ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] 72 (2014) .................................................................................................................... 24 Graham v. Connor, 490 U.S. 386 (1989) .................................................................................................................. 28, 29, 30 Guerriero v. Palmer, 175 N.J. Super. 1 (App. Div. 1979) .................................................................40 Hansel v. City of Atlantic City, 152 F. Supp. 2d 589 (D.N.J. 2001) ........................................................................32 Hawes v. New Jersey Dept. of Trans., 232 N.J. Super. 160 (Law Div.) aff’d o.b. 232 N.J. Super. 159 (App. Div. 1988) ........................................................................................................39 Hayes v. Mercer County, 217 N.J. Super. 614 (App. Div. 1987), certif. den. 108 N.J. 643 (1987) ...............21 Heck v. Humphrey, 512 U.S. 477 (1994) ..................................................................................................22, 23 Housel v. Theodoridis, 314 N.J. Super. 597 (App. Div. 1998) ......................................................................16 James v. City of Wilkes-Barre, 700 F.3d 675 (3d Cir. 2012)
[brief] THE TRIAL COURT’S ORDER DENYING APPELLANT’S MOTION TO VACATE FINAL JUDGMENT SHOULD STAND BECAUSE EQUITY PROTECTS THE INTERVENING RIGHTS OF INNOCENT THIRD PARTIES (TRIAL COURT DID NOT ADDRESS)  Applications to vacate judgments are equitably restrained when “intervening rights of innocent third persons” arise after the entry of judgment.  First Mut. Corp. v. Samojeden, 214 N.J. Super. 122, 129, (App. Div. 1986) (emphasis added).  Moreover, Courts have especially protected the rights of bona fide purchasers for value in foreclosure matters.  See New Brunswick Sav. Bank v. Markouski, 123 N.J. 402 (1991); Assoulin v. Sugarman, 159 N.J. Super. 393, 398 (App. Div.1978); Matter of Eagleson’s Estate, 172 N.J. Super. 98 (1980); Coryell, L.L.C. v. Curry, 391 N. J. Super. 72 (2006).  Here, it is clear that Respondent [...] is the owner of the subject property and [...] holds a mortgage secured by the subject property.  They are the exact “innocent third persons” whose intervening rights not only equitably restrain R. 4:50-1 applications but must be protected.  Accordingly, the Trial Court’s decision to deny Appellant’s Motion to Vacate Final Judgment was not only correct because service was appropriate, but because it also protected the intervening rights of [...] and [...].  **CONCLUSION**
[brief] ”  *Id.* at 400.  To remedy those concerns, the Court noted it must intervene “to ensure the public’s confidence in both the results achieved at the agency level so far and to ensure that future similar proceedings will be likewise subjected to a measure of scrutiny at the agency level that will guarantee the process does not produce determinations that are arbitrary, capricious or unreasonable. ”  *Id.* at 382-83.  The Court’s intervention was necessary because “[b]oth the public interest and the public’s perception that the process is fair, competitive and trustworthy are critical components and objectives. ”  *Id.* at 383 (quoting *Muirfield Constr. Co. v. Essex Cnty. Improvement Auth.*, 336 N.J. Super. 126, 137-38 (App. Div. 2000)).  The Court therefore vacated the final agency decisions on appeal and remanded to the Department for further proceedings “in conformity with the spirit of this opinion. ”  Id. at 400.  The same result should follow here.
[brief] Appellants ([...] and its owners, [...] and [...]) alleged that the real estate development project that they envisioned for the Pork Chop Hill Assemblage never came to fruition and that, as a result, they lost millions of dollars.  778a-803a.  [...] and [...] were mentioned in only 3 of the 106 paragraphs comprising the "Statement of Facts" in the Third Amended Complaint.  789a-790a at ¶¶ 70-72.  The contents of those limited allegations are discussed in the following pages.  Pages 5-6, infra.
[brief] ” (1T41-16 to 1T41-23).  Applicant’s attorney further stated that “we’re not going to testify about [the development that will be reviewed as part of the site plan].  (1T42-3 to 1T42-20).  Plaintiffs argued during the hearing that based on the language of Robbinsville Ordinances §§ 142-77 and 142-78 required a full review of the application materials and not just a limited review of the proposed new lot lines.  (1T56-6 to 1T61-17).  The Board Attorney refused to allow such discussions and stated, “all of that is going to be dealt with at site plan. ”  (1T57-16 to 1T58-2).  From these discussions during the meetings, it was clear that the Board and the Applicant were not going to permit Plaintiffs from presenting its witnesses on stormwater, noise, traffic, and wildlife, which were all required under Robbinsville Ordinances §§ 142-77 and 142-78.
[brief] 1T88:2-17.  The Board struggled to determine “equity” given the constraints of its ordinance and lack of relevant information from the landlord.  The Board struggled to figure out how it could apply the purchase price of an entire building to a single unit given the fact that the landlord had not provided any information about the purchase of the building and how individual units may or may not have affected the overall price, including how the TPA and [...]’s existing tenancy affected the value of the building.  See e.g., 5T23:15-21 (Board member stating, “[l]et me just say I don’t think that these are all equal units…[w]e have one unit that was encumbered by a protected tenant, and ten units that could be freely renovated and sold for whatever they could possibly get…[s]o in my view, however we come up with a number, that is clearly a fact in evidence, and to me, I can’t view it any other way, as it has an absolutely different value from the other ten. ”)  The Board’s counsel summed up the discussion thusly:  “It sounds like what the board would like to know, is what was the relative value of this unit at time of purchase. ”  2T30:30-31.  Indeed, even [...] noted this difficulty stating, “if I were buying a building and it had one protected tenant and ten vacant units, I would say that the ten vacant units had more of a value than the unit that had the protected tenant. ”  3T33:7-9.  [...] was not a protected tenant when the building was an apartment building because apartment buildings do not have protected tenants— all the tenants are protected under the Anti-Eviction Act.  It was [...]’s conversion of the building from an apartment building into a condominium building that removed [...] from the protection of the Anti-eviction Act and triggered the TPA.  The potential for him to become a protected tenant upon conversion was there when [...] purchased the building and was thus part of the market.  No evidence concerning the relative value of Unit 11 compared to other units was presented at the first round of hearings, or thereafter, despite the Board’s request.  Instead, the landlord submitted evidence concerning the market value of the unit.
[brief] While such an analysis is unnecessary given Plemmons, this Court should nonetheless affirm.  CONCLUSION  For the foregoing reasons, [...] and [...] respectfully request that the Court affirm the dismissal with prejudice of Count VII relative to Plaintiff’s CFA claims.  Whether this Court follows its precedent in Plemmons or undertakes another analysis of the CFA exemption, the conclusion supports upholding the decision below.  Accordingly, the parties should continue with discovery on the remaining eight counts asserted in the Complaint.
[directive] It to requires that monies be placed in an agency suspense account in order to be able to transfer the monies to the [...].  GOALS is utilized by the Fiscal Management Offices within your agency.  This office requires specific information to complete the GOALS form and transfer the monies.  Agency representatives will need to furnish the following information to effect a transfer.  - a.  Agency Locator Code 20060094 b.  Agency Class Codes 1.d. above.)  (See - c. Remarks  Section of the GOALS transaction form will require a statement regarding the transaction (e.g., "This transfer to the USCS Suspense Account is for monies seized under seizure number by [...], . Central Region. )  " - Delivery of Monies to [...]
[brief] Lastly, the GRC found that [...] was in contempt of the March 30, 2021 Interim Order and that the complaint should be referred to the Office of Administrative Law (“OAL”) for a determination of whether [...]’s actions had been knowing and willful, and for an attendant determination of whether prevailing party counsel fees were warranted.  (Ibid.).  The parties continued to litigate the GRC Complaint, and on March 1, 2023, while the GRC Complaint was pending before the OAL, [...] and the [...] reached an agreement regarding prevailing party counsel fees that resolved [...]’s claims for counsel fees in the proceedings pursuant to the GRC Complaint and in the 2021 Trial Court Proceedings, which are discussed in detail immediately below.
[brief] 37 Simpson v. Duffy, 19 N.J. Super. 339 (App. Div. 1952) ....................... 20 Smith v. Whitaker, 160 N.J. 221 (1999) ............................................. 32 Spano v. SuperValu, Inc., A-2361-14T3 (App. Div. July 22, 2016) ...... 24, 28, 29 Stewart v. 104 Wallace St., 87 N.J. 146 (1981) .............................................. 22 Strachan v. John F. Kennedy Mem’l Hosp., 109 N.J. 523 (1988) ............................................. 17, 19 Szalontai v. Yazbo’s Sports Café, 183 N.J. 386 (2005) ............................................. 20 Townsend v. Pierre, 221 N.J. 36 (2015) .............................................. 17 Turkowski v. Stanbery Hamilton, LLC, A-2907-12T2 (App. Div. March 31, 2014) .................. 38 Vander Groef v. Great Atl. & Pac. Tea Co., 32 N.J. Super. 365 (App. Div. 1954) ...................... 20 Wang v. Allstate Ins. Co., 125 N.J. 2 (1991) ............................................. 19 Statutes Tort Claims Act .................................................. 32, 33 Other Authorities N.J.R.E. 702 .......................................................... 37 Rule 1:36-3 ........................................................... 24, 38 Rule 4:46 ............................................................... 17, 40 Defendant/Respondent, [...] ("[...]"), improperly named as, "[...] D/B/A [...]", hereby submits this Brief in opposition to Plaintiffs/Appellants' Appeal.
[brief] Guilty Plea  Following the denial of the motion to suppress, defendant pleaded guilty to possession with intent to distribute a controlled dangerous substance under __________________________  6  On appeal, defendant does not challenge the ruling on the warrantless search.  Indictment Number [...] and to criminal trespass under Indictment Number [...].  As to the possession of CDS with intent to distribute charge, defendant admitted that he was a passenger in a car stopped on August 29, 2019 in Green Brook and was in possession of fentanyl that he intended to distribute.  (2T11-21 to 13-17).  As to the criminal trespass charge, defendant admitted that on January 2, 2020, he was in an apartment complex in Somerville where he was not licensed or privileged to be.  (2T13-22 to 15-1).  This appeal follows.  LEGAL ARGUMENT POINT I POLICE HAD REASONABLE AND ARTICULABLE SUSPICION THAT THE DRIVER VIOLATED N.J.S.A. 39:4-126, WHICH PLAINLY REQUIRES A MOTORIST TO SIGNAL PRIOR TO CHANGING LANES.
[brief] ## STATUTES: | Statute | Page Numbers | |--------------------------|--------------| | N.J.S.A. 39:6A1.1 | 11 | | N.J.S.A. 39:6A-8 | 1, 4, 6, 7, 11, 12, 14, 15 | ## COURT RULES: | Rule | Page Numbers | |--------------------------|--------------| | R. 4:46–2 | 12, 13 | | R. 4:49–2 | 10 | ## CASES: | Case | Page Numbers | |-----------------------------------------|--------------| | Brill v. Guardian Life Insurance Company of American, 142 N.J. 520, 528-529 (1995) | 13, 14 | | Buckelew v. Grossbard, 87 N.J. 512, 524 (1981) | 12 | | Cesare v. Cesare, 154 N.J. 394, 412 (1998) | 5 | | DiProsopero v. Penn, 183 N.J. 477, 495 (2005) | 11 | | Juarez v J.A. Salerno & Sons, 185 N.J. 332, 334 (2005) | 11 | | Judson v. Peoples Bank and Trust Company of Westfield, 17 N.J. 67, 73-35 (1954) | 13 | | Oswin v. Shaw, 129 N.J. 290, 294 (1992) | 11, 12 | | Polk v. Daconceico, 268 N.J. Super. 568, 575 (App. Div. 1993) | 12 | | Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) | 5 | | Serrano v. Serrano, 183 N.J. 508, 514 (2005) | 11 | TABLE OF APPENDIX
[brief] Apparent authority “focuses on the reasonable expectations of third parties with whom an agent deals” and arises “when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations. ”  *New Jersey Lawyers’ Fund*, 203 N.J. at 220 (citing Third Restatement of Agency §§ 2.03, 708).  Apparent agency is created when (1) “the appearance of authority has been created by the conduct of the alleged principal;” (2) a third party “has relied on the agent’s apparent authority to act for a principal;” and (3) the third party’s “reliance was reasonable under the circumstances. ”  *AMB Prop., LP v. Penn Am. Ins. Co.*, 418 N.J. Super. 441, 454 (App. Div. 2011).  Apparent agency was plainly created by [...] when she permitted her daughter to order food to be delivered to the home using her [...] account and payment mechanism on her phone.  [...] relied on that apparent authority by allowing [...] to obtain the benefits of [...]’s services (services that are available to users only upon agreement to the Terms of Use), including by using its platforms for food delivery services and transportation services.  And [...]’s reliance was reasonable: the December Terms were agreed to under [...]’s name and using her [...] profile.  [...] had used [...]’s services for nearly seven years, and she had undisputedly agreed to [...]’s materially similar Terms of Use just eight months prior in April 2021.  [...] “was justified in believing that the user of plaintiff’s … account possessed the authority to agree to the [December Terms].  [[...]] had no reason to believe that the user of plaintiff’s account was anyone other than plaintiff—or someone to whom plaintiff gave authority over [her] account. ”  *Heidbreder*, 438 F. Supp. 3d at 597 (finding that minor son had apparent authority to enter arbitration agreement on behalf of parent); see *Rodriguez v. Hudson Cty. Collision Co.*, 296 N.J. Super. 213, 220, (App. Div. 1997) (apparent authority exists when principal places agent in “a situation that a person of ordinary prudence, conversant with business uses, [and the nature of the particular business,] is justified in presuming that such agent has the authority to perform the particular act in question”); *Shadel v. Shell Oil Co.*, 195 N.J. Super. 311, 317 (Law Div. 1984) (reasonable jury could find apparent authority when principal represented through advertising that it operated agent’s service station and plaintiff relied on those representations); *cf.* *Wilzig v. Sisselman*, 209 N.J. Super. 25, 35 (App. Div. 1986) (describing apparent authority as “closely related” to estoppel).
[brief] As previously explained, Paragraph 23 establishes a global release by [...] of all “Claims” that she could assert against identified individuals, estates and trusts.  (See Da094a, at Paragraph 23.)  Paragraph 24 then contains multiple subparagraphs that carve out specific exceptions to the broad release contained in Paragraph 23.  (See Da094a-96a, at Paragraph 24.)  [...] ignores the fact that both Paragraphs 24(F) and (G) facially concern the same subject matter in that they both address rights [...] retained following execution of the Settlement Agreement.  Paragraph 24(F), however, specifically addresses the [...] while Paragraph 24(G) is a general “catch all” provision as to “other” rights [...] retained.  (See id.)  Nothing in the Settlement Agreement indicates that the language in subparagraph (G) was somehow intended to supersede, eliminate or modify subparagraph (F).  [...]’s arguments likewise ignore that Paragraph 24(G) was placed immediately after the paragraph delineating her rights to the [...] (Paragraph 24(F)), which further demonstrates the parties intended it as a safeguard to preserve other rights or interests [...] may have as a beneficiary of [...] or [...] not including an interest in the [...].  (See id.)  As set forth above (and as the Trial Court correctly recognized), the only way to harmonize both provisions is to conclude that [...] gave up any claim to [...]’s 21.5% share of the [...] in Paragraph 24(F), and therefore that share is not a distributable asset or property that [...] retained to receive under Paragraph 24(G).  (See Da274a-75a.)  The Trial Court’s analysis was sound and should not be disturbed.
[brief] The Trial Court Selected an Appropriate Start Date for the Beginning of its Interest Calculation  Next, [...] argues that [...] abused his discretion by calculating prejudgment interest beginning in 1989 instead of 2005.  [...] claims the trial court should have used 2005 as the start date for its interest calculations because that is when [...] filed its complaint commencing this litigation.  (Db, p. 70).  [...] commented when he rejected [...]’s position that [...] “identifies no case requiring the court to start the interest calculation at the date of the filing of the complaint. ” (Pa 56).  In its brief to this Court, [...] again fails to identify any such case law.  Not only does [...] fail to identify any case law requiring the use of the date of the complaint as the start date for an interest calculation, but it also fails to address the case law specifically rejecting that position.  For example, in County of Essex, supra, the trial court calculated prejudgment interest beginning at the date of each transaction the defendant obtained through fraud.  County of Essex, 186 N.J. at 61-62.  The Appellate Division reversed, holding that interest should have been calculated beginning on the date of the filing of the complaint.  Id. at 54.  The Supreme Court then reversed the Appellate Division holding that the date when prejudgment interest begins to run in a contract case is “within the sound discretion of the court, based on equitable principles.
[brief] Underscoring this problematic analysis is the fact that the trial court used speculation and hyperbole, no doubt borne from the Respondents own speculative and hyperbolic arguments, to bolster its fashioned remedy.  As cited by Respondents the trial court deemed the Mayor’s publicly published comments as “surreptitious” without any indication of how they were so.  There is nothing in the record the suggested that the Mayor offered praise or approval of the Respondents’ Amended Application.  The suggestions from the trial court and the Respondents that the Mayor’s representative attended Technical Review Committee meetings and did not offer any opinion on the Amended Application is of no moment.  M44-45.  There is no requirement that the Mayor or his/her designee attend such meetings let alone offer any opinion at same.  As Respondents already know, these meetings are for the technical review of the application by various municipal departments in order to head off any clear technical issues with the application before going before the land use board.  It is not a forum for the Township or administration to usurp the land use board’s authority and deem an application worthy of approval or not.
[brief] THE MSRA EXPLICITLY AUTHORIZES THE UNILATERAL MODIFICATION OF CONTRACTS AND THE SUPERIOR COURT PROPERLY FOUND THAT PLAINTIFFS FAIL TO ALLEGE ANY ACTIONABLE CONDUCT (Pa1024–1031).  In denying Plaintiffs’ motion for leave to amend and granting Defendants’ cross-motion to dismiss, the Superior Court considered the plain language of the MSRA, and properly applied that language to dismiss Plaintiffs’ Complaint.  Plaintiffs’ response on appeal is to ignore the plain language of the MSRA, or alternatively argue that the Superior Court’s interpretation was somehow improper.  Plaintiffs’ position is contrary to basic tenants of statutory interpretation and should be rejected by this Court.  The Superior Court properly dismissed the Complaint, because it does nothing more than complain of a permissible and authorized action under the MSRA.
[brief] Paragraph five of the MOU states there are only two situations in which it would be terminated: 5.  \textbf{Term}.  Unless otherwise extended in writing by the Parties, this Memorandum shall terminate automatically and without any further action by the Parties upon the earlier --- \(^2\)  To rescue something is to save it.  “Rescue. ”  See Merriam-Webster.com Thesaurus, Merriam-Webster, https://www.merriam-webster.com/thesaurus/rescue.
[brief] “The standard of review on appeal from decisions on motions for a new trial is the same as that governing the trial judge—whether there was a miscarriage of justice under the law. ”  Hayes v. Delamotte, 231 N.J. 373, 386 (2018) (quoting Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 522 (2011)).
[brief] As the Appellate Division has held:  We recognize that the questions of sound planning and the "fairness" of providing affordable housing are overlapping concepts.  There is no doubt that any fair share proposal raises substantive zoning and planning concerns for the municipality.  Imposition of the constitutionally-mandated obligation to provide affordable housing "does not require bad planning."  *East/West Venture v. Borough of Fort Lee*, 266 N.J. Super. 311 (1996)  The specific location of "decent housing for lower income groups" continues "to depend on sound municipal land use planning considerations in this State."  *Id.* at 211, 456 A.2d 390.  The sound municipal land use planning that resulted in the restrictions that the redeveloper now complains of should not be disturbed merely to allow the redeveloper to maximize its profit to the detriment of the Borough and its residents.
[brief] New Jersey courts have consistently held that the arbitrator’s authority over setting briefing schedules and deadlines is a matter of procedure with which the courts will not interfere.  Minkowitz v. Israeli, 433 N.J. Super. 111, 144 (App. Div. 2013); Risco, 2015 WL 4487739, at *7.  The New Jersey Arbitration Act affords the arbitrator “broad authority” over matters of procedure.  Risco. Inc., 2015 WL 4487739, at *7 (citing N.J.S.A. 2A:23B-15(a)).  Given the arbitrator’s broad authority over matters of procedure, id., and a court’s restricted scope of judicial review of an arbitration award, Rock Work, 396 N.J. Super at 355, the trial court was correct to confirm the Arbitrator’s decision to deny [...]’s untimely submission after establishing, and twice extending, briefing timelines.
[brief] Finally, the Sentencing Court’s unexplained, undecipherable reference to “secondary gain” as a basis for refusing to consider [...]’s institutional record as weighing against the need to deter him and against finding mitigating factor nine amounted to unsubstantiated “[s]peculation and suspicion. ”  Case, 220 N.J. at 64.  To support a finding of aggravating factors three or nine, “the record must contain evidence demonstrating a likelihood of re-offense—be it expert testimony, or the defendant's criminal history, lack of remorse, premeditation, or other competent evidence;” the sentencing court may not simply “engage[] in impermissible speculation.