ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Applicants seek to re-write the Rules of the Court in making the following argument:  “Assuming arguendo that the Objectors had no prior notice of the Certificate of Appropriateness, the Objectors acquired actual notice of the Certificate of Appropriateness on the evening of March 28, 2022 (at the very latest).  (Pa426).  As such, any challenge to the Certificate of Appropriateness would have been time barred as of May 12, 2022  See N.J. Ct. R. 4:69-6 (a)” (SDb21)  However, R. 4:69-6(a) provides that  No action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed, except as provided by paragraph (b) of this rule.  Applicants cite not a single case to support a process that they made up before the ZBA on August 22, 2022 and reiterate on appeal on July 3, 2024.  In contrast, Appellants cite Scully-Bozarth Post # 1817 of Veterans of Foreign Wars of U.S. v. Planning Bd. of City of Burlington, 362 N.J. Super. 296 (App.Div 2003) as an excellent example of the proper manner in which a zoning board addressed a “recommendation” of a landmark commission and in which a party “challenged” a zoning board resolution based on a recommendation by a landmark commission.  In the instant case, the Landmark Commission issued no report and failed to cite to the Historic District Ordinances as to the criteria that would have allowed not only a Certificate of Appropriateness to issue, but also, the Addition to be approved in the context of its impact on the historic district.  The ZBA engaged in no such analysis within the partial verbatim record.  The ZBA engaged in no such analysis within the Resolution.  If Applicants’ argument is correct, and given the decision of the Landmark Commission has yet to be published, Appellants, as of today’s date, are not time- barred from submitting an action in lieu of prerogative writs based on the clear language of R. 4:69-6.  As such Applicants’ argument is nonsensical and would result in protracting this litigation further.
[brief] Defendants’ brief yet again raises several contentions to argue why the judgment in plaintiff’s favor should be set aside.  What they do not address is the heavy burden defendants have to meet to be successful on this appeal.  They do this because they cannot meet their burden.  The amended final judgment arises out of a jury trial.  “In the American system of justice the presumption of correctness of a verdict by a jury has behind it the wisdom of centuries of common law merged into our constitutional framework. ”  Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977).  The judgment of the initial factfinder then, whether it be a jury, as here, or a judge as in a non-jury case is entitled to very considerable respect.  It should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.  The process of “weighing” the evidence is not to encourage the judge to “evaluate the evidence as would a jury to ascertain in whose favor the evidence preponderates” and on that basis to decide upon disruption of the jury's finding.  “(T)he judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror. ”  Nevertheless, the process of evidence evaluation called “weighing” is not “a pro forma exercise, but calls for a high degree of conscientious effort and diligent scrutiny.  The object is to correct clear error or mistake by the jury. ”  It is only upon the predicate of a determination that there has been a manifest miscarriage of justice, that corrective judicial action is warranted.  Id. at 597–98 (internal citations omitted).  “Although an appellate court has a duty to canvass the record to determine whether a jury verdict was incorrect, that verdict should be considered ‘impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice. ’”  Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 135 (1990).  “Credibility is always for the factfinder to determine. ”  Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 492 (1956).  The Appellate Court shall “defer to the jury with respect to ‘intangibles’ not transmitted by the record (e.g., credibility, demeanor, ‘feel of the case’).”  Dolson v. Anastasia, 55 N.J. 2, 6–8 (1969).  This means accepting as true all evidence supporting the party opposing the appeal and according her the benefit of all favorable inferences, if reasonable minds could differ, the appeal must be denied.  Id. at 5.  While the Appellate Division reduced the jury award the first time it heard this appeal, it otherwise upheld the jury’s finding that defendants had committed legal malpractice and caused damage to plaintiff.  Defendants could not in 2021 and still cannot today, show that there was a miscarriage of justice so as to warrant reversing the jury’s verdict so the amended final judgment should stand.
[brief] 14  TABLE OF AUTHORITIES  Cases  500 Columbia Tpk. Assocs. v. Haselmann, 275 N.J. Super. 166 (App. Div. 1994) ..................................................  13 Coinbase, Inc. v. Suski, 144 S. Ct. 1186 (2024) ...........................................................................  5 Cole v. Jersey City Med. Ctr., 215 N.J. 265 (2013) ...............................................................................  10, 11, 12 Com-Tech Assoc. v. Computer Assoc. Int’l, Inc., 938 F.2d 1574 (2d Cir. 1991)
[brief] When a court construes a statute, its "paramount goal" is to discern the Legislature's intent.  We "look first to the statute's actual language and ascribe to its words their ordinary meaning."  "[T]he best indicator of [the Legislature's] intent is the statutory language,' thus it is the first place we look."  *Matter of Ridgefield Park Bd. of Educ.*, 244 N.J. 1, 18 (2020) (internal citations omitted).
[brief] The Restatement (Third) of Torts: Products Liability, explains:  [C]onsumer expectations about product performance and the dangers attendant to product use affect how risks are perceived and relate to foreseeability and frequency of the risks of harm, both of which are relevant under Subsection (b).  See Comment f.  Such expectations are often influenced by how products are portrayed and marketed and can have a significant impact on consumer behavior.  Thus, although consumer expectations do not constitute an independent standard for judging the defectiveness of product designs, they may substantially influence or even be ultimately determinative on risk-utility balancing in judging whether the omission of a proposed alternative design renders the product not reasonably safe.
[brief] THE TRIAL COURT PROPERLY DISMISSED PLAINTIFFS’ COMPLAINT SINCE THE LEGAL MALPRACTICE CLAIMS AGAINST THE COOPER LEVENSON DEFENDANTS DID NOT FALL UNDER THE COMMON KNOWLEDGE EXCEPTION TO THE AFFIDAVIT OF MERIT STATUTE (50a-51a)  In Plaintiff’s first argument, Plaintiffs asserts that the trial court erred in finding that the legal malpractice claims against the [...] did not fall under the common knowledge exception to the Affidavit of Merit statute, N.J.S.A. 2A:53A-27.  (50a-51a).  The substance of plaintiffs' allegations against the [...] makes it clear that the trial court properly found that this is a case arising out of the [...]’ role as an attorney providing services in connection with a series of complex real estate transactions.  This is not a case, for instance, of a claim for injuries suffered by the plaintiff as a result of a slip and fall accident at the office of the [...].  The claims in the Complaint require proof of a deviation from the standard of care and, therefore, an Affidavit of Merit was required to be provided within the timeframe set forth by statute.  N.J.S.A. 2A:53A-27 requires a plaintiff to serve an Affidavit of Merit in matters alleging malpractice or negligence of a professional.  Failure to provide the Affidavit of Merit in accordance with the statute mandates dismissal of the Complaint for failure to state a cause of action.  N.J.S.A. 2A:53A-29.  The "common knowledge" exception to the Affidavit of Merit Statute does not apply to the instant matter, contrary to plaintiffs’ assertion.  Therefore, the trial court properly held that this case did not fall within the common knowledge exception to the Affidavit of Merit Statute.  The common knowledge doctrine allows a plaintiff to proceed with a malpractice action against a licensed professional without expert testimony.
[brief] See, e.g., Dennery v. Bd. of Educ. of Passaic Cty. Reg'l High Sch. Dist. No. 1, Passaic Cty., 131 N.J. 626, 641 (1993).  In the present matter, the Commission’s Final Decision was not supported by substantial credible evidence in the record as a whole.  On the contrary, abundant evidence in the record directly contradicts the erroneous factual assumptions the Commission’s Final Decision relied on.  Here, the Commission’s Final Decision to dismiss the Complaint outright hinged entirely on the proposition that “there is an insufficient nexus between Respondent’s personal Facebook page and her membership on the Board” based on the erroneous conclusion that Respondent “did not make any reference to the Board nor her membership on the same” from her Facebook account.  (Ca016-017).  This conclusion is directly contrary to abundant evidence in the record for at least the following 8 reasons: • Respondent repeatedly campaigned for her seat on the Board from her Facebook account (Ca216, Ca218, Ca220); (Ca136 at RQA 2, Ca144 at Response to RQA 2); • Respondent posted pictures of herself swearing in as a Board member (Ca222-224); (Ca136 at RQA 3, Ca144 at Response to RQA 3); • Respondent posted a comment that specifically stated “I was elected onto the central regional district board of education (BOE) come on man LOL” (Ca224); •
[brief] ”  See “Wanton. ”  Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/wanton.  Accessed 13 Jan. 2024.  The definition of wanton is ambiguous given it can take on many meanings including merciless, inhumane, having no just foundation or provocation, being without check or limitation, lewd, bawdy, playfully mean or cruel, mischievous, hard to control, undisciplined, unruly.
[brief] Therefore, any argument that this policy shift is a mere “informal intra-agency document designed to clarify existing policy,” must be rejected because it is contrary to the Department’s previous policy.  *B.H.*, 400 N.J. Super. at 431.  Here, because the “change advanced by [the Department is] not merely an internal instruction,” but, rather, is a change in existing policy that alters the status quo and “substantially impacts the right of” all reciprocals, the law requires APA compliance.  *Ibid.*  The constitutional rights of those affected by the change command no less formal a process than is set forth in the APA, a concept that the Legislature underscored specifically in passing the APA.  See N.J.S.A. 26:2H-5(b).  It is clear in light of such strong legislative and judicial recognition of the due process rights of a regulated class that, when an agency materially and significantly changes its position on the application of the Holding Act or the precise circumstances in which SSAP No. 25 is applied to AIF fees, such modifications must be affected through the formal rulemaking process set forth in the APA.  *Am. Emp’r Ins. Co. v. Comm’r of Ins.*, 236 N.J. Super. 428, 432-34 (App. Div. 1989).  The Department’s arbitrary, capricious, unreasonable and ultra vires actions must be challenged because while “[a]dministrative agencies possess wide latitude in selecting the appropriate procedures to effectuate their regulatory duties and statutory goals[,] . . . this flexibility does not allow an agency to ignore the dictates of the [APA].
[brief] Such is the case here.  Defendant urges that greater is deference owed to a denial of a variance, relying heavily upon *Northeast Towers, Inc. v. Zoning Bd. of Adjustment of Borough of W. Patterson*, 327 N.J. Super. 476 (App. Div. 2000).  Db10-Db12.  But the deference given to zoning boards is due to their “peculiar knowledge of local conditions[.]”  See, e.g., *Kramer*, 45 N.J. at 296 (emphasis added).  Deference is specifically directed to local conditions; the Defendant’s insistence that building height is, by default, a proxy for intensity of use, based on general assumptions about traffic, has nothing to do with local conditions or the community’s characteristics.  It is based, instead, upon a preconceived notion about traffic generation that Plaintiff actually disproved.  Defendant distorted, ignored, and/or unreasonably rejected unrebutted, credible expert and lay testimony to manufacture its desired outcome.
[brief] And the rule that courts will not enforce illegal contracts does not apply to the case of third parties who have no interest in, or connection with the illegal contract itself.  Evans v. Trenton, 24 N.J.L. 764, 771 (E. & A. 1853).  “[O]ur courts have long held that a ‘contract contrary to public policy is illegal and void, however solemnly made. ’”  Lee v. Park, 2015 N.J. Super. Unpub. LEXIS 1233, *18 (App. Div. May 27, 2015) quoting Driscoll v. Burlington-Bristol Bridge Co., 10 N.J. Super. 545, 574 (Ch. Div. 1950).
[brief] Da2363.  The mediation was not successful; therefore, [...] and [...] commenced expert witness discovery, including exchanging ten expert reports and taking expert depositions.  After discovery ended and while cross motions for summary judgment and partial summary judgment were pending and a trial had been scheduled, [...], the insurers defending [...], and [...] engaged in lengthy settlement negotiations (Da647) that consummated in execution of a detailed settlement agreement on December 20, 2018.
[brief] Pa270, 75:4-76:21.  Even a security guard was posted to prevent [...]’s possession and entry.  This was a breach of the Settlement Agreement which had allowed [...] to be at the property and have possession until October 31, 2023.  Pa49.  Although [...] continues to perpetuate this myth that the asphalt millings were contaminated, after months of “investigating,” [...] has presented zero evidence of such alleged contamination.  Notably, it did not do so to the Trial Court.  [...] did not present any expert report to the Trial Court despite working with a Licensed Site Remediation Professional (LSRP). ¹  [...]’s requests for ¹  The Trial Court correctly noted that any claims of environmental contamination, given their complexity, would have to be subject of a separate lawsuit rather than be adjudicated in a summary fashion, yet that is precisely what [...] continues to documentation of any testing that has been conducted at the site by [...], at this point for months, have been met with perpetual silence. \(^2\) Pa231.  Because of the lack of any report, no expert depositions have been taken and no expert testimony has been provided.  Additionally, there remain substantial allegations that the site was previously contaminated even before [...] rented the premises, which have not been resolved, and that [...] should be allowed to prove in a full-fledged lawsuit.  Pa177.  **STANDARD OF REVIEW**
[brief] In essence, the trial court’s ruling requires a custodian to search out “information” not requested on pain of violating OPRA and becoming subject to counsel fees and potential penalties under OPRA.  As a result, the lower court’s ruling should be reversed and the custodian’s obligations clarified to accord with the holdings of Simmons v. Mercado, 247 N.J. 24, 38 (2021); Bent v. Twp. of Stafford Police Dep’t., 381 N.J. Super. 30, 37 (App. Div. 2005); and Burnett v. Cnty. Of Gloucester, 415 N.J. Super. 506, 516 (App. Div. 2010).  Further, the award of counsel fees should be reversed because the plaintiff’s lawsuit was not the catalyst for the relief obtained.  Mason v. Hoboken, 196 N.J. 51 (2008), Spectraserve, Inc. v. Middlesex County Utilities Auth., 416 N.J. Super. 565 (App. Div. 2010).
[brief] Several dictionaries provide similar definitions.  Compare Cambridge Dictionary online, https://dictionary.cambridge.org/us/dictionary/english/summary, last visited 6/2/2023 (defining “summary” as “a short, clear description that gives the main facts or ideas about something….”); Merriam-Webster online, https://www.merriam-webster. com/dictionary/summary, last visited 6/2/2023 (defining “summary” as “comprehensive; especially: covering the main points succinctly….”); and Oxford Learner’s Dictionary online, https://www.oxfordlearnersdictionaries.com/us/definition/english/summary?q=summary, last visited 6/2/2023 (defining “summary” as to “a short statement that gives only the main points of something, not the details….”).  Based on these definitions, the plain meaning of “summary” of an ordinance is a short, clear discussion of the main points of the ordinance.
[brief] As the Supreme Court explained:  Public contracting units may resolve problems arising from such conditions in a sensible or practical way….  [T]here are certain requirements often incorporated in bidding specifications which by their nature may be relinquished without there being any possible frustration of the policies underlying competitive bidding.  In sharp contrast, advertised conditions whose waiver is capable of becoming a vehicle for corruption or favoritism, or capable of encouraging improvidence or extravagance, or likely to affect the amount of any bid or to influence any potential bidder to refrain from bidding, or which are capable of affecting the ability of the contracting unit to make bid comparisons, are the kind of conditions which may not under any circumstances be waived.  Terminal Const. Corp., 67 N.J. at 411-12 (emphasis added).  As demonstrated in Part I.C.1, supra, the difference between the costs allocated by each bidder to their designated archaeologist are inconsequential in comparison to the overall bid amounts.  It may be true that [...]’s interpretation of the bid specifications contributed to its submission of a mathematically higher bid price, however, given the degree of the apparent increase compared with the overall bid amounts, there is no adverse impact on competitive bidding by awarding to [...].  Thus, we respectfully submit that the archaeologist issue is waivable under the law.
[brief] Since actions in lieu of prerogative writs are normally tried on the record below and the parties could not initially agree upon the scope of discovery, if any, to be conducted in this case, the Trial Court directed the Plaintiff to file a motion delineating the discovery that it wished to take and for the Defendants to then respond to that motion.  On July 28, 2021, the Plaintiff filed a motion seeking leave of court to take “traditional discovery” (Pa51).  On September 2, 2021, the [...] filed papers opposing that motion, arguing that the Plaintiff had failed to satisfy its burden to delineate the discovery that it sought to take and to show why leave of court should be granted to take any discovery (Pa58-107).  On September 10, 2021, [...] entered an Order denying the Plaintiff’s motion without prejudice (Pa54).  On October 4, 2021, [...] entered an Order requiring the Plaintiff to re-file a motion seeking leave of court to take discovery by no later than October 20, 2021 (Pa56).  The Plaintiff thereafter filed its motion, but characterized it as a motion for reconsideration of the Trial Court’s prior ruling regarding discovery (Pa108-197).  The [...] again filed papers opposing the Plaintiff’s motion, but agreeing to some limited discovery (Pa198-223).  On November 19, the Trial Court held argument on the Plaintiff’s reconsideration motion (4T).  On that same date, the Trial Court entered an Order denying the Plaintiff’s reconsideration motion and establishing a schedule for the completion of discovery and the submission of expert reports (Pa1716).
[brief] At a hearing held on May 31, 2023 in Hudson County Superior Court before the Honorable [...] ([...]) the Court vacated a grant of variance made by the [...] to [...] in a resolution dated 06/21/2022 and remanded it back to the [...] for amendment.  This decision was memorialized in a court order dated 06/05/2023 which indicates that the Court retained jurisdiction over this matter (2a).  The court order for this decision specifically referenced a rendering that the [...] was to use in its deliberations:  To explain whether the “rendering” submitted with the Application (relative to the height of the various buildings on the block) was significant to the Board’s decision and, if not – why not?  (2a)  The more formal name of this rendering is “Park Avenue (West Side) Diagrammatic Elevation” (hereafter “the Diagrammatic Elevation”) which can be found in the exhibit labeled Z-1 which was submitted as part of [...]’s original application for variance relief to the [...] in 2022 (4a).  The Diagrammatic Elevation shows the relative height of the proposed building compared with neighboring buildings as represented to the [...] in the 2022 application that sought a height variance.  At a hearing held on 08/15/2023, the [...] approved an amended version of the original zoning resolution and subsequently forwarded it to the Court for review (hereafter “the Amended Resolution”) (10a).
[brief] Park Crest Cleaners, LLC v. A Plus Cleaners & Alterations Corp., 458 N.J. Super. 465 (App. Div. 2019) .......................................................  12, 13  Pollice v. National Tax Funding, L.P., 225 F.3d 379 (3rd Cir. 2000) ..................................................................  41 Polzo v. County of Essex, 196 N.J. 569 (2008) ..............................................................................  14
[brief] There are indeed circumstances where a child’s conduct may make the enforcement of the right to contribution inequitable, but here it is claimed that it was the defendant himself who was the architect of his own misfortune.  Gac, 186 N.J. at 544 (citation omitted).  Despite the deterioration of his relationship with [...], Defendant requested her 1098-T forms reporting the tuition that was financed by the loans (P-668).  As such, the lower court’s denial of any recovery by Plaintiff of Defendant’s share of the children’s education loans is “so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. ”  Clark, 429 N.J. Super. at 70.  As such, this Court should reverse the trial court’s January 11, 2024 Order in its entirety and remand to the lower court to reassess the credible testimony and evidence presented by Plaintiff under the Newburgh factors.