ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Because Plaintiff’s Counterstatements did not comply with the plain requirements of R. 4:46-2 and the holdings in Lyons v. Township of Wayne, 185 N.J. 426, 435 (2005) (mere annexation to a motion response of an exhibit list or even the exhibits themselves, without more, does not constitute compliance with R. 4:46-2) and Polzo v. County of Essex, 196 N.J. 569, 586 (2008) (the party opposing a summary judgment motion has the affirmative duty of responding in accordance with the R. 4:46-2(b)), the counterstatements should not have been considered by the trial court.  In any event, the proffered counterstatements were no more than self-serving assertions to attempt to defeat the motion, but self-serving assertions do not alone create a question of material fact sufficient to defeat a summary judgment motion.  Fargas v. Gorham, 276 N.J. Super. 135 (Law Div. 1994).  Finally, and most significantly, the proffered statements were immaterial, which was clear given that Plaintiff did not cite to a single one of his proffered counterstatements in his Brief.  A disputed issue of an immaterial fact does not preclude the grant of a motion for summary judgment.  Prant v. Sterling, 332 N.J. Super. 369, 377 (Ch. Div.), aff’d o.b., 332 N.J. Super. 292 (App. Div. 2000); Investors Bank v. Torres, 457 N.J. Super. 53, 64-65 (App. Div. 2018), aff’d, 243 N.J. 25 (2020); MEMO v. Sun National Bank, 374 N.J. Super. 556, 563 (App. Div. 2005), appeal dismissed, 217 N.J. 591 (2006).
[brief] Pra003-004 warrants a new trial,” despite no crossclaims for indemnification or request for CNA allocation).  The absence of indemnification and mandatory CNA allocation\(^6\) creates an inherent conflict because each defendant will be personally liable for damages under the IFPA and RICO after an adverse judgment.  That conflict is exacerbated by defendants’ improper litigation funding arrangement, that the Supreme Court expressly prohibited in *Grand Jury*.  The Supreme Court acknowledged the long recognized and self-evident truth that an attorney should not jointly represent an employer and the employee “if the employee’s interest may . . . be advanced by [his] disclosure of his employer’s criminal conduct” nor should the attorney accept payment “from one whose criminal liability may turn on the employee’s testimony.
[directive] e.  [예/Yes]  [아니요/No]  또한 귀하가 유죄를 인정하면 아래  명기된 사항을 제외한 모든 재판 전 아십니까?  요청사항들이 거부된 것에 대한 항소권을 포기한다는 것을 you are waiving  Do you further understand that by pleading guilty your right to appeal the denial of all other pretrial motions except the following:  5.  아십니까?  즉: 귀하가 유죄를 인정하면 다음과 같은 결과가  발생하는 것을  Do you understand that if you plead guilty:
[brief] The court considered that [...] indicated that he had good grades in school but seemingly ignored the fact that the school was a school for children with autism and disabilities.  (2T:67-4 to 25-1).  Moreover, the State presented no evidence regarding the defendant’s education and intelligence.  (1T:4-15 to 21-25); (1T:48-4 to 51-25).  However, in the Court’s decision, the Court burden shifted and stated that there was no evidence in the record regarding the juvenile’s education and intelligence to suggest that he didn’t understand his Miranda rights.  (2T:63-5 to 64-21).  The burden is on the State to prove that he did understand his Miranda rights and not on the defense to prove that he didn’t.  Presha 163 N.J. at 313.  Here, the only evidence in the record was that the defendant went to a school with kids with disabilities, slept with his parents despite being sixteen (16) years old and saw transparent woman and glowing white lights that were not there while growing up.  (1T:42-1 to 6);(1T:43-25 to 44-4);(1T:45-25 to 46-4); (1T:45-13 to 19).  Accordingly, the Court incorrectly shifted the burden to the defense to prove that the defendant did not understand his Miranda rights rather than placing the burden on the State to prove that he understood his Miranda rights.  d.  The Trial Court Erred in Finding That [...] Kologi Did Not Make An Ambiguous Assertion Of His Right To Remain Silent Prior To Questioning (2T:68-18 to 80-18)
[brief] The Order of 6/28/2012 (DA52) required Probation to “hold a hearing to resolve all discrepancies”; its Order of 7/20/2012 (DA51) ordered Probation to: “conduct an audit for the period commencing Oct. 1, 1998 “…This audit shall be conducted by way of a hearing that shall be on the record” and “Probation Department shall retain a copy of all documents provided by the Defendant in connection with the hearing/audit…”  However, Probation refused to comply with either of the court’s Orders, refused to consider Appellant’s evidence of payments in full for the period 10/2/1998 through 9/8/1999, and the Court declined to enforce its own Orders against Probation claiming it “didn’t know if it had the authority to order Probation. ”  The Orders have not been vacated, remain in effect, and still have not been enforced by the Court.  3.
[brief] I.  The Trial Court should have granted the Defense’s request for a mistrial, and the vague instruction given was inadequate to cure the admission of the prohibited evidence.  The State effectively concedes through its Counter-Statement of Relevant Facts that the judge who presided over the trial in this matter, the Honorable [...], J.S.C., did not issue a ruling on the Defense’s request for a mistrial.  Instead, the State creatively asks the Court to apply the same deferential abuse of discretion standard to the trial court’s so-called “refusal” to grant a mistrial.  [...] expressly reserved on the decision as to whether to declare a mistrial, and never revisited the issue on the record.  It would further be pure conjecture to presume that [...] intended to deny the Defense’s request merely because the issue was never re-addressed, particularly given his comments during the sidebar discussion with counsel.  (4T156:1-161:13).  [...] also did not address the offending statements during his final jury charge, which would be expected if [...] actively decided to deny the Defense’s request.  As such, there is no decision to afford deference, and the Court should assess whether a mistrial was warranted under a *de novo* standard.
[brief] [...]  d/b/a [...]  Dated: July 2, 2024  [...] and [...], in her individual capacity and as Power of Attorney for [...], v. [...], [...], [...], PFS INVESTMENTS, INC.  d/b/a/ PRIMERICA, [...], JOHN DOES 1-10, and XYZ COMPANIES 1-10.  SUPERIOR COURT OF NEW JERSEY – APPELLATE DIVISION  DOCKET NO. [...]  ON APPEAL FROM: SUPERIOR COURT OF NEW JERSEY, LAW DIVISION, HUDSON COUNTY DOCKET NO. [...] SAT BELOW: HON. [...], P.J.Cv. PLAINTIFFS-RESPONDENTS’ BRIEF IN OPPOSITION TO DEFENDANT-APPELLANT’S APPEAL OF THE TRIAL COURT’S ORDER DENYING DEFENDANT-APPELLANT’S MOTION TO COMPEL ARBITRATION  Of Counsel and  On the Brief: [...], Esq. (033392011)  [...], Esq. (305082019)  On the Brief: [...], Esq. (382312021) [...] [...] [...], [...]  Phone: [...]  Attorneys for Plaintiffs, Olga Martinez and Norma Pacheco, individually and in her capacity as Power of Attorney for Olga Martinez  TABLE OF CONTENTS TABLE OF JUDGMENTS, ORDERS, AND RULINGS BEING APPEALED ........................................................................................................ iii TABLE OF AUTHORITIES ................................................................................ iv PRELIMINARY STATEMENT ............................................................................. 1 PROCEDURAL HISTORY .................................................................................. 4 STATEMENT OF FACTS ....................................................................................
[brief] As a result, the Supreme Court has recognized a "strong preference for adjudication on the merits rather than final disposition for procedural reasons."  Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 356, 771 A.2d 1141 (2001) (quoting Mayfield v. Cnty. Med. Assocs., P.A., 335 N.J. Super. 198, 207, 762 A.2d 237 (App.Div.2000)).
[brief] *Housel v. Theodoridis*, 314 N.J. Super. 597, 604 (App. Div. 1998) (internal quotations and citations omitted).  The non-movant must “do more than point to any fact in dispute[,] as “disputes on minor points do not” preclude summary judgment.  *Gilbert v. Stewart*, 247 N.J. 421, 442 (2021) (quoting *Globe Motor Co. v. Igdalev*, 225 N.J. 469, 479 (2016) and *J.H. v. R&M Tagliareni, LLC*, 239 N.J. 198, 210 (2019)) (each quoting *Brill v. Guardian Life Ins. Co. of Am.*, 142 N.J. 520, 529-30 (1995)); see also *Brill*, 142 N.J. at 544 (“A party cannot defeat a motion for summary judgment merely by submitting an expert's report in his or her favor.  In order for such a report to have any bearing on the appropriateness of summary judgment, it must create a genuine issue of material fact. ”) (internal citation omitted).
[brief] The defendant informs Municipal Court she did not receive all discovery documents and with resubmission requesting documents along with the request of documents [1T7:9-17, 1T -11/29/2022], [...] could not recall the subpoena, only the cease and desist, however offers to have her documents checked in court [1T9:1-13 -11/29/2022].  The Municipal Court was informed defendant submitted motion to dismiss and for lack of discovery/additional discovery habitually, lower court wasn’t sure if they have a copy, and relied on defendant’s testimony regarding discovery submission and status [1T11-13 -11/29/2022].
[brief] 182 N.J. at 492.  The _Coyne_ Court further explained:  That the discretionary function immunity should be limited to actual policymaking is further supported by practical considerations.  It is apparent that a literal interpretation of the term “discretion” would effectively exempt from the operation of the [TCA] all government action unless it resulted from mere inadvertence.  Almost all official conduct, no matter how ministerial, involves the exercise of some judgment and decision-making.  To construe [N.J.S.A. 59:2-3a] that broadly, however, would in effect eliminate most of the liability which the Legislature clearly intended to permit when it enacted the statute.  Id. (citing Costa, supra, 83 N.J. at 60 (emphasis in original)).
[brief] While Borrowers generally had the right to make a partial pre-payment under the Note, the loan was already in default at the time of the wire transfer, and Borrowers’ interest in the Property had already been transferred to third-parties – [...] and [...].  (Pa434-35 at ¶¶26, 32, 35.)  Under both of these circumstances, [...] had the right under the Mortgage to reject any short payoff, and in fact was required to reject it under the latter circumstance.  Notably, the short payoff was not being remitted on behalf of Appellant’s Borrowers.
[brief] See (7T²-17T).  --- ² 1T refers to Transcript of Proceedings, June 5, 2012; 2T refers to Transcript of Proceedings, July 3, 2013; 3T refers to Transcript of Proceedings, April 29, 2014; 4T refers to Transcript of Proceedings, May 16, 2014; 5T refers to Transcript of Proceedings, October 9, 2015; 6T refers to Transcript of Proceedings, October 26, 2015; 7T refers to Transcript of Proceedings, November 2, 2015; 8T refers to Transcript of Proceedings, Volumes 1 & 2, November 4, 2015; 9T refers to Transcript of Proceedings, November 5, 2015; 10T refers to Transcript of Proceedings, Volumes 1 & 2, November 9, 2015; 11T refers to Transcript of Proceedings, November 10, 2015; 12T refers to Transcript of Proceedings, November 16, 2015; 13T refers to Transcript of Proceedings, November 17, 2015; 14T refers to Transcript of Proceedings, November 18, 2015; 15T refers to Transcript of Proceedings, November 19, 2015; 16T refers to Transcript of Proceedings, November 30, 2015; 17T refers to Transcript of Proceedings, December 1, 2015; 18T refers to Transcript of Proceedings, March 4, 2016; 19T refers to Transcript of Proceedings, March 30, 2023; and 20T refers to Transcript of Proceedings August 11, 2015.  On December 1, 2015, the jury found the defendant guilty of counts 3, 7, 8, 10, 13, 16, 17, 18, and 20.
[brief] In accordance with the Brief Deficiency Notice dated 10/20/2023, please see attached the following:  1.  Three copies of Revised Appeal Brief dated Nov. 6, 2023.  2.  Revised Table of Contents.  Table of Judgments.  Orders & Rulings.  Table of Authorities.  3.  Certification of Service  Please note that the Notice indicated my Appendices were accepted as submitted on 10/18/2023.  Please advise if further information is required.  As I am acting Pro Se, you can contact me by phone at [...], or via US mail at: [...].  Thank you for your consideration.
[brief] STATEMENT OF PROCEDURAL HISTORY  The October 2022 Will was probated on April 3, 2023.  On October 2, 2023, petitioners filed their Order to Show Cause Verified Complaint, which seeks to set aside probate of the October 2022 Will in favor of an earlier, 2018 Will.  Pa11-125. \(^1\)  [...] entered an appearance on behalf of appellants on November 14, 2023.  Pa168-69.  The court entered a non-dissipation order on consent on December 8, 2023.  Pa170-71.  On January 2, 2024, petitioners filed the motion to disqualify.  Pa126-147.  By letter dated January 5, 2024, the [...] Firm wrote the court to advise that petitioners had not supplied the alleged disqualifying communications.  Petitioners had also twice objected to appellants' subpoenas to the scrivener of the Wills.  Pa148-49.  The trial court was further informed of the existence of the January 2022 Will, and requested that the motion be carried pending a court conference and resolution of the receipt of the scrivener's file.  *Ibid.*  Thereafter, on February 20, 2024, appellants filed opposition to the motion to disqualify.  Pa150-167.  Remote oral argument was scheduled (and later heard on March 6, 2024.)  Petitioners submitted a reply brief on March 4, 2024.  The court issued an order and Statement of Reasons granting the motion on May 31, 2024.  Pa1-10.  The Statement of Reasons explicitly sets forth that the trial court: did not rely on the disputed Certification of [...] [sic] but --- \(^1\) "Pa" means appellants' appendix.  "T" means the March 6, 2024 transcript of oral argument on the motion to disqualify counsel.  rather the email communications between Petitioner and Counsel [[...]], to which Counsel has available.  As the Court has not considered the [...]s [sic] Certification, Petitioners' request to seal the Certification is denied as moot.  [Pa10 (emphasis added). ]  Petitioners' opposition to the motion for leave to appeal strips the trial court's rationale of any credibility or validity.  Petitioners admit that the emails the trial court considered "did not detail any prejudicial information."  Pa180 n. 14 (emphasis added).  That being the case, the only possible basis for granting disqualification was the [...] Certification, which the trial court expressly denied considering.  Moreover, petitioners contend that the Certification was indeed part of the record, "regardless of whether the Trial Court considered it nor not."  Id.  If that is the case, the denial of the motion to seal places that document in the public domain.  Appellants requested the transcript on June 11, 2024 (Pa172-73) and moved for leave to appeal on June 20, 2024.  Petitioners opposed on July 3, 2024.  Leave to appeal was granted on July 9, 2024.  Pa174-75.  STATEMENT OF FACTS
[brief] COURT:  You have now been sworn in to tell the truth, so in answering the Court’s questions, if you say something that’s not true or is a lie, you will have committed perjury or false swearing; do you understand that?  [...]: Yes, Your Honor.  COURT:  These are separate crimes under the New Jersey Criminal Code for which you could be separately charged.  Do you understand the Court’s caution to you as to what may happen to you if you do not answer the Court’s questions truthfully?  [...]: Yes, Your Honor.  [Da240 (8:2-15) (emphasis added). ]
[brief] b.  Insured vs. Insured  The receiver’s fees and costs are not covered for an additional reason.  That is, the receiver, at all relevant times, of course, was acting “on behalf of” the [...].  The [...] was the named insured under the policy.  The D&O Form excludes "[a]ny ‘claim’ or ‘suit’ that is brought by or on behalf of any insured or any person or organization which is controlled by, controls, or is under common control with you. ”  Thus, the “insured vs. insured” exclusion eliminates coverage of that portion of the award against [...] and others.
[brief] Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)  5 Jody Lutter v. JNESCO, __F4th__ (3d Cir. Nov. 6, 2023)  4 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)  1,5 Matlack v. Bd. Of Chosen Freeholders of Burlington, 191 N.J. Super. 236 (Law Div. 1982)  MEPT Journal Square Urban Renewal, LLC v. The City of Jersey City, 455 N.J. Super. 608 (App. Div. 2018) cert. denied 263 N.J. 356 (2019)  James Meyers v. State Health Benefits Commission, __N.J. __ (Dec. 14, 2023)(per curiam)  Millenium Towers v. Municipal Council, 343 N.J. Super. 367 (Law Div. 2001); N.J. State Chamber of Commerce v. N.J. Election Law Enforcement Comm’n, 82 N.J. 57, 67 (1980)  257-261 20th Avenue Realty, LLC v. Alessandro Roberto, __N.J. Super. __ (App. Div. Dec. 4, 2023)  Persuasive Jeffrey S. Feld v. City of Newark, A-1272-16T4 (App. Div. May 30, 2019) cert denied 2020  NJ WL 808315 (NJ Feb. 6, 2020) (“Newark I”)  New Jersey Citizen Action v. State of New Jersey, MER-L-001968-2021 (Law Div. Sept. 28, 2022)  Azuowch Rotini v. Brock Russell, A-2155-21 (App. Div. Oct. 13, 2023)  STATUTORY
[brief] If the Legislature had wanted to use less broad language to limit the application of the psychological evaluation requirement, it would have done so.  In the preceding provision, for instance, the Legislature stated that the presentence report “shall also include a medical history of the defendant and a complete psychological evaluation of the defendant in any case in which the defendant is being sentenced for a first or second degree crime involving violence and . . . . the defendant has a prior conviction for . . . endangering the welfare of a child which would constitute a crime of the second degree pursuant to N.J.S.A. 2C:24-4 . . . or the defendant has a prior diagnosis of psychosis.
[brief] ”  Pa1024-1029; Potter, 76 N.J. at 502; N.J.S.A. 48:12-152 (current version).  Although N.J.S.A. 48:12-152 does not define the phrase “the property of any railroad” contained in section (b)(5), N.J.S.A. 48:13-17.2 defines “right of way” and “easement” as follows: (b) “right of way” means the area devoted to passing over, on, through or under lands with utility plant facilities as part of a way for such purpose; (c) “easement” or “easement rights” means privileges essential or appurtenant to the enjoyment of a right of way.
[brief] POINT III  THE PLAINTIFF CAN ESTABLISH THAT THE CONDUCT OF THE DEFENDANTS WERE PALPABLY UNREASONABLE  Under N.J.S.A. 59:4-2, no liability lies against a public entity for a dangerous condition “if the action the entity took to protect against the condition or the failure to take such act was not palpably unreasonable. ”  “Palpably unreasonable” behavior “implies behavior that is patently unacceptable under any given circumstances. ”  Polzo v. Cnty of Essex (Polzo II), 209 N.J. 51, 75 (2012) citing Muhammad v. NJ Transit, 176 NT 185, 195 (2003).  To find that a public entity acted or failed to act in a palpably unreasonable manner, “it must be manifest and obvious that no prudent person would approve of its course of action or inaction. ”  Muhammad, supra, 176 N.J. at 195-96.  "The question of whether a public entity acted in a palpably unreasonable manner is a matter for the jury .  . . ."  Polzo v. Cnty. of Essex, 209 NJ, 51, 75 n.12 (2012).  Under N.J.S.A. 59:4-1, "protect against" is defined to include "repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition."  In matters such as this one, the Courts have routinely found that the actions of the municipality raises a material issue of fact as to whether its conduct was palpably unreasonable.
[brief] Ja097.  It is a foundational principle of the MLUL that planning is a necessary prerequisite for zoning, and zoning regulations should be substantially consistent with and designed to effectuate the master plan.  NJSA 40:55D-26, 40:55D-62(a), 40:55D-64, Riggs v. Long Beach Tp., 109 N.J. 601, 619-622.
[brief] TABLE OF TRANSCRIPTS  Transcript of Motion before [...] (October 20, 2023)………………………………Uploaded to eCourts Appellate (not cited directly in Brief)  | Document Description | Page(s) | |--------------------------------------------------------------------------------------|---------| | Amended Complaint | Da_001 | | First Page of Complaint and Jury Demand | Da_153 | | Cover and Table of Contents of [...]’s Motion to Dismiss the Amended Complaint | Da_154 | | Cover and Table of Contents of [...] and [...]’s Motion to Dismiss the Amended Complaint | Da_156 | | Notice of Motion of [...] to Dismiss the Complaint | Da_158 | | Supplemental Memorandum of Law in Further Support of Motion by Defendant [...], Inc. to Dismiss the Amended Complaint | Da_160 | | Supplemental Memorandum of Law in Further Support of Defendants [...] and [...]’s Motion to Dismiss the Amended Complaint | Da_173 | | October 23, 2023  Order on Defendant [...]’s Motion to Dismiss the Complaint and Statement of Reasons on All Motions | Da_181 | | October 23, 2023  Order on Defendant [...]’s Motion to Dismiss the Complaint | Da_207 | | October 23, 2023 Order on Defendants [...] and [...]’s Motion to Dismiss the Complaint | Da_208 | | November 16, 2023 Order (1) Amplifying 10/23/2023 Order and Statement of Reasons, and (2) Denying Motion on Short Notice for Stay of Discovery | Da_209 | | Unpublished Cases | Da_222 | TABLE OF JUDGMENTS October 23, 2023 Order on Defendant [...]’s Motion to Dismiss the Complaint and Statement of Reasons on All Motions ......Da 181 October 23, 2023 Order on Defendant [...]’s Motion to Dismiss the Complaint ........................................................................................................Da 207 October 23, 2023 Order on Defendant [...]’s Motion to Dismiss the Complaint ................................................................................................................Da 208 November 16, 2023
[brief] 6.  The [...] officially introduced an Ordinance (Ordinance No. 1667) amending the aforesaid Beachway Avenue Redevelopment Plan.  (Amendment No. 2)  7.  Per the requirements of the New Jersey Municipal Land Use Law, any amendment to a Redevelopment Plan is required to be referred to the Planning Board, so that the Planning Board can hold a Public Hearing and determine if the proposed Amendment to the Redevelopment Plan is consistent with the Borough’s Master Plan.
[brief] [...] is now in their dispute with the owner and the hope is that we can at least get this project back to break even and then we have to figure out how to true up.  That’s why that footnote was added.  Q.  Did that true up ever occur?  A.  No.  Q.  Is that your position now, that you think you overpaid on Hackensack?  A.  Based on where we ended up, yes.  Q.  But your position about that is because the owner stopped paying.  Correct?  A.  Yeah.  [...] is in a dispute with the owner that they sold the project to.  And that is the nexus of why we’re upside down by in excess of $600,000 because we kept on paying even though [...] couldn’t realize payment to satisfy their obligation on the contract.