ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] N.J.S.A. 2A:15-97 DOES NOT BAR MED-PAY SUBROGATION CLAIMS AS THEY ARE “ACTIONS BROUGHT PURSUANT TO THE PROVISIONS OF… 39:6A-1 et. seq. ” (Da1 – Da27).  The collateral source rule, N.J.S.A. 2A:15-97 addresses the deduction for duplicate benefits.  That statute specifically states that:  In any civil action brought for personal injury or death, except actions brought pursuant to the provisions of P.L.1972, c. 70 (C. 39:6A-1 et seq.), if a plaintiff receives or is entitled to receive benefits for the injuries allegedly incurred from any other source other than a joint tortfeasor, the benefits, other than workers' compensation benefits or the proceeds from a life insurance policy, shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award recovered by the plaintiff, ...  In each of the nine arbitration awards, the injured party was injured in a motor vehicle accident which resulted in their receiving Medpay benefits.
[brief] The Developer shall receive a credit (“Credit”) for each day that the action, decision, meeting, or similar item is not acted upon by the Township or Board, as the case may be, or does not take place by the appropriate deadline.  By way of example, if the Township is responsible for adopting the Ordinance by January 30, 2021 and adopts the Ordinance on February 15, 2021 and in violation of this agreement, the Developer will be entitled to a Credit totaling 15 multiplied by the Per Diem Penalty.  The Developer shall be entitled to apply the Credit towards any fee that is due and payable to the Township in the ordinary course of development the Property, such as, but not limited to, application fees, building or construction permits, or connection fees for sanitary sewer or potable water.  This Paragraph does not limit the Developer’s remedies, in law or equity, to redress non-compliance by the Township or the Board and does not limit the Township or the Board’s defenses thereto.
[brief] Plaintiff contends that “[t]he trial court below erred by substituting its judgment, its weighing of the facts, both disputed and undisputed, to determine that no reasonable trial of fact could find that [...] committed an intentional wrong as defined by the caselaw. ”  Pb40.  Plaintiff is wrong.  In deciding [...]’s motion for summary judgment, the trial court, as it was required to do, granted all factual inferences in favor of Plaintiff, the non-moving party, and concluded “that a reasonable trier of fact could not find Defendant committed an intentional wrong, thereby forfeiting immunity under the [Act].”
[brief] Initially, the “discount fee” that the “PLUS” element refers to was 0.3% in the initial Agreements with [...] in 2010.  The “discount fees” were later elevated to 1.3% or higher, an excessive fee collected from the Merchant Customers included in this “Discount Fee” Subclass, who were charged at least 1% more than the actual “discount fee” they had agreed to.  (Pa000124).  22.  Finally, in addition to artificially inflating the “Interchange” and “PLUS” elements of the Agreements, in July 2020 [...] also began to include various miscellaneous charges to certain Merchant Customers (the “Miscellaneous” Subclass), designating these miscellaneous charges in their Merchant Statements as “non-qualified”, or “other”, even though these charges should never have been applied at all.
[brief] For applying a Standard of Review for this defendant’s case, the court rendered a result that was both ARBITRARY AND UNREASONABLE in lieu of exercising proper consideration of the relevant facts and evidence (as been detailed in this appeal) and failed to be guided by established case law (precedents, adherence to the doctrine of Stare Decisis) when Procedural Due Process (Defective Service of Process) and errors exhibited to MATTER of LAW (misapplication of laches) issues were at stake.  Precedents and Policies defined by Third Circuit Courts were not adhered to (failure to follow the doctrine of Stare Decisis due to an erroneous denial of claim using missed case law, i.e. laches) which obligate courts to look at precedents while making their decision.  This caused an “UNFAIR” result leading to prejudice and harm by not properly adjudicating the 1990 default judgment to be deemed void as case law has well established when challenging jurisdiction due to Defective Service (corroborating case law fully cited throughout this appeal).  Let us now focus on the trial court’s erroneous presumption (exhibiting abuse of judicial discretion) that: “clearly the defendant was on notice,” (Pa2) as this being the court’s reference to the March 9,1990 court order (Pa7).
[brief] [...] also relies on *Gaf Corp. v. N.J Dep’t of Env’t. Prot.*, 214 N.J. Super 446 (App. Div. 1986), to support its position that DEP must apply the most recent data in its possession during its permit review.  (Ab38).  But *Gaf Corp.* does not support this premise.  *Gaf Corp.* involved DEP’s amendment to rules governing permit fees for pollutant discharges, and did not involve a permit review at all.  214 N.J. Super. at 449.  There, the appellant challenged DEP’s amended rules, which contained a new fee methodology.  *Ibid.*  In finding that DEP did not act arbitrarily, this court observed that “DEP can use the most recent data it has [to calculate fees]” because “[f]ees cannot be computed on discharges not yet in being and there was no unfairness in utilizing the available data. ”  *Id.* at 451.  *Gaf Corp.* has no bearing on the matter before this Court.
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[brief] But by and large, it was—they really didn’t care.  I mean, the juror’s been excused.  Fine.  Let’s go back to deliberate.  So we reconstituted the jury by substituting somebody back in.  The point made here today is that the—all the jurors were tainted.  I simply don’t find from what we heard from the jurors that is the case.  (11T33-6 to 15)  Additionally, we have the summary of the interview made by counsel at the Motion for a New Trial.  The summary by defense counsel was as follows:  “…juror number 14 explained that during the luncheon recess he received a call, which alerted him or informed him that he was in court, made some inquiry as to him being in court.  And as I recall it, he was a coach who said that he may have recognized some people on the benches, which I took to mean my client’s family and friends who were in the back of the courtroom.  What—had that simply been his experience and he reported it to (the team leader), who then reported it to Your Honor, I probably wouldn’t be standing here talking about this aspect.  However, not only did he have that feeling that he wanted to be dismissed.  He informed and Your Honor interviewed at my request the remaining members of the jury individually.  Because it developed that there were, I don’t know, some six, seven, eight of the jury members who were there when he informed them as to why he was going to be requesting to be relieved as—of his duties and, you know, wished them good luck.  Yes, it’s true that you interviewed all of those jurors and as I recollected, you denied my Motion for Mistrial and recited that of all of the jurors interviewed, only juror number four expressed some reluctance or difficulty or problem with respect to further deliberations.
[brief] The Board failed to consider its power to relax time limits in the interest of justice or in furtherance of a just accommodation.  It is within the Board’s power to relax time limits.  The Board’s initial denial has failed to consider, evaluate, and weigh [...]’s equitable claims.  Most notably, it failed to even mention the approximately one hundred affidavits submitted that support the fact that these postcards were never received by [...] or other members of the pension system.  Furthermore, the Board’s decision inflicts obvious and unnecessary harm upon [...] and fails to advance the legislative purpose of the Ricci Act.  The legislative purpose of the Ricci Act was to provide first responders with the ability to alter their retirement benefits if they have fallen ill as a result of their honorable and heroic service at the largest terrorist attack this country has ever see, not to unnecessarily and arbitrarily deny sick retired troopers accidental disability benefits.
[brief] A.  [...]’s lay commentary on [...]’s credibility and guilt should have been redacted.  The interrogation video played for the jury included two types of improper lay commentary.  First, [...] commented extensively on [...]’s credibility—when [...] insistently denied entering the [...] warehouse, [...] accused him of lying fourteen times.  See State v. McLean, 205 N.J. 438, 453 (2011); State v. Frisby, 174 N.J. 583, 594 (2002) (“[T]he mere assessment of another witness’s credibility is prohibited. ”); State v. C.W.H., 465 N.J. Super 574, 593 (App. Div. 2021) (“[A] witness should never offer an opinion that a defendant’s statement is a lie. ”) (internal citations omitted).  Second, [...] offered his view on [...]’s guilt and on facts in evidence, repeatedly asserting that the church surveillance video clearly depicted [...] entering the warehouse.  See McLean, 205 N.J. at 461-62 (confirming that officer testimony is “not a vehicle for offering the view of the witness about a series of facts that the jury can evaluate for itself”); State v. Cain, 224 N.J. 410, 427 (2016) (holding that testimony regarding a defendant’s guilt “intrudes on the exclusive domain of the jury as factfinder”).  [...]’s commentary thus invaded the jury’s ken as an independent factfinder, biasing their ability to reach a fair verdict.
[brief] .............................................................................................................15, 29, 30 Kimm v. Blisset, LLC, 388 N.J. Super. 14 (App. Div. 2006)  ..................................................................................16, 34 Knecht v. 225 River Street, LLC, 2012 WL 1020005 (App. Div. Mar. 28, 2012)  ....................................................................29  McGrath v. Poppleton, 550 F. Supp. 2d 564 (D.N.J. 2008)  .......................................................................................28  Minkowitz v. Israeli, 433 N.J. Super. 111 (App. Div. 2013)  ..................................................................................16  N.J. Transit Bus Ops., Inc. v. Amalgamated Transit Union, 187 N.J. 546 (2006)  ..............................................................................................................15, 21, 30 Namerow v. PediatriCare Assocs., LLC, 461 N.J. Super. 133 (Ch. Div. 2018)  .....................................................................................28  Pagnani-Braga-Kimmel Urologic Assoc., PA v. Chappell, 407 N.J. Super. 21 (Law Div. 2008)  .....................................................................................28 Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479 (1992) .................................................................................................................passim Perretti v. Ran-Dav’s Cnty. Kosher, Inc., 289 N.J. Super..........................................................................................................................39, 40, 41 Selective Ins. Co. v. Nat’l Cont’l Ins. Co., 385 N.J. Super. 62 (App. Div. 2006) .....................................................................................37 Township of Wyckoff v. PBA Local 261, 409 N.J. Super. 344 (App. Div. 2009) ..................................................................................32 Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349 (1994) .................................................................................................................passim Ukrainian Nat’l Urban Renewal Corp. v. Joseph L. Muscarelle, Inc., 151 N.J. Super. 386 (App. Div. 1977) ..................................................20, 33, 37 Weichert Co. Realtors v. Ryan, 128 N.J. 427 (1992) ..............................................................................27 Withum, Smith & Brown v. Coast Auto. Grp., Ltd., 2012 WL 489020 (App. Div. Feb. 16, 2012) ...........................................18
[brief] This proceeding only came to be because [...] willfully ignored the advice of counsel by defying the Interim Order of the [...], the bylaws do not require the Board to appoint [...] a personal attorney to investigate whether or not he should comply with an order of a State Agency or to further his personal agenda.  [...]’s refusal to comply with multiple orders of the [...] and refusal to turn over public documents in his possession is a dereliction of duty of a public official and a violation of the Open Public Records Act, N.J.S.A. 47:1A-11.  Because his act was outside the scope of his official responsibilities, the Board has no obligation or authority to provide [...] with counsel to pursue a nebulous heretofore unspecified claim against the [...].  3.  **THE COURT BELOW DECLINED TO DECIDE THE DUE PROCESS ISSUE AND THE VALIDITY OF THE OPRA REQUEST UNDER R. 4:67-6. **  The trial court declined to determine the issues regarding the alleged due process violation and the validity of the underlying OPRA request under R. 4:67-6(c) which states “except as otherwise provided by subparagraph (c)(2) of this rule the validity of an agency order shall not be justiciable in an enforcement proceeding. ”  The trial court declined to rule on the due process issue:  It’s this Court’s determination today that due process is not an issue before the Court, nor do I believe that due process rights were violated.  The [...] did not just –need to serve [...] because it served his and his fellow board members’ attorney at the time, as well as the Board records custodian, [...].  (1T:51-11 – 51:16)  Additionally, the trial court declined to review the merits of the [...] decision, stating:  [I]n regard to any of [...]’s arguments concerning the merits of any of the [...] decisions, these arguments are not within the jurisdiction of this Court in connection with the enforcement action.  Rather, they belong in the Appellate Division.
[brief] Pa57, ¶ 105; Pa335, ¶ 105; accord Pa309-10.  [...] relied on the statement in plaintiff’s surveying and engineering reports that “the driveway and front yard at the adjacent ([...]) property was graded such that stormwater will runoff into the [...] property. ”  Pa57, ¶ 106; Pa335, ¶ 106; accord Pa310.  He offered no allocation of damages between damage that he attributed to the [...]s’ actions and damage caused by the preexisting water runoff.  Pa57, ¶ 107; Pa336, ¶ 107; accord Pa310.  Nor did he offer any assessment of what plants actually sustained damage or the alleged cost to replace or repair the plants at issue.  Pa58, ¶ 108; Pa336, ¶ 108; accord Pa310.  V.
[brief] **CONCLUSION**  In conclusion, the Appellant respectfully asks this Court to reverse the trial court’s decision and exclude the two challenged write-in votes from the certified election results.  The material facts in this case are uncontested, and the governing law is clear – person choice write in votes for candidates whose names already appear on the ballot are void under established statutory and case law.  Failing to grant relief would deny Appellant, [...], the office to which he was lawfully elected, based on an impermissible vote.  Such a result would undermine the integrity of the electoral process and erode public confidence in the consistent application of election law.  Reversing the trial court’s ruling would uphold the plain meaning of the statutes, reinforce settled precedent, and protect the right to a fair election.  Accordingly, this Court should reverse the judgment below and order that the two invalid write-in votes be excluded from the final tally.  Respectfully submitted, [...]  Attorneys for Petitioner-Appellant [...] /s/ [...]
[brief] [...]’s planner endeavored to fit the application within the four-part Sica test.  He concluded that the multilevel facility satisfied the public interest as inherently beneficial.  6T13:15-17.  He recognized that the Township already has two existing senior care facilities, but dismissed them for comparison because they were built in the 80’s and 90’s and reasoned that this new one is better.  6T 14:9-13.  As to the second prong of the Sica test -- “the impact on the public good as well as the impact on the zoning, uh, ordinance and master plan,” 6T 17:11-22, he summarily concluded that the use would not have substantial impact on the surrounding land uses with addition to the assisted living units.  [...] did not agree that they were the same or that the same calculation should be used, testifying, “there is a distinct difference in activity level and trip generation from independent living to assisted living.
[brief] ”  Ledley, 138 N.J. at 638.  Despite [...]’s testimony that the purchase and issuance of the subject policy was the result of communications between [...] and [...], neither individual was deposed, nor were Affidavits submitted on their behalf. \(^7\)  [...]’s submission of some documentary evidence in the form of electronic mail communications between [...] and [...], and between [...] and [...], is patently insufficient to establish a question of fact concerning materiality or detrimental reliance.  These emails do not indicate that [...] ever directly communicated to [...] that 12-15 passenger vans were excluded from coverage, or that the policy would not be issued if such coverage was contemplated.  Even [...], [...], testified at his deposition that he was not aware of any such exclusion and he had been selling this policy for years.  (Ia416; 460-461).  His Certification stated that there was no warning that to applicants that 12-15 passenger vans would not be covered.  (Ia576).  The only place that mentioned any such limitation existed as of July 2019 was in FL [...]’s underwriting guidelines and those were not shared with anyone else, including [...] claims personnel, and were filed under seal with the court.
[brief] This worried [...] because [...] always answered.  (1T97-22 to 98-14).  Around 7:00 a.m. the next day, [...] looked for [...] at work, but she was not there.  (1T99-4 to 100-25).  [...] called [...]’s mom, and together they went to [...]’s house where she lived with defendant; but the door was locked.  (1T101-1 to 102-10; 1T107-3 to 12).  [...] suggested calling the police, but [...]’s mom declined.  [...] then returned to work.  (1T108-5 to 109-12).  Later that day, defendant’s daughter, [...], received a worried phone call from [...]’s mother.
[brief] (Db47-50).  He concludes that he is entitled to resentencing in front of another judge.  First, this matter was remanded because at the second sentencing, the judge did not have the option of reducing the parole ineligibility period.  Baker, No. A- 2961-18, slip op. 10-12.  The judge had already found that a life sentence was warranted in the second sentencing, where he applied the Miller factors as well as relevant aggravating and mitigating factors.  (4T53:15 to 54:8).  Defendant did not furnish any substantially new evidence for his third sentencing.  He did not express any intention to call additional witnesses and in fact did not call additional witnesses.  Yet he faults the judge for expecting the life sentence not to be altered.  Regardless, the judge considered the evidence before him, conducted a new analysis, and reduced the parole ineligibility period.  There is no indication that the judge did not take his responsibility seriously or that he failed to act as the law required.  Defendant’s remaining accusations are equally meritless.  As already stated, the judge did not refuse to consider evidence of his rehabilitation.  He simply did not find it convincing because of defendant’s changing representations over the years.  Given such representations, the judge cannot be faulted for finding defendant insincere.  It is patently false that the judge admitted to spending little time reviewing the record.  His statement that he did not spend much time related to [...]’s report, which he did not spend much time reviewing because he had seen before.  (5T74).  To the extent that the judge contradicted himself, both defendants’ names start with a “b” and they were jointly sentenced.  It is understandable that the judge misspoke.  In any event, defendant was not prejudiced if the judge thought his childhood was more difficult than it actually was.  The heinous nature of the incident is relevant to likelihood to reoffend pursuant to case law, and the judge’s findings on maturity and peer pressure are fully supported.  **CONCLUSION**