ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] To establish a right to the remedy of specific performance, a plaintiff must demonstrate: (1) that the contract in question is valid and enforceable at law, *Jackson v. Manasquan Sav. Bank*, 271 N.J. Super. 136, 144 n. 8 (Law Div. 1993); (2) that the terms of the contract are “expressed in such fashion that the court can determine, with reasonable certainty, the duties of each party and the conditions under which performance is due,” *Salvatore v. Trace*, 109 N.J. Super. 83, 90 (App. Div. 1969), aff’d 55 N.J. 362, 262 (1970), and (3) that an order compelling performance of the contract will not be “harsh or oppressive,” *Stehr v. Sawyer*, 40 N.J. 352, 357 (1963) (emphasis added).  Section 8.7(a) of the Redevelopment Agreement clearly sets forth the duties of the [...] in constructing the [...] Garage, and the condition – prior consent of [...] – precedent to the [...]’s performance.  Neither the June 30, 2022 Order, nor the Redevelopment Agreement, contemplated the [...]’s construction of the [...] Garage without the consent or approval of [...].  The [...] and [...] stipulated prior to trial that the estimated cost to construct the [...] Garage would be “approximately 24 million dollars. ”  4T 51:14-22.  Without the ability to obtain financing, there is no possibility that the [...] could proceed with construction of the [...] Garage.  Ordering the [...] to construct the [...] Garage despite [...]’s withholding of consent to finance such construction is in direct contravention to an express term of the Redevelopment Agreement, is not contemplated by the June 30, 2022 Order, and lacks any basis in economic reality.  Again, [...] is asking the Court to re-write the Redevelopment Agreement in a manner more favorable to [...], and detrimental to the [...].  For these reasons, the relief requested by [...] should be denied.
[brief] 28  Berger v. Paterson Veterans Taxi Service, 244 N. J. Super. 200, 205 (App.Div.1990)  9  Carey v. Piphus, 435 U.S. 247, 254-257 (1978)  7  Clarke v. Clarke, 359 N.J. Super. 562, 570 (App.Div. 2000)
[brief] [...] argued to reject the “long-term liability” booked as a company expense as clear fee-shifting in violation of New Jersey law and public policy.  He argued the [...] and [...] opinions of [...]’s ‘net asset value’ should be increased by $2.8 million, as both had opined it would “dollar for dollar”, if the Court rejected the liability as a legally improper management “vote”.  (11T5-9:1)
[brief] ”  Id. § 2A:53A-55(b) (emphasis added).  Here, had this action proceeded in the ordinary course, Plaintiff’s voluntary dismissal of his action would not have immunized him from liability for costs, attorneys’ fees, and expenses under the statute.  But because the trial court entered the dismissal the same day, thus closing the case—but before Defendants had an opportunity to seek relief under UPEPA—Defendants were prevented from seeking the attorneys’ fees to which they are entitled under UPEPA.  In doing so, the trial court effectively stripped UPEPA of one of its key deterrent features, leaving Plaintiff free to file the same exact claims against Defendants in the future, with impunity.
[brief] (T2, 14:24-15:9).  Three critical areas which Willoughby differ from this case are the public interest, reason for the delay and lack of reliance on the policy of repose.  First, as to the reason for the delay, in Willoughby, the Court found that the plaintiffs had not slumbered on their rights.  “Although plaintiffs did not file a prerogative writ action challenging the rezoning of [...]'s property within forty-five days of publication of the ordinance, they did immediately mount a well-publicized political campaign to elect candidates for municipal council who were committed to repeal of the ordinance. ”  Willoughby, 306 N.J. Super. at 278.  By comparison, Plaintiffs here took no action after Ordinance 13-2022 was adopted.  Rather, Plaintiff waited until after public notice of the land use application for the Harrison portion of the Warehouse Project before they took action.  Notice of the hearing was published on October 14, 2022, which was 170 days after publication of the notice of adoption for Ordinance 13-2022.
[brief] Thus, when resolution of the “legal issue” is governed by the lower court’s evaluation of equitable and factual concerns, an abuse of discretion standard applies to the lower court’s determinations of the pertinent facts and equities.  *Baez v. Paulo*, 453 N.J.Super. 422, 437 (App. Div. 2018); Ahn v. Kim, 281 N.J.Super. 511, 531 (App. Div, 1995) (reviewing lower court’s order under Rule 4:26-4 for an abuse of discretion), aff’d in part, rev.’d in part on other grounds, 145 N.J. 423 (1996).
[brief] Respondent also tries to create the illusion that Decedent contemplated divorce from Petitioner.  Db at 18.  Yet, [...] testified that Decedent never spoke to her about leaving Petitioner or getting a divorce.  (10T129:10-13).  Likewise, [...] did not provide testimony that she ever had any discussions with Decedent about a divorce.  And yet, at the conclusion of [...]’s testimony, the Court questioned “Do you know why she never divorced him?”  [...] responded “She had a strong faith.  Divorce is not—that’s the only thing I can think of—strong faith, her faith.  She wouldn't divorce him because of her faith. ”  (11T58:19-24).  The requirements of N.J.R.E.602 and N.J.R.E. 701 were not satisfied for the lay opinion testimony of [...].  N.J.R.E. 602 requires that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."
[directive] Previous conviction for distribution or possession with intent to distribute CDS, regardless of the degree of the prior drug distribution-type offense or the number of criminal history points.  V (Enhanced Extended Term)  Defendant has prior distribution-type conviction and has 10 or more criminal history points, not counting the least serious prior drug distribution-type offense used to establish the defendant’s eligibility for an extended term pursuant to N.J.S.A. 2C:4-6f.  Enter Criminal History Category 4/04  SCHEDULE II
[brief] Though the agreement had a New Jersey choice-of-law provision, the court stated that the insertion of a choice-of-law provision by a franchisor should not “with a stroke of a pen remove the beneficial effect of the franchisee state’s remedial legislation. ”  Winer Motors, 208 N.J. Super. at 671-72.  In addressing the Restatement, the court acknowledged there was “little difference between the law of New Jersey and Connecticut on this subject…[though] the application of Connecticut law might permit the imposition of attorneys[‘] fees, if warranted. ”  Id. at 673.  But nonetheless, the Winer Motors court affirmed Connecticut law.  In the instant case, there are significant, material differences between New York and New Jersey law, which evidences New Jersey’s far greater interest in resolving issues pertaining to parties in the malt beverage industry, and the imposition of New York law would undermine fundamental policies that New Jersey champions.
[brief] *Michaels v. State of N.J.*, 955 F. Supp. 315, 324 (D.N.J. 1996), quoting *Smith v. Holtz*, 87 F.3d 108, 113 (3rd Cir. 1996)(With respects to accrual of malicious prosecution claims under 42 U.S.C. § 1983, “‘so long as success on [a § 1983] claim would imply the invalidity of a conviction in a pending criminal prosecution, such a claim does not accrue so long as the potential for a judgment in the pending criminal prosecution continues to exist. ’”).  The date that a cause of action under § 1983 accrues, however, is a matter of federal law.  See *Wallace v. Kato*, 549 U.S. 384, 388 (2007); *Estate of Lagano v. Bergen Cty. Prosecutor's Office*, 769 F.3d 850, 860 (3d Cir. 2014).  Federal law rejects the New Jersey Supreme Court’s reversal of Defendant’s VOP as an accrual date.  *Michaels v. State of N.J.*, 955 F. Supp. 315, 325 (D.N.J. 1996).  In fact, under federal law, “a reversal of a conviction on evidential grounds and remand of the criminal proceedings — the precise factual scenario here — did not represent a favorable termination…”  *Michaels v. State of N.J.*, 955 F. Supp. 315, 325 (D.N.J. 1996).  Smith v. Holtz, 87 F.3d 103, supra., is dispositive.
[brief] (See Pa111).  On or about February 5, 2024, subsequent to filing this Appeal, Plaintiff filed his own handicap parking space application in his own name, albeit again relying upon the same facts and circumstances related to [...]’s 2019 Application.  (See Da047-Da054).  On or about March 11, 2024, Plaintiff’s application was granted thereby designating a handicap parking space as close as practicable to [...].  (See DaDa055-Da056).  This is exactly the same designated area, i.e., relief, [...] could have had years ago if he had simply signed the Conciliation Agreement as power of attorney for his mother and/or if [...] had signed the agreement herself.
[directive] To be clear, this appeal addresses the need for additional time to commence trial because of the COVID-19 pandemic, not more generalized arguments about routine scheduling matters unrelated to a public health crisis.  In addition, the above requirements -- to consult with a supervisory judge and schedule monthly conferences -- may be relaxed as the public health situation continues to evolve.  But coordination within each vicinage will still be needed for a period of time even when three feet of social distancing is no longer necessary for jury trials.  The backlog the pandemic created over the course of two years cannot be resolved in a matter of months.
[brief] [...]’s request for the grossly astronomical $113,497 for legal fees in less than 9 months for allowing what should have been relatively simple work for [...]’s resignation as a Co-Trustee, which all parties wanted, and resolving IA Exceptions, which could have been handled exclusively by [...], who was responsible for the IA, with almost no legal assistance required, should have been a screaming red warning flag if the Judge had rationally considered RPC 1.5(a) factors below that were clearly violated by the $113,497 request, and the inconsequential adjustment by the Judge to $93,277.  (a)
[brief] Here, there is no evidence that Plaintiff was distracted or unlikely to see the condition.  In fact, Plaintiff admits she observed the condition she alleges caused this incident before she entered the [...] and testified that she was paying attention to where she was walking before she fell.  (Pa59 at 21:20-23).  Likewise, the photograph bearing Bates-stamp WM000005 that Plaintiff identified as a photograph of the raised barricade leg where she fell, shows that there is a sign attached to the barricade that states “Watch your Step,” providing a warning to those in the area.  (Pa217).  Additionally, Plaintiff relies upon *Teneian v. Meghrigan*, but that case is also distinguishable.  15 N.J. 267 (1954).  There, the court addressed the duty of landlords to those in common areas where the landlord has retained control.  *Id.*  In *Teneian*, the plaintiff fell down the stairs in the common area of a multi-family apartment building because the landlord failed to replace the light fixture in the stairwell and the plaintiff could not see the stairs as she descended.  *Id.* at 270.  The landlord knew the light fixture was in need of repair before the plaintiff fell and the question before the court was whether the plaintiff was barred from recovery because of her own comparative negligence.  *Id.* at 282.  The instant matter differs from *Teneian* in that there is no evidence of what caused the barricade leg to become raised or how long it had been raised, and Plaintiff did not report the condition to [...].  Moreover, the trial court found that because the raised barricade leg was open and obvious and Plaintiff did in fact admit to seeing the raised barricade leg, it did not need to address the issue of comparative negligence.  The instant matter also differs from *McGrath v. American Cyanamid Co.*  There, the plaintiff, a contractor’s employee, died when he fell into a trench after the temporary “catwalk” that had been erected over the trench upended.  In *McGrath*, our Supreme Court was unpersuaded by the defendant’s “assumption of risk” arguments and upheld the Appellate Division’s finding that there was a duty of care owed and evidence of a breach of that duty.  41 N.J. 272, 274 (1963).  By way of reference to the foregoing cases and reliance upon the Model Civil Jury Charges, Plaintiff argues that a business owner can never be relieved of the duty owed to an invitee even in the face of a condition that is open and obvious but fails to address the fact that our courts have found that a business owner’s duty is limited by the open and obvious doctrine when a hazard is known to the invitee.  See e.g., Lokar at 24 N.J. 549.  **CONCLUSION**
[brief] Plaintiff [...] (“[...]”), an operator of dry-cleaning establishments, with no experience in constructing or operating large residential housing projects, instituted this action in 2011 claiming interference with his attempts to develop a substantial $25 million low income, tax credit subsidized, housing project, involving an extremely complex and highly regulated process, projecting a profit of over $8 million dollars.  Since this would have been a new business venture, for which [...] had no prior experience, the trial court dismissed the Complaint filed by [...] and his single-purpose entity, [...] (“[...]” and, collectively, “Plaintiffs”) in 2019 based upon New Jersey’s then existing “New Business Rule” (hereinafter “NBR”), which per se prohibited the pursuit of lost profits damages by businesses with no prior history of operation.  In 2021 the Appellate Division affirmed the dismissal.  In 2022 the Supreme Court modified New Jersey’s bright line rule prohibiting lost profits damages claims by new businesses.  The Court rejected the NBR as a *per se* bar on all lost profits damages claims and, instead, held that the “reasonable certainty” standard applied.  However, the Court expressly recognized that it is “substantially more difficult” for a new business (such as Plaintiffs) to prove lost profits damages with reasonable certainty.  Thus, it remains a significant threshold for businesses with no track history.  Further, anticipating the need to limit the presentation of marginal cases, the Supreme Court instructed that trial courts should function as “gatekeepers,” eliminating on motion any such claims which cannot meet that standard.  The Supreme Court then remanded the case to the trial court for an assessment of Plaintiffs’ claims utilizing the new standard.  On remand the trial court appropriately undertook its “gatekeeper” function and after a Rule 104 hearing determined that given Plaintiffs’ prior experience and abilities, or complete lack thereof, and considering the complexity of the proposed business endeavor, [...] could not establish the capacity to undertake the development and earn a profit with “reasonable certainty. ”  Stated differently, as the court recognized, [...]’s contention that he could have built this project successfully, was highly speculative.  In fact, Plaintiffs’ claim that anyone, even a party lacking in experience, could undertake this type of project productively, was simply fanciful.  **PROCEDURAL HISTORY**
[brief] The two men traveled to and from the barbershop in the red Chrysler that [...] had rented.  (9T 89-21 to 95-23)  [...] was not alleged to have had any involvement in the crimes [...] committed.  [...] learned there would be a dice game that night from his friend, [...], who had lost $6000 playing dice at the barbershop two days before and was angry about it.  (9T 16-16 to 17-11; 9T 21-10; 13T 122-2 to 122-10)  At the time of the shooting, [...] was not in New Jersey; he, reportedly, left New Jersey on November 1 and went to North Carolina.  (13T 110-7 to 110-16; 14T 50-16 to 50-25)  A couple of days after the shooting, [...] drove to Virginia, picked up [...], and brought him back to New Jersey.
[brief] *See, e.g., Gibbins v. Kosuga*, 121 N.J. Super. 252 (Law Div. 1972); *Pruco Life Ins. Co. v. Koslowsky*, 2015 U.S. Dist. LEXIS 100515, at *12 (D.N.J. July 31, 2015).  Relatedly, the statute of limitations may be equitably tolled when the defendant, “through either intentional or unintentional fraud or concealment . . . causes the plaintiff to relax his vigilance or deviate from his duty of inquiry into the facts. ”  *Trinity Church v. Lawson-Bell*, 394 N.J. Super. 159, 168 (App. Div. 2007).  As discussed, the trial court certainly found facts supportive of the defendants taking steps to conceal their conduct from the Plaintiffs.
[brief] Respectfully submitted, By: s/ [...]  JILIAN MCLEER  Dated: July 18, 2024  [...] AND [...], INDIVIDUALLY, Plaintiffs-Respondents, v. [...], JOHN DOES 1-30 (A FICTITIOUS NAME FOR PERSONS PRESENTLY UNKNOWN) AND XYZ, INC. 1-10 (A FICTITIOUS NAME FOR A BUSINESS ENTITY PRESENTLY UNKNOWN)  Defendants, And [...], Intervenor/Defendant  Superior Court of New Jersey Law Division: Ocean County  DOCKET NO: [...] ON APPEAL FROM THE FINAL ORDER
[brief] (Pa1683).  In fact, the first, and only time [...] raised this issue was in its reply brief to its original summary judgment motion.  Since the first time that [...] raised this argument was in its’ reply brief, Plaintiffs were deprived of their opportunity to address it because the court failed to hold oral argument.  This argument by [...] actually underscores another reason why oral argument is important.  Finally, [...] cannot have it both ways.  They cannot, on the one hand, argue that any negligence on its’ part was the result of a plan or design but then, on the other hand, argue that it was not part of the plan to identify, fix, or warn users of the Parkway of dangerous conditions.  In other words, in order to meet their burden of proof for derivative immunity, Defendants would have to concede that it was “part of the plan” to identify, fix, or warn of roadway conditions.  Nevertheless, [...] does not even attempt to support the argument.  IV.
[brief] REPLY POINT TWO (Addressing [...]’s Waiver and Jurisdiction Arguments in Point I. B. and Point I. C. of Opposition Brief; Db25–Db26; Db26–Db28)  Lack of subject matter jurisdiction is a non-waivable offense.  [...] fails to establish that the Superior Court, Law Division, retains jurisdiction to adjudicate [...]’s Counterclaim for enforcement of an 18A statute applicable only to school districts and thus under the Commissioner’s jurisdiction.  To the contrary, the Commissioner retains jurisdiction over [...]’s attempt to adjudicate its school law claim under Title 18A.  REPLY POINT THREE (Addressing [...]’s Private Right to a Cause of Action Argument in Point I. D. of Opposition Brief – Db28–Db30)
[brief] Plaintiff filed its Amended Complaint on August 26, 2020.  (1a).  Defendants [...] d/b/a [...] filed their Amended Answer to the Plaintiff’s Amended Complaint with crossclaims on September 21, 2020.  (23a).  Defendant / Third-Party Plaintiff [...] filed its First Amended Answer to the Amended Complaint with Fifth Amended Third Party Complaint on January 24, 2022.  (6a).  The Third-Party Defendants filed their Answer to the Fifth Amended Third Party Complaint on October 5, 2022.
[brief] *Dunns* is a case about limiting the *State’s* right to withdraw from a plea agreement, not the *defendant’s* right.  In *Dunns*, “[t]he State and defendant negotiated two plea agreements, entered on different dates, to resolve the multitude of charges” that were charged in “several indictments. ”  *Id.* at *1*.  The defendant won an appeal on the denial of a severance motion and sought to withdraw from only one plea agreement.  *Ibid.*  The State sought to vacate both agreements, arguing that they were part of a global resolution.  *Ibid.*  This Court affirmed the order denying the State’s motion, noting that while our Court Rules “explicitly preserv[e] a defendant’s right to seek withdrawal from a plea agreement under certain circumstances . . .
[brief] ” (PPCla369-71).  On the Final Judgment against [...], the Court added the following language, “This motion was filed on January 6, 2023.  On January 30, 2023, [...], Esq. [counsel for [...]], confirm that the defendant [...] Transport, LLC received a copy of this motion for partial summary judgment.  On 2/6/2023, [...] Esq. was relieved as counsel.  [...] Transport, LLC has not opposed this motion in the 3 months that this motion has been pending. ” (PPCla369-71).  “On July 31, 2023, the Court granted [...]’s motion for reconsideration of the [April 6, 2023] order granting [...]’s summary judgment motion and having reconsidered such order, declined to vacate it.
[brief] TABLE OF JUDGMENTS, ORDERS, AND RULINGS  Order Granting Defendants’ Motion to Dismiss filed October 20, 2023…….. Pa155 Order Denying Plaintiff’s Cross-Motion to Vacate Default Judgment, Transfer, and Consolidate filed October 20, 2023 ................................................................. Pa157 # TABLE OF AUTHORITIES | Case Name | Page(s) | |------------------------------------------------|---------| | **Federal Cases** | | | *Boyko v. Am. Int’l Grp., Inc.*, | 16, 17 | | Civil No. 08-2214 (RBK/JS), 2009 WL 5194431 | | | (D.N.J. Dec. 23, 2009) | | | *Browne v. Nat’l Collegiate Student Loan Tr.*, | 10, 15, 20| | Civ. No. 21-11871 (KM) (JSA), 2021 WL 6062306 | | | (D.N.J. Dec. 22, 2021) | | | *Chulsky v. Hudson L. Offs., P.C.*, | 17 | | 777 F. Supp. 2d 823 (D.N.J. 2011) | | | *Excel Pharmacy Servs., LLC v. Liberty Mut. Ins. Co.*, | 11 | | 825 F. App’x 65 (3d Cir. 2020) | | | *Gomez v. Forster & Garbus LLP*, | 17, 18 | | Civil Action No. 2:17-13708 (MCA) (MAH), 2019 WL 5418090 | | | (D.N.J. Oct. 22, 2019) | | | *Jubelt v. United N. Bankers, Ltd.*, | 10 | | Civil Action No. 13-7150 (ES)(MAH), 2015 WL 3970227 | | | (D.N.J. June 30, 2015) | | | *Katz v. Ambit Ne., LLC*, | 19 | | Case No. 3:20-cv-1289-BRM-DEA, 2020 WL 5542780 | | | (D.N.J. Sept. 16, 2020) | | | *Kaul v. Christie*, | 24 | | 372 F. Supp. 3d 206 (D.N.J. 2019) | | | *Leeder v. Feinstein*, | 16 | | Civil Action No. 3:18-cv-12384-BRM-DEA, 2019 WL 2710794 | | | (D.N.J. June 28, 2019) | | | *North v. Portfolio Recovery Assocs., LLC*, | 10 | | Case No. 2:20-cv-20190 (BRM) (JSA), 2021 WL 4398650 | | | (D.N.J. Sept. 24, 2021)
[brief] [...], [...], Commission Docket No. [...].  More specifically, and although Respondent [...] argued that the statements attributed to her by Complainant [...] “were not made in her capacity as a Board member and [did] not relate to her Board membership or to Board actions,” the Commission found that “the statements on her Facebook page [were] clearly linked to her Board membership (and candidacy),” her social media page did not have a disclaimer noting that the statements made were her own and unrelated to the Board, and that, as a result, “it [was] reasonable for a member of the public … to perceive the statements as being made by Respondent in her capacity as Board member.
[directive] 12.  Have you or any relative or close personal friend ever brought a claim against a doctor, chiropractor, dentist, nurse or hospital for an injury allegedly caused by a doctor, dentist, nurse or hospital?  Model Civil Jury Voir Dire Questions Revised as Promulgated by Directive #4-07 Page 10 of 11  13.  Have you or any relative or close personal friend ever considered bringing a medical or dental negligence action but did not do so?  14.  Have you or any relative or close personal friend ever been involved with treatment which did not produce the desired outcome?  Model Civil Jury Voir Dire Questions Revised as Promulgated by Directive #4-07  Page 11 of 11  MODEL JURY SELECTION QUESTIONS