ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] TABLE OF CONTENTS  THE ZONING BOARD RESOLUTION/DETERMINATION WAS PROPERLY FOUNDED IN THE LAW AND RECORD.  THE TRIAL COURT OPINION-ORDER VACATING THAT RESOLUTION WAS UNFOUNDED IN THE LAW AND FACTS  A.  THE BOARD OF ADJUSTMENT HAD JURISDICTION FOR THE SCHOOL'S 40:55D-68 APPLICATION (IN SUPPORT OF Db Pt. I AND RESPONDING TO Pb Pt. I)...........................................  5  B.  [...] (LOT 8)  OFF-SITE PARKING USE/FACILITY ON THE SCHOOL LOT  5 IS NOT A LEGAL ACCESSORY USE/FACILITY ON LOT  5.  THE TRIAL COURT DETERMINATION THAT THIS WAS A LEGAL ACCESSORY USE IS INCORRECT (IN SUPPORT OF Db Pt. II AND RESPONDING TO Pb Pt. II).........................................................  8  C.  THE BURDEN OF PROOF AS TO THE LEGALITY OF THE NON-COMFORMING USE WAS ON THE PROPONENT --- [...].  THE PLAINTIFF'S POSITION AND THE COURT'S RULING WERE INCORRECT AND INVALID (IN SUPPORT OF Db Pt. III AND IN OPPOSITION TO Pb Pt III)...........................  9  D.  THE 40:55D-68 APPEAL WAS NOT BARRED OR PRECLUDED BY THE CHANCERY COURT EASEMENT/DECISION (IN SUPPORT OF Db Pt. IV AND OPPOSITION TO Pb Pt IV)........  11  E.  [...]'S SUBMISSION OF NUMEROUS DOCUMENTS NOT IN THE BOARD RECORD --- AND THE TRIAL COURT'S ALLOWING SUCH SUBMISSION AND RELYING ON CLEARLY ERRONEOUS CLAIMS THEREIN --- WAS IMPROPER (IN SUPPORT OF Db Pt V and VII, AND RESPONDING OPPOSITION TO PbV AND VII)  ...........................................  13 CONCLUSION  ............ .......  15  STATEMENT OF PROCEDURAL HISTORY
[brief] Thus, Neuwirth found allegations that [...] had failed to “conduct[] any investigation” or “confront[] the plaintiff” about allegations against him were insufficient to plead actual malice.  476 N.J. Super. at 388.  [...]’s nearly identical claim here—that the [...] did not attempt to contact her before publication—likewise fails to meet her pleading burden.  Finally, Neuwirth disposes of any theory that the [...]’ failure to retract their statements evidences actual malice.  That decision confirmed that allegations about actions taken or not taken after publication “say[] nothing about the [defendant’s] subjective state of mind when [it] made the statements. ”  476 N.J. Super. at 393.  Indeed, courts have repeatedly held that a failure to retract cannot be evidence of actual malice.  See, e.g., Schwartz v. Worrall Publications, Inc., 258 N.J. Super. 493, 503–04 (App. Div. 1992) (citing cases).  In sum, and as the Neuwirth decision confirms, a plaintiff cannot rely on conclusory allegations and legally insufficient theories to plead actual malice.  Yet that is precisely what [...] attempted to do here.  The trial court erred in denying the [...]’ motions to dismiss, and its decision should be reversed.
[brief] For the foregoing reasons, the appellate court should find that the trial court erred in granting summary judgment in favor of Defendant solely on procedural grounds of non-opposition.  The substantive matters presented by Plaintiff, reflecting genuine disputes of material facts, mandated a denial of the motion.  The appellate court should reverse the trial court’s order granting Defendant’s cross-motion for summary judgment and remand the case for further proceedings that properly account for the substantive legal and factual issues critical to the dispute.  This correction will reaffirm the judiciary's commitment to just outcomes over procedural expediency.
[brief] See Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994).  While Rule 4:9-1 provides that leave to amend “shall be freely given in the interests of justice,” a motion to amend “will be denied either if prejudice will inure to the party opposing the amendment or if the amended pleading is without legal merit, that is, if the amendment as proposed would be futile.
[directive] Range - 50 yards.  (50 yard-line course of fire may be conducted at the 25 yard-line utilizing an appropriate reduced size target)  3.  Target - FBI type Q target, either paper or cardboard.  4.  Course.  a.  Total of 60 rounds per participant.  b.  Magazine capacity and mode of fire (semi-automatic or full automatic) will be given on command at each firing stage.  While using the full automatic mode, short bursts consistent with the cyclic rate of the weapon should be used.  c.  To achieve a passing score of 80% on the course, the participant must place a minimum of 48 shots within the border of the Q-target silhouette.  d.  Firing positions as indicated in the course.  Hip shooting is prohibited.  e.  Any form of full automatic firing is prohibited at distances greater than the 10-yard line.  f..  Mandatory reloading may be forced anywhere in the course at the discression of the supervising firearms instructor, otherwise 9-55 Revised (5/03)  Semi-Annual Firearms Qualification and Requalification
[brief] The Original Resolution’s findings adopted the unrefuted testimony of [...]’s expert stating that the UCC does not require elevators in Building “E” and that the Board cannot impose restrictions on [...] greater than those required by the UCC.  Pa124.  Even this, however, is a red herring, as what must be considered are the conditions that were imposed by the Original Resolution, where there was no condition requiring an elevator in Building “E” at that time.  There is not any, and cannot be any, dispute in this regard.
[brief] However, to the extent the Court has any concerns about the provision, or considers potential departure from Delta’s and Kalman’s guidance, the offending clause should be severed from the Agreement and the remainder of the dispute resolution provision enforced.  As set forth in Delta, New Jersey law permits courts to sever offending clauses or provisions from an arbitration \(^6\)This issue was raised below but not decided because the trial court enforced the parties’ Agreement.  [...] nevertheless raises the issue here because this Court may affirm on any ground.  See Williams, 444 N.J. Super. at 617. agreement and enforce the remainder of the agreement.  See Delta, 189 N.J. at 46. (noting that it had “no doubt” that unconscionable provisions “could be severed and that the remainder of the arbitration agreement would be capable of enforcement” because the agreement had a “broad severability clause”).
[brief] “He looks like he goes into your driveway.  He’s kinda got a bald head.  That’s why we figured we should talk to you because … either you know him … [o]r you can shed light and help us out[.]”  (Da 43; 25T 48-3 to 8; Da 17 at 29:21 to 29:30)  [...] responded, “I’m looking …. I’m really looking. ”  (Da 43-44; 25T 48-9 to 10; Da 17 at 29:32 to 29:37)  On a sixth push, detectives challenged [...]’s explanation that he had not arrived that night at [...] by walking west from [...], where the perpetrator had gone.
[brief] (M718-756).  ..................................................................................19  A.  Respondents’ claims for violation of substantive due process rights fail as a matter of law and were properly dismissed by the trial court.  M730-735 .........................................................26  B.  Respondents’ have no legal basis for their procedural due process claims as they availed themselves of the very process set by New Jersey law.  M735-7481  .............................................30  POINT V .................................................................................................................................34  RESPONDENTS’ NJLAD CLAIMS WERE PROPERLY DISMISSED AS THEY CANNOT ESTABLISH STANDING NOR A COGNIZABLE CLAIM UNDER THE NJLAD.
[brief] B.  Guaranties Are to Be Strictly Construed Against the Party Seeking Enforcement and Against the Party Who Drafted the Guaranty  Under clearly established New Jersey Law, guaranty agreements are strictly construed against the party “at whose insistence such language was included” and are to be “interpreted most strongly against the party” who inserted the terms of guaranty.  Ctr. 48 Ltd. P'ship v. May Dept. Stores Co., 355 N.J. Super. 390, 405 (App. Div. 2002).  “It has long been settled law that a [guarantee] is chargeable only according to the strict terms of its undertaking and its obligations cannot and should not be extended either by implication or by construction beyond the confines of its contract. ”  Peoples Nat'l Bank v. Fowler, 73 N.J. 88, 101 (1977) (quoting Monmouth Lumber Co. v. Indemnity Ins. Co. of N. Am., 21 N.J. 439, 452 (1956)).  Although a guarantor’s obligation cannot extend beyond the strict terms of his or her promise, “the terms of a guarantee agreement must be read in light of commercial reality and in accordance with the reasonable expectations” of the parties involved.
[brief] The Board cited among other case law Cardinale v. Board of Trustees, Police and Firemen’s Retirement System, 458 N.J. Super. 260 (App. Div. 2019), in which the Court stated that a member’s inability to return to work renders a member ineligible to apply for disability benefits (PA148).  The Board observed that permitting [...] to proceed with his AD application would contravene important public policy underlying disability retirement benefits, because it would prevent the Board from statutorily terminating his benefits should he be determined fit to return to duty but refuse to do so (PA149).  The Board has a fiduciary responsibility to protect the fund and it would not serve statutory policy to pay out moneys to those who are not entitled to them (PA149).  The Board also noted N.J.A.C. 17:1-6.4 which requires that a disability retirement applicant must prove that his or her retirement is due to a total and permanent disability; the disability must be the reason the member left employment (PA149).  Members who have involuntarily or voluntarily terminated service because of removal for cause or total forfeiture of public service, and/or settlement agreements reached due to pending administrative or criminal charges, will not be permitted to apply for disability retirement (PA149-PA150).  The Board noted that “[...]’s Settlement Agreement, whereby he avoided disciplinary charges and termination in exchange for his promise to retire, was clearly the impetus for his retirement application” (PA150).
[brief] We conclude that a party who brings an action that is shown to have been a "catalyst" for the cessation of conduct alleged to violate the Civil Rights Act may qualify as a prevailing party entitled to an award of attorney's fees."  D. Russo, Inc. v. Township of Union 417 N.J. Super. 384 (App. Div. 2010)  The Civil Rights Act specifically authorizes the award of counsel fees and costs to a prevailing party under Section 1983.
[brief] All of the Plaintiffs intended to purchase timeshare intervals for their own personal use and enjoyment and they specifically said that in their complaint.  So by law, all the Plaintiffs claims of oral misrepresentations should have been barred.  The Trial Court’s decision rendered the Parol Evidence Rule useless.  [...] replies with the following three (3) legal arguments focusing on the Parol Evidence Rule and the ill-defined RETA and submits that reversal is warranted.
[brief] Right.  So, what you're saying, he wouldn't have led to felony murder, he would have pled to something less than felony murder, because there's two different, from what I understand, there's two different indictments plus there were two other indictments that were dismissed.  [...]: Yes.  [...]: And two VOPS's.  So, there was a huge package.  I know that armed robbery is out, but where are we going from 30 with 30?  Where does it go from there?  He's going to have to plead to something other than felony murder.  [...]:  Well, in this case, with the armed robbery indictment off the table, that actually could impact his felony murder, the felony murder case against him because the 404(b) evidence that was going to come in, in the felony murder case, was tied to that armed robbery case that's now dismissed.  So, the strength of the State's case against him, in that felony murder charge, is actually significantly different now that that armed robbery indictment is off the table.  And, so, here, the plea transcript actually shows that he was ready to go to trial but the State was saying, well, we're going to, if you go to trial we're going to give you consecutive sentences on all these charges.  We're going to seek an extended term on the armed robbery charge.  We're going to put everything consecutive.  The judge said I'm going to run everything consecutive so, [...] agreed to plead guilty because of all of this exposure against him.  Now, we have one indictment off the table, we have the evidence in the armed robbery case significantly lessened and so, his decision to plead guilty, he now has the leverage, the bargaining positions of the parties is significantly different and [...], under the conditional plea rule, has a right to reconsider whether he wants to enter into that plea agreement.
[brief] I'm referring to exhibit A-5, which is proposed Lot 24.02, in the northeast corner is where the stormwater facility is and we would put the stormwater facility back a little further.  It would just make maintenance by the homeowner's association a little less efficient, but we could get nine, say, nine houses without that design waiver (T2: p46, ln 6-10)  When asked about the street tree waiver, [...] testified:  it's the number of trees which is really important so that if you're required by the spacing to put in ten trees and if you put in ten trees, you've provided ten trees.  The exact location of them, sometimes it's less desirable if they're all one right after the other.  In cases of any kind of a disease to the trees, it jumps from one to the other, versus if you have a bigger space, there's less.  But, to me, I've driven by many trees in Lakewood and other towns as well and I couldn't tell you whether the trees are every 50 feet or whether they're 60.  (T2: p50, ln 22-p51, ln12)
[brief] THE TRIAL COURT ERRED BY FAILING TO ADDRESS THE POTENTIAL FOR CONFLICTING JUDGMENTS IN STATE AND FEDERAL COURTS.  (Raised below: Appellant’s Opposition to Respondents’ Motions to Dismiss)  When the same claims are pending in multiple jurisdictions, principles of comity require careful consideration, and particularly when the parallel proceedings generate the potential for conflicting judgments.  See Sensient Colors, Inc. v. Allstate Ins. Co., 193 N.J. 373, 387 (2008); Continental Ins. Co. v. Honeywell Int’l Inc., 406 N.J. Super. 156, 174-75 (App. Div. 2009); Trustees of Princeton Univ. v. Trust Co. of N.J., 22 N.J. 587, 598 (1956).  Comity is practiced when a court of one jurisdiction voluntarily restrains itself from interfering in a matter falling within the purview of a court of another jurisdiction.  See Yancoskie v. Del. River Port Auth., 78 N.J. 321, 324 (1978) (observing general rule of comity “that the court which first acquires jurisdiction has precedence in the absence of special equities”); Aly v. E.S. Sutton Realty, 360 N.J. Super. 214, 222 (App. Div. 2003).  Comity is grounded in notions of accommodation and good-neighborliness and is a necessary expedient to preserve the delicate balance of power and harmonious relations among the various sovereigns of our federalist system.  See City of Philadelphia v. Austin, 86 N.J. 55, 64 (1981); Thompson v. City of Atlantic City, 190 N.J. 359, 382 (2007).  Notwithstanding that the Appellant apprised the trial court of the pendency of his appeal before the United States Court of Appeals for the Third Circuit, and even annexed the Notice of Appeal as part of the motion record, the trial court unfortunately ignored the very real and disastrous possibility of its premature dismissal of the Appellant’s State law claims.  In the event of a favorable decision by the United States Court of Appeals for the Third Circuit and following possible reversal of the District Court’s order of dismissal, the Appellant’s federal and State law claims would be resuscitated before federal court, in direct conflict with the trial court’s dismissal with prejudice of the State law claims.  The trial court’s dismissal of the Complaint was not only substantively flawed, but its apparently ill-considered hurried and imprudent decision now threatens to disturb the harmony and equipoise that ought properly exist between sister jurisdictions, and would have existed in this case had the trial court properly recognized and exercised a modicum of restraint.  The existential and pernicious possibility of two conflicting judgments of a State and federal court in the very same State is now no longer simply a perceived and theoretical concern, but an actual and immediate collision of parallel judicial tribunals.  As the trial court did not proceed, this Appellate Division must now and ought properly take this under the most serious consideration so as not to disrupt the delicate balance that the federal and state systems demand, and in order to preserve the highest public confidence in the judiciary.
[brief] A DEVELOPER MAY NOT IMPOSE OWNERSHIP OF A ROADWAY THROUGH A CONFUSING AND OPAQUE RECORD  Plaintiff claims that dedication of the roads “was understood by all to be a simple formality”.  (Prb, 2)  That would be news to the 2010 and the 2018 planning boards which were resolute that no dedication could take place unless the Borough Council formally agreed.  The Plaintiff-Respondent then goes on to indicate that "in reality the Trial Judge made clear on multiple occasions that she was referring to the 2010 map and 2005 map".  (Respondent's Brief, p.22)  There is no evidence in the record that the Borough was ever aware of either of these maps nor was there any evidence in the record that the Planning Board was made aware of such maps when it approved of the subdivision.  As noted earlier, the 2004 Developer's Agreement clearly indicated that “this Agreement shall not constitute an acceptance by the Borough or the [...] of such improvement until formally accepted as provided hereinafter and the Borough and the [...] shall accept said dedication of the required curbing, drainage, payment, etc. upon the completion of the improvements required in the cite plan by Ordinance or Resolution”.  (Pa115-Pa116)  Six (6)years later, the 2010 Developer's Agreement incorporated and adopted this language and agreed that "the Developer further agrees to comply with any applicable portions of a Developer's Agreement between the [...] and [...] dated December 20, 2004, a copy of which is attached hereto as Exhibit “B”.  (Pa212, ¶2B).  What was clearly intended by the Planning Board was that any roadway dedication was ultimately an issue to be addressed by the Borough or the County by formal resolution.  Those entities would make the final decision, not the Planning Board.  POINT V PLAINTIFF WAS REQUIRED TO NOTICE THE CHURCH WHO HOLDS AN IMPLIED EASEMENT WITHIN THE ROADWAYS AT ISSUE
[brief] ”  J.T., 455 N.J. Super. at 215 (citing Cain 224 N.J. at 424).  In State v. Simms, 224 N.J. 393, 396 (2016), the Court reaffirmed its holding in Cain, holding that “an expert's opinion on the defendant's state of mind encroaches on the exclusive domain of the jury as trier of fact. ”  Simms, 224 N.J. at 396.  In J.T., the prosecutor asked the expert to explain to the jury the concept of “legal insanity” and then to opine on whether defendant's conduct satisfied the elements of this affirmative defense.
[directive] Spanish lniciales de! acusado page of7/pagina de 7 5  5  Having been advised of the possible immigration consequences and of your right to seek 17.  f.  [Yes/Si]  [No/No] individualized legal advice on your immigration consequences, do you still wish to plead guilty?  Despues de haber sido informado de las posibles consecuencias de inmigraci6n para usted y de su derecho a tratar de obtener consejos legales individualizados con respecto a esas consecuencias de inmigracion 6todavia quiere declararse culpable?
[brief] During [...]’s testimony, the prosecutor showed Vollbrecht still images from the surveillance video and played clips of the surveillance video, asking Vollbrecht to describe what he saw.  Vollbrecht proceeded to give a running commentary on the video evidence.  While Vollbrecht had previously watched the surveillance video, he was not an eyewitness to the events depicted on the surveillance video.  His testimony was not limited to descriptions of objective facts readily apparent on the surveillance video but included subjective interpretations of the suspect’s actions as well as inferences drawn from other evidence.  Vollbrecht’s subjective interpretations and inferences all impermissibly bolstered the State’s theory that the suspect must have been an employee of [...], thereby pointing the finger at [...].  The admission of this testimony violated N.J.R.E. 701 because Vollbrecht was not an eyewitness to the events shown on the video and thus lacked the requisite personal knowledge.
[brief] After amending the complaint in September and December 2023, Plaintiff filed its Third Amended Complaint on March 28, 2024 to include additional facts and claims relating to recent actions in furtherance of the Township’s efforts to condemn the Property.  The Third Amended Complaint is the operative Complaint in this action.  On August 21, 2023—less than one week after Plaintiff filed the initial complaint in this action, and only one month after receiving Plaintiff’s inquiry letter—[...] adopted Resolution No. 23-228, which authorized the Board to undertake a preliminary investigation to determine whether the Property should be designated an “area in need of redevelopment” for condemnation purposes.  (Da176).  A companion resolution, No. 23-227, purported to designate [...], as the designated redeveloper of the property.  (Da206).  On September 18, 2023, the Township Committee enacted Ordinance No. 2023-3390, which purported to amend the Redevelopment Plan to require that a site plan application could not be submitted to the Planning Board unless the applicant was designated as the redeveloper by the Township.  (Ja52).  On February 7, 2024, the Planning Board held a hearing and, despite Plaintiff’s substantial objection, recommended that the Property be designated as a Condemnation Redevelopment Area.  On February 20, 2024, by Resolution No. 24-95, the Township adopted the recommendation of the Planning Board and determined that the Property is an area in need of redevelopment for condemnation purposes under the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 et seq. (Da201).
[brief] (Sb 26-30)  A: Heroin.  Q: Did he ever say why he wouldn't take your money sometimes?  A: No, he just was very nice about it and just gave me drugs.  [4T 130-1 to 10.]  Thus, the State’s claim that “[t]he purpose of [...]’s testimony was to show that defendant had knowledge of what was in the backpack and that the backpack belonged to defendant” is simply wrong, because the challenged testimony was not about receiving drugs from the backpack during the road trip at all.  The backpack is entirely irrelevant to [...]’s prejudicial, inadmissible testimony that [...] gave her heroin on other unrelated occasions several months before the road trip.  The same mistake infects the State’s invited-error argument.  Defense counsel stated that she was “not going to object” to [...] describing [...] giving her drugs in response to the State’s request to admit the road trip transactions.  As the prosecutor stated:  What I am seeking to come in, Judge, is the trip down to Virginia Beach that they were all on, Mr. [...], Ms.  [...] and two others.  During that time period before they make their journey up to New Jersey there is one or more circumstances in which Mr. [...], at Ms. [...]’s request, goes into the bag, gets drugs out of the bag, weighs them on the scale, marks same in the ledger and gives her some drugs.  This took place prior to the journey to New Jersey.  But obviously it’s extremely relevant as it goes to Ms. [...]’s knowledge as to what is in the bag.  [4T 93-4 to 19 (emphasis added). ]  The State never sought the court’s permission or defense counsel’s consent to admit [...]’s testimony about other unrelated instances of drug dealing.  The admission of this testimony with no limiting instruction whatsoever is reversible error.  REPLY POINT II