ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Docket No: [...]  On appeal from the Order entered on May 19, 2023 from the Superior Court of New Jersey, Law Division, Union County  DEFENDANT-RESPONDENT, CITY OF PLAINFIELD’S, MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF-  APPELLANT’S APPEAL  [...], Esq. (#076972013)  Of counsel and on the brief  [...] [...]  Tel: [...]  Fax: [...]  Attorneys for Defendant-Respondent, [...]  TABLE OF CONTENTS  TABLE OF APPENDIX  ........................................................................................................ii  TABLE OF JUDGMENT(S), ORDER(S), RULING(S), AND DECISIONS(S) ON APPEAL ......................................................................................................................... iii  TABLE OF AUTHORITIES.................................................................................................iv  PRELIMINARY STATEMENT .............................................................................................1
[brief] (23T127-22 to 23T128-1).  He claimed that [...] was with him.  (23T143-14 to 18).  He denied going back to his vehicle to retrieve a gun.  (23T129-24 to 25).  He decided to walk back to the Akbar entrance to find the two female friends of [...], even though he claimed that as he was walking out, the same people who had been threatening him inside the hall were doing so as he was leaving.
[brief] An attorney has implied actual authority inasmuch as they are “‘authorized to do what [they] may reasonably infer the principal desires [them] to do in light of the principal’s manifestations and facts as [they] know or should know when [they act].’”  Newark Branch NAACP, supra, 786 F. Supp. at 424 (quoting Lampley v. Davis Mach. Corp., 219 N.J. Super. 540, 548-549 (App. Div. 1987)).
[brief] 3.  **Care and Maintenance of Premises.**  Lessee acknowledges that the premises are in good order and repair, unless otherwise indicated herein.  Lessee shall, at his own expense and at all times, maintain the premises in good and safe condition, including plate glass, electrical wiring, plumbing and heating installations, and any other system or equipment upon the premises and shall surrender the same, at termination hereof, in as good condition as received, normal wear and tear excepted.  Lessee shall be responsible for all repairs required, excepting the roof, exterior walls, structural foundations, and:  SEE RIDER which shall be maintained by Lessor.  Lessee shall also maintain in good condition such portions adjacent to the premises, such as sidewalks, driveways, lawns and shrubbery, which would otherwise be required to be maintained by Lessor.
[brief] The Amended Complaint not only asserted claims against the [...], [...], [...], and [...], but also against a series of other entities owned or controlled by the [...]: [...]; [...]; [...]; [...] Group, LLC; and [...].  The Amended Complaint asserted claims for an accounting, constructive trust, conversion, breach of contract, fraud, breach of the covenant of good faith and fair dealing, and unjust enrichment.  (Da11-630).  The defendants again filed an answer with counterclaims and a third-party complaint.\(^8\) (Da694-714).  After additional fact and expert discovery relating to the matters in the Amended Complaint, the defendants moved to bar or limit the testimony of Plaintiffs’ accounting expert, [...], and for summary judgment.
[brief] While there is no dispute that [...] violated its contract with [...] when it subcontracted with [...], Plaintiff has never argued that the violation of the contract was a breach of a legal duty to Plaintiff.  This is a fabricated argument of Defendants that was never advanced by Plaintiff.  Instead, Plaintiff discussed the fact that defendant [...] was never given the chance to vet defendant [...], nor did defendant Bernard know that [...] was not performing the work, thereby making oversight also equally difficult.  (4T28:16-20; 29:14-21).  The agreements between the owner and subcontractor and contractor and subcontractor both have sections that state the following:  A.  The OWNER’s primary objective is for the propert(ies) to be maintained in a safe manner which provides safe conditions for all those property(ies) at all times.  **SUBCONTRACTOR is responsible for ensuring all services are provided as required to ensure safe conditions for employees, tenants, and visitors.  SAFETY IS NOT TO BE COMPROMISED.**  (Da159, Da174-75)  The areas are to cleared during each event in the following order of priority; **roads prior to 6:00 AM** (4:00PM in the event of day storms); parking areas, fire hydrants, mailbox areas, storm sewers, sidewalks, utility meters, and dumpsters enclosures areas.  (Da164, Da178)  The agreements clearly note an understanding of Defendants of the increased traffic at 6 a.m., wherein they specifically note snow services should be performed prior to, if possible.  (Da164, Da178).  Once again, Plaintiff has never advanced an argument that any party had a legal duty to clear the parking lot by 6 a.m., but the agreements between the defendants make clear they all know the importance of clearing the snow prior to 6 a.m.  (Id.)
[brief] 28  POINT III.  A BALANCE OF A BONA FIDE GOOD FAITH PURCHASE  STATUS CLAIMED BY [...]  WITH EQUITABLE PRINCIPLES OF IN THE FACTUAL SETTING BEFORE THE COURT COMPELS UPHOLDING THE ORDER TO VACATE THE FINAL JUDGMENT OF FORECLOSURE.  35  POINT IV.  PLAINTIFF'S FORCLOSURE PURSUANT TO THE IN REM ACT DEVIATED FROM STATUTORY REQUIREMENT AND THE RULES OF COURT AND IS DISQUALIFIED IN THE USE OF AN ACCELERATED PROCESS AND IS VOID  41  POINT V.  PRESERVATION OF PRIVATE PROPERTY RIGHTS IN THE TYLER V. HENNEPIN COUNTY DECISION ARE APPLICABLE TO THE CASE BEFORE THIS COURT.  CONCLUSION
[brief] See Id. at 38 (quoting Restatement (Second) of Contracts § 177(1) (1981)).  When a physician presents a patient with an arbitration agreement, the physician is exercising undue influence over the patient and acting contrary to the patient’s best interests because the physician is requiring the patient to waive their right to a jury trial.  B.  Pre-Suit Arbitration Agreements Cannot be Enforced Against Nonparties to The Agreement.  It is unconscionable for a pre-suit arbitration agreement to bind a party who has not signed the agreement.  In general, a party is only bound to arbitrate disputes they have contractually agreed to arbitrate and not bound to arbitrate disputes the party has not specifically agreed to arbitrate.
[brief] For tenants like Mr.  \textsuperscript{5}  Quick Facts-Hoboken City, New Jersey, United State Census Bureau, https://www.census.gov/quickfacts/fact/table/hobokencitynewjersey/HSG860221#HSG860221 (last visited Aug. 24, 2023).  \textsuperscript{6}  Hoboken NJ Rental Market, Zillow Rental Manager, https://www.zillow. com/rental-manager/market-trends/hoboken-nj/ (last visited Aug. 24, 2023).  \textsuperscript{7}  Supra, note 4.  \textsuperscript{8}  2023  Housing Plan Element and Fair Share Plan, City of Hoboken 22 (2023), https://assets-global.website-files. com/58407e2ebca0e34c30a2d39c/642489e6bc8a95f6a02b5c0c_23.02.08%20Final_Hoboken%20Housing%20Element%20and%20Fair%20Share%20Plan.updatedfrom%20PB.pdf.  [...], there is simply not a readily available and viable alternative to his current apartment in which he has now lived now for over thirty years.
[directive] The point value for this aggravating factor ranges from +3 to +5, which should be determined by the prosecutor based upon the nature of the resistance and the threat of injury posed to the law enforcement officer(s) who made the arrest or attempted to make the arrest, and the threat of injury posed to any other persons.  Aggravating Factor #3c applies when the defendant at the time of the arrest or attempted arrest engaged in flight, or eluding in violation of N.J.S.A. 2C:29-2b.  Note that this aggravating factor is not limited to circumstances involving a motor vehicle pursuit, but would also include any circumstance where the defendant’s conduct precipitated a police foot chase.  The point value for this aggravating factor ranges from +4 to +5, depending on the nature of the flight or eluding, and the threat of injury posed to the law enforcement officer(s) and to any other persons.  Aggravating Factor #3d applies where the defendant during the course of committing the offense or at the time of arrest or execution of a search attempted to destroy evidence or otherwise engaged in conduct constituting the offense of hindering apprehension, investigation or prosecution in violation of N.J.S.A. 2C:29-1 or 2C:29-3.  The point value for this aggravating factor is +3.
[brief] The Appellate Division reversed, holding that the time period should be relaxed:  Unswerving, ‘mechanistic’ application of statutes of limitations would at times inflict obvious and unnecessary harm upon individual plaintiffs without advancing … legislative purposes.  * * *  On numerous occasions we have found ‘such particular circumstances as to dictate not the hard approach of literally applying the statute of limitations but the application of the more equitable and countervailing considerations of individual justice. ’ ***  A ‘just accommodation’ of individual justice and public policy requires that ‘in each case the equitable claims of opposing parties must be identified, evaluated and weighed. ’  [...] v. [...], 311 N.J Super 333, 337 (citations omitted).  The Court further noted that an “agency has inherent power to waive de minimis violations of objective standards. ”  Id., citing SMB Assocs v. Department of Envtl. Prot., 264 N.J. Super 38, 59 (App. Div. 1993), aff’d, 137 N.J. 58 (1994).  The Court reversed the decision of the [...], noting that even though the letter was never received by [...], even if it had been, the notice was improper and late.
[brief] The Trial Court’s analysis begs the question of what amount of money awarded by the jury would satisfy this imaginary threshold.  Fifty Thousand; One Hundred Thousand; One Million?  The Trial Court concluded that the plaintiff failed to demonstrate, by a preponderance of the credible evidence, that the treatment included in the Worker’s Compensation lien, and the temporary disability benefits were proximately caused by the event in question.  It is respectfully submitted that the Trial Court’s finding that the plaintiff failed to prove his case by preponderance of the credible evidence, is tantamount to the Trial Court substituting its opinion for that of the jury.  This case was vehemently denied by the defendant both as to liability and damages.  The jury did indeed find that the plaintiff had shown by a preponderance of the evidence that the defendant was 85% liable, and that Plaintiff sustained damages proximately caused by this accident.  As stated, had the jury rejected these arguments, they would have no caused the Plaintiff as to either liability, or damages.  Certainly, that did not occur.  As the Trial Court indicated, there was no objection raised to the verdict sheet and the jury instructions on the record by either counsel.  (8T:7-21 to 23).  Moreover, the Trial Court indicated that the defense had every opportunity to request additional jury interrogatories on medical expenses and wages.  (8T:7-23 to 25).  As the party with the burden of proof, there would be no reason for the plaintiff to request additional jury interrogatories.  Each additional jury question is an opportunity for the defense to argue that the plaintiff’s claim should be rejected.  There would be no reason for the plaintiff to ask for additional interrogatories with regard to whether, or not, the actual medical bills were causally related to the accident, especially in light of the fact that plaintiff’s counsel was trying this case, based upon a pre-trial agreement between the parties that the verdict would be molded to include the temporary disability benefits, and medical bills paid by the Worker’s Compensation carrier.  The Trial Court’s finding that the jury rejected an argument that was not before them, is the Trial Court substituting its opinion for that of the jury and constitutes error warranting reversal.  CONCLUSION
[brief] In Hunstein v. [...], 994 F.3d 1341 (11th Cir. 2021) (Hunstein I) and Hunstein v. [...], 17 F.4th 1016 (11th Cir. 2021) (Hunstein II), the court concluded that the consumer stated a claim for violation of § 1692c(b) when alleging the debt collector supplied information to a mail vendor used to generate, print, and mail a collection letter.  The Eleventh Circuit’s decisions focused on whether the debt collector’s communication to the mail vendor was “in connection with the collection of any debt. ”  After concluding that such a communication is facially made in connection with the collection of a debt, the court addressed the debt collector’s argument to the contrary.  The court rejected the argument that, to be in connection with the collection of a debt, the communication must include a demand for payment.  The court observed that, if a payment demand were necessary, then much of the section’s exceptions would be superfluous which would violate a “cardinal principle of statutory construction” to give meaning to every word.  *Hunstein I*, 994 F.3d at 1351.  The court also rejected the argument that the practice of using mail vendors is widespread and has not previously been questioned.  “That this is (or may be) the first case in which a debtor has sued a debt collector for disclosing his personal information to a mail vendor hardly proves that such disclosures are lawful. ”  *Hunstein I*, 994 F.3d at 1352.  The Eleventh Circuit also commented on the potential impact of its decision.  We recognize, as well, that those costs may not purchase much in the way of “real” consumer privacy, as we doubt that the [...] of the world routinely read, care about, or abuse the information that debt collectors transmit to them.  Even so, our obligation is to interpret the law as written, whether or not we think the resulting consequences are particularly sensible or desirable.  Needless to say, if Congress thinks that we've misread § 1692c(b)—or even that we've properly read it but that it should be amended—it can say so.
[brief] *Paterson Redevelopment Agency v. Beinstock*, 123 N.J. Super. 457, 460 (App. Div. 1973).  This is because “the sole issue is determination of just compensation” and “procedural rules involving the risk of failure to persuade are inapposite. ”  *Id.*  The State’s “constitutional mandate requires that the owner be awarded just compensation for the property [it] has lost. ”  *Id.*  “Absent the production of such evidence by either party, the triers of fact will determine fair market value solely from the other party’s evidence. ”  *Id.*  The Court set forth the necessary analysis a trial court must engage in to prevent unduly speculative evidence from being presented to the jury; comprised of two steps:  [T]he first step in the **two-step trial process** is for the judge to make an initial, gatekeeping determination of whether an assemblage was probable in the near future as measured from the date of taking based on the evidence before him relating to market conditions and the circumstances particular to the property.  …  If the judge determines that an assemblage including defendant’s property was reasonably probable at a near- future time from the date of taking, then, according to the prescription of both Gorga and Caoili, the jury must be instructed to consider in its determination of fair market value the premium a willing buyer would pay for the probability of a future assemblage over and above the fair market value as represented by the existing use of the property.  See, County of Monmouth v. Hilton, 334 N.J. Super. 582, 590 (App. Div. 2000)  [emphasis added].  This is how a trial court must perform its “gatekeeping role” as directed by the New Jersey Supreme Court in Borough of Saddle River v. East Allendale, LLC, 216 N.J. 115 (2013).
[brief] Trial Court [...] noted that R. 6:2-3(a) provides that “Service of all process outside this State may be made in accordance with R. 4:4-4 and R. 4:4-5.  After the filing of a complaint and receipt of a docket number, service may be made by mail pursuant to either R. 4:4-4(c) by plaintiff or, pursuant to R. 6:2-3(d), by the clerk, without the payment of mileage fees. ”  [...] commented about serving papers on [...], that “I know there were papers in the past that you filed that did not have an address.  You have objected to giving an address.  But the court rule requires an address. ”  [T26:10-13]
[brief] (Da 1-2) (1T 29:6-8).  The lower court reasoned that while Smith v. Costco, 2023 WL 4307729 (App. Div. 2023) recognized the State of Emergency for this very same snow storm, the case nevertheless was irrelevant and inapplicable since it dealt with the ongoing storm rule.  (Da 139-142) (1T 29:6–30:2).  The court further reasoned that the State of Emergency would not “impact” any decision by the jury since it would have photos and testimony about how significant the storm was and how high it was.  (1T 30:3-10).  The court concluded that the State of Emergency had no relevance and that the potential for confusion or prejudice would outweigh any probative value.  (1T 30:12-19).  The lower court then went on to consider whether the snow removal contracts could be referenced at trial.
[brief] *State v. Robinson*, 136 N.J. 476, 491 (1994), quoting *Mauricio*, supra, 117 N.J. at 413.  The Supreme Court has said that the right to have the jury consider a lesser-included offense is at “the very core of the guarantee of a fair trial,” *State v. Short*, 131 N.J. 47, 52 (1993).
[brief] Petitioner was taken to [...] by a fellow officer, where he was evaluated in the emergency room and imaging studies, including CT scans and MRIs, of his cervical spine were performed.  (Pa165, 168).  Petitioner was released that same day.  (Pa168).  After following up with a workers’ compensation doctor, Petitioner was evaluated by orthopedic surgeon, [...], on November 6, 2015.  (Pa168, 162).  Dr. Kirshner reviewed Petitioner’s CT scan, which demonstrated degenerative disc disease of the cervical spine.  (Pa164).  Petitioner’s MRI of the cervical spine also showed degenerative disc disease, specifically at C5-C6 and C6-C7, and a central disc herniation at C5-C6 with moderate to severe spinal stenosis, and at C6-C7 with moderate stenosis.  (Pa164).  Dr. Kirshner diagnosed Petitioner with “herniated nucleus pulposus, cervical” at “C5-6 and C6-7 with moderate to severe spinal stenosis with compression of the spinal cord. ”  (Pa165).  On November 23, 2015, Petitioner underwent an anterior --- \textsuperscript{2}  “IT” refers to the Transcript of the September 6, 2019 OAL hearing during which the Petitioner testified.  “2T” refers to the Transcript of the September 11, 2019 OAL hearing during which Petitioner’s expert, [...], testified.  “3T” refers to the Transcript of the September 21, 2020 OAL hearing during which the Board’s expert, [...], testified.  cervical discectomy and decompression with the insertion of artificial discs at C5-C6 and C6-C7, performed by Dr. Kirshner.  (Pa165, 168).  C.
[brief] The lower Court failed to state that Plaintiff was entitled to summary judgment as a matter of law.  The lower Court’s sole basis for its grant of summary judgment to Plaintiff is as follows:  “Because plaintiff’s SOUMF is not contested by defendant in compliance with R. 4:46-2(b), plaintiff’s ... SOUMF is deemed admitted” (Da29).  The lower Court misapplied R. 4:46-2(b).  It did not find that Plaintiff is entitled to summary judgment as a matter of law.  The lower Court’s grant of summary judgment is based entirely on Plaintiff’s statement of undisputed material facts (SOUMF) and is a mistake.  Kemp, supra. R. 1:7-4(a) required the lower Court to state its conclusions of law, including its conclusion that Plaintiff is entitled to summary judgment as a matter of law.  The lower Court failed to do so.  Consequently, the lower Court’s grant of summary judgment was a mistake and must be vacated.  Kemp, supra.
[brief] 253 N.J. 333, 369-71 (2021) (citing N.J.R.E. 609(b)(2)(i)).  Likewise, [...]’s single intervening conviction for a disorderly persons offense was not capable of “bridging the gap” between his remote prior convictions and his trial for the offense that is the subject of the instant appeal.  See \textit{id.} at 370.  Therefore, had the trial court properly considered the factors set forth in Rule 609(b)(2) and made the required findings regarding the relative prejudice and probative value of [...]’s prior convictions, it would have found the convictions inadmissible because their probative value does not outweigh the prejudicial effect.
[directive] An authorized user may access and use stored ALPR alert data (i.e., ALPR license Alert plate data matching an entry on a BOLO list) as part of an active investigation or for any other legitimate law enforcement purpose, including but not limited to a BOLO query, a crime scene query, or crime trend analysis (as defined below).  4 data.  Access to and use of stored non-alert ALPR data (i.e., ALPR data gathered  Non-alert not matching a BOLO list entry) is limited to the following three purposes explained below: a BOLO query, a crime-scene query, and crime trend analysis (system tests and troubleshooting are also acceptable purposes).  4.2.1
[brief] On appeal, Plaintiff does not present any authority suggesting that the Tariff is not controlling as to [...]’s obligations with respect to assisting municipalities with their streetlights.  Accordingly, the trial court’s ruling should be upheld.  B.  The Trial Court Properly Held That [...] Did Not Have Notice of the Alleged Streetlight Outage  Plaintiff makes two arguments with respect to notice on appeal: (1) “Because [...] partially created the hazard leading to backlighting in the intersection, plaintiff does not need to establish the element of actual notice of the hazard”; and (2) even assuming Plaintiff was required to establish actual notice, “there exists evidence in the case that [...] likely had notice, and most definitely had constructive notice, of the said hazard.” (Pb23-24).  Both of these contentions were considered – and rejected – by the trial court in its well-reasoned oral decision.  Thus, its order granting summary judgment as to [...] should be affirmed here.  As set forth at Point I.A., supra, the Sinclair case expressly holds that there is no duty as a matter of law on the part of an electric provider to ensure that every streetlight is operational at all times, irrespective of the issue of whether the provider had notice of an alleged outage.  However, [...] did point the trial court to two subsequent unpublished Appellate Division decisions that have since injected “notice” as a legal requisite in the duty analysis.  See Press v. Borough of Point Pleasant Beach, No. A-2807-07T3, 2010 WL 307931 (N.J. Super. Ct. App. Div. Jan. 28, 2010) (Pa528); Anderson v. Davoren, No. A-6430-06T3, 2010 WL 307956 (N.J. Super. Ct. App. Div. Jan. 28, 2010) (Pa536).  Although these decisions were not binding on the trial court, [...] argued that, assuming the trial court chose to consider them, the court should still grant it summary judgment because Plaintiff had failed to present any evidence that: (1) the streetlight was inoperable at the time of the accident, and (2) [...] had notice of the subject streetlight being inoperable prior to Plaintiff’s accident.  Press and Anderson, consolidated for appeal, were argued and decided on the same days.  In those two unreported cases, the Appellate Division held that there is a duty on the public utility company “to act with reasonable care to avoid harm to those who foreseeably may be harmed by their actions, after the utility has been notified of the need to act.