ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Point VI of the Borough’s Brief appears to argue that plaintiff was obligated to appeal the Trial Court’s interlocutory decision, by Order dated March 4, 2022, denying plaintiff’s request for injunctive relief, and his failure to do so bars this appeal.  The Borough asserts that the March 4, 2022, Order bars the appeal because it became the “law of the case,” even though interlocutory.  The Borough relies on several cases to support its position.  The first is W.H. Industries, Inc. v. Fundicao Balancins LTDA, 397 N.J. Super. 455 (App. Div. 2008.)  This matter involved jurisdictional issues resulting from a contract dispute between defendant Brazilian company and plaintiff New Jersey company.  The trial court found for the defendant on the jurisdictional issues and plaintiff’s motion for reconsideration was denied.  Plaintiff’s notice of appeal referenced only the order denying reconsideration and not the initial order dismissing the complaint.  The Appellate Division noted the improper designation of the lower court orders in the notice of appeal, but nonetheless agreed to address the underlying order because “the orders resolved all issues as to all parties. ”  Id. at 458-459.  The W.H. Industries decision is not applicable to the facts herein because [...]’s denial of injunctive relief was interlocutory and did not “resolve all issues as to all parties. ”  Moreover, plaintiff does not now appeal the denial of injunctive relief rendered March 4, 2022, but instead appeals the granting of summary judgment and the dismissal of the Verified Complaint in its entirety.  Thus, plaintiff properly designated the orders being appealed in his Notice of Appeal.
[brief] Cf Cola v. Packer, 156 N.J. Super. 77, 78 (Super. Ct. App. Div. 1977) (Defendant must be given fair opportunity to defend alternative theories liability that are not within the complaint).  The trial court removed any reference to the LGEL from its orders and referred the matter to the [...] after the defendants objected, arguing that the court lacked subject matter jurisdiction.
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[brief] [...] acknowledged that he made no effort to reconstruct the subject accident in this matter.  (3T215:18-216:19).  [...] acknowledged that in developing his opinions he did not consider the potential that had plaintiff lost control of his motorcycle due to his motorcycle coming into contact with the median.  [...] recognized, however, that an operator could lose control of his or her motorcycle in the absence of a roadway defect.  (3T221:7-23).  Judicial Rulings
[brief] (Ja7, ¶38; Ja169–70, No. 26).  City officials refused to accept payment, saying that it was too late to redeem the Property and that the Property now belonged to the City.  (Id.).  The City adopted Resolution No. I-91 on March 19, 2018, authorizing the sale of the Property at public auction.  (Ja7, ¶39).  The Resolution indicates that the Property is “surplus propert[y] and not needed for public use. ” (Ja7, ¶40).  The City ultimately sold the Property to private, third-party purchasers for $101,000.
[brief] (See [...] Brief, at 66-67; see also id. at 37, 43.6).  Where, as here, a party abandons an argument on appeal, the Court need not consider it further.  See State v. Shangzhen Huang, 461 N.J. Super. 119, 125 (App. Div. 2018), aff’d, 240 N.J. 56 (2019) (observing that claims that have not been brief are deemed abandoned on appeal and will not be addressed).
[brief] The action now on appeal commenced with the filing of a Verified Complaint and Order to Show Cause on or about January 19, 2018.  (Da629).  A hearing on the temporary restraints requested by Plaintiffs was held before the Hon. [...], P.J.Ch., on January 24, 2018 (3T) and temporary restraints were granted pursuant to the terms stated on the record (Id.) and in the court’s accompanying order.  (Da621).  Defendants filed their answer in opposition on February 19, 2018.  (Da650).  A show cause hearing was held on March 1, 2018 (4T), also before [...], and preliminary restraints were entered.  (Da626).  Both the temporary and preliminary restraints provided for, inter alia, maintenance of the status quo and the holding in abeyance of a certain stock repurchase transaction affecting Plaintiffs’ purported ownership rights in [...], a non-party to the lawsuit.
[brief] ”  (2T 103-23 to 105-8)  [...] was then released on bail after just one day and later pleaded guilty to the gun offense with the prosecutor recommending the minimum sentence, despite his numerous prior convictions.  (2T 120-15 to 135-4)  On recross-examination, [...] said his plea agreement did not include any promise to testify against [...].  (2T 133-1 to 25)  The State did not call any lay or expert witness to opine on the plea-agreement process.  Based on that testimony, the defense argued in summation that [...] was an unbelievable, incentivized witness.
[brief] 6T120-3 to 22. --- \(^6\)  Ischemic colitis is a vascular disease of the bowel in which there is an interruption of blood flow to the organ.  3T56-3 to 11.  He also believed that because decedent was severely dehydrated, exposing her to general anesthesia during exploratory surgery posed a risk of causing a heart attack.  6T123-11 to 25.  Not only did defendant believe rehydration to be the decedent’s best course of treatment, so too did the two defense experts presented at trial.  [...] has been a general and gastroenterology surgeon for thirty-three years.
[brief] Id. at 151.  In Material Damage Adjustment Corp. v. [...], 352 N.J. Super. 216, 230 (Law Div. 2002), Plaintiff sought reimbursement of payments made to Defendant, treble damages, and counsel fees pursuant to the IFPA.  Plaintiff there alleged that Defendant submitted claims and received PIP reimbursement during the time it was not licensed by the Department of Health.  [...], 352 N.J. Super. at 230.  In determining that the Defendant’s conduct constitutes a violation of the IFPA, the Court stated:  The Legislature has authorized private insurance companies damaged as a result of a violation of any provision of the Insurance Fraud Act to institute a civil action to recover compensatory damages, including reasonable investigation expenses, costs of suit and counsel fees.  N.J.S.A. 17:33A-7(a).  The statute also mandates treble damages “if the court determines that the defendant has engaged in a pattern of violating the act. ”  N.J.S.A. 17:33A-7(b).  (emphasis added)  [Ibid.].
[brief] See Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 192 (2013); Grover, 80 N.J. at 229; Bacon v. Bob Ciasulli Auto Grp., Inc., A-0789-14T1 (App. Div. May 7, 2015) (Da393-98); Phoenix Motor Co. v. Desert Diamond Players Club, Inc., 144 So. 3d 694, 696 (Fla. 4th DCA 2014).  II.
[brief] Appellate review of a summary judgment order is *de novo*.  Memorial Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012).  In deciding a motion for summary judgment, this court is “required to engage in same type of evaluation, analysis or sifting of evidential materials as required by R. 4:37-2(b) [motions for involuntary dismissal] in light of the burden of persuasion that applies if the matter goes to trial. ”  Most importantly, the court must determine whether the competent evidential materials, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party.  *Id.* at 540.  However, if the summary judgment simply turns on a question of law, or if further factual development is unnecessary in light of the issues presented, then summary judgment need not be delayed.  *United Savings Bank v. State*, 360 N.J. Super. 520, 525 (App. Div. 2002).  The governing statute for the liability of a public entity such as the [...] is the New Jersey’s Tort Claims Act is *N.J.S.A.* 59:4-2, which states:  A public entity is liable for injury caused by a condition of its property if the plaintiff establishes that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.  Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable.  *See N.J.S.A.* 59:4-2.  Here, the trial court erred by resolving a variety of contested factual issues in the movant’s favor and determined as a matter of law that (a) the settlement at the abutment joint was not a “dangerous condition”; (b) the [...] did not have notice of a “dangerous condition”; and (c) the [...]’s conduct was not “palpably unreasonable.
[brief] In my judgment a defendant who comes forward and says he desires to defend a case for divorce should be given an opportunity to do so at any moment before the chancellor's signature is actually affixed to the final decree.  The only limitation I can think of would be an apparent lack of good faith on the part of the applicant, which would be the case if it clearly appeared he did not intend to answer even after obtaining the right to do so; his attempt being merely for delay prompted by ulterior motive.
[brief] ”  *Id.*  “This latter enquiry is significant to the speedy trial analysis because . . . the presumption that pretrial delay has prejudiced the accused intensifies over time. ”  *Id.*  Here, the delay, whether four years or five years, is far greater than the bare minimum needed to trigger analysis of the remaining *Barker* factors.  Due to the significant length of the delay, the first factor weighs heavily against the State, and, as discussed further below, prejudice to the defense is presumed under the fourth *Barker* factor.
[brief] Thus, convictions have been reversed in cases where the jury very well could have been split on the theories of guilt, and they have been affirmed in cases where such confusion in the verdict was not possible.  See Gonzalez, 444 N.J. Super. at 71-78 (Court reversed convictions because it was “struck by the spectre of a verdict that may have lacked unanimity” because of generalized jury instructions allowing verdicts on one theory “and/or” another); State v. Gentry, 183 N.J. 30, 32-33 (2005) (robbery conviction reversed where jury could have disagreed which employee of a store was the victim of the defendant’s use of force); State v. Tindell, 417 N.J. Super. 530, 552-557 (App. Div. 2011) (terroristic-threats conviction reversed when jury could have differed on which person was the victim and the jury instruction did not require unanimity on that point); *State v. Jackson*, 326 N.J. Super. 276, 279 (App. Div. 1999) (drug convictions reversed when jury could have disagreed as to which cocaine the defendant possessed and the jury instruction did not require unanimity on that issue); *State v. Bzura*, 261 N.J. Super. 602, 612-615 (App. Div. 1993) (false-swear ing conviction reversed when jury could have disagreed whether defendant was guilty because he gave (1) two inconsistent statements or (2) a single false statement -- involving, like here, two different subsections of a single criminal statute -- and the jury instruction allowed for such a non-unanimous verdict); *State v. Gandhi*, 201 N.J. 161, 191 (2010) (conviction for stalking upheld because there was no realistic chance that the jury was split as to which no-contact order the defendant violated when those orders were overlapping); *State v. T.C.*, 347 N.J. Super. 219 (App. Div. 2002)(as in *Parker*, a conviction for a more generalized charge -- in this case endangering the welfare of a child -- was upheld because the individual acts of abuse were all conceptually similar and advanced a single theory of ongoing physical and emotional abuse of one victim, so no more-specific unanimity instruction was needed).
[brief] (Emphasis added).  [Panetta v. Equity, 190 N.J. 307 at 309, at 319 and at 324 (2007)].  Otherwise stated, from the facts of this case, unless the expert witnesses could point to a “… specific mention in the deed or other evidence that the parties intended its inclusion …”, then as a matter of fact and law the riparian grant at issue was not included (and was excluded) from any transfer of interest to [...].
[brief] Ibid.; (Pa53).  In fact, [...] revealed that this extraction process has only been carried out once on an envelope from 2002.  (Ra8).  [...] could not account for whether this procedure would avoid damage to an almost century old envelope because no samples were available for experimentation and he did not know what type of adhesive the historical items contained.  (Ra7-8).  Nevertheless, without sufficient knowledge and experimentation, [...] still requested that the historical items undergo the invasive and potentially destructive procedure starting with a “single envelope first” so as to not “jeopardize the entire collection.
[brief] \textit{N.J.S.A. 2A:18-52}.  “The summary dispossess statute was designed ‘. . . to give a landlord a quick remedy for possession. ’”  \textit{Carr v. Johnson}, 211 N.J. Super. 341, 347 (App. Div. 1986) (quoting \textit{18 N.J. Practice} (McDonough, County District and Municipal Courts) (2\textsuperscript{nd} ed. 1971), § 1567 at 303)).  As “[i]t is entirely a creature of the Legislature . . . and as such its provisions should be construed strictly. ”  \textit{Ibid}.  “The only remedy that can be granted in a summary-dispossess proceeding is possession; no money damages may be awarded.
[brief] 8 CONCLUSION ...........................................................  12  INDEX TO CITATIONS  Cases: Astra Footwear Indus. v Harwyn Intl. Inc., 442 F.Supp SDNY 1978 .........................................................  7  Brundage v. Est of Carambeo, 195 NJ 575 (2007) .........................  5  Caridco v. Dell Inc. No. C06-1772JLR 2009 Dist, Lexus 104600 (WD Wash Oct 26 2009)  ...........................................  8  In Re Salomon Inc. Derivative Litigation, i.e. Gutfreund v. Weiner, 68 F3d 554 (2nd Cir 1995) .....................................................  8  Marine Prods. Exp. Corp. v M.T. Globe Galaxy, 977 F2d 66 (2d Cir. 1992) ...............................................................  9  McGuire Comwell & Blakely v. Grider, 77 Fsupp 319 (DCo 1991).  7  Moss v. First Premier Bank, 835 F.3d 260 (2nd Cir 2016) ......................  8  State v. Reldon, 100 NJ 187, 205 (1985)  ........................................  5  Trade & Transport, Inc. v. Natural Petroleum Charterers, Inc., 931 F2d 191 (2d Cir.  1991) ........................................... 7-10, 12 Rules: R. 4:2-2 ........................................................................ 4 Statutes: 9 U.S.C. §5 ........................................................................ 6 NJSA 2A:23B-11(a) .......................................................... 6 INDEX TO APPENDIX Amended Complaint & Jury Demand 3/6/2014 .................................. Ra1 [...] Decision 3/29/2016 ........................................... Ra12 Verified Complaint & Order to Show Cause ...................................... Ra20 Order Denying Order to Show Cause 8/16/2016 ............................... Ra28 Notice of Appeal ............................................................................. Ra30 Appellate Decision 10/19/2017 ....................................................... Ra32 Order & Memorandum Denying Motion for Reconsideration ............... Ra40 Order & Memorandum Upholding Arbitration Award 10/18/2019 .......... Ra51 Appellate Decision 11/16/2020 ....................................................... Ra59 INTRODUCTION
[brief] The suit limitation clause was not a “hidden pitfall” as Plaintiff-Appellant contends.  In fact, as noted, the policy provision pertaining to the time within which to file suit, also provided that “[u]nless we agree otherwise, any legal action against us must be brought in a court of competent jurisdiction in the county and state where the covered person lived at the time of the accident. ” (Pa102).  Plaintiff-Appellant was well aware that the matter had to be filed in court; and that arbitration did not apply to the claim.  However, Plaintiff-Appellant failed to read the paragraph before it, which stated that the litigation had to be filed 4 years after the accident; or 1 year after the insured knew or should have known that the tortfeasor was underinsured.  (Pa102).  The underlying matter against the tortfeasor had already been in suit.  Therefore, Plaintiff-Appellant could have simply sought to amend that Complaint to name Defendant-Respondent, [...], as a direct Defendant in that litigation or, at the outset of filing the claim against the tortfeasor, provided Defendant-Respondent with a Notice to Intervene.
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[brief] The officer had a reasonable articulable suspicion that the defendant had been engaged in criminal activity that warranted the brief investigatory detention of the defendant (T75-3 to 85-11)  The stopping of an individual is a seizure within the meaning of the Fourth and Fourteenth Amendments and requires reasonable articulable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1 (1968).  Reasonable suspicion is “a particularized and objective basis for suspecting the person stopped of criminal activity. ”  State v. Stovall, 170 N.J. 346, 356 (2002)(quoting Illinois v. Gates, 462 U.S. 213, 232 (1983).  Any brief detention of an individual by law enforcement where the individual reasonably believes there is no freedom to leave, “must be founded on a constitutionally recognized objective justification. ”  State v. Bynum, 259 N.J. Super. 417, 421 (App. Div. 1992)(citing United States v. Mendenhall, 446 U. S. 544, 551 (1980)).  Thus, “a police officer may briefly detain an individual where he can ‘point to specific and articulable facts, which taken together with rational inferences . . . reasonably warrants that intrusion. ’”  Bynum, 259 N.J. Super. at 421 (quoting Terry, 392 U.S. at 21.)
[brief] Since the seller’s potential inability to produce an acceptable certificate by closing does not constitute a default, the automatic right to terminate set forth in § 8.2 does not apply.  The right to terminate under the Estoppel Provision is conditioned on the explicit terms of §13.10 rather than inherent under §8.2 as in the case of a breach.  The PSA thus reflects the parties’ intent to allow for a situation where [...] cannot obtain an acceptable estoppel certificate and still does not face penalties for breach.  This intent underscores a negotiated understanding that acknowledges potential limitations in securing the certificate while still allowing [...] the option to terminate the PSA, albeit under specific delineated circumstances.  In sum, a thorough analysis of Sections 9.1 and 13.10 of the PSA confirms that [...] does not have an immediate right to terminate the agreement upon receiving a non-compliant estoppel certificate.  Section 9.1 explicitly ties the obligation to deliver an Acceptable Estoppel Certificate to the closing date, providing [...] the opportunity to fulfill this condition precedent up until and including the day of closing.  Furthermore, Section 13.10 reinforces that [...] must use commercially reasonable efforts to secure an acceptable certificate, but it does not stipulate that any initial, non-compliant certificate triggers an automatic right of termination.  Instead, the PSA clearly provides that [...]’s sole remedy is to terminate the agreement only if [...] fails to deliver an Acceptable Estoppel Certificate by the time of closing.  This framework reflects the negotiated intent of the parties, allowing for flexibility in obtaining the required certificate while protecting [...]’s right to terminate only in the event that the seller fails to meet the condition at the appropriate time—at closing.  Crucially, Section 13.10(a) also establishes that the failure to obtain an Acceptable Estoppel Certificate does not constitute a default or breach by [...], thereby limiting [...]’s remedies to termination and return of the down payment.  This underscores the fact that the PSA contemplates termination only upon failure to meet the condition precedent at closing, not upon earlier receipt of a non-compliant certificate.  The trial court’s decision improperly rewrote the PSA by permitting early termination simply upon [...]’s receipt of an initial non-compliant certificate, which contradicts the clear, unambiguous terms of the PSA.  [...]’s termination rights are tied solely to the failure to deliver an Acceptable Estoppel Certificate at the closing, not to the receipt of any non-compliant certificate prior to that time.  II.