ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] TABLE OF CONTENTS  Page No.  TABLE OF APPENDIX ...........................................................................................................ii  TABLE OF AUTHORITIES ................................................................................................. iii  PRELIMINARY STATEMENT .........................................................................................1  PROCEDURAL HISTORY .................................................................................................2  STATEMENT OF FACTS .................................................................................................5  ARGUMENT ......................................................................................................................8  I.  STANDARD OF REVIEW .........................................................................................8  II.  PLAINTIFF CONFLATES THE APPROPRIATE STANDARD OF REVIEW FOR THIS COURT; THE “SUBSTANTIAL EVIDENCE” STANDARD DOES NOT APPLY IN A REVIEW OF A MUNICIPALITY’S REDEVELOPMENT PLAN (Raised Below: 3T.45:1-20; 60:15-20; 63:6-9) .............................................  10  III.  THE TRIAL COURT CORRECTLY FOUND THAT THE ADOPTION OF REDEVELOPMENT ORDINANCES 2022-15 AND 2022-17 WAS PROPER, AND NOT THE RESULT OF ARBITRARY OR CAPRICIOUS CONDUCT (Raised Below: 3T.39:15-25 through 63:1-19)  .............................................  16  A.  THE COMMITTEE’S DECISION TO ADOPT  THE REDEVELOPMENT ORDINANCES WAS PREDICATED ON SUPPORTED FINDINGS (Raised Below: 3T.39:15-25 through 63:1-19)  .............................................  17  B.  THE TOWNSHIP COMMITTEE ACTS AS ONE BODY AND ANY DISCUSSION OR ANALYSIS BY ITS MEMBERS IS NOT REQUIRED (Raised Below: 3T:49:25 through 50:1-7; 51:23-25 through 52:1-7)  ...........................................................................................................30  CONCLUSION
[brief] Executed on April 23, 2014.  /s/ [...]  All Citations Not Reported in F.Supp.3d, 2014 WL 1691551  UNITED STATES of America, FOR the USE AND BENEFIT OF [...], [...]  Plaintiffs-Counter Defendants, v. [...], Defendant-Third-Party Plaintiff-Counter Claimant, [...], Defendant, [...], Third-Party Defendant.
[brief] Appellants’ filed the initial Complaint against the Defendants on or about April 19, 2019 and an Answer was timely filed on March 24, 2020.  Although the parties exchanged written discovery, Appellant’s made no effort to depose the Defendants, and did not seek to compel any discovery.  At no time did the Appellants provide any expert report or identify any witnesses other than the Plaintiff himself.  Further, Plaintiff was unable to submit any proofs to the Court which corroborated his testimony.  In essence, Plaintiff simply alleges that the Defendant did not do the work he was required to do.  However, Plaintiff was unable to provide a single piece of evidence which indicated that due to the alleged fraud and breach of contract of the Defendant/Respondent, that the Plaintiff/Appellant was damaged in some way.  It is most important for this Court to note that the entirety of the Trial, including Defendant’s affirmative case lasted **one hour and 11 minutes**.  This is simply not a case with a voluminous record for the Court to review.  Quite simply, there was no error made at the Trial level – as there was so little testimony and evidence in Plaintiff’s case.  The Appellate Division did remand the matter to [...] on or about June 27, 2023.  The remand was for the limited purposed to have the Trial Court “reconsider its dismissal of plaintiff’s CFA count and claims anew,” and “for the court to make appropriate findings of fact and conclusions of law under Rule 1:7-4(a).  Accordingly, [...] had a hearing again on October 2, 2023 to indicate said findings.  The reasonings, facts and conclusions of law are in keeping with the direction of the Appellate Division and should alleviate any concern that the Court had in reference to the original decision prior to the first appeal.  RESPONSE TO STATEMENT OF FACTS
[brief] Reasonableness is not just a matter of the extent of the plaintiff’s damages claim, but also the extent of the defendant’s exposure to liability.  Fireman’s Fund Ins. Co. v. Imbesi, 826 A.2d 735, 756 (App. Div. 2003) certif. denied, 178 N.J. 33 (2003).  Reasonableness is determined by the size of possible recovery and degree of probability of the claimant's success against the insured.  See Pemaquid Underwriting Brokerage, Inc. v. Certain Underwriters at Lloyd’s, 2011 N.J. Super. Unpub. LEXIS 2474, at *24-25 (App. Div. Sept. 29, 2011).
[brief] Plaintiff filed a renewed motion to abbreviate transcript in the trial court on April 5, 2024.  (Pa1269)  Defendant filed a cross-motion opposing plaintiff’s motion on April 18, 2024.  (Pa1312)  Plaintiff filed a reply certification on April 25, 2024.  (Pa1325)  On the motion return date of May 3, 2024, trial court denied plaintiff’s motion to abbreviate transcript.  **STATEMENT OF FACTS**
[brief] PRELIMINARY STATEMENT  In this case, sophisticated private and public entities, represented by sophisticated counsel, negotiated a contract reflecting the agreed upon economic realities extant at the time of negotiation.  Those negotiations resulted in a Redevelopment Agreement, Operating Agreement and Ground Lease (all as further defined herein) that, among other rights and responsibilities apportioned among the parties pursuant to extensive negotiations, provided the [...] (the “Authority”) the right to receive the first $1,600,000 in revenue from the operation of a parking garage supporting in part a shopping mall built by [...] (“[...]”).  [...] built the mall on land leased from the Authority (for $1.00 per year for 99 years) that had previously generated $1,200,000 annually for the Authority.  Almost fifteen (15) years after the fact, and after years of failing and failed operations, [...] filed suit to reform these contracts because the real estate deal it requested and agreed to did not work out in their favor.  The trial court, despite no evidence of any mutual mistake, or fraud on the part of the Authority, reformed the Redevelopment Agreement and Operating Agreement and ordered that [...] participate in revenue sharing beginning at the first dollar received.  That erroneously entered order, if not immediately reviewed and reversed by this Court, will cause irreparable damage to the Authority through the expenditure of public funds to pay the fee award, leaving the Authority with having to recoup $499,007.77 in fees and costs paid, and adversely impacting the Authority’s ability to pay its existing bondholders for the operation of its entire parking system.  Accordingly, the Authority seeks leave, pursuant to R. 2:5-6(a), for interlocutory review and reversal of the March 15, 2024 Order (the “Order”) of the Superior Court of New Jersey, Chancery Division, Bergen Vicinage, which: (i) granted reformation of agreement by and among the Authority, the [...] (the “City”) and [...], dated February 24, 2005, as amended May 11, 2012 (the “Redevelopment Agreement”) and the Operating Agreement between the Authority and [...], dated April 17, 2006 (the “Operating Agreement”), and (ii) awarded [...] $499,007.77 in fees as a result of said reformation.
[brief] Specifically, the call supposedly said a man on crutches had a gun in his pocket.  (1T 10-13 to 15-9, 43-10 to 15)  When officers located [...], who the defense agreed was the man who was the subject of the call, it was his eye contact, nervousness, and attempted flight that supposedly gave rise to reasonable suspicion to stop him.  (2T 32-3 to 37-4)  The eye contact, nervousness, and attempted flight were only supported by the officer’s report and testimony.  Thus, the only corroboration that the man in crutches was engaged in criminal activity came from the officer who testified.  The officer, however, wasn’t credible.  In the words of the trial court:  “This Court does not find [...]’s testimony credible. ”  (2T 42-17 to 18)  His testimony contradicted the video evidence in this case and was “wholly unreasonable. ”  (2T 42-21 to 22)  As the trial court explained, “And so if I don’t find any of those things credible, right, they can’t be the corroboration for a 9-1-1 call[.]”
[brief] The trial court, however, had previously ruled that since these actions were subsequent remedial measures by the defendant-respondent, (See Legal Argument, Point I), that such evidence was inadmissible and could not be presented.  Similarly, the trial court had ruled that plaintiff could not introduce nor mention two color photographs taken by [...] and provided in the defendant’s Answers to Interrogatories.  (Pa36 - Pa37).  These photographs depicted the condition of the scene after [...] had mopped and placed the hazard warning sign.  (1T8-13 to 13-6; 1T17-8 to 28-9).  [...] asked [...] and [...] to wait for her at the main office and said that once she had completed showing a unit to her potential customers she would meet them there to complete an incident report.  [...] and [...] drove to the front of the facility where the main office was located, and waited there for [...].  After the on-site manager arrived, she sat with the plaintiff and [...] and elicited information from them as she entered the information into her computer to prepare her report.
[brief] Although some of the facts from the case appear to be similar to the case at hand, there are critical differences between the procedural posture in Stewart that distinguish it from this case.  Unlike here, in Stewart, it was Plaintiff’s counsel, not the expert, that for the first time introduced a new theory during oral argument on a summary judgment motion.  Here, as an initial matter, the parties were never granted oral argument.  Also, in this case, the testimony cited by the Trial Court are not changes to [...]’s theory but rather explanations in response to various questions on cross-examination as to why the settlement itself was dangerous.  However, even assuming arguendo they were changes in [...]’s “theory,” those alleged “changes” would have been made during his deposition while discovery was still open.  Accordingly, the Stewart case is distinguishable from the case before this Court.
[brief] Defendants acknowledge, as they must, that the classes protected by the NJLAD include racial minorities and families.  Nevertheless, the Township argues in its reply brief, at Trb 35-36, that Plaintiffs are mere “intermeddlers or interlopers” lacking standing to advance the interests of racial minorities and families.  In a rather clumsy effort to reverse the analysis, the Township argues, at Trb38, that Plaintiffs are engaging in “absurd stereotyping” by noting that such low- and moderate-income housing tends to be disproportionally occupied by families and racial minorities.
[brief] THE LOWER COURT MADE A MISTAKE WHEN IT DENIED DEFENDANT’S AFFIRMATIVE DEFENSE OF RECOUPMENT OR SET-OFF (Raised Below: Da15 and Da17)  15 U.S.C. Section 1640(e) states:  “This subsection does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment or set-off in such action, except as otherwise provided by State law. ”  (Emphasis Added).  On July 8, 2022, the [...] issued the Consumer Compliance Handbook, discussing the implementation of TILA under Regulation Z.  On page 38, the Handbook states:  “Civil actions may be brought within one year after the violation occurred.  After that time, and if allowed by state law, the consumer may still assert the violation as a defense if a financial institution were to bring an action to collect the consumer’s debt. ”  (Emphasis Added).
[brief] A local land use board is accorded wide latitude to exercise its delegated discretion due to its peculiar knowledge of local conditions and familiarity with community characteristics and interests.  Medici v. BPR Co., 107 N.J. 1, 14–15 (1987) (quoting Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965).  When reviewing the decision of a municipal land use board, a reviewing court must give deference to the board’s determination absent a finding that it acted in an arbitrary, capricious, or unreasonable manner.  Price v. Himeji, LLC, 214 N.J. 263, 284 (2013); Kramer, 45 N.J at 296; New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 305 N.J. Super. 151, 165 (App. Div. 1997), rev’d on other grounds, 160 N.J. 1 (1999).  On appeal from the Law Division, a reviewing appellate court applies the same deferential standard as the trial court below.  Grubbs v. Slothower, 389 N.J. Super. 377, 382 (App. Div. 2007) (quoting Fallone Props., L.L.C. v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 561 (App. Div. 2004)).  A court typically need only determine whether the board’s decision “is supported by the record and is not so arbitrary, capricious, or unreasonable as to amount to an abuse of discretion. ”  Price v. Himeji, 214 N.J. at 284 (quotations and citations omitted); see also Kenwood Assocs. v. Bd. of Adj., 141 N.J. Super. 1, 4 (App. Div. 1976) (“The role of a judge in reviewing a local variance determination is solely to ascertain whether the action of the board is arbitrary”).  “Even when doubt is entertained as to the wisdom of the board’s action, there can be no judicial declaration of invalidity absent a clear abuse of discretion by the Board. ”  Chicalese v. Monroe Twp. Plan. Bd., 334 N.J. Super. 413, 419 (Law Div. 2000) (citing Pullen v. So. Plainfield Planning Bd., 291 N.J. Super. 303, 312 (Law Div. 1995), aff’d, 291 N.J. Super. 1, 6 (App. Div. 1996)).  There is a rebuttable presumption that the local public body has correctly exercised its discretion and that its decision is “presumptively valid. ”  Price, 214 N.J. at 284 (citing Cell S. of N.J., Inc. v. Zoning Bd. of Adj., 172 N.J. 75, 81 (2002)).  The challenging party bears the heavy burden of proving that the board’s action was unreasonable.  Spring Lake Hotel & Guest House Assoc. v. Borough of Spring Lake, 199 N.J. Super. 201, 210 (App. Div. 1985); Lincoln Heights Assoc. v. Twp. of Cranford Planning Bd., 314 N.J. Super. 366, 389 (Law Div.1998), aff’d, 321 N.J. Super. 355 (App. Div.), certif. denied, 162 N.J. 131 (1999).  LEGAL ARGUMENT
[brief] Rather, the Municipal Land Use Law, *N.J.S.A.* 40:55D-1 et seq., (“MLUL”) makes abundantly clear that “[t]he planning board shall, if the proposed development complies with the ordinance and this act, grant ... site plan approval. ”  N.J.S.A. 40:55D-46(b) (emphasis added).  As the Supreme Court has noted, the use of the word “shall” in the statute is telling; it limits a planning board’s authority in reviewing an application for site plan approval to determining whether or not the development conforms with the zoning ordinance and the applicable provisions of the site plan ordinance.  Pizzo Mantin Grp. v. Twp. of Randolph, 137 N.J. 216, 226-229.
[brief] Finally, but for its procedural history, if this case had undergone ordinary discovery, the record would reflect that [...] was an immigrant from Guyana who was dyslexic and functionally illiterate.  At the time of her passing in December 2021, she was enrolled in the [...] program, which tutored her in reading English.  She was a bus driver.  She was not trained in law or medicine and not familiar with complex contracts.
[brief] Further, the plaintiff argued that the trial court erred in permitting the introduction of evidence related to the plaintiff’s prior falls, medical conditions and use of a handicapped and in permitting the defendant’s liability expert to testify, on the basis that [...] was not qualified to render his opinions.  The plaintiff also argued that defense counsel made improper comments in closing arguments regarding the plaintiff’s absence from the trial and failure to testify live, the failure of the plaintiff to call her daughter to testify, and that the plaintiff, her daughters and her attorney fabricated the manner in which the plaintiff’s fall occurred.  During closing arguments, the plaintiff’s counsel never objected to any suggestion about the facts of this accident being fabricated.  The defendant opposed the plaintiff’s motion for a new trial.  On August 4, 2023, [...] heard oral argument on the motion for a new trial and denied the motion in its entirety, finding that the evidentiary rulings were appropriate, that the curative instructions given to the jury in regard to defense counsel’s comments during summation cured any prejudice to the plaintiff and that the verdict was supported by the evidence.
[brief] “Importance of public question” generally applied.  In Jacobs v. N.J. State Highway Authority, 54 N.J. 393, 396 (N.J. 1969), the court held that because “of the importance of the public question [of forced retirement] involved... there should be a decision on the merits. ”  In Rumana v. County of Passaic, 397 N.J. Super. 157, 171 (App. Div. 2007), a time bar for an appeal was not imposed because “the issues raised involve[d] significant questions of public interest” as to bond guarantees.
[directive] 10 08/07/41 474 (1)  [...] 35 02/02/66 1662 (8)  [...]  5 01/20/64 1550 (14)  [...] 70 07/28/60 1354 (2)  [...] 55 07/23/62 1474 (2)  Appendix to AG Directive 2021-8 | Page 4
[brief] [...] and [...], *Neuroscience and Death as a Penalty for Late Adolescents*, 7 Journal of Pediatric Neuropsychology 3, 4-7 (2021); [...] and [...] (2021), *supra*, at 1012; [...] et al.  (2018), *supra*, at 28-30; [...] et al.  (2016), *supra*, at 651-52; [...] et al., *When Does a Juvenile Become an Adult? Implications for Law and Policy*, 88 Temp. L. Rev. 769, 785-87 (2016); [...] et al.
[brief] [...]’s far-fetched interpretation also breaks fundamental rules of policy interpretation.  Through its painstaking analysis and application of settled New Jersey law, the trial court identified each and every fatal flaw in [...]’s misguided interpretation.  First, the trial court correctly held that [...]’s tortured reading causes the exception to swallow the exclusion, which is improper.  Da37a-Da38a.  See GTE Corp. v. Allendale Mut. Ins. Co., 372 F.3d. 598, 614 (3d Cir. 2004) (applying New Jersey law) (“the exception to [the]…exclusion cannot be construed so broadly that the rule (the exclusion) is swallowed by the exception.
[brief] Respondent filed a motion to enforce the settlement on January 17, 2024 which was heard on February 9, 2024.  (See 2T).  During oral argument, Appellant’s counsel admitted the matter had been settled, that the Release was approved and that he filed a Stipulation of Dismissal with Prejudice.  (See 2T, page 4, lines 15-22).  Further, Appellant’s counsel admitted that Appellant refused to sign the Release because he believes there may be a “new issue” since the franchisor, who Appellant never named as a party, made rent payments in accordance with an agreement reached between Appellant and the franchisor and then stopped.  Once again, Respondents were out of the picture at this point for a very long time.  Respondents had satisfied the judgment against them, a Warrant of Satisfaction was filed by Appellant, a settlement had been reached to conclude all remaining claims and a Stipulation of Dismissal with Prejudice had been filed.
[brief] 232a, ¶ 139.  The interview occurred over one month later, on April 13, 2021 (“Interview”).  [...] and [...] were also present during the Interview.  233a-234a.  At that time, [...] displayed a written complaint from Defendant [...], which allegedly had never been provided to Plaintiff and has still never been provided to Plaintiff.  234a, ¶ 147.  At the Interview, [...] referred to the four incidents as Incident A, Incident B, Incident C, and Incident D.  234a.  As to Incident A, Defendant [...] claimed that in the 2019-2020 school year, Plaintiff persistently asked her to change a student’s grade, prompting a loud verbal altercation in the hallway.  234a, ¶ 150-152.  Plaintiff denied the events that formed the basis of Incident A, stating to [...] that it never happened.  Id.  As to Incidents C and D, they occurred during the fall of 2020.
[brief] Kirzenbaum v. Paulus, 57 N.J. Super. 80 (App. Div. 1959) ...........................................  37 Malanga v. Twp. of West Orange, 253 N.J. 291 (2023) ........................................... 6, 31 MEPT Journal Square Urban Renewal, LLC v. City of Jersey City, 455 N.J. Super. 608 (App. Div. 2018) ................................................................. 19, 21 Merin v. Maglaki, 126 N.J. 430 (1992) ........................................................................ 19 N.J. Shore Builders Ass’n v. Twp. of Jackson, 199 N.J. 38 (2009) ........... 17, 23 New Jersey Shore Builders Ass’n v. Mayor and Twp. Comm. of Twp. of Middletown, 234 N.J. Super. 619 (Law Div. 1989) ................................................................. 33 United States v. O’Brien, 391 U.S. 397 (1968) .............................................. 36 Palamar Const. Inc. v. Pennsauken Twp., 196 N.J. Super. 241 (App. Div. 1983) .................................................................................. 36 Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344 (2011) ................................................................. 19, 20, 35 Princeton University Press v. Borough of Princeton, 35 N.J. 209 (1961) .................................................................................. 33 Quick Check Food Stores v. Springfield, 83 N.J. 438 (1980) ...............17, 18, 32 Riggs v. Long Branch, 109 N.J. 601 (1988) .................................................. 18, 36 S. Burlington Cty. N.A.A.C.P. v. Mount Laurel Twp., 92 N.J. 158 (1983) .................................................................................. 25, 26 Secaucus v. Jersey City, 19 N.J. Tax 10 (Tax 2000) ........................................  33 State v. Terrell, 452 N.J. Super. 226 (App. Div. 2016), aff’d, 231 N.J. 170 (2017) .................................................................
[directive] De-Activation on Instruction from Prosecutor.  Notwithstanding Section 5.3, an officer may de-activate a BWC when specifically authorized to do so by an assistant prosecutor or assistant or deputy attorney general for good and sufficient cause as determined by the assistant prosecutor or assistant or deputy attorney general.  When an officer de-activates a BWC pursuant to this Section, the officer shall narrate the circumstances of the de- activation indicating the assistant prosecutor or assistant or deputy attorney general who authorized the de-activation (e.g., “I am now turning off my BWC as per the instruction of assistant prosecutor (insert name).”).
[brief] The dismissal of the Appellant’s Complaint is based on her alleged failure to comply with the discovery process.  The Respondents have argued that dismissal with prejudice was necessary due to the lack of expert reports served by the Appellant, coupled with the fact that the discovery end date had lapsed.  The Appellant sought to re-open and extend the discovery process in order to serve the expert reports based on unavoidable circumstances.  These circumstances include the Appellant’s physical condition and the expert’s necessity for more time to review the Appellant’s ongoing medical treatment and records.  Due to the Respondents’ negligence, the Appellant continues to suffer from substantial pain and suffering.  As a result, it is very difficult for her to coordinate with her counsel in obtaining relevant information and documents.  In addition, the Appellant’s expert, [...], required additional time to draft his expert report due to the Appellant’s ongoing treatment to this day due to the negligence of the Respondents.  The additional and ongoing medical records were necessary for [...] to provide a final and accurate report.  The Appellant contends that the trial court failed to take these facts into consideration in dismissing her Complaint with prejudice.  Therefore, the various trial court Order dismissing the Appellant’s Complaint and denying her request to re-open and extend discovery must be reversed.