ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] PROCEDURAL HISTORY AND STATEMENT OF FACTS.  ..................  2  ARGUMENT  THIS COURT SHOULD AFFIRM THE TRIAL COURT’S DECISION BECAUSE THE ARBITRATION AWARD IS REASONABLY DEBATABLE.  ...........................................  8  CONCLUSION.  .............................................................................  20  PROCEDURAL HISTORY AND STATEMENT OF THE FACTS  This case arises out of an action filed on behalf of the [...] (“[...]”) under N.J.S.A. 2A:24-8 seeking to vacate the arbitration award and opinion (“Award”) issued by [...] (“Arbitrator”).
[brief] Wasserman’s, 137 N.J. at 253.  As such, “provisions for liquidated damages are enforceable only ‘if the amount so fixed is a reasonable forecast of just compensation for the harm that is caused by the breach. ’”  Ibid. (quoting Westmount Country Club v. Kameny, 82 N.J. Super. 200, 206 (App. Div. 1964)).  Indeed, “[o]ne injured by a breach of contract is entitled only to just and adequate compensation” and, thus, a liquidated damages clause “is unreasonable if it does more than compensate [parties] for their approximate actual damages caused by the breach. ”  Ibid.  Even if the Concession Recovery Provision could be construed as an estimate of future damages, which it is not, it is clear that the amount sought is reasonable because it only seeks to recover the exact amount of a previously conferred benefit.  The Provision does not afford [...] any right to recover any greater value than the cost of the Concessions and is limited to recovery of the Concessions that [...] granted tenants as consideration for their written promises of full and prompt rent payments.  As the trial court framed it, the Concession Recovery Provision “provides for recovery of the substantial rent concession that [Appellants] ha[ve] enjoyed, which was bargained for . . . consideration for their agreement to make all rent payments timely, which they failed to do. ” (2T21:20-25).  Stated differently, the Rent Concession Provision “limits recovery to the [Concessions] [...] granted [Appellants] in reliance on their written promises of full and prompt rent payments. ” (2T21:11-14).  Because Appellants failed to honor their contractual commitment, Appellants “were obligated to make [...] whole and return the benefit they already received[.]” (2T21:14-16).  The trial court’s decision in this respect is consistent with case law from outside of New Jersey, where courts have consistently upheld such provisions as valid and enforceable.
[brief] See G.E. Capital v. Marilao, 352 NJ Super 274, 278 (App. Div. 2002), the court upheld a ruling that the presumption of accuracy of a sheriff’s certification in a foreclosure matter, that he had posted a notice of sale, had been rebutted by the contrary certification of two residents of the building where the sheriff certified he had posted the notice.  As to a business record, its admissibility depends on its trustworthiness, not the fact that it is found in the Bank’s computers.  Carmona v. Resorts Int’l., 189 NJ 354, 380 (2007) - business records maintained in a computer system are not treated differently from hard copies merely because they are electronically stored ... there is no reason to believe that a computerized business record is not trustworthy unless the opposing party comes forward with some evidence to question its reliability.  Id.  Here, [...] by his certification produced such evidence.
[directive] Nor should this aggravating factor be invoked merely because others were necessarily involved in Page 76 [...] Guidelines 2 (2004 Revisions) the distribution scheme, or because the defendant acted for profit.  Rather, it is intended that Aggravating Factor #4b would only be used where the prosecutor is aware of facts and reasonable inferences that can be drawn therefrom that provide a good faith basis to believe that the defendant is directly and knowingly involved in organized criminal activities.
[brief] In fact, consent is not required.  (Pa000390-91 at ¶¶ 6, 11).  To argue otherwise would require an expert, and any professional liability claims were already dismissed for Plaintiffs’ failure to comply with the Affidavit of Merit Statute.  The “per se” negligence argument, first espoused by Plaintiffs and their counsel almost two years after commencing this lawsuit, is not within the ken of the average jury.
[brief] The legislature recognized that water quality planning requires a comprehensive analysis, including a searching look at all the wide ranges of natural and constructed features which may contribute to water pollution.  The legislature did not proclaim lightly that “This act [the WQMA] shall be liberally construed. ”  N.J.S.A. 58:11A-11.  When the legislature said “The commissioner shall not grant any permit which is in conflict with an adopted areawide plan,” it did not mean that water pollution which may be caused from anything other than wastewater can legitimately or reasonably be ignored by the DEP when it makes consistency determinations for purposes of exerting the State’s jurisdiction under the Highlands Act.
[brief] Trial counsel, [...], represented [...] in 2006 and 2006, and his brother, [...], in three cases in 2008 and 2009.⁹  This information was withheld from [...] and the court.  (Da218)  An evidentiary hearing is required to address this conflict of interest, the lack of disclosure, and its impact on Shenkus’ representation.  Under the federal constitution, counsel is ineffective if he operated under an “actual conflict of interest” that “adversely affected” his performance, *Cuylar v. Sullivan*, 446 U.S. 335, 350 (1980), a lower standard than in other ineffective-assistance claims, see *United States v. Gambino*, 864 F.2d 1064, 1070 (3d Cir. 1988).  In New Jersey, where there is a per se conflict “prejudice is presumed in the absence of a valid waiver, and the reversal of the conviction is mandated.
[brief] “[W]e still ahead have additional discussions of how to use the incremental revenue from these PILOTS, but some of the opportunities will be Number 1. to reduce the municipal taxes by paying off the Township’s outstanding debt.  That will enable us to fully fund future year capital needs through the regular operating budget, fund upgraded facilities for our EMS and other first responders.  As you heard tonight, we are moving forward with the study of those future needs in this year’s capital budgets.  And then there is the potential for other new community amenities, including a new senior and community center.  Third, you know, the PILOT revenues will enable us to fund [...] share of the school district levy on incremental school obligations, offsetting any tax impact for current residents.  * * *  And then finally, an opportunity to continue to accelerate road repair and maintenance in [...].  So we look forward to working with our residents and community partners on other ideas and proposals towards a better [...].  So stay tuned for opportunities to get involved and to provide input. ”
[brief] Therefore, [...]’s claims – all of which are founded upon and dependent on the premise of municipal water distribution being a proprietary/commercial function – fail as a matter of law. \(^7\) \(^7\) [...] spends several pages of his brief discussing counters points to arguments the Borough never raised, including arguments under the Economic Loss Doctrine, the Uniform Commercial Code and the Products Liability Act.  See Pb29-36.  This Court should reject those arguments because, on appeal, it is improper to make legal arguments not raised below.  See North Haledon Fire Co. No. 1 v. Borough of North Haledon, 425 N.J. Super. 615, 631 (App. Div. 2012) (“An issue not raised below will not be considered for the first time on appeal. ”); Brock v. Pub. Serv. Elec. & Gas Co., 149 N.J. 378, 391 (1997); Soc’y Hill Condo. Ass’n v. Soc’y Hill Assocs., 347 N.J. Super. 163, 177–78 (App. Div. 2002).  CONCLUSION  For the foregoing reasons, the Borough respectfully requests that the Court affirm the trial court’s ruling granting the Borough’s motion for summary judgment and dismissing [...]’s Complaint with prejudice.  Respectfully submitted, [...]  A Professional Corporation Attorneys for Respondent [...], New Jersey  By: /s/ [...]  [...], Esq.  Dated: July 9, 2024  [...], INDIVIDUALLY AND ON BEHALF OF ALL OTHERS  SIMILARLY SITUATED, PLAINTIFFS/APPELLANTS¹, V. BOROUGH OF NATIONAL PARK, DEFENDANTS/RESPONDENTS.  BOROUGH OF NATIONAL PARK, DEFENDANT/THIRD PARTY
[brief] [...], by his own billing records, met only once with anyone affiliated with [...], that being [...], someone not authorized to bind [...] by [...]’s own admission, before the final draft of the contract agreement were prepared.  As indicated above, [...] did not discuss the financial budget of [...] for the build out, nor discuss the tight timeline the Lease and Rider imposed on [...] to file its application for zoning approval.  The draft Lease itself was only changed in two minor areas: to change the intended use from warehouse and retail of clothes to adding a café and bakery and to clarify that [...] was required to pay for carrying charges for the first three months it had possession of the Property.  No other changes were requested by [...] to the draft Lease.  A Rider was added incorporating the contingency [...] requested to be included for obtaining zoning approvals, but [...] did not propose any language to accomplish this request.  [...] approved the Rider as proposed by [...], which required that the application be filed less than two weeks from the commencement date of the Lease, and further required [...] to pay for carrying charges for three months until the basic rent commenced.  [...] did not attempt to negotiate a longer contingency period than three months to obtain approvals, or a contingency to expand that time period, in order to protect [...]’s investment in the engineering and architectural plans, and permitted language to remain forcing [...] to surrender all plans to [...] without compensation in the event [...] terminated the Lease.  The provisions that were inserted into the Rider clearly did not inure to the benefit of [...], especially since the property was marketed for years without any deal consummated.  [...] should have used this leverage to negotiate much more favorable contingency provisions, both with regard to length, extending the time period, capping expenditures, and avoiding the payment of any rent during the contingency period.  4.
[brief] | | | Crystal Point Condo. Inc. v. Kinsale Ins. Co., | 19, 20 | | 466 N.J. Super. 471 (App. Div. 2021), rev’d on other grounds, | | | N.J. 437 (2022) | | | Fave v. Neiman Marcus Grp., | 15 | | No. A-1805-13T2, 2014 WL 1884337 (App. Div. May 13, 2014) | | | Fawzy v. Fawzy, | 11 | | 199 N.J. 456 (2009) | | | Flanzman v. Jenny Craig, Inc., | 7, 9 | | 244 N.J. 119 (2020) | | | Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., | 8, 16 | | 168 N. J. 124 (2001) | | | GMAC v. Pittella, | 6 | | 205 N.J. 572 (2011) | | | Goffe v. Foulke Mgmt. Corp., | 13 | | 238 N.J. 191 (2019)  | | | Heyert v. Taddese, | 21 | | 431 N.J. Super. 388 (App. Div. 2013) | | | Hirsch v. Amper Fin. Servs., LLC, | 6, 7, 19| | 215 N.J. 174 (2013) | | | Hojnowski ex rel. Hojnowski v. Vans Skate Park, | 19 | | 375 N.J. Super. 568 (App. Div. 2005) aff’d 187 N.J. 323 (2006)  | | Jaworski v. Ernst & Young U.S. LLP, 441 N.J. Super. 464 (App. Div. 2015)
[brief] Photocopies | n/a | $155.20 | $27,097.22 | | 8/2/22 |  Receive and review letter from [...]’s counsel with a supplemental request for a copy of the QuickBooks (or comparable accounting software) date file for [...] with passwords, including separate files.  Email to the client regarding the same.  | .2 hrs.| $76.00 | $27,173.22 | | 8/8/22 |  Receive and review letter from counsel and [...] Subpoena Response Additional Documents (DERYA 11126 – DERYA 11227) | 1 hrs.| $380.00 | $27,553.22 | | 8/30/22|
[brief] In February 2021, [...] (“Plaintiff”) learned, for the first time, that the City’s decision to blight certain properties in [...], including Plaintiff’s property, was the product of a corrupt backroom quid pro quo arrangement with [...].  Pursuant to that illicit arrangement, City officials agreed to a pre-determined, sham blight designation in exchange for [...]’s development of a multi-million dollar City school.  The sordid details of that corrupt agreement were first revealed to Plaintiff one month after the completion of a prior litigation (the “First Action”) – an action that only challenged the blight designation due to a lack of evidence.  Significantly, Plaintiff did not assert a bad faith claim because it did not discover the facts underlying that claim until after judgment was entered.  While Plaintiff sought leave, on a post-judgment basis, to amend its complaint in the First Action to assert a bad faith claim, the trial court denied the motion holding that the case was marked “closed. ”  Plaintiff appealed that decision to this Court.  Having been deprived of the opportunity to assert its bad faith claim in the First Action, Plaintiff commenced this action.
[brief] [...] cited two relevant cases to the trial court, both involving [...]’s legal counsel, that defied the trial court’s decision.  In I/M/O [...], Docket No. [...] (Law Div. 2023), an oral motion was made to amend the election contest petition on the first day of trial.  [...], [...]’s attorney in this matter, opposed the motion in Viana, but the trial court granted the oral motion over his objection, merely requiring a formal motion to be made after the contest was over.  (Da18-Da19).  In I/M/O Election Contest of the November 7, 2023, General Election for Atlantic Highlands Mayor and Council, Docket No. [...] (Law Div. 2023), [...] filed a Motion for Leave to Amend in the middle of the election contest itself, between trial dates, adding an entirely new category of challenged ballot into the mix.
[brief] [...]:  Oh, boy.  I get to be last.  First, I want to thank the public.  Your behavior has been superb.  We went through a lot of meetings with a lot of uproar.  I know it's important, a lot of issues, and it's their heart.  I am, too, a resident of Holmdel and safety.  I, too, feel that it was brought up by Members of this Board and public why we couldn't go back and I don't believe I remember hearing any testimony from the solar farm refusing us to go back onto their property further back.  I understood there was testimony about pipeline shouldn't go too far back, but I wasn't convinced of that.
[brief] (18T15-1 to 6).  He asked [...] to hire an expert to review the cell phone records.  [...] said he would look into it, but never hired an expert.  Defendant did not recall [...]’s reason for not hiring an expert.  (18T15-14 to 16-24).  Defendant also asked [...] to investigate [...] and [...], and to retrieve surveillance footage from the [...].  (18T16-25 to 17-16).  [...] said he would look into this information, but he did not investigate Howard or Marceus or the surveillance video.  (18T17-17 to 19-10).  Defendant said he discussed interviewing Howard with [...] about \(^5\)  After [...]’s testimony, [...] prepared a second report dated April 25, 2023, stating that the company was unable to extract any additional information from defendant’s cell phone.  No additional expert testimony was provided on defendant’s behalf and the report was not offered in evidence.  (18T4-23 to 6-21; 18T9-23 to 25; 18T10-11 to 17).  “50” times.  (18T20-7 to 13).  Defendant hired [...] after his conviction to investigate Howard and Marceus and take their statements.  (18T22-25 to 24-15).  He also hired [...] to examine the cell phone records.
[brief] (Pa50).  [...] relied in her report on studies that found that Clonazepam blood concentrations ranged from 2-510 ng/mL with an average of 27 ng/mL in a population of 1200 individuals arrested for impaired driving… [and] blood Clonazepam concentrations in 164 persons arrested for impaired driving performance averaged 50 ng/mL.  (Pa 52).  [...] went on to opine that the blood concentration of 300 ng/mL clonazepam found in the toxicological analyses of Defendant’s purported blood samples were well above the average concentrations reported in studies of impaired driver populations.  (Id.).  [...] went on to concede that she did not have sufficient information to identify how often Defendant was using his Clonazepam prescription but nevertheless opined that if defendant was using clonazepam on an “as needed basis” that he would have developed a tolerance to such medication which would increase his risk for adverse effects of the same.
[brief] Id. at 608; see also Restatement (Third) of Property: Servitudes § 2.13 (“In a conveyance . . . description of the land conveyed by reference to a map or boundary may imply the creation of a servitude, if . . . (1)  A description of the land conveyed that refers to a plat or map showing streets, ways, parks, open space, beaches, or other areas for common use or benefit, implies creation of a servitude restricting use of the land shown on the map to the indicated uses”).  The comments to the Restatement explain that when a deed does not expressly spell out the intent to create the servitude or the terms of the servitude, the same cautionary concerns that enter into other decisions to recognize and enforce servitudes that are not fully expressed in writing should be observed in determining whether to imply servitudes under this section.  Servitudes should not be implied on the basis of equivocal map labels or references.  See Restatement (Third) of Property: Servitudes § 2.13 cmt. a (emphasis added).  Comments b and c of this section of the *Restatement* further confirm that *Lennig* is inapplicable to plaintiffs’ claim for an implied easement.  See *id.* at cmt. b (“If a map or plat clearly designates an area as devoted to a particular use, the inference that servitudes will be created to implement the planned use is strong.  Only a clear statement that the developer retains the right to deviate from the uses shown on the map will ordinarily be sufficient to prevent implication of a servitude under the rule stated in this section. ”) (emphasis added); cmt. c (“When plat shows more than one street or facility for common use.  The purchaser of a lot in a subdivision acquires rights to use all the roads, parks, beaches, open spaces, and other areas designated on the plat for common use and enjoyment.  With respect to roads, the implied servitudes ordinarily extend to all roads shown on the plat, but in an appropriate case may be limited to those that are reasonably necessary for the enjoyment of the benefited lot. ”) (emphasis added).  Here, [...] has never changed the use of the beach as a beach nor prevented plaintiffs from using the beach or accessing the beach from the designated street ends.  Accordingly, *Lennig* does not support plaintiffs’ claim for an implied easement appurtenant across the [...] Property.
[brief] In Reyes, plaintiff rented a summer beach house at the Jersey Shore for two weeks.  Id. at 438-39.  The tenant's elderly father, who had been vacationing at the defendants' summer rental home, was injured when he lost his balance while stepping onto an outside wooden deck which was about seven inches below the bottom of the sliding glass door.  Id. at 440-41.  An ensuing negligence action was brought by plaintiff against, inter alia, the landlord.  The trial court granted the defendants' summary judgment motion after finding that the plaintiffs failed to prove that the lessors actively or fraudulently concealed the allegedly dangerous condition.  Id. at 404 N.J. Super. 438 (App. Div. 2009).  On appeal, the Appellate Division noted that it hesitated to continue to impose upon plaintiffs an inflexible doctrinal requirement of first proving the lessor's 'fraudulent concealment' of a dangerous condition before finding liability.  Id. at 459.  Instead, the Appellate Division held that held that the law had developed so that the landowner's duties in such circumstances “should be defined consistent with the precepts of § 358 of the Restatement (Second) of Torts.
[brief] STANDARD OF REVIEW  An appellate court reviews a grant of summary judgment de novo.  Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021).  In applying the same standard as the motion judge, appellate courts “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party. ”  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).  Appellate courts “therefore must first determine whether, giving the non-moving party the benefit of all reasonable inferences, the movant has demonstrated that there are no genuine issues of material fact. ”  Walker v. Choudhary, 425 N.J. Super. 135, 142 (App. Div. 2012) (quoting Atl. Mut. Ins. Co. v. Hillside Bottling Co., 397 N.J. Super. 224, 230-31 (App. Div. 2006)).  A party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts,” *Triffin v. Am. Int'l Group, Inc.*, 372 N.J. Super. 517, 523-24 (App. Div. 2004), and cannot avoid summary judgment based simply on the assertion of “[u]nsubstantiated inferences and feelings,” *Petersen v. Township of Raritan*, 418 N.J. Super. 125, 132 (App. Div. 2011) (quotation omitted).  A plaintiff’s “self-serving assertion alone will not create a question of material fact sufficient to defeat a summary judgment motion. ”  [...], *Current N.J. Court Rules*, comment 2.3.1 on R. 4:46-2 (2013 (citing *Martin v. Rutgers Cas. Ins. Co.*, 346 N.J. Super. 320, 323 (App. Div. 2002)).  Instead, the party opposing summary judgment has the burden of producing “concrete evidence from which a reasonable juror could return a verdict in his favor. ”  *Housel v. Theodoridis*, 314 N.J. Super. 597, 604 (App. Div. 1998) (quotation omitted).  An opposing party who offers no substantial or material facts in opposition to the motion cannot complain if the court takes as true the uncontradicted facts in the movant’s papers.  *Judson v. Peoples Bank & Trust Co. of Westfield*, 17 N.J. 67, 75 (1954).  Therefore, the essence of the inquiry is ““whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. ””  *Brill*, 142 N.J. at 536 (quoting *Anderson v. Liberty Lobby, Inc.*, 477 U.S. 242, 251-52 (1986)); *BOC Group v. Chevron Chemical Co.*, 359 N.J. Super. 135, 150 (App. Div. 2003) (noting that motion for summary judgment should be granted if the evidence is “so one-sided that [the moving party] must prevail as a matter of law”).  II.