ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] BECAUSE THE STATED [sic] FAILED TO DEMONSTRATE CHAIN OF CUSTODY OF THE GUN PURPORTEDLY USED BY THE DEFENDANT, ITS ADMISSION CONSTITUTED REVERSIBLE ERROR.  U.S. CONST., AMENDS.  V, VI, AND XIV; N.J. CONST. (1947), ART. 1, PARS. 1, 10.  POINT III  THE FAILURE OF THE TRIAL COURT TO ADEQUATELY APPRIZE THE JURY OF THE NECESSITY OF RETURNING  A SEPARATE VERDICT AS TO EACH DEFENDANT IN THE TRIAL OF TWO BROTHERS WAS ERRONEOUS AND PREJUDICIAL NECESSITATING REVERSAL, U.S. CONST., AMEND.  XIV; N.J. CONST. (1947), ART. 1, PAR 10.  (Not Raised Below)
[brief] 12  [...] and [...] include noscitur a sociis in their discussion of "Contextual Canons," referring to it as the "associated-words canon," that is electric utility example, allowing "routine" to modify "upgrade" would plainly differentiate the upgrade of the transmission wires from the upgrade of the coal-fired plant, although we do not mean to suggest an opinion on whether either would be appropriate for the Preservation Area.  In that regard, we reject the Department and [...]'s contention that the limiting principle the Legislature imposed on the activities included in Exemption 11, including "upgrade," is not that they qualify as "routine," but that all must be consistent with the goals and purposes of the Highlands Act.  The Legislature has, to be sure, required the entire list of activities included in Exemption 11 to be "consistent with the goals and purposes" of the Highlands Act, N.J.S.A. 13:20-28(a)(11), but that is the case regardless of whether "routine" modifies every activity listed or only "maintenance and operations."  Because any activity undertaken by a public utility in the Preservation Area with regard to its "lines, rights of way, or systems" must be "consistent with the goals and purposes" of the Highlands Act in order to be "[a]ssociated words bear on one another's meaning."
[brief] However, not every distributor is a franchisee.  “What distinguishes a franchise from an ordinary distributorship is that the goodwill inherent in the name and mark attaches to the *entire* business of the seller, not just to the goods themselves. ”  *Lawmen Supply Co. of New Jersey, Inc. v. Glock, Inc.*, 330 F. Supp. 3d 1020, 1034 (D.N.J. 2018) (citing *Liberty Sales Assocs., Inc. v. Dow Corning Corp.*, 816 F.Supp. 1004, 1010 (D.N.J. 1993) (emphasis added)).
[brief] *Furst*, 182 N.J. at 21-22.  To elaborate further, in *Furst v. Einstein Moomjy* the New Jersey Supreme Court held:  We now consider defendants' challenge to the trial court's award of reasonable attorneys' fees in the amount of $28,050.00 and costs in the amount of $1,055.55.  In granting plaintiff's attorney-fee application, the court simply relied on the "reasons advanced" by plaintiff in his certification and in argument.  We cannot tell on this record whether the trial court applied the factors set forth in *Rendine*, supra, that govern an award of counsel fees in a fee-shifting statute.  We agree with the Appellate Division that a trial court must analyze the Rendine factors in determining an award of reasonable counsel fees and then must state its reasons on the record for awarding a particular fee.  *R. 1:7-4(a)* (requiring trial court to "find the facts and state its conclusion of law thereon in all actions tried without a jury").  [emphasis added]  In setting the lodestar, a trial court first must determine the reasonableness of the rates proposed by prevailing counsel in support of the fee application.
[brief] ”  208 N.J. at 217-18.  Watson’s holding grew directly out of Henderson and its progeny.  It is hard to characterize Watson’s substantive holding excluding first-time in-court identifications as “sudden and generally unanticipated” when Watson itself framed “the problems with first-time in-court identifications” as “underscore[d]” by “[s]ettled case law, scientific studies, and common sense.
[brief] 42 U.S.C. § 1988(b) ("In any action or proceeding to enforce a provision of [certain sections of the Civil Rights Act, including Section 1983], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs[.]").  As a matter of policy, the scope of counsel fees recoverable under the Civil Rights Act is purposefully broad.  That is intentionally so in order "to ensure effective access to the judicial process for persons with civil rights claims, and to encourage litigation to enforce the provisions of the civil rights acts and constitutional civil rights provisions."
[brief] For the Borough to point out each inconsistency would waste judicial time and resources, and therefore only a few of the several major discrepancies shall be discussed.  Indeed, the Trial Court agreed, stating:  However, the argument and information presented in movant’s papers, i.e., the certifications of [...] and former Mayor [...], does not provide the court with evidence warranting the relief now sought.  It is undisputed that the Settlement Agreement executed in this matter during November 2017 did not identify Redeveloper’s Off-Site Property located at Block 610, Lot 1, as the parcel specifically designated for the seven subject units.  The court concludes that there is nothing in the record presented which supports the somewhat extreme relief requested, that is, an order to compel the Borough to grant site plan approval (including variances) for the construction of seven affordable units on Block 610, Lot 1 without the Borough’s Land Use Board’s approval and without amendment to the Redevelopment Agreement.
[brief] The State also argues that the language of N.J.S.A. 39:4-126 should be construed in line with its “purpose,” which the State derives from the title of the section: “Signaling before starting, turning or stopping. ”  (Sb 23-24)  The Legislature has made clear, however, that the descriptive heading of a statute, more properly referred to as its “headnote,” is not a part of the statute itself.  N.J.S.A. 1:1-6; State v. Malik, 365 N.J. Super. 267, 279 (App. Div. 2003).  Consequently, “the descriptive heading does not control the statute’s interpretation. ”  Malik, 265 N.J. Super. at 280 (citations omitted).  The State fares no better in resorting to extrinsic evidence to support its interpretation of N.J.S.A. 39:4-126.  (Sb 25-30)  Relying on prior versions of N.J.S.A. 39:4-126, the State argues that the statute has, “[f]rom its inception in 1928,” consistently required motorists to signal before starting, stopping, backing or turning if another vehicle might be affected by the movement.  (Sb 28)  This proves, according to the State, that the Legislature’s use of the phrase “so turn” in the second sentence of N.J.S.A. 39:4-126 is shorthand for all the movements listed in the first sentence, including “mov[ing] right or left upon a roadway” and “start[ing] or back[ing].”
[brief] See Yellin v. Kassin, 416 N.J. Super. 113, 120 (App. Div. 2010).  The trio of cases Defendants rely upon have not only been rejected by modern courts, but are also substantially distinguishable.  A.J. & J.O. Pilar, Inc. v. Lister Corp., 38 N.J. Super. 488 (App. Div. 1956) (party to an express easement also sought to claim an easement by implication, causing the Appellate Division to caution that “judicial power” in such circumstances should be “exercised most cautiously” and “these are rational reasons why the proof of the requisite elements of an alleged implied grant should be clear and convincing” under those circumstances); Eileen T. Quigley, Inc. v. Miller Family Farms, Inc., 266 N.J. Super. 283 (App. Div. 1993) (claim for implied easement based on oral representation, which violated the statute of frauds); Leach v. Anderl, 218 N.J. Super. 18 (App. Div. 1987) (easement by necessity).  Here, the trial court did not expressly identify the burden of proof it applied, but the court’s opinion makes clear the overwhelming evidence easily satisfied either a clear and convincing or preponderance of the evidence standard.  Relying on the 1925 Plan, [...], the historical documents and advertisements, historical photographs, and expert reports “as a whole in a fair and common-sense manner,” the trial court correctly concluded the evidence supported the only possible legal result: [...] possessed an implied easement appurtenant.
[brief] *In re Farmers' Mut. Fire Assurance Ass'n of N.J.*, 256 N.J. Super. 607, 619–20 (App. Div. 1992) (quoting *In re Loans*, 124 N.J. at 78).  Because the DACCA is a civil statute, the less-stringent standard applies.  *Ibid.*  Applying this less-stringent test, the DACCA Attorney Safe Harbor is not unconstitutionally vague because it is not “substantially incomprehensible. ”
[brief] Further, “consideration ‘may consist of an act, a forbearance, or the creation, modification, or destruction of a legal relationship. ’”  Da46 (quoting Sipko v. Koger, Inc., 214 N.J. 364, 380 (2013)).  Here, the trial court properly found that at least three of [...]’ actions constituted consideration with respect to the Third Loan: (i) [...] agreed not to exercise his substantial enforcement rights under the Note that governed the First Loan (including his right to foreclose on the Mortgage -- a circumstance that [...] acknowledged would be devastating); (ii) [...] forgave the penalties still due under the First Loan and forgave all of the accrued interest due under the Second Loan -- forgiveness of approximately $30,000 of the total debt then owed by Defendants as of the date of the Closing; and (iii) [...] discharged the Mortgage that secured the Guarantee so that [...] could close his refinancing transaction that day.  Da47.  The trial court’s findings of fact are amply supported by the record and cannot properly be disturbed.
[brief] Finally, plaintiffs rely on the indemnification provisions in the leases in support of their argument that any or all of the tenant defendants had some sort of contractual obligation to them.  The indemnification provision in [...]' lease is set forth in the statement of facts, *supra.*, at paragraph 10.  (Pa505, Pa870)  It is entitled "Indemnification of Lessor."  It clearly imposes an obligation upon [...] to indemnify [...] for “any damage or injury...to any person...occurring on the demised premises or any part thereof, and Lessee agrees to hold Lessor harmless for any claims for damages, no matter how caused. ”  It does not create a contractual obligation to plaintiffs.  Plaintiffs’ settlement with [...] rendered this contractual obligation moot.  (Da3-4)  This language does not provide plaintiffs with a remedy against [...].  Moreover, paragraph 10 of the lease clearly states that [...] was obligated to indemnify [...] for injuries “occurring on the demised premises, or any part thereof...no matter how caused. ”  This provision, as stated, makes sense and is consistent with New Jersey law.  The landlord should not be responsible for accidents occurring on the rented portions of the premises, as it has relinquished control of those areas to the tenants.  See e.g., Michaels v. Brookchester, Inc., 26 N.J. 379, 382 (1958)  Conversely, this provision does not obligate [...] to indemnify [...] for accidents or injuries that occur on or in the common areas of the property that remain under the control of the landlord.  See e.g., McBride v. Port Auth. of N.Y. and N.J., 295 N.J. Super. 521, 525 (App. Div. 1966)  [...] bought its peace for accidents and injuries occurring in the common areas of the property by paying its pro rata share of the maintenance and insurance charges for those areas.  As set forth above, the subject accident occurred in the strip mall parking lot, clearly a "common area" under the terms of the lease.  The indemnification provision should be construed as written, Longobardi v. Chubb Insurance Company, 121 N.J. 530, 537 (1990), and the summary judgment in favor of [...] should be affirmed.
[brief] *Rule 4:46-2*  **POINT I**  **THE TRIAL COURT CORRECTLY RULED THERE WAS INSUFFICIENT EVIDENCE THAT THE RESPONDENT SIGNED AN ARBITRATION AGREEMENT (2T P47-P59; 1a)**  This appeal challenges the Court’s factual conclusions the arbitration agreement, or multiple agreements presented by the Appellants lack credibility.  The court rejected the Appellants argument and ruled the agreement lacked the requisite authenticity.  [2T P56]  After reviewing the record and hearing the witnesses the Court expressed concerns regarding the credibility of the Appellants’ witnesses and the authenticity of various documents presented in court.  “…there’s way too many discrepancies for me to say that –you know, without—clearly that [...] waived her right to a jury trial, a fundamental right that is made available to all litigants. ”  [2T P56:L21-25]  The findings of facts by a trial court having the opportunity to see, hear and question witnesses live in Court, should be given due deference.
[brief] (Da120-Da121).  In its oral decision, the trial court issued five separate findings—any one of which alone is sufficient to dismiss the Counterclaim: 1.  The Concession Recovery Provision was not a liquidated damages clause (2T20:8-9); 2.  Even if it could be construed as a liquidated damages clause, it was not unreasonable nor an unlawful penalty (2T20:9-22:7); 3.  Appellants failed to demonstrate that [...] engaged in any abusive or unconscionable commercial practice under the CFA (2T25:2-31:1); 4.  Appellants ratified the Concession Recovery Provision, barring their ability to pursue a fraud claim (2T28:4-12); and 5.  Appellants failed to satisfy the requirements of Rule 4:32-1(b) to proceed as a class action (2T14:8-17:2).  On December 19, 2023, Appellants filed their Notice of Appeal and Case Information Statement.  (Da122-Da125).  LEGAL ARGUMENT I.
[brief] There would have been no basis in law or fact for the Trustee to pursue [...] for his profits, and the Defendants could not possibly have a claim against the Trustee for failing to pursue that which was not pursuable.  “The prescribed measure of duty requires a fiduciary to exercise…that degree of care and caution, skill, sagacity, and judgment, industry and diligence, circumspection and foresight that an ordinarily discreet and prudent person would employ in like matters of his own and in the same or similar circumstances. ”  In re Estate of Beales, 13 N.J. Super. 222, 228 (1951).  Certainly, a trustee’s duty of care does not require that they pursue meritless claims.  It seems to be the Defendants’ position that [...] deprived the Trust (and therefore [...] and [...]) of proceeds that could have been brought into the Trust had the Trust sold the Property directly to the [...].  This was not an opportunity that ever even existed, because of the Defendants’ own refusal to entertain a sale to the [...], the listing of the property, or anything other than their own purchase of the Property (which they sought to accomplish for less than its appraised value).  The other claims against the Trustee in the Second Supplemental Complaint border on the completely nonsensical, but will be briefly addressed.
[brief] Summary judgment is proper when the motion record shows “that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. ”  R. 4:46-2(c).  A genuine issue of material fact exists when the motion materials, “viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. ”  *Brill v. Guardian Life Ins. Co.*, 142 N.J. 520, 540 (1995).  The appellate court’s review of a trial court’s summary judgment order is de novo.  *Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.*, 224 N.J. 189, 199 (2016)(citing *Mem’l Props., LLC v. Zurich Am. Ins. Co.*, 210 N.J. 512, 524 (2012)).  As a result, the trial court’s analysis is not entitled to any special deference.  *Manalapan Realty, LP v. Twp. Comm. of Manalapan*, 140 N.J. 366, 378 (1995).
[brief] State v. Olenowski, 255 N.J. 529, 609 (2023) (emphasis added).  The limits of N.J.R.E. 702 are not about credibility.  They are about reliability.  These are two distinct concepts.  Just as with DRE evidence, limits must be placed on how fingerprint testimony is presented to the jury.  Moreover, it is not the job of the defense to defuse unreliable testimony through cross examination or by proffering an alternative expert.  As the “gatekeeper” of which evidence is allowed in at trial, the trial court is responsible for making sure that superficially appealing but unscientific evidence never makes its way to the jury, even if it is subject to cross-examination.
[brief] R. 4:46-2.  Summary judgment is intended to provide a prompt and businesslike disposition of actions that involve no dispute of essential fact and to cut through frivolous allegations in order to present a matter to the court in its true light and save the time and expense of protracted suit.  Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520 (1995); Golden v. N.W. Mutual Life Ins. Co., 229 N.J. Super. 405, 413 (App. Div. 1988).  To survive summary disposition, the nonmoving party must show the existence of a genuine issue of material fact through competent evidential materials.  Robbins v. Jersey City, 23 N.J. 229, 241 (1957).  Bare assertions, representations or allegations in pleadings without affidavit or other proper evidentiary support will not defeat summary judgment.  See R. 1:6-6, 4:46-2(c); Robbins, 23 N.J. at 241; James Talcott, Inc. v. Shulman, 82 N.J. Super. 438, 443 (App. Div. 1964).  Creating a dispute of fact of an insubstantial nature does not preclude summary judgment.  See Prant v. Sterling, 332 N.J. Super. 369, 377 (Ch. Div. 1999), aff’d, 332 N.J. Super. 292 (App. Div. 2000).  It is well settled that the mere occurrence of an accident does not prove any negligence on the part of a defendant.  Allendorf v. Kaiserman Enterp., 266 N.J. Super. 662, 670 (App. Div. 1993).  There is a presumption against negligence by the defendant and whether an accident is the result of negligence is a fact that must be proven by the plaintiff with competent admissible evidence.  See Buckelew, 87 N.J. at 525 (citing Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139 (1951)).  Plaintiff has not identified a single material fact in dispute to warrant this Court overturning the Law Division’s grant of summary judgment.  Plaintiff admitted nearly all the City’s facts supporting summary judgment in his opposition papers and did not provide any additional facts of his own in opposition thereto.  (Ra10-12; Ra16-33.)  Instead, in Paragraph 3 of “Plaintiff’s Statement of Material Facts,” Plaintiff argued that the trial should consider his extremely late expert reports (i.e., in particular his Arborist, [...]), admitting it was untimely.  (Ra13-14.)  This is not a proper basis to appeal the grant of summary judgment by the trial court or the denial of a fifth (5th) request to extend discovery.  More so, even though it could have, the --- 3Plaintiff bears the burden of persuasion; it is not satisfied by guess or conjecture; rather, the evidence must be such as to demonstrate that the offered hypothesis is a rational inference, that it permits the trier of fact to arrive at a conclusion grounded in a preponderance of the probabilities according to common experience.  See Biunno, Current N.J. Rules of Evidence, comment 5 on N.J.R.E. 101(b)(1) (2009), at 37.  trial court considered and did not bar any discovery (including Plaintiff’s untimely expert reports) in granting summary judgment.  The trial court considered the entire record and still found it insufficient for Plaintiff’s claims against the City to withstand summary dismissal.  POINT II
[brief] ”  Lipsky v. New Jersey Ass'n of Health Plans, Inc., 474 N.J. Super. 447, 463 (App. Div. 2023) (citing Brugaletta v. Garcia, 234 N.J. 225, 240 (2018) and quoting Cap. Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80 (2017)).
[brief] “They haven’t been the worst inmates, okay?  They’ve shown some maturity.  So these kinds of elements would be considered in the parole application…You got another year, wait and make your parole application…and parole will consider all these same things again and whether or not they should be released. ”  (5T93-1 to 4; 86-17 to 21)  The court thus denied [...] relief not based on any finding that he had failed to become rehabilitated, but on the belief that he will have his “meaningful opportunity to obtain release” via parole.  This decision – delegating [...]’s opportunity for relief to the Board instead of granting such relief itself – was improper.  Thomas, 470 N.J. Super at 196.  Moreover, the court failed to provide any reasoning to support its erroneous finding that a parole hearing – which is a non-adversarial proceeding conducted by members of the executive branch where defendants are not entitled to counsel and will likely not have the benefit of expert testimony – would be a better venue for addressing the constitutional infirmity of [...]’s sentence than an adversarial hearing before a presumably neutral member of the learned judiciary.
[brief] Even assuming that Plaintiff’s allegations of discrimination on the basis of her disability and retaliation for making internal complaints and seeking legal advice are true, the only evidence Plaintiff provides to support these allegations amounts to questionable action at best.  As set forth above, in cases involving public entities, the trial judge “must scrutinize with great care the amount of the award to determine whether it is proportionate to the harm suffered by the plaintiff. ”  Pritchett, supra, 248 N.J.  at 108-113.  In the instant matter, the jury awarded Plaintiff $1,000,000.002 in punitive damages.  By contrast, Plaintiff has proffered no evidence besides the testimony of a psychologist to support any allegations of harm suffered.  Further, she is still employed by Appellants.  Her allegation that the [...] stipend was taken away from her was limited to the allegation of religious discrimination based on testimony and pleadings, so it is inapplicable to the issue at hand.  Based on the forgoing, the award of punitive damages is clearly disproportionate to the harm alleged by Plaintiff and bears no reasonable relationship to the harm alleged.  Further, the heightened scrutiny required to be undertaken by the Court in reviewing this award makes it evident that the award is excessive, incongruous with the evidence and the result of mistake or other error by the jury.
[brief] [...]’s conduct in this case was in fact virtually identical to that in a stop and search he had conducted two years earlier in which the Appellate Court of Illinois found that this officer (whom it specifically named in its decision) had acted unlawfully in searching a pick-up truck bearing Nevada license plates traveling eastbound on Interstate 80, allegedly for exceeding the 70 m.p.h. speed limit by 3 m.p.h., resulting in the discovery and seizure of 73 pounds of marijuana.  See People v. Kruckenberg, 2019 Il App. 3d 170505 (2010) (Da66).  In that case, Veryzer based his subsequent belief that he possessed “reasonable suspicion” to conduct the subsequent canine search, on his observation of two “auxiliary fuel tanks,” one of which was mounted to a metal plate rather than the bed of the truck; the [...]’s “minimal luggage” in relation to the length of the trip; his residence in Reno, Nevada, an area from which the majority of marijuana seized on Rte. 80 originates; his belief that a heavy duty truck was “one of the least economical ways to travel;” and the distances between his stated destinations in Illinois.  (Id. at 32; Da69).  The court, citing United States v. Cortez, 449 U.S. 411, 417 (1981), rationally rejected that the “totality of the circumstances” justified the free-air canine sniff that subsequently occurred.  (Id. at 33; Da69).  In the instant case, as in Kruckenberg, [...] stopped a vehicle for a motor vehicle infraction for which, as he advised the driver, he was going to issue a “warning.