ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [...] was left with a $150,000.00 loss through no fault of its own and is left with no remedy at all.  The trial court could have imposed a constructive trust or an equitable lien on the property by which [...] bore the burden of protecting [...].  "A constructive trust is a remedial device through which the 'conscience of equity' is expressed; it will be imposed when a person has acquired possession of or title to property under circumstances which, in good conscience, will not allow the --- \(^6\) Plaintiff has refused to return any funds to [...]. property's retention."  Thompson v. City of Atl. City, 386 N.J. Super. 359, 375–76 (App. Div. 2006) (quoting Flanigan v. Munson, 175 N.J. 597, 608 (2003)).  A two-prong test applies to determinations of whether a constructive trust is warranted: "a court must find that a 'wrongful act' caused the property to come into the hands of the recipient and that the recipient will be 'unjustly enriched' if it is not returned."  Id. at 376 (quoting Flanigan, 175 N.J. at 608).  The "wrongful act" necessary for imposition of a constructive trust need not be criminal; it includes, but it is not limited to, "fraud, mistake, undue influence, or breach of a confidential relationship, which has resulted in a transfer of property."  D'Ippolito v. Castoro, 51 N.J. 584, 589 (1968).  Second, the wrongful act must result in a transfer or diversion of property that unjustly enriches the recipient.  Id.  at 589.  The circumstances in which a constructive trust may be imposed are as extensive as required to reach an equitable result.  Thompson, 386 N.J. Super. at 376.  The trial court twice found [...]’ conduct “less than exemplary. ”  Ia466, Ia477.  Her Honor noted defendant “was familiar with the foreclosure process for abandoned property as he availed himself to it in purchasing his own tax sale certificate which he foreclosed on June 10, 2021. ”  Ia477.  Moreover, he failed to pay any taxes during the time he owned the property. ”  Ibid.  This alone is a sufficient mistake for a constructive trust or lien to be imposed.  But [...]’ conduct was far more egregious than merely not paying any taxes and knowing the tax foreclosure process.  [...] intentionally did not pay its taxes because it chose to pursue other investments in Westfield and Rahway, leaving [...] to decay further.  Even counsel admitted that we do not dispute the condition of the property.1T16:3-5.  But for the grace of God, no one was hurt or killed by the dangerous condition of the property.  On can be sure that [...] would be happy to let [...] or [...] take the blame for such a catastrophe, just as it has stood by as [...] is hauled into [...].  Ia421.  VI.
[brief] C.  A statistical number was not necessary for the jury to evaluate the DNA evidence because the victim was the source of the DNA.  The jury received instructions that an individual could be deemed the source of a DNA profile only if it met a specific statistical threshold.  Failure to reach this threshold would limit the DNA expert to identifying the person merely as a match to the DNA.  Here, the DNA testing conclusively identified the victim as the source of the DNA profile derived from various evidence pieces.  Thus, a statistical comparison was unnecessary for the jury to understand the DNA evidence, as it lacked the ambiguity associated with mere matches involving other potential matches.  The expert’s testimony is therefore not error, let alone plain error.
[brief] Respondents  [...]’s and [...]’s Appearance Before the [...] was a violation of Section (e).  Respondents claim that the appearance and actions of board members [...] and [...] before the [...] was not a violation of Section (e) of the School Ethics Act.  Despite Respondent’s claims, attempting to influence municipal governments is not a function or duty of School Board Members.  As mentioned in the appellant brief, [...] and [...]’s statements helped spur the West Amwell Township government to directly oppose the referendum and ultimately sue the School District (Pb18).  V.
[brief] On October 29, 2019, after it became apparent that state prosecutors would allow the statute of limitations to run on the charges against [...], Plaintiff filed a citizen complaint against [...] in the Municipal Court of Fort Lee.  Pa-32.  On November 21, 2019, Hudson County Chief Municipal Judge [...] found there was probable cause that [...] committed numerous crimes and issued a Complaint-Warrant for [...]’s arrest on all four charges requested by Plaintiff:  (a)  2nd-degree official misconduct in violation of N.J.S. 2C:30-2(a); (b) 4th-degree obstructing administration of law in violation of N.J.S. 2C:29-1(a); (c) 3rd-degree false report to law enforcement in violation of N.J.S. 2C:28-4(a); and (d) 4th-degree fictitious report to law enforcement in violation of N.J.S. 2C:28-4(b).  Pa-49 to 52.  On February 20, 2020, based on Plaintiff’s same complaint, the Municipal Court of Fort Lee issued Complaint-Summonses against [...] charging her with the same offenses.  Pa-54 to 64.  The New Jersey Attorney General’s Office of Public Integrity and Accountability advised the HCPO that it would not “take on” Plaintiff’s charges and referred the prosecution to the HCPO.  Pa-115.  The criminal investigation and prosecution of State v. Liliana DeAvila-[...] were then assigned to the HCPO.
[directive] Policy Statement 8- 1 8:l B Instructions for Completion of Form Report 8- 1-5 8:2 llpp.  Form County Forfeiture Program Report 8 - €3 - - SOP Municipal Forfeiture Program Reports No. 9 - 1 09  Applica lity: l Forfeiture Program Administrators bi A1 9 - 1 Policy Statement 9 - 1 9:l C Instructions for Completion of Form Report 9 - 1-3 9:2 - 5pp.
[brief] It also must be noted that reformation of the Redevelopment Agreement and Operating Agreement consistent with the terms of the Order will have a substantial negative impact on the Authority’s statutory purpose, pursuant to the Parking Authority Law, *N.J.S.A. 40:11A-1, et seq.*, of maintaining a public parking system, as well as its ability to pay its existing bondholders.  Specifically, *N.J.S.A. 40:11A-20* provides as follows:  The provisions of this act shall constitute a part of any and all contracts entered into by an authority created hereunder for the benefit and security of the creditors of such authority, and the State of New Jersey does hereby pledge to and agree with any person, firm or corporation or Federal agency subscribing to or acquiring the bonds issued by the authority for the construction, extension, improvement or enlargement of any project or facilities or part thereof that the State of New Jersey will not limit or alter the rights hereby vested in the authority and in the holders of such bonds until --- \(^2\)  As noted herein above, the trial court offset the $1,449,005.74 owed by [...] to the Authority as a result of [...]’s breach of the Operating Agreement when calculating the revised revenue sharing formula upon reformation of the Redevelopment Agreement, as set forth in the Order.  all bonds at any time issued together with the interest thereon and any premiums upon the redemption thereof are fully met and discharged.  See also, U.S. Trust Co. of New York v. New Jersey, 431 U.S. 1 (1977) (wherein the Court, in the context of the exercise of legislative authority, recognized the significant limitations in attempting to impair existing contracts with bondholders).
[brief] (Da57).  The Original Policy broadly followed the state Department of Education’s Transgender Guidance for School Districts (“State Guidance”) (Da54-65), which DOE had issued in 2018 pursuant to the Legislature’s direction to “assist schools in establishing policies and procedures that ensure a supportive and nondiscriminatory environment for transgender students. ”  N.J.S.A. 18A:36-41.  The Original Policy thus generally required the school district to “keep confidential a current, new, or prospective student’s transgender status. ” (Da55).  The Original Policy also stated that there was “no affirmative duty” on school personnel to notify parents regarding a student’s gender identity or expression, (Da54), and recognized that students might wish to keep this information private.  But the Original Policy and State Guidance acknowledge that even when a student requests privacy, there will be times when “the school district may be obligated to disclose a student’s status” because it has “a specific and compelling need” to do so, “such as the health and safety of a student or an incident of bias-related crime. ”  (Da55).  --- 2  “Ra” refers to Respondents’ appendix to this brief.
[brief] It cannot be overstated that the [...] submitted this information to Congress based on information provided by the Department.  Notably, the Department does not deny \(^3\)  The Department’s citation to Aftab v. N.J. Prop. Liab. Ins. Guar. Ass’n, 386 N.J. Super. 41 (App. Div. 2006) fares no better.
[brief] Notably, in his reply brief [...] does not deny that he received the January, 2019 emails from [...] and that he received the March 27, 2019 letter from counsel for [...] and [...].  [...] also does not deny that the foregoing events all took place before the entry of the Consent Judgment relied upon.  Finally, [...] does not deny that any personal guaranty signed by [...], [...] and [...] was in the nature of a continuing guaranty since the underlying lease was a month to month lease that could be terminated at any time by either party and thus each month that the lease was not terminated constituted an extension of additional consideration by [...].  Rather, [...] defends this claim based only on the following two arguments: (1) the alleged guaranty in the month to month lease did not expressly reserve the right to revoke the guaranty prior to the extension of time under the month to month lease\(^3\) and (2) the communications made in 2016, and in January, 2019 did not expressly claim revocation when the communication was made.  Like the other arguments made by [...] these two arguments are fatally flawed.  As to the first argument, even though the guaranties in Swift & Co., Fidelity Union Trust Co. and Mount Holly State Bank all contain right to revoke language there is nothing in any of the cases that states that such language is required in order to claim revocation under a continuing guaranty, especially when the guaranty language relied upon does not expressly state any guaranty was irrevocable.  The strict construction of guaranties and the principle of construing ambiguities against the draft tilt this point against [...].  Regarding the second argument, again there is nothing in any case cited by [...] that requires use of the word revocation to constitute an effective revocation.  Thus in Swift & Co. notice of the mental incompetence of the guarantor alone was --- \(^3\)  It is not surprising that the once sentence that is alleged to constitute the personal guaranty in this case does not include an express provision allowing revocation as no substantive terms of the guaranty are included anywhere in the Lease.  Conversely, it is also accurate to state that the one sentence relied upon does not state that any guaranty made is irrevocable. deemed potentially sufficient to work a revocation.  In *Mount Holly State Bank* the Court ruled that notice of the guarantor’s sale of its interest in the corporation alone could potentially work a revocation.  In any event, if use of the word revocation was required under applicable law there is no dispute that counsel’s letter of March 27, 2019 liberally used the term “revocation”.  In light of the above, should the Court reach this issue, which was not addressed in the Trial Court’s summary judgment ruling below, the Court should find revocation and issue a ruling that [...] and [...] are not liable for any amounts claimed due from [...].
[brief] Ibid.  Addressing [...]’s argument that the Board failed to appropriately weigh several compelling letters of support that were submitted on his behalf, the Board again summarily claimed that the letters were “considered” because they were “on file,” and “available for review. ”  (Pa6).  It offered no explanation as to why the other letters of support were not considered in mitigation, and instead disposed of [...]’s argument as “without merit. ”  Ibid.
[brief] C.  Even if the PSA Did Not Impose a Duty on [...] to Keep Plaintiff Apprised of the Closing, [...] Voluntarily Assumed This Duty and Had to Perform it With Care  [...] asserts that the PSA has no terms imposing an obligation on [...] to perform or abstain from the acts and omissions alleged in the Complaint.  (See [...] Br., at 42-44).  This argument also fails.  [...] certainly had a contractual duty to cooperate with Plaintiff and [...] in seeing to it that the terms of the PSA were followed and to ensure that the closing (which was to occur at [...]’s offices) was not undertaken covertly, without notice to or participation of Plaintiff.  [...] also had a contractual duty not to take steps that would interfere with another party’s rights under the contract.  [...] breached its contractual duties when it aided and abetted [...] and otherwise acted in derogation of Plaintiff’s rights to acquire title to the Real Property by affirmatively and willfully cutting off communication with Plaintiff and intentionally misleading Plaintiff about the status of the deal.  In any event, under New Jersey law, a party to a contract may voluntarily assume duties to perform beyond those articulated in their contract.  Once those duties are voluntarily assumed, they must be performed with due care.  See, e.g., Walker Rogge, Inc. v. Chelsea Title & Guaranty Co., 116 N.J. 517, 541 (1989) (stating the principle that “[n]otwithstanding the essentially contractual nature of the relationship between a title company and its insured, the company could be subject to a negligence action if the ‘act complained of was the direct result of duties voluntarily assumed by the insurer in addition to the mere contract to insure title. ’”).  Hence, even assuming arguendo that the PSA did not obligate [...] to speak truthfully about whether (or not) the closing was “on hold” or to follow through on its promise keep Plaintiff apprised of the fact and details of the rescheduled closing, this does not end the analysis.  Once [...] voluntarily assumed a duty to Plaintiff, knowing that Plaintiff would rely upon [...] to perform that duty carefully and honestly, [...] had to perform that duty with due care, and without deception.  See id.; see also Cocco v. Hamilton, 2010 N.J. Super. Unpub. LEXIS 1047, *32; 2010 WL 2011003 (App. Div. 2010) (Pa177-198).  As to [...]’s argument (at pages 55-56) that this assumption of duty claim was not adequately pleaded in the Complaint, this should not have led to a dismissal with prejudice, but rather, Plaintiff should have given the opportunity to replead.  POINT VI
[brief] #  TABLE OF CONTENTS – APPENDIX (Volume 1 of 2 – Pa1 to Pa124) | Document | Page | |-------------------------------------------------------------------------|------| | Order granting summary judgment, filed March 18, 2024 | Pa1 | | Complaint, filed February 22, 2021 | Pa2 | | Answer, filed January 10, 2022 | Pa6 | | Notice of Motion for Summary Judgment, filed February 15, 2024 | Paa | | Certification of [...], filed February 15, 2024 | Pa15 | | Exhibit A to Certification, Complaint, filed February 15, 2024 (omitted here – see Pa2) | -- | | Exhibit B to Certification, Plaintiff’s Answers to Interrogatories, filed February 15, 2024 | Pa18 | | Exhibit C to Certification, Photographs, filed February 15, 2024 | Pa33 | | Exhibit D to Certification, Transcript of [...] Deposition, filed February 15, 2024 | Pa38 | | Exhibit E to Certification, Transcript of [...] Deposition, filed February 15, 2024 | Pa62 | | Exhibit F to Certification, Report of [...] dated May 3, 2023, filed February 15, 2024 | Pa71 | | Exhibit G to Certification, Report of [...] dated October 13, 2023, filed February 15, 2024 | Pa86 | (Volume 2 of 2 – Pa125 to Pa231) | Document | Page | |-------------------------------------------------------------------------|------| | Exhibit 1 to Exhibit G to Certification, Property Information, filed February 15, 2024 | Pa125 | | Exhibit 2 to Exhibit G to Certification, Police Report dated February 23, 2019, filed February 15, 2024 | Pa127 | Exhibit 3 to Exhibit G to Certification, Local Climatological Data, filed February 15, 2024  Exhibit 3 to Exhibit G to Certification, Report of [...], filed February 15, 2024 (omitted here – see Pa71)  Exhibit 4 to Exhibit G to Certification, Photographs, filed February 15, 2024 (omitted here – see Pa33)  Exhibit 5 to Exhibit G to Certification, Photographs, filed February 15, 2024  Exhibit 6 to Exhibit G to Certification, Curriculum Vitae, filed February 15, 2024  Exhibit H to Certification, Excerpt from NJDOT online Road Design Manual, filed February 15, 2024  Exhibit I to Certification, Excerpt from 2015 NJDOT Roadway Design Manual, filed February 15, 2024  Exhibit J to Certification, Report of [...], dated November 27, 2023, filed February 15, 2024  Certification of [...], undated, filed February 15, 2024  Defendants’ Statement of Material Facts, filed February 15, 2024  Plaintiff’s Response to Defendants’ Statement of Material Facts, filed March 5, 2024 Notice of Appeal, filed April 29, 2024
[brief] ”2T 68:9-11 also 2T 37:2-19 (emphasis added).  Second, that summary by the trial court of the Board’s position misses a major point made by the Board and is central to weighing the positive and negative impacts. \footnote{The trial court mistook the Board vote as well, calling it 4-3 while needing 5 votes to approve (Da354), whereas the actual vote was a motion to deny the variances approved by 5-2 to deny.  Da409.}  The Board gave significant weight to the fact that this Property had recently been considered for a zone change to allow the same mix of senior housing, and the Township determined not to change the zoning.
[brief] The motion at issue here was filed extremely late in the discovery period.  (Pa11).  Plaintiff/Appellant believes the Trial Court abused its discretion when it denied the motion to amend the complaint to include a claim for fraudulent concealment and for spoliation of evidence and now attempts to relitigate prior motions in the same manner with the same evidence.  (Pb8).  The relief sought by Plaintiff at the time of the original motion was for an inference of spoliation and to add a claim fraudulent concealment.  (Pa12).  Plaintiff did not stop there, and it should be noted that Plaintiff also wanted certain facts conclusively established and uncontroverted so that was lumped into the October 24, 2018, Motion for Leave to Amend.  (Pa11 to Pa23).  For lack of a better phrase, Plaintiff essentially wanted the Court to take judicial notice of a bunch of disputed issues of fact that were presented by a variety of uncertain and conflicting pieces of evidence, some of which turned out to be disproven through discovery and eventually at trial.  [...] succinctly laid out the law in her denial of Plaintiff’s Motion for Reconsideration of the Motion for Leave to Amend the complaint:  “In order for a *spoliation inference* to apply, four essential factors must be satisfied: 1) the evidence in question must be within the party’s control; 2) it must appear that there has been actual suppression or withholding of evidence; 3) the evidence destroyed or withheld must be relevant; and 4) it must have been reasonably foreseeable that the evidence would later be discoverable.  *R.L. v. Voytac*, 402 N.J. Super. 392, 406 (App. Div. 2008) citing *MOISAID Techs., Inc. v. Samsung Elecs. Co.*, 348 F. Supp. 2d 332, 336 (D.N.J. 2004).  (Pa295).
[brief] Pa217 & Pa218.  After receiving the lower court’s adverse decision, the Appellant filed a motion of reconsideration\(^2\) with the Public Employment Relations Commission seeking anew their request for an appointment from the special disciplinary arbitration panel.  --- \(^2\)  Both parties, pursuant to Section 19:12-6.5, submitted briefs on their position and the Director of Arbitration issued a final agency decision on May 26, 2021.  Here, the Appellant ([...]), unlike the course of action taken by the Plaintiff in the Matter of DiGuglielmo, 465 N.J. Super. 42, 63 (App. Div.2020), 252 N.J. 350, 285 A.3d 305 (2022), chose not to appeal the Commission’s final decision.  After failing to prevail in their initial PERC petition pertaining to the forum of appeal, and failing to prevail in Superior Court before the Honorable [...], and failing in their attempt for an additional bite of the proverbial apple pursuant to their motion for reconsideration before PERC.
[brief] This has been done for convenience for the Court as the procedural history is uncomplicated and is intertwined with the Statement of Facts.  2 T refers to the June 5, 2023 transcript of the hearing of the parties’ Motions for Summary Judgment.  orders were made in connection with the two contracts, with only one of the orders being for a quantity over 20,000 pounds.  Pa224; Pa15; Pa235; Pa46.  Directly following the initial order, Defendant’s president internally complained that it did not meet the minimum purchase requirement, but still ultimately approved the five orders.  Pa224; Pa435.  A representative of Defendant has admitted that it “obviously” did not adhere to the strict requirements of the contract terms.  Pa225; Pa427.  The First Contract contains payment terms of “net 60 or 2 percent 30 days. ”  Pa225; Pa15.  Plaintiff did not receive invoices for the five orders until December 4, 2020 and remitted final payment within sixty days, on January 21, 2021.  Pa225; Pa310-311.  Yet, even though Defendant had been paid in full, it refused to honor the agreements with Plaintiff in April 2021.  Pa225; Pa284.  Defendant’s then-president, [...], has admitted that he was “uncomfortable” that Plaintiff did not place any orders between January 2021 and April 2021 and “didn’t want to work with [Plaintiff] anymore. ”  Pa225-226; Pa286.  [...] also conceded that Defendant “probably” would have fulfilled Plaintiff’s orders if it had been buying on a regular basis and that the decision to terminate the First Contract was due to Plaintiff’s failure to order a “large” amount of product.  Pa226; Pa287.  [...] conceded that from 2020 through 2021, the costs of construction materials generally increased.  Pa226; Pa437.  At the time it terminated the agreements, Defendant had already purchased the amount of pipe needed fulfill the quote.  Pa226; Pa430.  Multiple representatives of Defendant testified that they would not agree to structure an agreement in the way that Plaintiff’s agreement was structured, and that Defendant does not typically agree to deals that required it to purchase product in advance without upfront payment.  Pa228; Pa414; Pa450.  [...] admitted that the pipe Defendant purchased for Plaintiff would have sold in April 2021 for a price higher than quoted to Plaintiff in September 2020.  Pa229; Pa254.  As further evidence of Defendant’s bad faith, Mr.  Lucas confirmed in an internal email that Defendant terminated the agreements due to an increase in pipe prices.  Pa226; Pa442.  B.  Plaintiff’s Complaint and Damages
[brief] (Ja3, ¶6).  Her plan was to renovate the Property and allow two of her adult children to operate their businesses on the premises.  (Ja3, ¶9).  Prior to closing on the purchase, [...] signed a --- \(^2\) [...] only sought partial summary judgment for the takings claim because the parties disputed how much money would be owed as just compensation.  (Ja309).  She did not seek summary judgment on her unjust enrichment claim, which requires further factual development.  (Id.).  “Letter of Agreement” with the City providing that she would renovate the property and agreeing that she would not occupy the property until she obtained a certificate of conformity.  (Ja3, ¶10; Ja210–11).  On its first page, the Letter states in bold and italicized typeface that [...]’s mailing address is [...].  (Id.).  Despite being in possession of this Letter, the City never mailed any tax notices to that address.