ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The Instant Appeal on the Mockler Issue Fails**  Appellant was not entitled to any specific instruction to ‘offset’ liability determined based upon recognized and observed weather conditions, as well as Respondent’s stopped vehicle.  Appellant presented no evidence other than a conclusory statement as to why his vehicle suddenly slid to cause the subject collision.  Appellant could not testify as to the distance he began braking, which is contrary to the defendant in *Mockler* who established a distance of fifty (50) feet.  Despite Appellant being unable to establish the type of facts the defendant established in *Mockler* and the other cases cited by Appellant, the Court nevertheless permitted the jury to decide the issue of negligence; rather than decide the issue as a matter of law pursuant to *Dolson*.  The jury in this matter therefore received the same jury charge with respect to negligence, as that which was given in *Mockler*.  There is no such thing as a “*Mockler* Charge,” such that would warrant the reversal of a jury verdict based on an incomplete jury charge.  Appellant is not entitled to have the jury charged in his own words.  *LaBrutto*, 114 N.J. 187, 204 (1989).  Notably, there *does* exist a model civil jury charge relative to “Duty as to Obstacles and/or Defects in the Roadway”, which was *not* requested by Appellant in this matter; and interestingly does not cite to *Mockler* in the committee notes, as basis for the charge.  *See* Model Civil Jury 5.30G(6), “Duty as to Obstacles and/or Defects in the Roadway” (March 2021).  One must presume that if the Courts and/or the Legislature wished for the jury instructions to include language relative to skidding and/or sliding of vehicles based upon road conditions, they would have done so.  Accordingly, this matter was subject to a fair and just determination of the facts relative to Appellant’s negligence and a jury verdict rendered in accordance with those facts and the applicable law regarding negligence.  The jury verdict cannot be viewed as against the weight of the evidence, considering the rear-end nature of the collision.  Furthermore, it is not clear and convincing that the verdict was against the weight of the evidence that included testimony of the slide, skid and/or hydroplane.  The denial of Appellant’s requested non-standard charge was proper and had no impact upon the jury’s ultimate verdict.  For all of these reasons, the instant Appeal must be denied, and the jury’s verdict affirmed.
[brief] The negative criteria are set forth in N.J.S.A. 40:55D-70, which states that the applicant must show that the variance “can be granted without substantial detriment to the public good[,]” and “will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. ”  Price, 214 N.J. at 286 (quoting N.J.S.A. 40:55D-70).  “The showing required to satisfy the first of the negative criteria,” relating to the public good, “focuses on the effect that granting the variance would have on the surrounding properties.
[brief] *O'Shea v. Twp. of W. Milford*, 410 N.J. Super. 371, 379 (App.Div. 2009).  It is the trial court’s determination and legal conclusions related to OPRA that are subject to this appeal and not a discretionary decision as to some miscellaneous.  Nor is this an appeal of the denial of the Township’s motion for reconsideration itself.  This is simply the appeal of the trial court’s OPRA determination.  Accepting the Respondent’s argument would result in a situation where a litigant that appeals from a trial court’s summary judgment decision, after having filed and been denied a motion for reconsideration, would then be subject to an abuse of discretion standard of review rather than the *de novo* standard that is applicable to summary judgment review.  *Woytas v. Greenwood Tree Experts, Inc.*, 237 N.J. 501, 511 (2019)  As such, this appeal is subject to the *de novo* standard of review as to the trial court’s legal determination as to this OPRA issue.  **POINT TWO**
[brief] Appellant correctly recites in its Brief that [...] inquired of counsel at the beginning of oral argument whether the case was “ripe for summary judgment” (1T6:8-14).  Appellant’s counsel’s response to the Judge was a clear and unwavering “Yes, Your Honor”.  (1T6:11).  Respondent’s counsel agreed.  (1T6:13-14).  While Appellant’s counsel could have advised the Judge that summary judgment was premature and/or that Appellant wanted to conduct discovery on one or more issues, she elected not to do so.  In light of the above, Appellant should be judicially estopped from arguing on this appeal that this matter is not ripe for summary judgment.  Because the Appellant is now asserting a position on appeal that contradicts and is inconsistent with the position asserted by Appellant before the Trial Court below, this argument should be precluded under the equitable doctrine of judicial estoppel.
[brief] In Fraud Act claims, the dispute is whether the defendant(s) violated section 4 of the Fraud Act.  In part, the Fraud Act states that a person or practitioner violates the act if he “(1) Presents or causes to be presented any written or oral statement as part of, or in support of or opposition to, a claim for payment or other benefit pursuant to an insurance policy or the "Unsatisfied Claim and Judgment Fund Law," P.L.1952, c. 174 (C.39:6-61 et seq.), knowing that the statement contains any false or misleading information concerning any fact or thing material to the claim. ”  N.J.S.A. 17:33A-7(a)(1).  Thus, a dispute under the Fraud Act is not “a dispute concerning the payment of medical expense and other benefits provided by the personal injury protection coverage in policies of automobile insurance. ”  N.J.A.C. 11:3-5.1(a).  In a Fraud Act case that arises in the No-Fault setting such as the instant matter, the value of the medical expense benefits that the carrier seeks to recover serves only as a measure of the carrier’s damages.  (The carrier’s attorney’s fees and costs serve as other measures of its damages.)  Accordingly, since a dispute under the Fraud Act is not a dispute concerning the payment of medical expenses benefits to a claimant, this matter must be resolved in the Superior Court, “a court of competent jurisdiction” and not via the NFADR process where the DRP has limited jurisdiction and authority.
[brief] The indemnity clause in *Englert* is distinguishable from the indemnity language contained in paragraph two (2) of the matter at hand.  Appellant inappropriately relied on cited Supreme Court and Appellate Division decisions, wherein indemnity clauses were held to be unenforceable, to persuade this Honorable Court to construe the indemnity language in the subject contract against [...].  In *Englert*, the Appellate Division held that the indemnity clause was ambiguous because it did not clearly state whether the subcontractor would indemnify the contractor for its own negligence.  *Englert* at 58.  *Sub judice*, the snow removal contract between defendant/appellant and defendant/respondent contained agreed upon defense and indemnification terms which were *Azurak* compliant.  The contract contained two (2) paragraphs which clearly and cohesively articulate that [...] would defend and indemnify [...] for its own negligence.  The paragraphs contained indemnification language establishing a clear and convincing overlapping intent of the parties.  Thus, the clear and the respective terms of the contract contained “sufficiently plain unequivocal” language.  *Englert* at 53.
[directive] A subject officer who reasonably believes that what he or she might say during an internal affairs interview could be used against him or her in a criminal case cannot ordinarily be disciplined for exercising their Miranda rights.  However, an officer can be disciplined for refusing to answer questions during an internal affairs interview if he or she has been told that whatever he or she says during the interview will not be used in a criminal case.  Informing an officer that their statement will not be used against him or her in a criminal case is called a Garrity warning.  This warning informs the officer being interviewed that he or she must cooperate with the investigation and can be disciplined for failing to do so because the County Prosecutor has decided to provide the officer with "use immunity."
[brief] (6)  “The trial court failed to address this lack of proportionality – Plaintiff spent over $1.4 million pursuing an investigation that was fruitless. ”  (Defendant’s Brief, page 44).  (7)  “For the foregoing reasons, Defendant respectfully requests that the Court reverse and vacate Paragraph 1 of the trial court’s Order dated August 31, 2022, which awarded counsel fees and costs in favor of Plaintiff in the amount of $1,049,589.14.
[brief] D. Offer and Acceptance, Partial Performance, and Practical Construction.  (1T64-12 to 1T66-2)  Here, it is clear from the surrounding facts that the Lease commenced on February 20, 2015, was slightly orally modified on May 5, 2016, to allow $12,000.00 in discounts (later increased to $15,000.00) and terminated on April 19, 2020.  Moreover, the oral modification was placed in writing by [...].  Although [...] did not agree to the oral modification in writing, [...] performed according to the modification, by accepting a $3,000.00 discount for the months of May, June, July, and August (and later September, see fn3).  By partially performing under the modification, [...] has manifested its consent to the modification, both the reduction in rent, and the recission of the termination notice.  Deutsch, supra; See also Weichert Co. Realtors vs. Ryan, 128 N.J. 427, 436 (where an offeree accepts the offeror’s services without expressing any objection to the offer’s essential terms, the offeree has manifested assent to those terms); Association Group Life, Inc. vs. Catholic War Veterans, 120 N.J. Super. 85, 95 (App. Div. 1971) (an offer which invites acceptance by performance rather than by a promissory acceptance will give rise to a binding contract where the offeree begins the invited performance or tenders part of it).
[directive] ”  The statute, in section (e), does give the judge the discretion to impose an R.O.R. bail “when the court determines that such person is deserving. ”  No 10% bail for any crime or offense involving domestic violence, as defined in 2C:25-19, where the defendant was already subject to a temporary or permanent 2A:162-12 restraining order, pursuant to 2C:25-17, and is charged with a crime committed against a person protected under the order or where the defendant is charged with Crimes with Bail Restrictions – contempt pursuant to 2C:29-9.
[brief] CIVIL ACTION ON APPEAL FROM AN ORDER OF THE SUPERIOR COURT OF NEW JERSEY, LAW  DIVISION–SPECIAL CIVIL PART, LANDLORD-TENANT DIVISION, MIDDLESEX COUNTY DOCKET NO. [...]  Sat Below: HON. [...], J.S.C. REPLY BRIEF AND APPENDIX FOR PLAINTIFF-RESPONDENT-CROSS-APPELLANT WINDELS  MARX LANE & MITTENDORF, LLP  Attorneys for Plaintiff-Respondent-Cross-Appellant  120 Albany Street Plaza, 6th Floor  New Brunswick, New Jersey 08901 [...]  [...]  On the Brief: [...], ESQ.  Attorney ID# 033652010  Date Submitted: October 18, 2024  #  TABLE OF CONTENTS | Section | Page | |------------------------------------------------------------------------|------| | TABLE OF AUTHORITIES | ii | | APPENDIX  TABLE OF CONTENTS | iii | | PRELIMINARY STATEMENT | 1 | | PROCEDURAL HISTORY | 4 | | STATEMENT OF FACTS | 4 | | LEGAL ARGUMENT | 4 | | POINT I | | | [...] COMMITTED A REVERSIBLE ERROR BY FAILING TO GRANT LANDLORD’S FEE APPLICATION IN ITS ENTIRETY (Da3) | 4 | | A. The Lower Court Abused Its Discretion by Reducing Landlord’s Fee Award Based on Judge Corman’s Personal Experience (Da3) | 5 | | B. Landlord’s Fee Application Meets the Standard Set by the New Jersey Supreme Court (Da3) | 7 | | C. The Time Expanded by Landlord’s Counsel in the Underlying Action was Reasonable (Da3) | 11 | | D. Tenant is Not Entitled to Any Fee Award (Da1-3) | 14 | | CONCLUSION | 15 | ### TABLE OF AUTHORITIES | Cases: | | --- | | **Greco v. State Farm Ins. Co.,**<br>A-4344-01T5, 2003 WL 1917318<br>(N.J. Super. Ct. App. Div. Apr. 14, 2003)..............................................
[brief] Inasmuch as the definition or identity of “named insureds” under the CCIP Policy is somehow ambiguous, courts look to the intent of the parties and interpret any ambiguities in favor of the insured and its reasonable expectations.  See Martusus v. Tartamosa, 150 N.J. 148, 159-60 (1997) (looking to the reasonable expectations of the insureds and interpreting policy in their favor where they expected coverage for a child’s use of the car at issue).  Along those lines, the CCIP Manual defined “enrolled” contractors as “[e]ligible Subcontractors and Sub-Subcontractors that have submitted all necessary enrollment forms and documents, and have been accepted into the CCIP as evidenced by a Certificate of [Liability] Insurance. ”  Pa586.  The CCIP Manual defined “ineligible” contractors as only “Subcontractors of any tier who are excluded from participation in the CCIP, including those involved in loading, transporting, and unloading materials, personnel, parts, or equipment, or any other items to, from or within the Site.
[brief] Definitions  As used in this endorsement:  1.  **Bacteria** means any type or form of bacteria and any materials or substances that are produced or released by bacteria.  2.  **Fungi** means any type or form of fungus, including mold or mildew and any mycotoxins, spores, scents or by-products produced or released by fungi.  3.  **Spores** mean reproductive bodies produced by or arising out of **fungi**.  This exclusion does not apply to any **fungi** and **bacteria** that are, are on, or are contained in, an edible good or edible product intended for human or animal consumption.
[brief] Hoffman v. Asseenontv.com, Inc., 404 N.J. Super. 415 (App. Div. 2009) .... 20 Jeter v. Stevenson, 284 N.J. Super. 229 (App. Div. 1995) .................. 19 Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67 (1954) ...... 19 Keelan v. Bell Communications Research, 289 N.J. Super. 531 (App. Div. 1996) .................................................. 31
[brief] See S. Jersey Catholic Sch. Teachers Org. v. Saint Teresa of the Infant Jesus Church Elem. Sch., 150 N.J. 575, 581 (1997); see also 500 Columbia Tpk. Assocs. v. Haselmann, 275 N.J. Super. 166, 172 (App. Div. 1994) (dismissing cross-appeal in part due to lack of supporting arguments in brief); State v. Lefante, 14 N.J. 584, 589-90 (1954) (“[A] respondent who is merely seeking to maintain his judgment may brief and argue on the appeal any points that will sustain his judgment and if he does not brief and argue such points he will be taken to have waived them. ”).  CONCLUSION  For the foregoing reasons, Plaintiff-Appellant [...] respectfully requests that the November 11, 2022
[brief] The prior inconsistent statements were properly admitted at trial.  N.J.R.E. 803(a)(1) provides that “[a] statement previously made by a person who is a witness at trial or hearing” is not excluded by the hearsay rule if “it would have been admissible if made by the declarant while testifying and the statement . . . is inconsistent with the witness’ testimony at the trial or hearing . . . .”  If offered by the party calling the witness, the statement is admissible only if it was recorded or contained in a writing made or signed by the witness “in circumstances establishing its reliability.
[brief] Defendant [...] did not join this motion.  Plaintiff did not oppose this motion, as the trial court had already ruled on these issues on May 12, 2023 (Pa114 – Pa115), and the matter had been appealed on November 10, 2023 (Pa116  All issues raised in the brief had been previously argued in the trial court and presented in the appeal.  Defendants cited *North Haledon Fire Co. No. 1 v. Borough of North Haledon*, 425 N.J. Super. 615, 631 (App. Div. 2012) (citing *Brock v. Pub. Serv. Elec. & Gas Co.*, 149 N.J. 378, 391 (1997)); *Soc’y Hill Condo Ass’n v. Soc’y Hill Assocs.*, 347 N.J. Super. 163, 177-78 (App. Div. 2002) in their respondent briefs, however, in these cases, the court addressed circumstances that differ significantly from those in the present case, thereby not relevant to the issues at hand.  Additionally, during the hearing on March 31, 2023, regarding the motion to demand documents filed by plaintiff, the trial judge criticized plaintiff’s appeal, which reversed his decisions of October 22, 2021 (2T).  The trial court mishandled the request by treating it as a pre-trial discovery matter and rejected plaintiff’s motion immediately following the hearing, while permitting defendants to continue concealing necessary documents (Pa103 – Pa104).  Given this context, plaintiff felt uncomfortable further irritating the judge with the same arguments and the fact that the court order had been appealed again.  Considering the judge’s abuse of discretion, violation of court procedures, and distortion of facts leading to the dismissal with prejudice on March 1, 2024, it appears the judge is biased and unsuitable to hear this case.  New Jersey courts permit plaintiff to appeal a dismissal with or without prejudice.
[brief] [...] testified that, during the third shift, the blotter would instruct the officers not to call in the counts between 12:00 a.m. and 4:00 a.m. (3T17.12-22; 3T18.3-11).  Sometimes, [...] called in his counts during those hours and no one answered the phone.  (3T28.14-17).  Additionally, [...] testified that [...]’s unit neither had an IMP or an Emergency Book.  (3T25.2-14).  On cross-examination, [...] testified that even if an officer requested the IMP or the Emergency Book from his supervisor, they “never used to get a response back. ” (3T29.15-18).  In short, none of the State’s witnesses have demonstrated by a preponderance of credible evidence that [...] demonstrated an unwillingness or inability to meet, obtain or produce effects or results necessary for adequate performance.
[brief] Id.  Here the criminal action was initiated against plaintiff based on his race.  There was no probable cause for the stop, the brutal beating or the arrest or any of the false charges against plaintiff.  The CDS charge was dismissed in plaintiff’s favor.  (Pa412)  There was no legal basis for a charge of “Obstruction” without an independent underlying act.  Moreover, the police did not show that plaintiff engaged in actual flight to satisfy the Obstruction.  There was no legal basis for a charge of resisting arrest unless plaintiff was told that he was under arrest.  Moreover, because there was no signed order of conviction from which plaintiff could have appealed within the requisite time frame, then arguably the outcome was in plaintiff’s favor.
[brief] [...] did not raise this non-finality argument when it sought to have this court reconsider the [...] final judgment because it was a non-issue then and it is a non-issue now because the final judgment is a final judgment. ”  (1T 37:7-11).  The court then went on to state, “this is a straightforward case.  Final judgment was entered against [...] in the amount of $1.4 million.  [...] insured [...] and provided [...] with an MCS-90 surety endorsement with a $750,000 policy limit.  [...] is denying insurance coverage to [...].  That triggers the MCS-90 surety up to the limit of $750,000, and [...] retains its right to seek reimbursement from [...] and its principals. ” (1T 37:7-39:9-16).  The court further stated that, “by abandoning its defense to [...], [...] has made the business decision to recover its costs directly from [...] and its principal.  [...] in this case was left to clean up the oil spill that [...] caused and has been doing so since the oil spill occurred in this matter.
[brief] That lease contained a State of New Jersey Board of Commerce and Navigation Map showing lands under tidewaters situate in the [...] leased from the State of New Jersey.  That map shows the mean highwater line both as to Lot 3 as well as 3.01 showing it to be a thin strip of land running along the northwesterly line of Beachway.  That document also shows "grant to [...], May 10, 1879" (Pa951).  In 1943, the [...] was given a new lease which was renewed in 1954 and expired in 1969 (Pa960).  This lease also contained a map this time showing the former mean highwater line which again designates and only shows a thin strip of land running along Beachway which is the thin strip also shown on Lot 3.01 that being the only land owned by the [...].
[brief] ”  Benedict, supra at 381, citing Faps, supra at 48.  This distinguished the fact pattern in Faps from that in Benedict, “the new right-of-way line is within the parking spaces [which effectively] renders all of the parking spaces on that side of the building unusable . . .  Defendants did not simply lose maneuvering space for parking; they lost the parking itself. ”  Ibid.  The Appellate Division’s ruling in Benedict supports Respondent’s position that alleged physical damage to the residence during the repair of the seawall is non-compensable in a condemnation matter.
[brief] *D'Ippolito, et al. v. Castoro, et al.*, 51 N.J. at 589 (emphasis supplied).  Moreover, "[a] constructive trust may arise . . . even though the acquisition of the property was not wrongful.  It arises where the retention of the property would result in the unjust enrichment of the person retaining it."  D'Ippolito, et al. v. Castoro, et al., 51 N.J. at 589 (quoting from Scott on Trusts, § 462.2, p. 3417 (3rd ed. 1967)).  Id at 265-266.  (emphasis supplied).  See also The Confidential Relationship Theory of Constructive Trusts - an exception to the Statute of Frauds, Fordham L. Rev. Volume 29, Issue 3, 561 (1961).  (Pa555-565).  In the Instant case, the trial court ruled orally from the bench on July 31, 2023 that the elderly [...] was in a confidential relationship with [...] and Arlene [...]:
[directive] permit supervisory to documented discretion be must that exercising Page 3 1.2 Reco nizin~ the Multitude of Reasons for Deploying BWCs.  It widely is recognized that BWCs can play an important role in addressing public concerns about police use of force.  A BWC recording of shooting or other use-of-force apolice-involved event provides objective of what practical of however, evidence occurred.  The utility BWCs, lies only in their ability not to record obj ectively the circumstances of apolice-civilian confrontation, but also in their capacity to discourage both officers and civilians from engaging in inappropriate conduct.  Thus, for example, operating during encounter can deter a BWC apolice-civilian the officer from using force inappropriately, deter a civilian from engaging in while at the same time provocative conduct that might prompt the officer to use force.  These devices also can serve to discourage both law enforcement and civilian witnesses from providing false information about the falsely circumstances of the encounter; a BWC recording not only can vindicate an officer who is person from making accused of misconduct, and do so very quickly, but also will discourage a false allegations against the officer in the first place.
[brief] On February 7, 2022, the Hon. [...], J.S.C., conducted a hearing on defendant’s motion to limit the State’s firearm expert testimony under N.J.R.E. 702 and N.J.R.E. 403.  (5T1, et seq.).  Defendant did not challenge the qualifications of the State’s expert, but alleged that the expert’s firearm toolmark identification testimony was not backed by a scientific basis under the Daubert\(^2\) standard.