ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] 1  There is a second complaint for possession under the same civil docket number with eCourts docket entry number [...].  Because the two complaints appear to be identical, the duplicative complaint is omitted here.  2  The annual installment payments owed from Landlord to Tenant are referred to interchangeably as “fit-up reimbursement” and Tenant’s Allowance reimbursement payments in the proceedings below.  For clarity and to avoid confusion, this brief refers to these payments as “Tenant’s Allowance” in conformity with the Lease.  On November 10, 2021, following a decision issued from the bench, the trial judge ordered that “[b]ecause the Tenant is in breach of the lease due to nonpayment of five months of rent, the Tenant is not due any refund of fit up costs under Section 4.02 of the lease” (Da1).  The trial judge further ordered Tenant to deposit $196,669.16 with the court to be held in escrow (the “Escrow Funds”) within three weeks to avoid a judgment of possession being entered (Da1-Da2).  The trial judge also permitted Landlord’s counsel to submit an application for attorney’s fees and permitted “both parties” to “file motions for reconsideration with regard to the determinations made by the Court” (Da2).  After Tenant timely deposited the Escrow Funds with the court (Da179-Da181), the parties submitted additional briefing including a motion filed by Defendant to fix the amount owed from Landlord to Tenant for Tenant’s Allowance (Da168-Da239).  Nearly two years later, on November 9, 2023, the trial judge held a hearing and entered an order denying “Tenant’s motion for reconsideration,” awarding Landlord a portion of its requested counsel fees, and ordering the Escrow Funds to be disbursed entirely to Landlord (Da3-Da4).  This appeal follows.  --- “1T” designates the transcript of proceedings dated August 18, 2021.  “2T” designates the transcript of proceedings dated November 10, 2021.  “3T” designates the transcript of proceedings dated November 9, 2023.  STATEMENT OF FACTS
[brief] Although the amount of equity was a factor in the court’s decision in Tyler, it was not the primary legal ground for vacating the judgment.  The decision in Tyler is based simply upon the principle that the government (or the tax foreclosure) cannot take more than what is owed in taxes without providing just compensation.  Therefore, since all parties agree the home fair market value was in excess of $45,000.00 at the time of the taking, the judgment was unconstitutional despite any other factors, lien or mortgage debts.  It is therefore the Plaintiff’s argument that lacks merit.  No just compensation was provided for the $300,000 in equity lost by [...] and his family and the matter was not even addressed by the Court in the prior opinion.  The Plaintiff made out like a bandit at [...] and his family’s expense.  [...] was left with no home and no money to live or pay debts.  This judgment and the NJ tax sale law violated [...]’s constitutional rights as confirmed by the US Supreme Court in Tyler with [...]’s case still in the pipeline.
[brief] -The lease as between [...] and [...] does not contain a provision whereby [...] is obligated to notify [...] that the parking lot and/or common areas of the multi-tenant shopping center need to be maintained.  -The lease as between [...] and [...] does not contain a provision whereby [...] could maintain the parking lot and/or common areas of the multi-tenant shopping center and charge [...] for the expenses associated with undertaking such maintenance.  [Pa650-Pa656].  -[...] paid Common Area Expenses, also known as Common Area Maintenance charges (hereinafter collectively referred to as “CAM charges”), to [...] in addition to rent.  [...] utilized [...]’s CAM charges to pay for the maintenance of the parking lot.  -The area of the multi-tenant shopping mall’s parking lot where [...] allegedly slipped and fell is not adjacent to [...]’s leased premises.  Moreover, in support of their motion for partial summary judgment plaintiffs offered no pleading, deposition, answers to interrogatories, admissions on file, affidavits, statute or case law to support their contention that [...] owed a duty to plaintiffs to remove snow and ice from the location of [...]’s alleged fall.  Instead, plaintiffs cited to *Kandrac* supra, and the principles set out therein, which, instead of supporting plaintiffs’ position, actually supports [...]’s position that it did not owe a duty to plaintiffs’ to remove snow and ice from the location where [...] was allegedly injured.  As noted, *Kandrac*, supra, established that a commercial tenant in a multi-tenant commercial shopping center, such as [...], owes neither a contractual or common law duty to its patrons to maintain an area of the parking lot that the landlord is contractually obligated to maintain.  Consequently the Law Division properly denied plaintiffs’ motion for partial summary judgment.
[brief] (Emphasis added).  That is all that [...] is doing here by asserting the Application of the Public Trust Doctrines.  The question is not whether what is at stake is a matter of “great public interest”, but rather whether the “interest” or “interests” at stake articulated by Plaintiff is subjectively sufficient to Plaintiff or the public.  [...]’s right to public access for themselves and their patrons (both at access points and through availability of parking) clearly meets this test.  The “triggering event” (if one is required) has already occurred, that being the challenged Ordinance that adopted the Redevelopment Plan under the authority of the LRHL.  [...] (or any interested party) does not have to wait until a developer seeks to finalize the illegal Plan to have the right to challenge the Plan.  That is nonsensical, and is an intellectually indefensible position contrary to clearly established law.
[brief] Defendants have been unresponsive to requests for discovery,  The record indicates that Defendants made no attempt to procure the Affidavit of Merit from Plaintiff until Plaintiff was time barred from submitting the Affidavit of Merit.  More specifically, and as attested to in Defendants’ Certification and Legal Memorandum appended to their Motion to Dismiss, Defendants did nothing for sixty (60) days after filing their answer, never reaching out to Plaintiff’s Counsel for the Affidavit of Merit, and then did nothing again for an additional sixty (60) days, totaling 120 days from the filing of Defendants’ Answer.  Defendants’ conduct in this matter exemplifies that they were doing nothing other than resting on their laurels until Plaintiff defaulted on the Affidavit of Merit requirement.  Such conduct was admonished by the Supreme Court of New Jersey in Ferreira because it exhibits gamesmanship, which was never the purpose of the Affidavit of Merit Statute.  178 N.J. at 154.  Due to the facts of this matter, notions of justice and equity demand that the Trial Court’s granting of Defendant’s Motion to Dismiss be reversed.  Defendant’s refusal to provide Plaintiff with the very medical records that Plaintiff required to obtain an Affidavit of Merit encapsulates the entire controversy of this appeal.  It is unconscionable that Defendants can assert the protections offered to it by the Affidavit of Merit statute when Defendants themselves are responsible for Plaintiff’s inability to produce a sufficient Affidavit of Merit.  III.
[brief] Stoney v. Maple Shade Tp., 426 N.J. Super. 297, 307 (App. Div. 2012) (internal citations omitted).  In such situations, the Appellate Division “consider[s] the factual record in the light most favorable to the non-moving party and accord[s] no special deference to the trial court’s resolution of purely legal questions. ”  N. Bergen Mun. Util.  Auth. v. I.B.T.C.W.H.A. Local 125, 474 N.J. Super. 583, 590 (App. Div. 2023).  Here de novo review is appropriate under the circumstances given the issues at bar involve questions of law.  POINT I
[brief] However I was shocked at the end of the tournament (it was then nearly 2:00 AM on July 4, 2017) when the tournament director ([...]) handed me a prize check that I thought was way too small.  (Pa1, Pa4).  --- 3  The defendants did this solely so that they could reap a bigger net profit for themselves (which they of course succeeded at); but conversely, this same action incurred a double detriment to the players (i.e. a significantly later starting time, as well as a substantially bigger field of competitors to fight over the same fixed prize amounts).  When I expressed my surprise to [...], he only then explained that there was a limitation of only one prize per person.  But because of my being dead tired at that point and not wanting to hold up the line for the other people who were still waiting to get their prize checks, I did not make an issue out of it at that time.  Instead, several weeks afterwards I then sent an email to the defendants, which was responded to by [...], and he explained further how he had calculated my prize amount, which I still thought was way wrong.  However, the check he handed me back on July 4th did not say “payment in full” or any words like that, so I decided to cash the check and possibly pursue the matter further at some later point in time (i.e. when my own schedule was less hectic).4
[brief] This language is included on the model charge itself, in footnote one, at the title of the document.  Model Jury Charges (Criminal): Testimony of a Cooperating Co-Defendant or Witness (Revised 2/6/06), at page 1, n.1.  The very first line of text in that note is as follows:  “This charge should not be given except upon request of defense counsel. ”  Ibid.  (emphasis added).  In Artis, the same argument was forwarded to our Supreme Court.  57 N.J. at 33.  There, as well, the cooperating witness/accomplice charge was unrequested but a cooperating co-defendant had given testimony for the State.  Ibid.  Our Supreme Court found that it was “certainly” not plain error for the judge to fail to give the charge sua sponte “because of the possible prejudice to the defendant.
[brief] ”  Ibid.  The same happened here nor did she object to any of his statements.  Additionally, the jury heard how the latent print in this case was left on a jagged surface with a “small crack running through it,” which had to be considered in the analysis.  (3T62-22 to 63-14).  Thus, given the other evidence of defendant’s guilt, including her flight from the crime scene, and her confession, if there was error in allowing [...]’s unchallenged statement it does not rise to plain error.
[brief] *State v. Davis*, 104 N.J. 490, 501 (1986).  The United States Supreme Court has defined reasonable suspicion as “a particularized and objective basis for suspecting the person stopped of criminal activity. ”  *State v. Stovall*, 170 N.J. 346, 356 (2002); quoting *Ornelas v. United States*, 517 U.S. 690, 696 (1996).  The reasonable suspicion standard requires only some minimal level of objective justification.  See *State v. Nishina*, 175 N.J. 502, 511 (2003).  The State bears the burden of demonstrating by a preponderance of the evidence that it possessed sufficient information giving rise to the required level of suspicion.  *State v. Pineiro*, 181 N.J. 13, 19-20 (2004).  Here, even though [...] prevented the admission of important evidence, the State was still able to prove that it was more likely true than not that there was a “minimal level of objective justification” supporting the investigatory stop.
[directive] This factor would apply notwithstanding that the decision to participate in treatment was not self-initiated or truly voluntary, as where the defendant had been ordered to participate in treatment by a judge as a condition of bail or release on recognizance for the present offense, or is participating in a drug-treatment program pursuant to a court order, order of a probation department, or order of the Parole Board imposed upon an earlier conviction.  (Note, however, that if the present offense was committed while the defendant was subject to supervisory treatment, he or she would be subject to Special Application and Enhancement Feature E, and where the present offense was committed while the defendant was on bail for a prior offense, he or she would be subject to Aggravating Factor #2.)  Note that under these Guidelines, and consistent with the rule established in prior Attorney General plea negotiation directives, drug or alcohol dependency is not a mitigating circumstance that reduces or minimizes the seriousness of the defendant’s conduct or his or her culpability.  Indeed, an untreated addiction is more properly viewed as an aggravating circumstance in that drug-dependent defendants are especially likely to commit future offenses.  Compare N.J.S.A. 2C:44-1a(3) (considering the risk that the defendant will commit another offense) with N.J.S.A. 2C:44-1b(8) (considering that the defendant’s conduct was the result of circumstances unlikely to recur).  It is the fact of participation in treatment, not the underlying addiction, that constitutes the mitigating circumstance for purposes of these Guidelines.  Accordingly, drug or alcohol dependency may only be considered under these Guidelines pursuant to this Mitigating Factor and pursuant to the provisions of N.J.S.A.  2C:35-14, which permits a prosecutor in certain carefully-prescribed circumstances to consent to a defendant’s application to be sentenced to drug or alcohol treatment in lieu of otherwise statutorily mandated imprisonment.
[brief] THIS COURT SHOULD HAVE CONDUCTED A PLENARY HEARING TO CLARIFY AND SUPPLEMENT THE RECORD BELOW, AND IT WAS ERROR NOT TO DO SO.  (Aa0138.)  Under N.J.A.C. 1:1-12.5(b), summary decision is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to prevail as a matter of law.  This standard is substantially similar to the standard governing civil motions for summary judgment under R. 4:46.  See E.S. v. Div. of Med. Assistance & Health Servs., 412 N.J. Super. 340, 350 (App. Div. 2010).  The New Jersey Supreme Court set forth the standard governing motions for summary judgment in Brill v. Guardian Life Insurance Co., 142 N.J. 520 (1995).
[brief] The clear and convincing standard falls between the familiar civil preponderance of the evidence standard and the criminal beyond reasonable doubt standard.  Clear and convincing evidence should produce in the mind of the trier of fact “a firm belief or conviction as to the truth of the allegations sought to be established. ”  In Re Purrazzella, 134 N.J. 228, 240 (1993).  Such evidence must be “so clear, direct and weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. ”  In Re Seaman, 133 N.J. 67, 74 (1993) (quoting Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960).  Evidence may be uncontroverted, but still fail to rise to the clear and convincing standard.  In re Perskie, 207 N.J. 275, 290 (2011).  In this case the evidence is clear and convincing that [...] did not seek relief in this forum nor, having been sued, did he engage in any course of conduct that clearly and convincingly evidenced a deliberate, intentional relinquishment of a known right to seek arbitration.  Lastly, the analytical framework that the Supreme Court established in Cole requires a meticulous examination of the relevant facts in order to determine whether the totality of the circumstances clearly and convincingly evidence a waiver of the right to arbitration.  The trial court utterly failed to engage in that process and admitted as much in open court.  In that regard, the trial court stated:  “For those reasons, the Court finds even under the Cole and Spaeth decisions, if I was to consider those seven factors, the Court would deny the motion. ”  T.24-15 – T.24-17 (emphasis added).  Clearly, the court failed to abide by the controlling precedent and, for that reason alone, the trial court’s decision should be reversed.  More importantly, when the facts are closely examined there is no support for a finding that [...] deliberately, knowingly and intentionally waived his right to arbitration and the trial court’s contrary finding was clearly erroneous.  As such, it should be reversed by this Court.
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[brief] ”  North Jersey Media Group, Inc. v. Township of Lyndhurst, 229 N.J. 541, 578 (2017) (quoting Mason, 196 N.J. at 67-68).  In Loigman v. Kimmelman, the New Jersey Supreme Court identified six factors courts must consider in balancing these competing interests.  102 N.J. 98, 108 (1985).
[brief] In IMO [...] [...], [...], SEC No. [...] (September 30, 2004) aff’d, Commissioner No. 354-10/04) (November 17, 2004), for example, the accused Board member used his official position to prepare mail orders and endorse members from the local municipal governing body.  Attached as Respondent’s Appendix at Ra021-Ra027.  Alphonse does not involve facts remotely comparable to the case at bar.  Alphonse used the imprimatur of his position as a Board Member to endorse political candidates for municipal election.  Ra021-Ra027.  In stark contrast, in our case, Appellant is not accused of endorsing any political candidate.  The issue in Alphonse is whether the Board member’s use of his official position in endorsing political candidates violated the SEA.  Quite differently, the issue in our case is whether Appellant’s investigation request was the product of exercising his lawful duties as Board President or the result of political score-settling.  Respondent’s reliance on another unpublished opinion in *Dep’t of Educ v. [...]*, 2022 N.J. Super. Unpub. LEXIS 1585* is similarly inapposite.  Ra001-Ra005.  *[...]* involved the issue of whether a Board member violated the SEA by accepting an all-expenses paid trip to a conference on the invitation of a potential vendor who was marketing products to the school.  Ra001-Ra005.  With respect to *N.J.S.A.* 18A:12-24.1(f)(using school resources for personal gain), the Commissioner determined that the offer of the trip related to the Board member’s position on the School Board.  Therefore, *[...]’* acceptance of the trip could be justifiably seen by the public that the trust has been violated.  No such direct or indirect transactional offer or benefit took place in the case at bar.
[brief] These cases thus rely on a misguided contextless interpretation of the words of the FDCPA without any consideration of the purpose of the Act and legislative history surrounding the statute’s prohibition of third-party disclosures.  It is well-settled that courts in New Jersey do not engage in contextless interpretations of a statute.  Instead, courts in New Jersey interpret statutes to effectuate the legislature’s intent.  See Finkelman v. Nat. Football League, 236 N.J. 280, 289 (2019) (When we interpret a statute, we strive to effectuate the Legislature's intent).
[brief] On a cumulative basis, [...]’s arbitrary “bundled rate” has resulted in their collection of millions of dollars of excessive fees from the Class of Merchant Customers the Plaintiffs seek to represent in this action.  (Pa000123).  20.  Significantly, a direct comparison of the interchange rates quoted by Defendant [...] in residual reports provided to their Independent Sales Organizations (“ISOs”), and the interchange rates published by the major credit card issuers, confirms that the “bundled” rates [...] began charging in April 2020 were substantially higher than the published rates they were supposed to be applying pursuant to their Agreements with Merchant Customers who opted for “Interchange PLUS” pricing.
[brief] During [...]’s statement to the police, he said that it just “popped up his head. ” (8T:37-5 to 10).  [...] also told the police that it was like I was watching a movie, so to speak. ” (8T:142-25).  Thus, [...]’s chronological age, and impetuosity—particularly as exacerbated by his undiagnosed mental illness — was a significant causative factor in his involvement in the offenses at issue.
[brief] ”  Winters, 212 N.J. at 86 (quoting Knorr, 178 N.J. at 178).  “[T]o establish equitable estoppel, [a party] must show that [the other party] engaged in conduct, either intentionally or under circumstances that induced reliance, and that [the first party] acted or changed [its] position to [its] detriment. ”  Knorr, 178 N.J. at 178.  “Equitable estoppel may be invoked against a municipality ‘where interests of justice, morality and common fairness clearly dictate that course. ’”  Middletown Twp. Policemen’s Benevolent Ass’n Local No. 124 v. Twp of Middletown, 162 N.J. 361, 367 (2000) (quoting Gruber v. Mayor & Twp. Comm. of Raritan, 39 N.J. 1, 13 (1962)).  Public entities-fiduciaries of a public trust-must also turn square corners.