ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[directive] Subject to the provisions of Section 10.2 of this Policy, nothing in this paragraph is intended to prevent the officer from considering, reviewing or receiving an accounting of such a BWC recording subsequent to the creation of any required initial reports, statements, and interviews regarding the recorded event.  10.3.1  While information culled from the BWC recording may not be considered in creating an initial required report, statement or interview, after the creation of such initial report, statement or interview, in a case not subject to the provisions of Section 10.2 of this Policy, the officer may review the BWC recording and, if appropriate, create additional reports or make additional statements or documentation that revise or supplement the initial report, BODY WORN CAMERA POLICY | May 2021 24 statement or interview that incorporate or reflect any information adduced from a review or accounting of the BWC recording.
[brief] (Pa702).  The Subject Property and Subject Structure  The Subject Property is located in the “Monmouth Hills” section of Middletown in an R-45 residential zone district.  (Pa525-526; Pa102).  The Subject Property is irregularly shaped and abuts two (2) separate roadways ([...] and [...]) as well as a walking path known as “[...]. ” (Pa525-526; Pa102; SDa002).  [...] is on the uphill side of the Subject Property and is the only means of accessing the Subject Property by vehicle.  (Pa526; Pa102).  [...] is downhill side of the Subject Property.  (Pa526).  The Subject Property is situated on steep slopes defined to be “critical areas” under the Middletown Planning and Development Regulations, § 540-624 A. (“PDR”).  (Pa445-446; Pa103).  Approximately 54.6% of the Subject Property contains slopes in excess of 25% and defined to be “Class I Critical Areas. ” (Pa446; Pa103; SDa003; SDa027).  A further 29.6% of the Subject Property has slopes of between 15% and 25% and defined to be “Class II Critical Areas. ” (Pa446; Pa103; SDa003; SDa027).  In all, 84.2% of the Subject Property contains slopes defined to be Class I Critical Areas and Class II Critical Areas.  (Pa446; Pa103; SDa003; SDa027).  The Subject Property has a highpoint of as much as 207’ above sea level and a low point of approximately 155’ above sea level for a 52’ change in elevation from the front of the lot to the rear of the lot.  (Pa444; Pa103).  The extent and severity of the “critical” slopes on the undersized lot make a horizontal expansion of the existing undersized home impractical and dictate a vertical build.
[brief] PROCEDURAL HISTORY  On August 10, 2021, Plaintiff filed her Class Action Complaint in the Superior Court.  On November 19, 2021, Defendant filed its motion to dismiss the Complaint pursuant to R. 4:6-2(e).  On January 18, 2022, Plaintiff filed her First Amended Class Action Complaint and then argued that the amended pleading mooted Defendant’s motion.  On August 18, 2022, the motion court granted Defendant’s motion to dismiss the Complaint without prejudice and granted leave to re-plead.  Pa138.  On September 1, 2022, Plaintiff filed her Second Amended Class Action Complaint.  Pa1.  On September 21, 2022, Defendant filed its motion to dismiss the Second Amended Complaint.  Pa163.  The motion court conducted a motion hearing on January 20, 2023.  T1.  On January 18, 2024, the motion court granted Defendant’s motion to dismiss the Second Amended Complaint with prejudice.  Pa28.  On February 20, 2024, Plaintiff appealed.
[brief] [...]  [...], Esq.(030492002)  [...]  [...], Esq.(014112012)  [...]  [...] [...]  Attorneys for Defendants/Appellants TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................. v TABLE OF JUDGMENTS, ORDERS AND RULINGS ........................................ vii TABLE OF APPENDIX ...................................................................................... viii PRELIMINARY STATEMENT ............................................................................. 1 PROCEDURAL HISTORY ................................................................................... 4 STATEMENT OF FACTS .................................................................................... 4 LEGAL ARGUMENT .......................................................................................... 12 POINT I STANDARD OF REVIEW ............................................................................... 12 POINT II PLAINTIFF’S CLAIMS ARE TIME-BARRED BECAUSE THE APPLICABLE SIX YEAR STATUTE OF LIMITATIONS ON THE $50,000 AND $330,000 LOAN HAS EXPIRED (Da1-69) ....................................................................................... 13 POINT III PLAINTIFF’S CLAIMS MUST BE DISMISSED BECAUSE HE HAS NOT PROVEN THE ALLEGED THIRD LOAN WAS A PAY-WHEN-ABLE LOAN (Da1-69) ................................................. 21 A. The Concept Of “Pay-When-Able Loans” Is Not Binding On This Court (Da1-69) .................................................................
[brief] ” (3T9-1 to 23; 3T11-16 to 25).  [...] had also originally testified (on May 21, 2019) that he had parked on the same side of the street as [...] and Defendant and saw them walk to Apartment “9B,” at the continued hearing on Sept.23, 2019, when it was pointed out that the entrance to “9B” could not be seen from that location, he stated that he was on the same side of the street and had exited his vehicle at the time.  He also acknowledged that he had mis-identified the door leading to Apartment 9B on an exhibit at the prior hearing.  (3T32-8 to 3T35-3; 3T33-9 to 10).  1 to 15).  After [...] left, [...] opened the BMW and retrieved a small “lockbox” about half the size of a “lunch box” and walked back in the direction of the apartment.  (1T20-1 to 23).  At his time there were numerous law enforcement officers -- including from the federal DEA, the New Jersey State Police, and the Illinois State Police – at the scene.
[brief] See also State v. McLaughlin, 310 N.J. Super. 242 (App. Div. 1998); State v. Wiggins, 291 N.J. Super. 441 (App. Div. 1996); State v. Furguson, 198 N.J. Super. 395 (App. Div. 1985).  “Indigent defendants represented by court- appointed counsel do not have a right to choose their lawyer. ”  *State v. Maisonet*, 245 N.J. 552, 565 (2021).  “The right to assigned counsel is not the right to select counsel who will completely satisfy a defendant’s fancy as to how he is to be represented. ”  *State v. Rinaldi*, 58 N.J. Super. 209, 214 (1960).  “If a defendant has good cause for substituting counsel, the trial court should entertain a request.  Disagreement over defense strategy, however, does not rise to the level of good cause. ”
[directive] Definitions  The following words and terms, when used in this policy, shall have the following meanings unless the context clearly indicates otherwise.  Ammunition.  Equivalent load.  Ammunition used in training programs that resembles the service load in size, weight, velocity, recoil and trajectory, but not carried as service ammunition.  (.223 ammunition between 50 to 69gr is exempt from this provision since all rounds in this spectrum test as equivalent)  Service load.  Ammunition authorized by the agency and issued for duty use.  Automatic Assault Weapons.  Any firearm, mechanism or instrument which does not require that the trigger be pressed for each shot and has a reservoir, belt, magazine or other means of storing and carrying ammunition which can be loaded into the firearm, mechanism or instrument and fired therefrom, regardless of barrel length.
[brief] The case law is rife with cases such as this, where employees who bring these suits are upset with the way there were treated at work and just general workplace gripes and unpleasantness with their boss.  Clearly it does not give rise to a claim for CEPA.  And internal disputes within the workplace are not criminal harassment.  They are just that, just disagreements within the workplace, unhappiness with their supervisor, and this one isolated incident where [...] screams and yells at [...] is not a basis in my view of criminal harassment.  [1T 29:5-15.]  As the trial court found, the record showed only that [...] was a difficult boss to work for.  [...] has failed to identify any evidence in the record that would allow a reasonable jury to find otherwise.  On this record, even granting her all reasonable inferences of fact, [...] could not have reasonably and objectively believed that [...]’s management style constituted *criminal* harassment.
[brief] On Appeal From: Superior Court of New Jersey Law Division, Middlesex County  Sat Below: Hon. [...] J.S.C.  Trial Court  Docket No.: Docket No. [...]  [...], [...], [...], D.C., [...], [...], D.C., [...], M.D., [...], ESQ., [...], D.O., D.C., [...], D.O., [...], M.D., [...], M.D., [...], D.O., [...], D.O., [...], M.D., [...], M.D., [...], M.D., [...], M.D., [...], M.D., Defendants-Respondents.  REPLY BRIEF OF PLAINTIFFS-APPELLANTS
[brief] ”  Id., at 24-25 (citing United States v. Evans, 892 F. Supp. 2d 949, 956 (N.D. Ill. 2012) (holding that estimations of cell tower coverage areas require scientific calculations and consideration of external factors)).  Of note, the New Jersey Supreme Court’s ruling in Burney occurred just recently on August 2, 2023.  At the time of this matter’s Frye hearing, the State was correct that this type of data had been found to be admissible by the Appellate Division.  See State v. Burney, 471 N.J. Super. 297 (App. Div. 2022).  However, the Supreme Court has subsequently overturned that ruling, affirming Defendant’s consistent stance.  Burney, 255 N.J. at 31.  Here, [...], a fellow CAST agent and expert on interpreting the information given to him by [...], gave no factual evidence or data to support the accuracy of that information upon which his coverage sectors and opinions were based, relying only on his training and experience.  Under the New Jersey Supreme Court’s ruling in Burney, this testimony is inadmissible.
[brief] And specifically the components that have to be met is that the NJFPA defines a franchise as a written arrangement for a definite or indefinite period in which a person grants to another person a license to use a trade name, trade mark, service mark, or related characteristics and in which there is a community of interest in the marketing of goods and services at wholesale retail by a lease agreement or otherwise.  T4 at 3:25-4:11  I don’t find that there was a written arrangement...I find that there was no palpably incorrect decision by the Court in determining that there was no written arrangement that would have satisfied and created a franchise between [...] and [...].  Id. at 6:16-17; 7:3-7.  Tellingly, in its Motion to Amend the March 27, 2023 Order, Appellant wrote the following:  At the oral argument on March 27, 2023, this Court granted [...]’s Motion for Summary Judgment based solely on the conclusion that [...] did not present evidence of a “written arrangement” wherein [...] granted [...] a “license. ”  As such, Appellant’s argument is disingenuous.  Although a feigned and failing argument, Appellant did not raise this argument in the lower court and is therefore barred from doing so before this Court.  Unless an issue goes to the jurisdiction of the trial court or concerns matters of substantial public interest, the appellate court will not consider it.  See State v. Jones, 232 N.J. 308, 321 (2018); Zaman v. Felton, 219 N.J. 199, 227 (2014); State v. Robinson, 200 N.J. 1, 20-22 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).  See Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2 (2021).  Even if the Court considered Plaintiff’s misguided arguments, they fail for the same reasons stated above.  The case law and statute hold that if there is no evidence of a written arrangement the analysis stops, so too, should this Court find that there was no error in the trial court’s assessment, which evaluated the facts at the summary judgment phase and then again under a motion to amend an order, finding no written arrangement both times.  There certainly was no written agreement in this case and as the trial court correctly held, there was no written arrangement.  The supposed franchisee must meet each requirement of the NJFPA.  Therefore, in finding there was no written arrangement, the trial court correctly dismissed all of [...]’s claims against [...].
[brief] Plaintiff in this action asserted nursing malpractice and violations of New Jersey’s Nursing Home Responsibilities and Rights of Residents Act (“NHA”), N.J.S.A. 30:13-1 to -17, arising from allegations that due to inadequate tracheostomy care, decedent [...] developed a mucus plug causing his death during his January 13 to 15, 2016 admission to [...].  At the conclusion of a three week trial, the jury found first, that defendant [...] deviated from the accepted standard of care applicable to a long term care facility, but that deviation did not proximately cause any injury or damages to [...].  Second, [...]’s nursing staff did not deviate from the standard of care applicable to nurses.  Third, [...] did not violate [...]’s rights under the NHA, specifically his right to a safe and decent living environment and considerate and respectful care that recognized his dignity and individuality.  The jury thus did not answer the remaining questions on the verdict sheet, relating to proximate cause and damages, and returned a verdict in favor of the defendant.  Thereafter, plaintiff’s motion for a new trial was denied.  Plaintiff appeals, asserting that cumulative errors relating to the admission of evidence resulted in an inconsistent verdict holding that although the defendant violated the standard of care, there was no proximate cause and no violation of the decedent’s rights under the NHA.
[brief] The arbitrator failed to provide a reasoned explanation or identify the weight that he gave the 16(g) factors, “especially the public interest and internal pattern of settlement criteria,” in his salary increase award.  The arbitrator awarded the sum of $300,000 in retro pay for August 1, 2022 through July 31, 2023, and $150,000 for the period August 1, 2023 through December 31, 2023.  No other retro pay was awarded.  (Aa149).  He provided his distribution of the $450,000 total retro pay in Appendix D to the Award.  The arbitrator failed to identify or provide a reasoned explanation of the weight that he accorded the retro pay awarded.  In the record, [...] identified $370,000 in reserves in the 2023 budget that was available to fund the retro pay.  (Aa120).  The Award indicates that there is an available levy cap bank of $1,253,156 for use in CY 2024-2025.  (Aa117).  The arbitrator then indicates that [...] could use this available levy cap bank to “bridge the $80,000 difference in retro pay between [...]’s cost-out of its proposal ($370,000) and the undersigned’s $450,000 award of retro pay (2022-2023: $300,000 and 2023-December 31, 2023: $150,000. ” (Aa117).  While the foregoing identifies [...]’s ability to pay the $450,000 retro pay, it fails to explain the rationale for awarding only a fraction of the retro pay that could have been awarded for the contract period, August 1, 2019 through December 31, 2023.
[brief] Plaintiff cites to his deposition transcript at 48:24-49-10 to support this.  “Q  That's what I want to know.  A  Very easy.  The person that -- I'm not sure if she's still there.  I would go on a regular basis to the accountant and asked them, which you should have a record of, what they owe me.  Q  And what would they tell you?  A  The exact amount of what was owed to me, which is the matter of this lawsuit.  Q  Right.  And so how did you keep a record -- how much are you suing [...] for?  A 255,000.
[brief] Q: This photograph is your hospital that you are president of, correct?  A: Yes.  Q: This shows a special parking lot you administrators park in very close to the building, yes?  A: Yes.  Q: Sidewalk all around it, correct?  A: Yes.  [Pa553 (54:11-18) (emphasis added). ]  Q:  Here’s P-75 and P-75 shows the entire parking lot, back parking lot in the closest to the building.  That’s the patient and visitor parking and those to the left side is employees parking, correct?  [...]: Objection.  Go ahead.  A: Correct, all the horizontal rows in the spots along the perimeter for team members, the back half.  Q: So, the parking that’s closer to the building with the sidewalks and the fencing and the signs, those are for visitors and patients, correct?  A: Correct.  [Pa554-5 (55:15-56:1) (emphasis added); see also Pa379 for the photograph of the parking lot referenced in the above testimony.]  Q: So, the patients and visitors are in this yellow that’s got the new sidewalk, got the fencing, got the signage, yes?  [...]: Objection.  Go ahead.  A: Yes, and it has a sidewalk along the driveway.  Q: Well, here’s P-56, here’s P-56, you see the peninsula down there, the peninsula right there?  A: Yes.  Q: Everything to the left belongs to employees parking there, correct?  [...]: Objection.  Go ahead.  A: Correct.  Q: Where is the speed limit sign on this parking lot?  [...]: Objection.  Go ahead.  A: I don’t see any.  Q: As the president of your hospital do you think for the safety and security of your employees you should have:  Do not speed, caution, people crossing signs up and about?  [...]: Objection.  Go ahead.  A: Not necessarily.  [Pa556-7 (57:2-58:2) (emphasis added); see also Pa 379 for the marked photograph of the parking lot referenced in the above testimony.]  As noted above, the distant area of the parking lot where [...] was required to park on October 6, 2021 had none of the pedestrian safeguards that [...] provided for hospital management and physicians, despite the fact that [...] was required to traverse a much greater distance across the busy parking lot to get to work.
[brief] In addition, the Trial Court was clearly incorrect that Plaintiffs failed to provide facts to support their claims that [...] made misrepresentations to them.  Though it is reduced to a footnote in the Trial Court’s Statement of Reasons, the revelations of said footnote are monumental, and the Trial Court’s error must be reversed.  The Court erroneously stated in footnote 6 in its Statement of Reasons that “Plaintiffs’ opposition papers contained no exhibits. ”  414a.  Accordingly, to the extent Plaintiffs cited to evidence in the record in their opposition papers, the Court admitted that no such evidence was reviewed, since the Court erroneously believed that no such evidence was “provided to the court. ”  This statement by the Trial Court is self-evidently erroneous and clearly reversible error.
[brief] Later that same day, this deal fell through.  In a recorded conversation, [...] discussed this with [...] and referred to the plan to use [...] and the [...] to act against [...], “So, here’s what I’m thinking about.  I just talked to Tambussi . . .  I want to go in, I want to encourage Tambussi to do his thing . . .  I think we just do it.  F**k ‘em.  F**k ‘em.  Just do it. ”  [(Indictment, pages 55-56, Pa63-Pa64) (emphasis added).
[brief] There was no holding in *Pivnick v. Beck* that the trust instrument was ambiguous.  Indeed, the Supreme Court made plain that the instruments in question were “unambiguous”.  165 N.J. at 671.  In *Pivnick v. Beck*, there was no claim that the instrument was ambiguous, in fact, Plaintiff in the malpractice action has sought a reformation of the trust agreement in recognition that the trust agreements expressed an intention contrary to what the Plaintiff maintained was the testator’s actual intent.  Here, no one is claiming that the Will clearly expressed [...]’s intention – the Probate Court has found that it was ambiguous, thus requiring the importation of the doctrine of probable intent.  It is Plaintiff’s position that had Defendant drafted an unambiguous Will reflecting [...]’s intention, there would have been no litigation and [...] would have received the benefit of the forgiveness of the mortgage as [...] had intended.
[brief] *Id.* at *9*.  The District Court also allowed Appellant thirty days to amend her complaint and cure the noted deficiencies to the extent possible, but she did not file an amended complaint in the Federal Action.  *Id.* at *12.  Instead, on January 21, 2023, Appellant filed the class action lawsuit underlying this appeal.  As in the Federal Action, Appellant’s claims rely solely on the Obligation purportedly being void and unenforceable because [...] was not licensed under the NJCFLA when [...], the licensed servicing entity, sought to collect the Obligation.  Compl. ¶ 79-93 (Pa14).  Appellant asserted four claims based on [...] not being licensed under the NJCFLA: (1) a declaration that all class debts and judgments are void and unenforceable and an injunction precluding further collection; (2) relief under the CFA based on the purported purchase of merchandise from Respondents and resulting ascertainable loss due to unlicensed collection activity; (3) unjust enrichment based on amounts paid by purported class members (but not by Appellant); and (4) relief under the FDCPA.
[brief] The $3,889,835.14  Judgment awarded to [...] is over-secured by a $10 million payment bond procured by [...] to secure its obligations under the PTA.  Da504-509.⁴  Almost immediately following the entry of the Judgment and [...]’s subsequent appeal, [...] filed a Motion to Stay Execution of the Judgment Pending the Appeal (“Motion to Stay”), identifying the parties’ Payment Bond that fully secures the Judgment.  Da498-499.  On July 19, 2024, the Trial Court granted [...]’s Motion to Stay, ordering that execution of the Judgment was stayed pending [...]’s appeal and finding that [...] had not “identified any reason” that approval of the Payment Bond as a form of security in lieu of a ⁴  Specifically, the PTA requires [...]’s obligations to [...] under the PTA to be “secured by a credit instrument or payment bond in a form acceptable to [...] . . . in the amount of Ten Million and No/100 Dollars ($10,000,000.00). ”  Da513.  [...]’s obligations to [...] includes the “Project Installments” at issue in the Arbitration plus interest.  Da512.  Just before executing the PTA, [...] dutifully obtained a bond dated May 31, 2019 (the “Payment Bond”) from [...] and [...] (the “Sureties”).  Da504-509.  [...] accepted the form of Payment Bond, which by its terms “remain[s] in full force and effect until [...] “satisf[ies] its payment obligations under Section 1.7 and Article 3 of the [PTA].”  Da504.  Further, the “Sureties’ obligations hereunder shall not arise unless . . . [[...]] is in default under the [PTA] by failing to satisfy its payment obligations under Article 3 of the [PTA].”  Id. redundant supersedeas bond “would be inadequate or unjust” (the “Order to Stay”).  Da517-526.  [...] filed a motion for summary disposition, a motion to expedite the appeal, and motion to vacate the stay which this Court denied in full by Order dated September 6, 2024.  Da527.
[brief] Here, the Court entered the October 6, 2023 Order discharging the Receiver despite the fact that a Final Accounting was never provided by [...] because “a final accounting would be very expensive. ”  Cal42.  A Final Accounting is essential to provide all interested parties (i.e. creditors) with the opportunity to confirm that all assets, and debts, were administered correctly during the receivership.  A Final Accounting provides transparency as to what fees/commissions were paid to the Receiver, how the earnings generated by the diner were disposed of, what creditors/vendors were paid, etc.  It potentially could result in payments being clawed back if the payments made by the Receiver were improper.  Creditors such as [...] or the [...] should not be required to take the Receiver on his representation that he believes he has fulfilled his obligations in connection with his appointment.  A receivership can only be terminated by Court Order after approval of the Final Accounting.  R. 4:53-7(d).  The Trial Court abused its discretion by discharging the Receiver despite his failure to submit a Final Accounting.