ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] **[...] IS NOT ENTITLED TO RECOVER THE PORTION OF THE JUDGMENT AGAINST [...] ATTRIBUTABLE TO TREBLE DAMAGES UNDER THE MCS-90 ENDORSEMENT**  Aurora’s argument that the MCS-90 endorsement is a surety obligation devoid of any restrictions or limitations (there is “nothing in the MCS-90 surety endorsement that precludes payment of a treble damage award,” (Pb34-36)) ignores the unambiguous provisions of the endorsement, which is a form that federal law requires an insurer to use.  The MCS-90 endorsement requires [...] to pay only for final judgments for “public liability,” defined as liability for “bodily injury,” “property damage” or “environmental restoration. ”  Each phrase is defined in the endorsement (PPCIa183), and none obligate a carrier to pay a judgment for treble, punitive or exemplary damages.  Further, in an attempt to avoid the application of New Jersey’s public policy prohibition against punitive damages, Aurora makes the novel argument that the MCS-90 endorsement is a stand-alone surety obligation that is somehow wholly divorced from any such insurance-related public policy prohibitions.  While no New Jersey court has yet addressed this issue, a treatise discussing this issue, as well as underlying case law from around the United States discussed therein, recognizes that the “majority rule is that the surety is not liable to pay punitive damages. ”  See 1 Punitive Damages: Law and Prac. 2d § 7:20 (2024 ed.), [...] & [...] (PPCIra10).  This treatise also recognized that “public policy issues similar to those dealt with in insurance cases arise when punitive damages are sought. ”  Thus, whether an insurance policy or a surety agreement, it is a distinction without a difference in the context of the public policy prohibiting coverage for punitive damages.  POINT IV
[brief] The third Cole factor considers whether the delay in seeking arbitration was part of the moving party’s litigation strategy.  Cole, 215 N.J. at 281.  [...] argues that “there are no facts to support a finding” of strategic delay.  The record, however, demonstrates otherwise.  [...]’s failing to mention “arbitration” in any of its 39 affirmative defenses, certifying pursuant to Rule 4:5-1 that no arbitration is contemplated, making a jury demand, serving broad discovery, actively litigating motions, and delaying six-years its motion to compel arbitration all support the Law Division’s finding that this factor weighs heavily against arbitration.  Hearing Tr. 72:6-8.  While it cannot be known for sure what [...]’s litigation strategy is, [...]’s actions to date appear to incorporate delay as part of its strategy.
[brief] Alves v. Rosenberg, 400 N.J. Super. 553, 565 (App. Div. 2008) (quoting Dolson v. Anastasia, 55 N.J. 2, 5 (1969)).  Thus, an appellate court “must accept as true all evidence presented by plaintiff and the legitimate inferences drawn therefrom to determine whether the proofs are sufficient to sustain a judgment in his favor. ”  Carbajal, 468 N.J. Super. at 158; see Verdicchio v. Ricca, 179 N.J. 1, 30 n.4 (2004) (“It goes without saying that a reviewing court faced with a R. 4:37-2(b) issue must disregard evidence adduced on the defense case. ”).  POINT II
[brief] This is precisely what paragraphs 1 through 5 of the Consent Order provide.  Appellants’ arguments otherwise are illogical distortions that seek to deviate from the plain meaning of the Consent Order’s terms.  The plain meaning of paragraphs one through four of the Consent Order is manifest.  First, paragraphs one through four dismiss the parties’ claims pending the adjudication of the [...].  Second, they define the adjudication of the [...] as the date when the [...] was rendered.  Third, paragraphs one through four ensure that following the adjudication of the [...], if any party opted to refile the claims they had asserted in the [...], then they were required to do so within sixty days.  Fourth, they provide that if a party commenced a “Refiled Action” within the sixty-day deadline, then the responding party(ies) had the right to assert defenses, affirmative claims, counterclaims and third party claims that were raised in the [...] as “Responsive Pleadings to a Refiled Action.
[brief] October 11, 2023  [...]  #  TABLE OF CONTENTS | Section | Page | |------------------------------------------------------------------------|------| | TABLE OF CONTENTS | i | | TABLE OF JUDGMENTS, ORDERS AND RULINGS ON APPEAL | iii | | TABLE OF AUTHORITIES | iv | | TABLE OF CONTENTS OF APPENDIX | vii | | PRELIMINARY STATEMENT | 1 | | PROCEDURAL HISTORY | 4 | | FACTS | 7 | | LEGAL ARGUMENT | 13 | | A. SUMMARY JUDGMENT STANDARD | 13 | | B.  GUARANTIES ARE TO BE STRICTLY CONSTRUED AGAINST THE PARTY SEEKING ENFORCEMENT AND AGAINST THE PARTY WHO DRAFTED THE GUARANTY | 14 | | C. DEFENDANTS  [...] AND [...] DID NOT PERSONALLY GUARANTEE THE OBLIGATIONS OF [...] UNDER THE FEBRUARY 20, 2015  LEASE | 15 | D.  EVEN IF [...] AND [...] DID PERSONALLY GUARANTEE THE OBLIGATIONS OF [...] UNDER THE FEBRUARY 20, 2015 LEASE, ANY SUCH GUARANTY TERMINATED ON MAY 11, 2016  THE EFFECTIVE DATE OF THE TERMINATION OF THE FEBRUARY 20, 2015  LEASE ......................... 22  E.  EVEN IF [...] AND [...] DID PERSONALLY GUARANTEE THE OBLIGATIONS OF [...] UNDER THE FEBRUARY 20, 2015  LEASE, AND EVEN IF SUCH GUARANTY WAS NOT TERMINATED WITH THE TERMINATION OF THE LEASE IN 2016, SUCH GUARANTY WAS REVOKED BEFORE PLAINTIFF AND [...]  ENTERED INTO A CONSENT JUDGMENT FOR PAYMENT OF AMOUNTS DUE .................  28 CONCLUSION ..............................................  30  TABLE OF JUDGMENTS, ORDERS AND RULINGS ON APPEAL
[brief] Unlawful Possession of a Handgun (second degree) N.J.S.A. 2C:39-5(b), Revised June 11, 2018 ................................................................. Pa1 Unlawful Possession of a Weapon N.J.S.A. 2C:39-5(d), Revised November 13, 2023 ......................................................... Pa5 # TABLE OF AUTHORITIES | Cases | Page | |--------------------------------------------|------| | **California v. Green,** | 44 | | 399 U.S. 149 (1970) | | | **Miranda v. Arizona,** | 9 | | 384 U.S. 436 (1966) | | | **State v. Bakka,** | 31 | | 176 N.J. 533 (2003) | | | **State v. Bankston,** | 45 | | 63 N.J. 263 (1973) | | | **State v. Baum,** | 24, 25, 27, 28 | | 224 N.J. 147 (2016) | | | **State v. Blanton,** | 33, 35 | | 166 N.J. Super. 62 (App. Div.) certif. denied, 81 N.J. 265 (1979) | | | **State v. Bowens,** | 32 | | 219 N.J. Super. 290 (App. Div. 1987) | | | **State v. Branch,** | 44 | | 182 N.J. 338 (2005) | | | **State v. Breakiron,** | 24 | | 108 N.J. 591 (1987) | | | **State v. Burton,** | 45 | | 309 N.J. Super. 280 (App. Div.) certif. denied, 156 N.J. 407 (1998) | | | **State v. Carter,** | 32 | | 91 N.J. 86 (1982) | | | **State v. Chew,** | 37 | | 150 N.J. 30 (1997) cert denied, 528 U.S. 1052 (1998) | | State v. Cleveland, 6 N.J. 316 (1951) .................................................................................. 19 State v. Covell, 157 N.J. 554 (1999) .............................................................................. 32 State v. Darby, 174 N.J. 509 (2002) .............................................................................  31 State v. Diaz, 144 N.J. 628 (1996) .............................................................................  52
[brief] ”  [...] is [...]’s President and “hundred percent” owner.  See (4T6:21-22)  During his deposition, [...] was asked various questions relating to his ability to either recall or to confirm what specific types of Schedule 40 pipe were allegedly purchased from [...] with any of these thirteen (13) checks.  When asked how [...] could support a contractual damages claim when the documentation provided does not specify what was purchased, [...] continuously and generally referenced the documents Bate Stamped P0078-87.  The following colloquy is representative of this fact:  Q: Well is there a document from [...] saying – a packing slip or an invoice or spreadsheet or something to justify the checks?  A: I don’t remember.  Q: Mr. [...], you’ve written several hundred thousand dollars’ worth of checks through [...] which you’ve represented in this case, and your wife has represented in this case, are to cover the goods you couldn’t purchase from [...], correct?  A: Okay.  Q: Okay.  So how does the litigation resolve that question if we have no documentation?  A.  I believe we gave you all the documentation.  Q: I will represent to you we have never seen a single purchase order, spreadsheet, packing slip or anything along those lines from [...].  A: What do you have?  Q: Nothing.  We have checks . . . [and] a quote.  (4T48:17- 4T49:13, -19)  [...] was consistently non-responsive when asked questions seeking to determine how to confirm that the checks [...] issued to [...] were attributable to the acquisition of “replacement material. ”  Indeed, when questioned regarding the steps [...] employees had undertaken to locate documentation that would confirm what [...] received in exchange for the [...] checks, [...] vaguely responded, “I only did what I was told to do. ”  (4T61:3-4)  Further, when [...] was asked “[h]as anyone else, to your knowledge, been asked to look for documentation to support these checks?” he responded “No. ”  (4T64:18-21)  [...] provided no information at his deposition as to what it was that the [...] checks purchased.  Without this critical information, it could not be determined whether the [...] payments were truly made for “replacement material,” which is the core and essential assertion underlying [...]’s claimed entitlement to damages.
[brief] The judge went through the analysis under State v. Cofield, 127 N.J. 328 (1992), and found that he would only allow the admission of pictures of the Audi on defendant’s phone without reference to it being stolen.  (1T37-23 to 25).  Additionally, the judge ruled that he would not allow the State to introduce any other evidence from the April 20 incident, including pictures and videos of the BMW on defendant’s phone and Instagram, because that would necessarily require introduction of prior bad acts.  The judge stated:  I don’t find the theft of an Audi is similar in kind to a carjacking.  They’re separate charges.  It wasn’t as though he carjacked the Audi a day before.  The allegation is, is that he robbed the Audi at gunpoint three days earlier.  I don’t find the [sic] reasonably close in time, nor do I find that it is substantially the same charge he is facing and that is, the carjacking.  [(1T36-9 to 17)].  And the judge ruled that admission of evidence of the Audi theft would be prejudicial to defendant and a limiting instruction to a jury would not cure that prejudice.  (1T37-15 to 20).  On November 17, 2024, the State filed a motion for reconsideration and offered an alternative way for the judge to admit the April 20 evidence sanitized.  (Ma21).  The State proposed that the judge advise the jury at trial that on April 20, 2022, in [...], possession of an Audi with license plate [redacted] and a yellow BMW M4 was transferred to a different person or persons, both at the same time, and permit the evidence of the BMW to be admitted.  The judge heard argument and denied the motion orally on December 13, (2T), issuing an order on December 17, (Ma22).  The judge found that he was unable to sanitize the evidence without prejudicing defendant.  (2T17-2 to 25).  On December 16, 2024, the State filed a motion for a stay of the start of trial, (Ma23 to 24), which was denied on December 19, 2024.  (Ma25).  On December 19, the State filed an Application for Permission to File an Emergent Motion with this Court, which was granted the same day.  (Ma26 to 38).  The State then moved for leave to appeal from the October 24, 2024 decision, which was granted by this Court on December 31, 2024.  (Ma39).
[brief] LAD provides for personal liability of supervisory employees when they “aid, abet, incite, compel or coerce” the harassment of another.  N.J.S.A. § 10:5-12(e)).  Therefore, for liability to attach, [...] would to have been “generally aware of his role as a part of an overall illegal or tortious activity at the time that he provides assistance; … [and he] must [have] knowingly and substantially assist[ed] the principal violation."
[brief] (Da 14-25)  These charges relate to an armed robbery at a 7-Eleven in Hamilton that occurred on May 7, 2011.  (Da 14-25); [...], 2019 WL 1581430, at *1-3.  [...] moved to suppress evidence in the 7-Eleven Case, namely evidence found during the search of a car in which [...] was a passenger.  --- 3  For clarity, Indictment [...] will be referred to as the “Pharmacy Case,” and Indictment [...] will be referred to as the “7-Eleven Case.
[brief] As discussed in the Plaintiff’s opening brief, this is not the first time the trial court has summarily ignored Plaintiff and taken Defendant at his word that he “couldn’t afford it,” despite fraudulently hiding assets and requesting 1098-T forms reporting [...]’s tuition to take credit for it on his tax return, evidencing his assent to be responsible for his children’s higher education costs, as he and Plaintiff discussed for many years.  Of significant importance to this second appeal is the trial court’s abuse of discretion when ignoring Plaintiff’s testimony and evidence of her hardship, Defendant’s refusal to have meaningful relationships with his children after he remarried, which the lower court blamed on the children, and evidence that Defendant fraudulently hid assets, such an interest in his father’s home, from his CIS (with the help of his attorney).  To add insult to injury, the lower court ordered Plaintiff to pay Defendant’s counsel fees.  Nothing raised in Defendant’s opposition brief justifies this result.  Respectfully, for the reasons set forth below, the trial court abused its discretion and erred when it found that Defendant did not agree to pay for the children’s college education, was not required to reimburse Plaintiff for amounts she paid on his behalf towards the children’s loans, barred Plaintiff’s claims for medical expenses prior to 2014, and ordered Plaintiff to pay Defendant’s counsel fees after failing to consider all of the factors required to make that determination.
[brief] (2)  That defendant testified she doesn’t listen to rap music but has knowledge of rap music\(^{34}\); but found it irrelevant, repetitive, and unnecessarily self-serving (2T16:19-23)  (3)  She was asked by the Judge to get the facts of the case, she was unable to do so\(^{35}\), and (4)  She mentions an alibi without revelation, (5)  The Superior Court gives deference to the court below agreeing with the Judge’s credibility assessments with the exception of to [...] as it’s difficult to determine whether or not he was credible (2T16, 2T17:1-7).
[brief] **  The common areas shall be subject to the exclusive control and management of the lessor and the lessor shall have the right to establish, modify, change, enforce reasonable rules and regulations with respect to the common areas and lessee agrees to abide by and conform with such rules and regulations.  The right of customers to use the parking facilities shall apply only while they are shopping in the shopping center.  Lessee agrees that lessee and lessee’s employees will park their trucks, delivery vehicles and automobiles only in such parking areas as lessor shall from time to time \(^3\)  It should be noted that the statement “to the parking area” and “other common areas” are separated by commas with none in between.  designate for that purpose.  Lessor shall have the right to close any part of the common areas for such time as may, in the opinion of the lessor’s counsel, be necessary to prevent a dedication thereof, or the accrual of any rights in any person, or to clean and repair the same, and to close any part of the parking area for such time as lessor deems necessary in order to discourage non-customer parking.
[brief] See Pa492-3.  Approximately two weeks after the fatal October 6, 2021 crash, on October 21, 2021, [...] Director of Operations [...] issued an e-mail to [...] employees (team members) specifically advising them as follows:  For the safety of everyone, and with sensitivity and compassion in our hearts, we ask for your commitment in exercising caution when driving and walking in the parking lots.  [Pa497 (emphasis added). ]  Approximately 40 days after the fatal October 6, 2021 crash, on November 16, 2021, [...] Director of Operations Miller issued an email to [...] employees confirming that [...] had instituted the use of pedestrian safety measures including traffic controllers, security and flaggers, and directional signage:  It is imperative that all team members proceed with caution, use traffic controllers (security and flaggers) for guidance, follow new directional signage, and allow extra time to get to work, park and enter the facility.  [Pa493 (emphasis added). ]  Defendant [...]’s institution of pedestrian safety measures for employees and team members who were required to park in the distant part of the lot after the fatal October 6, 2021 crash demonstrates that [...] knew of the need for pedestrian safety measures and that it was feasible for [...] to have ameliorated the danger posed by its parking lot to employees such as [...].  See Pa493.  F.  The Fatal Crash Occurred During The “Mass Entrance” Of Employees That Routinely Took Place At Approximately 7:00-7:30 p.m. When Many Shifts Changed
[brief] The [...] collects information concerning municipal securities, including VRDOs, pursuant to mandatory reporting requirements.  Ja2098 (¶ 8).  This information, including disclosure documents, current and historical VRDO interest rates, the identity of remarketing agents, and other information is posted to the [...] portal and made available through [...] SHORT.  Ja2099–2102 (¶¶ 11–14), Ja2104–05 (¶ 19).  The free [...] portal is the “official repository for information on all municipal bonds” and has been accessed by over 16 million users since 2013.  Ja2098–99 (¶¶ 9–10), Ja2103–04 (¶ 18).  Both [...] and [...] SHORT are designed to provide “market participants [with] the [...]’s market-wide collection of information and documents for . . . municipal Variable Rate Demand Obligations (VRDOs).
[brief] . . .  The purpose of the APA rulemaking procedures is ‘to give those affected by the proposed rule an opportunity to participate in the process, both to ensure fairness and also to inform regulators of consequences which they may not have anticipated. ’”  [In re Provision of Basic Generation Serv., 205 N.J. at 349.]  “The APA’s section on rulemaking notice and opportunity to comment has specific requirements.
[brief] ”  *Hartmann v. Police Dep’t of Ridgewood*, 258 N.J. Super. 32, 40 (App. Div. 1992).  In this regard, the concept of progressive discipline should be considered in addition to the underlying conduct when appropriate.  *West New York* v. Bock, 38 N.J. 500, 527-28 (1962).  But progressive discipline is not universally applied.  In re Herrmann, 192 N.J. 19, 36 (2007).  In fact, some offenses are so egregious in nature that removal is appropriate regardless of the employee's prior disciplinary history.  Ibid.; see also Carter, 191 N.J. at 483.  Stated differently, the imposition of the penalty of removal is appropriate, regardless of the employee’s disciplinary history, when the underlying nature of the conduct is sufficiently egregious.  Carter, 191 N.J. at 484; Henry, 81 N.J. at 575; West New York, 38 N.J. at 519.
[brief] Trial began in May 2011 and continued for 207 non-consecutive days through March 2013.  On March 27, 2012, the [...] moved to dismiss [...]’s Amended Complaint and [...]’s Complaint at the close of Plaintiffs’ case.  (7466a).  [...] refused to hear the motion until December 2012, by which time virtually all the evidence had been presented.  At that point, [...] denied the motions.  (198T; 199T).  Following the 207 trial days, [...] declined the parties’ offers to submit proposed findings of fact and conclusions of law.
[brief] ”  Id. at 352 (quotations omitted).  Moreover, the Court made clear that “[t]he burden of proof is on the State to establish by clear and positive testimony that the consent was so given. ”  Ibid.  Application of these general principles must be done on a case-by-case basis.  Ibid.  To guide that case-by-case analysis, the King Court noted that “there have evolved a number of factors which courts have weighed in determining whether acquiescence to a search has been voluntarily given. ”  Ibid.  Factors indicating coercion include: (1) consent obtained after arrest; (2) consent obtained despite a denial of guilt; (3) consent obtained after refusing initial requests; (4) the subsequent search resulted in contraband; and (5) consent obtained while handcuffed.
[brief] And as was argued by, I believe, [...] in his paperwork, to draw a -- from similar state law case or state law -- state law, with respect to the discovery tolling of a statute of limitations in, for instance, a medical malpractice case, that's when the defendant -- or excuse me -- the plaintiff knew or should have known that malpractice potentially was committed upon him.  And in this case, the defendant the plaintiff, I should say, [...] was sitting in court when he was advised that he was being found not guilty.
[brief] Ways, 180 N.J. at 187.  Prongs one and three of the new-trial test are “inextricably intertwined. ”  State v. Nash, 212 N.J. 518, 549 (2013).  “Material evidence is any evidence that would ‘have some bearing on the claims being advanced. ’”  Ways, 180 N.J. at 188 (quoting State v. Henries, 306 N.J. Super. 512, 513 (App. Div. 1991)).  “Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial. ”  Id. at 187-88.  Here, defendant cannot satisfy any of the prongs of the new-trial test, let alone all three.  The evidence in question could have been discovered at any time before or during trial with the exercise of reasonable diligence.  But even if defendant had found the evidence before trial, it was not material because it either did not shed light on defendant’s authority to sell shares in [...] or was cumulative of evidence presented at trial.  Moreover, the trial court ignored evidence that strongly suggested that some of the “new” evidence was fabricated.  Therefore, this Court must vacate the order granting defendant a new trial and reinstate the jury’s verdict.
[brief] New Jersey law does not permit the Intervenor to pursue an appeal directly against [...].  Intervenor seeks to affect rights under an insurance policy to which he is a complete stranger, despite the fact that the insured, [...] (“[...]”), has made clear that it will not pursue an appeal.  Thus, this appeal amounts to a direct action that is prohibited under the New Jersey Direct Action Statute, N.J.S.A. 17:28-2.  Substantively, Intervenor’s appeal necessarily fails.
[brief] ..............................................19  Hamilton v. Gen. Motors Corp., 490 F.2d 223 (7th Cir. 1973) .....................................30  In Re: Camden County, 170 N.J. 439 (2002)  ..................................................25  In re PMD Enters., 215 F. Supp. 2d 519 (D.N.J. 2002) ...............................29-30  In Re: Six Month Extension of N.J.A.C. 5:91-1 et seq., 372 N.J. Super. 61(App. Div. 2004)  .............................25  State v. Allison, 208 N.J. Super. 9 (App. Div. 1985)  .............................35  State v. Hutchins, 241 N.J. Super. 353 (App. Div. 1990) .........................34-35  State v. Jones, 346 N.J. Super. 391 (App. Div. 2002) .........................34  Vill. of Ridgewood v. Shell Oil Co., 289 N.J. Super. 181 (App. Div. 1996) .........................18-19, 24 Zirger v. Gen. Accident Ins. Co., 144 N.J. 327 (1996)  ..................................................33  STATUTES & RULES