ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Midlantic National Bank, 233 N.J. Super. at 623.  Defendant also cites to Gibbins v. Kosuga, 121 N.J. Super. 252 (Law Div. 1972) but that case is also distinguishable for the same reason – it is not binding on this Court and the defense of recoupment was plead, albeit in an amended answer.  Gibbins, 121 N.J. Super. at 254-255.  Defendant cites to precedent that Defendant was not required to raise such defenses in the Answer, but such precedent is from sister jurisdictions.  Defendant cites to R. 4:9-2, but same is not applicable.  Plaintiff notes that the express text of the rule contemplates that such issues are raised at trial without objection.  Walker Rogge, Inc. v. Chelsea Title & Guar. Co., 254 N.J. Super. 380, 386 (App. Div. 1992) (“If an issue not raised in the pleadings is tried by consent or without objection, it will be treated as if it had been properly raised in the pleadings.  […]  Where an issue not raised in the pleadings emerges at trial, the issue will generally be permitted unless it would prejudice the other party. ”)) (citing R. 4:9-2)(other citations omitted)(emphasis added).  Defendant cites to Rivera v. Gerner, 89 N.J. 526 (1982), but this case is also unavailing.  Again, Plaintiff notes that the facts presented in Rivera arose in the course of trial, not motion practice.  Rivera, 89 N.J. at 530-531.  And, the defense at issue pertaining to the Torts Claim Act (N.J.S.A. 59:1-1 et seq.) was permitted because that defense was raised in the answer, albeit in general terms.  Rivera, 89 N.J. at 535.  Rivera is inapplicable.  This case was resolved by way of summary judgment and R. 4:9-2 is not applicable.  R. 4:9-2; Walker Rogge, Inc., 254 N.J. Super. at 386.  Moreover, Defendant did not make any motion or request to the trial court that the Answer be amended to include such affirmative defenses.  Defendant should not be permitted to circumvent the Court Rules with a de facto request to amend the Answer that Defendant had ample opportunity to request before Plaintiff’s dispositive motion.
[brief] In 2018, property taxes against the subject property went unpaid and the tax collector of the [...] sold [...] to [...], who then recorded such TSC with the [...] at Book M15448, Page 134.  1a-3a.  No redemption occurred within 2 years, and on June 30, 2021, Trystone sent a 30-Day Pre-Foreclosure notice to the owner.  19a.  Thereafter, and since no redemption occurred within 30 days but less than 120 days later per R. 4:42-9(a)(5), Trystone filed its tax foreclosure at [...] on August 9, 2021.  1a-6a.  The owners were served on August 23, 2021.  16a; 14a.  No answer or response was filed, default was entered and the Court set the Order Setting Time, Date and Amount for Redemption as December 14, 2021.  30a.  No party redeemed.  Trystone assigned its TSC to [...], and the Court entered a Substitution of Plaintiff.  39a.  [...] then moved for Final Judgment and the Court entered the same on February 3, 2022.  48a.  Appellants then filed a motion to vacate on March 24, 2022, and sought discovery.  52a.  The Court allowed discovery, which occurred throughout the remainder of 2022 and the beginning of 2023.  The Court then held a plenary hearing over the course of 2 trial dates in March-April 2023, and ultimately denied vacature on April 20, 2023.  353a.  Appellants filed this appeal on April 27, 2023 (amended May 3, 2023).  354a; 360a.
[brief] PLAINTIFF’S EXPERT WITNESS TESTIMONY IS ADMISSIBLE PURSUANT TO N.J.R.E. 702 AND 703 AND PREVAILING CASE LAW.  [ISSUE RAISED AND DECIDED (Pa047, ¶33 - Pa057, ¶71; Da0790-Da0792; Da0794-Da0798, Da0819-Da0829)]  “As this Court has noted, ‘we apply [a] deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard. ’ ”  Townsend v. Pierre, 221 N.J. 36, 52-53 (2015).  The admission or exclusion of expert testimony is committed to the sound discretion of the trial court.  Townsend v. Pierre, supra, 221 N.J.  at 52-53; State v. Berry, 140 N.J. 280, 293 (1995); Carely v. Lovett, 132 N.J. 44, 64 (1993).  N.J.R.E. 702 and 703 set forth the analysis for the admission of expert witness testimony.  N.J.R.E. 702 states the following: “(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. ”  N.J.R.E. 703 provides that expert opinion be grounded in “‘facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert, which is not necessarily admissible in evidence, but which is the type of data normally relied upon by experts. ’”  Townsend at 52-55.  The rule does not mandate that an expert organize or support an opinion in a particular manner that opposing counsel deems preferable. Townsend, supra, 221 N.J. at 52-55.  An expert's proposed testimony should not be excluded merely “‘because it fails to account for some particular condition or fact which the adversary considers relevant. ’”  Creanga v. Jardal, 185 N.J. 345, 360 (quoting State v. Freeman, 223 N.J. Super. 92, 116 (App.Div. 1988), certify. denied, 114 N.J. 525, 555 (1989).  The expert's failure “to give weight to a factor thought important by an adverse party does not reduce his testimony to an inadmissible net opinion if he otherwise offers sufficient reasons which logically support his opinion. ”  Rosenberg v. Tovarath, 352 N.J. Super. 385, 402 (App.Div. 2002), citing Freeman, supra, 223 N.J. Super. at 115-116.  Such omissions may be “a proper ‘subject of exploration and cross-examination at a trial. ’”  Id., quoting Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 55, (App.Div. 1990), modified on other grounds, 125 N.J. 421 (1991); see also State v. Harvey, 151 N.J. 117, 277 (1997)  The weight of the evidence is for a jury to decide.  Id. at 277.  “An expert witness is always subject to searching cross-examination as to the basis of his opinion. ”  Id.  As is clear by the facts, the case law and the rulings by the Trial Court, Plaintiff’s experts have based their opinions regarding the defective product causing Plaintiff’s injuries on facts and data that are clearly admissible under N.J.R.E. Secs. 702 and 703.
[brief] This is analogous to the circumstances in Dunbar, where [...] had a ‘bifurcated’ development application process.  However, [...] allowed applicants to either apply to the Zoning Board of Adjustment and Planning Board simultaneously, or to the former first and then the latter subsequently.  Id. at 565.  The key difference, of course, is that the City requires all cannabis developers to commence the process for approval for their cannabis site plan with the CRB.  Unlike the plaintiff in Dunbar, who did not submit a single complete application to satisfy either option available to them, [...] submitted a complete application to the appropriate municipal agency.  Plaintiffs have dismissed [...]’ policy arguments repeatedly, but the impact cannot be understated: if the Planning Board’s determination that the TOA Rule applied in this instance were to be deemed arbitrary, it would permit municipalities to circumvent the TOA Rule altogether.  Municipalities could simply implement a mandatory “review board” for any issue, require developers to secure property, conduct inspections, hire professionals, submit a rigorous application, and go through a months’ long application and review process with that board, just to change the local zoning requirements during that process and completely frustrate ongoing development applications.  IV.
[brief] TABLE OF JUDGMENTS, ORDERS AND RULINGS  Judgment or Order Sought to Be Reviewed  Order of Judgment (ordered May 22, 2023)  ……………………Da073  Trial Judge’s Opinions or Statement of Facts and Conclusions of Law  ………………………………………………………………………………  Da050  TABLE OF APPENDIX (F)  Notice of Cross-Appeal (filed July 12, 2023)
[brief] The finding was also based upon the court’s erroneous reasoning that prison conduct cannot establish evidence of rehabilitation.  And while the court provided no explicit justification, its denial of mitigating factor 7 (law-abiding for substantial period) implicated the same erroneous reasoning.  As for deterrence pursuant to aggravating factor 9, there was no basis to find that the re-imposition of a life sentence served either general or specific deterrence.
[brief] VI.  The Plenary Hearing  The Plenary Hearing was held on November 8, 2024.  Prior to any testimony, Appellants indicated that it was Respondent’s burden to demonstrate that the Operative Agreement was invalid or unenforceable and, therefore, should present its evidence first.  Without deciding who bore the burden of proof, the Court had Appellants call their witnesses first.  Appellants’ counsel, [...], was first to testify.  He described the steps taken to locate the November 2019 email/Operative Agreement in [...]’s former EIC email account.  1T at 20:12-25:6.  Respondent attempted to challenge Appellants and the authenticity of the Operative Agreement, by setting forth several baseless theories, all of which implied that Appellants and/or their agents altered the Operative Agreement in some way.  Without any basis, [...] accused Appellants of altering the Operative Agreement, by converting the PDF into a Microsoft Word document, altering the Operative Agreement’s arbitration provision, converting this revised document into a PDF again, and then somehow reattaching the document to the November 2019 email.  [...] indicated that this theory was impossible.  The Operative Agreement could not have been altered and then reattached to the original email.  It also would not explain why all of the other agreements contained the same arbitration clause.  1T at 35:9-43:15.  Moreover, as set forth in the November 22, 2023 letter, Respondent had the opportunity to inspect both the Operative Agreement and the email it was attached to in native format, to confirm that the documents were unaltered but chose not to.  307a.  Respondent’s testimony followed.  As noted by the trial Court, [...] demonstrated selective memory depending on the question asked by Appellants’ counsel.  1T at 66:17-25.  She presented no evidence that she signed under duress any employment agreement containing an arbitration clause.  Notwithstanding, she conceded that she recalled signing an employment agreement that contained an arbitration clause prior to December 19, 2019 and understood the purpose of an arbitration provision.
[brief] In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, see Memphis Community School Dist. v. Stachura, 477 U. S. 299, 308 (1986), which, we hold today, does not encompass the "injury" of being convicted and imprisoned (until his conviction has been overturned).  [9]  For example, if a state criminal defendant brings a federal civil-rights lawsuit during the pendency of his criminal trial, appeal, or state habeas action, abstention may be an appropriate response to the parallel state-court proceedings.
[brief] Plaintiff did not appeal from the June 14, 2017 orders, and this Court ruled on April 23, 2020 that she was therefore bound by them and accepted the trial court's orders as a final and unchallenged determination that: (i.) defendant's child support obligation under the JOD was $8,622.64 through June 14, 2017 and (ii.) Defendant fully complied with the June 14, 2017 orders.  This Court also ruled on April 23, 2020 that the trial court did not err by failing to enforce defendant's child support obligation under the JOD and therefore affirmed the court's March 14, 2019 order denying plaintiff's motion to enforce the JOD's requirement defendant pay $180 per week in child support even going so far as to opine that the Defendant acted in “exacting compliance with the JOD's express terms.
[brief] The Property Sale Agreement and Amendments  The Property Sale Agreement (“PSA”) between Plaintiff and Defendant was signed November 15, 2021.  (Da.190.)  The sale price was $32.8 Million Dollars, with a $1,640,000 deposit.  (Da191.)  The PSA Effective Date was November 15, 2021 (Da190 at second line from top) and it established a due diligence period “until 5:00 pm (Eastern Time) on the thirtieth (30th) day after the Effective Date”, i.e., December 15.  (Da195 at ¶7.1.)  The PSA was amended twice. \(^1\)  First extending due diligence to December 22.  (Da270-273.)  The second, made as of December 23, 2021 (Da275-280), addressed several more substantive changes:  \(^1\)  As is discussed infra pp. 12 and 14, when the amendments were made Defendant failed to disclose it filed a lawsuit against [...] before signing the PSA, that the lawsuit was pending when the amendments were delivered, nor as that the lawsuit was to establish a rent start date.  (Da186-187.)  Also, when the PSA was signed Plaintiff was only given the Lease and not any amendments.  Defendant did not reveal the amendments even though it represented in the PSA “[t]he information concerning written leases (which together with all amendments and modifications thereof are collectively referred to as ‘Leases’)” and “all of the Leases are in full force and effect and none of them have been •  It modified the closing date to February 15, 2022.  •  It replaced the former Section 3.2(c) with a more detailed provision regarding the PILOT\(^2\) agreement.  •  It added two new sections, 3.2(d) and 3.2(e), regarding, in part, rent commencement and an exemption from rent control.  (Id.)  C.
[brief] ### TABLE OF AUTHORITIES | Cases | Page(s) | |----------------------------------------------------------------------|---------| | Alexander v. Primerica Holdings, Inc., | 16 | | 822 F. Supp. 1099 (D.N.J. 1993) | | | Allstate New Jersey Ins. Co. v. Lajara, | 28 | | 222 N.J. 129 (2015) | | | Arbus, Maybruch & Goode, LLC v. Cohen, | 19 | | 475 N.J. Super. 509 (App. Div. 2023) | | | Atl. Ambulance Corp. v. Cullum, | 14 | | 451 N.J. Super. 247 (App. Div. 2017) | | | Balducci v. Cige, | 18 | | 240 N.J. 574 (2020) | | | Blazovic v. Andrich, | 32 | | 124 N.J. 90 (1991) | | | Carlyle Towers Condo. Ass’n, Inc. v. Crossland Sav., FSB, | 17 | | 944 F. Supp. 341 (D.N.J. 1996) | | | Comando v. Nugiel, | 8 | | 436 N.J. Super. 203 (App. Div. 2014) | | | DeBolt v. Parker, | 21 | | 234 N.J. Super. 471 (Law. Div. 1988) | | | Dental Health Assocs. S. Jersey, P.A. v. RRI Gibbsboro, LLC, | 8, 15, 16, 36 | | 471 N.J. Super. 184 (App. Div. 2022) | | | Dewey v. R.J. Reynolds Tobacco Co., | 16 | | 109 N.J. 201 (1988) | | | Edison Bd. of Educ. v. Zoning Bd. of Adjustment of the Twp. of Edison,| 9, 12 | | 464 N.J. Super. 298 (App. Div. 2020) | | Ellison v. Chartis Claims, Inc., 35 N.Y.S.3d 922 (App. Div. 2016)
[brief] At a minimum, each is individually liable for the entire compensatory award based on their conversion of the funds because:  A director or officer of a corporation does not incur personal liability for its torts merely by reason of his official character, but a director or officer who commits the tort or who directs the tortious act to be done, or participates or cooperates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for tort.
[directive] Commencing a criminal investigation into the subject matter of an internal affairs complaint will suspend the 45-day rule pending the disposition of that investigation; such suspension remains until the disposition of the criminal investigation.  (Similarly, a criminal investigation will toll the notice requirements established in Sections 6.1.4 – 6.1.6.)  Upon disposition of the criminal investigation, agencies will once again be bound by the 45-day rule, with the 45-day period starting anew upon termination of the criminal investigation.  25  INTERNAL AFFAIRS POLICY & PROCEDURES | June 2021
[brief] BRIEF AND APPENDIX  ON BEHALF OF DEFENDANT-RESPONDENT TOWN OF KEARNY [...]  Attorneys for Defendant-Respondent [...]  [...] [...] [...]  [...]  [...]  On the Brief: [...], ESQ.  Attorney ID# 904782012  [...], ESQ.  Attorney ID# 012762012  Date Submitted: September 23, 2024  # TABLE OF CONTENTS | Section | Page | |------------------------------------------------------------------------|------| | APPENDIX
[brief] *See Blair v. Taxation Div. Director*, 9 N.J. Tax 345, 350 n. 6 (1987)(citing *Halpern v. Schwartz*, 426 F.2d 102 (2d Cir. 1970)).  However, absent such special circumstances, collateral estoppel generally applies to all issues actually litigated, whether they are alternate grounds or not.  *Blair*, 9 N.J. Tax at 350, n. 6 (citing *Williams v. Ward*, 556 F.2d 1143 (2d Cir. 1977) and *Winters v. Lavine*, 574 F.2d 46 (2d Cir. 1978)).  *But see Restatement, Judgments 2d, § 27.* the express easement claim was essential to her ultimate rejection of [...]’s claim to an easement under any theory.
[brief] *State ex rel. S.B.*, 333 N.J. Super. 236, 242 (App. Div. 2000).  Physical pain may be proven by relying “largely on inferences available on the proofs of the nature of the contact in the past. ”  *Ibid.*  Causation is an issue for the jury to decide.  *State v. Buckley*, 216 N.J. 249, 263 (2013).  New Jersey courts distinguish a “full” causation jury instruction, *Model Jury Charges (Criminal)*, “Causation (N.J.S.A. 2C:2-3)” (rev. Jun. 10, 2013), from a more basic instruction defining “causation” as a “but for” cause.
[brief] The plaintiff filed suit alleging that the neighbor improperly relocated an easement in violation of a written agreement.  After the trial judge entered a final judgment dismissing that claim, the plaintiff filed a new action alleging a prescriptive easement across the same route after discovering, through a title search eighteen months after the first complaint was filed, that the defendant did not have title to the property when the agreement was executed.  The same trial judge found that the first action precluded the second one and dismissed that case as well.
[brief] Cases  Bayer v. Twp. of Union, 414 N.J. Super. 238, 258 (App. Div. 2010)  ..................  5  Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244 (App. Div.1957)  ...........................................................................................................  4  Lapolla v. Cty of Union, 449 N.J. Super. 288 (App. Div. 2017)  .........................6  McNellis-Wallace v. Hoffman, 464 N.J. Super. 409( App. Div. 2020)  ...............  6  Muller Fuel Oil Co. v. Ins. Co. of N. Am., 95 N.J. Super. 564 (App. Div. 1967)....6  Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739 (1989)  .......... ....  4  Save Camden Pub. Schs. v. Camden City Bd. of Educ., 454 N.J. Super. 478, (App. Div. 2018) .................................................................5 Teamsters Local 97 v. State, 434 N.J. Super. 393 (App. Div. 2013) ............... 5 Williams v. Page, 160 N.J. Super. 354, 36 l (App. Div. 1978) .............................6 Statutes 42 U.S.C. § 1983 ........................................................................................................1, 2 N.J.S.A. 59:8-1, et seq..............................................................................................5 N.J.S.A. 2C:30-6 ........................................................................................................3 N.J.S.A. 10:6-2 ........................................................................................................3 N.J.S.A. 2A:14-2 ........................................................................................................6 Other Authorities Margolis & Nowack, Claims Against Public Entities (Gann 2011) ....................5 Rules Rule 4:6-2(e) ..............................................................................................................1, 4 TABLE OF JUDGMENTS, ORDERS, AND RULINGS March 27, 2024 Order Pa108 August 16, 2024 Order Pa001 TRANSCRIPTS Submitted and Ordered by Plaintiff APPENDIX TABLE OF CONTENTS Plaintiff/Appellant’s Appendix is complete and sufficient and is relied upon as a Joint Appendix.
[brief] (1T 6-16 to 9-16).  Cedar Grove Officer [...] (Griglio) also testified on behalf of the State.  Griglio stated that he was dispatched to the Hall’s residence on March 4, 2023 at approximately 3 a.m. to document the Hall’s vehicle’s “significant” damage while it was parked on the street.  (1T 11-19 to 13-6).  Griglio conducted an investigation into whether he could determine what vehicle could have caused such significant damage.  Based on where the damage mostly occurred on the Hall’s car, Griglio and other Cedar Grove officers started to canvass the area to see if there was a vehicle with similar damage.  After a brief period of canvassing the immediate neighborhood, Griglio observed the defendant’s vehicle irregularly parked in his driveway with extensive front-end damage.  (1T 13-7 to 18-18; 1T 32-7 to 34-3).  Griglio waited for another officer, [...], to arrive before approaching the defendant’s home and inquiring about the damage to his car.  The defendant did answer the door and answered questions posed about the damage to his vehicle.  However, the defendant gave vague and ambiguous statements of how the damage to his vehicle occurred.  (1T 22-1 to 11).  During this interaction, Griglio testified that the defendant’s demeanor was indicative of someone who was highly intoxicated based on his slurred speech, odor of alcohol on his breath and bloodshot eyes.  Additionally, the defendant admitted to operating his vehicle earlier in the evening.  The interaction was captured by Griglio’s body-worn camera.  (1T 19-18 to 22-18).  The State’s final witness was [...] ([...]).
[brief] *Dimarino v. Wishkin*, 195 N.J. Super. 390, 393 (App. Div. 1984).  In *DiMarino*, an insurance broker was liable for its client’s damages where the broker expressly agreed to procure insurance at the request of the client but failed to do so and did not inform the client of such failure.  *Id.*  [...] is listed on the CCIP Policy as the “Producer” for that insurance.
[brief] 6T272 to 6T282.  At that time, the Respondents’ predecessor did not intervene in the action to contest the obligation to provide the Route 33 Signal in connection with the development of the Property.  M107-137; 6T272 to 6T282.  Similarly, the Respondents did not contest the obligation to supply the Route 33 Signal at the time of the Application or during the hearing on the Application.  M68-86; 1T.  In fact, as in the Prior Application, the Respondents voluntarily agreed to supply the Route 33 Signal as a condition of any Board approval.
[brief] Pa50, T75:21-22, T76:3-6; see also Pa78.  Though during this time, Appellant described feeling “insulted”, under stress, and unsure if he wanted to return to work, he admitted that he had received nothing but support from the Fire Department.  Pa51, T81:5-20.  In fact, Appellant testified that approximately one week after the incident, or approximately two shifts after the incident, his Battalion Chief, [...], approached him to discuss the incident.
[brief] (12T:118-24 to 120-6).  Specifically, the Prosecutor asked “Okay, they did not give you the Rushing/Perrine report, correct?  You testified --. ”  The Prosecutor next asked “you were not given that report by the defense, correct? (12T:10-9 to 11).  [...] responded “No.” (12T:119-12).  The inquiry should’ve ended there.  Farthing, 331 N.J. Super.  At 79.  [...] did not have the report or rely on the report.
[brief] (Pa236-37.)  Given [...]’s certification, A. 6260 is substituted by S. 49.  (Pa236-37.)  Even if S. 49 had been read in the Assembly three times on January 10, 2022, it would not have received the required twenty-four hour break between second and third readings.  Id.  Similarly, there is no record that at least sixty legislators voted to declare an emergency to override this constitutional requirement.  (Pa236-37); see N.J. Const. art. IV, § 4, ¶ 6.  Therefore, L. 2021, c. 375 is unconstitutional as it did not follow the Constitution’s requirements for enactment.