holdings from Cardinale, Carr, Rooth, and In RE Adoption of N.J.A.C 17:1-  These cases are not “remarkably similar” as Appellant suggests at Page 23 of his brief and do not support or advance Respondent’s position.  Appellant’s arguments on Cardinale and Carr were raised on the record at the oral augment and are not applicable (1T10:9-19, 1T15:15-23).  Further, Appellant’s reference in its brief to Rooth and In Re 17:1-6.4 are also not applicable for the reasons stated below.  Appellant’s appeal is without merit.
[brief] See N.J.S.A. 39:6A-5.1(e) (interest); N.J.A.C. 11:3-5.6(e) (attorneys’ fees).  This court has held that “if the insurance carrier is successful [in dispute resolution], there is no ‘award,’” and thus only an insured or assignee may receive attorneys’ fees.  N.J. Coal. of Health Care Providers, Inc. v. DOBI, 323 N.J. Super. 207, 262 (App. Div. 1999) (Coalition I).  The carefully designed system of care paths that depict permissible treatment; precertification for specified procedures; requirement to exhaust internal appeals before invoking dispute resolution; review of treatment decisions by a medical review organization; short deadlines to expedite decisions on PIP claims; and remedies limited to reimbursement for benefit claims, interest, and attorneys’ fees (for insureds and assignees only) clearly signals that the process and remedies were designed to address pending claims for PIP benefits when an insurer and provider have a payment dispute.
[brief] [Appeal of private right to a cause of action issues] (Pa375– Pa378)  When a private right to a cause of action is not express, then a court may look at whether there is an implied right to a private cause of action.  There must be evidence that the Legislature intended to create a private right of action and it must be consistent with the Legislative scheme.  The Legislature did not intend a private right of action to sue school districts in Superior Court for violations of N.J.S.A. 18A:7F-9(e)(3), and allowing such lawsuits would be inconsistent with the Legislative scheme.  Hence, the court should not infer that there exists an implied private right to a cause of action that allows [...] to sue [...] in Superior Court.  Without an implied right to a cause of action to sue [...] on its Counterclaim, the Counterclaim should have been dismissed.  POINT SIX
[brief] Indeed, pursuant to N.J.S.A. 2A:18-55, Tenant’s payment of these arrears to the Clerk cured the Events of Default:  Discontinuance upon payment into court of rent in arrears; receipt  If, in actions instituted under paragraph “b” of section 2A:18-53\(^{[14]}\) of this title, the tenant or person in possession of the demised premises shall at any time on or before entry of final judgment, pay to the clerk of the court the rent claimed to be in default, together with the accrued costs of the proceedings, all proceedings shall be stopped.  The receipt of the clerk shall be evidence of such payment.  The clerk shall forthwith pay all moneys so received to the landlord, his agent or assigns.  See N.J.S.A. 2A:18-55.  Pursuant to this statutory mandate and in a good faith effort comply with the express terms of the Lease, upon payment of the Rent Arrears to the Clerk, Landlord considered the Events of Default cured and resumed making the Tenant Allowance payments under Section 4.02 beginning with the payment due on August 1, 2022.
[brief] [...] tested positive for both PCP and cocaine, and his blood alcohol concentration was .46%.  (5T 135-4 to 23, 136-9 to 11)  [...] explained that the effects of alcohol “depends a lot on their tolerance,” though generally, when blood alcohol levels are .4% or higher, the person will usually be “comatose or dead. ”  (5T 135-1 to 4)  However, [...] concluded that neither the drugs nor alcohol contributed to [...]’s death.
[brief] Summary Disposition Standard.  Pursuant to Rule 4:83-1, “all actions in the Superior Court, Chancery Division, Probate Part, shall be brought in a summary manner by the filing of a complaint and issuance of an order to show cause pursuant to R. 4:67. ”  As noted in comment 1 to Rule 4:67-1, summary disposition:  [I]s intended to accomplish the salutary purpose of swiftly and effectively disposing of matters which lend themselves to summary treatment while at the same time giving the defendant an opportunity to be heard at the time plaintiff makes his application on the question of whether or not summary disposition is appropriate.  ⁸  Pursuant to Rule 1:36-3, a true copy of Hudson Terrace Realty Mgmt. Corp., 2005 WL 3108187 (App. Div. Nov. 22, 2005) is included in [...]’s Appendix.  Actions brought in a “summary manner,” however, are distinguishable from summary judgment motions in that the trial court may make findings of fact, and accords no favorable inferences to the party opposing summary disposition.  See id.  If the trial court is “satisfied with the sufficiency of the application, [it] shall order defendant to show cause why final judgment should not be rendered for the relief sought. ”  Courier News v. Hunterdon Cty. Prosecutor’s Office, 358 N.J. Super. 373, 378 (App. Div. 2003) (quoting R. 4:67-2(a)).  Trial court judges sitting in probate on summary proceedings have broad discretion in determining the genuine nature of the factual dispute and whether the issue may merit a plenary hearing.  See Trachtenberg v. Twp. of West Orange, 416 N.J. Super. 354, 365 (App. Div. 2010) (holding that a judge properly utilized a summary proceeding to determine whether facts supported the claim asserted).  As clearly reflected in the Trial Court record and the parties’ briefing on appeal, the facts in this case are not subject to legitimate dispute, and the Trial Court therefore was correct in finding the matter was ripe for summary disposition.  Moreover, as set forth in detail above, [...] never sought discovery in this matter at any point, nor did she object to the Trial Court’s repeated commentary that the matter was ripe for adjudication at any time.  To the contrary, [...] agreed the Settlement Agreement, [...]’s Will, and [...]’s Revocable Trust are all unambiguous.
[brief] NJDEP Regulations, N.J.A.C. 7:8, Stormwater Management ...........................................  H1348a  NJDEP’s November 2012 “Evaluation of NJDEP’s Category One Antidegradation Designation Process ............  H1387a  NJDEP Regulations, N.J.A.C. 7:9B, Surface Water Quality Standards .............................................  H1430a  [...], Appellant’s Appendix Vol. 11 Pages H1499a through H1642a
[brief] Although [...] raised the issue of [...]’s application being unsigned as a potential flaw in the same (similar to a defect in a public procurement), Pa2; Pb12-16, the trial court correctly found that argument to have no merit given the strength of the record and applicable law.  Pa2.  After the Resolution of Support was granted to [...], it was noted that [...]'s application was not signed; [...] however, submitted an explanation that if the application was not signed, it was an error due to the process of sending the documents to an outside copy service for photocopying.  It was therefore, if anything, inadvertent and clerical in nature, as the trial court found.  Pa2.
[brief] *Ibid.*  In other words, “work effort itself…cannot be the traumatic event. ”  *Id.* at 211.  Further, our Supreme Court has held that a member’s job description and the scope of his or her training are relevant factors for the Court to consider in determining whether an event is “undesigned and unexpected. ”  In a given case, those considerations can weigh strongly against an award of AD.  *Mount v. Board of Trustees, Police & Firemen’s Retirement System*, 233 N.J. 402, 427 (2018); *Russo v. Board of Trustees, Police & Firemen’s Retirement System*, 206 N.J. 14, 33 (2011) (the Court pointed out that if the event is one that falls within the member’s job description and training, it is not likely to satisfy the criterion of “undesigned and unexpected” as required by *Richardson*).
[brief] 42  ## TABLE OF AUTHORITIES | Cases: | Page(s) | |-----------------------------------------------------------------------|---------| | Arias v. Gutman, Mintz, Baker & Sonnenfeldt LLP, | 35 | | 875 F.3d 128 (2d Cir. 2017) | | | Asmad-Escobar v. Phoenix Fin. Servs. LLC, | 3, 8, 17, 36 | | 2024 WL 2839329 (App. Div. June 5, 2024) | | | Banco Popular N. Am. v. Gandi, | 6 | | 184 N.J. 161 (2005) | | | Barclift v. Keystone Credit Servs., Inc., | 16, 25, 31 | | 2022 WL 444267 (E.D. Pa. Feb. 14, 2022) | | | Benzemann v. Citibank, N.A., | 11 | | 806 F.3d 98 (2d Cir. 2015) | | | Bergen County PBA Loc. 134 v. Donovan, | 19, 24, 26 | | 436 N.J. Super. 187 (N.J. Super. App. Div. 2014) | | | Brake v. Slochowsky & Slochowsky, LLP, | 34 | | 504 F. Supp. 3d 103 (E.D.N.Y. 2020) | | | Castro v. NYT TV, | 36 | | 384 N.J. Super. 601 (N.J. Super. App. Div. 2006) | | | Cavazzini v. MRS Associates, | 15, 20, 31 | | 574 F. Supp. 3d 134 (E.D.N.Y. 2021) | | | Ciccone v. Cavalry Portfolio Servs., LLC, | 25 | | 2021 WL 5591725 (E.D.N.Y. Nov. 29, 2021) | | | Clemens v. ExecuPharm Inc., | 41 | | 48 F.4th 146 (3d Cir. 2022) | | | Cnty. of Warren v. State, | 6 | | 409 N.J. Super. 495 (App. Div. 2009) | | | Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, | 21 | | 589 U.S. 327 (2020)
[brief] Practical construction of the contract by the parties is given controlling weight in determining a contract’s interpretation.  Barila vs. Bd of Education, 241 N.J. 595, 616 (2020); Serico vs. Rothberg, 234 N.J. 168, 178 (2018).  Here there is no question based on the parties’ own actions, that there was an agreement to rescind the termination and modify the rental amounts in [...]’s favor.  On May 11, 2016, (or May 31, 2016, fn2) [...] did not vacate the premises as required by Paragraphs 3 and 12(b) of the Lease.  Immediately after the May 5, 2016 oral agreement, Plaintiff issued the May 2016 letter memorializing the agreement.  Plaintiff invoiced and [...] paid rent of $9,250.00 less a $3,000.00 discount per month for a total of $6,250.00 for the months of May, June, July, and August (and September).  Thereafter Plaintiff invoiced [...] $9,250.00 monthly, and [...] paid rent monthly (though not in the agreed amount).  On April 17, 2019 the parties came to an agreement that provided a payment plan for all of the arrearages that had built up.  The parties specifically stipulated and agreed in the Consent Order of April 17, 2019 that the February 20, 2015 Lease “remained in effect”.  Thereafter, the Plaintiff continued to invoice [...] every month and [...] paid every month according to the Consent Order (but not always in the full amount).  On March 19, 2020 [...] sent its termination letter effective April 19, 2020 (arguably April 30, 2020, see fn2) and thereafter physically vacated the premises.  It is undisputed that [...] occupied the premises continuously and without interruption from February 20, 2015 through April 19, 2020.  The parties’ own actions are given controlling weight, Barila, supra, Serico, supra, and their actions demonstrate that the Lease was continuously in effect from February 20, 2015 to April 19, 2020.
[brief] **PROCEDURAL HISTORY**  Plaintiff instituted this matter by Verified Complaint on April 6, 2023 (Pa001).  The parties agreed to settle the matter and it was dismissed on April 24, 2023 (Pa.17).  Thereafter, the settlement was unable to be consummated and an Order was entered to transfer the matter to another venue on October 19, 2023  Defendant, in lieu of filing an answer, filed a Motion to Dismiss based upon the arbitration provision in the party shareholder’s agreement (Pa019).  The motion was supported by the Certification of [...] (Pa21) which had appended to it, the parties’ shareholders agreement (Pa024) and several of the demands Defendant made regarding arbitration (Pa042-47).  Plaintiff filed a four-page certification in opposition to the motion (Pa48-58).  Nowhere in this certification does Plaintiff claim he entered into the agreement as a consumer or that he did not understand that the dispute resolution provision was a waiver of his right to sue in Court.  After hearing oral argument on January 11, 2024, the Court denied Defendant's motion (Pa059-60).  Defendants filed a Notice of Appeal on January 17, 2024 (Pa061-64).  Defendants have requested oral argument (Pa066).
[brief] That said, “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections;” cited in *Mullane v. Central Hanover Bank & Trust Co*, 339 U.S. 306 314, 70 S. Ct. 652, 657, 94 L Ed. 865 (1950).  “**FAILURE** to give NOTICE **VIOLATES** the most rudimentary **demands of due process law**”.
[brief] See Pa-iv at note 2; Trans. Id. TE1629906-05152024.  This is incorrect.  Plaintiff did not submit Exhibit F to Respondent’s Summary Judgment motion, which is a different video than Exhibit D and Plaintiff’s Exhibit E.  Therefore, Exhibit F is included as Da51.  It was submitted to the Court via flash drive by Respondent on May 16, 2024 (previously identified as Da66).  Trans Id. E1640741-07162024.
[brief] Nonetheless, the State submits that even if this Court determines that an alibi instruction should have been read, this error was harmless.  Defendant argues that this error is reversible because the alibi Model Jury Charge tells the jury that ‘[t]he defendant has neither the burden nor the duty to show that he/she was elsewhere at the time and so could not have committed the offense.  You must determine, therefore, whether the State has proved each and every element of the offense charged, including that of the defendant’s presence at the scene of the crime and his/her participation in it.  [Db36-37; Da61-62.]
[brief] TABLE OF APPENDIX  Motion for Reconsideration - Order Dated June 26, 2024 ---------------------------------------------Pa1 Motion to Stay – Order Dated August 30, 2024 ---------------------------------------------Pa2 Emergent Motion - Order Dated September 4, 2024  ---------------------------------------------Pa3-Pa4 | Cases | Page Nos. | |-------------------------------------------|----------------------------| | Brundage v. Estate of Carambio, 195 N.J. 575 (2008) | 13 | | Miranda v. Arizona, 384 U.S. 436 (1966) | Passim | | Pa. R.R. Co., 20 N.J. 398, 409 (1956) | 13,14 | | Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980) | Passim | | State in the Interest of A.A., 240 N.J. 341 (2020) | 10,14,19 | | State v. Alfano, 305 N.J. Super. 178, 190 | | | (App. Div. 1997) | 13 | | State v. Alvarez, 238 N.J. Super. 560 | | | (App. Div. 1990) | 16 | | State v. Bard, 445 N.J. Super. 145, 154 (2016) | 16 | | State v. Elders, 192 N.J. 224 (2007) | 16,20 | | State v. Gibson, 318 N.J. Super. 1 (App. Div. 1999) | 17 | | State v. Johnson, 42 N.J. 146 (1964) | 17 | | State v. Locurto, 157 N.J. 463 (1999) | 16 | | State v. P.Z., 152 N.J. 86 (1997) | 18,21 | | State v. Presha, 163 N.J. 304, 312 (2000) | 17 | | State v. Reldan, 100 N.J. 187, 205 (1985) | 13 | | TABLE OF AUTHORITIES CONT'D | Page Nos. | |-----------------------------|-----------| | State v. Robinson, 200 N.J. 1 (2009) | 16 | | State v. Rockford, 213 N.J. 424 (2013) | 15,16 | | State v. Sims, 65 N.J. 359, 372 (1974) | 13 | | State v. Stott, 171 N.J. at 365 | 18 | | State v. Tate, 220 N.J. 393, 404 (2015) | 16 | | State v. Timmendequas, 161 N.J. 515 (1999) | 18 | | State v. Watts, 223 N.J. 503, 516 (2015) | 15,16 | **Statutes** | N.J.S.A. 2C:11-3a(1) | 1 | |-----------------------|---| | N.J.S.A. 2C:39-4a | 1 | | N.J.S.A. 2C:39-5b(1) | 1 | **Rules** | R. 2:2-4 | 13 | |----------|----| | R. 2:3-1(b)(5) | 13 |
[brief] Page TABLE OF JUDGMENTS, ORDERS AND RULINGS BEING APPEALED  ..........i TABLE OF AUTHORITIES  .................................................................................. ii PRELIMINARY STATEMENT ..............................................................................1 LEGAL ARGUMENT ............................................................................................2 Point I [...]’s Conflict is Imputed to his Partners and Therefore [...] Should be Disqualified (Pa182; T) .........................................................2 A. R.P.C. 1.10 Prohibits [...] from Representing the State of New Jersey and the Other Defendants .........................................................5 B. [...] has a Positional Conflict with the State of New Jersey .............................................................................................................6 CONCLUSION .......................................................................................................11 TABLE OF JUDGMENTS, ORDERS AND RULINGS BEING APPEALED 7-31-24 Order Denying Plaintiff’s Motion ..............................................................Pa182 7-31-24 Transcript of Decision ..............................................................................T TABLE OF AUTHORITIES CASES Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201 (1988) ......................... 2, 3, 4, 5, 10 Reardon v. Marlayne, Inc., 83 N.J. 460 (1980) ...................................................5 State v. Bellucci, 81 N.J. 531 (1980) .................................................................3, 10