ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Given these powers and obligations, [...] is necessarily authorized by the Legislature to create a process by which it can approve the installation of utility services as well as regulate, to a degree dictated by the type of utility at issue, the specific terms of said installation.  Critically, the Ordinance provides a structure of review by municipal authorities, and as such, it must be permitted in its entirety.  Against this overwhelming weight of statutory authorization, the court below refused to apply the limitations set forth in the legislative and regulatory authorities it relied upon to invalidate the Ordinance.  Although the Legislature required, in N.J.S.A. 48:2-23, [...] approval after a public hearing, the court below used this statute to justify invalidating the Ordinance through the improper expediency of disregarding the fact that the statute is limited to circumstances where the [...] has determined, after public hearing, that the project is required for the provision of safe, adequate, and proper service by the utility and has issued a written order to that effect.  Here, there was never a determination by the [...] that routing the 69kV line through [...] was essential to the provision of adequate service.  Further, there is nothing in the record showing that the [...] issued a written order specifically requiring that the line be routed through [...].  Accordingly, that statute was inapplicable to the matter before the court.
[brief] With respect to the market rate development, [...]’s model first “assumes construction of 100 residential townhomes for sale along with 20,000 square feet of commercial space” and “assumed the commercial space would be built and leased by the developer, and then upon completion and stabilization, would be sold as an investment property based upon its cash flow. ”  Pa 276.  [...] then summarizes “the financial results that could reasonable have been achieved by a development group led by Plaintiff,” but bases the $5,135,804 profit margin on a comparison to a project developed in Washington Township by [...], which (unlike Plaintiffs) is a large national homebuilder.
[brief] Pa84.  The City’s statement, however, is false as there were, at that time, two captain vacancies already created by the “actual” retirements of Captains [...], (“[...]”), on October 1, 2022, Pa39, and Captain [...], ("[...]"), on September 1, 2022.  Notably, these retirements appear nowhere in the City’s April 24, 2023 submission to the Civil Service Commission that was provided to Appellant in response to his appeal to the CSC.
[brief] (3T)  This session was originally scheduled to consider two motions: Plaintiff’s motion to remove Defendants from the Boonton Property and Defendants’ motion for partial summary judgment to remove the Trustee.  Both of these applications had been submitted in accordance with procedural requirements and fully briefed.  Therefore, topics related to these motions were discussed.  Additionally, [...] asked [...] what the Trustee is looking to do with the Boonton and Florida Properties (3T 4 Ln 17) and how to interpret the language in the Trust.  (3T 6 Ln 2)  [...] proffered that [...] intended to purchase the Florida Property for $360,000, which was the date-of-death appraised value.  (3T 4 Ln 21)  Furthermore, he suggested that there should be a procedure to determine which brother will purchase the entire Boonton Property, based upon the Trustee’s powers.  (3T 11 Ln 16)  [...] did not disclose the status of the Campbells offer for $800,000.  [...] testified that he opposed [...]’s efforts “to determine fair market value for herself,” meaning that [...], in her capacity as Trustee, should not be deciding the sale price for the Florida Property to herself.  (3T 10 Ln 1-8)  Additionally, [...] testified that he did not support a sealed bidding process for the Boonton Property.  Instead, [...] testified that “[i]f [...] would like to purchase the [Boonton] home with me, that’s what the trust says that can be done, and I have no problem with that.  I will buy half of [...]’s share, he can buy half of [...]’s share, and then we own the house.  He owns 50 percent.  I own 50 percent. ”  (3T 8 Ln 24)  [...]topher testified that he supported a bidding process to determine which brother would purchase the entire Boonton Property, explicitly stating that he did not want to purchase with [...].  (3T 16 Ln 24)  Alternatively, [...]topher testified that, assuming the beneficiaries were having problems coming to an agreement, the Boonton Property should be sold on the open market.  (3T 17 Ln 8)  On June 10, 2022, [...] entered an Order in favor of [...] and [...]topher who never filed a motion for the relief that they were granted.
[brief] “DA” refers to Defendants’ Appendix; “Pa” refers to Plaintiff’s Supplemental Appendix; “1T” refers to the Transcript of Trial Proceedings on May 16, 2023; “2T” refers to the Transcript of Trial Proceedings on May 17, 2023; “3T” Refers to the Transcript of Trial Proceedings on May 18, 2023; “4T” refers to the Transcript of Trial Proceedings on May 19, 2023; “5T” Refers to the Transcript of Trial Proceedings on May 22, 2023; “6T” Refers to the Transcript of Trial Proceedings on May 23, 2023; “7T” refers to the Transcript of Trial Proceedings on May 24, 2023; “8T” refers to Transcript of Trial Proceedings on May 25, 2023; “RT” refers to the Deposition Transcript of [...] dated June 14, 2021; “CT” refers to the Deposition Transcript of [...] dated January 20, 2022; “AT” Refers to the Deposition Transcript of [...] dated January 20, 2022; and “WT” refers to the Deposition Transcript of [...] dated January 31, 2022.  Trial Court held oral argument,\(^2\) and on August 23, 2023, the Trial Court entered an extensive and well-reasoned decision denying the Defendants’ motion for a new trial.  See DA-088-DA-124.  This appeal commenced shortly thereafter.  See DA-125-DA-139.  **LEGAL ARGUMENT**
[brief] There is no evidence that preferential treatment was given to employees not in the same protected class as Plaintiff.  To the extent Plaintiff believes [...]’s lack of communication towards the end of her employment constituted discrimination, she testified that the other Vice Principals and other staff shared similar complaints.  (Pl. Tr. 224:21 to 225:13; 226:3-14; 227:15-229:19).  Plaintiff also admitted that she was not the only Vice Principal who was dissatisfied with receiving a low score on an observation from [...]—Vice Principal [...] (Caucasian) experienced the same.  (Pl. Tr. 209:4-15; 235:2-20).  The record shows that [...] emailed all of his Vice Principals to ensure all observations are completed, that the other Vice Principals—like Plaintiff—were required to perform additional observations as part of a team effort (Da280), and that to the extent Plaintiff took over additional observations for which Vice Principal [...] ("[...]") was previously responsible, it was because [...] was busy with student scheduling.  (Pl. Tr. 130:2-4, 317:20 to 321:1).  It is also significant that [...], who recommended Plaintiff's nonrenewal, also made the decision—just three years earlier—to hire Plaintiff in the first instance and specifically brought her on to work with him at the High School, at a time when her race and age were obvious to him.  (Pl. Tr. 115:21 to 116:24; Da97-100).
[brief] “Dedication is the permanent devotion of private property to a public use[,]” George Van Tassel’s Community Funeral Home v. Town of Bloomfield, 8 N.J. Super. 524, 528 (Ch. Div. 1950), and “[i]t would . . . appear from long established rules that there may be a valid dedication . . . without any deed whatsoever. ”  Id. at 529.  Thus, dedicating a road to a municipality for public use can be accomplished without ever transferring fee title to such municipality.  Ibid.  Indeed, N.J.S.A. 40:55D-53.j does not state that conveyance of fee simple title of the streets to the municipality is a condition of dedication.  Accordingly, whether the Borough’s interest in the Roads is in the form of a right-of-way or a fee interest is irrelevant: the questions are simply whether the Roads have been dedicated for public use (they have), and whether, as a matter of New Jersey statute, that dedication has been deemed accepted by the Borough (it has).
[brief] On or about March 28, 2019, Appellant filed a Complaint against Defendants/Respondents and brought one (1) count against [...] and [...] alleging that [...] breached ethical and professional duties to Plaintiffs.  However, it is undisputed that Appellant failed to obtain an Affidavit of Merit in accordance with N.J.S.A. 2A:53A-27 in order to sustain their professional malpractice claim that [...] breached its ethical and professional duties to Plaintiffs by continuing to provide professional engineering services to [...] on the solar project.  On or about August 14, 2019, [...] filed a Motion to Dismiss of the Complaint and Crossclaims for Appellants failure to obtain an Affidavit of Merit in accordance with N.J.S.A. 2A:53A-27.  On or about August 30, 2019, the Trial Court granted [...]’s Motion to Dismiss.  Now, Appellants are appealing the aforementioned Order granting dismissal alleging that an Affidavits of Merit was not required.  However, it is evident that Appellants have failed to demonstrate any justifiable grounds for their failure to comply with statutory requirements in accordance with N.J.S.A. 2A:53A-27 for filing a case of professional malpractice against [...] and [...].  LEGAL ARGUMENT I.
[brief] 35 POINT V  THE NEAR-MAXIMUM CUSTODIAL SENTENCE IS EXCESSIVE FOR A FIRST-TIME OFFENDER LIKE DEFENDANT.  (15T 16-23 to 36-18)...........................................  41  A. Aggravating Factor (1).................................................................  43  B. Aggravating Factor (3) and Mitigating Factor (9)....................  44  C.  Aggravating Factor (6) and Mitigating Factor (7)....................  45  D. Aggravating Factor (9).................................................................  46  E. Mitigating Factor (3).................................................................  47  F. Mitigating Factor (10).................................................................  48  CONCLUSION .................................................................................. 49
[brief] Plaintiff’s brief also impermissibly offers “testimony” outside the record to legitimize the relationship stating that the process service company sets up “booths at ICLE seminars” and “advertises in the NJ Law Journal”.  PHPb14.  [...] attempts to recast his relationship with the in-house process server by stating that they “always operated separately” and “I utilized a standard process service company [...]”.  Id.  These statements are not evidence and are not part of the record as are his denials of affiliations with the in-house process service company in this portion of his Brief.  Counsel’s insertion in the appellate brief of facts and personal testimony outside the record below is inappropriate.  Rudbart v. Bd. Of Review, 339 N.J. Super. 118, 122-123 (App. Div. 2001).  Appellant requests that these arguments be disregarded in their entirety.
[brief] [...] responded later that day that he was changing the term “award” to “final award” in the Consent Order because the parties did not want a preliminary award “to trigger it,” with “it” referring to the sixty-day refiling deadline.  (Pa45 (Blaine Cert. at ¶15) and Pa114 (Ex. D thereto at p. 1 – Email Exchange)).  The parties made this change to the terms of the Consent Order’s triggering events for the 60-day refiling deadline and concluded their negotiations over the Consent Order.
[brief] _Yarbough_ requires sentencing courts to consider the following factors when deciding whether to impose consecutive sentences: (a) the crimes and their objectives were predominantly independent of each other; (b) the crimes involved separate acts of violence or threats of violence; (c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (d) any of the crimes involved multiple victims; [and] (e) the convictions for which sentences are to be imposed are numerous.  [100 N.J. at 644.]  Sentencing factors “must be supported by competent, credible evidence in the record” so that “[s]peculation and suspicion [do] not infect the sentencing process.
[brief] [...] Prosecutor of Union County [...] [...] [...]  Attorney for the State of New Jersey SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION [...]  STATE OF NEW JERSEY, : Criminal Action  Plaintiff-Movant, : On Motion for Leave to Appeal from an Order of the Superior Court of New Jersey, Law Division, Union County Granting Defendant’s Motion to Suppress. v. : [...], : Sat Below: Defendant-Respondent.  Hon. [...], J.S.C. BRIEF AND APPENDIX ON BEHALF OF PLAINTIFF-MOVANT [...]
[brief] Courts may not blind themselves to the common understanding of our society  FTC v. Verity Intern., 124 F. Supp 2d. 193, 200 (SDNY 2000).  Common understanding is derived from day to day living experiences and depends on the sophistication of the consumer.  Do ordinary and untrained members of the public have a common understanding that they are entering into a contract when depositing money with a Bank and that when, after a brief interview, they are asked to sign an iPad without being told what is on it, they should know they are electronically signing an application and a 37 page deposit agreement with an arbitration clause when not given a copy of the documents, the opportunity to read them or advised otherwise?
[brief] [...] explained that she has five children, all of whom were living with her at the time of the incident, and that they all had access to the Suburban.  (4T 29-9 to 30-25)  She stated that they could not drive the Suburban without getting her permission, and that [...] would drive the --- 5  [...] found the registration and insurance on the floor of the vehicle when she retrieved it from police custody.  (3T 24-21 to 25-20; 4T 38-24 to 41-4)  Suburban about once or twice a month.  (4T 31-1 to 14)
[brief] NJDEP’s decision should be accorded the presumption of validity and reasonableness.  See Bergen Pines Hosp., 96 N.J. at 477.  Therefore, NJDEP’s determination that the Project is consistent with WQMP is not arbitrary and capricious and should be affirmed.  CONCLUSION  For the foregoing reasons, [...] respectfully requests that this Court affirm NJDEP’s decision to issue Exemption #11 and dismiss this Appeal.
[brief] The term “subcontractor” is utilized by the PWCRA but is undefined.  Under such circumstances, courts routinely look to other statutes that contain a definition for the undefined term.  Figueroa v. Allstate Ins. Co., 209 N.J. Super. 586, 589 (Sup. Ct. 1985)(referring to other statute to define “municipality”, which is an undefined term in the relevant statute).  Within the New Jersey Municipal Mechanic’s Lien Law, N.J.S.A. 2A:44-126 (“MLL”) – a statute that applies exclusively to public project – the term “subcontractor” is defined as “a person having a contract under a contractor for the performance of the same work, or any specified part thereof, and also a person having such a contract with a subcontractor, for the performance of the same work or any specified part thereof. ”  Similarly, within the New Jersey Construction Lien Law, N.J.S.A. 2A:44A-2 (“CLL”), the term “subcontractor” is defined as “any person providing work or services in connection with the improvement of real property pursuant to a contract with a contractor or pursuant to a contract with a subcontractor in direct privity of contract with a contractor. ”  From both definitions, the term “subcontractor” is defined in terms of contractual privity/contractual relationship, rather than by classification or type of work performed.
[brief] Boliek, *supra*, 103 Cornell L. Rev. at 1133-34 (“Furthermore, any entity that houses large electronic sets of sensitive data is a target for hackers.  Several law firms have recently been victims of cyberattacks because of their collections of personal identifying information, trade secrets, and insider knowledge for advantageous stock market trades. ” (Footnote omitted)).  ---  9  Available at https://scholarship.law.cornell.edu/clr/vol103/iss5/2/.  10  Available at https://lawreview.gmu.edu/print__issues/a-right-to-privacy-for-modern-discovery/.  11  For this reason, [...] recently proposed amendments on privacy protection and cybersecurity risk to the Federal Rules of Civil Procedure.
[brief] As such, the summary nature of condemnation proceedings “should not be construed as in any way precluding the condemnee from an appropriate opportunity to object to the proposed condemnation. ”  Pressler & Verniero, *Current N.J. Court Rules*, cmt. on R. 4:73-1 (citing *Bergen Cnty. v. S. Goldberg & Co.*, 39 N.J. 377 (1963)).  Where there is an objection to the right to take and the property owner challenges the public use assertion by the condemnor, there must be an evidentiary process.  *R. 4:67-5; R. 4:73-1; Bergen Cnty., supra*, 39 N.J. at 380-81; see also *Bridgewater v. Yarnell*, 64 N.J. 211, 215 (1974) (involving appeal of a denial of stay sought by the defendant property owner challenging the right of a municipality to take private property pursuant to *N.J.S.A. 20:3-11*, in which the Supreme Court reversed and remanded the matter to the trial court “for a further hearing at which plaintiff must present its proofs orally in support . . . subject to cross-examination and with the right in defendants to present further proofs if desired”).  The trial court denied Defendants’ request for a hearing finding that defendants did not make a sufficient case of arbitrary action to create a genuine issue of fact.
[brief] ]  Moments later, an officer implores [...] that “[c]ooperation goes a long way my man[.]”  (Da 19)  And [...] then says that “we’re gonna do the consent here so when we get over there we’re not disturbing your wife any more than we have to.  Okay?”  (Da 19)  Shortly after, [...] began reading aloud the Consent to Search Form.  (Da 24)  But [...] quickly stopped him and, although much of what he says is not captured on audio, the dashcam video shows [...] speaking uninterrupted to [...] for nearly 40 seconds. \(^{12}\) (Da 15 at 3:22:20 to 3:23:35; see Da 24)  [...] testified that, during this discussion, [...] expressed additional concern that the search would upset his wife, who was sick with cancer at the home:
[brief] In re State & Sch. Emples. Health Benefits Commissions' Implementation of Yucht, 233 N.J. 267, 270, the Supreme Court reversed and remanded the decision of the Appellate Division.  The [...] and the [...] were improperly reducing reimbursements for out-of-network behavioral health services.  In the prior case, the Appellate Division found in favor of Yucht’s appeal which sought reimbursement at the statutory 80% of reasonable and customary charges for behavioral health services.
[brief] THE BOARD HAS ACTED PROPERLY IN ALL OF ITS HEARINGS AND DETERMINATIONS AND DID NOT ACT ARBITRARY CAPRICIOUSLY OR UNREASONABLY.  The Board respectfully asserts that in each of the three sets of remand hearings, it acted rationally and with due regard to the considerations outlined in the Hoboken Rent Control Ordinance (“RCO”) despite this matter’s prior remands by the trial courts.  The Board’s jurisdiction, duties, and rights are derived from the RCO.  See DA53-65.  Pursuant to Section 155-18 and 155-19 of the RCO, the Board is “authorized to issue orders relating to the powers and functions of the Rent Leveling and Stabilization Board,” and the Board has “all powers necessary and appropriate to carry out and execute the purpose of [the RCO]” including holding hearings, adjudicating applications, issuing subpoenas for the production of information and documents, and requiring “the production of books, records, tax returns, balance sheets, profit and loss statements and such other records as the Board may require and deem necessary for its determination.
[brief] Evident in these cases is the requirement that the State has acted with some nefarious or deliberate purpose in its attempt to keep the evidence out of the hands of the defendant.  Courts have thus been cautioned not to mechanically grant motions to dismiss based solely on the fact that important evidence was lost.  See Williams, 441 N.J. Super. at 272 (“Even in a case in which we found an investigating officer’s brazen misconduct to be wholly reprehensible, we reversed the dismissal of seventeen indictments[.]”); State v. Gunter, 231 N.J. Super. 34, 39 (App. Div.), certif. denied 117 N.J. 81 (1989) (maintaining that although “photographic arrays are required to be preserved intact,” failure to do so alone did not constitute grounds for reversal as “[n]o bad faith on the part of the State was shown. ”).  Defendant here failed to provide any evidence that the State was responsible for the deletion of the [...] profile and could not establish there was any malicious or deliberate intent behind the State’s inadvertent failure to preserve it, and thus, could not establish bad faith.
[brief] Appellants’ claim that the public was deprived of its right to access the SHO hearing when it had just as much notice as for earlier hearings is without merit.  This Court has already approved the holding of such SHO proceedings at a courthouse during regular working hours.  See Cranford, supra.  In this case, members of the public had full opportunity to attend the hearings in person (or via Zoom) and present any questions or testimony they wished to present.  ii.
[brief] Based on the foregoing, Defendant did not waive her statute of limitations argument.  Even if Defendant did not expressly raise this argument at trial, at most, it could be argued that she forfeited the argument, which is reviewed under the plain error standard.  See Olano, 507 U.S. at 733.  Clearly, the trial court’s awarding of damages against Defendant based on discrete transactions that occurred over six years before the complaint was filed, which accounted for nearly half of the compensatory damages awarded by the trial court, constitutes plain error (Db42-43; 36T34-20 to 36-10; Da06612 (Schedule 15)); see Brito, supra, 979 F.3d at 189.  Because this error of law produced a manifestly unjust result, this Court should, at a minimum, reduce the damage award entered against Defendant accordingly and make corresponding reductions to the interest charged to Defendant as part of the Judgment.
[brief] First, the record supports the [...]’s finding that the proposed regulator for the Project is reasonably necessary to provide safe, adequate, and reliable natural gas services, and the CWT heater is the most reasonable and practical method for heating the regulator.  (Aa54-55).  In support of an N.J.S.A. 40:55D-19 petition, the applicant has the burden of showing that “the means or method proposed to meet the public need is reasonable and desirable,” and alternative methods should be considered with respect to the applicant’s “customary practices and methods in the industry” and the applicant’s “existing methods.
[brief] HN3  To avoid the harsh effects of a mechanical application of statute of limitations, we adopted the discovery rule first announced in Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961).  Ibid.  "The discovery rule is essentially a rule of equity."  Lopez v. Swyer, 62 N.J. 267, 273, 300 A.2d 563 (1973).  The rule "provides that in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he [or she] may have a basis for an actionable claim."  Id. at 272, 300 A.2d 563.  HN4  It is not every belated discovery that will justify an application of the rule lifting the bar of the limitations statute.  The interplay of the conflicting interests of the competing parties must be considered.  The decision requires more than a simple factual determination; it should be made by a judge and by a judge conscious of the equitable nature of the issue before him [or her].  [ [***18]