ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Q.  Going to the statement on lines 16 and 17, the Company has made the decision to no longer use this type of heater.  That decision was made before you began to design this regulator station, was it not?  [...]:  Actually, it was around the same time that we decided not to use it anymore, because we had experience and issues with them, for those that had been installed just previous to the design of this station, and that is what we were referring to.  So in the last line, I guess, depending on your interpretation, as of today, we have made that decision, and it was made around the time, give or take, of when we were designing this regulator station.  [2T71:16-25, -72:1-25, -73:1-25, -74:1-11.]  Q.  Okay.  Thank you.  My question, however, was in designing this particular regulator station, the one that was to be sited at [...].
[brief] The trial court addressed Plaintiffs’ contention that “the Planning Board incorrectly interpreted the ordinance in question to provide for consideration of the applicant’s intentions in regrading the property. ”  (Pa12.)  The trial court considered this issue de novo.  (Pa12.)  The trial court found that “[i]t is clear from the face of the ordinance . . . that the Borough envisioned and permitted a change in grading on the property as being allowable in determining the ‘building height. ’” (Pa13.)  The issue before the trial court then was – as it is in this appeal – the application of the remainder of the “building height” definition and whether the Board properly interpreted the ordinance.  (Pa13.)  The trial court carefully considered the word “design. ”  (Pa13-Pa15.)  Since the word is not interpreted in the ordinance, the trial court noted that the word “design” is defined “in the Merriam-Webster online dictionary as ‘(1) to create, fashion, execute, or construct according to plan; DEVISE, CONTRIVE; (2) . . . INTEND; (c) to devise for a specific function or end. ’”  (Pa14.)  With this definition in mind, the trial court found that the definition of “building height” “specifically includes consideration of the plan or purpose of the mounding, terracing or other height-enhancing device that is included within the site plan and other documents presented to the land use board. ”  (Pa14.)  The trial court, therefore, explained that the land use board must consider evidence presented by the applicant that a change in grade was “made for an engineering, stormwater or other purpose and not to enhance the height of the structure. ”  Likewise, the land use board must also consider arguments from challengers, if raised, that no evidence was presented by the applicant that a change in grade had an engineering purpose.  Ultimately, using a de novo standard of review, the trial court found that the “Board properly interpreted the [...] ordinance. ”  The trial court also considered – under an arbitrary, capricious and unreasonable standard of review – the Board’s determination that the revised grading “was not designed in the manner shown for the purpose of allowing increased building height, but rather was for the purpose of providing for stormwater management and sanitary sewer on the property. ”  The trial court noted that it was “clearly within the Planning Board’s discretion” to determine that “the testimony of [...] [[...]’s civil engineer] and [...] [the Board],” that the revised lot grade was not designed to allow increased building height “was more persuasive than the testimony of [...] [the Plaintiffs’ traffic engineer].”  Since “[e]vidence supporting the Planning Board’s determination was clearly presented at the hearings below,” the trial court found that “the Planning Board’s conclusion concerning the credibility of the experts and the reasons provided for the regrading of the property” was not arbitrary, capricious, or unreasonable.
[brief] See City of Oklahoma v. Tuttle, 471 U.S. 808, 829-30, (1985) (Brennan, J., concurring).  Here, the thrust of Respondents’ allegations under §1983 (and the New Jersey Civil Rights Act) are that the Mayor, in his official capacity, sent out a press release in opposition to the Plaintiffs’ Amended Application to the Zoning Board one week prior to the Zoning Board’s public hearing on the matter on March 26, 2019.
[brief] judicata, the State Legislature has created a statutory scheme of general application that requires municipal consent in numerous scenarios relevant to public utilities.  For example: - “The consent of the municipality shall be obtained for the use by a person of the poles of another person unless each person has a lawful right to maintain poles in such street, highway or other public place. ”  N.J.S.A. 48:3-19 (emphasis added).  - “No poles shall be erected in any street of an incorporated city or town without first obtaining from the incorporated city or town a designation of the street in which the same shall be placed and the manner of placing the same.  Such use of the public streets shall be subject to such regulations as may be first imposed by the corporate authorities of the city or town. ”  N.J.S.A. 48:7-1 (emphasis added).  - “No public streets shall be opened in any municipality for the purpose of laying any such pipes, conduits or wires without the permission of the municipality. ”  N.J.S.A. 48:7-2.  (emphasis added).  - “Any telegraph or telephone company organized under the laws of this or any other State, or of the United States may erect, construct and maintain the necessary poles, wires, conduits, and other fixtures for its lines, in, upon, along, over or under any public street, road or highway, upon first obtaining the consent in writing of the owner of the soil to the erection of such poles .
[brief] Q: And additional groundwater is being contaminated by, I think what you call, the legacy contamination at the [...]; is that correct?  A:  As groundwater continues to move through the site; starts in the lake, comes through the site, goes into wetland.  As it continues to move through the site, it continues to be contaminated by the legacy contamination from those AOCs during their operating periods.  Q:  Let me make sure I understand this.  Is it correct then that there’s new groundwater coming through the site continuously, is that correct?  A: Yes.  Q: Okay.  And that new groundwater is being impacted by the CVOC contaminants from historical operations at the [...]; is that correct?  A: That’s right.  (Da290-292.)  In sum, clean water enters the Site, becomes contaminated, and is then captured by the on-site treatment system and remediated.
[brief] On March 1, 2016, [...] told [...] of an occurrence that happened when “she was out on vacation. ” (Pa679).  [...] reported in a memo that [...] told him “several people” had seen [...] “under her desk” with her “PC turned sideways” and that this was observed “on two different days” and that this was “odd” because “there would be no reason for [...] to be under her desk. ”  (Pa679).  A jury could find this suspicious because under oath at deposition, [...] denied telling [...] there were several people who observed [...] under the desk because at deposition he admitted there were allegedly only two.  (Pa679).  As far as [...] was concerned, even if true, the allegations made about [...] being under [...]’s desk was not a “rule violation” of any sort and he did not report it to his supervisor or anyone else.  (Pa680).  On March 2, 2016, [...], Section Chief of the Bureau of Safe Drinking Water, made the allegations about Dillon to [...] and on March 3, 2016 [...] reported the allegations to [...] by email and copied [...], [...] and [...].
[brief] Ba12.  The VC-2 overlay zone includes regulations governing traffic and circulation within the VC-2 district; and provides, in pertinent part:  (10)  Traffic and circulation:  (a)  A detailed traffic study analyzing the development's impact on the existing road system including, but not limited to, Applegarth Road, Route 33, the full intersection of Applegarth Road and Route 33, Bentley Road and proposed road intersections with any of the surrounding roads shall be filed with the development application.  (b)  A primary access road in the form of a boulevard with a treed center median that interconnects Applegarth Road through the VC-2 Village Center Overlay Zone with Route 33 at a signalized intersection at the main entrance of the existing [...] located on the southern side of Route 33.  Ba12.
[brief] \(^6\) (2T 78-9 to 18, 79-9 to 23)  These facts simply do not give rise to the individualized, particularized suspicion our federal and State constitutions require.  See State v. Rivera, 276 N.J. Super. 346, 352 (App. Div. 1994) (quoting Ybarra v. Illinois, 444 U.S. 85, 91 (1979)) (explaining that the particularity requirement “cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another . . . where the person may happen to be”); see also State v. Goldsmith, 251 N.J. 384, 403 (2022) (citations omitted) (“[J]ust because crime is prevalent in a particular area ‘does not mean that residents in those areas have lesser constitutional protection from random stops. ’”).  The facts in this case fall short especially because, here, there is no suspicion whatsoever that [...] participated in a drug transaction.  Cf. State v. Pineiro, 181 N.J. 13, 18, 25 \(^6\)  The court also relied upon [...]’s post-arrest statements to find that [...] knew that the plainclothes officers were police when he fled.  (2T 78-19 to 79-8)  But [...] gave no such indication that he knew the officers were police until after the initial stop when a uniformed officer searched his person.  (Da 10 at 2:24 to 3:05)  Further, his statements came after his arrest, prior to any Miranda warnings, in response to police questions like “what else you got?” and “what are you running for?” (Da 10 at 2:37, 2:50 to 2:55) (2004) (finding reasonable suspicion to stop a known drug dealer when an officer saw him pass a cigarette pack to a known drug user and neither was smoking); Arthur, 149 N.J. at 4-5, 10 (finding reasonable suspicion when defendant entered a parked car in a high-crime area empty handed but exited with a brown paper bag that she tried to conceal).  Because the officers’ stop of [...] was based on no individualized or particularized suspicion, the stop was illegal.
[brief] Clearly, [...]’s personnel should have been aware of the great prejudicial effect on Plaintiff if such critical evidence to probable litigation was, in fact, not preserved.  By virtue of the fact that an incident occurred involving Plaintiff, a duty should be imposed upon [...] to maintain video surveillance.  [...] could have easily preserved footage from the approximately 20 to 30 cameras that [...] estimated were in place throughout the store, as [...] testified that if there had been an accident, such as a customer accident, store personnel would register the time code and the camera number and send the information to corporate so that corporate had the ability to pull and save the footage.  (Pa96)  Despite admitting to this simple procedure to preserve video, [...] failed to do so with regard to Plaintiff’s incident.  (Pa97)  Rather, notwithstanding the feasibility of preserving such video, [...], having reviewed such video, under his own initiative and without consulting other corporate personnel, independently determined that the surveillance footage relating to Plaintiff’s incident did not need to be preserved at all because the footage did not depict the precise moment the U-boat [...] was operating had struck Plaintiff in the back.  (Pa96)  In only searching for the camera angle that he would have assumed had the best view of the point of impact, [...] did not search for any video that would have depicted the manner in which [...] had been operating the U-boat prior to the point of impact.  (Pa97)  Thus, relying solely upon [...]’s independent decision making that the camera angle did not depict the precise moment of impact, [...] made a conscious decision not to preserve any of the surveillance footage pertaining to the accident.  Additionally, the foreseeability of harm or prejudice to Plaintiffs’ potential claims if the evidence were discarded was also readily apparent to [...], as the footage was clearly relevant to the incident.  The resulting inequity and prejudice to Plaintiffs as a result of [...]’s failure to perform the simple task of preserving video surveillance following an incident that occurred on its premises is such that Plaintiffs are now left with the inability to utilize and rely upon such video surveillance to substantiate Plaintiffs’ liability claim.  To avoid situations, as in this matter, where such surveillance videos have been spoliated, in-store surveillance must be preserved where a potential defendant is put on notice of the possibility of a claim due to an injury involving an invitee and can reasonably foresee that a claim would be made.
[brief] Under Relevant and Binding Insurance Law, the Underlying Judgment Did Not Impose a “Fine” or a “Penalty” and Is Therefore Not Excluded From Coverage.  (Pa3).  Without analysis or explanation, the Trial Court stated (T85-1 to T85-4) that the monies awarded against [...] in this case fell within Exclusion 2.o of the Policy, which applies to “[f]ines or penalties imposed by law. ”  In fact, the Vermont Trial Court’s monetary award (Pa369–74) was issued under two no-fault fee-shifting provisions.  To begin with, like New Jersey law, “Vermont law provides that policy terms in an insurance contract should be interpreted consistent with the purpose of providing coverage, therefore, limitations and exclusions should be strictly construed.
[directive] Given the deciding standard for establish consistent each Office a important that every year, it is investigate accomplish this is by particular case.  The best way to in criminal charges a bring whether to prosecutor career process that ensures an experienced approval review and an internal instituting directing that decision.  For reason, I am charging that making final a each case before reviews Unitl Office's Special Victims supervisor in the that a Office require Prosecutor's each County whether to including decisions about final dispositions, all approve review and or Juvenile Unit prosecutor supervising conducting these reviews, the When criminal charges. bring or decline outlined complied with the protocols prosecutors officers and investigating that the should ensure in Standards.
[brief] Respondents write, “if there is a reasonable probability of success, there is logically an underlying well-settled right on which that reasonably probability is based,” and therefore, no such finding is necessary.  Pb23.  In its attempt to erase the “well-settled legal right” prong, the State ignores the fact that the Court actually analyzed the “well-settled legal right” prong, albeit incorrectly.  Rather than apply the substantive application of the LAD, the Chancery Court determined that the Attorney General has a well-settled legal right to enforce the LAD.  This is so because the application of the LAD’s transgender protection in the context of a public school is far from well-settled.
[brief] (23T 198-22 to 199-14; 24T 200-4 to 203-11)  When arrested, defendant also turned over his primary phone to police; it was located in the trunk of his car.  (24T 203-12 to 19)  At the time of his arrest, defendant was 5’11” and weighed 200 pounds.  (24T 204-11 to 13)  [...] testified that he cannot “recall” if police did a search to find the location of [...]’ phone in the months leading up to his death (it seems that they did not), and cross-examination emphasized that if police had done so, they could have confirmed defendant’s accounts of previous unannounced trips by [...] to the [...]’ property.
[brief] Because the retaliation charge referred to events occurring on August 23, 2021, through April 13, 2022, (Da12), the “unlawful act” refers to the stalking count, which covered the identical time period. \(^7\)  The definition of retaliation for past official action incorporates every element of the underlying “unlawful act”; in this case, stalking.  The evidence to support the retaliation conviction therefore entailed all the proofs required to establish stalking, plus additional evidence that the acts constituting stalking were undertaken “with purpose to retaliate for” [...]’s interaction with [...] in municipal court.
[brief] The reason is that the alleged injury occurs after either a wrongful arrest or criminal charge, forcing a plaintiff to wait until the criminal proceeding concludes before a malicious prosecution claim can accrue.  The more precise issue properly before the trial court was not whether the Appellant filed within the statute of limitations, but when his cause of action for malicious prosecution accrued.  The discovery rule stands as an equitable tolling doctrine whose purpose is to undisputedly soften — not make even more rigid — the harsh effects frequently resulting from the cold and doctrinaire application of statutes of limitations.  Typically, plaintiffs who have admittedly filed claims out of time invoke the discovery rule to toll the statute of limitations – not to determine when their cause of action accrued.  Resolving the accrual issue required analysis of the element of favorable termination, which this trial court simply ignored, and instead proceeded to assume the claims were untimely filed and decided the issue of tolling.
[brief] It found that the ROFR was clear, unambiguous, valid, and binding upon the parties, a finding that [...] does not actually challenge in the present appeal.  Ibid.  [...] challenges only the Trial Court’s factual and legal findings on question 2 posed by the Court in its opinion.  The Trial Court held that the valid final “bona fide offer” was not delivered by [...] until May 8, 2023.
[directive] Defendant does not challenge the validity of those orders, which the Court entered on its own.  The statute logically empowers trial courts to act on their own in certain instances.  To be sure, a few provisions condition excludable time on a party making an application.  See, e.g., id. at -22(b)(1)(c) (the filing of pretrial motions); id. at -22(b)(1)(d) (a request for a continuance); id. at -22(b)(1)(g) (a request to designate a case as a complex matter).  But other sections of the law depend on a party’s motion or request.  do not See, e.g., id. at -22(b)(1)(a) (competency examination and hearing); id. at -22(b)(1)(e) (detention in another jurisdiction); id. at -22(b)(1)(h) (severance of codefendants that 27 permits only one trial to commence); id. at -22(b)(1)(i) (failure to appear); id. at -22(b)(i)(j) (disqualification or recusal of a judge); id. at -22(b)(1)(k) (failure to provide discovery).
[brief] Plaintiffs’ Brief already established at Point IV that [...] was not proven by the Defendants to be a legally valid pre-existing non-conforming use.  As at trial, the Defendants do not even attempt to contest that here.  They do not argue with the fact that they are an illegal use that has been in existence since the 1940s improperly generating money to the property owner and business operator for over eighty years.  They seek to have this Court give them permission to continue that illegal restaurant use in a residential zone based on the equitable principle of “estoppel. ”  Of course, the court below did not even address this argument legally or factually in rendering its decision.  In addition, the record created by the Defendants is totally devoid of the kind of facts that would be necessary to a fact-finder in being able to weigh the equities of this illegal operation against a homeowner who filed suit within twenty days of its opening and who put the operator on notice months before the opening of this business.  It was the Defendants’ burden to create a record to support their estoppel argument.  They failed to do so and that is why the trial court and this Court are unable to grant the Defendants any relief on that basis.  Hilton Acres v. Klein, 35 N.J. 570 (1961); Sautto v. Edenboro Apartments, Inc., 84 N.J. Super. 461 (App. Div. 1964); Universal Holding Co. v. North Bergen Tp., 55 N.J. Super. 103 (App. Div. 1959); Adler v. Irvington Park Dept., 20 N.J. Super. 240 (App. Div. 1952); Ianieri v. Zoning Bd. of Adjustment of East Brunswick Tp., 192 N.J. Super. 15 (Law Div. 1983).  RESPONSE TO DEFENDANTS’-RESPONDENTS’ POINT III (T4 at 24:11)
[brief] .................  11 Albright v. Burns, 206 N.J. Super. 265, 632 (App. Div. 1982)  .....................  11  Lieberman v. Employee Ins. of Wausau, 84 N.J. 325, 342 (1980)  .............  11, 13 Hansbury v. Hudson & M.Ry. Co., 124 N.J.L. 502, 506 (N.J. 1940) .......... 11, 14 Rivera v. Columbus Cadet Corps. of America, 59 N.J. Super. 445, 449 (App. Div. 1960) ...........................................  11, 14 Crisciotti v. Greatrex, 9 N.J. Super. 26, 28 (App. Div. 1950) .................. 11, 14 Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 563 (2003)
[brief] The Authority’s argument that the Arbitrator invented and imposed a new work rule that the employer may never terminate an employee on indefinite non-FMLA medical leave is unsupported by either the record or case law.  Significantly, the Arbitrator’s Award simply does not state a “new work rule” as the Authority alleges.  Rather, the Arbitrator simply ruled on the narrow issue before him: whether the Authority had just cause to terminate [...].  Under the specific circumstances presented and the Authority’s shifting rationale for why it terminated [...], the Arbitrator ruled that there was no just cause for her termination.  In doing so, in fact, [...] specifically noted that “an employer is empowered to terminate an employee with a permanent inability to perform or a long-term medical condition preventing a return to work[.]” (P1 35, emphasis added).  He simply also noted that “consideration must be afforded to an employee with a temporary medical condition which can be corrected and able to return to work” as well as “time limitations. ” (Pa 35).  [...] also noted that the Authority could have “placed [...] on temporary suspension, pursued definitive medical information (from a neutral source) and considered her continued employment on medical finality. ” (Pa 36).  By failing to properly consider those circumstances and alternatives, which mitigated the Authority’s power to terminate [...] for medical incapacity, [...] ruled that the Authority acted without just cause.  [...] did not rule that the Authority had violated some bright-line rule against terminating employees on medical leaves of absence, but that the Authority had violated this particular contract by terminating this particular grievant under these particular circumstances.
[brief] (See Da39071-79.)  [...] wholly ignore those findings.  Witnesses and Appellate Work.  [...] make similar assertions about the Special Master’s findings concerning counsel’s time related to certain witness testimony and appellate work.  (Db41-43.)  There is no merit to these assertions.  [...] once again mischaracterize the nature of the Special Master’s findings, which describe how the disputed witnesses’ testimony furthered Plaintiffs’ pursuit of their RICO claims and the appropriateness of Plaintiffs’ billing practices for mediation and settlement.