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100 | Respectfully submitted, SHOOK, HARDY & BACON L.L.P. Dated: November 27, 2024 By: ____________________________ Frantz J. Duncan, Esq. (NJ Bar #210002016) Two Commerce Square 2001 Market Street, Suite 3000 Philadelphia, PA 19103 (215) 278-2555 fduncan@shb.com Attorneys for Defendant ADT LLC, d/b/a ADT Security Services | brief |
101 | (25T48-14 To 49-9) On June 21, 2023, after denying Earley’s motion to compel and sua sponte vacating existing discovery orders, the judge declared they would proceed to the PCR petition merits. New PCR counsel, who had taken over when the original PCR attorney became ill, was surprised by this announcement and requested an adjournment. She told Judge D’Arcy she still had investigations ongoing and was not prepared to argue the merits of the PCR petition, as her understanding was the hearing that day was to address open PCR discovery issues. Clearly frustrated, the judge said she would give her only a week. (24T:24-10 to 27-20) Counsel explained she was “in the middle of pursuing an investigation,” and would not be able to provide a complete submission of all the issues and support she planned to present within a week’s time. (24T:27-12 to 28-14) The judge refused to budge, telling her it would need to be done in time. (24T:28-15 to 18) As she had advised the court, counsel was not able to complete her submissions. She filed an adjournment request on June 27, 2023, explaining: she was in midst of investigating the case, inherited from prior counsel; the records were voluminous, including electronic materials requiring outside technical assistance and programs to operate; and she had been diligently preparing several motions on “threshold issues that should be determined prior to the argument on the PCR, which is still subject to investigation, and which must be raised as part of my ethical obligations to my client. | brief |
102 | Also like Ensslin, Salvadore never received the notice. The Board did not fulfill its obligation to notify the members of the State Police Retirement System of this legislation “within 30 days” of July 8, 2019, including the requirement that they had to register their presence at the World Trade Center within 2 years of the law’s enactment, as was required by law. The determination of the State Police Retirement Board acknowledges that it did not comply with the requirement to provide notice to all members and retirants enrolled in the State Police Retirement System within 30 days of the Ricci Act’s enactment. | brief |
103 | On August 29, 2021 hurricane Ida made landfall in Louisiana as a category 4 storm. She slowly made her way up the East Coast leaving a wake of destruction that was front page news on a daily basis. On September 2, 2021 Ida reached the New York metropolitan area. The day before, Governor Murphy signed Executive Order 259 declaring a state of emergency for all 23 counties in New Jersey. Management took no action at all. No plywood was installed to reinforce doors and windows at its entrances on Boulevard East. No concrete barriers or sandbags were brought in to divert water until sand bags were brought in after Ida had passed. No maintenance was performed to ensure the drains installed when the property was built were clear. As a result what occurred was a repeat performance of a 2014 flood as water literally cascaded down the steps of the courtyard and accumulated waist high as indicated by the fact the air conditioning compressors adjacent to the doors were under water and eventually the pressure was so great that water came crashing through doors and flooding the lower level of the mall including the section in which Plaintiff’s units are located and several floors of residential apartments and a garage underneath. I have photos of what occurred in 2014 and in 2021 which were provided to Defendant both well before filing the complaint and in discovery but since the case never got that far along they were never presented to the court and thus I have not included them in this appeal. | brief |
104 | If the defendant is charged with murder (N.J.S.A. 2C:11-3), or upon conviction of any imprisonment,25 other charged offense would be eligible for an ordinary or extended term of life the prosecutor shall apply for pretrial detention unless the County Prosecutor or First Assistant Prosecutor, or the Director or a Deputy Director of the Division of Criminal Justice in cases prosecuted by the Division, finds that there are compelling and extraordinary reasons not to seek pretrial detention. 25 In these circumstances, the Bail Reform Law establishes a presumption that the defendant will be detained, N.J.S.A. 2A:162-19(b), unless the court finds that the presumption is rebutted by a preponderance of the evidence. See N.J.S.A. 2A:162-19(e)(2). Page 60 7.4 | directive |
105 | Further, "While a Complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, Id.; Sanjuan v. Am. Bd. of Psych. and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994), as amended on denial of reh'g (Jan. 11, 1995), as amended on denial of reh'q (Jan. 11, 1995), a Plaintiff's obligation to provide the **1965 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts 'are not bound to accept as true a legal conclusion couched as a factual allegation'). Factual allegations must be enough to raise a right to relief above the speculative level, see § 1216 Statement of the Claim—Significance of "Claim for Relief", § 1216 Statement of the Claim—Significance of "Claim for Relief", § 1216 Statement of the Claim—Significance of "Claim for Relief", 5 Fed. Prac. & Proc. Civ. § 1216 (4th ed.) (hereinafter Wright & Miller) ('[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action')" | brief |
106 | State of New Jersey OFFICE ATTORNEY GENERAL OF THE PETER C. HARVEY DEPARTMENT LAW PUBLIC SAFETY OF AND JAMES E. MCGREEVEY Attorney General DIVISION CRIMINAL JUSTICE OF Governor PO BOX 085 VAUGHN L. MCKOY TRENTON, NJ 08625-0085 TELEPHONE: (609) 984-6500 | directive |
107 | Dillon complained about Fell on February 10, 2015, shortly after his Rutgers remarks. (Pa333). The DEP’s EEO office conducted an investigation. (Pa857-867). Plaintiff suggests that the fact that the EEO investigation did not substantiate his complaint against Fell means that it was “flawed and partial. ” (Pb9). In support, he cites excerpts of statements of male employees who noticed women getting promotional opportunities, and Fell being described as “aggressive,” and “intimidating. ” (Pb10). Dillon criticizes the investigation for not containing a statement of Diane Zalaskus. (Pb11). Notably, plaintiff has submitted no sworn statement, or statement of any type, from Zalaskus regarding his allegation about the “too old” comment. Plaintiff’s claims against the State and the DEP fail for two reasons. | brief |
108 | (Da95-96). Paragraph 24(F) reads: Samantha’s rights and interest in the Palm Beach Property as set forth in Section 3.3(A)(4)(d) of Robert’s Revocable Trust including, without limiting any other rights, interests or obligations that Samantha may have as expressly provided by Section 3.3(A)(4)(d), the following: (i) her right to make use of the Palm Beach Property for a period of not more than twenty-one (21) days per year; and (ii) her right to receive a portion of the sale proceeds in the event of a sale of the Palm Beach Property as provided therein. The Parties acknowledge that Samantha’s portion of the proceeds of any sale shall be reduced by the amount of any and all legal fees, other professional fees and expenses described more fully in Section 3.3(A)(4)(d) of Robert’s Revocable Trust and the Parties acknowledge that such fees and expenses total fifty-three million, seven-hundred forty-nine thousand, eight hundred and three dollars ($53,749,803). For the avoidance of doubt, Samantha agrees to comply with all conditions and obligations imposed upon her by Section 3.3(A)(4)(d) and to refrain from asserting any Claims, rights or interests with respect to the Palm Beach Property other than as may be necessary to enforce the rights and interests provided to her by Section 3.3(A)(4)(d); (Id., at ¶ 24(F)) (white space added for clarity). Paragraph 24(G) excludes from Perelman’s waiver and release and preserves all of her rights to any property from Harriet’s Estate or Trust. It even has an express statement by both parties acknowledging that Perelman preserves all rights to any asset passing from Harriet: Samantha’s right to receive any remaining amount of the Reserve or any other assets that are distributable to Samantha from Harriet’s Estate and Harriet’s Revocable Trust pursuant to this Agreement. The Parties acknowledge that Samantha is not releasing her right to receive any property to which she is entitled as a beneficiary of Harriet’s Estate or Harriet’s Revocable Trust; (Da96, at ¶ 24(G)) (white space added for clarity). | brief |
109 | On September 19, 2016, NJSP Lieutenant Glen Ross, defendant’s supervisor, was notified defendant was to be suspended that day. After Ross collected defendant’s firearm, Ross, Captain Tanya Schultz, and defendant drove in one car to the OPS office. (11T159-5 to 160-15). There, defendant met an attorney provided by his union, Robert Ebberup, Esq. (11T152-13 to 16; Pa20-21). NJSP Lieutenant --- 7 S-17 differed from S-12 only in that the former included a single additional line of text, which stated that defendant took “full responsibility for failing to safeguard” his ID. (Compare Pa18 with Pa19). The difference was noted during trial, but never explained. | brief |
110 | In some jurisdictions, law enforcement agencies may be subject to the oversight of a civilian review board authorized to accept complaints directly from members of the public. If a civilian review board refers a complaint to a law enforcement agency, then those complaints should be forwarded to internal affairs for immediate investigation. 5.1.10 If a person comes to a particular law enforcement agency to make a complaint about a member of another law enforcement agency, he or she should be referred to that agency. The complainant should also be advised that if they have fear or concerns about making the complaint directly to the agency, they may instead file a complaint with the County Prosecutor or the Attorney General’s Office. | directive |
111 | Intervenor. On Appeal from a Final Order of the Superior Court, Law Division, Union County Docket No. UNN-L-1011-23 Sat Below: HONORABLE Daniel Lindemann, J.S.C.(without a jury) APPELLANTS’ AMENDED BRIEF IN SUPPORT OF APPEAL TO REVERSE JUDGMENT AGAINST PLAINTIFFS | brief |
112 | Porrino, Christopher S. I, January 2017, 1, on effect take that Constitution Jersey laws the of authority under the operating agencies prosecuting and enforcement all law DIRECT procedures, policies, following with the comply and implement to Jersey New of State of the practices. and standards, AUTOMATED THE INITIATE REQUIRED TO FINGERPRINTING SCAN LIVE 2. PROCESS RISK-ASSESSMENT PRETRIAL Status. Scan Live Up-to-Date on Report | directive |
113 | Again, the fact that the trial court found that Saleena was completely aware of the 2015 proceedings controlled the timeline under the Rule. The trial court correctly found that Saleena’s claims are time-barred, having been belatedly filed two-and-one-half years after the Divorce. | brief |
114 | 2 See, Attorney General Law Enforcement Directive 2018-5, Implementing Procedures and Protocols for Sexual Assault Response and Referrals. 3 SART provides a coordinated response to victims of sexual assault. The SART is comprised of a law enforcement officer; a Confidential Sexual Violence Advocate (“CSVA”); and an FNE. 2 | P a g e presents at a healthcare facility, a sexual violence service organization, or a law enforcement agency, the victim shall be personally informed about the availability of the specialized services of the SART by either a SART member or a representative of the healthcare facility, sexual violence service organization, or law enforcement agency. A SART activation occurs when the victim chooses to engage with one, two, or all three members of the SART. The requested on-call SART member(s) will be activated according to county protocol, and shall respond within one hour or less. The first responding SART member shall ensure that the coordinated response of a SART activation is properly explained to the victim. Pursuant to the Standards, each County Prosecutor’s Office is required to have at least one assistant prosecutor with specialized training in investigating and prosecuting sexual assault cases. In addition, the County Prosecutor’s Office is required to establish procedures to maintain custody of any forensic evidence collected during a medical forensic exam conducted within the county. If the victim is undecided about reporting an incident to law enforcement at the time of the forensic medical exam, the County Prosecutor’s Office must establish a procedure for all forensic evidence to be secured for at least five years from the examination date (known as a “Hold Kit”). Where the victim is a minor, evidence must be secured for at least five years after the victim reaches the age of 18. | directive |
115 | REPLY BRIEF AND APPENDIX IN SUPPORT OF THE APPEAL On the brief and of counsel: Timothy J. Foley, Esq. (042741990) FOLEY & FOLEY tfoley@appealsnj.com Jeff Gutkowski, Esq. (027982008) ATLEE HALL, LLP jgutkowski@atleehall. com Emily B. Ashe, Esq. (909162012) ANAPOL WEISS eashe@anapolweiss. com # TABLE OF CONTENTS – REPLY BRIEF | Section | Page | |----------------------------------------------|------| | TABLE OF CONTENTS – REPLY BRIEF | i | | TABLE OF JUDGMENTS, ORDERS AND RULINGS | ii | | TABLE OF TRANSCRIPT DESIGNATIONS | ii | | TABLE OF CONTENTS – REPLY APPENDIX | ii | | TABLE OF AUTHORITIES | iii | | PRELIMINARY STATEMENT | 1 | | LEGAL ARGUMENT | 2 | | POINT I: THE ISSUE ON APPEAL IS WHETHER | | | DEFENDANT BREACHED ITS DUTY, NOT | | | WHETHER A DUTY EXISTS. | 2 | | POINT II: DEFENDANT’S RELIANCE ON N.J.S.A. | | | 2A:58C-3a(2) IS MISPLACED BECAUSE HAVING THE | | | SAFETY SYSTEMS INSTALLED WOULD NOT IMPAIR | | | THE USEFULNESS OF THE PRODUCT. | 6 | | POINT III: BECAUSE THE TRIAL COURT INCORPORATED | | | CONSIDERATIONS OF CAUSATION IN ITS ANALYSIS OF | | | DUTY AND BREACH, THE PROPER CONSIDERATION OF | | | CAUSATION ON REMAND SHOULD BE CLARIFIED. | 7 | | CONCLUSION | 8 | brief |
116 | The Property Description Report (Short or Long Form) shall be submitted following the recovery or loss of any property. When a Property Description Report is submitted in conjunction with an Investigation Report, the INCIDENT NO. and the DEPT. CASE NO. must coincide with the corresponding blocks on the Investigation Report. 6.1.3 The officer will use a Property Description Report (Short Form) and as many Property Description Reports (Long Form) as necessary to completely record the listed information for each item of property and each transfer of custody. 6.2 | directive |
117 | The Zoning Board also found that the proposed use will not impair the intent and purpose of the zone plan and the zoning ordinance. As noted in the Board Planner’s report, the Property is currently zoned Rural Development—Commercial, which could allow even more intensive uses at the Property, such as retail sales and services. | brief |
118 | Ripeness is just one example. “possible outcomes”, (Pb15) all of which ignore the following key facts in this case. First, Newport’s Indemnity Claim was not ripe and could not have been arbitrated in 2018. Second, a bilateral arbitration before 2024 could not have achieved a final and binding resolution of ASIC’s obligations because of the other insurers’ contribution rights. | brief |
119 | \textsuperscript{149} Prosecution of this litigation as a class action is the superior method of proceeding with this case as the claims of each individual claimant would be small and it is doubtful any claimant would undergo the time and expense of a lawsuit to enforce his or her rights for such small sum(s) because litigation costs would exceed the benefit of the recovery - exactly the sort of claim class actions are designed to address. \textsuperscript{150} Public policy also favors a class, as a great deal more judicial resources would be expended in managing and trying thousands of Small Claims or Special Civil Part cases. To require hundreds or thousands of identical individuals, repetitive cases to be filed to address the claims in this – all with the attendant possibility of inconsistent adjudications – verges on the absurd. \textsuperscript{151} The class action device is designed for this very situation where an individual seeks to vindicate “the rights of groups of people who individually would be without effective strength to bring their opponents into court at all. | brief |
120 | State v. Walker, 385 N.J. Super. 388, 410 (App. Div. 2006). Although this Court may consider allegations of errors or omissions not brought to the trial court’s attention if they meet the plain error standard under Rule 2:10-2, that standard requires first that the defendant identify an error that has a clear capacity to produce an unjust result. State v. Macon, 57 N.J. 325, 337-39 (1971). Instead, this Court generally declines to consider issues which were not properly presented at trial. *Nieder v. Royal Indem. Ins. Co.*, 62 N.J. 229, 234 (1973). | brief |
121 | (Ab17-19). Blackridge claims this permit issuance is the same as Dragon because there was a settlement and “blatant non-compliance with applicable regulations, . . . no regulations exists --- 7 If the court does not defer to its interpretation of the CZM rules and instead determines that the Scenic Resources and Design Rule, N.J.A.C. 7:7-16.10 applies to 290 Ocean’s development, the court should remand the matter to DEP to review 290 Ocean’s permit application’s compliance with that rule. | brief |
122 | Entry A.2. to Exhibit A – Scope of Work states “[Abbonizio] acknowledges that for the work of this Subcontract, it is an excluded party under the Contractor Controlled Insurance Program (“CCIP”) for this Project[]” and Entry B.6. states “[Abbonizio] acknowledges that Atlantic Concrete Cutting is also an excluded party under the CCIP[,]” and must “comply with all insurance requirements set forth in the CCIP Insurance [] Manual and Schedule ‘B’ as an excluded party. ” (Pa2396 and Pa2398.) On August 3, 2015, after receiving the Project Requirements from Mickeleit of Tutor, Peter Abbonizio forwarded them to Boggs of ACC confirming ACC’s unenrollment and stating, “I just got this from TP, you need to revise your proposal and add for the insurance. | brief |
123 | Indeed, with respect to the latter point, not only was it a question for the jury, which the judge forbade as too speculative, barring argument or photographic evidence to support it, but Detective Carrigg had acknowledged that very possibility -- the perpetrator’s possible escape onto Edgemere -- in his testimony. Carrigg testified that when the suspect ran into the walkway between 22 and 24 Ellsworth, he lost sight of that man and that person “could have went [sic] anywhere,” which caused Carrigg to back up his vehicle all the way onto Stuyvesant Avenue between Ellsworth and Edgemere Avenue in order to thwart the perpetrator’s escape from either of those streets. (13T 189-14 to 194-3) Apparently, Carrigg thought more of the notion of an escape onto Edgemere than the judge did. This was a “real” theory of defense and the judge had no business thwarting it with these rulings. Reversal of the resulting convictions is necessarily required where, as here, the error potentially tips the jury’s consideration of the credibility or evidentiary worth of the State’s case. *State v. Briggs* 279 N.J. Super. 555, 565 (App. Div. 1995); *State v. W.L.*, 278 N.J. Super. 295, 301 (App. Div. 1995); see also *State v. Hedgespeth*, 249 N.J. 234, 252-253 (2021), citing *State v. Scott*, 229 N.J. 468, 484-485 (2017) (errors which affect the weight the jury will give the State’s arguments in favor of conviction versus the defendant’s arguments in favor of acquittal are reversible and never harmless). The State will likely tell this Court that defendant’s defense was implausible and attempt to argue that no reasonable juror would have accepted it, but *Hedgespeth* and *Scott* are clear that such an appellate argument must be rejected, every time. It is not for a reviewing court to determine implausibility of a defense when evaluating harmless error. “Determining implausibility ‘is in the sole province of the jury. Judges should not intrude as the thirteenth juror. ’” *Hedgespeth*, 249 N.J. at 253, quoting *Scott*, 229 N.J. at 485. The jury could have accepted this defense, and the judge was wrong to preclude evidence and argument that supported it. Defendant’s resulting convictions should be reversed, and the matter remanded for retrial. | brief |
124 | Defendants’ entire case was premised upon the notion that it acted in a reasonable period of time in removing the snow at Dewy Meadow Village given the huge amount of snow, order in which snow removal was supposed to be completed, and given the fact that snow removal was still actively occurring on site. Certainly, telling the jury explicitly that it could consider what was a reasonable amount of time to clear the snow and ice is a far more nuanced analysis based on the totality of circumstances rather than simply advising that defendants owed a duty to make the premises reasonably safe for invitees such as plaintiff. This erroneous charge alone is sufficient to warrant reversal, but its capacity to mislead the jury by having the jury apply the wrong standard also rendered the trial unfair to defendants. | brief |
125 | Mori joined in the application. The Motion Certification observed that the relief the Receiver requested was granted notwithstanding the violations and/or non-compliance demonstrated. Ca404. The Motion raised that the motions were decided as they were even though the Statute at N.J.S.A. 14A:14-18 addresses procedural rights of aggrieved persons. Ca405. The Motion raised that one of the Orders entered states there were no objections, when in fact there was vigorous objection. Ca405. The Motion questioned any underpinnings or support for the Order, prepared by the Receiver and granted by the Court exactly as proposed, stating that the Receiver “has acted in the best interest of this matter and has otherwise fulfilled his fiduciary duties as Receiver. ” Ca405. The Motion raised that the Receiver had provided no explanation “with regard to any actions taken relative to the August 2, 2021 preservation letter, including requested video. ” Ca406. The Certification further raised that while the Order appointing the Receiver purported to appoint him not only as to VDC, but to Klein and Dellaportas, that nothing about this was addressed relative to these individuals. Ca407-08. The Certification expressed that “The Receiver’s application and the resulting outcome to date has invited and created confusion and uncertainty through no fault of parties such as the Lopezes, whose rights and position must be properly weighed and taken into account. ” Ca408. The Motion Certification raised other issues, including particulars regarding Statutory and Rule violations. Ca404-09. On November 17, 2023, the Court denied the Motion without oral argument and/or a written statement of reasons. | brief |
126 | Db7. A summary judgment motion “cannot be defeated if the non-moving party does not offer any concrete evidence from which a reasonable [finder of fact] could return a verdict in [their] favor. ” | brief |
127 | Defendant Zundel witnessed a man in a blue Mercedes get into a minivan with another suspect and then get out. Defendant Zundel reported that he instructed the man in the minivan to stop when the blue Mercedes sped away from the altercation. Defendant Zundel reported he discovered two bundles of suspected narcotics in plain view of the minivan suspect’s driver side floor. Defendant Zundel subsequently arrested the suspect and upon questioning him discovered that the suspect was purchasing heroin from an individual named “Black. ” Defendant Zundel identified Plaintiff as the driver of the Mercedes after an observation of a DMV photo, which Plaintiff alleged was a false identification. Plaintiff further alleges that on September 8, 2014, Defendant Carullo prepared reports and drafted a criminal complaint against Plaintiff, implicating him as a criminal suspect in the drug transaction. Defendant Carullo, relying on information from the self-prepared reports, is alleged to have subsequently obtained a warrant for Plaintiff’s arrest. Plaintiff was arrested on September 12, 2014. Importantly, Defendant Carullo did not witness the underlying incident himself. Plaintiff’s Complaint further alleges that between September 19, 2014, and January 15, 2015, the Office of the Middlesex County Prosecutor commenced an action that resulted in the finding that Plaintiff was violated his probation terms due to this incident, which resulted in Plaintiff being sentenced to a term of imprisonment for five years. Defendant Carullo’s testimony was admitted at Plaintiff’s trial over Plaintiff’s hearsay objections, even though Defendant Carullo had no personal knowledge of the allegations. | brief |
128 | JCP & L maintains a Tariff for Service with BPU, which requires that JCP & L maintain regular and uninterrupted electric service to its customers. The Department does not have the expertise to assess statements concerning the need to expand existing electrical systems, and defers to the BPU or other appropriate agency, to make a final determination in this regard. ’” Id. (quoting DEP’s July 15, 2009 Amended HAD) (emphasis added). 37 See DEP’s February 11, 2010 HAD for Tennessee Gas’s 300 Line Project (“The Department of Environmental Protection does not possess the required expertise in regional energy demand and delivery systems to conclusively determine the need for the proposed project. The Department notes that the Federal Energy Regulatory Commission (FERC) is the agency responsible to determine the necessity of this and other natural gas conveyance projects. Therefore, the Department’s determination is issued subject to and result, pursuant to N.J.R.E. 202(b) and N.J.R.E. 201(b)(3), this Court should take judicial notice of FERC’s April 21, 2022 Certificate for the East 300 Upgrade Project. At the very least, DEP’s June 23, 2021 HAD should be declared arbitrary and capricious for failing to follow DEP’s own prior precedent of including a stipulation that DEP would be deferring to the appropriate expert agency (here, FERC) to make a final determination regarding the need for Compressor Station 327. | brief |
129 | THE COURT BELOW ERRED IN RULING THAT DEFENDANTS HAD A CONFLICT OF INTEREST BECAUSE IT LACKED SUBJECT MATTER JURISDICTION. (Da1 – Da4) The trial court did not have subject matter jurisdiction to consider Plaintiffs’ complaint. It has been, “[w]ell established that a court cannot hear a case as to which it lacks subject matter jurisdiction even though all parties thereto desire an adjudication on the merits. ” Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 65-66 (1978). Murray v. Comcast Corp., 457 N.J. Super. 464, 470 (Super. Ct. App. Div. 2019). Jurisdiction over subject matter is the power to hear and determine cases of the general class to which the proceeding in question belongs. Petersen v. Falzarano, 6 N.J. 447, 454 (1951). Our Supreme Court defined jurisdiction as: the right to adjudicate concerning the subject matter in the given case. To constitute this there are three essentials: (1) the court must have cognizance of the class of cases to which the one to be adjudicated belongs; (2) the proper parties must be present, and (3) the point to be decided must be, in substance and effect, within the issue. [Petersen v. Falzarano, 6 N.J. 447, 453 (1951)] Subject matter jurisdiction refers to the power of a court to hear and determine cases of the class to which the proceeding in question belongs. N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 411 (App. Div. 1997) (quoting State v. Osborn, 32 N.J. 117, 122 (1960)). The issue of whether a court has subject matter jurisdiction rests upon having been granted such power by the Constitution or by valid legislation. State v. Osborn, 32 N.J. 117, 122 (1960). Here, neither the Constitution nor valid legislation vested subject matter jurisdiction in the trial court. In fact, the LGEL provides, “The Local Finance Board in the Division of Local Government Services in the Department of Community Affairs shall have jurisdiction. ” N.J.S.A. § 40A:9-22.4. It is clear the trial court did not have jurisdiction to make any determination relating to the allegations in Plaintiffs’ complaint. If a defect in subject matter jurisdiction exists, the court must dismiss for lack of subject matter jurisdiction upon motion “or sua sponte, upon its own initiative. ” SMS Fin. P, LLC v. M.P. Gallagher, LLC, 2019 N.J. Super. Unpub. LEXIS 1914, *10. If a court is not authorized to decide the question before them, consideration of the issue is “wholly and immediately foreclosed. ” Baker v. Carr, 369 U.S. 186, 198 (1962). Here, the trial court’s consideration was appropriately wholly and immediately foreclosed upon due to the Local Finance Board having exclusive jurisdiction. Plaintiffs appropriately moved for dismissal based upon the court’s lack of jurisdiction. The court below should have done that and no more. III. | brief |
130 | 2. The Arbitrator improperly relied on forecasts submitted by Arc that were not prepared or identified as amendments to the PTA. In the Award, the Arbitrator held that ten non-Backlog projects at issue were subject to the PTA’s EGP-sharing and adopted CCG’s alleged EGP amounts for those projects based on his conclusion that “[t]he EGP for these projects . . . . were included time and time again in the update calculations provided by ARC to Claremont which set forth the EGP, amounts paid, and amounts owed. ” Da137. The Arbitrator acknowledged that there were “no formal amendments to the PTA” or “at times formal agreements as to EGP,” but disregard of the parties’ contractual obligations was of no consequences because, as the Arbitrator concluded, the projects and “EGP figures” were included in the updates and Arc made payments toward these “claimed EGP[s].” | brief |
131 | More specifically, the scope of coverage under Part Two is designed to cover those limited circumstances in which an employer may be legally liable for damages to an injured employee in lieu of the statutory benefits provided by the traditional workers’ compensation system. It is also important to note that the NJM Policy is a national form policy written by the National Council on Compensation Insurance. As such, the NJM Policy applies in many different states, some of which permit different types of third-party claims for contribution against an employer for which Part Two sometimes provides coverage. The point is that coverage under Part Two of the NJM Policy is limited insurance that is designed to insure a very specific category of liability. Furthermore, Part Two of the Policy expressly excludes coverage for certain types of claims, including intentional wrongs and conduct that is substantially certain to result in injury. In New Jersey, unless the employee or employer has opted out of the Article 2 system, the only claim an adult employee may legally assert against his or her employer outside the statutory system governed by Article 2 of the Act is an intentional wrong claim. N.J.S.A. 34:15-8. However, a claim of intentional wrong, no matter how it is pleaded, is expressly excluded from coverage under Part Two of the Policy. Pa76. | brief |
132 | Page 11 Guideline Final Relief . 6. Court's Determination. The court shall issue a final extreme risk protective .@} of order if it finds by a preponderance evidence at the hearing that the respondent of poses a significant danger bodily injury to self or others by owning, possessing, or purchasing, receiving a firearm. The court shall place on the record the reasons supporting its decision to grant or deny the order . of Contents Order. If ordered by the court, the final extreme risk protective .(Ql order (1) shall prohibit the respondent from owning, purchasing, possessing, or receiving firearms or ammunition, or from securing or holding a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.A. 2C:58-3, or a permit to carry a handgun pursuant to N.J.S.A. 2C:58-4 during the period that the order is effect, and (2) shall order the respondent to surrender to law enforcement any in firearms or ammunition which the respondent possesses or owns, and any firearms or purchaser identification card, permit to purchase a handgun, permit to carry a handgun held by the respondent. | directive |
133 | $50,000 transferred from Chemtech’s MR line of credit account on September 8, 2015 to the Hedvats’ bank account #0319. (36T 37:5-7). - Prajapati was shown extracts of the Chemtech MR line of credit account from the company’s QuickBooks software and was able to tie the transfer of $50,000 from that account to a September 2015 bank statement for the company, which showed the funds were transferred to an account ending in 0319, which Plaintiffs established belonged to the Hedvats. (23T 15:21 to 22:15; Da2836). **Misappropriation #6:** | brief |
134 | That Deed did not in any way specifically reference the Riparian Grant, which remained vested in Keansburg Heights Company. By Deed recorded June 18, 1920 (J-6, Pa925), Peter Licari transferred ownership of what property interest had been conveyed to him (what was then only upland property) to "P. Licari, Inc." In the foreclosure action the Borough did not name Keansburg Heights Company as a Defendant; therefore, the Borough could only foreclose that which was actually owned by P. Licari, Inc. and that did not include the Riparian Grant. The Borough in its Appellate Brief spends a great deal of time emphasizing what happened after the foreclosure action but pays little attention to the uncontroverted evidence: • Prior to 1900, title to the upland portion of Lot 3 was owned by William Quinlan. In 1879, Quinlan acquired fee simple title by Riparian Grant to what is now identified as line-item Lot: 3.01 from the State of New Jersey. • In 1909 William Quinlan, Jr. conveyed all the lands as shown on a certain Map entitled “Map of Keansburg Heights” filed in the Monmouth County Clerk’s Office to the Keansburg Heights Company. That conveyance specifically included all riparian rights owned by Quinlan including the Riparian Grant. The Riparian Grant was specifically described as the land lying beneath the water. | brief |
135 | ”) (emphasis added); Terminal Const. Corp. v. Atl. Cnty. Sewerage Auth., 67 N.J. 403, 412 (1975) (“Essentially this distinction between conditions that may or may not be waived stems from a recognition that there are certain requirements often incorporated in bidding specifications which by their nature may be relinquished without there being any possible frustration of the policies underlying competitive bidding. In sharp contrast, advertised conditions whose waiver is capable of becoming a vehicle for corruption or favoritism, or capable of encouraging improvidence or extravagance, or likely to affect the amount of any bid or to influence any potential bidder to refrain from bidding, or which are capable of affecting the ability of the contracting unit to make bid comparisons, are the kind of conditions which may not under any circumstances be waived. ”) | brief |
136 | (12T99-1 to 100-8). The email was sent about two months before the fruitless searches took place. (12T102-3 to 4; 12T104-4 to 7). Barlow’s statement—that NJSP had concluded defendant had the wallet ID he reportedly lost—was made to explain the purpose for the email to defendant’s attorney; Barlow did not mention on direct that he had reviewed video or photographic evidence. (12T95-16 to 97-10). Only on cross-examination, when counsel demanded to know the basis for Barlow’s statement --- 25 On direct, Barlow testified he was a Captain at the relevant time. (12T93-20 to 94-2). He clarified on cross-examination that he was a Lieutenant when he sent the email, in June 2018. (12T105-25 to 106-12). in the email that NJSP “was aware” defendant presented his wallet ID when stopped, did Barlow state that he had watched the videos. (12T111-19 to 112-3). Answering counsel’s question, without prompting, Barlow qualified that what he saw “resembled a credit card [NJSP] ID. ” (12T111-25 to 112-3). Highlighting the answer, counsel had Barlow repeat that the item “resembled” the wallet ID. (12T112-4 to 5). Counsel did not request the judge to re-instruct the jurors that it was for their determination as to what appeared in the videos and photographs. (12T112-6 to 118-19). | brief |
137 | Ja148. The inset measurements are visible, and a full-size or electronic version could have been obtained from Ponzio, who Defendants hired before closing. Moreover, the full-size Subdivision Plan is recorded with the Atlantic County Clerk as Instrument #2016005538, and even on a certified copy, it is clear the measurements in the tax map do not match Ponzio’s. N.J.S.A. 40:55D-47(d); Ja320; Ja693. • The Brigantine Tax Maps, which are referenced in all the deeds described herein, from 1986 until 2018, reflect the same 185’ measurements (and the Lot 3 and Lot 2 measurements of 105’ and 80’ respectively) along 21st Street. Ja303, Ja306. • The Brigantine Tax Maps were not updated to reflect the erroneous Lot 2 and Lot 3 frontages until at least January 1, 2018. Ja311-12. Thus, as of the date of Defendants’ Deed, the Brigantine Tax Maps would have reflected the accurate historical frontages from Lots 2 (80’) and Lot 3 (105’) with a combined total of 185’ of frontage along 21st Street South. In sum, Defendants did less than the bare minimum required of a prospective purchaser of property. | brief |
138 | Judge Brenner’ decision also failed to consider that the Defendant may also be vicariously liable under the theory of apparent authority. (2TR45:16-19). Since the defendant, Wedgewood Americana appears to be one of the residences of the Defendant, vicarious liability can attach through apparent authority. Namely, “when, by its actions or the totality of the circumstances, a principal creates in a third party the impression of apparent authority, the principal will be held vicariously liable for the negligence of its apparent agent because the principal’s actions “somehow mislead [] the public into believing that the relationship or the authority exists. ” Estate of Cordero. ex rel. Cordero v. Christ Hosp., 403 N.J. Super. 306, 312 (App. Div. 2008) (quoting Basil v. Wolf, 193 N.J. 38, 67 (2007)). Apparent authority is established if the principal’s conduct “would lead a person to reasonably believe that another person acts on the principal’s behalf,” and the agent’s service is accepted “by one who reasonably believes the service is rendered on behalf of the principal. ” Id. at 315. The following facts should be considered when determining whether a principal’s conduct would lead a similarly-situated patient to reasonably believe that the doctor acted on the principal’s behalf: “[1]) whether the hospital supplied the doctor; [(2)] the nature of the medical care and whether the specialty is typically provided in and an integral part of the medical treatment received in a hospital; [(3)] any notice of the doctor’s independence from the hospital or disclaimers of responsibility; [(4)] the patient’s opportunity to reject the care or select a different doctor; [(5)] the patient’s contacts with the doctor prior to the incident at issue; and [(6)] any special knowledge about the doctor’s contractual arrangement with the hospital. ” _Cordero_, 403 N.J. Super. at 318-19. Furthermore, “[a]ctive or explicit misrepresentations of agency by the principal are not required. ” _Id._ at 315. It is enough if the principal places “a person in a position from which third parties will infer that the principal assents to acts necessary to fulfill the responsibilities of that position. ” _Id._ at 316. As the _Cordero_ case makes clear, it is not necessary that the Defendant directly employ any of the providers at issue or that the treatment occur at their facility in order for the entity to be found vicariously liable. Rather, it is a multitude of factors that must be analyzed and if the Defendant had some level of control over the other defendants and created an appearance of agency to the public, that will suffice. | brief |
139 | ” An illegal sentence “exceed[s] the penalties authorized by statute for a specific offense. ” State v. Murray, 162 N.J. 240, 246 (2000). “A sentence may also be illegal because it was not imposed in accordance with law. This category includes sentences that, although not in excess of the statutory maximum penalty,” are not authorized by statute. Id. at 247. “In addition, a sentence may not be in accordance with law because it fails to satisfy required presentencing conditions” or “include a legislatively mandated term of parole ineligibility. ” Ibid. In an attempt to receive a reduced sentence, the defendant simply claims his sentence was illegal because the original sentence court relied upon two prior convictions that were subsequently vacated when it imposed aggravating factor six, N.J.S.A. 2C:44-1(a)(6). | brief |
140 | Vehicular Pursuit Review 12.1 Thorough and meaningful review of vehicular pursuit incidents is vital to ensuring the safety of law enforcement officers and the public. Every vehicular pursuit must undergo the following procedures for a meaningful command-level review pursuant to a written policy established by the law enforcement executive: (a) The meaningful command-level review of the incident shall be undertaken by at least two levels of supervisors. These levels may include the immediate supervisor, internal affairs, training officers, or command staff. At least one reviewer must be two levels or more above the officer who engaged in the vehicular pursuit; (b) The review shall include an examination of all available sources of information about the incident, including any video of the incident, recordings of 911 calls and police radio transmissions, reports, officer or other witness statements, medical records, or records of injuries; (c) The reviewing supervisors shall make a recommendation of what action, if any, should be undertaken, including policy changes, remedial training, disciplinary action, administrative action, or, if appropriate, referral for criminal prosecution; and (d) The law enforcement executive, or a command level officer no more than one rank below the law enforcement executive for departments with more than 100 officers, shall review each vehicular pursuit investigation and approve or reject the recommendations of the supervisors who conducted the review. The law enforcement executive’s decision, or the decision of the designee, shall be memorialized and retained in the vehicular pursuit investigative file. 12.2 | directive |
141 | Similarly, in *Racioppi v. Airbnb, Inc.*, No. A0455-22, 2023 N.J. Super. Unpub. LEXIS 1200, at *4-7* (App. Div. July 17, 2023), the Terms and Services necessitating arbitration was contained on the first page of the Terms and Services language stating that the agreement has a binding arbitration provision located within the agreement. Thus, the motion judge in *Racioppi* found that the terms of services contained sufficient notice to a consumer. In both of these cases, however, the plaintiffs’ claims were premised upon allegations related to the access and use of the defendants’ websites. This is not the case here. There is no evidence that the Plaintiffs ever used, accessed, or registered for the SAM website. And even if Primerica could have established that in the trial court or on the record before this Court (they do not), Primerica fails to explain how that action demonstrates that Plaintiffs assented to arbitrate claims that arose *before* the registration occurred. | brief |
142 | Opinion 552, 102 N.J. at 204; G.S., 447 N.J. Super. at 569. And, as this Court explained, the “[c]ritical determination is whether co-defendants would present consistent defenses to the claims brought against them,” and as such, representing multiple defendants “may be permitted even if the positions may appear to be somewhat potentially conflicting. ” | brief |
143 | (16T 108-2 to 5) The prosecutor argued that there had in fact been two guns in the car, one of which was visible in the video. (16T 108-5 to 8) But the fact that there was at least one gun in the car does not require a conclusion that Marvine had conspired with Brooks to commit an attempted murder. It is reasonably likely that Marvine knew that traveling armed was a matter of routine for Brooks, and not necessarily an indication of an immediate plan to use a weapon. But even if Marvine had known both that Brooks was armed and that he had a plan to use the gun against Perry and Smith, that would not have amounted to proof beyond a reasonable doubt of his participation in a conspiracy. | brief |
144 | 16. Você entende que se você ocupa um cargo público ou se é funcionário público, você [Sim/Yes] [Não/No] [NC/NA] poderá ser obrigado a deixar seu cargo ou emprego em virtude da sua declaração de culpa? Do you understand that if you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty? | directive |
145 | (Da52). Defendant appealed and this case was scheduled for the October 2023 Sentencing Oral Argument Calendar. (Da52-57). On November 13, 2023, the panel issued an order moving this case to the plenary calendar for briefing. (Da58). | brief |
146 | PARKER McCAY P.A. Attorneys for Plaintiffs, NFI Real Estate, LLC and Turnpike Crossing VI, LLC BY: s/John C. Gillespie JOHN C. GILLESPIE Dated: May 13, 2024 REPLY BRIEF FOR RESPONDENT FLORENCE TOWNSHIP ZONING BOARD OF ADJUSTMENT | brief |
147 | The Court viewed the dispute in the Lortech/Longo matter and in the Atlas/Gerhard/DSG matters as merely business disputes, stating that “there was nothing else so similar about them as to distinguish their relevance. ” (T21:10-14). The Court viewed the representation, though, of Robert Van Saders very differently. The Court was concerned about the representation of Robert Van Saders in his individual capacity in the Lortech/Longo matter. It cited to RPC 1.9(a) and (c). (T22:5 to T23:1-5). The Court stated: Here, the Ansell firm represented not only Atlas Septic but, "IMPORTANTLY TO THE COURT," Robert Van Saders individually in the Longo matter. They're asserting direct claims against him as an individual in the case – in the present case by way of a counterclaim. This is a more personal relationship that which might exist in other corporate litigation and is one of the facts that the Court considers when determining the potential for implications of RPC 1.9 not only (a), but part (c). In this regard, Robert Van Saders provided a four-page certification, along with counsel's submission of August 29, 2024, which shall be marked as C-1 for identification. [emphasis added]. (T23:6-20). The Court continued: I will say that certification expressed significant concern on the part of Robert Van Saders regarding how his personal and financial information which he claimed was provided to Ansell's office and which he claims materially affected and would continue to materially affect the decision-making process vis-à-vis the management and resolution of litigation in which he is involved and how it could be used to his detriment in the current litigation where, again, he is an individual defendant by way of a counterclaim. (T24:4-13). The Court found that the information contained in the certification and which Van Saders represented had been given to the Ansell law firm is subject to attorney-client privilege. (T25:20 to T26:1-17). The Court found that the information in the Certification "is intrinsic to the handling of any litigation to which, in this instance, Mr. Van Saders may be involved." (T26:14). The Court also considered that the attorney-client privilege belongs to Van Saders and it is his privilege to waive. (T25:22 to T26:1-8). The Court also stated that it would consider and give deference to the representations of Van Saders. (T25:20). Under the circumstances of this case, RPC 1.9 precludes Ansell, Grimm & Aaron from representing Peter Christopher Gerhard, II and Dynamic Solutions Group in a case adverse to Atlas Septic and Robert Van Saders. | brief |
148 | ...............................................................Da86-95 State v. Fontanez, 2017 N.J. Super. Unpub. LEXIS 150, 2017 WL 371471 (App. Div. Jan. 26, 2017) ...............................................................Da96-107 State v. Bridges, 2014 N.J. Super. Unpub. LEXIS 1573, 2014 WL 2957443 (App. Div. July 2, 2014) ...............................................................Da108-121 INDEX TO CONFIDENTIAL APPENDIX (Submitted Under Separate Cover) | brief |
149 | (Da1-6). On May 23, 2022, defendant filed a motion to suppress evidence obtained following a search of his apartment pursuant to a warrant. (Da7-8). On March 8, 2023, the trial court conducted a testimonial hearing on defendant’s motion. (T). On April 26, 2023, oral arguments were conducted. (2T). On May 31, 2023, the trial court denied defendant’s motion and set forth its reasons in a written opinion. (Da15-26). | brief |
150 | Thus, the court instructed the jury that “if the State prove[d] defendant] used, or threatened to use force upon Edward Demko,” it was defendant’s claim that the use of force was “justifiably used” for defendant’s self-protection. (6T129-10 to 13). In short, he committed a crime, but it was justified. After outlining the elements for the use of force or deadly force, the trial court instructed the jury that it was the State’s burden to prove beyond a reasonable doubt that self-defense was untrue. (6T133-12 to 13). | brief |
151 | The trial court correctly applied this standard to conclude that Special Master Orlofsky did not create an appearance of impartiality “by accepting and mediating a case in which Lowenstein was involved while also acting as a special master in a case in which Lowenstein was involved. ” | brief |
152 | State v. Nyhammer, 197 N.J. 383 (2009). N.J.R.E. 503 states “every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate. ” In Miranda, the United States Supreme Court held that before law enforcement subjects a suspect to custodial interrogation, the suspect must be advised: (1) “that he has the right to remain silent”; (2) “that anything he says can be used against him in a court of law”; (3) “that he has the right to the presence of an attorney”; and (4) “that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. ” Miranda imposes a fifth requirement: “that a person must be told that he can exercise his rights at any time during the interrogation. ” State v. Tillery, 238 N.J. 293 (2019)(citing Miranda v. Arizona, 384 U.S. 346 (1966). The burden is on the State to prove beyond a reasonable doubt that the defendant waived his Miranda rights. O.C.A. – C, 250 N.J. 408, 420 (2022). In determining whether the State has proven the defendant waived his Miranda rights beyond a reasonable doubt, courts assess the totality of the circumstances concerning the interrogation, including, the suspect’s age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved and prior experience with the criminal justice system. | brief |
153 | Defendants Ignore Key Record Evidence Linking Plaintiff’s Termination to Protected Activity. Given that, as set forth in Plaintiff’s initial Brief, there is evidence of unlawful conduct and protected activity, the remaining issue is whether a jury could find that Plaintiff’s termination was retaliatory. There is significant overlap between the causation prong of the prima facie case and the third stage of the McDonnell Douglas burden-shifting framework, as the same evidence used to demonstrate pretext can also establish a causal link between the protected characteristic and the adverse employment action. | brief |
154 | ........................................................................... 24 A. Judge Rabin’s Conclusions About the Incident Are Supported by the Record and Should be Upheld. ........................................... 27 B. Judge Rabin’s Conclusions About Violations of the Medication Policy Are Supported by the Record and Should be Upheld ................................................................. 28 C. Judge Rabin’s Conclusion About Opioid Abuse is Supported by the Record and Should be Upheld. ....................... 29 D. Judge Rabin’s Conclusion About the Vehicle Incidents is Supported by the Record and Should be Upheld. ...................... 31 E. Judge Rabin’s Conclusion About Sick Leave Policy Violations is Supported by the Record and Should be Upheld. .. 32 F. Judge Rabin’s Conclusion that Appellant Made False Statements or Representations is Supported by the Record and Should be Upheld. .................................................. 33 POINT II: THE DISCIPLINARY CHARGES AGAINST APPELLANT WERE SUPPORTED BY CREDIBLE RECORD EVIDENCE ........... | brief |
155 | The assistant prosecutor's comment that he had not had the opportunity to tell defense counsel any earlier because he knew that the judge wanted to get started promptly that morning is unacceptable, as is his failure to notify defense counsel the previous day when he learned of the new information. The Rule itself specifies the remedy for a discovery violation and gives the court the discretion to either “grant a continuance or delay during a trial, or prohibit the party from introducing in evidence, the material not disclosed, or it may enter such further order as it deems appropriate. ” *R.* 3:13-3(g). Here, the only remedial measures offered to defendant consisted of the judge telling defense counsel he would afford her greater latitude in cross-examination, and that he would tell the jury in his final jury charge that they should not hold it against defendant or his attorney that defense counsel incorrectly stated in her opening that Williams would not be able to make an in-court identification of defendant. *10 In analyzing those remedial measures, we first review the judge's statement that he would afford defendant “greater latitude” in cross-examination. The State has not identified any latitude that defendant would not otherwise have had. As to the judge's curative instruction to the jury in his final charge, we find that instruction to be woefully inadequate to address the egregious violation of the discovery rules that confronted this defendant and his attorney. While we recognize that “[t]he disposition of a mistrial motion is addressed to the sound discretion of the trial judge” and “is an extraordinary remedy [that] should be resorted to only to prevent an obvious failure of justice,” *State v. Hubbard*, 123 N.J.Super. 345, 351 (App.Div.), *certif. denied*, 63 N.J. 325 (1973), we conclude that in the particular circumstances presented here, the failure to grant a mistrial was indeed an abuse of the judge's discretion. | brief |
156 | 1 PROCEDURAL HISTORY RELEVANT TO DEFENDANT DR. JANOSKY ......................................................... 3 STATEMENT OF FACTS RELEVANT TO DEFENDANT DR. JANOSKY ......................................................... 5 LEGAL ARGUMENT ............................................................................................................. 8 POINT I STANDARDS OF REVIEW ............................................................................................... 8 POINT II THE TRIAL COURT CORRECTLY DISMISSED PLAINTIFF’S CLAIMS AGAINST DR. JANOSKY AND CORRECTLY DENIED PLAINTIFF’S CROSS-MOTION TO EXTEND DISCOVERY (Argued below. Ruling below at 1T¹; 125Pa-130Pa.) .................. 10 ¹ “1T” refers to the transcript of the January 20, 2023, oral arguments on several defendants’ motions and cross-motions to dismiss, and plaintiff’s cross-motion to reopen and extend discovery, before the Hon. Robert C. Wilson, J.S.C. A. Plaintiff’s Claims Against Dr. Janosky Were Appropriately Dismissed .................................................................10 B. Plaintiff’s Request to Extend Discovery Was Appropriately Denied ........................................................................11 C. Plaintiff’s Arguments on Appeal are Unavailing ..................................................14 D. Plaintiff’s Substantial Compliance Argument is Unavailing ......................17 POINT III THE TRIAL COURT CORRECTLY DENIED PLAINTIFF’S MOTION FOR RECONSIDERATION OF THE ORDERS FILED JANUARY 20, 2023 (Argued below. Ruling below at 144Pa.) .............19 POINT IV THE TRIAL COURT CORRECTLY DENIED PLAINTIFF’S MOTION TO VACATE THE ORDER FILED MARCH 17, 2023 (Argued below. Ruling below at 162Pa.) .........................................................21 CONCLUSION .........................................................................................................................................................22 APPENDIX | brief |
157 | A.D.P. v. Exxonmobil Research & Eng’g Co., 428 N.J. Super. 518, 531 (N.J. Super. 2012). When an employee attempts to prove discrimination by direct evidence, the quality of evidence required to survive a motion for summary judgment is that 'which if believed, proves [the] existence of [a] fact in issue without inference or presumption. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 208 (N.J. 1999); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989). A court must consider whether a statement made by a decisionmaker associated with the decision-making process actually bore on the employment decision at issue and communicated proscribed animus. *McDevitt v. Bill Good Builders, Inc.*, 175 N.J. 519, 528 (N.J. 2003). A Plaintiff must produce evidence that an employer based substantial reliance on a proscribed discriminatory factor in making its decision to take the adverse employment action. *Id.* at 527. Once established, the burden of persuasion shifts to the Defendant. *Id.* If the employee does produce direct evidence of discriminatory animus, the employer must then produce evidence sufficient to show that it would have made the same decision if illegal bias had played no role in the employment decision. *Fleming v. Correctional Healthcare*, 164 N.J. 90, 100 (N.J. 2000). In short, direct proof of discriminatory animus leaves the employer only an affirmative defense on the question of "but for" cause or cause in fact. *Id.* Under the *McDonnell-Douglas* test, a plaintiff must establish a prima facie case by satisfying a four-pronged test that our courts have modified to suit particular forms of discrimination in particular settings. | brief |
158 | This appeal centers on the February 28, 2023 Order issued by the Superior Court of New Jersey, Ocean County, in relation to Appellant, Carlos Jaime-Valdez’s Motion to Mold, or in the alternative, Motion for New Trial, or in the alternative, Motion for Remittitur in this matter. On February 28, 2023, the court at the trial level denied the Appellant’s Motion in full. Appellant’s position is that all three requests for relief were meritorious and denied in error: • The February 28, 2023 Order from the Superior Court of New Jersey failed to apply the U.S. District Court Order of August 18, 2021 which limited Plaintiff’s recovery against Appellant to $200,000, the available liability insurance coverage limits. • The February 28, 2023 Order from the Superior Court of New Jersey failed to apply existing legal standards concerning the excessiveness of the verdict, warranting either a new trial or remittitur. • The February 28, 2023 Order from the Superior Court of New Jersey failed to apply existing legal standards, warranting a new trial, concerning Plaintiff’s counsel’s improperly prejudicial summation and improper mention of Appellant having fled the scene of the accident during direct examination of the Appellee. | brief |
159 | The remedy of removing a board’s authority and appointing a master in its place should be rarely used. As cautioned by the Court in *Morris County Fair Housing Council v. Boonton Tp.*, 220 N.J. Super. 388, 408-409 (Law. Div. 1987), aff’d, as modified, 230 N.J. Super. 345 (App. Div. 1989)(emphasis added): The court probably has the power to grant such relief. *Mount Laurel II*, 92 N.J. at 285–290, 456 A.2d 390. However, the Legislature has conferred responsibility upon the board to pass upon site plan applications. This responsibility should be preserved, if at all possible. *Morris County*, 220 N.J. Super. at 408. Further, this remedy has been limited to situations where a governing body’s or board’s actions are a result of a record of obstruction and hostility to an affordable housing developer and/or the Court. As noted by the Court in *Cranford Development Associates, LLC v. Township of Cranford*, 445 N.J. Super. 220, 232-233 (App. Div. 2016)(emphasis added): The court’s authority to appoint Special Masters in Mount Laurel cases is well established. See *Mount Laurel II*, supra, 92 N.J. at 282–85, 456 A.2d 390. Given the Township’s record of obstructing affordable housing projects, and the Planning Board’s past hostility to a much more limited affordable housing plan, the court’s decision to appoint the hearing examiner was justified in this case. Similarly, in *In the Matter of the Application of Township of South Brunswick*, 448 N.J. Super. 441, 466 (Law Div. 2016), the Court only removed the Township’s authority over its affordable housing compliance after finding “systematic abuses” of the declaratory judgment process”. (Emphasis added). The Trial Court’s own findings demonstrate that no such abuse, let alone systematic abuse exists in this case, and the imposition of the SHO is improper under both the facts of this matter and the clear, unambiguous and binding law. | brief |
160 | Q: Your proposed eight-story, 98 residential unit development, can you identify the number of variances that would be required for that development if the R-2 zoning classification was applied to the subject Property? A: It would be a D variance, for starters. Pretty much, every aspect of the building would be a variance. It does not conform to the R-2. Pa180 at 12:8:15 [emphasis added]. Instead of addressing the likelihood that a developer would obtain the variances necessary to construct Respondent’s proposed Highest and Best Use, Wenger relies upon a customized redevelopment plan for every proposed project; achieved either through amending the zoning ordinance or amending the redevelopment plan to accommodate a redeveloper’s proposed project. | brief |
161 | Ibid. Not surprisingly, given the lack of attention to site safety requirements, Crisdel was cited with violations of OSHA after an investigation of Mike Alexander’s death. Pa1677-78. Specifically, after investigation, OSHA found the following violations were presented on the project site on July 11, 2014, the date that Mr. Alexander was run over: The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to struck-by and crushing hazards: | brief |
162 | The State has regulated extensively with respect to noise, both through specific noise restrictions under the Noise Control \(^4\) It should be noted that Defendants argue that the 50-foot distance from the property line could hypothetically result in a larger measurement distance than the 100-foot standard utilized in Clarksburg Inn, providing an example of a home set back 100 feet on its property. Db42. A quick glance at Google Maps, however, reveals few (if any) properties in Sea Bright that are set back to any such extent, and instead the trial court recognized that individuals in Sea Bright must expect to hear sounds from neighboring properties more clearly than in a town with larger lots. Da86-87. Act and Department of Environmental Protection regulations, as well as noise nuisance provisions delegated to the local health boards under Title 26. The Defendants fail to comply with either of these statutory schemes, and lack the authority to adopt the Noise Ordinance otherwise, warranting the finding that the Noise Ordinance is preempted. | brief |
163 | **The Trial Court Did Not Abuse Its Discretion In Finding Irreparable Harm.** The trial court reasonably found this preliminary injunction was necessary to avoid irreparable harm to students and staff members in the District. \(^6\) --- \(^6\) | brief |
164 | On March 3, 2022, Complainants-Appellants Ronald Donnerstag, Wendy Vacante, Jaime Cestare, Kristin Lanko, Matthew Delprete, Scott Alfano, Lisa Snider, Patricia Fortus, and Lynne Sweezo (collectively, Appellants) filed a Complaint before the Commission, asserting violations of N.J.S.A. 18A:12-24.1(a) and (e) of the School Ethics Act (Act) regarding Respondent’s actions which are listed in the Complaint. (Ca196-232). Respondent is currently a member of the Central Regional Board of Education (Board). | brief |
165 | For the reasons set forth in Mr. Unger’s appellate brief and above, this Court should reverse the order granting summary judgment to Defendants Edward and Sonali Dwyer and remand for further proceedings. Dated: September 16, 2024 | brief |
166 | ................................................................................... 14 Hartnett v. Pennsylvania State Educ. Ass’n, 963 F.3d 301 (3d Cir. 2020) ....................................................................... 49 Henry Schein, Inc. v. Archer and White Sales, Inc., 139 S. Ct. 524 (2019) .................................................................................. 47 Hojnowski v. Vans Skate Park, 187 N.J. 323 (2006) ..................................................................................... 35 In the Matter of the Estate of Samuel P. Hekemian, 2023 WL 176098 (App. Div. Jan. 13, 2023) .............................................. 41 Instructional Sys., Inc. v. Computer Curriculum Corp., 130 N.J. 324 (1992) ................................................................................... passim Itzhakov v. Segal, 2019 WL 4050104 (App. Div. Aug. 28, 2019) | brief |
167 | To be clear, there indeed may be some commonality here [between Defendants’ positions.] However, this difference in testimony that we’ve heard thus far is not simply an inconsistency. Keep in mind that these rules exist to protect the actual clients, the attorney and the integrity of the litigation itself as well as the greater judicial system and the legal profession. But for the foregoing reasons I’ve already stated on the record, plaintiff’s motion to disqualify is granted. | brief |
168 | Section B, entitled "Counties," contains the statutes concerning eligibility for the office of sheriff (codified at N.J.S.A. 40A:9-94); the sheriff's oath (N.J.S.A. 40A:9-96); the effect of the failure of the sheriff-elect to qualify (N.J.S.A. 40A:9-101); vacancy in the office of sheriff (N.J.S.A. 40A:9-102); bond and oath of appointee to fill vacancy in the office of sheriff (N.J.S.A. 40A:9-103); salary of sheriff in certain counties (N.J.S.A. 40A:9-104); expenses payable to sheriffs (N.J.S.A. 40A:9-105); uncollected fees credited to account of former sheriff (N.J.S.A. 40A:9-106); sheriff to deliver to his successor certain moneys and papers (N.J.S.A. 40A:9-107); prohibition on sheriff holding other civil office (N.J.S.A. 40A:9-108); amercement of sheriff or acting sheriff (N.J.S.A. 40A:9-109); court-designation of enforcement officer when amercement occurs (N.J.S.A. 40A:9-110); and bonds taken by the sheriff (N.J.S.A. 40A:9-111). The legislature's system of referring to the office of sheriff lends support to the conclusion that the sheriff can indeed be — and is here — a part of the county government, a conclusion that is shared by the Attorney-General. | brief |
169 | Defense counsel never asked Dr. Bellifemine the reason why he did not file suit prior to November 24, 2020, the day plaintiff filed the within action. As plaintiff was never asked why he did not file suit prior to November 24, 2020, there is no deposition testimony which could possibly conflict with Dr. Bellifemine’s certification in opposition to defendants’ motion for summary judgment. | brief |
170 | ” *Hagans*, 233 N.J. at 40-41. When such videos are “made while an event unfolds,” they “protect the public and police alike in that the videos can expose misconduct and debunk false accusations. | brief |
171 | On March 27, 2023, Defendant filed their Brief Regarding NJ Rule 4:50:1. On March 28, 2023, the trial of this matter was held before the Honorable James Bucci with both parties and their counsel present. (2T). On May 3, 2023, a zoom conference was held before the Honorable James Bucci at which time an Order was entered granting Plaintiff’s Motion to Enforce Litigant’s Rights, and ordering Defendant to pay Plaintiff the amount of $91,250.00 within thirty days of the May 3, 2023 Order. (Da 1) (3T) On June 5, 2023, Defendant filed a Notice of Order to Show Cause requesting that an Order be entered staying the distribution from Plaintiff’s counsel of the $91,250.00 Judgment awarded to Plaintiff under the Order of May 3, 2023 pending the outcome of Defendant’s Appeal and ordering Plaintiff’s attorney to immediately place said funds into an interest bearing escrow account. (Da 261). On June 5, 2023 Defendant filed his Certification in support of his Notice to Show Cause. (Da 264). --- 2 1T refers to Transcript of Testimony of Thomas Stravos, dated November 9, 2022; 2T refers to Transcript of Hearing, dated March 28, 2023; 3T refers to Transcript of the Decision, dated May 3, 2023. On June 6, 2023, Plaintiff filed a letter brief in response to Defendant’s Motion for Stay, and a Hearing was held before the Honorable James Bucci at which time an Order was entered denying Defendant’s Motion for Stay. On June 9, 2023, Defendant filed his Notice of Appeal to this Court. (Da 3) On June 12, 2023, Defendant filed his Civil Case Information Sheet. (Da 7) On July 7, 2023, an Order was entered by the Honorable James Bucci confirming the May 3, 2023 Order as the Final Decision of the Court. (Da 2). On August 9, 2023, Plaintiff filed her Civil Case Information Statement. (Da 11). **STATEMENT OF FACTS** | brief |
172 | As discussed, the underlying judgment here exposed [the policyholder] to both covered and uncovered damages; a reversal would plainly have served his interests; and the appeal raised at least reasonable — if ultimately unsuccessful — grounds for challenging the judgment. *Pharmacists*, 187 Vt. at 334, 993 A.2d at 421. Ohio in this case made no argument, and the Challenged Decision makes no finding, that when Ohio abruptly withdrew its defense of the HCH Action on March 5, 2021, there did not then exist at least “reasonable grounds to believe that the insured’s interests *might be served* by an appeal. | brief |
173 | Atalese v. Twp. of Long Beach, 365 N.J. Super. 1 (App. Div. 2003) 9, 12 Buddy v. Knapp, 469 N.J. Super. 168 (App. Div. 2021) 13 Camden County Energy Recovery Assocs., L.P. v. N.J. Dep’t of Envtl. Prot., 320 N.J. Super. 59 (1999), aff’d Camden County, 170 N.J. 246 (2001) 7 Costa v. Josey, 83 N.J. 49 (1980) 19, 20, 21 Coyne v. N.J. Dept. of Transport., 182 N.J. 481 (2005) 19, 20, 21 Cusseaux v. Picket, 279 N.J. Super. 335 (App. Div. 1994) 6 F.G. v. MacDonell, 150 N.J. 550 (1997) 7 Foster v. Newark Housing Authority, 389 N.J. Super. 60 (App. Div. 2006) 14-15, 17, 22 Garrison v. Twp. of Middletown, 154 N.J. 282 (1998) 12-13, 22 Gonzalez v. City of Jersey City, 247 N.J. 551 (2021) 19-20, 23 Henebema v. S. Jersey Transp. Auth., 219 N.J. 481 (2014) 19 Jenkins v. Region Nine Hous. Corp., 306 N.J. Super. 258 (App. Div. 1997) | brief |
174 | And then, therefore, plaintiff fails to meet the burden of the first. Thus, the Court shall not order the defendant to disclose the records pursuant to the plaintiff’s common law right of access and the application is designed[.]” 3T19-12 to 20-14. | brief |
175 | Respectfully submitted, LACHIA L. BRADSHAW BURLINGTON COUNTY PROSECUTOR /S/ Alexis R. Agre Date: January 26, 2024 By: Alexis R. Agre (Id#026692002) Assistant Prosecutor SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-003576-22 STATE OF NEW JERSEY PLAINTIFF-RESPONDENTS CRIMINAL ACTION ON APPEAL FROM TRIAL DE NOVO SUPERIOR COURT, LAW DIVISION BURLINGTON COUNTY, NEW JERSEY V. SHAKIRA LASISI DEFENDANT-APPELLANT | brief |
176 | See, *Davidson* at 188. Dr. Shah’s testimony and Plaintiff/Respondent’s argument were not of aggravation of a pre-existing disability or a comparative analysis. Rather, the testimony and argument were used to attempt to persuade the jury that despite objective findings to the contrary, Ms. Presbery did not have a pre-disability. New Jersey Courts have followed the long-standing principle as set forth in *Polk v. Daconceicao*, 268 N.J. Super. 568, 575 (App. Div. 1993), that “a diagnosis of aggravation of a pre-existing injury or condition must be based upon . . . an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existence post-trauma. | brief |
177 | This Memorandum is an expression of the interest and intent of the Parties which will form the basis of one or more formal agreements between the Parties which may be necessary, proper or advisable until the [Elians] secure bank financing for the acquisition of ... the Property .... (Emphasis added). (Da311). Bernardo agreed to advance $2,386,250 over and above a prior advance of $1,000,000. | brief |
178 | Dr. Powell testified that said range of profits is also consistent with the testimony of Bershtein in this matter. Bershtein testified during his deposition that partnerships between persons and affordable housing developers are not unusual, but rather are often the case. | brief |
179 | 20. Are you giving up your right at sentence to argue that there are charges you pleaded [Yes/wi] [No/Non] [NA/paaplikab] guilty to for which you cannot be given a separate sentence? Eske w renonse a dwa w le yap pwononse santans ou pou konteste ke gen akizasyon kote w te plede koupab ki entedi yo enpoze santans separe? 21. | directive |
180 | Based on the foregoing, the State urges this Court to affirm the denial of defendant’s motion to suppress and affirm his conviction and sentence. Respectfully submitted, MATTHEW J. PLATKIN | brief |
181 | State v. Presha, 163 N.J. 304 (2000) .................................................................. 16, 26, 27 State v. R.Y., 242 N.J. 48 (2020) .................................................................. 81, 85 State v. Rivera, 249 N.J. 285 (2021) .................................................................. 86 | brief |
182 | ’” Ibid, quoting Wyzykowski, 132 N.J. at 524. However, “the ethics rules must be applied with caution, as ‘local governments would be seriously handicapped if every possible interest, no matter how remote and speculative, would serve as a disqualification of an official. ’” Ibid., quoting Wyzykowski, 132 N.J. at 523. Thus, “the question will always be whether the circumstances could reasonably be interpreted to show that they had the likely capacity to tempt the official to depart from his sworn public duty. ” Van Itallie v. Borough of Franklin Lakes, 28 N.J. 258, 268 (1958). Such principles govern the instant case. In addition, LGEL has a role to play. | brief |
183 | National Park’s Detection of PFNA in Excess of the MCL National Park continually monitors for the presence of drinking water contaminants, including PFNA. Pa166-67 at ¶ 10. On January 22, 2020, the results of routine testing showed that the wells from which National Park draws its water supply contained PFNA in excess of the MCL. Id. NJDEP immediately became involved in the situation. On February 13, 2020, in compliance with applicable state and federal regulations, National Park issued an advisory notice to all residents stating that samples collected for the previous quarter (10/1/19 to 12/31/19) showed the presence of PFNA exceeding the MCL. Pa167 at ¶ 11. This advisory notice was reviewed and approved by NJDEP before dissemination to Borough residents. Pa167 at ¶ 10. National Park continued to send its residents update notices on the sampling results and the status of the efforts to address the PFNA MCL exceedances, with each such notice being subject to NJDEP review and approval. Pa167 at ¶¶ 10-12, Pa170 at ¶ 29, Pa112-137. | brief |
184 | Accordingly, any determination that any charge was improperly sustained must also result in either a reduction or reevaluation as to penalty. Further, the Penalty section of the Decision places emphasis on the discredited narrative that Appellant either abused or permitted abuse of opioids. As a primary example, the Decision justifies Appellant’s termination in stating that: “…a police officer with an opioid addiction covering up an overdose in his home, was a matter of concern that went beyond the police department. | brief |
185 | Appellant’s development in the Township of Toms River was a previously existing multi-family housing development that had been constructed “post-World War II. ” Prior to the appellant’s acquisition the property had a history of being poorly maintained, and a major generator of neighborhood parking and traffic congestion. The area of the existing development was in excess of seventeen acres and was developed in excess of the density requirements for the zone. The appellant subsequently acquired two small contiguous properties which together added a half-acre or less to the total area. With the addition of this half-acre, the appellant sought to add six new apartment buildings comprised of 100 additional residential units further expanding an already nonconforming apartment complex. Approval of appellant’s application would have required the grant of a d (5) density variance, as well as numerous bulk variances. Appellant made no attempts to comply with the updated zoning standards, rather seeking to build out the property beyond what the property could sustain, and the surrounding neighborhood could reasonably accommodate. PROCEDURAL HISTORY | brief |
186 | 23 A. Plaintiffs’ opposition fails to cure the deficiency in their proofs and the trial court’s findings to show that the converted funds “belonged” to them.............................................. 24 B. Defendants did not waive the argument that plaintiffs were required to make a pre-suit demand......................................................... 26 C. The economic loss doctrine is relevant to plaintiffs’ claims......................................................... 26 POINT IV THE TRIAL COURT ERRED IN PERMITTING PLAINTIFFS’ EXPERT TO PRESENT OPINION TESTIMONY THAT WAS NOT SUPPORTED BY FACTS AND, FURTHER, IN RELYING UPON THAT NET OPINION TO FIND PLAINTIFFS HAD PROVEN THEIR CLAIMS (1T51:21-56:22; 24T34:23-37:23)........ | brief |
187 | There also has never been a credible explanation of where the cobbled together document came from or why Appellant twice certified its accuracy. The Appellant’s story was he found the document when he went into the Respondent's office and there was a green folder which contained the initial agreement. This makes little sense. Why would an obvious fake agreement be in a folder in the Respondents office? Mr. Mohsen testified that the document was stapled together as if to be presented as a single agreement. [2T P21:L8-15] When confronted with these inconsistencies, in court he again stated the original cobbled together document was the actual employment agreement. [2T P25:L6-23,P29:L22-P30:L9] While counsel for the Appellant has attempted to rehabilitate Mr. Mohsen, he has never provided a credible explanation for the fraudulent document. There was an attempt to blame the Respondent for creating the fake agreement. Why would any employee create for themselves a fake arbitration agreement? As the court took note, even after there was a forensic evaluation in search of these agreements, none were found or presented to the court. [2T P50:L25-P58:L25] The original word version was never discovered. [2T P50:L25-P58:L25] It was only a year after the Appellants filed suit and after the court expressed serious doubt concerning the veracity of the Appellants’ position, that the new agreement materialized. The Court saw and heard all of this. While a transcript of a hearing is helpful to understand the basic facts and positions of the parties, there is nothing like seeing and hearing a witness testify live in Court. A witness’s evasiveness, confusion, or lack of candor can best be understood by a trained jurist observing the witness in real time. This is why our courts have traditionally deferred to trial judges on questions of credibility. A review of the questioning of Mr. Mohsen indicates he bounced back and forth between different positions concerning which agreement was the real agreement. What the transcript does not reveal is the hesitation of the witness, lack of eye contact, and other signs that allow an observer to doubt their veracity [2T P49-59] The Court came to the only conclusion it could, that the Appellants’ position lacked credibility and that there was insufficient evidence to demonstrate the Respondent signed a binding arbitration authentic agreement. | brief |
188 | • **Princeton University Press v. Borough of Princeton**, 35 N.J. 209 (1961) addressed the burden of proof for establishing a tax exemption under N.J.S.A. 54:4-3.6, not the LTTEL. • **Town of Secaucus v. Jersey City**, 20 N.J. Tax 384 (Tax 2002) addressed whether the Fox-Lance Law and the LTTEL allowed the transfer of a project to another urban renewal corporation, with the consent of the municipality. Again, none of these cases remotely suggests that a LTTEL exemption requires findings supported by substantial evidence, or that the municipality’s determination was arbitrary. | brief |
189 | (10T:28-2 to 8; see 10T:26-22 to 88-25). During the trial at bar, the redacted interrogation video was played and lasted for approximately twenty-one minutes. (2T:66-5 to 17). Defendant acknowledges trial counsels’ extensive redactions as “significant,” and rightfully so, given that they halved the video’s duration. (Db12). Despite this significant reduction, and the State’s ready acquiescence to defendant’s requests for further redactions, defendant maintains that the redacted interrogation video “plainly did not comply with this Court’s remand order to redact all opinions on [defendant’s] ‘credibility and guilt. | brief |
190 | Dr. Dubowitch, who evaluated Pearson in 2004, described the incident as follows: [Pearson] had a previous back injury sustained when he tackled an individual who was stealing a police bicycle. He had neck and upper back symptomatology necessitating treatment and he was out of work at that time for two and one-half months. Pearson, who testified in 2019, described the incident as follows: Mr. Murray: Let’s go back to the [incident] that happened in 2000. What do you recall the incident being? Mr. Pearson: [I] do one of the take-downs that we learned from being on the bike patrol. He falls down. Mr. Pearson: I jump off my bike, I go up to him, he tries to run, I tackle him. By tackling, you know, other police officers [] come to assist me. We lock him up. When tackling, you know, I thought I had a helmet on, so I go and tackle him, hit first, get a nice little tackle in and, you know, cuffed him up, everything. Mr. Pearson: [I injured] my knee, my lower back, and my neck was bothering me a little bit. Mr. Murray: Did you have to have any surgeries? Mr. Pearson: No, sir. | brief |
191 | The DEP concedes that the consistency determinations at issue in this HAD do not rise to the level of scrutiny that the DEP ordinarily requires in its review of an application for a Highlands Preservation Area Approval (“HPAA” or permit). In addition, the DEP concedes that if the proposed project is not exempt under the specific provision at issue in this appeal then an HPAA would be required under the Highlands Act. Critical to understanding the reasons the DEP’s issuance of the exemption is inappropriate is the fundamental starting point that the proposed project has not been the subject of any permit application or associated review under the Highlands Act. | brief |
192 | At that time, the Trial Court stated: [W]hat has [been] suggested is that we try as the first part of this case really the issues that the Court decided on summary judgment. Those issues including essentially the nature of the property rights that involve the Sixth, primarily the Sixth Street parking area. I think that necessarily in order for me to decide these issues, or given the ambiguity I’m going to require to hear testimony as to the behavior of the parties at or about the time that these property rights were created, or the purported property rights were created… But in any event, the Court I think is necessarily going to be required to hear how the parties behaved afterwards, which include the use of that property, the use of the parking area. * * * And I’ll hear evidence as to those things, as to the creation of those property rights, the behavior of the parties at or about the time and afterwards to the extent that they will impact on this Court’s ability to decide on what ambiguities existed and to try to address those ambiguities. (Da888 8:24-10:9) Any claims regarding monetary damages and other issues not resolved in the first part, were to be tried if necessary. | brief |
193 | Contrary to Middletown’s assertion, the trial court did not unilaterally amend the New Jersey Constitution and its ruling does not affect all municipalities. The trial court rightfully considered Middletown’s right to engage in condemnation and redevelopment activities, but balanced those rights against the Township’s constitutional obligation to enact the zoning ordinances necessary to provide its fair share of affordable housing: It's that as a matter of Mount Laurel law – and… I know that… Middletown has a constitutional right to condemn property, but Middletown is not sort of noticing that… it’s not the judiciary… plowing through and not enforcing… Middletown’s legislative right to pursue condemnation. | brief |
194 | 4:42-2 governs motions for reconsideration of interlocutory orders and provides, in pertinent part, that “any order … which adjudicates fewer than all claims as to all parties … shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice. ” *See* also Lombardi v. Masso, 207 N.J. 517, 536 (2011); Lawson v. Dewar, 468 N.J. Super. 128, 134 (App. Div. 2021)(citations omitted). As the Supreme Court noted in Lombardi, R. 4:42-2 “sets forth no restrictions on the exercise of the power to revise an interlocutory order. ” 207 N.J. at 534. Indeed, the Court recognized that cases continue to develop after orders have been entered and judges continue to think about them. Id. at 536. Cases are not static and, where appropriate, the trial court is empowered to revisit the prior ruling in the interests of justice to “right the proverbial ship. ” Id. at 537 (noting a judge “is not required to sit idly by and permit injustice to prevail” where, for whatever reason, he sees or hears something that convinces him that a prior ruling is not consonant with the interests of justice). The Court further held, “[t]his entitlement to change a prior ruling in the interests of justice is what distinguishes an interlocutory order from a final judgment. | brief |
195 | As the Court is aware, Plaintiff, JD Jamestowne, LLC (hereinafter “Plaintiff” or “JD Jamestowne”), filed an application for development (the “Application”) with Defendant, Toms River Township Zoning Board of Adjustment (hereinafter “Defendant” or the “Board”), seeking approval of a d(5) density variance, lot consolidation, preliminary major site plan approval, along with variance and design exception relief for property designated as Block 610, Lots 1, 2, 3, 5, 11, 30, 31 and 33 on the official Tax Map of the Township of Toms River. | brief |
196 | 29 | Cases | Page(s) | |----------------------------------------------------------------------|---------| | A. States Group v. Skovron, | 6, 25 | | 892 A.2d 683 (N.J. Super. App. Div. 2006) | | | Acierno v. Cloutier, | 24 | | 40 F.3d 597 (3d Cir. 1994) | | | Avant v. Clifford, | 11 | | 341 A.2d 629 (N.J. 1975) | | | Bell A. Corp. v. Twombly, | 22 | | 550 U.S. 544 (2007) | | | Bernstein v. State, | 15 | | 986 A.2d 22 (N.J. Super. App. Div. 2010) | | | Besler v. B., d. of Educ. of W. Windsor-Plainsboro Regl. Sch. Dist., | 12 | | 993 A.2d 805 (N.J. 2010) | | | Bright v. Westmoreland Cnty., | 26 | | 443 F.3d 276 (3d Cir. 2006) | | | Brooks v. Odom, | 9 | | 696 A.2d 619 (N.J. 1997) | | | Cnty. of Essex v. First Union Nat. Bank, | 5, 25 | | 891 A.2d 600 (N.J. 2006) | | | Cnty. of Sacramento v. Lewis, | 24 | | 523 U.S. 833 (1998) | | | Dodson v. Cook Cnty. Jail, | 18 | | No. 16 CV 0345, 2019 WL 764041 (N.D. Ill. Feb. 21, 2019) | | | Durmer v. O'Carroll, | 19 | | 991 F.2d 64 (3d Cir. 1993) | | | Edwards v. Prudential Prop. and Cas. Co., | 21 | | 814 A.2d 1115 (N.J. Super. App. Div. 2003) | | | Estelle v. Gamble, | 17 | | 429 U.S. 97 (1976) | | Felicioni v. Admin. Off. of Courts, 961 A.2d 1207 (N.J. Super. App. Div. 2008) ......................... 28 | brief |
197 | A Well, a tour could be anything. They could walk in and walk out, but yes, it's a tour. Q Okay. So you're saying they didn't do an appropriate tour? A What I'm saying is this is so global that it leaves a lot to the imagination on what they did and didn't do, ma'am. I don't have any idea of what they did. They're supposed to do certain things. A tour could be halfway down the hallway, through every hallway. I have no idea, so it just leaves a lot to the imagination, but – Q So, are you – A -- that's what they said. Q Are you saying that the State of New Jersey didn't do an appropriate survey? | brief |
198 | 종신 가석방 감독을 선고 받는다는 것은 귀하가 감옥에서 (3) 석방되거나 선고 유예에 처해지는 즉시 적어도 년 15 동안 가석방부의 감독을 받고, 상담, 인터넷에 대한 접근 또는 사용과 같은 대중을 보호하고 재활을 촉진하기에 적합한 조건, 그리고 귀하의 거주지, 직장, 여행 또는 귀하가 접촉하는 사람들에 대한 제한을 포함하는 가석방에 대한 조항과 조건들을 지켜야 한다는 것을 아십니까? | directive |
199 | J. In making its determination of the appropriateness of this area for these purposes, the Township has received the benefit of traffic reports, environmental reports, and a community impact statement, all of which have been posted to the Township's website for public consumption, and are made part of the record on this Ordinance. | brief |
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