ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The Board finds that the Applicant has not met the required proofs for the Height Variances as required by N.J.S.A. 40:55D-70(d)(6) and otherwise provided by law.  As noted the Applicant requires two (2) Height Variances for: (i) building height for nonresidential structures, and (ii) building height for residential structures.  As noted, both Height Variances exceed both the maximum permitted number of stories and maximum permitted height.  The Board's practice is to view both deviations as one (1) request for relief, such that a number of stories variance is subsumed into a height as measured in feet variance and vice-versa; however, this practice does not obviate the need for the two (2) Height Variances required for this Application.  The Board finds that the same reasons expressed for the denial of the Use Variance pursuant to N.J.S.A. 40:55D-70(d)(1) are equally applicable to the two (2) Height Variances, and therefore deny both Height Variances.  Additionally, these buildings of these heights are out of character in relation to the residential and mixed-use developments.  In the area of the Township.  3.
[brief] The trial court erroneously believed the parties conceded there were no disputed issues of fact as to Plaintiffs’ Motion.  709a.  This was not the case, as there were material issues of fact as to whether [...] was a bona fide purchaser without notice of the error at the time of his purchase, and whether a reasonably prudent buyer would have, or should have, recognized the error.  [...] did NOT agree the matter could be concluded in Plaintiff’s favor on the issue of notice as a matter of law, and instead stated:  COURT: And [...], you agree as well that this is ripe for a summary judgment determination?  MR. KING: I think that you can conclude that [...] didn’t have a legal obligation to know or should have known based on the facts before you.  I am not so certain that you can conclude that he did know or should have known given the fact that you have ten people who didn’t notice and the expert report that says that a reasonable person at a real estate closing wouldn't know or should know.  So respectfully, I think we can win on summary judgment, but I don't see how we can lose.  T1, 67:23-68:9\(^1\).  This was perhaps a mixed question of law and fact, but the trial court certainly should have heard from the expert title searcher/attorney who offered \(^1\) T1 refers to the transcript of the May 4, 2023 hearing on both parties’ summary judgment motions before Honorable [...], P.J.Ch. an expert opinion regarding what a reasonable title searcher could be expected to concluded from the record.  See Palamarg Realty Co. v. Rehac, 80 N.J. 446, 458 (1979) (remanding decision on record, constructive notice and holding, “final decision on this point should await the taking of expert proofs on remand.”).
[brief] Da123  E-MAIL TO [...], ENCLOSING U.S. POSTAL SERVICE PUBLIC SERVICE MESSAGE, DATED JUNE 15, 2023.............  Da127  U.S. POSTAL SERVICE PUBLIC SERVICE MESSAGE, DATED JUNE 15, 2023.........................................................  Da128  NOTICE OF APPEAL, DATED SEPTEMBER 10, 2023..............  Da129 | Party Name | Appellate Party Designation | Trial Court Role | |--------------------|-----------------------------|------------------| | [...] | APPELLANT | DEFENDANT | | [...]| RESPONDENT | PLAINTIFF | ## TABLE OF TRANSCRIPTS | PROCEEDING TYPE | PROCEEDING DATE | TRANSCRIPT | |-----------------|-------------------|------------| | HEARING | JANUARY 3, 2023 | 1T | | TRIAL | FEBRUARY 7, 2023 | 2T | | TRIAL | MARCH 7, 2023 | 3T | | TRIAL | MARCH 14, 2023 | 4T | | HEARING | AUGUST 3, 2023 | 5T | ### TABLE OF AUTHORITIES
[brief] The Court reasoned that there was no such omission as that cited in the Perlmart decision.  (Pa56).  Here the court found:  . . . the notice is sufficient to inform the layperson of the nature of what is being sought in the proposed development and whether it would affect them.  It clearly informs the public that there are going to be three structures housing 17 townhouses and that the application will require variances relief from the front yard setback requirement on Ocean and Porter Avenues; height limitations; and the lot per unit limitation.  [Pa56-57]  The Court opined that “the required public notice need not be ‘exhaustive. ’” (Pa57).  “It is the Court’s view that the term ‘density’ was not needed to convey the nature of the approval sought. ”  (Pa57).  Specifically, the court found that the “forward slash represents a divisional sign and is commonly understood as shorthand to express ‘per’.  As used in this case, it is interpreted as ‘lot area [per] unit . . .  This expression is synonymous with the definition of density, which is defined in the MLUL as the ‘permitted number of dwelling units per gross area of land that is subject to an application for development.’” (Pa57); See N.J.S.A. 40:55D-4.  As such, the Court properly found that the Applicant provided notice of all “material aspects of the proposal. ” (Pa58).  For all of these reasons, the Defendant takes the position that it acted reasonably and in accordance with the evidence presented an in accordance with the municipal land use law and the case law that the notice sufficiently identified the location of the municipal offices despite a de minimis clerical error and the public was sufficiently notified of the variance relief requested.
[brief] (Pb15)  This, the Defendant claims, is the proper reading of the paragraph.  The Defendant’s argument is based on multiple misreadings, misinterpretations and outright rewrites of the PSA.  One, and major as already addressed (supra at 28-34), is there was no obligation on Defendant to provide an Acceptable Estoppel Certificate, instead it was to promptly deliver the executed Estoppel Certificate if obtained.  Another is that Defendant ignores the syntax and organization of paragraph 13.10 which prove only one Estoppel Certificate was being used.  Finally, Defendant did not just misinterpret the PSA but chose to rewrite it altogether.
[brief] v. Terracciano,** | 7, 10 | | 147 N.J. Super. 582 (App. Div. 1977) | | | **Liberty Mut. Ins. Co. v. Borgata Hotel Casino & Spa,** | 12 | | 456 N.J. Super. 471 (Law. Div. 2017) | | | **N. Haledon Fire Co. No. 1 v. Borough of N. Haledon,** | 8, 11 | | 425 N.J. Super. 615 (App. Div. 2012) | | | **Smith v. Whitaker,** | 9 | | 160 N.J. 221, 233 (1999) | | | **State v. Berry,** | 11 | | 2006 WL 1565090, at *2 (N.J. Super. Ct. App. Div. June 9, 2006) | | Zaccardi v. Becker, 88 N.J. 245, 254 (1982) ...........................................................................................................6, 7 Statutes and Rules N.J. R. Ch. Div. Fam. Pt. R. 5:8A.................................................................................................13 N.J.S.A. 2A:14-2.............................................................................................................................10
[directive] County Prosecutor’s Offices may also assist with the identification of ARRIVE  Together teams within the county, community crisis response teams or other community-based resources for potential utilization in Tactical Disengagement situations pursuant to section 4.8.  Decision to Utilize Resolution Tactics.  4.7  Absent exigent circumstances, a decision to employ resolution tactics as defined in Section 2.10 of this addendum and/or to enter a structure or area occupied by a barricaded individual, shall be made by the incident commander, who shall be the highest ranking on-scene law enforcement supervisor.
[brief] Moreover, the court cannot assume that there would be a significant disruption of the proceedings without inquiring of the defendant if he would need additional time to prepare.  Here, the trial court refused [...]’s request to represent himself without any explanation.  Although the request was made after trial had begun, the court did not indicate that it was denying the request as untimely.  Instead, the court dismissed the request offhand, stating simply that it had addressed the issue of self-representation with [...] before.  (3T 75-7 to 9)  In fact, the court had never addressed this issue with [...] as it pertained to the case at bar.  The court seems to have inappropriately relied on the fact that it granted [...] the right to represent himself in an entirely different case as grounds for denying this request.  In addition, the court did not ask [...] whether he would require an adjournment should his request to represent himself be granted.  It is entirely possible that [...] was willing and prepared to proceed without any delay.  If that were so, and assuming [...]’s decision was determined to be knowing and intelligent, there would be no legitimate reason to deny the request.
[brief] REJECTION OF [...], PP, AICP.  Defendant claims that it rejected [...]’ planning testimony because he did not provide a “comparative analysis” of the warehouse uses permitted in Mansfield’s ODL and Florence’s SM Zones.  Db27-Db28.  Said another way, the Defendant rejected all of his testimony because he did not compare the differences in the warehouses and types of warehouses permitted in the two zones.  *Id.*  This conclusion ignores the elephant in the room—warehouses and the accessory uses sought are the same, and are permitted in both zones.  And, unlike the ITE, neither town distinguished between different types of warehouses.  Moreover, this specific Property, and the land surrounding the Interstate 295 and Florence-Columbus Road Interchange, was targeted for this very type of development.  Just a few years earlier, it was projected by both the County of Burlington and Florence Township to produce 1.55 million square feet of warehouse and distribution space.  Ja215; 4T 72:9-25 to 75:1-14.  If Defendant wanted a comparative analysis regarding the two zones, it already had it, as the zoning requirements for Mansfield’s ODL and Florence’s SM Zones were shown on the site plans.  Ja73.  Defendant unreasonably expected Plaintiff to “unpack the respective ordinances” (Db29), but there was nothing to unpack.  Defendant was obligated to give “significant weight” to Mansfield’s zoning requirements, which, except for the height of the building in Mansfield, were the same.  Again, through its dependence on the preconceived and factually unsupported theory that height is a proxy for intensity of use, Defendant unreasonably rejected [...]’ planning testimony.  IV.
[brief] *See Scafe v. Wells Fargo HomeMortg. Wells Fargo Bank N.A.*, 2016 U.S. Dist. LEXIS 129402, 2016 WL 5334658, at *7 (D.N.J. Sept. 22, 2016) (dismissing a plaintiff’s FDCPA claims based on the Entire Controversy Doctrine because they arise from a mortgage that was the basis of a state court foreclosure action, for which a final judgment was entered).  In *Francavilla*, the Appellate Division reviewed whether the lower court erred when it dismissed the complaint with prejudice as barred by *res judicata* and the entire controversy doctrine.  Importantly, the Appellate Division affirmed the lower court’s order and held: [w]e find the trial court did not abuse its discretion in applying the entire controversy doctrine to dismiss the Essex County litigation where the substantive defenses raised here could have been pursued in the Bergen County litigation.  *Id.* at *9*.  The Appellate Division further held that because the case is jurisdictionally barred, the lower court did not abuse its discretion by dismissing the complaint with prejudice based upon the entire controversy doctrine. \(^{32}\)  Here, the Action meets the elements of the entire controversy doctrine in that all claims arose from the same transactional facts that were raised, or could have been raised, in the Collection Action.  *See Mystic Isle Dev. Corp.*, 142 N.J. at 322.  The Superior Court of New Jersey, Appellate Division, also applied the Entire Controversy Doctrine in a similar fact pattern in *Woo-Padva*, 2019 N.J. Super. Unpub. LEXIS 1735, at *8-10. \(^{33}\)  Specifically, the court held that the plaintiff’s claims for violation of the NJCFLA and NJCFA constituted a defense in the collection action.  *Id.*  As relevant, here, the Court should rule identically to *Francavilla* and *Woo-Padva* and hold that, first, Appellant’s claims are barred by the entire controversy doctrine because: (1) the claims in the Action arise out of the *same* transaction or occurrence as the Collection Action – namely, the collection of the Debt (Pa34-Pa37; \(^{32}\) It declined to reach the remaining arguments raised on appeal, including the application of *res judicata* because it was moot but approvingly quoted the Lower Court’s reasoning in its decision.
[brief] (10T 204-22 to 25; 12T 95-7 to 11) gun”; he “screamed, ‘Oh, shit, gun,’” and changed direction.  (22T 247-11 to 25, 248-7 to 12, 285-22 to 286-3)  [...] heard “at least four or five shots” while he was in the parking lot.  (22T 246-4 to 8, 283-6 to 9)  After [...] heard [...]’s shout-out about a gun, he saw [...] “with a gun in his hand and he was lifting it. ”  (23T 175-24 to 176-16, 177-16 to 17; 24T 204-25 to 205-1, 207-12 to 18, 279-20 to 21)  Confident that “this guy was going to kill me,” [...] said he “just fired once to defend myself” (24T 203-8 to 10, 204-9 to 18, 217-20 to 22) and “kept running” until he got to his car.  [...] incurred a single fatal gunshot wound to the chest.
[brief] ALL STATEMENTS AND SUMMATIONS PRESENTED BY PLAINTIFF’S COUNSEL WERE PROPER AND WELL WITHIN THE BOUNDS OF THE APPLICABLE CASE LAW AND GENERAL STRATEGIES OF SUCCESSFUL TRIAL ADVOCACY.  (Not Raised Below)  Similar to their arguments above, Defendants’ attack on Plaintiff’s counsel’s rhetorical theme of the case is suspiciously untimely and unaccompanied by any formal objection.  Therefore, only after exploring what actually occurred at trial can Plaintiff respond to Defendants’ substantive arguments.  Plaintiff’s counsel opened trial, as many lawyers do, with an aphoristic explanation of the American civil jury system (3T, at 3:9-21).  As part of that explanation, Plaintiff’s counsel noted this system’s inherent reliance on the idea of accountability (3T, at 3:9-21).  Plaintiff’s counsel then adopted a trial tactic common among litigators, which is to assign a theme to the case to help the jury digest all of the issues presented.  Piggybacking on their opening, Plaintiff’s counsel prompted the jury that this case was about accountability, particularly in light of the peculiar circumstance of Defendants’ stipulated liability (3T, at 4:22-24).  The only objection related to this issue came at the conclusion of Plaintiff’s opening statement, and on grounds that counsel was making an argument more appropriate for closing (3T, at 10:24-11:9; 11:22-25).  In closing, Plaintiff’s counsel obviously returned to this theme of accountability as a way to guide the jury through what was proven at trial (4T, at 156:24-5).  This was done when Plaintiff’s counsel started, and during his conclusion.  Yet, at no point during Plaintiff’s closing did Defense counsel object.  Defense counsel, as they themselves stated during opening statements, recognized that Plaintiff’s thematic strategy was appropriate for closing argument (3T, at 10:24-11:9; 11:22-25).  This recognition is exactly why Defendants never moved for a mistrial prior to the jury being released for deliberation.  It is also why Defendants never included this argument in either their Motion for New Trial or their Motion for Reconsideration (Da51-55; Da62-66).  Forgive Plaintiff for sounding like a broken record, but surely if introducing the theme of accountability were so prejudicial to Defendants’ case, it would have been included in a post-trial motion, or at the very least objected to.
[brief] (Id. at 16 (citing [...] Decl. Exs. 6, 7)).  They assert that some of the six “new” topics are “explicitly predicated upon information Defendants provided in their written responses,” and because they heard nothing from plaintiffs after completing their written responses, they were surprised to receive plaintiffs’ portion of the Joint Stipulation without plaintiffs having previously reached out “to request a deponent or note their dissatisfaction with the written responses. ”  (Id.).  Defendants state that they have not refused to provide a deponent and, in fact, on June 15, 2021, they agreed to produce a Rule 30(b)(6) deponent.  (Id. (citing [...] Decl. Ex. 8)).  They argue that plaintiffs nevertheless insisted on continuing with this Motion, which suggested to defendants that “Plaintiffs seek agreement to depose a Rule 30(b)(6) witness without regard for appropriate privilege objections. ”  (Id. (citing [...] Decl. Ex. 9)).  Defendants further assert that if plaintiffs had raised their request “prior to serving their portion of the joint stipulation, Defendants could have worked with Plaintiffs to resolve questions related to the appropriate scope. ” (Id. at 16-17)).  They submit that plaintiffs’ Motion should be denied because their “request is premature, some of the topics are ‘noticed’ for the first time in this joint stipulation, and some portions of the topics are protected by privilege. ” (Id.).  Defendants argue that to the extent plaintiffs were dissatisfied with defendants’ response to the 2019 Rule 30(b)(6) deposition notice, “they should have promptly renewed their request for a deposition as to particular topics, issued further written discovery, or moved the Court to compel a response,” and “cannot now blame Defendants for [plaintiffs’] own lack of diligence.
[brief] ”  Db20-23.  Defendants do not cite a single case suggesting that “new substantive policy judgment[s]” are what drive retroactivity analysis, id., or supporting the notion that retroactivity relates to whether legislation “reflects a different policy choice,” Db23.  See, e.g., James, 216 N.J. at 563.  Second, the trial court correctly held that the 2023 Veto Amendment did not alter the rights of either the State or Defendants.
[brief] [...], who was very focused on defendant at this point and staring right at him, observed defendant reach down on the left side of his seat and pull out a gun.  At first, defendant pointed the gun at [...]’s face and she began to scream, “what the fuck are you doing?  Are you going to try and shoot me?”  Defendant then switched hands and with his elbow he put his window down.  He then put the car in neutral.  When the car began to slow down, [...] screamed at defendant, “Why are we slowing down? What are you doing? Like do you want to get arrested?  What the fuck is wrong with you?  Why are you driving like this?  We’re going to get pulled over. ”  To which, defendant responded, “I’m sorry.  I just can’t take it.  I have to fight back.  I’m not dealing with this anymore. ”  (7T:128-18 to 129-11).
[brief] As the ALJ noted in his decision, [...] is factually distinguishable on multiple grounds (Aa18-Aa19).  [...] involved a firefighter who was injured when he kicked down the door to a burning building to save two occupants.  Id. at 347.  The pension board denied [...]’s AD application based on its finding that the incident was not undesigned and unexpected.  Id. at 347-348.  The Appellate Division reversed because there was a vital “combination of unusual circumstances that led to [...]’s injury” (Id., at 354).  The Appellate Division noted that breaking into burning buildings was not [...]’s normal unit assignment as he was assigned to a unit which carried hoses to burning buildings and put out fires.  Another unit was responsible for forcing entry into a burning structure and rescuing occupants.  Id., at 349.
[brief] The State admitted the consent-to-search form as S-3 at the suppression hearing.  (1T 11-14 to 14-18)  The defense is not in possession of that exhibit, but the State has agreed to include it in its appendix pursuant to Rule 2:6-3 if and when the State recovers the exhibit from storage.  In any event, the consent form is not critical to this appeal, as the BWC shows [...] reading the advisories aloud.
[brief] Here, Plaintiff substantially complied with the affidavit of merit statute because (1) Defendants have failed to show that they have suffered any prejudice.  In fact, Defendants Certification and Legal Memorandum appended to their Motion to Dismiss provide no evidence that any prejudice has resulted from Plaintiff’s failure to provide a timely affidavit of merit (31a), see also (Transcript, 15:2–16:3); (2) despite not having received any of the medical records requested from Defendants, which are required by statute and by Plaintiff’s Expert to prepare a comprehensive and sufficient affidavit of merit, Plaintiff has still submitted an Affidavit of Merit with the records in Plaintiff’s possession that evidence Plaintiff’s meritorious claim (61a); (3) the purpose of the Affidavit of Merit statute, as explained in Section I, is to weed out frivolous lawsuits that lack merit.  Here, Plaintiff’s untimely affidavit of merit demonstrates that Plaintiff’s claim is in fact meritorious.  As such, dismissal of Plaintiff’s Complaint would be contrary to the purpose of the affidavit of merit statute; (4) Plaintiff notified Defendants of this lawsuit long before Plaintiff’s Complaint was filed.  On October 26, 2022, Defendants were sent notice that Defendants were responsible for Plaintiff’s injury.  (102a).  Additionally, on February 5, 2024, Plaintiff complied with all of Defendants’ Discovery Requests, including all of the medical records that Plaintiff had in her possession, which did not include the medical records that were requested from Defendants.
[brief] “An act is unauthorized if it is committed in breach of some prescribed duty of the public servant’s office. ” (20T172-13 to 15).  Considering the jury instructions in their entirety, as this Court should, “its entirety overcame any omission specifically to have better instructed the jury. ”  State v. Delibero, 149 N.J. 90, 106-07 (1997).  Second, the judge added language concerning inherent duties of all public officers holding positions of trust, quoting *Driscoll v. Burlington-Bristol Bridge Co.*, 8 N.J. 433, 474-76, *cert. denied*, 344 U.S. 838 (1952).
[brief] *State v. Funderburg*, 225 N.J. 66, 81-82 (2016), quoting *State v. Denofa*, 187 N.J. 24, 42 (2016); see also *State v. Canfield*, 252 N.J. 497, 501 (2023) (comparing and contrasting the two standards).  Obviously, with the defense request for the instruction here, the plenary review of the judge’s decision in this case must be under the mere “rational basis” standard of [...], [...], and [...].