ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [...]  620  West Lacey Road  [...] [...]  Fax [...]  On The Brief: [...], ESQ  ATTORNEY I.D. NO. 005441973  E-mail: [...]  Of Counsel [...], Esq.  TABLE OF CONTENTS  TABLE OF CONTENTS  ...........................................................................................................1  TABLE OF AUTHORITIES.......................................................................................................3 TABLE OF JUDGMENTS, ORDERS AND RULINGS .........................................................5 TABLE OF APPENDIX ..........................................................................................................6 PRELIMINARY STATEMENT ...............................................................................................7 PROCEDURAL HISTORY AND STATEMENT OF FACTS ..............................................9 LEGAL ARGUMENT .............................................................................................................11 POINT I THE TOWNSHIP HAS CLEARLY ARTICULATED A VALID PUBLIC PURPOSE FOR THE ACQUISITION OF PROPERTY ........................................................................................................11 POINT II THE LAND EXCHANGE CONTRACT IS LEGALLY SOUND AND FURTHERS THE PUBLIC INTEREST ..........................................................18 POINT III THE TOWNSHIP HAS COMPLIED WITH ALL PROCEDURAL REQUIREMENTS FOR EMINENT DOMAIN PROCEEDINGS .........................................................................................24 POINT IV APPELLANT’S APPEAL MUST BE DISMISSED BASED UPON THE DOCTRINE OF RES JUDICATA AND COLLATERAL ESTOPPEL .................................................................28 POINT V THE TOWNSHIP’S OBLIGATION TO FULFILL ITS CONTRACTUAL AGREEMENTS WITH [...]  NECESSITATES THE ENFORCEMENT OF THE ORDINANCE.  ........................................................................................................35  POINT VI  THE TOWNSHIP SHOULD NOT BE PROHIBITED FROM CONTINUING TO HONOR ITS CONTRACTUAL OBLIGATIONS WITH [...]........................................36  CONCLUSION
[brief] Thus, where the award of sanctions “is based on an assertion that the non-prevailing party’s claim lacked ‘a reasonable basis in law or equity’” (as is the case here) “‘an award cannot be sustained if the [non-prevailing party] did not act in bad faith in asserting or pursuing the claim. ’”  Id. (alteration in original; quoting Ferolito, 408 N.J. Super. at 408); see also Borough of Englewood Cliffs, v. Trautner, No. A-2765-21, slip op. at 27-28, 2024 WL 1708605, at *9 (N.J. App. Div. Apr. 22, 2024) (approved for publication) (citation omitted) (stating that award of sanctions cannot be sustained without proof of bad faith “when the non-prevailing party is represented by an attorney”).
[brief] The Department’s Excessiveness Determination was Well-Grounded in Its Expertise and Concern for Policyholder welfare.  The Department based its December 2021 disapproval on multiple grounds explained in numbered objections and questions during the review phase.  [...] had every opportunity to respond to the disapproval grounds and cannot realistically claim a lack of due process to establish that its rates were not excessive.  N.J.S.A. 17B:27E-11.  For its part, the Department had an obligation to promote the Legislature’s expressed policy to safeguard the public welfare.  The Department used its expertise in insurance to exercise broad regulatory authority over whether or not a rate increase should be approved.
[brief] The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution, in almost identical language, protect against unreasonable searches and seizures.  Under both Constitutions, "searches and seizures conducted without warrants issued upon probable cause are presumptively unreasonable and therefore invalid."  Elders, 192 N.J. at 246 (citations omitted).  Consequently, "the State bears the burden of proving by a preponderance of the evidence that [the] warrantless search or seizure 'fell within one of the few well-delineated exceptions to the warrant requirement.'"  Ibid.  (quoting State v. Pineiro, 181 N.J. 13, 19-20 (2004)).  The exception at issue in this case is an investigative stop, a procedure that involves a relatively brief detention by police during which a person's movement is restricted.  See State v. Rosario, 229 N.J. 263, 272 (2017) (describing an investigative stop as a police encounter during which an objectively reasonable person would not feel free to leave).  When police stop a motor vehicle, the stop constitutes a seizure of persons, no matter how brief or limited.  State v. Scriven, 226 N.J. 20, 33 (2016).  An investigative stop or detention, however, does not offend the Federal or State Constitution, and no warrant is needed, "if it is based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity."
[brief] E.  General design standards.  (1)  Design:  Building plans and elevations shall show a variation in design to be achieved by the types of roof, heights of eaves and peaks, building materials and architectural treatment of the building facade that is utilized.  The following design standards shall be utilized:  (a)  Architectural elements such as varied roof forms, articulation of the facade, breaks in the roof, and walls with texture materials and ornamental details should be incorporated to add visual interest.  (b)  Roof height, pitch, ridgelines and roof materials should be varied to create visual interest and avoid repetition.  (c)  Architectural elements such as fenestrations and recessed planes should be incorporated into facade design.  Architectural treatment shall be applied to all elevations of a building.  (d)  A variety of building colors, materials and textures are encouraged to achieve a harmonious design theme.  (e)  Architectural features that enhance the façade or building form, such as decorative moldings, windows, shutters, dormers, chimneys, balconies and railings, are encouraged.  (2)  Equipment:  Exterior-mounted mechanical and electrical equipment exposed to the public view shall be architecturally screened or screened with landscaping to provide a year-round visual buffer subject to Board approval.  Roof-mounted equipment and projections should be painted the same color as the roof and, where possible, located to the rear of the building, away from the public view.  (3)  Accessory buildings and structures:  All accessory buildings and structures shall be subject to the standards set forth at § 230-275.A.  Architectural design and materials used in the construction of accessory buildings and structures shall conform to those used in the construction of principal buildings.  F.  Adult community housing requirements.
[directive] a.  The parties shall agree, pursuant to Section 12, to seek a modification of the defendant’s sentence only insofar as it reduces the period of parole ineligibility resulting from the qualifying Chapter 35 offense to equal one-third of the original sentence, less commutation, minimum custody, and work credits earned while in custody, consistent with N.J.S.A. 30:4-123.51(a), as if the individual had not been subject to a mandatory minimum term; and b.  The parties will jointly oppose any sentence modification other than those agreed to in their joint motion and described in this subsection.  Page 9 3.  The prosecuting authority shall not offer a joint motion pursuant to Section I.D.2 when the prosecuting authority concludes, in consultation with the [...] (“[...]”), that the aggravating factors associated with the defendant’s offense of conviction substantially outweigh the mitigating factors.
[brief] Internal Affairs (“IA”) called [...] in, while he was on vacation on July 24th, for a mandatory drug test.  (T4 148:15-149:11).  [...]’s urine tested negative for any controlled dangerous substance.  (T1 161:19-23; T4 at 149:12-150:5).  On July 30, 2018, [...] returned to work for the first time since the TL incident.  (T4 146:8-10).  IA advised him that he was being investigated for a “major rule infraction. ” (T4 148:15-149:11).  In conjunction with the IA investigation, [...] voluntarily executed HIPAA releases for [...] permitting the Department to access [...]’s medical records.  (T4 114:22-116:1, 159:10-163:6).  IA ordered that Plaintiff attend a functional capacity evaluation (“FCE”).  (T4 167:13-168:4).  [...] “passed” the FCE and the doctor approved him for light duty.  (T4 168:5-169:9; Pa148).  The FCE examiner, [...], advised [...] that he should go to rehabilitation (“rehab”) in order to titrate off of the pain medication he had been prescribed.  (T4 168:22-169:12; T5 136:4-139:11; Pa148).  [...] did not feel like he needed rehab.  (T4 at 169:10-12).  [...] reasonably understood the doctor’s statement as the Department ordering him to go to rehab.  (T4 178:11-179:8).  [...] wrote [...] requesting an explanation for his prescription of opioids to [...].  [...] responded in writing.  (T4 169:13-170:4; T5 139:23-142:9; Pa148).  [...] told [...] that it would be difficult to wean him off opioids because he had been prescribed them for three (3) years.  (T4 183:20-184:9).  [...] left the FCE accompanied by [...] and [...].  (T4 170:12-171:15).  Although the FCE doctor approved [...] for light duty work, [...] and [...] determined that [...] should not be working at all and he was put on stress leave.  (T4 179:9-180:19).  [...] wanted to work, and not go out on stress leave.  (T1 170:6-17).  **[...] Has Sinus Surgery and Attends Rehab While On Sick Leave**
[brief] ”  423a.  The court faulted “elected officials” who are “sworn to uphold the Constitution [and] may not avoid a constitutional duty by bowing to the political effects of prejudice and self-interest. ”  425a.  Then, the court noted that there “is not a single unit of affordable housing in [...]. ”  396a.  These failures are compounded by the fact that, fifteen years later, when [...] finally prepared a plan to remedy these constitutional deficiencies and obtained a Court-ordered judgment, candidate [...] campaigned on stopping affordable housing, won, and lived up to her promise to the electorate.
[directive] Adm in istra tors il 1 6 - 1 Policy Statement 6 - 6:l  1 of Maintenance and Use Seized Property by County -- - - and Muni5TEal Law Enforcement Agencies 6:2 6 - 1  Maintenance and Use Seized Property by State of Law Enforcement Agencies 6:3 6 - 2  Forfeited Property 6:4 6 - 3  Transfer of Ownership 6 - 3-4  Maintenance Expenditures 4 6 - 6  5  Statute of Limitations on Claims 6 - 6:6  4 of State of New Jersey  Forfeiture Program Administration SOP
[brief] In Meadowbrook, our Supreme Court explained:  We are also persuaded that [...]'s failure to include a consent of surety with its bid submission had the capacity to affect the fairness of the bidding process.  This is so even though it is evident that in fact there was no corruption or any actual adverse effect upon the bidding process.  . .  Our specific concern is that the requirement of a consent of surety may have deterred others from bidding who would have bid had they known that [that] condition[ ] would be waived.  . .  Other considerations also persuade us that to permit waiver of a consent-of-surety requirement could affect the fairness of the competitive-bidding process.  A bidder's ability to perform a project might improve between the time the bids are submitted and the time the bids are awarded, with the result that a surety initially unwilling to supply a bond might be willing to do so later.  Furthermore, a bidder that is determined to be the low bidder on a project may be willing to invest additional capital and take other steps necessary to obtain the required consent of surety, which it would not have done without the assurance that it would then be awarded the contract.  Moreover, by permitting a waiver of the consent-of-surety requirement, those bidders with limited bonding capacity would not need to deplete that capacity by obtaining the consent of surety, which would allow them simultaneously to submit bids for other contracts.  . . .  We recognize that to prohibit the waiver of the consent-of-surety requirement occasionally may result in additional cost to the public, but we have no doubt that the overriding interest in insuring the integrity of the bidding process is more important than the isolated savings at stake.
[brief] As to its territorial coverage, “[a] municipal court of a single municipality shall have jurisdiction over cases arising within the territory of that municipality[.]”  N.J.S.A. 2B:12-16(a)7; N.J.S.A. 2B:12-19(a) (“A municipal court has authority to conduct proceedings in a criminal case within its territorial jurisdiction prior to indictment subject to the Rules of Court. ”); see N.J.S.A. 2B:12-17(g) (empowering municipal courts to hear “cases within the territorial jurisdiction of the court” for which “jurisdiction is granted by statute”).  That is, the Legislature made a deliberate choice that a municipal court’s authority is bounded by its territorial jurisdiction.8  For that reason, R. 3:5-1 recognizes that “[a] search warrant may be issued by a judge of a court having jurisdiction in the municipality where the property sought is located. ”  So [...]’s warrant was necessarily limited to [...].
[brief] (Sa70)  The State argued below, and continues to argue on appeal, that [...] is disqualified from Track One under the second clause of subsection (a)(5) because [...] possessed a firearm in Essex County while his charges in Morris County were pending.  (Sa72; Sb8, 14-16)  The State interprets the second clause of (a)(5)—“possess[ed] a firearm at the time of any pending criminal charge”—to mean “possessed a firearm while defendant had a pending criminal charge. ”  The State thus reads “at the time of” to refer to the time when defendant had a pending criminal charge.
[brief] (Da57 at ¶ 3, fn1.)  The sole means of vehicular access to Lot 1.01 is by the Boulevard.  (Da57 at ¶ 3, fn1.)  [...] does not have, and has never requested, an easement to use the Boulevard for the simple fact that it does not need one: i.e., the Boulevard is a public road, and it is not necessary to have an easement to traverse a public road.
[directive] 1.  An officer issued a conducted energy device shall determine and record on an appropriate log, prior to field deployment, that the device, including the video recording function, is functional, provided, however, that if the officer is equipped with a body worn camera as defined in Attorney General Law Enforcement Directive No. 2015-1 that will be used to record the circumstances of the firing/discharge of the conducted energy device in lieu of an internal video camera, the officer shall determine and record on an appropriate log that the body worn camera is functional.  Director as described in paragraph 4 of Section VII above.  -9-
[brief] Where the common knowledge exception was applicable to a dentist that pulled the wrong tooth from a patient’s mouth.  *Palanque v. Lambert-Woolley*, 168 N.J. 398, 400 (2001) (common knowledge exception applicable where defendant doctor misread plaintiff’s pregnancy test results); *Estate of Chin v. Saint Barnabas Medical Center* 160 N.J. 454, 460 (1999), (common knowledge applied where a patient died from an air embolism during a diagnostic hysteroscopy, during which someone accidentally connected a gas line rather than a fluid line to the patient's uterus)).  In *Jacobs v. Jersey Cent. Power & Light Co.*, 452 N.J. Super 494 (App. Div. 2017), a plaintiff sued defendant utility for creating and then failing to timely repair a dangerous condition.
[brief] THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING SCOTT’S REQUEST FOR LEAVE TO FILE COUNTERCLAIMS  BECAUSE THE ISSUES RAISED IN THE COUNTERCLAIMS DIRECTLY RELATE TO WHETHER THE SALE OF THE SUBJECT PROPERTY TO MONTEIRO WAS VALID AND CONDUCTED IN GOOD FAITH.  (Da4)  Plaintiff argues that the “motion judge correctly denied the motion because of the absence of any fiduciary duty relationship between [...] and any of the owners of the Property. ”  (Pb13).  [...] respectfully disagrees.  Contrary to plaintiff’s argument, [...]’s counterclaims do not relate solely to allegations of breach of fiduciary duty.  Instead, [...]’s counterclaims directly relate to disputes arising from the marketing and sale of the Subject Property by [...] and [...].  Specifically, the claims raised in the counterclaims directly relate to the claims presented to the Court by [...] in his application for an Order to Show Cause and Verified Complaint.  The Court’s denial of [...]’s request to file counterclaims has resulted in a deprivation of his right to fairness and equity.  The Court’s denial has resulted in preclusion of his viable claims relating to the wrongful sale of his property to [...] and that such sale was contrary to the settlement Consent Judgment entered into by the property owners on April 13, 2022.  For these reasons, as well as those set forth in detail in [...]’s initial appellate brief, the Court’s Order denying [...]’s motion for leave to file counterclaims should be reversed and the matter remanded for further proceedings.
[brief] But in order to void a contract one must show that the alleged fraud he or she claims induced the timeshare purchase and was wholly extraneous to the contract, disrupting the parties’ purpose and intent.  None of that happened because all of these Plaintiffs intended to purchase timeshares for their own personal use and enjoyment.  And while orally disputing the precise written terms of the contracts they signed, the terms have nothing to do with their desire to have purchased the timeshare for their own personal use and enjoyment (Investment, increase in value, resale, etc.).  So, whether Plaintiff/Respondents say they sought to void the contracts or not, all they did was allege the precise opposite of the contractual terms that had nothing to do with their intent to purchase and the Parol Evidence Rule is and was applicable.  POINT II
[brief] More importantly, even if [...] had not raised the express easement theory at all, [...]’s decision ignored settled law that “[t]he preclusive effect of res judicata applies not only to matters which were raised in a prior action but also to matters which could have been raised. ”  Joseph L. Muscarelle, Inc. v. State, 175 N.J. Super. 384, 395 (App. Div. 1980), app. dismissed, 87 N.J. 321 (1981)(emphasis added).  Even Culver v. Ins. Co. of N. Am., 115 N.J. 451 (1989), cited by [...] as authority for her analysis of the issue (Da828), held as much.  See Culver, supra, 115 N.J. at 463 (Res judicata bars “not only ... ‘all matters litigated and determined by such judgment but also as to all relevant issues which could have been presented, but were not.
[brief] Myska v. New Jersey Mfrs. Ins. Co., 440 N.J. Super. 458 (App. Div. 2015) ...............................................................8  Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490 (2006)  .........................................................................................17  Port Liberte II Condo. Ass'n, Inc. v. New Liberty Residential Urb. Renewal Co., 435 N.J. Super. 51, 62, 86 A.3d 730 (App. Div. 2014) ........................................16  Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739 (1989) .........................................................................................6  S.D. Walker, Inc. v. Brigantine Beach Hotel Corp., 44 N.J. Super. 193 (Ch. Div. 1957) ..................................................................9  Sickles v. Cabot Corp., 379 N.J. Super. 100 (App. Div. 2005) ...............................................................7  Smith v. SBC Communications, Inc., 178 N.J. 265 (2004) ...........................................................................................................7  Wells Fargo Bank v. NJ Prop. Group, 2020 N.J. Super. Unpub. LEXIS 1130.............................................................................11, 15  Other Authorities
[brief] Not only does Plaintiff’s cited testimony not address the Court’s concerns, but Plaintiff’s cited testimony further highlights the inconsistencies of his sham affidavit submitted in opposition to Defendants’ motion for Summary Judgment.  Plaintiff was asked at his deposition whether he ever had any conversation with either [...] or [...] about any alleged amounts he was owed, and his response made no reference to any conversation prior to December of 2017.  Amazingly, after depositions, Plaintiff’s January 30, 2023 affidavit suddenly mentions, for the first time, conversations (now with specific dates) on "January 15, 2015, March 13, 2015, April 14, 2016, and the office Christmas party of December 2017" where he claims to have spoken to [...] about his alleged owed amounts.\textsuperscript{25}
[brief] But even were the Court to consider the substance of the argument, Plaintiffs did attempt to make a pre-suit demand, but were stymied in their efforts by the defendants’ obfuscation.  Once Plaintiffs recognized an issue based on the New Jersey tax notice, [...] (at Plaintiffs’ instruction) made a series of written demands of [...] in August 2019 to produce accurate financial data for the defendant entities to establish how much money Plaintiffs were owed.
[brief] N.J.S.A. 17:33A-16.  The statute tasks both [...] and [...] to work in consultation with one another to “investigat[e] allegations of insurance fraud” and to “implement[] programs to prevent insurance fraud and abuse. ”  N.J.S.A. 17:33A-8(a)(1).  Because the Legislature designated [...] and [...] as the agencies “to whom its enforcement is entrusted,” this court affords their interpretation of the IFPA “great weight. ”  Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 69-70 (1978).