ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Under the Public Access Law, Monetary Contributions Cannot Satisfy Public Access Requirements (Responding to Appellants’ Point IV)**  [...] argues that any public access to its Property will not be reasonable or meaningful and that making a monetary contribution to the municipality for off-site public access is more appropriate in this case.  (Ab23).  But, contrary to [...]’s assertions, monetary contributions cannot satisfy public access requirements either under the Law or per the existing public access regulation, N.J.A.C. 7:7-16.9(k).  As the Commissioner noted, the text of N.J.S.A. 13:1D-153(a), which requires the DEP to review existing public access at the Property and then require additional public access, “leaves no room for the [DEP] to consider alternative arrangements, such as monetary contributions. ”  (Aa138).  In fact, the Commissioner noted that previously, in Hackensack Riverkeeper, Inc. v. New Jersey Department of Environmental Protection, 443 N.J. Super. 293, 313-314 (App. Div. 2015), the Appellate Division held that municipalities were not authorized to accept monetary contributions from permit applicants to satisfy DEP’s then-existing public access requirements.  (Aa138 n.10).  Due to that decision, the DEP amended its regulations to remove the provision allowing monetary contributions to satisfy public access requirements.  Ibid. (citing 49 N.J.R. 3145(a) (September 18, 2017)).  Thus, since the Law neither authorizes municipalities to accept monetary contributions from permit applicants nor authorizes the DEP to impose monetary contribution permitting requirements, [...] cannot make a monetary contribution to the municipality to satisfy the Law’s public access  Indeed, contrary to [...]’s assertion, the provision it cites for new, multi-family development (Ab30-31), requires onsite public access, not offsite access or a monetary contribution.  N.J.A.C. 7:7-16.9(k)(2)(iv). requirement.  Also, [...]’s challenge to the reasonableness of any public access requirement on the Property, including whether neighboring properties ought to provide sufficient public access alone (Ab29-32), is premature and beyond the scope of this case.  Quite simply, [...] has only recently submitted a public access plan to DEP to assess “the public access that is required” at the Property using the N.J.S. A. 13:1D-153(a) factors.\(^{11}\)  Thus, any challenge to the reasonableness of the required access is premature.  **E.
[brief] *Id.* at 103, quoting *Nicholas*, 213 N.J. at 486 (emphasis in original).  The Appellate Division also cited with approval *Lomando v. United States*, 667 F.3d 363 (3d Cir. 2011) wherein the Third Circuit held that the AOM affiant could not testify against the defendant doctors despite his expertise in the relevant disease, because the proffered expert did not share their specialty as required by N.J.S.
[brief] On August 18, 2023, [...] filed a Certification of Counsel wherein it sought an award of fees in the amount of $30,614.53.  (See Pa367, ¶10).  The Board and the Township opposed the application relying in part on a Certification of Township Professional Planner [...].  In addition, the Board submitted one exhibit as part of its legal brief.  (Pa395)²  In an effort to correct deficiencies noted in opposition, [...] filed a supplemental Certification of Counsel.  The hearing on [...]’s application for a determination of the amount of attorney’s fees and delay penalties came before the trial court with the Honorable [...], P.J.Cv. presiding³ on December 8, 2023.  At the conclusion of oral argument, the court reserved decision.  In an Order dated --- ²  Although the Exhibit not presented to the Trial Court by way of Certification, it is included herein; the exhibit is a ‘screen shot’ from a New Jersey Courts web page showing New Jersey licensed attorneys, and was then, and is presently submitted with request that the Court take judicial notice of the content in as much as it constitutes the Court’s own records.  ³  [...] retired in September 2023.  December 19, 2023, the court awarded attorney’s fees in the amount of $28,909.52, and awarded Delay Penalties in the amount of $112,000.  (Pa21)  The Planning Board filed a Notice of Appeal on September 21, 2023 (Pa407).  The Township filed a separate Notice of Appeal on September 21, 2023.  (Pa396)  The Planning Board’s motion to consolidate the appeals was denied.  This Brief by the Township as Respondent in this action is virtually the same Brief in support of its appeal in the separate action and is being filed in the event the appeals are considered by different panels.  **STATEMENT OF FACTS**
[brief] For 2023, the amount is $41 million, or a 3.66% increase.  (Id.)  This is before the Arbitrator’s Interest Arbitration Award for this Fire Officers negotiations unit.  The expired collective negotiations agreements between the [...] and the [...] (Captains, Battalion Chiefs and Deputy Chiefs) covered the period August 1, 2010 through July 31, 2019.  (Aa582-739).
[brief] Defendant/respondent submits that defendant/appellant intentionally cited certain phrases of the contract to confuse the issue at hand.  Defendant/appellant’s iteration of inapplicable case law throughout its brief is yet another attempt to dissuade this Honorable Court from affirming [...]’s ruling.  It is clear from the transcript of the motion that the court below recognized the standards that must be applied, as a matter of law, when considering the enforceability of indemnification provisions.
[brief] The playing field should not be further tilted in favor of insurers like [...] and against medical practitioners like [...] and [...].  **PROCEDURAL BACKGROUND**  [...] filed this lawsuit on March 15, 2023.  Pa305.  In April 2023, [...] and [...] (and the other co-defendants) moved to dismiss and compel arbitration of [...]’s claims (which were subsequently re-filed with a new, later return date).  While those arbitration motions were pending, on August 3, 2023, [...] moved to disqualify counsel for the Sood Defendants and counsel for the [...].  *Ibid.*  On October 24, 2023, the trial court held oral argument.  See T.¹  On October 27, 2023, the trial court denied [...]’s motion to disqualify both counsel.  Pa306, 310, 312, 316.  This Court then granted [...] leave to appeal, and [...] appealed.  Pa354, 357.  --- ¹  “T” refers to the transcript of oral argument dated October 24, 2023.  FACTUAL BACKGROUND
[brief] As to “evidence that the money was used for unlawful purposes,” this appears to be part of [...]’s contention that the COVID Statute requires that service providers receiving payments pursuant to it pay the wages of the employees who were laid off as a result of the school closures, and that any other application of the funds paid is “illegal. ”  Of course, the COVID Statute says nothing of the sort; it requires that the school district make payments “pursuant to the terms of a contract . . . as if the school facilities had remained open.
[brief] In some cases, a defendant’s alarmed reaction is asserted as justification for a stop, but in other cases, a defendant’s non-reaction is argued to form the basis for reasonable suspicion.  See, e.g., United States v. Escamilla, 560 F.2d 1229, 1233 (5th Cir. 1977) (explaining that the defendants’ decision not to “acknowledge the officers’ presence” cannot play any role in reasonable suspicion, in part because it would conflict with the court’s previous holding that repeated glances at officers were suspicious and “would put the officers in a classic ‘heads I win, tails you lose’ position”); cf. United States v. Sokolow, 490 U.S. 1, 13 (1989) (Marshall, J., dissenting) (noting that law enforcement profiles of drug couriers have a “chameleon-like way of adapting to any particular set of observations” (quotation omitted)).  In short, whatever individuals may do -- whether they do nothing, something, or anything in between -- the behavior can be argued to be suspicious.  Thus, as with race and sex, a suspect’s conduct can be a factor, but when the conduct in question is an ambiguous indicator of involvement in criminal activity and subject to many different interpretations, that conduct cannot alone form the basis for reasonable suspicion.  Even considering the closeness of [...]’s encounter with defendants in terms of spatial and temporal proximity to the robbery does not add significantly to the analysis of whether the stop was lawful.
[brief] Petitioner, [...], contends that there is no issue of fact to be contested.  The Judge of Compensation thoroughly reviewed the law and official promulgations in deciding her well founded decision that Decedent schoolteacher was an essential worker pursuant to NJSA 34:15-31.11 and that her surviving spouse and children are entitled to the presumption of occupational causation provided by that statute by virtue of definitional section (3) or (4) or both.  The decision of the Workers’ Compensation Judge should be affirmed as Decedent was properly determined to be an essential worker under the presumption statute.  The matter should proceed in the Workers’ Compensation Court.  Respectfully, [...].
[brief] ESTATE OF [...] : DOCKET NO. [...] (mother), Plaintiff-Appellant, vs.  HOME DEPOT  U.S.A. INC., Defendant-Respondent, and [...], JOHN DOES 1-5 (Unidentified entities or individuals that owned, operated, controlled, constructed, inspected, maintained and/or repaired the store where plaintiff fell), and ABC CORPORATIONS 1-5 (Unidentified entities that owned, operated, controlled, constructed, inspected, maintained and/or repaired the store where plaintiff fell), Defendants.  Civil Action ON APPEAL FROM THE SUPERIOR COURT OF NEW JERSEY, LAW DIVISION, MIDDLESEX COUNTY, DOCKET NO. [...]  SAT BELOW:  HONORABLE  [...], J.S.C. REPLY BRIEF AND APPENDIX (Pra1-Pra5)  SUBMITTED ON BEHALF OF PLAINTIFF-APPELLANT  On the Brief: [...], Esq.  TABLE OF CONTENTS  TABLE OF JUDGMENTS, ORDERS, AND RULINGS BEING APPEALED .................................................................  ii  TABLE OF APPENDIX ........................................................................................................ iii  TABLE OF CITATIONS ........................................................................................................ iv PROCEDURAL HISTORY AND STATEMENT OF FACTS ......................... 1 LEGAL ARGUMENT THE JUDGMENT SHOULD BE REVERSED BECAUSE THE CUMULATIVE EFFECT OF THE IMPROPER COMMENTS BY DEFENSE COUNSEL AND THE ERRONEOUS EVIDENTIARY RULINGS CLEARLY AND CONVINCINGLY RESULTED IN A MISCARRIAGE OF JUSTICE (Pa34; 1T12:9-14; 1T173:24-174:2; 1T174:4-16; 1T175:16-176:8; 1T177:5-21; 1T179:4-190:20; 1T203:1-14; 2T29:4-23; 2T30:21-35:12; 2T39:11-13; 2T40:10-18; 6T48:6-19) ............. 1 CONCLUSION ....................................................................................................................... 15 TABLE OF JUDGMENTS, ORDERS, AND RULINGS BEING APPEALED Oral Ruling Set Forth on the Record on June 5, 2023 and June 6, 2023 Denying Plaintiff’s Motion to Bar Evidence and Testimony Regarding the Plaintiff’s Handicapped Placard and Parking in a Handicapped Parking Space…………………………………………………………1T12:9-14; 2T40:10-18 Oral Ruling Set Forth on the Record on June 5, 2023 and June 6, 2023
[brief] Plaintiff/Appellant [...]  (“Plaintiff” or “[...]”) and Defendant/Respondent [...] d/b/a [...] (“Defendant”) entered into a fixed price contract related to the sale of pipe.  Plaintiff’s lawsuit arose from Defendant’s breach of that contract, i.e., Defendant refused to sell for the agreed upon price after fulfilling prior orders at the contract price.  Plaintiff now appeals the lower court’s order: (1) granting Defendant’s Motion for Summary Judgment and dismissing the entirety of Plaintiff’s Complaint based on a credibility determination on Plaintiff’s proof of damages; and (2) denying Plaintiff’s Cross-Motion for Partial Summary Judgment as to liability only with respect to Count I of Plaintiff’s Complaint (breach of contract).  Defendant filed a Motion for Summary Judgment arguing that Plaintiff had failed to produce evidence of damages arising from the breach of contract.  In opposition, Plaintiff produced documents and deposition testimony that support its claims and, more particularly, the over $600,000.00 in damages caused by Defendant’s breach of contract.  Further, Plaintiff produced a Certification from its president on the exact issues that Defendant chose not to ask about at depositions.  All of this evidence gave rise to issues of fact that the lower court ignored when granting Defendant’s Motion for Summary Judgment.  Even more importantly, in determining that Plaintiff had not failed to prove damages, the lower court made impermissible credibility determinations with respect to the witness testimony submitted by Plaintiff.  For these reasons, this Court should reverse the lower court’s order and allow this case to proceed to trial.  Finally, the lower court’s denial Plaintiff’s Cross-Motion for Summary Judgment as to Count I of Plaintiff’s Complaint – relating to liability on breach of contract – should be reversed.  There are no disputes of material fact on this issue, and Defendant is liable for breaching the fixed price agreement entered into between the parties.  STATEMENT OF FACTS
[brief] \(^5\)  \url{https://nvlpubs.nist.gov/nistpubs/ir/2012/NIST.IR.7842.pdf}  \(^6\)  This type of testimony gives the jury the false impression that there are no errors associated with latent fingerprint analysis.  But that is inconsistent with Olenowski’s requirement that scientific techniques that are the subject of expert testimony have valid error rates, even if inconclusive.
[brief] ” (Ca200-201).  Appellants provided a notarized certification of an eyewitness who stated that Respondent was asked to wear a mask in accordance with EO 251 and that she affirmatively refused and stated “I’m not wearing a mask. ” (Ca200-201, Ca204).  Appellants even provided photographic evidence of Respondent’s refusal to abide by EO 251's requirements for school board members.  (Ca222-223).  In fact, respondent even admitted in discovery that she affirmatively broke the law and she gave her reason why:
[brief] N.J.S.A. 17:33A-4 ..........................................................................................7  N.J.S.A. 17:33A-7(a) ........................................................................................................20, 21, 22 N.J.S.A. 34:19-5..................................................................................................................20  N.J.S.A. 39:6A-1 et seq......................................................................................................3  N.J.S.A. 39:6A-1.1(b).........................................................................................................26  N.J.S.A. 39:6A-3.1, -4, -5.1 .............................................................................................4  N.J.S.A. 39:6A-3.1(a) .......................................................................................................5  N.J.S.A. 39:6A-4..................................................................................................................6  N.J.S.A. 39:6A-5.1(a) .......................................................................................................passim N.J.S.A. 39:6A-5.1(c) .......................................................................................................4, 11, 13, 15 N.J.S.A. 39:6A-24................................................................................................................3 N.J.S.A. 39:6B-1 to -3.........................................................................................................3 N.J.S.A. 56:8-19..................................................................................................................20 N.J.S.A. § 34:11-56a25 ....................................................................................................20 Court Rules R. 2:2-3(b)(8) ...................................................................................................................2 Regulations N.J.A.C. 11:3-4.2 ................................................................................................................5 N.J.A.C. 11:3-4.6(b)..........................................................................................................5 N.J.A.C. 11:3-4.7 ................................................................................................................5 N.J.A.C. 11:3-5.1(a) .........................................................................................................10 N.J.A.C. 11:3-5.2 ................................................................................................................11 N.J.A.C. 11:3-5.6 ................................................................................................................7 N.J.A.C. 11:3-5.6(a)(2)-(4) .............................................................................................13 Other Authorities [...], *Third Circuit Overlooks Jurisdictional Problem in New Jersey Insurance Fraud Claims Decision*, N.J.L.J. (May 7, 2024)
[brief] ”  McCullough v. Hartpence, 141 N.J. Eq. 499, 501 (Ch. 1948); Nathanson v. Wagner, 118 N.J. Eq. 390, 393, 179 A. 466, 468 (Ch. 1935), cited in Armstrong, 20 N.J. at 328.  Thus, a party incurs liability when it has “unreasonably enhanced, accelerated, and concentrated storm water discharge onto” a neighboring plaintiff’s property.  Sheppard v. Twp. of Frankford, 261 N.J. Super. 5, 8 (App. Div. 1992).  “[L]ower land property owners have rights to relief for the unreasonable discharge onto their properties of storm water by others,” as “storm water engendered by hurricanes or other inordinately heavy rainfalls is reasonably foreseeable in assessing the unreasonableness of the conduct of the dischargers. ”  Id.  A party is liable for nuisance when its modification to the drainage system on its land increases the flow of stormwater runoff from a hurricane onto its neighbor’s property and causes detrimental flooding thereon.
[brief] State v. Eldakroury, 439 N.J. Super. 304 (App. Div. 2015) .................................3  State v. Robinson, 200 N.J. 1 (2009) .................................................................7  Stone v. Old Bridge, 111 N.J. 110 (1988).........................................................3  Strickland v. Foulke Mgmt. Corp., 475.  N.J. Super. 27 (App. Div. 2023)  ..........7  Thomas v. Bergen Cnty. Welfare Bd., 122 N.J. Super. 371 (App. Div. 1973)...4  Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC, 215 N.J. 242 (2013)  ..................................................................................1, 8, 9, 10, 15  Zaman v. Felton, 219 N.J. 199 (2014) ...............................................................7  Zamboni v. Stamler, 194 N.J. Super. 598 (Law Div. 1984) ............................4
[brief] This case is about Defendants’ continued efforts to take advantage of an obvious metes and bounds error and turn it into a land grab.  In 2016, Plaintiffs, Michael and [...] (“Plaintiffs”), who owned an 80’ wide parcel, purchased an adjacent 40’ wide parcel from then-neighbor and Defendants’ predecessor, [...], with the expressly stated purpose of making Plaintiffs’ lot 120’ wide and therefore subdividable by right.  The transaction and its intended purpose are reflected in numerous publicly available documents, dated and recorded in 2015 and 2016.  Defendants thereafter purchased, from Musto in 2017, what remained of the lot next to Plaintiffs’.  The dispute arises because certain documents contained a 1.33’ error, stretching the parties’ lots from a combined 185’ wide to a combined 186.33’ wide.  To be clear – land doesn’t stretch.
[brief] From its original enactment in 1869 to its more recent amendments in 1998 the purpose of the Railroad Immunity statute has been, “to absolve a railroad company from a duty to a trespasser”.  Egan v Erie R. Co. 29 N.J. 243 (1939)  Egan at 247-248 (quoting a prior version of the statute which was amended for reasons that do not bear on the instant point) stated that the “limited railroad immunity never protected railroads from lawsuits occurring at public crossings. ”  An exhaustive search of New Jersey case law regarding the application of N.J.S.A. 48:12-152 and the predecessor Railroad Immunity statute at a crossing established by a railroad did not yield one reported or unreported case where the immunity was granted when the plaintiff was at a crossing established by the railroad.  The one and only case that my search uncovered involving a crossing established by the railroad is David v West Jersey & S.R.Co. 84 N.J.L. 685.  (June 18, 1913)  In this case the immunity was held not to apply.  The Court wrote, “A reading of the proviso, without more, shows that the section has no application to the decedent who was engaged in crossing the railroad at a lawful public crossing. ”  Defendants will likely argue that any case law predating the 1998 statutory amendment is inapplicable.  But that is incorrect.  The 1998 amendment does not affect any of the arguments raised above as the exemption of persons on railroad crossings is still present in the latest amendment of this statute.  The 1998 amendment merely codified the contributory negligence standard which was eroded via prior caselaw which implemented a comparative negligence standard.  That contributory negligence standard is not in dispute.  The preceding Railroad Immunity statute and the current statute, N.J.S.A. 48:12-152, both explicitly articulate that persons should not deemed to be trespassers if they are crossing a right of way at a crossing established by the railroad.
[brief] The Board summarized its decision as follows:  “17.  …the Board determines that the criteria for the granting of the d(1) use variance, the d(4) FAR variance, and the c variance relief, and site plan approval should be denied.  Approval of the proposal, the Board finds, would substantially impair the intent and purpose of the Zone Plan and Zoning Ordinance and would violate Goals and Objectives detailed in the Master Plan.  A residential development with a structure less massive in scale than that which is proposed in the within application, would be more compatible with the surrounding area and more consistent with the land use plan. ”  Pa142 at ¶17.
[brief] This exact argument was made in the defense’s summation.  (16T: 24-12 to 25-12).  The defense clearly argued that [...] lost sight of the suspect and then later apprehended defendant, who the defense argued was a different person wearing similar clothing.  (16T: 24-12 to 25-12).  Ultimately, any error made by the trial court would only warrant reversal if it was more than harmless error.  State v. J.R., 227 N.J. 393, 417 (2017).  That is so because “[t]rials, particularly criminal trials, are not tidy things.  The proper and rational standard is not perfection; as devised and administered by imperfect humans, no trial can ever be entirely free of even the smallest defect.  Our goal, nonetheless, must always be fairness.  “A defendant is entitled to a fair trial but not a perfect one.
[brief] Plaintiff’s reliance on Manata v. Pereira, 436 N.J. Super. 330 (App. Div. 2014), is misplaced.  (See Pb21-24.)  Manata was a car accident case in which, as described by plaintiff in this case, “plaintiff’s counsel engaged in improper cross-examination when he confronted defendant with a police report that counsel did not offer in evidence, but whose substance he communicated the jury. ” (Pb21 (citing Manata, 436 N.J. Super. at 330). )