ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (Db3).  In all the cases in which a consumer has been held to the terms of a contract because he knowingly signed a document whether by hand or electronically, without reading it, the consumer knew or should have known that was the affect of the signature.  In this case both [...] and the Trial Court conclusively presumed that because the relationship between the consumer and bank is one of debtor and creditor usually governed by contract, the consumer must know by common knowledge that anything he signs when he opens the account is or could be a contract or other document, binding him to a deposit agreement with an arbitration clause without being advised by the Bank that is what he is signing.  The burden completely falls upon the consumer to make inquiry as to what he is signing because of that common knowledge.  (Db3).  In other words, caveat emptor.  [...] and the trial judge’s position simply stated, is that it does not matter whether [...] knew what he was signing or that the Bank failed to advise him of such, because common knowledge dictates he should have known he was signing a contract when he signed the iPad.  If he didn’t know, his failure to ask what he was signing results in a fait accompli.  No case, holding, statute or other evidence was cited by [...] or the trial court to support this conclusion.  Signing an iPad without more just because a consumer opens a bank account without receiving any documents at the time of the signing or thereafter (which is what the record in this matter supports) does not result in the mutual assent necessary for the formation of an arbitration or other agreement.
[brief] THE POSTJUDGMENT INTEREST RATE IS THE LEGAL RATE PRESCRIBED BY R. 4:42-11(Da188; T28-19 to 20)  A.  The Foreclosure Judgment States That The Postjudgment Interest Rate Is The Legal Rate  On two separate occasions, plaintiff submitted its proposed form of final foreclosure judgment requesting that the postjudgment interest rate be “lawful interest. ”  Da20; Da43.  After the [...] withdrew their two objections to plaintiff’s second motion which were unrelated to the postjudgment interest rate, [...] entered the final judgment with the postjudgment interest rate requested by plaintiff, i.e., “lawful interest”.  Da62.  “Lawful interest” means interest at the legal rate prescribed by R. 4:42-11.  See Brinkley v. Western World, Inc., 281 N.J. Super. 124, 129-131 (Chan. Div. 1995), aff’d, 292 N.J. Super. 134 (App. Div. 1996).
[brief] This Court applies a *de novo* standard of review to a Trial Court order dismissing a complaint under R. 4:6-2.  *Arsenis v. Borough of Bernardsville*, 476 N.J. Super. 195, 205 (App. Div. 2023).  The appellate decision is governed by the same standards as applied by the Trial Court.  *Donato v. Moldow*, 374 N.J. Super. 475, 483 (App. Div. 2005).  In determining the adequacy of a pleading under R. 4:6-2(e), the Court must only determine if a cause of action is "suggested" by the facts.  Printing Mart v. Sharp Electronics, 116 N.J. 739, 746 (1989) quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988).  The Court "searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary. ”  Id., quoting DiCristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957).  A motion to dismiss brought under R. 4:6-2(e) at the onset of litigation has “extraordinarily limited range” and “is granted only in the rarest instances. ”  Geyer v. Faiella, 279 N.J. Super. 386, 389 (App. Div. 1995), certif. denied, 141 N.J. 95 (1995).  Additionally, if such a motion is granted, it should be without prejudice.  Ibid.  “At this preliminary stage of the litigation the Court is not concerned with the ability of [Plaintiff] to prove the allegation[s] contained in the complaint. ”  Ibid.  All allegations pled in the Complaint here are assumed true, and Plaintiff is entitled to "all reasonable factual inferences that those allegations support."  F.G. v. MacDonell, 150 N.J. 550, 556 (1997).  "If a generous reading of the allegations merely suggests a cause of action, the complaint will withstand the motion."  Ibid.  Under this standard, the Court’s examination of the allegations contained in Plaintiff’s Complaint is “at once painstaking and undertaken with a generous and hospitable approach. ”  *Printing Mart*, 116 N.J. at 746.  The Court’s test at this preliminary stage of the litigation is simply “whether a cause of action is suggested by the facts. ”  *Green v. Morgan Props.*, 215 N.J. 431, 451-52 (2013).  Under this extraordinarily strict standard, the Trial Court erred when it dismissed with prejudice Plaintiffs' Complaint and denied their motion for leave to amend their Complaint.  For the reasons set forth below, this Court should grant Plaintiffs' appeal and remand this matter for the completion of discovery and trial.
[brief] Post Azurak, in 2006 the Appellate Division examined a similar provision to Mautz that imposed a duty to indemnify for claims or losses “to the extent caused” by the indemnitor’s acts or omissions described “regardless of whether it is caused in part by a party indemnified hereunder. ”  Englert v. [...], 389 N.J. Super. 44, 56 (App. Div. 2006)(emphasis added).  After considering Mantilla, Leitao, and Azurak amongst others, the Appellate Division concluded, contrary to Mautz, that the subject provision was not unequivocal and did not require indemnification for the indemnitee’s own negligence.
[brief] See Official Comment to R. 702.  Perhaps realizing the clear impropriety of advancing [...] as an “expert,” plaintiffs apparently attempt to characterize his testimony as admissible lay opinion.  That is governed by N.J.R.Evid. 701, which states:  If a witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences may be admitted if it: (a) is rationally based on the witness’ perception; and (b) will assist in understanding the witness’ testimony or determining a fact in issue.  Perception under R. 701 has a well-defined meaning: “the acquisition of knowledge through use of one’s sense of touch, taste, sight, smell or hearing. ”  State v. McLean, 205 N.J. 438, 456-57 (2011); accord, Velazquez v. City of Camden, 447 N.J. Super. 224, 236-37 (App. Div. 2016) certif. denied, 228 N.J. 458 (2016) and Gonzales v. Hugelmeyer, 441 N.J. Super. 451, 460 (App. Div.2015), certif. denied, 223 N.J. 356 (2015) (applying the same definition in civil actions.)  Examples of perception-based testimony include estimating the speed of a vehicle by visual observation or hearing, estimating distance via observation, describing some as intoxicated from observing their movements and conduct, and the witness testifying about the value of their personal property.  *State v. McLean*, 205 N.J. 438, 457 (2011) and authorities cited.  In sum:  “Lay opinion testimony, therefore, when offered either in civil litigation or in criminal prosecutions, can only be admitted if it falls within the narrow bounds of testimony that is based on the perception of the witness and that will assist the jury in performing its function. ”  *State v. McLean*, 205 N.J. at 456.  This is not what plaintiffs propose here.  [...] would not testify as to what he saw or heard.  Instead, he would testify as to opinions and conclusions – that is, as an undisclosed expert.  The Rules of Court bar such concealment and gamesmanship.
[brief] The substantial evidence presented does not support the final agency determination made by the [...].  Substantial evidence has been defined alternately as "such evidence as a reasonable mind might accept as adequate to support a conclusion," and "evidence furnishing a reasonable basis for the agency's action."  Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (citations omitted).  The Board’s determination references a “presumption” that mail properly addressed with proper postage was received by the party it was addressed to.  However, [...] certified in an affidavit provided to the Board that he never received a postcard from the Division, regardless of if it was ever sent.  This affidavit should overcome any presumption that the postcard was received.  The Board’s decision failed to consider the almost one hundred affidavits of other active and retired troopers who also did not receive a postcard from the Division notifying them of the Ricci Act that were submitted to the Board in support of [...]’ appeal.  As such, the finding that it was “undisputed” that the Division sent the postcard to [...] (and others) is not supported by the facts and evidence presented.  Furthermore, any presumption claimed by the Board has clearly been rebutted by the overwhelming evidence presented in this matter.  Considering the evidence presented, the agency’s action does not have a reasonable basis.  Additionally, the Board failed to consider the evidence presented demonstrating that Registrations Forms submitted were not accepted by the Division because the Trooper(s) who submitted them were not sick at the time the Registration Form was sent.  [...] attempted to file an Eligibility Registration Form back in September of 2019.  [...] was denied the ability to register because he was told the Ricci Bill “is for those who are currently sick.  Not for possible future illnesses. ”  Pa115.  The Board also failed to consider the evidence presented regarding the [...] membership polling.  [...], President of the [...], polled his membership to ascertain whether anyone received notice of the Ricci Act.  Of the fifty-nine (59) [...] members (retired troopers) who responded to the polling, fifty-seven (57) did not receive any notice of the Ricci Act.  The Board ignored the evidence from this polling when making its determination.  In light of all of the evidence presented on [...]’ behalf, a reasonable mind could only conclude that these postcards were never received.  Without proper notice, [...] should have been permitted to register for the Ricci Act.  Therefore, the determination below should be reversed because it is against the substantial weight of the evidence.
[brief] We typically never had a situation like that, so it was unusual. \(^5\)  Once we’re enrolled in a CCIP, everything — or OCIP, everything is included.  So this was an unusual circumstance that we were being asked, so my understanding was that the [...] was covered by the CCIP and that this work was just additional.  [Dta1289, T34-1 to -24 (emphasis supplied). ]  [...] also testified that [...]’s letter confirmed [...]’s belief in its continued enrollment:  THE WITNESS:  [[...]] received [correspondence] that we were accepted into the CCIP program.  We received that confirmation e-mail.  So based on my conversations in the previous e-mails that just this work in August was to be excluded, that made sense to me because going forward, we were working at the [...] site where they were building the [...].  So, to me, we were included.  Why would I receive a welcome letter and that we were enrolled in it after all of this?  And now we were bidding other work.  So coincide that with the proposals and that acceptance letter — and our insurance certs were going out as though we were enrolled in the CCIP.  The language was on it.  And no one ever told us any different after that point.\(^6\) [Dta1290-1291, T78-3 to 79-7 (emphasis supplied).
[brief] Rule 3:22-5 also bars PCR for any ground previously adjudicated in a prior proceeding.  PCR will be barred if the issue presented is “substantially equivalent” to an issue raised in a prior petition.  McQuaid, 147 N.J. at 484 (quoting Picard v. Connor, 404 U.S. 270, 276-77 (1971)).  The key question is \(^{11}\)  Although the Appellate Division’s decision was unpublished, it should preclude defendant from re-litigating the same issue in this petition.  Matter of Adoption of Amendments to N.J.A.C. 11:22-1.1, 459 N.J. Super. 32, 39 (App. Div. 2018); R. 1:36-3.  \(^{12}\)  See Strickland v. Washington, 466 U.S. 668, 687 (1984).  whether a court “had a fair opportunity to consider the . . . claim and to correct that asserted constitutional defect . . . .”  Picard, 404 U.S. at 276.  Although defendant has refashioned his claim as a Brady issue, this Court has already concluded that [...]’ habeas petition is not material evidence, which, if introduced at trial, would have been likely to change the outcome of defendant’s case.  It should also be re-emphasized that defendant did, in fact, raise this same Brady claim in a reply brief in support of his first amended PCR petition.  (Pa184-85).  There is nothing both new and of consequence for this Court to decide.  As such, defendant’s Brady claim is barred under Rule 3:22-5.  For over a decade, defendant has attacked the credibility of [...] as the State’s star witness at defendant’s 2009 trial in various motions and appeals.  Each time, trial judges and this Court have reached the same conclusion: defendant’s jury knew that [...] was a liar based on his inconsistent testimony at trial, but they believed [...] anyway because much of [...]’ testimony was corroborated by other evidence and testimony.  C.
[brief] ”  *Galik v. Clara Maass Med. Ctr.*, 167 N.J. 341, 356 (2001) (quoting *Mayfield v. Cmty. Med. Assocs., P.A.*, 335 N.J. Super. 198, 207 (App. Div. 2000)).  The Trial Court in deciding an entire controversy dismissal motion must first determine from the competent evidence before it whether a *Rule 4:5–1(b)(2)* disclosure should have been made in a prior action because a non-party was subject to joinder pursuant to *Rule 4:28* or *Rule 4:29–1(b)*.
[brief] In response to the widespread level of non-compliance still within the state, the Supreme Court of New Jersey in *Mount Laurel II* looked to clarify and reaffirm the constitutional mandates set forth in *Mount Laurel I. S. Burlington County NAACP v. Mount Laurel*, 92 N.J. 158 (1983).  One essential way the court did this was by shedding more light on the builder’s remedy process.  The court began by describing the remedy as “one of many controversial aspects of the Mount Laurel doctrine. ”  92 N.J. at 279.  Despite this, the opinion continued by explaining that the general experience since [...] “demonstrated […] that builder’s remedies must be made more readily available to achieve compliance with Mt. Laurel.
[directive] Victims are the people behind crime statistics.  They are the individuals who suffer the injuries inflicted by criminals and who reveal the existence of crime when they report it.  Victims are the key to apprehending criminals and the justification for the State's subsequent prosecution.  Unfortunately, there are many problems, inequities and inconveniences that victims and witnesses encounter when they become involved in the criminal justice system.  These problems exist in every jurisdiction in the State.  Leaving aside the direct consequences of the crime itself and considering only the victim's subsequent involvement with the criminal justice system, the following are examples of the problems faced by many crime victims:  Official indifference concerning retrieval of stolen property and advice about victim compensation; Insensitive, perfunctory questioning; Uncomfortable and insecure accommodations at the police station or in the courthouse, often involving close proximity to defendants; Lack of clear, lay explanations of proceedings and decisions during and after the case; Fear resulting from real or imagined intimidating threats and acts by defendants; Lack of specific procedures to assist special victim populations (i.e., elderly, children, victims of bias incidents).  Aside from the problems above, there are many more.  While there are no quick remedies, the time has come after twenty-five years of judicial decisions and statutory enactments fully implementing the constitutional rights of the criminal defendants for the rights of crime victims to receive practical implementation.
[brief] As set forth below in the Certification of [...], a very respected professional planner in the field of affordable housing, quoted extensively in the Plaintiffs’ initial Brief:  13.  African American and Hispanic households are a disproportionately high percentage of the low and moderate income population.  This fact is illustrated by the 2016-2020 ACS data that provides the following median income data:  | Race/Ethnicity | New Jersey | Middlesex County | |----------------|------------|------------------| | White | $91,555 | $84,926 | | Black | $55,453 | $79,063 | | Hispanic | $60,352 | $65,771 | 15.  In contrast to the lack of multi-family housing in Monroe, Plaintiffs’ inclusionary development is designed to provide affordable multi-family housing, including low and moderate income housing, that will be more readily available to the minority population than the housing that has previously been allowed by the Township’s zoning policies.  Further, Plaintiffs propose housing for families with children, not the age restricted housing that is so prevalent in the Township.  As I understand it, the New Jersey Law Against Discrimination is designed to protect the interests of racial minorities and families, among other things.  The Township’s opposition to Plaintiffs’ inclusionary development obviously thwarts those interests.  Ra166-7.  In other words, Plaintiffs have a factual, provable basis on which to base their claim that Defendants’ actions in denying their application, which will provide a significant amount of affordable housing, harm minorities and families with children.  This is the very type of conduct made unlawful by the NJLAD.  Plaintiffs have standing to assert their claims.
[brief] TABLE OF CONTENTS  PROCEDURAL HISTORY .........................................................  1  STATEMENT OF FACTS .......................................................  4 LEGAL ARGUMENT .............................................................  7  POINT I ..............................................................................  7  THE MOTION COURT ERRED BY DENYING THE STATE’S MOTION FOR COLLATERAL ESTOPPEL BECAUSE DEFENDANT HAS ALREADY FULLY AND FAIRLY LITIGATED THE SUPPRESSION MOTION IN UNION COUNTY, THE ISSUES IN BOTH MOTIONS INVOLVED THE CONSTITUTIONALITY OF THE SEIZURE OF EVIDENCE FOLLOWING DEFENDANT’S ARREST, AND THE COURT RENDERED AN ORDER AND OPINION ON THE MERITS.
[brief] BRIEF ON BEHALF OF APPELLANT Of Counsel and On the Brief: [...]  TABLE OF CONTENTS  TABLE OF AUTHORITIES........................................................................................................ii  APPENDIX TABLE OF CONTENTS............................................................................................iv  TABLE OF JUDGMENTS, ORDERS, AND RULINGS.........................................................xi  PROCEDURAL HISTORY........................................................................................................1  STATEMENT OF FACTS........................................................................................................2  STANDARD OF REVIEW.......................................................................................................7  LEGAL ARGUMENT...............................................................................................................9  POINT I THE DECISION OF THE STATE POLICE RETIREMENT  BOARD WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE, AND SHOULD BE REVERSED.  (Not Raised Below) .............................................................................................................9  POINT II  THE DECISION BELOW WAS NOT SUPPORTED BY THE SUBSTANTIAL EVIDENCE AND SHOULD THEREFORE BE REVERSED.  (Not Raised Below) ...........................................................................................................16  CONCLUSION......................................................................................................................19
[brief] 163a.  The Settlement Agreement states:  The Block 419 Project has a minimum 15% set-aside, or 22 units, with an option for off-site provision or payment-in-lieu for the remaining 7 units.  If such option is exercised, the Borough will show at the midpoint review how it will provide a realistic opportunity for the remaining 7 units, in accordance with the provisions of this Agreement.  165a.  The Settlement Agreement made clear that [...] must, by midpoint review—by 2020—provide a realistic plan for constructing the seven Off-site Units.  Ibid.  After conducting a fairness hearing, on June 29, 2018, the trial court entered an order accepting the settlement agreement, significantly reducing the otherwise-applicable affordable housing obligations based on “consideration of the Settlement Agreement,” subject to further recommendations by Special Master [...], PP, AICP, and a further fairness hearing.
[brief] Pa259.  Upon notice by another retired Trooper, [...] underwent a massive polling of the [...] to ascertain whether his membership received notice of the Ricci Act.  Pa259.  Of the fifty-nine (59) [...] members (retired troopers) who responded to the polling, fifty-seven (57) did not receive any notice of the Ricci Act by letter, correspondence, or postcard.  Pa259.  Additionally, active Trooper [...] provided an affidavit that he also did not receive any notice of the Ricci Act.  Pa111.  Despite not receiving notice, Licameli attempted to file an Eligibility Registration Form back in September of 2019.  Pa111.  His Registration Form notes that he was present at Ground Zero/WTC on 9/15/01 for 10 hours.  Pa113.  In response to his filing, Licameli received correspondence from the [...] requesting medical information.  Pa115.  Licameli contacted Pensions on November 18, 2019, and was advised that the Ricci Act “is for those who are currently sick.  Not for possible future illnesses. ”  Pa115.  It is unknown at this time how many other Troopers Eligibility Registration Forms may have not been filed or how many Troopers were not registered because the member was not ill at the time the forms were sent.  On March 23, 2023, correspondence was sent to the [...] to clarify the request that the Board consider all of the affected Troopers in a single collective petition.
[brief] At about 2:00 P.M., on March 1, one hour after [...] and [...] parked their vehicle in the lot, [...] arrived driving a white BMW with New York plates, spoke briefly with Jacobs, and then drove to the apartment complex lot with [...] and Ms. [...] following, (2T11-20 to 2T13-19).  [...] from his position did not observe the meeting between [...] and Jacobs in the CVS lot, and although [...] wore a so-called “Kell” Device to monitor what was said, this was not recorded.  [...] was apprised of the conversation through radio transmissions from the surveillance team.  (2T11-24 to 2T25-5; 2T13-18 to 2T14-23).  In the apartment complex parking lot, [...] parked about 40 yards from where [...] and [...] had parked next to each other (3T18-17 to 23).  He testified that [...] and [...] placed 6 duffle bags into the BMW operated by [...], and observed Jacobs and [...] carry 2 duffle bags in the direction of “[...]. ”  [...] was observed unlocking the door to Apartment B, and placing the 2 bags immediately inside the door and then re-locking it, and returning to his vehicle with Jacobs (2T20- --- 8  [...] testified that no audio or video recordings from patrol car or body cameras were made, and that although he had originally testified at a prior hearing that “dispatch recordings” had been made, he was “surpris[ed]” to learn that “apparently they’re not.