ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] A.  If Watson’s Holding Precluding First-Time In-Court Identifications Is Found To Be A New Rule, It Should Be Afforded At Least Pipeline Retroactivity.  The first question in retroactivity analysis is whether the cited legal proposition constitutes “a new rule of law. ”  State v. G.E.P., 243 N.J. 362, 382 (2020) (quoting State v. Feal, 194 N.J. 293, 307 (2008)).
[brief] Some – like the economic loss doctrine, the statute of limitations, and the failure to satisfy a pre-suit demand for conversion – were never raised below.  Most of the other issues the appellants raise inappropriately ask this Court to recast itself as a finder of fact, quibbling with weight of the evidence.  Over and over, the appellants argue that the trial court erred because the proofs at trial failed to establish a right to relief.  What appellants continually ignore, however, is that the trial court had a full opportunity to weigh the evidence offered by all parties.  It judged the demeanor of the witnesses who testified to determine their credibility.  In fact, the appellants say nothing at all about the trial court’s finding that the Plaintiffs’ principal witnesses, [...] and [...], were credible, or its finding that there was “no meat” to the defense’s explanations.  Ultimately, the trial court weighed the evidence and correctly decided virtually all of the issues before it, save one: pre-judgment interest.  The trial court identified nine discrete instances when the principal defendant, [...], in concert with his wife and the other defendant entities, misappropriated funds from two defendant companies in which the Plaintiffs had an interest: [...]  (“[...]”) and [...] (“[...]”).  Each misappropriation for which the trial court awarded damages to Plaintiffs was tied to a specific date and transaction for which Plaintiffs showed that money flowed from [...] or [...] to the [...]’ own personal bank accounts or other accounts for entities they owned or controlled.  Based on these findings, the trial court should have assessed $838,810.40 in pre-judgment interest based on the defendants’ use and enjoyment of these funds.  Instead, the trial court only awarded $190,480.68 in interest, calculated from the commencement of suit.  In doing so, the lower court abused its discretion.  That discrete portion of the judgment should therefore be reversed.  COUNTER-STATEMENT OF FACTS AND PROCEDURAL HISTORY
[brief] “[B]oth the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged. ”  Branch, 182 N.J. at 350, 865 A.2d 673 (citing State v. Bankston, 63 N.J. 263, 268–69, 307 A.2d 65 (1973)).  Our Supreme Court's frequently cited decision in Bankston lays the foundation for our analysis.
[brief] \textsuperscript{14}  To provide sufficient notice to a plaintiff, an affirmative defense requires a "statement of facts constituting an avoidance or affirmative defense and not merely by legal conclusion." \textsuperscript{15}  “A responsive pleading shall set forth specifically and separately a statement of facts constituting an avoidance or affirmative defense .  . . .”\textsuperscript{16}  Did the affirmative defense “set forth specifically ... a statement of facts constituting [the] affirmative defense” sufficient to be taken seriously by plaintiff? \textsuperscript{17}  The reason a defendant must plead “facts” supporting an affirmative defense is “to avoid surprise” to the plaintiff so they may promptly take action to counter the defense – be it via the taking of depositions, the issuance of records subpoenas or the propounding of paper discovery tailored to determine the facts  \textsuperscript{13}  See, e.g., \textit{Hill v. Board of Educ. of Middletown Tp.}, 183 N.J. Super. 36, 40 (App. Div. 1982)(defendant failing to plead TCA defense "may be found to have waived the protection thereof"); \textit{Buteas v. Raritan Lodge #61 F. & A.M.}, 248 N.J. Super. 351, 363-64 (App. Div. 1991)(explaining a defendant who fails to plead an affirmative defense ordinarily waives it).
[brief] Such extraneous matters, require the motion to dismiss be denied as one seeking summary judgment under Rule 4:46-2.  The complaint should have been permitted as the statutes of limitations governing Fiberville claims were not affected.  Both breach of agreement, fraud, and issues pertaining to the security deposit are covered by the six year limitations, which apply as of the time of breach.  See N.J.S.A. § 2A:14-1.  The six year period would have begun to run when the defendant apparently re-sold plaintiffs’ rights to plaintiffs’ competitors in 2017-18.  Thus, for this reason, defendant did not even bother to invoke the statute of limitations as a basis for relief.  The case law guiding amendments provide that amendments shall be freely granted with liberality.
[brief] (3T.19:4-25, 3T.20:1-17)  [...] applied to the CRB in accordance with Hoboken Code Section 36-1 et. seq.  [...] was required to first file an application with the CRB in order to obtain an endorsement from the CRB to operate a business as a cannabis retailer within the City of Hoboken.  Section 36-4 of the Hoboken Code also requires the CRB to “provide an endorsement, or report to the contrary, to the land use board of jurisdiction prior to the Applicant’s submission of a conditional use application to the Board. ” (M-Da357).  The Hoboken Cannabis Ordinance in effect when the Applicant applied to the CRB did not contain a requirement that a retail cannabis dispensary be located a certain distance away from a primary or secondary school or from an early childhood learning facility.  Subsequently, while [...] application was pending before the CRB, Hoboken adopted Ordinance No. B-446 which Ordinance amended Section 196-33.1 “Cannabis” of the Hoboken Code.  More specifically, the Section of the Ordinance that is applicable to [...]’ application is Section 196-33.1I which among other things provides the following amendment:  “in no case shall a cannabis retailer or dispensary be located on the same block frontage as a primary or secondary school, nor shall it be located within 600 feet in all directions of any primary or secondary school or located directly adjacent to any early childhood learning facility. ”  Hoboken Ordinance No. B-446 was adopted on April 6, 2022 and signed by [...] on April 8, 2022 which Ordinance then went into effect on April 28, 2022.
[brief] See, e.g., Buono v. City of Newark, 249 F.R.D. 469, 470 n.2 (D.N.J. 2008) (recognizing the “public policy interest in ensuring that high level government officials are permitted to perform their official tasks without disruption or diversion”); accord Hyland v. Smollok, 137 N.J. Super. 456, 460 (App. Div. 1975) (“[H]igh-level government officials, should not be deposed, absent a showing of first-hand knowledge or direct involvement in the events giving rise to an action, or absent a showing that such deposition is essential to prevent injustice. ”).  And, in some circumstances, the records at issue may contain discussions of matters so sensitive—like internal affairs issues—that release even to the custodian for purposes of review intrudes on their confidentiality.  See New Jersey Internal Affairs Policy and Procedures (“IAPP”) Manual § 9.5.1 and .2 (requiring “[t]he list of those authorized to access these files must be kept to a minimum”).  These concerns are only exacerbated by the trial court’s order requiring [...] to produce a Vaughn index detailing all emails redacted or withheld.  Our Supreme Court has readily recognized that there are circumstances where even the production of a Vaughn index would be problematic and reveal privileged information.  See N. Jersey Media Group v. Bergen Cnty. Pros. Office, 447 N.J. Super. 182, 192 n.2 (App. Div. 2016) (citing Loigman v. Kimmelman, 102 N.J. 98, 111 (1986)).
[brief] In Karan, the Court determined that "just compensation" for the partial taking of a permanent beach dune easement on private property must consider the quantifiable increase in property value from the storm protection benefits of the overall dune barrier project itself as an off-set to any diminution in the value of the remaining property from loss of ocean view.  In addition to considering loss of ocean view, the Court indicated that a rational buyer would likely place a value on the protection that the dune barrier project provides to the remainder from storm damage.  The Court determined that the quantifiable project benefit of the dune barrier project must be considered, regardless of whether others in the community enjoy the same benefit to a lesser or greater degree.  The Karan Court discarded the often misunderstood and misapplied terminology of special benefits and general benefits and instead refocused the benchmark of just compensation on the concept of fair market value, taking into account the positive and negative impacts of the overall public project. \(^3\)  Karan no longer limits damages in a partial taking to the taking and instead instructed that just compensation is to consider project impacts.
[brief] ......................................................................................10  W.H. Industries, Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super 455 (App. Div. 2008)  ............................................................11, 12 Statutes 28 U.S.C. § 1446(d) .......................................................................................14,15  Rules R. 1:3-4(c) ........................................................................................................12, 13 R. 4:49-2 ........................................................................................................passim TABLE OF ABBREVIATIONS
[brief] Bank then wired from [...]’s checking account $18,900.00 to someone unknown to [...], charging a $25.00 wire transfer fee.  A notation on [...]’s bank statement reads:  8/7/23 WT FED# 08134 Metropolitan COMME/FTR/BNF = [...]  SRF # OW00003499082556  TRN# 230807175817 RFB# OW00003499082556.  [...] is unaware of the notation’s meaning or to whom the funds were transferred.  (Pa 136 - 137, Par. 11).
[brief] As the plethora of caselaw cited in [...]’s merits brief explains, a R. 4:50-1 motion is not a substitute for a timely appeal of the final judgment.  Where a party does not timely appeal the final judgment, advents in case law do not entitle a party to vacate a judgment under R. 4:50-1(f).  See, e.g., Ross v. Rupert, 384 N.J. Super. 1, 6 (App. Div. 2006) (refusing to apply new published precedent in the context of a R. 4:50-1 motion, where the party seeking relief failed to timely appeal the entry of summary judgment); Camacho v. Camacho, 381 N.J. Super. 395 (Law Div. 2005) (same).  This is because issuance of a new case is never a valid basis for relief from judgment under R. 4:50-1(f).  Hartford Ins. Co. v. Allstate Ins. Co., 68 N.J. 430, 434-35 (1975).  This bright-line rule is necessary because, otherwise, “[t]here would be no discernable basis for drawing any line in time between those to be barred and those to be relieved” from operation of the judgment.  *Id.* at 435.  As in all of the preceding examples, Defendants here did not timely appeal the entry of final judgment.  They instead filed a R. 4:50-1 motion, and we are on appeal from an order denying such relief.  Accordingly, under *Hartford* and its progeny, Defendants are not entitled to have *Tyler* applied to this case.  Respectfully yours, [Signature]
[directive] When the respondent is a law enforcement officer, the Act provides an alternative procedure that does not permit the petition to be filed with the court until the conclusion of an internal affairs investigation and a determination by the county prosecutor to file a petition with the court.  Specifically, N.J.S.A. 2C:58-23(I) provides in part:  (1)  A petition for a temporary extreme risk protective order filed against a law enforcement officer shall be filed in the law enforcement agency in which the officer is employed.  The law enforcement officer or employee receiving the petition shall advise the petitioner of the procedure for completing and signing a petition.  (2)  Upon receipt of the petition, the law enforcement officer's employer shall immediately initiate an internal affairs investigation.  (3)  The disposition of the internal affairs investigation shall immediately be served upon the county prosecutor who shall make a determination whether to refer the matter to the courts.  As such, if a family or household member comes to the Superior Court to file a petition  However, staff will provide the against a law enforcement officer, staff cannot file that petition.
[brief] The Defendants have not alleged, nor can they, that any of these instructions were inappropriate, that the Trial Court’s Order inadequately addressed the requirements for the hearing, or that the SHO failed to adhere to those carefully detailed instructions.  i.  [...] Provided the Requisite Public Notices and the Public Was Afforded Every Opportunity to Participate in the Hearing  Among other things, Defendants’ briefs suggest that the SHO procedures somehow gave short shrift to the ability of the public to be heard.
[brief] Pa505  Exhibit B to [...]’ Certification  Unsigned undated Order finding plaintiff guilty of offense  Pa507  Exhibit C to [...]’ Certification  Undated Order finding [...]  Guilty with Signature on Judge’s signature line (Attached at Pa168)  Exhibit D to [...]’ Certification Certification of Disposition from [...] regarding [...] dated 5/17/2022 (Attached at Pa467)  The signature lines for the trial judge and defendant are not visible but they are unsigned by both Exhibit E to [...]’ Certification Letter to Administrator from Honorable [...] Regarding Order to Dismiss Appeal, dated 4/22/2022 (Attached at Pa321)  Order Dismissing Appeal - Quasi Criminal Proceeding Filed 4/22/2022 (Attached at Pa319)  Civil Case Information Statement to [...] Pa508  Certification of Eldridge [...], 9/26/2023
[brief] *Szuts, supra*, *Food Handlers, supra*, *El Vocero, supra*.  Likewise, the Chancery Court’s reliance on *Barcon v. TriCounty Asphalt Corp.*, 86 N.J. 179 (1981) for the proposition that Courts should minimally interfere with arbitration decisions was incorrectly analyzed.  (3T88:18-25)  In *Barcon* the Supreme Court recognized both the power of judicial review of awards on statutory grounds and to ensure the fairness of the process.  In that case the ground raised for vacatur was the bias of the arbitrator, who had not disclosed business dealings with one of the parties.  *Id.* at 184-185.  The trial court vacated the arbitration award on that statutory ground.  The Appellate Division affirmed and the Supreme Court agreed vacatur was required.  Although arbitration originates in the contract of the parties and is a process which may operate without any court involvement, we reject the notion, repeatedly asserted by the dissent, that the parties' contract should prevail over all other considerations.  In particular, we give priority to the need to maintain the integrity of arbitration and public faith in the process.  The dissent objects that our holding today disregards "the paramount public policy consideration" of encouraging "voluntary arbitration as a means of resolving commercial disputes informally, expeditiously, relatively inexpensively, and in a manner that relieves our overburdened judicial resources," post at 210.  However, it is our strongly held view that honest, fair and impartial arbitration is as important as the finality of arbitration.  [Id. at 189].  At minimum, Barcon showed the Chancery Court did have the power to review the statutory ground for vacatur [...] cited; i.e. that the arbitrator exceeded his powers because the rules of the parties’ arbitration agreement were not followed.
[brief] Later cases inform that concept.  In *Willoughby v. Planning Board of Township of Deptford*, 326 N.J. Super. 158 (App.Div. 1999), a 30 acre vacant parcel had been the source of controversy during the 1986 Master Plan.  The then owner sought to have the property rezoned into the adjacent Town Center (TC) Zone, and integrated in a proposed shopping center in that Zone.  After opposition from nearby residents, the Township Council denied the rezoning request and the property was zoned, consistent with the Master Plan, as Office Campus (OC).  In 1995, new owner [...] again sought a Zone change from OC to TC, to allow a mixed use development with retail stores.  The Planning Board recommended that change to the TC Zoning.  The Governing Body then adopted the Rezoning Ordinance to change from OC to TC; both the Planning Board and the Governing Body having approved the change as consistent with the Master Plan.  Neighbors challenged the TC rezoning; the core issue being that the TC zoning was not substantially consistent with the Master Plan.  The Trial Court ruled that the TC rezoning valid.  On appeal, the Appellate Court engaged in a detailed analysis reviewing the Master Plan and Land Use Element with the TC Zone.  The Court found the zoning change simply was not contemplated or consistent with the Master Plan.  Any similar analysis by this Court as done in Willoughby must certainly conclude the Redevelopment Plan here is substantially inconsistent with the specifics of the 1988 Master Plan land use plan, as detailed in the [...] (Pa300).
[brief] BRIEF  On the brief and of counsel: [...], Esq.  (042741990)  [...]  [...]  [...], Esq.  (027982008)  [...]  [...]  [...], Esq.  (909162012)  [...]  [...]  POINT I: THE CONCEPT OF GRADUAL INTRODUCTION AS AN EXCUSE FOR FAILURE TO IMPLEMENT  AN AVAILABLE SAFER DESIGN, RAISED FOR THE FIRST TIME BY AMICUS, HAS NO APPLICATION TO THIS CASE.  1  CONCLUSION
[brief] Defendant also cites *P.T. v. M.S.*, 325 N.J. Super. 193 (1999), another family law matter (parental reunification with a child).  In *P.T.*, the Appellate Division found the “judge’s statements went considerably beyond what was needed or necessary to resolve the issue at hand and cast doubt upon the realistic possibility of an impartial hearing the same judge on remand. ”  *Id.*, at 200.  Once again, the Appellate Division specifically directed that the matter be reassigned on remand.  In stark contrast, the Trial Court did not make any “statements” or determinations beyond what was necessary in any of the pre-trial, trial, or post-trial proceedings, nor does the Defendant make any such claim.
[brief] Id. at 495.  In this case, [...] is not immune from liability to plaintiff for contributing to the installation of defective lighting in the subject intersection, which created a hazard, which was foreseeable and could have been remedied with proper inspection.  Consistent with the holding in Weinberg, supra, [...] had the duty to pedestrians like plaintiff to provide streetlights with sufficient illumination for a crosswalk, especially one that is designated a dangerous intersection.  That duty is not based on regulation alone, the applicable Tarriff, or any contractual relationship between [...] and [...]; and it is not based on opinions of experts.  Rather, as seen in Weinberg, supra, it is based on the common law of negligence.  Consistent with Weinberg, supra, [...] breached its duty to provide adequate lighting in the subject intersection.  It was known or should have been known by [...], which performed services all over [...], and undoubtedly at or near the subject intersection that the intersection was designated a dangerous intersection by the [...].  Minimal inquiry and efforts by [...] could have ensured that illumination in the area was adequate.  That duty was breached by [...] that relegates all responsibility for sufficient lighting to [...].  [...]’s representative engineer admitted at deposition that [...] takes no steps whatsoever to ensure adequate lighting anywhere in [...] until it is called upon to do so by someone in the [...].  Any reasonable inspection of an area classified as dangerous would have led [...] to realize, as testified by [...], that the subject streetlight had a poor history of continuous operation.  He testified that, even before the accident, regardless of complaints made to [...], the light was more off than on.  Even after repair by [...], until the time of [...]’s deposition, the light coverage continued to be erratic at best.  [...]’s duty is further enhanced by its own obligation under its agreement with [...].  Section 2.5 of the [...] Tariff obligates it to recommend “appropriate option based on the customer’s needs. ”  A simple inquiry would have led [...] to the knowledge that the “need” for lighting in this scenario was to illuminate an intersection deemed a dangerous intersection.  As such, [...] would not, could not, recommend a streetlight with 0.0 foot candle illumination!  Furthermore, [...] cannot escape liability for hiding behind the Tariff, which placed the ultimate selection of lamps on the customer, with the language that [...] “assumes no responsibility, nor shall it incur liability. ”  This is because, pursuant to Weinberg, supra, liability is not based on contract, Tariff, or even regulation, but it is based on the common law of negligence.  B.
[brief] I.  **THE DEBT**  On or about December 5, 2018, [...] (“[...]”) issued Appellant an open-end credit card bearing account number ending in 6103 (the “Account”).  (Pa1-Pa2).  At the same time, and in connection with the Account, Appellant entered into a Card Agreement (the “Agreement”), containing an explicit arbitration agreement (the “Arbitration Agreement” and together with the Agreement, the “Cardholder Agreement”), setting forth the terms of, and the parties rights in connection with, the Account.  (Pa136-Pa146).  On or about December 5, 2018, the Cardholder Agreement, containing the Arbitration Agreement, was mailed by [...] to Appellant with the credit card for the Account.  (Pa132).  Appellant received the Cardholder Agreement by mail, accepted same, and proceeded to use the Account.  (Pa 133, Pa 136-Pa146, Pa 148-Pa161 & Pa167).  Appellant made periodic payments on the balance incurred on the Account until June 17, 2019.  (Pa 167).  Thereafter, Appellant made no further payments on the Account.  Id.  The Account was charged off on December 18, 2019.  Id.; (Pa133).  Notably, the Cardholder Agreement remained unchanged during the pendency of the Account as well as after the Account was charged off and all rights and interests in the Account were transferred to and among the Respondents, as is detailed below.  (Pa164-Pa171).  II.
[brief] C.  ISSUANCE OF THE US FIRE POLICY  [...] relied upon the information provided by [...] in the Supplemental Form in order to bind coverage.  (Ia078 at ¶26; Ia124; Ia134 at 62:23-64:3; Pa002).  Specifically, [...] underwrites policies for [...] pursuant to a set of underwriting guidelines.  As [...]’s principal testified, “[t]he underwriting guidelines are the instructions from [...] on what we can and cannot insure. ” (Ia078 at ¶ 27; Ia131 at 17:7-12).  The underwriting guidelines provide that non-owned/hired auto coverage is available at the following limits: $150,000, $500,000, or $1,000,000.  (Ia079 at ¶ 28; Pa008).  Importantly, the underwriting guidelines explicitly state that “*12 or 15 plus passenger vans are ineligible for this program. ” (Ia079 at ¶ 29; Pa008).  In the Supplemental Form, which [...] specifically filled out for the purpose of obtaining and non-owned/hired auto coverage, [...] stated that it did not hire or rent 12-15 passenger vans.  (Ia079 at ¶ 30; Ia097 at 64:4-11; Ia143.)  Relying on this inaccurate and material information in the Supplemental Form, US Fire issued certificate number [...], to [...] as a named insured member under master policy number [...], which was issued to [...] (together, the “US Fire Policy”).