ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] If "with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death [,]" the question must be determined by the jury under appropriate instructions.  *Rogers*, supra, 352 U.S. at 506-07.  The Supreme Court has described the test for causation under FELA as "whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury.  . . ."  *Ibid.*  Therefore, the case must be submitted to the jury "when there is even slight evidence of negligence," *Harbin*, supra, 921 F.2d at 131, whether or not the evidence would also reasonably permit the jury to attribute the injury to other causes as well.  *Rogers*, 352 U.S. at 506.  "Consequently, 'the quantum of evidence required to establish liability in [a] FELA case is much less than in an ordinary negligence case.'"  *Kapsis v. Port Auth. of New York and New Jersey*, 313 N.J. Super. 395, 403, 712 A.2d 1250 (App.Div.1998).
[brief] [...], ESQ.  (262541970)  Of Counsel and On the Brief  [...], ESQ. (155122015)  On the Brief Date Submitted: August 7, 2024  TABLE OF CONTENTS  TABLE OF CONTENTS  ...........................................................................................................  i  TABLE OF JUDGMENTS, ORDERS, AND RULINGS BEING APPEALED ................................................................. iv TABLE OF AUTHORITIES ..................................................................................................... v  PRELIMINARY STATEMENT .................................................................................................  1  PROCEDURAL HISTORY AND COUNTERSTATEMENT OF FACTS ..................................................................................  3  A. General Background .......................................................................................................  3  B.  The CZM Rules And The Redevelopment Ordinances ..............................................  4  1.  The Scenic Resources And Design Rule .................................................................  4  2.  The Redevelopment Ordinances And The Redevelopment Plan Amendment .................................................................  5  C.  [...]’s CAFRA Application ..................................................................................  7  D.  The Department’s Denial Of The CAFRA Application ..............................................  9  E. [...]’s Request For Reconsideration And Administrative Appeal Of The Denial ..................................................................................  10  F.  The Settlement Agreement Between [...] And The Department .................................................................  12  G.  The Department’s Issuance Of The CAFRA Permit To [...]..  14  H. Appellant’s Appeal From The Permit ...........................................................................  15 LEGAL ARGUMENT ...........................................................................................................
[brief] Zoning boards are deemed “best equipped to determine the merits of variance applications. ”  Scully-Bozarth Post #1817 of Veterans of Foreign Wars of the U.S. v. Planning Bd. Of the City of Burlington, 362 N.J. Super. 296, 314 (App. Div. 2003).  In his Opposition to Motion for Summary Disposition (“Opposition”), --- 1
[brief] PRELIMINARY STATEMENT  This is a case that concerns conduct that occurred more than twenty years before the filing of the underlying lawsuit, involving title to property and two brothers on opposing sides.  Plaintiff [...] claims that Defendant, his brother [...] a/k/a [...], sold him a certain piece of real property in Jersey City, back in 1997 and that he has been the clear owner since then.  Defendants argued that the initial sale was fraudulent, and the deed was reverted to Defendant [...] in 1998.  [...], prior to his passing, sold the property to [...], a corporation owned by his sons.  Plaintiff initiated this action after learning that the property in question was transferred.  The trial court sided with the Plaintiff, holding that the property rightfully belonged to Plaintiff [...].  The court also made a number of factual findings.  However, the trial court overlooked several legal factors, namely, statute of limitations, and the unclean hands of the Plaintiff.  The trial court offhandedly dismissed the statute of limitations argument, and failed to even analyze Defendant’s unclean hands argument, which is one of Defendants’ important arguments.  These legal arguments form the basis of the Defendants’ appeal.  Plaintiff has also filed a cross-appeal.  Part of the Plaintiff’s claim was Defendants’ alleged fraudulent conduct.  The trial court found that the Plaintiff failed to prove legal or equitable fraud against the Defendants.  Plaintiff/Cross-Appellee also argues that the court improperly denied the Plaintiff damages based upon fraud, unjust enrichment, and fraudulent conveyance.  There are all points that the trial court thoroughly analyzed and ruled against.  The trial’s decision was improper because, legally, the case should have never been allowed to go forward due to the Statute of Limitations for real property issues.  Furthermore, any fraudulent conduct was initiated by the Plaintiff and the Plaintiff approached this litigation with unclean hands.  However, the trial court was correct to note that the Defendants did not commit fraud or any unethical behavior.  For the following reasons, Defendants/Appellants asks this court to reverse the trial court's decision, and grant the property to Defendant [...].  **PROCEDURAL HISTORY**
[brief] (Pa031 – Pa047).  Accompanying the Complaint is an Affidavit of Merit from a purported expert witness who “holds widely recognized professional insurance designations. ” (Pa050).  Plaintiff’s proposed expert echoes the allegations made in the Complaint as to “professional standards or practices of the insurance industry. ” (Pa051).  Without waiving any rights to challenge the Affidavit of Merit or Plaintiff’s proposed expert, the accompanying *curriculum vitae* demonstrates that insurance brokers undergo extensive professional learning and erudition to maintain their licenses – specifically, the education, designations, and the licenses needed to work as an insurance broker in New Jersey.  (Pa051 – Pa052).
[brief] (Db30).  It was only after that that the prosecutor did the exact same thing: used defendant’s known writing from his Miranda warnings to compare to the writing on the letters.  (14T:155-17 to 156-15).  Trial errors that “were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal....”  State v. A.R., 213 N.J. 542, 561 (2013) (citation omitted).
[brief] [...]’s entire case consists of the following: two (2) unsigned, handwritten quotes from [...]; and thirteen (13) checks allegedly issued to [...] to purchase the specific types and quantities of Schedule 40 pipe as set forth in the Subject Contract.  Moreover, extensive deposition testimony has provided no further evidence or information to support the fact and even the possible existence of any damages.  [...]’s facially inadequate “documentary evidence” is legally insufficient to prove (a) that the specific materials were actually purchased from [...]; (b) the precise quantity of materials that were allegedly purchased; or (c) whether the specific materials were ever actually received from [...] in relation to the two (2) unsigned, handwritten quotes and thirteen (13) checks.  Tellingly, and fatally for [...], the record on appeal is completely devoid of any competent and supporting documentary evidence (no signed purchase orders, no signed invoices, no receipts, no account balance statements, no proof of payments, no packing/delivery slips, no type of inventory of the specific types and amount of material allegedly received from [...], or any form of acknowledgement) that would allow a rational factfinder to award [...] any damages.
[brief] A.  If we and a **covered person** disagree as to: 1.  Whether the **covered person** is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle; or 2.  The amount of damages that the **covered person** is legally entitled to collect from that owner; then that disagreement may be arbitrated provided both parties so agree.\(^1\) (Pa94).  --- \(^1\)
[brief] (22T 214-15 to 215-11)  [...], who had prior convictions for burglary, gun and drug possession, and --- 7 [...] testified that he learned in his investigation that people on stage were heard to say, “G’s up,” which was understood to refer to the “[...]” who are “arch rivals” of the [...].  (9T 163-10 to 19, 164-20 to 165-8; 10T 206-17 to 207-16) hindering (22T 221-15 to 224-6, 251-8 to 253-18, 258-17 to 260-18), testified that when [...] started to perform, “a little commotion broke out.  [[...]] didn’t understand what it was about” (22T 217-22 to 25), but the people from Newark were throwing up gang signs (22T 219-21 to 24).  When [...] stepped off the stage, about a dozen people confronted him and his friends and threatened to “‘smoke one of you crab-ass (N-words).’” (23T 116-5 to 13)  [...] explained that “crab is a term for a Crip” (23T 158-1 to 2), and testified that he was not a member of the Crips or any gang.
[brief] Pa192.  [...] held that the Division did not violate the collective bargaining agreement when it relied on annual Treasury Circulars to calculate the overtime rate for [...] members instead of following the language contained in the contract.  Pa192.  Notably, [...] acknowledged that the language contained in the parties’ collective bargaining agreement is “plainly and simply clear. ”  Pa192.  The [...] filed a Verified Complaint and Order to Show Cause to vacate the Kendellen Award.
[brief] During the hearing on [...]’s suppression motion, the prosecutor asked [...] to describe the traffic on the road at the time of [...]’s unsignaled lane change.  (1T 17-17 to 19)  When Manzo described the traffic as “medium,” the prosecutor followed up by asking if there were “cars in both lanes of Route 22” in the direction that [...] was traveling, to which Manzo responded, “Yes. ”  (1T 17-20 to 18-1)  The purpose of these questions was undoubtedly to make a factual record about the lawfulness of the stop.  Indeed, in its written decision, the trial court evaluated the lawfulness of the stop under N.J.S.A. 39:4-126 before moving on to the lawfulness of the search.  (Da 5-6)  Relying on [...]’s testimony about traffic conditions at the time of [...]’s lane change, the court found that the officers had reasonable and articulable suspicion that [...] violated the traffic laws by failing to signal prior to changing lanes.  (Da 5-6)  Because there is a factual record on this issue and a ruling from the trial court, this Court may properly consider whether the trial court’s decision was supported by credible evidence in the record.  Cf. State v. Witt, 223 N.J. 409, 419 (2015) (holding that appellate review of an issue raised for the first time on appeal was inappropriate where the trial court did not rule on the issue in the first instance).  Upon consideration, this Court should conclude that it was not.  See Db 20-23.  **CONCLUSION**
[brief] Firstly, the State’s sole argument in support of the court’s refusal to credit [...]’s good conduct as rehabilitation was based upon evidence that was not part of the record.  When imposing a sentence, courts may only base their decisions upon “findings of fact that are grounded in competent, reasonably credible evidence,” Roth, 95 N.J. at 364, and “[s]peculation and suspicion must not infect the sentencing process[.]”  Case, 220 N.J. at 64.  In consideration of [...]’s rehabilitation, numerous facts demonstrating [...]’s rehabilitation were provided to the court as a formal part of the record, and are not in dispute.
[brief] Tamburelli Props. v. Cresskill, 308 N.J. Super. 326, 335 (App. Div. 1998) .................................................. 40, 41 Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Velantzas v. Colgate-Palmolive Co., Inc., 109 N.J. 189, 193 (1988) ...........................................
[brief] However, this ignores the fact that the charge was read immediately after the jury had been read the charge on own-conduct-robbery, which did set out the distinction between 1st and 2nd degree.  (26T136:5-138:13; 26T144:15-145:19.)  Surely, the jury would not have forgotten the element of 1st degree Robbery that was read to them only a moment before.  Thus, it is appropriate to infer that jury was able to understand what the law required to sustain a 1st degree conviction for accomplice liability robbery.  Even if this court finds that the jury should have been instructed again on the 1st degree robbery element in the context of accomplice liability and that the failure to do so constitutes error; there can be no question that the elements for 2nd degree robbery accomplice liability were clearly set out.
[brief] \textit{Johnson}, 226 N.J. at 389 (second alteration in original) (quoting \textit{Cruz v. Cent. Jersey Landscaping, Inc.}, 195 N.J. 33, 48–49 (2008)); see also \textit{Maeker v. Ross}, 219 N.J. 565, 577–78 (2014) (“take effect immediately” did not indicate retroactive intent (quotation marks omitted)).
[brief] (Da38).  On September 25, 2018, [...] of the [...] firm filed a Motion to Intervene and a Certification in support of the same, in the action under [...], on behalf of [...].  (Da42).  The Certification of [...] stated that [...]’s attorney, [...] declined to consent to intervention by [...].  (Da44).  [...]’s Certification also noted that, on July 20, 2018, he responded to [...]’s letter of July 16, 2018 asking [...] to reconsider his position.  (Da44).  However, [...] declined to reconsider his position.  (Da44).  On September 26, 2018, [...] entered an Order of Dismissal with prejudice under Docket No: [...], under R. 4:85-1.  (Da46).  The Order was accompanied by a rider of [...] finding in favor of [...].  (Da46).  An appeal was taken from [...]’s decision, and the Appellate Division rendered a decision in *The Matter of [...]*, [...] (App. Div. September 25, 2019).
[brief] Officers observed bullet marks on the front windshield, a broken driver’s window, cigarette butts, broken glass, and five shell casings stamped with “Win 40 S&W. ” (6T118-1 to 16).  The Scion was impounded and searched pursuant to a valid warrant, wherein officers noted suspected bullet holes on the vehicle dashboard and front passenger seat; bullet fragments found in the vehicle interior, the back of the front driver’s seat, under the driver’s seat, the dashboard, and the rear passenger seat; and partial latent fingerprints on the exterior driver and passenger doors and ---
[directive] Personnel records are separate and distinct from internal affairs investigation records, and internal affairs investigative reports shall never be placed in personnel records, nor shall personnel records be co-mingled with internal affairs files.  When a complaint has a disposition of exonerated, not sustained or unfounded, there shall be no indication in the employee's personnel file that a complaint was ever made.  9.12.2  Where a complaint is sustained and discipline imposed, the only items to be placed into the employee's personnel file are a copy of the administrative charging form and a copy of the disposition form.  See Appendix M for a sample form (Note: Civil Service jurisdictions must use forms authorized by the Civil Service Commission).  No part of the internal affairs investigative report shall be placed in the personnel file.  64  INTERNAL AFFAIRS POLICY & PROCEDURES | August 2020  10
[brief] Plaintiffs and Defendants are five of the seven members of Englewood Cliffs’ governing body.  Plaintiffs’ goal is to prohibit Defendants from voting on matters relating to former Borough of Englewood Cliffs attorney, [...].  The 2023 election in Englewood Cliffs included three local offices: mayor and two council seats.  During their campaign as the Republican candidates, the Defendants engaged in political communications to residents criticizing Wunsch.  In retaliation, Wunsch filed a defamation lawsuit against the Defendants.  The Defendants won the November 2023 election and took their respective offices in January 2024.  Plaintiffs allege that Wunsch’s lawsuit creates a conflict of interest for defendants, that should prevent them from voting on the Plaintiffs’ motion to rehire Wunsch.  Plaintiffs’ sole allegation is that Defendants’ votes against re-hiring Wunsch’s to represent the Borough in litigation violated the Local Government Ethics Law (“‘LGEL’”).  N.J.S.A. 40A:9-22.1 to -22.25.  The current Borough Council includes three members in favor of rehiring Wunsch and three members against doing so.  Consequently, [...], as mayor, holds the tie-breaking vote.  He also opposes rehiring Wunsch.  As a result, Wunsch was not rehired by Englewood Cliffs.  Plaintiffs want to prevent the Defendants from voting on matters related to Wunsch to facilitate Wunsch's rehiring in spite of the desire of the majority of the members of the governing body.  If the Defendants are prohibited from voting on motions, a minority group of the governing body would rehire Wunsch.  Wunsch and his supporters are leveraging his defamation lawsuit to hinder three members of the governing body from participating in votes relating to Englewood Cliffs’ official business.  The trial court judge found Defendants voting on matters violated the LGEL.  It erred in doing so because the LGEL affords exclusive jurisdiction to govern and guide the conduct of local officials with the Local Finance Board in the Division of Local Government Services in the Department of Community Affairs.  Despite this, [...] found the Defendants’ votes were improper due to their alleged conflict with Wunsch despite lacking subject matter jurisdiction.  It is clear the trial court was without jurisdiction to make such a determination, and that judicial review of matters relating to the LGEL is limited to review pursuant to Rule 2:2-3(a)(2).  STATEMENT OF FACTS
[brief] (3T11:16-18).  He checked defendant’s mouth to make sure that there were no foreign objects, provided him with the New Jersey standard statement refusal form verbatim, and began a 20 minute continuous and uninterrupted observation period.  (3T11:18-2).  During this time, defendant did nothing to impair the validity of the Alcotest readings.  (3T11:24 to 3T12:3).  [...] then took a fresh mouthpiece and read the form next to the Alcotest and instructed defendant on how to properly provide a breath sample.  (3T12:9-12).  Defendant provided three samples.
[brief] In regards to the BAC, defendant was informed of the increased penalty due the BAC and that, “[a]ny potential prosecution for DWI in excess of Alcotest result of .15, would require the imposition of an interlock device and potential suspension of registration privileges for a period of one to three years after your initial driver’s license suspension. ” (1T:4-4 to 4-9).  Having this knowledge, defendant acknowledged that his BAC was subject to increased penalties and answered in the affirmative after his first response was inaudible:  THE COURT:  Luckily it's a first offense, but it's at a higher tier level.  So there will be a mandatory fine from — up to $500, loss of driving privileges, the imposition of the DWI surcharge, the VCCB and the safe neighborhood surcharge, optional imposition of jail, and imposition of the interlock devise.  Do you understand that these are serious penalties, even today you have the right to apply for the appointment of public defender.  Knowing all this you want to waive your right and proceed, is that correct?  [...]: Yes.  (1T:7-5 to 7-17).  Based on the record in this case, [...] properly found that defendant explicitly admitted that he had drank half a pint of vodka and got behind the wheel of his vehicle.  [...] also found that defendant acknowledged that he understood that his BAC in this prosecution was subject to increased penalties.  Defendant acknowledged that he understood the charges and penalties and thereafter, continued to own up to his actions.
[brief] Deposition of [...], September 9, 2021 at p. 178, l. 11-14, Pa91.  In fact, Barresi testified he believed the reason he was not told that [...] and [...] left the business is because they knew Barresi would have wanted some substitute equity for a release.  Deposition of [...], p. 177, l. 18 to 24.  Pa90.  On March 7, 2019, Barresi filed a complaint against [...] for eviction.
[brief] Notwithstanding the fact that the payments represented exactly what the Statute required of [...], it later passed a resolution rescinding authority for the making of the payments, demanded of [...] that the funds be returned and filed suit against [...] seeking judgment against it for the amount of those payments, as well as punitive damages.  [...] then had little choice but to assert its counterclaim for the amounts that [...] had withheld from it for the periods of April and July 1-6, 2020.  It could not be more evident that, to the extent that any bona fide dispute exists here, the outcome of that dispute turns on whether the COVID Statute required [...] to make the payments it did, as well as the payments for April and July 2020 which it continues to withhold, and which are represented by the lower court’s judgment.
[directive] Payment for these services is subject to the terms and conditions of signed contracts 9 and in accordance with Federal Acquisition Regulations (FAR).  I.  Payment of overtime salaries, travel, fuel, training, equipment, and other similar costs of state or local law enforcement officers that are incurred in joint law enforcement operations with Department of the Treasury law enforcement organization (See a EOAF Directive 18, dated October 1994).  7, J. Guidelines  Payments made pursuant to promulgated by the Secretary of the Treasury, such payments are necessary and directly related to seizure and fbrfeiture program if expenses.
[brief] And as you know, under the theory of accomplice liability, it doesn't matter who's doing what.  If three people are working in concert, and this jury obviously believed that at this point, at least two of them were, certainly [...] as well as [...] who were both found guilty of conspiracy and first-degree robbery, okay, that they were working in concert.  Although one person might be carrying the gun, it doesn't make that other person less culpable if they are participating in and acting in the course of a robbery.  [(9T 13:9-19). ]
[brief] The purpose of the TOA Rule is to balance rights of developers against those of municipal governing bodies to pass legislation that is responsive to the needs of its citizenry, which is precisely what [...] did here.  In particular, the TOA Rule is designed to protect developers from changes to development regulations made after a complete application is filed; it does not protect developers who file incomplete applications – as in Dunbar, supra – or as here, who tarry and only file after the law changes.  The TOA Rule does not give a developer an exemption from new legislation that is in effect simply because the developer undertook some work in furtherance of its project before the legislation took effect, or because some of the substantive information necessary for the application is on file somewhere in the municipal building.  Instead, the TOA Rule exempts developers from new legislation when their applications for development are complete, as *Dunbar* held.
[brief] “He wasn’t a bookkeeper.  He wasn’t an accountant.  He wasn’t running the company.  That was more of [...]’s role. ” (26T9:23 to 10:4).  As the trial court later explained: [...] “was the scientist.  There is no doubt in my mind that he was out [the financial] loop. ” (27T86:16-17).  Second, the trial court found that: “what really led to all of this, was in April of 2019, [...] received a tax notice from the New Jersey Department of the Treasury indicating an audit of his 2015 tax return and that there was tax owed of $98,038.