ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Moreover, the dispute in *Fieramosca* involved an applicant trying to avoid a condition that the planning board clearly had placed on its approval, but was inadvertently left out of the memorializing resolution.  *Id.* at 528.  While the court noted that post-meeting letters also confirmed that the applicant had been aware of the condition, it explained that although a resolution is “evidential of what was considered at the hearing, it is not determinative[,]” and that “[t]he record is the best evidence of what the board considered and decided. ”  *Id.* at 532, 534 (citation omitted).  Given this, the trial court found that “the record of the hearing of August 27, 1996, at which time the Board made its decision, supports the conclusion that the Board intended to condition its approval ....”  *Id.* at 535.  Thus, in addition to not being binding here, *Fieramosca* provides no factual support for Appellants’ motion to expand the Governing Body’s record to include the WARD Memo and the Planning Board Transcript.
[brief] Courts routinely take judicial notice of a weather-related state of emergency and the lower court’s failure to do so was an abuse of discretion.  Defendants submit that the probative value of the weather-related state of emergency outweighs any prejudice to plaintiff.  Here, the state of emergency, particularly in its recitals, demonstrates the severity and significance of the storm by referencing hazardous travel, severity of the weather conditions, and the fact that it may impede normal operations of private and public entities.  The defendants’ entire theory of defense is premised upon the reasonableness of the defendants’ actions given the severity and significance of the snow storm.  Plus, even if the recitals of the Executive Order on the state of emergency were not referenced, the mere fact that one was entered on March 6, 2018 through March 13, 2018 should have been something that the court judicially noticed.  The fact that the state of emergency was ordered and lasted for more than six days is a fact that is undisputed and ordinarily judicially noticed.  Plaintiff has not presented any evidence showing that juries misconstrue a state of emergency or attribute additional meaning to it beyond what it entails.  Likewise, plaintiff has not cited to any caselaw affirming the decision not to take judicial notice of a weather-related state of emergency in a snow related fall down case.  In addition, had the court taken judicial notice of the state of emergency, presumably plaintiff could have questioned its weather expert regarding the exact meaning of a weather-related state of emergency.  The fact that the court wholesale excluded any reference to the state of emergency was a clear abuse of discretion when such weather-related conditions and states of emergency are routinely noticed, an undisputed material fact, and particularly relevant to this matter.
[brief] ECPO Crime Scene Detective [...] photographed the scene and recovered ten spent shell casings.  (7T80-13 to 24; 7T113-5 to 6).  He processed the casings for fingerprints with negative results.  (7T100-14 to 15; 7T101-9 to 11).  No viable fingerprints were recovered from the black Navigator next to [...]’s body.  (7T109-19 to 20; 7T110-5 to 22).  Detective Harris discovered bullet holes in [...]’s Honda CRV on the exterior and interior of the driver’s door, and the exterior and interior of the passenger door.  (7T129-20 to 25; 7T130-6 to 14; 7T131-5; 7T132-22 to 133-20).  A bullet was not recovered inside because it essentially exited the vehicle.  (7T135-9 to 16).  A blood swab was taken from the car.  (7T137-12 to 15).  ECPO Detective [...] examined the ten .223 caliber shell casings recovered at the scene.  (9T54-21 to 8; 9T59-24 to 60-14).
[brief] Plaintiffs' claimed losses relate only to loan agreements executed on behalf of the corporation ([...]), and it is undisputed that [...] was the source of the allegedly diverted funds.29  Moreover, the Individual Plaintiffs are not even shareholders of [...].  They are members of the [...], which in turn owns 100% of [...].  (Da672).  The [...] is subject to the above rules for maintaining a shareholder action.  The Individual Plaintiffs are subject to those rules at two different levels (1) whether the [...] has the ability to bring a direct action for wrongs allegedly done to [...], and (2) whether Plaintiffs may bring direct actions for losses the [...] allegedly sustained by virtue of --- 27 Ibid.  28 Ibid; See also N.J.S.A. 42:2C-68 (member may bring derivative action to "enforce a right of a limited liability company.")  (Without getting into the details, the law also imposes, as a prerequisite to maintaining a derivative action, that the shareholder/member must plead and prove that they make a demand to the management of the corporate/LLC, unless demand is futile.  Tully at 125; N.J.S.A. 14A:3-6.3(demand/corporation); N.J.S.A. 42:2C-68(demand/LLC); See also Rule 4:32-3.  Plaintiffs failed to do so, which is an independent reason why they cannot maintain this action).  29  1T and 2T. being shareholder of [...].  Based on New Jersey law, none of the Plaintiffs in this lawsuit can recover.  The claims as alleged belong to [...] – not the Plaintiffs in this lawsuit:
[brief] “Another element is malice, which has to be either express or implied. ”  Rogers Carl Corp. v. Moran, 103 N.J. Super. 163, 168 (App. Div. 1968).  “Malice is defined as the intentional commission of a wrongful act without just cause or excuse. ”  Mayflower Indus. v. Thor Corp., 15 N.J. Super. 139, 152 (Ch. Div. 1951), aff’d, 9 N.J. 605 (1952).  The proofs in this case showed that prospective refinancee [...] tried to put the refinance through, and was willing to accept a court discharge of the lien upon refinance (as required by title insurer, [...]).  Yet the Plaintiff “[...]” and [...] would not agree to this – despite knowing that the 2009 default/foreclosure assignment was incorrect and wrongful, and harming the [...].  The [...] lost the [...] refinance due to the inactions of Plaintiff and [...] (the loan servicer).  As noted, plaintiff’s own witness, [...], testified at the July 11, 2022 bench trial that only loans that are in default or foreclosure are assigned to a trustee for a trust.  [...] declared that the [...] have never been in default and never missed a loan payment.  Yet the [...]’ loan was fraudulently assigned to a trustee for a claimed trust in 2009 for default/foreclosure enforcement – and was assessed $250,000 in “advance fees” over the years because of this.  Plaintiff and [...] did nothing to cure this wrongful notation of default and foreclosure - - and everything possible to thwart all refinance attempts the [...] made.  They also concealed the real cause of fees.  The malice and slander of title continued even by the time of the chancery trial.  Plaintiff and [...] failed to disclose to the Chancery court that foreclosure related fees in the sum of approximately $250,000 were attached to the [...]’ loan, and were placed in a [...] by which advances have priority and must be paid first prior to any loan balance being deemed satisfied (A609, A415, A893).
[brief] The only relation 2011 has to the property damage at the site is that is that date that the trial court determined that [...]’s insurance companies were obligated to reimburse [...] for its past investigation and remediation costs and provide coverage for future costs.  Finally, [...] argues this Court should not consider 1986 as an end date for the allocation period because it “was not raised below by [...] in objections to the SAM’s R&R.
[brief] (Da336)  These reports analyzed and assessed the impacts of the easement and the new seawall project on the [...].  [...]’s study included the review of substantial data.  (Da333, 334, 502)  [...] inspected the property and vicinity.  He examined aerial photographs of the property and vicinity pre and post project construction.  He reviewed the project construction plans, typical cross-section plans, and as-built drawings.  He examined pre-construction and post-construction geometry.  He reviewed contour mapping of the beach and near shore elevations, including the existing rock groin in the shore break at Valentine Street.
[brief] ” (Da231-232, ¶10).  Fifth, each of the eleven (11) plaintiffs claimed in their complaint that they were told maintenance fees would not increase.  (Da78, ¶25; Da84, ¶39; Da88, ¶52; Da94, ¶69; Da98, ¶84; Da104, ¶99; Da108, ¶113; Da112, ¶126; Da117, ¶142; Da122, ¶156; and Da127, ¶174).  Notwithstanding the fact that the one-page Owner Acknowledgment Form and the Public Offering Statement provide that an owner should expect maintenance fees to increase (Da228-229, ¶4), five (5) of the plaintiffs admitted that no oral misrepresentations regarding maintenance fees were told to them.
[brief] In *Tompkins v. Selip & Stylianou, LLP*, 2019 U.S. Dist. LEXIS 21937, at *7-11 (D.N.J. Feb. 11, 2019) (Dra32), the District Court held that defendant debt buyer’s attempts to collect an alleged debt while unlicensed under the NJCFLA supported claims under the FDCPA.  *See also Id.* at *2 (collecting cases within the District of New Jersey holding that “a debt collector's failure to obtain a license pursuant to the [NJCFLA] can constitute a violation of the FDCPA”).
[brief] RESPONDENT as owners of the property request that the Appellate Court affirm the decision of the trial court, and render the Contract terminated.  We further request a Discharge of the Lis Pendens.  If the Appellant Court reverses the decision of the trial court, Respondents seek that the issue of condition precedent be preserved for further examination by the trial judge.  Date: May 2, 2024  Respectfully Submitted  [...] (No. 011421983)  Law Office of [...] [...], [...] [...] [...]  [...]  Attorneys for Defendants-Respondents-Cross Appellants
[brief] ”  (Pa9.)  But the trial court did not convert the motion prior to oral argument or disposition.  Instead, the trial court sent the following letter to [...] prior to oral argument:  The Court is in receipt of [...]’s correspondence regarding Defendant’s cross-motion to dismiss Plaintiff’s complaint.  [...], please advise the Court if you are requesting more time to --- \(^5\) Reply brief omitted from appendix.  R. 2:6-1(a)(2). respond to Defendant’s motion.  Otherwise, the Court is ready to proceed with oral argument this Friday, April 12, 2024 at 11:00AM.  (Pa213.)  [...] replied as follows:  We represent Plaintiff in the above complaint in lieu of prerogative writs.  Thank you for your April 9, 2024 letter.  To answer your letter, Plaintiff is prepared to proceed to argument on April 12, 2024 on Defendants’ “cross-motion to dismiss” and the prerogative writ.  If the Court converts the “motion to dismiss” to one for summary judgment then we would file additional papers.  We do not see the need or efficiency in such conversion.  As set forth already, everything submitted by Defendants is in the record below and is properly before the Court as a prerogative writ.  Thank you for your courtesies.  (Pa214.)  The trial court held oral argument on April 12, 2024.
[brief] * * *  The burden of proof is upon those who attack the ordinance to show clearly that it is unreasonable.  *Kanter v. Passaic*, 107 N.J. Super. 556, 369 (1969).  Here the Defendant has failed to meet that burden.  The Defendant alleges that § 201-2A “Prohibited Nuisances,” the Township’s nuisance ordinance is void for vagueness.  In support of such, the Defendant falsely alleges that the subsection is unconstitutional because it lacks specificity as to the prohibited behavior.  The Defendant continues to state that the nuisance statute “does not arm individuals with any knowledge as to the prohibited conduct. ”  The Defendant’s argument is unworthy of any merit as § 201-2B specifically states “[f]or purposes of this chapter, the following specific things, conditions and acts, each and all of them, are hereby defined and declared to be nuisances:” and continues to enumerate sixteen (16) detailed definitions of conduct constituting a nuisance.
[brief] The burden of proving the positive and negative criteria of the Municipal Land Use Law, N.J.S.A. 40:55D-70d, remains the same.  *Cox & Koenig, New Jersey Zoning and Land Use Administration* (Gann), §33-2.1.  Defendant [...]’s Brief p. 17  The burden of proof at the zoning board hearing has absolutely nothing to do with the required notice to the public under the M.L.U.L.  The public was entitled to know what the current use was and what the intended use of the “accessory structure” was going to be and that a nonconforming use was going to be significantly expanded.  That the current use of the Property was nonconforming should be a fact made known to the public as part of the Notice.  The issue of the burden of proof has no application to the required notice under N.J.S.A. 40:55D-11.  The [...] seeks to have this Court wander down a dead-end path with its pretzel logic.  Appropriate public notice is a jurisdictional requirement.  *Twp. Of Stafford v. Stafford Twp. Zoning Bd. Of Adjustment*, 154 N.J. 62, 79 (1998); *Oliva v. City of Garfield*, 1 N.J. 184, 190 (1948).  Unless proper notice is given the Board does not have jurisdiction to hear the Application.  *Twp. Of Stafford v. Stafford Twp. Zoning Bd. Of Adjustment*, supra at 78.  Without proper notice the Board’s decision can have no effect.  The Notice being defective, the Board’s approval of the [...]’ “use variance” is null and void for want of jurisdiction.
[brief] (Da901 to 904; Da923, 934; Da938 to 946)  [...], as owner of adjoining Lot 8, was noticed and actually participated in the hearing.  The Approval Resolution (Da894) confirms that the insufficiency and/or lack of adequate parking on Lot 5 for the School’s own requirements was addressed and found approvable based on the representation, with the concurrence of the [...], that the School “will have the benefit of parking facilities on adjoining properties owned by the [...] should additional parking facilities be required. ”  (Da945)  Thus, it was represented by [...], that the insufficiency of parking for the School’s own needs on Lot 5 would be mitigated by parking spaces being made available on the other nearby properties then owned by [...].  No representation or claim was made then by the [...] that any areas or parking spaces on the deficient School site were perpetually committed for the [...] Lot 8 parking.  That failure to assert any parking right in that 1972 site plan process certainly precludes any such claim 40 years later, in 2012.
[brief] The record demonstrates that “[...] has avoided and minimized impacts to Highlands resources in the siting and design of the facilities. ” (Aa330).  The Property is a historically disturbed, former quarry that consists of few natural resources.  (Aa64; Aa79; Aa200-205).  For instance, because of the historic disturbances, the site is “characterized by invasive species and small, isolated patches of forested areas. ” (Aa197-211; Aa330).  Only one area of trees of approximately two acres is considered a “forest” by DEP’s rules.  (Aa206; Aa330).  Thus, [...]’s security fence installation that requires the removal of less than a tenth of an acre, or twenty-three trees, was a de minimis impact on the resource, (Aa206-208; Aa329-330), which [...] is mitigating by replacing an equivalent area of trees.  (Aa71; Aa195-196; Aa330).  Similarly, because of the former quarry operations, open waters, riparian areas, and critical wildlife areas are disconnected and cut off from respective resource areas outside the Property.  (Aa64-66; Aa330).  The only intrusion within Highlands open water buffers or riparian zones is 285 feet of a preexisting gravel access road which has been regularly used since the 1960s.  (Aa69; Aa329-330).  And [...] is also minimally affecting steep slopes, rare, threatened, and endangered plant and animal species habitat, and historic and archaeological areas.  (Aa69-72; Aa74-77).  Thus, the Project will cause minimal impacts to Highlands resources and [...] is mitigating those minor impacts.
[brief] The Ricci Act in relevant part permitted active or retired members of the SPRS to file for a recalculation of Ordinary Disability, Service, or Special Retirement Benefits to Accidental Disability Retirement Benefits provided they participated in the rescue, recovery, or cleanup operations at the World Trade Center Site.  (Pa10).  The Ricci Act also created a presumption that the disability of the member or retiree “occurred during and as a result of the performance of the member’s regular or assigned duties and not the result of the member’s willful negligence unless the contrary can be proved by competent evidence. ”  (Pa10).  1  Because the procedural history and facts are closely related, they are combined for efficiency and the court’s convenience.
[brief] (11T4-14 to 5-5; 11T11-19 to 21).  The Decedent also told her friend [...] about the existence of the Agreement.  (10T99-2 to 6).  After the Decedent died, [...] retrieved a copy of the Antenuptial Agreement from some boxes in the Decedent’s house, and handed it over to the Respondent (11T52-2 to 3; 11T55-25 to 56-20).
[brief] N.J.S.A. 56:12–15.  See, e.g., Weller & Lichtenstein v. Jersey City, Hoboken & Paterson Ry., 68 N.J. Eq. 659 (E.&A. 1905); Goldfarb v. Reicher, 112 N.J.L. 413 (1934); see also DiTolvo v. DiTolvo, 131 N.J. Super. 72, 79 (App. Div. 1974) (Pb17-18)  Plaintiff bases her position on Weller and Goldfarb, to support the proposition that the “attempted assignment of defendant’s right of action, or of the moneys to become due when the claim was reduced to judgment, is nugatory. ”  See, Weller, supra., and Goldfarb, supra.  (Pb18)  Plaintiff further argues that there are only two ways to change this: 1) by statute, Goldfarb, supra., citing Weller, supra.; or 2) by the Supreme Court overturning Weller and Goldfarb, both of which “have never been overturned. ”  Nixon v. Lawhon, 32 N.J. 351, 355 (App. Div. 1954) (Pb.18-19)  Plaintiff further argues that the Trial Court erroneously relied upon Ladenheim and Cronin because: 1) two Appellate Division cases cannot overrule the Supreme Court/Court of Errors and Appeals; (Pb17) 2) Ladenheim dealt with an “equitable lien”, which "is a case different in kind than the present case”; (Pb14) and 3) Cronin improperly relied upon a Law Division case, *Berkowitz v. Haigood*, 256 N.J. Super. 342 (Law Division 1992) to approve of assigning pre-settlement funds.  (Pb16-17)  Plaintiff is incorrect for several reasons: 1) the Trial Court cites a statutory basis for the assignment of pre-settlement proceeds; 2) the Supreme Court has approved assignment of pre-settlement personal injury proceeds without benefit of statute and without overturning *Weller* and *Goldfarb*; and 3) it is not always necessary to overturn the opinions of Supreme Court/Court of Errors and Appeals to change public policy.
[directive] for apply or acomplaint-summons issue to whether decision a for apply or issue prosecutor to a by made is determination the where case any In other the apply shall instead prosecutor the indictment, or arrest before complaint the of results upon the on depend not do that 4 Section in forth set provisions/presumptions feasible when shall prosecutor addition, the In 8.. note See assessment. risk pretrial automated Identification Interstate or NCIC/CCH an making history by criminal defendant's the ascertain direct- many in that noted be should verification.
[brief] Exhibit H is a letter from Plaintiff’s attorney urging the Administrator to explore numerous transactions, including some in Hawaii.  (Da41)  (4)  Exhibit J is the Administrator’s April 3, 2017 letter responding to numerous requests for continued searches.  The Administrator explains, among other things, that Hawaii is beyond the jurisdiction of the New Jersey proceeding.  (Da51)  (5)  Exhibit K is Plaintiff’s counsel’s five-page, single spaced letter responding to the Administrator’s April 3 letter, in which Plaintiff’s counsel urges the Administrator to continue to investigate.  (Da61)  (6)  Exhibit N is an eight-page single-spaced letter signed by the Plaintiff in which he attempts to convince the Administrator to keep searching for additional assets.  (Da67)  This pressure, including the pressure to investigate alleged Estate assets in [...], was a significant reason there were some differences of opinion between Defendant and the Administrator.
[brief] (Ra6-40).  These materials fall short of the statement of material facts, affidavits, and other competent evidentiary materials that are required in a summary judgment motion.  Moreover, petitioner's motion papers did not establish that there are no disputed issues of material fact.  [...]'s Executive Order does not state that a teacher is an essential employee.  The "Essential Employees" document is from a federal agency that has no power to enact any statute or regulation that addresses the compensability of a New Jersey worker's compensation claim.  The CISA Advisory Memorandum states that earlier versions were meant to assist officials and organizations identify essential work functions and to allow essential workers access to their workplace.  However, allowing access to the workplace differs from conferring a presumption of compensability in the context of a worker's compensation claim.  The CISA Memorandum is merely guidance on the essential, critical infrastructure workforce, but certainly does not conclusively resolve the issue of whether a teacher is an essential worker.
[brief] And witnesses may not base their testimony on inadmissible evidence.  See *State v. Frisby*, 174 N.J. 583, 592 (2002) (finding that the defendant’s trial was tainted by a testifying witness’s reliance on inadmissible evidence).  Indeed, these requirements are set forth in N.J.R.E. 702 and N.J.R.E. 703, which govern the admissibility of expert testimony.  Townsend v. Pierre, 221 N.J. 36, 53 (2015).  Expert testimony must be offered by one who is “qualified as an expert by knowledge, skill, experience, training, or education” to offer a “scientific, technical, or . . . specialized” opinion that will assist the trier of fact, see N.J.R.E. 702, and the opinion must be based on facts or data of the type identified by and found acceptable under N.J.R.E. 703.
[brief] [...], [...], and [...] are Terminated.  After the investigation was completed, [...] convened a “termination panel. ” (Pa91 at 26:14-25).  Termination panels typically comprise of the Human Resources business partner for the employee’s particular department, the assistant-Vice President for Human Resources, in-house counsel, and the employee’s manager or director.  (Pa91).  No singular termination panel member has final decision-making power.  (Pa91-92 at 29:19-30:6; Pa354 at 45:16-46:8; Pa354 at 47:17-22).  [...] could not independently terminate an employee’s employment.  (Pa354 at 45:12-15).  After carefully considering the evidence from [...]’s investigation, the termination panel elected to terminate [...], [...], and [...].  (Pa92 at 30:3-6; Pa116 at 127:19-128:12; Pa369 at 108:16-18; Pa91 at 29:19-25).  [...] was saddened by the decision and did not want to lose two-thirds of her staff during the middle of the COVID-19 pandemic, but [...] had no choice other than to accept the decision.  (Pa370 at 109:12-110:10).  [...] was notified of her termination on September 14, 2020.  (Pa554).  [...] and [...] informed [...] that her employment was being terminated for her unauthorized entry of charge pay for other staffing coordinators, “resulting in theft of hospital funds. ” (Pa554; Pa249 at 94:13-19).  LEGAL ARGUMENT I.