ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Argument  Respondents argue that the Trial Court was obligated to give substantial deference to the [...]’s decision, citing Scully-Bozarth Post #1817, 362 N.J. Super. at 314 (Turteltaub-Rb19).  Respondents continue their argument by claiming that the Trial Court is obligated to “presume the Amended Resolution to be valid” (Turteltaub-Rb19).  The problem with this argument is that the Appellant was arguing that the Amended Resolution was indeed valid and that [...] had violated its conditions.  In fact, it is the Trial Court that failed to give proper deference to the Amended Resolution when it decided that one of the elements of the plans and renderings listed at the beginning of the Amended Resolutions Findings of Fact section – the Diagrammatic Elevation -- should be disregarded as a binding condition based on the erroneous reasoning discussed in Legal Point 1 of this Reply Brief.  So, Appellant would heartily agree with Respondents’ contention that the Trial Court should have given deference to the amended resolution.  Unfortunately, the Trial Court did not give the required deference.
[directive] Pursuant to 2C:4-6b that the charges be held abeyance and that the defendant be in 1.  ___________________ released upon the following conditions:  _  That the defendant shall be reevaluated within three (3) months the community by [the in 2. Program) [...] who shall furnish this court 1 and the counsel identified below with an evaluation which has determined whether the defendant fit to proceed to trial, whether it is substantially probable that the defendant is could regain his/her competence within the foreseeable future and whether defendant has of become dangerous to self, others or property as a result mental illness; and will if l [...] complete the competency evaluation the initial if by by be evaluation was completed AKFC or the court orders that subsequent evaluations completed AKFC. of Published Directive# (11/01/2018), (Competency Order I 3 12329 page 17-18 CN: 5) by NJS.A. 3.
[brief] As discussed in the Perlmart decision:  When a statute requires a notice to be given to the public, such a notice should fairly be given the meaning it would reflect upon the mind of the ordinary layman, and not as it would be construed by one familiar with the technicalities solely applicable to the laws and rules of the zoning commission.  Consequently, the critical element of such notice has consistently been found to be an accurate description of what the property will be used for under the application.  [Perlmart of Lacey, Inc. v. Lacey Twp. Plan. Bd., 295 N.J. Super. 234, 238 (App. Div. 1996)(internal citations omitted)]  Plaintiff alleges that the notice of the application for development did not comply with the requirements of N.J.S.A. 40:55D-11.  Specifically, Plaintiff alleges that the Applicant’s notice failed to identify the location and time at which any maps and documents for which approval is sought are available because at the time the notice was published and served on property owners within two hundred feet, the plans and other documents were not at [...] but were located at the new office of the Planning Board at [...], [...], approximately one block from the advertised location provided in the notice.  Plaintiff’s argument fails because the change in address was clearly posted on the door of the old location that the new municipal offices are located at [...].  (1T1 9:12-16).  The Board considered the sufficiency of the Notice of Interested Persons and Property Owners within 200 feet.  Pursuant to Perlmart of Lacey, Inc. v. Lacey Twp. Plan. Bd., 295 N.J. Super. 234 (App. Div. 1996) the Board voted unanimously to accept jurisdiction.
[brief] ”  Rather, [...] “shared” a letter brief in which it summarized the above elements of the record.  That is precisely the type of record this court has repeatedly held to be insufficient to dismiss a request for a fact-finding hearing in cases involving similar facts.  Nonetheless, both [...] and the [...] insist their determinations were based upon the “ample evidence” that [...] relied upon in reaching its credibility determinations, which [...] adopted.  (Rb17 ([...] describing the [...]’s decision as supported by “ample evidence”); (R2b10 ([...] stating same); (Rb19 ([...] asserting that the [...] “considered [...]’s consistent and specific statements alongside the text message exchange . . . and the video footage”).  Again, those assertions are simply contrary to the record.  Neither the [...], nor this court, has ever been presented with either piece of evidence.  Nor has [...]  Yet, [...] asks this court to blindly accept both its representations about what the video shows as well as the reasonableness of the findings and conclusions it drew from them.  This is a critical problem in this case.  [...]’s representations about how it used these two pieces of evidence to make credibility determinations and conclude that [...] purposely misnamed [...] demonstrate that its failure to produce them in connection with [...]’s appeal to the [...], and [...]’s failure to either seek to review them or transmit the matter for a fact-finding hearing, obviate any argument that they constitute “substantial evidence.
[brief] Article Third in the Will states:  I do give, devise and bequeath the unpaid principal balance and accrued interest, if any, in and to a certain mortgage lien which I hold on the property known and as by the street address [...] unto my son [...].  It is my wish and I direct that such debt be forgiven and the mortgage lien cancelled of record by my Executor.  (Pa000264).  The Probate Court found this provision was ambiguous and interpreted it to the benefit OF [...] and to [...]’s detriment.  (Pa000270).  In Article III of the will, [...] attempted to accomplish [...]’s intention to gift the unpaid principal and accrued interest under the mortgage to [...] [...] understood the language in the first sentence of Article Third, which addressed the mortgage on the property.  It was consistent with his intention to give the monies from the mortgage to [...].  (Pa000160).  Mr. [...] understood the first sentence in Article Third meant that the unpaid balance of the loan, whatever it may be, would go to [...].  (Pa000214).  [...] conceptually understood the second sentence of Article Third to mean that his gift would be protected from being challenged.  (Pa000161).  Mr. [...] understood that the second sentence meant that the mortgage debt would be forgiven and the lien canceled, which means that [...] would have the property free and clear from [...]’s lien.  (Pa000215-Pa00216).  [...] intended that the debt was to be forgiven and the mortgage lien canceled of record for [...]’s benefit.  (Pa000214).  [...] was referring to [...]’s obligation specifically when he discussed it with Mr. [...].  (Pa000202, Pa000254).  [...] never told Mr. [...] that he intended to forgive the debt as to [...].  (Pa000216-Pa000222, Pa000254).  [...]’s relationship with his daughter-in-law, [...] deteriorated over the years while [...] and [...]’s marital problems progressed.  It is not surprising then that [...] never mentioned [...] to Mr. [...] at any time during their meetings and did not include [...] as a beneficiary under his Will.  Article Third of the Will was intended by the scrivener to mean that [...] gifted the unpaid principal balance and accrued interest under the mortgage solely to [...] and directed that the debt be forgiven and the mortgage lien canceled solely as to [...].
[brief] In fact, the DEP’s HAD stated that the basis for its WQMP consistency determination was only that the “Proposed wastewater is less than 2000 gallons per day and water use of 650 gallons per day. ”  Aa0002.  The DEP did not make a clear record --- 57 N.J.A.C. 7:38-9.2 (b)(4) which proves to this Court that it relied on any other relevant information that it was required to consider, such as the amount of deforestation and additional impervious surface that would be necessary for the proposed project.
[brief] [...] goes on to argue that the decisions in Woo-Padva v. Midland Funding, No. A-1996-21, 2023 N.J. Super. Unpub. LEXIS 1550 (App. Div. Sep. 21, 2023) (Pa1), and Veras v. LVNV Funding, LLC, No. 13-1745 (RBK/JS), 2014 U.S. Dist. LEXIS 34176 (D.N.J. Mar. 17, 2014) (Da74) should be dispositive in favor of [...] here.  [...]’s Br. 13, 17.  Notwithstanding that Woo-Padva is subject to a pending Petition for Certification to the New Jersey Supreme Court, neither Woo-Padva nor Veras analyzed the NJCFLA as an affirmative defense in the context of a motion to vacate default judgment.  Woo-Padva and Veras analyzed violations of the NJCFLA as predicate offenses to violations of the New Jersey Consumer Fraud Act (“CFA”), N.J.S.A. 56:8-1, et seq. and federal Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., respectively.  Further, Veras went on to hold that misrepresenting the legal status of the debt when the was voided by the NJCFLA violates the FDCPA.  Thus, a private right of action is not required in order for the courts to enforce a statute, especially in this instance.  The analysis and holding in Trewin is much more analogous and applicable to the case at bar than *Woo-Padva* and/or *Veras*.
[brief] N.J.S.A. 2A:15-69 (emphasis supplied).  The “statute is mandatory and selfexecuting.  It provides that the plaintiff shall give bond to defendant, and when demanded, all proceedings shall be stayed until such security is filed or deposit made. ”  Lawrence v. Commercial Cas. Ins. Co., 22 N.J. Misc. 179, 37 A.2d 683, 683 (N.J. Sup. Ct. 1944) (emphasis supplied); see also Marino v. Shiff Realty Co., 164 A. 577, 578 (N.J.Com.Pl. 1933) (holding that upon filing notice of demand “the action [is] stayed in so far as the nonresident plaintiffs are concerned until the security is furnished. ”)  Here, [...] filed its demand for security on November 1, 2023.  Pa13.  That filing automatically stayed the proceedings as a matter of law until [...] 1) posted security for costs and 2) provided notice of that posting to [...].  N.J.S.A 2A:15-67 to 70; see also Auto. Banking Corp. v. Birkhead, 22 N.J. Misc. 135, 36 A.2d 608, 609 (N.J. Sup. Ct. 1944) (vacating plaintiff’s default judgment because although it had posted security for costs, it did not provide notice to defendant of the same).  Recognizing that the trial court may have been unfamiliar with the “mandatory and selfexecuting nature” of N.J.S.A. 2A:15-67 et seq. and that eCourts does not have a corresponding filing category for such a filing, with its demand [...] filed an explanatory letter as well as a proposed form of order for the trial court’s execution.\(^6\) Pa15-18.
[brief] 326 N.J. Super. at 485.  Here, at least three of the five requirements for collateral estoppel are absent: (1) the issue of whether Defendant [...] negligently drafted [...]’s Will was not decided in the prior proceeding, (2) the issue of whether or not Defendant [...] negligently drafted [...]’s Will was not litigated in that proceeding.  Collateral estoppel does not bar Plaintiff’s claims.  The issue of whether [...] was negligent in drafting the ambiguous provision was not before the Probate Court.
[brief] In Bellafronte, [...], the same insurer at bar, sought to exclude from coverage in its automobile liability policy any liability for loading and unloading injuries.  [...] was a truck driver employed by [...] ([...]), making a delivery to [...] ([...]).  During the course of unloading his truck, a negligent [...] crane operator injured him.  [...] sued [...], which impleaded [...], alleging that [...]'s liability carrier, [...], should provide coverage for [...] as an "other insured."  [...] argued that [...]'s policy excluded coverage explicitly to a person loading or unloading the vehicle.  Id. at 380.  The court first noted that N.J.S.A. 39:6-46(a), a provision of the Motor Vehicle Security Responsibility Law, specifically required an insurance policy to cover those persons "using or responsible for the use of any such motor vehicle with the * * * consent of the insured."  Ibid.  "[I]n order to effectuate the overriding legislative policy of assuring financial protection for the innocent victims of motor vehicle accidents," the Bellafronte court opined that "the substantive content of statutorily required coverage must be broadly construed."  Id. at 382 (citing Motor Club of Am. Ins. Co. v. Phillips, 66 N.J. 277, 293 (1974)).  The court reasoned that one "who is in the process of unloading cargo from the vehicle is, for purposes of the omnibus coverage, a user of the vehicle."  Id. at 382- 83.  The court then concluded that because "the statute mandated coverage for [...]'s crane operator so using [...]'s truck, the crane operator must be deemed an 'other insured' of [...]."  Id. at 383.  The court accordingly struck the policy exclusion, ruling that it was an "unwarranted attempt to diminish the extent of coverage required by statute."  Ibid.  The same reasoning applies at bar.  To effectuate the overriding legislative policy of assuring financial responsibility for the innocent victims of workplace accidents, the substantive content of the statutorily required coverage must be broadly construed.  [...] purchased insurance from [...] and [...] to assure its financial obligations to its employees arising out of workplace injuries were fully met.
[brief] Reading the statute *in pari materia*, the Legislature had the obligation to wait for the fiscal estimate before enacting P.L. 2021, c. 375.  See Marino, 200 N.J. at 330.  The State’s interpretation is at odds with the legislative intent to replace the “hit-or-miss nature of the [prior fiscal estimate] system” with one that provides “strict time limits” for the Executive Branch’s response to a request for a fiscal note, provide a back-up method for the legislative branch to provide a fiscal estimate, and to “establish a system for emergency fiscal information on bills which are likely to move quickly.
[brief] (7T 103-1 to 3)  Instead, the detective himself wrote that the “witness was sure of his selection,” even though [...]’s exact words in selecting the photo were, “I think it’s three. ”  (6T 144-1 to 14; 7T 80-5 to 6, 87-11 to 25)  At trial, over defense counsel’s objection, [...] testified that he was 100% confident in his identification. \(^5\) (6T 113-3, 113-23 to 114-8)  Although [...] told detectives that he had never seen the shooter before, (6T 146-1 to 18, 165-10 to 19) on cross-examination, he admitted that he had seen [...] around the neighborhood a few times before the shooting.
[brief] (8T)  [...] listened to the trial through CourtSmart and reviewed the pretrial submissions and the post-trial submissions.  (8T4-12 to 19)  The Court noted that Defendant had disputed the causal relationship of the subject incident to the alleged aggravation of Meniere’s disease as well as the medical bills and disability payments from the inception of the case and that the agreement to mold the verdict was contingent upon proof of causation.  (8T7-4 to 20)  The Court determined that Plaintiffs failed to meet their burden to proof to establish that the July 29, 2013 incident caused an aggravation of Plaintiff [...]’s pre-existing Meniere’s disease.  Thus, the Court declined to mold the verdict to include medical bills or temporary disability benefits paid by Workers Compensation.(8T9-18 to10-1)
[brief] **THE TRIAL COURT WAS BOUND TO GIVE SUBSTANTIAL DEFEERENCE TO THE AMENDED RESOLUTION.**  The Trial Court below was required to give substantial deference to the Board’s decision as set forth in the Amended Resolution unless the Amended Resolution was found to be arbitrary, unreasonable or capricious.  See Scully-Bozarth Post #1817, 362 N.J. Super. at 314 wherein it was held that “Courts will interfere with such local decisions only if they are arbitrary, unreasonable or capricious”.  See also, Kramer v. Board of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965).  In giving deference, the Court must presume the Amended Resolution to be valid, and it is the Appellant’s burden to prove otherwise.  Scully-Bozarth Post #1817, 362 N.J. Super. at 314.  The Appellant never challenged the Amended Resolution.  In fact, the Appellant has embraced the Amended Resolution and relied upon it for its argument by persistently citing Paragraph 21 in his argument before the Trial Court and in his Appellate Brief.  (Da7, Da11, Da14).  The Trial Court had no choice but to give substantial deference to the Board’s finding of fact in the Amended Resolution.  In deferring to the Board, the Trial Court found that the Board did not base its findings, opinion or approval on the Sketch.  THE COURT:
[brief] The Court rejects Plaintiffs' argument that discovery of the non-VIP plans is relevant to finding out how [...] used the plans in the master trust as a whole to obtain services for each of the plans.  The VIP plan is by far the largest plan in the Master Trust.  More importantly, the VIP plan is the only plan at issue in this case.  The Court also rejects Plaintiffs' argument that redaction is an improper method of challenging the relevance of a document.  Although not specifically addressed in the Rule, other courts have found redaction appropriate where the information redacted was not relevant to the issues in the case.  *See Beauchem v. Rockford Products Corp.*, 2002 WL 1870050 at *2 (N.D. Illinois Aug. 13, 2002) (finding good cause existed to support redaction based on relevance); *Schiller v. City of New York*, 2006 WL 3592547 at *7 (S.D.N.Y. Dec.7, 2006) (upholding redaction of portions of meeting minutes not relevant to issues in case).
[brief] C.  The trial court committed legal error in denying the motion to reopen based on a misapprehension of the applicable standard for obtaining attorneys’ fees.  (T40:6–45:7; DA7–8)  The trial court also abused its discretion in denying the motion to reopen based on a misapprehension of the legal standard governing Defendants’ right to attorneys’ fees.  Specifically, the Court conflated the prevailing party standard for obtaining attorneys’ fees under UPEPA with the frivolous litigation standard under the fee-shifting provisions of New Jersey’s Frivolous Litigation Statute, and on that basis denied Defendants’ motion to reopen.  The trial court appeared to be of the view that Defendants would only be entitled to attorneys’ fees under UPEPA if they could demonstrate that Plaintiff’s lawsuit was frivolous—and since they had not done so, that reopening the case for the limited purpose of seeking fees was futile.
[brief] Rule 3:23-4(a) requires that upon the filing of the notice of appeal, the clerk of the court below SHALL forthwith deliver to the criminal division manager's office the complaint, the judgment of conviction and a transcript of the entire docket in the action.  Rule 3:23-7 requires “execution of the judgment” by the municipal court from which the appeal was taken.  This could not be done because plaintiff had no order from which he could appeal.
[brief] Ultimately, and in 1989, [...] and [...], by way of ordinance, entered an agreement whereby the still dirt roadway system would be considered owned by [...], and [...] would be responsible for the non-routine maintenance of the roadway system.  (Pa408-Pa410)  For reasons that are unclear, Applicant [...], who is a well-educated person who graduated from Harvard University, and the other six directors on [...]’s Board of Directors, continuously vote to refuse to allow [...] to perform maintenance on the roadway system as [...] had done for its taxpayers who lived in [...] over the first 100 years of [...]’ existence.
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[brief] **6.3  Indemnification for Seller’s Benefit. **  Buyer agrees to indemnify and hold harmless Seller, and will pay to Seller the amount of any Damages, arising out of, resulting from, or relating to: any material inaccuracy or breach of any representation or warranty of Buyer contained in this Agreement or in any other document delivered by Buyer as required by this Agreement; any material breach or violation of the covenants or agreements of Buyer contained in this Agreement or in any other document delivered --- 19 [...]’s argument (Db49) that the trial court did not find that she breached the SPA is simply wrong.
[directive] See also Section 9.3 (notation (i.e., “tagging”) of certain events/encounters raising privacy or other special issues).  7.1.1  If an officer is required to de-activate the BWC in accordance with the provisions of this Section, the officer shall narrate the reason for de-activation (e.g., “I am entering a school building where children are present. ”).  The BWC shall be re-activated as soon as it is safe and practicable to do so if and when the circumstances requiring de-activation no longer exist (e.g., the officer is conversing with an adult as part of a criminal investigation while in a place within the school where children would not be in view of the BWC).
[brief] In particular, [...] eliminated the building coverage and combined side yard setback variances.  [7T 3-10 to 4-11].  [...]’s planner provided further testimony in support of the use variance, noting, among other things that the impacts from 165 units in a multi-level senior housing community was not even remotely similar to the impacts of a 165-unit apartment or townhouse development because the types of housing (and how they were used) were not the same.  [7T 18-10 to 19-15, 36-21 to 37-12].  Although [...] opined that the deviations from the bulk zoning standards for the R-20A Zone were subsumed within the use variance request, he provided testimony anyway to support the variances.  [7T 36-8 to 36-17, 39-19 to 50-18].  He also provided testimony on the number of off-street parking spaces, which he explained did not require any relief due to a recent change in the RSIS, and justified the site plan design waivers that the plan required.  [7T 50-19 to 57-19].  In a summation, counsel for [...] reminded the Board that if there were concerns about detrimental impacts, the Board should engage in a discussion with [...] about conditions to mitigate those impacts, even though none had been identified.  [7T 142-10 to 144-3].  The Board did not accept that offer and voted 5-2 to deny the application without considering any conditions.