ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] See also A.B. v. S.E.W., 175 N.J. 588, 593-94 (2003) (same); Ross v. Rupert, 384 N.J. Super. 1, 9 (App. Div. 2006) (same); Smid v. N.J. Highway Auth., 268 N.J. Super. 306, 309 (App. Div. 1993) (same); [...] & [...], Current N.J. Court Rules, comment 5.6.2 on R. 4:50-1 ("Relief under this rule will not be accorded simply because of a change in the case law following the entry of final judgment.").  The second judge, citing Hartford, correctly understood and applied this principle to reject Defendants' assertion that they were entitled to relief under Tyler.  (3T92:1-23, 3T98:2-12).  Defendants are not entitled to relief under either Tyler or Roberto because the final judgment here predated both decisions, and that judgment was not on direct appeal during their issuance.  In fact, Defendants never appealed the final judgment.  Instead, eighty-seven days after its entry, Defendants filed a motion to vacate under R. 4:50-1. (90a-91a).  Filing a motion to vacate judgment under R. 4:50-1 does not, as Defendants contend, place a case “back in the pipeline. ”  First, there is no authority for that proposition.  Second, if it were true, every case could be placed back into the pipeline at any point through the mere filing of an R. 4:50-1 motion.  Third, that is not how pipeline retroactivity is defined.  A case is considered “in the pipeline” if it is pending (i.e. pre-final judgment) or on direct appeal from a final judgment.  See, e.g., Hand v. Philadelphia Ins. Co., 408 N.J. Super. 124, 146 (App. Div. 2009) (defining “in the pipeline” as cases that are “pending” or “on direct appeal”); N.H. v. H.H., 418 N.J. Super. 262, 285-86 (App. Div. 2011) (same); Zuccarelli v. State, Dep’t of Envtl. Prot., 326 N.J. Super. 372, 379 (App. Div. 1999) (defining pipeline retroactivity to include “all future cases, the case in which the rule is announced, and any cases still on direct appeal. ”); Camacho v. Camacho, 381 N.J. Super. 395, 399-401 (Law Div. 2005) (observing that a case in the procedural posture of an R. 4:50-1 motion is not “in the pipeline” for retroactivity purposes).  Accordingly, the trial judge correctly concluded that Defendants are not entitled to relief under R. 4:50-1 based on the Tyler case. \(^{10}\) \(^{10}\)  The Roberto case came out several weeks after the second judge denied Defendants’ motion for reconsideration and to vacate.  The identical reasoning applies: Hartford forbids use of a new case to vacate a judgment under R. 4:50-1.
[brief] See also Bressman v. Gash, 131 N.J. 517, 526-528 (1993); Randolph Town Ctr. v.  Randolph Twp., 324 N.J. Super. 412, 418 (App. Div. 1999).  Further, in Kaufmann v. Planning Bd. for Warren Twp., 110 N.J. 551, 558 (1988), the N.J. Supreme Court determined that, “land use decisions are entrusted to the sound discretion of the municipal boards, which are to be guided by the positive and negative criteria set forth in the enabling statutes."
[brief] This argument fails for two separate reasons.  First, the Court applied the correct statute of frauds.  Second even if the Court failed to apply the correct statute of frauds the Court clarified in its ruling on Plaintiff’s \(^3\)  Even if the verbal conversation with [...] was an effective rescission of the termination notice as to [...], such a rescission would not reinstate any personal guaranty by [...] or [...] as a rescission of the termination of the lease would constitute a material enlargement to the obligations of [...] and [...] without their consent which has the effect of terminating any further obligation under the original guaranty.  See Ctr. 48 Ltd. P’ship v. May Dept. Stores Co., 355 N.J. Super. 390, 394 (App. Div. 2002) (guarantor is discharged if there is an alteration or modification of the underlying lease that injures the guarantor or increases its risk or liability under the guaranty).
[brief] [...] submitted the apparent low bid at $70,865,354.00 (“[...] Bid”).  As required by [...] bid specifications, [...] submitted [...]’s prescribed form of Consent of Surety with its bid, executed by an individual, [...], purportedly acting on behalf of [...].  The Consent of Surety, if valid, would obligate the surety company to issue the required performance bond in favor of [...] in the amount of 100% of the proposal if [...] were awarded, and executed the Contract.  The performance bond would then remain in effect the entire duration of the Redecking Project until completion and acceptance of the underlying work.  Unfortunately, [...] failed to submit a power of attorney (“POA”) on behalf of Liberty Mutual attesting to the fact that Ms. Acosta was duly authorized to execute the Consent of Surety.  Instead, the POA that \textit{was} submitted only authorized Ms. --- \(^1\)  The NB-HCE is an extension of the New Jersey Turnpike that connects Newark and Jersey City near the Holland Tunnel.  There are three (3) zones of the NB-HCE, identified as Zone 1, Zone 2, and Zone 3.  Only Zones 2 and 3, as described in the Concise Statement of Facts, are the subject of the Redecking Project.  Acosta to execute the Proposal Bond, which operates to secure the contracting agency in an amount not to exceed 10% of the bid and only until award and execution of the Contract, when the full performance bond in the amount of 100% of the bid is delivered.  Absent submission of the surety’s legal authorization for Ms. Acosta to sign the Consent of Surety in addition to the Proposal Bond, at bid submission the practical effect was tantamount to submitting no Consent of Surety at all.  Thus, [...] lacked any assurance, at the time of bid submission, that the surety would stand behind the obligation and issue the necessary performance bonds at the time of contract execution.  It is black letter law that failure to submit a binding Consent of Surety in proper form, at the time of submission of the bid, is a material and non-waiveable defect requiring mandatory rejection of the bid.  [...] was thus without discretion to waive this patent defect and acted accordingly.  As a result of the failure, by Liberty Mutual’s attorney-in-fact, Ms. Acosta, to obtain a POA in proper form, [...] was left with no choice but to award the Redecking Project to the second low bidder, [...] (“[...]”), as the lowest responsible bidder at $80,735,000.00.  While this is approximately $10M higher than [...]’s bid, [...]’s bid was still significantly below the [...]’s engineer’s pre-bid estimate of $98,696,937.40 and thus, there was no basis to re-bid the project or do anything other than award to the lowest responsible and responsive bidder.
[brief] [...]’s other arguments are also without merit.  For instance, [...]’s unsupported contention that the Legislature did not intend to “broaden the scope” of the common-law public trust doctrine (Ab15), is refuted by the legislative practice in New Jersey to routinely reshape common-law doctrines.  See Wyzykowski v. Rizas, 132 N.J. 509, 529 (1993) (common-law doctrines relating to the office of local public officials influenced by enactment the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to -22.25); Allen v. Fauver, 167 N.J. 69, 75 (2001) (the Legislature responded to the common-law issue of sovereign immunity abrogation by passing the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and the Contractual Liability Act, N.J.S.A. 59:13-1 to 13-10).
[brief] (1T1:1-57:19).  Petitioner’s counsel followed up with [...] asking, “You would agree with me also that on a keyboard, a nine is next to a zero, is it not?  (2T38:2-3).  [...] again agreed with counsel’s statement.  (2T38:4).  Ultimately, Petitioner’s counsel asked, “so would you agree with me that, it’s more likely than not that this is a typographical error and this actual 2009 reference is really for the year 2009 incident?” (2T39:11-14).  [...] again agreed, but clarified his agreement was “based upon that there was no formal worker’s comp issue on the court’s online. ” (2T39:15-17).  During Petitioner’s testimony he was asked about the 2009 incident and never denied that it occurred.
[brief] The Superior Court incorrectly found that [...]’s claim was procedurally barred under Rule 3:22-12(a)(2)(B).  To the contrary, [...]’s instant petition for post-conviction relief was timely filed within the limitations imposed by Rule 3:22-12(a)(2)(B)—within one year of his discovery of [...]’ Sworn Statement.  Thus, the petition should have been considered on the merits by the Superior Court in accordance with Rule 3:22-12(a)(2)(B), or alternatively, on the grounds that his petition alleges a constitutional violation.
[brief] When asked whether it was correct that, “[i]n a sense there was a deal with the developer, a contract and the current developer” and the “current plaintiff wants to mess that up, right?” [...]’s attorney answered, “[g]enerally, yes” (id. at 26:4-9).  The court then denied Plaintiff’s request to restrain the Township from granting any type of development approval for any parcel of land for any purpose aside from an inclusionary development, determining essentially that that remedy would be overbroad because [...] was a “really big town” and there were all sorts of developments going on (id. at 47:19-20).
[brief] In contending that the Decedent was unable to talk coherently on the phone the week before she died, the Petitioner contends that the Chancery Division “disregarded Respondent's description of the Decedent during a facetime call that she and Petitioner had with Decedent a four to five days before she died. ” (Pb 30).  However, as the transcript shows, this facetime call was the final conversation between the Respondent and the Decedent.  At this point, the Decedent was placed on a ventilator, which was a “couple of days” before she died.  (11T145-20 to 146-18).  Thus, the fact that communication was difficult at this late hour is unsurprising.  By way of sharp contrast, the conversations the Decedent had with [...] and others -- including the Respondent -- took place a week or more before her death.  Here, the Petitioner ignores the Respondent’s other testimony, namely, that (1) on April 30, 2021 -- a week before her death on May 6, 2021 -- the Decedent called the Respondent to tell her to contact [...], and to let her know the Respondent’s mortgage with the Decedent was forgiven, and (2) the Decedent also texted the Respondent later that day to tell her how proud she was of her and her sobriety.
[brief] See Jarbath, 114 N.J. at 412.  On June 26, 2023, Appellant filed a motion with this Court seeking the assignment of pro bono counsel.  (Aa096-115).  That motion included a declaration by Appellant informing this Court that, at the time of filing, he maintained a bank account containing just $1,565.00.  (Aa100-102).  Moreover, Appellant has monthly expenses totaling $1,820.00, and is on administrative leave from his employment.  (Id.).  Ultimately, based on that information, this Court granted Appellant’s motion for the assignment of pro bono counsel in this appeal.  This is further evidence of Appellant’s indigent status and his inability to pay the $50.00 monthly fee imposed by [...].  [...] knew of Appellant’s indigence and nonetheless sentenced him to an unreasonable monthly payment plan.  In doing so, [...] abused his discretion in sentencing and, in the event this Court upholds [...]’s findings on Appellant’s guilt under N.J.S.A. 39:4-50, this Court should nonetheless remand this matter for re-sentencing consistent with Appellant’s indigent status.
[brief] TABLE OF JUDGMENTS .................................................................  iii TABLE OF APPENDIX ................................................................ iv  TABLE OF AUTHORITIES ..............................................................  vi  PRELIMINARY STATEMENT .........................................................  1 LEGAL ARGUMENT .....................................................................  2 POINT I – APPELLANT’S IN LIMINE MOTION BEFORE THE TRIAL COURT WAS PROCEDURALLY PROPER ...............  2 POINT II – RESPONDENT FAILS TO ADDRESS  APPELLANT’S ARGUMENTS AND INSTEAD RELIES UPON GENERAL CONDEMNATION LAW ...........................................  8 POINT III - RESPONDENT’S PLANNER ALSO UTILIZED INCORRECT “NEGOTIATED ZONING” UPON WHICH RESPONDENT’S APPRAISER BASED HIS ERRONEOUS ANALYSIS ............................................................................  14 CONCLUSION ...............................................................................
[brief] ”  Yet again, all of the contractual documents that the plaintiffs reviewed, initialed and signed expressly contradict this claim of oral misrepresentation:  “Purchaser(s) represent that this unit Interval is being purchased for their own personal vacation use and enjoyment and not because of any financial or monetary advantage…” (Da193, ¶13).  “Buyer also acknowledges, represents and warrants that the purchase of the Interval is made for the buyer’s personal use, and not for investment purposes …” (Da204, ¶22).  “Intervals should only be purchased for the personal enjoyment by a purchaser and his family.  Intervals are not designed to be investments …” (Da231-232, ¶10).  See [...]’s Statement of Facts, supra at 11, regarding the express contradictions as to “increase in value. ”  Fourth, nine (9) of the plaintiffs also claimed that they were told either that their timeshare interval was readily marketable, could be sold at any time, and/or that [...] would buy it back.
[brief] The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, guarantees an accused the right to have the assistance of counsel in order to protect his fundamental right to a fair trial.  Faretta v. California, 422 U.S. 806, 2532, 95 S.Ct. 2525, 45 L. Ed.2d 562, 572 (1975).
[brief] Therein, defendant was charged in seven counts.  (Da3-10) (“[...]”).  Count one charged second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1); count two charged fourth-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(d); count three charged third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(d); count four charged third-degree possession of controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-10(a); count five charged third-degree possession of CDS with intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); count six charged second- degree possession of CDS with intent to distribute within five hundred feet of a public housing complex, in violation of N.J.S.A. 2C:35-7.1(a); and count seven charged fourth-degree resisting arrest, in violation of N.J.S.A. 2C:29-2(a)(2).  The same Essex County Grand Jury that returned [...] also returned [...], the same day.  (Da11-12) (“[...]”).  It charged defendant with second-degree being a certain person not to possess a weapon, in violation of N.J.S.A. 2C:39-7(b)(1).  On March 6, 2023, defendant filed a motion to suppress the evidence in [...].  (Da26).  The trial court conducted a suppression hearing, with defendant present, on May 2, 2023.  (1T; see 1T3-1 to 9).  The court denied the motion by order dated August 15, 2023.  (Da25).  The same day, the court issued an accompanying written decision, containing its reasoning in support of its order.  (Da26-33).  On March 1, 2024, defendant pleaded guilty to count one of [...], which charged him with second-degree aggravated assault, and also to [...], which charged him with second-degree felon in possession of a weapon.  (2T; see 2T13-10 to 16-23).
[brief] Plaintiff was designated a Redeveloper by the City in 2016 to construct a single project at [...] and built that project pursuant to a Redevelopment Agreement entered into that same year.  (Pa1120 to Pa1154).  Having been designated a redeveloper for the construction of a single, particular project in the City and having entered into a Redeveloper Agreement for said purpose, it is antithetical to the language of those documents to claim that the Redeveloper designation extends ad infinitum.  The language and intent of the LRHL demonstrates the Legislature’s goal of delegating broad power to municipalities to effectuate redevelopment in order to correct and ameliorate economic deterioration.  See, supra, at Point II(a)(ii).  The objectives set forth by the Redevelopment Plan clearly indicate that the City sought to utilize its redevelopment powers for this very purpose, including but not limited to creating new land value, encouraging mixed-use development, and replacing vacant lots and poorly maintained buildings with new uses.
[brief] Thus, the Board, in its discretion, did not need to review the EIS and could properly wait until its review of [...]'s Application for Site Plan Approval.  The trial court accurately found that the Board demonstrated unequivocally that the submitted Subdivision Application conformed in all respects with the MLUL and the Ordinances.  Pa311-312.  This included the finding that the EIS was included in Exhibit A-1 entitled "Complete Application Package" which was introduced by the Board Secretary in advance of the hearing.  Pa312.  Further, the trial court found that the overall submission package contained certain reports and other material, including, but not limited to, the EIS, that the Board Engineer reviewed the EIS, and that the Applicant addressed all comments related to the document.  Ibid.  The Board Engineer concluded that the Subdivision and Site Plan Applications met "the intent of the Township design standards."  Pa199.  Further, the trial court found that the Board's Resolution specifically included a finding that the requested subdivision does not adversely affect the public's health, safety, or welfare.  Pa312.  Accordingly, [...]’s allegations that the Board was compelled to take testimony on the EIS is false.  The trial court properly found that the submission of the EIS and the Board’s deferment to consider the potential environmental impacts was more appropriate for the Site Plan Approval.  Pa312.  Therefore, the trial court’s decision should be upheld.
[brief] 31 Abbott v. Burke (Abbott IV), 149 N.J. 145 (1997) ............................................................................................................................  3 Abbott v. Burke (Abbott XIX), 196 N.J. 544 (2008) ............................................................................................................................  3 Abbott v. Burke (Abbott XX), 199 N.J. 140 (2009) ...........................................................................................................................30, 32 Abbott v. Burke (Abbott XXI), 206 N.J. 332 (2011)
[brief] In the same way the Courts have found that a consumer’s passive consent to an agreement waives a jury trial, *a fortiori* a creditor’s active choice to file a court action rather than an arbitration claim shows waiver by that creditor.  Here, completely aside from the filing of the Collection Complaint by [...], Defendants have waived arbitration by engaging in at least seventeen months of litigation, by filing an unsuccessful dispositive motion, by failing to assert arbitration as an affirmative defense and certifying that no arbitration proceedings were contemplated, and by delaying the progression of the litigation and failing to serve responses to discovery requests as part of their litigation strategy.  The trial court erred by 1) emphasizing only the ‘prolonged litigation’ in *Cole* without acknowledging that the instant litigation had gone on nearly the same amount of time, 2) by basing its reasoning on the erroneous premise that Defendants’ had asserted arbitration as a defense in their pleadings, 3) by effectively rewarding Defendants for their improper refusal to provide any responses to [...]’s discovery requests—withdrawing [...]’s discovery motions without offering any avenue of recourse or relief, and 4) by failing to acknowledge Morgan as controlling law and Defendants’ affirmative litigation conduct as inconsistent with the desire to compel arbitration.  Thus, the trial court’s November 22, 2023 Order granting Defendants’ Motion to Compel Arbitration must be reversed.
[brief] The decision below mentioned not only surveys, but undisputed facts, common sense, and a wealth of cases reaching the same conclusion.  See, e.g., (Da111) (discussing Sterling, 232 F.3d 190).  It hardly requires scientific evidence to find that, as compared to cisgender students, “some transgender students may feel more comfortable disclosing their gender identification or expression at school rather than at home. ” (Da109).  In other words, while studies and surveys corroborate the court’s conclusions, its holding does not depend on them.  (Da109-11).  ---
[brief] In the section of its brief titled SUMMARY OF ARGUMENT, Plaintiff offers that the Court’s Ruling on the motion and the trial were based on “justifiable jurisdiction as a judge in [a] landlord tenant case. ”  Plaintiff thereafter fails to cite to any legal authority for “justifiable jurisdiction as a judge in [a] landlord tenant case” or explain how such jurisdiction justified the tenancy court’s adjudication of the parties contested issues of ownership and on the basis of hearing argument on a pre trial motion to transfer.  In Point I of its brief, the Plaintiff asserts that due to the case’s factual basis in a landlord-tenant relationship the trial court properly had jurisdiction to determine the motion for transfer and hold trial for non payment of rent.  This position mirrors that of the trial court in the failure to understand that given the holding in Carr v. Johnson the jurisdiction the trial court initially had in the matter terminated once substantial issues directed at ownership of the property were raised.  In Point II of its brief, Plaintiff seeks to distinguish the instant case from Carr in that here the Plaintiff produced the deed and other writings that were indicative of ownership.  Misrepresenting the record, Plaintiff asserts that unlike Carr, there were no substantial issues raised below directed at title.  This attempt to minimize ignores that given [...]’s claims that she was not a tenant but the victim of a foreclosure rescue scam perpetuated by Plaintiff the court below did not have before it a contract of sale for the property.  The court also did not have a written lease evidencing a landlord-tenant relationship between the parties.  The record instead is that faced with the non existence of a contract of sale, the court below undertook a cursory examination of closing documents including the HUD 1.  Defendant submits that given the issues going to ownership that were present below no defense exists for the court’s failure to adhere to precedent.
[brief] (Da186).  The judge found aggravating factor three "because rehabilitative efforts, such as the Defendant's enrollment in Drug Court, and prior convictions have failed at deterring new offenses."  (Da186).  The judge found aggravating factor six "because the Defendant's criminal history includes five prior indicatable offenses."  (Da187).  The judge found aggravating factor nine "because there is a strong need to deter this Defendant, based on the seriousness and the extent of the Defendant's criminal record."  (Da187).  The judge declined to find mitigating factors three and four because "the Defendant has not established substantial grounds tending to excuse or justify his conduct."  (Da188).  The judge's assessment of the aggravating and mitigating factors was proper.