ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] TABLE OF JUDGMENTS, ORDERS AND RULINGS  Decision of The Honorable [...], April 13, 2023 (8T)  Order of Judgment, July 25, 2023................................................................Pa6  *TABLE OF APPENDIX  Notice of Appeal, filed October 4, 2023......................................................Pa1  Order of Judgment, July 25, 2023, with Prejudgment Interest Calculation......................................................Pa6  *  The Briefs and exhibits contained within this appendix are submitted pursuant to R. 2:6-1(2) as they are germane to the appeal and were relied upon by the trial court.  Order granting Motion to file Appeal as Within Time, filed October 23, 2024.................................................................Pa9  Order granting Motion for Extension of Time to Appellant’s Brief, Filed, February 26, 2024..............................................................Pa10 Order granting Motion for Extension of Time to File Appellant’s Brief, Filed, March 25, 2024..................................................................Pa12 Plaintiffs’ Complaint, filed July 21, 2015........................................Pa14 Defendant [...]’s Answer to Plaintiff’s Complaint, filed on or about August 13, 2015...............................Pa25 Plaintiff’s letter dated June 30, 2022, and Proposed Order Of Judgment..................................................................................Pa30 Letter from [...], dated June 16, 2022, with Workers’ Compensation Calculations...........................................................Pa34 **Workers’ Compensation Payment Listing.....................................Pa35 Opposition to Plaintiffs’ Proposed Order Entering Judgment, dated July 6, 2022...........................................................................Pa45 Exhibit A – Order, redacting [...]’s transcript, Filed September 3, 2021.................................................................Pa50 Exhibit B - Order to Bar Admission of Medical Expenses at the Time of Trial, filed September 3, 2021....................Pa52 Exhibit C – Letter from [...] denying Benefits, dated April 12, 2016, Entered at Exhibit D-11...............................Pa55 ** The Worker’s Compensation Listing, attached hereto as Pa35-44, is attached in the format and manner in which it was submitted to the trial court and also as submitted by Defense in its appendix to its Appellate response brief for Leave to appeal.
[brief] See Millman v. U.S. Mortgage Title Guaranty Co., supra, at 35-36, citing Trenton Passenger Railway Co. v. Cooper, 60 N.J.L. 219, Court of Errors and Appeals, June 28, 1897.  The plaintiff’s proffer fell squarely within the aforesaid exception to the exclusion, and its preclusion by the trial court denied the plaintiff the opportunity to present highly relevant, truthful information that properly should have been available for the jury’s consideration.  Following counsels’ openings, based upon defense counsel’s statements informing the jury that they would hear from the defendant’s expert that it is impossible to slip and fall as [...] claimed, plaintiff requested to revisit the issue of introduction of defendant’s remedial measures in mopping the area and placing the slip hazard sign, arguing that such actions evidenced the defendant’s own belief and lay opinion that the floor was indeed slippery, and supported the plaintiff’s allegations that the puddles where she had fallen created a dangerous slip hazard resulting in her accident.
[brief] -At bar, there is no evidence presented, in admissible form that [...] had a duty to maintain the area of the parking lot where plaintiff allegedly slipped and fell.  To the contrary, all evidence presented, in admissible form, establishes that [...] had no duty to maintain the area of the parking lot where plaintiff allegedly slipped and fell.  -In the instant action, plaintiff was not an invitee of [...] and he confirmed that he had no intention of entering or exiting [...]’s leased premises.  Therefore plaintiff could have no expectation that safe passage would be afforded from the parking lot to [...]’s leased premises.  -[...] had no duty to maintain the route plaintiff traveled when returning from his vehicle to [...] since plaintiff was not using the route he chose to enter or exit [...]’s leased premises.  -Here, the location of [...]’s expected route was not a route [...] would have taken to enter or exit [...]’s leased premises and, moreover, [...] admits he had no intention to patronize [...]’s business at the time of the accident.  -In addition, the condition of the parking lot area where plaintiff allegedly fell was not a condition which [...] might reasonably remedy since [...] paid [...] Common Area Expenses for [...] to maintain the parking lot area where plaintiff allegedly fell and [...] admitted that it had no expectation that [...] would maintain the area of the parking lot where plaintiff allegedly slipped and fell.  -In the instant action, [...] was a tenant in a multi-commercial tenant shopping mall that did not have control or maintenance responsibilities for the common area where plaintiff allegedly slipped and fell and had no contractual obligation to maintain that area.  Moreover, applying the *Kandrac* supra, principles the Court should find that it is undisputed that plaintiff was not a patron of [...] on the day of the accident, and therefore he was not [...]’s business invitee.  There is no evidence in admissible form that an alleged risk of injury posed by the alleged condition of the parking area where plaintiff allegedly slipped and fell would have been observable by [...], in the exercise of a reasonable inspection since there is no evidence that [...] was responsible for inspecting the area where plaintiff allegedly slipped and fell.  POINT III
[brief] Ibid.  As observed in the opinion itself, the situation in Tucker was singular.  Of note was the absence of any other factor besides the flight; there was no knowledge of the defendant’s criminal history, no suspicious conduct, nor an indication that it was a high crime area.  Id. at 161-62.  The Supreme Court noted in Tucker that, in light of the stipulated facts, the problem with the case was that the Court was “forced to deal in abstract concepts of seizure divorced from the reality of the streets.
[brief] When imposing a sentence, a court must consider the applicability of the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1 to determine the length of a defendant’s prison term within the available range.  This step requires a court to “identify the aggravating and mitigating factors and balance them to arrive at a fair sentence. ”  State v. Natale, 184 N.J. 458, 488 (2005).  “Mitigating factors that are called to the court's attention should not be ignored and when amply based in the record . . . , they must be found,” State v. Case, 220 N.J. 49, 64 (2014) (internal quotation marks and citations omitted).  Aggravating factors must be grounded by “competent, credible evidence in the record. ”  Id. at 67.  Moreover, simply enumerating the applicable aggravating and mitigating factors is insufficient.  *State v. Kruse*, 105 N.J. 354, 363 (1987).  Rather, a court’s sentencing decision must “follow[] not from a quantitative, but a qualitative analysis. ”  *Ibid.*  In order to ensure proper balancing of the relevant factors, at the time of sentencing, a court must “state the reasons for imposing such sentence, including . . . the factual basis supporting a finding of particular aggravating and mitigating factors affecting sentence. ”  *State v. Fuentes*, 217 N.J. 57, 73 (2012).
[brief] C.  [...]’s prior convictions were inadmissible because their probative value does not outweigh their prejudicial effect.  Rule 609(b)(1) only permits the admission of a conviction older than ten years if the State meets its burden of demonstrating that the probative value of the conviction outweighs its prejudicial effect.  Here, the State failed to meet that burden.  Furthermore, the trial court erroneously determined that [...]’s prior convictions were not remote, therefore it made no findings regarding the relative prejudice and probative value of the convictions and failed to consider the relevant factors set forth in Rule 609(b)(2).  Had the court properly considered the relative prejudice and probative value of [...]’s remote prior convictions under Rule 609(b), it would have found that the convictions were inadmissible because they are less probative of his credibility than they are prejudicial.  The State did not, and could not, carry its burden of establishing that [...]’s convictions were more probative than prejudicial.  Rule 609 permits the admission of a defendant’s prior criminal convictions for the sole purpose of attacking the defendant’s credibility.
[brief] Here, the ESI Order is unduly invasive and burdensome because it will require Defendants to expend hundreds of thousands of dollars on additional rounds of privilege and confidentiality review for 68,000 irrelevant documents and will also force Defendants to produce this irrelevant material that is not just unrelated to the subject matter of the litigation, but may also contain proprietary business information which Plaintiffs have no business reviewing.  The numbers speak for themselves.  The ESI Order requires Defendants to produce 30,500 responsive documents, and 68,000 non-responsive documents.  Da125-126; T35-37.
[brief] (Da980-1003).  The Trial Court entered an Order on the same date memorializing its written opinion.  (Da978-979)  30.  On April 26, 2022, the Trial Court entered its First Amended Order expanding the March 29, 2022 Order to incorporate by reference prior findings consistent with the Trial Court’s findings following the trial on remand, as well as outlining other specific relief omitted from the March 29, 2022 Order.  (Da1004-1005)  31.  On May 13, 2022, Defendant filed its Notice of Appeal.
[brief] ”  M32.  The Zoning Board ignored [...]’s uncontested expert testimony requesting variance relief under the “flexible c” standards to the effect that “the variances which allow the residential uses provide a benefit to attract retail users to the Property.  The Board found that there is more than sufficient residential development in and about this area of Route 33 to support retail uses on the Property. ”  See Exhibit A, page 14, para. 4.  However, apart from there being no evidence in the record to support that conclusion, the Resolution failed to acknowledge [...]’s testimony regarding the increased support for retail and the resulting benefit to the Township that the proposed development would provide.  In short, when denying the variance relief requested by [...] in the 2018 Amended Application, the Zoning Board systematically disregarded or improperly gave little weight to the benefits of the proposed variances to the public good, as well as to the testimony presented by [...]’s experts in support of the variances requested by [...] in the 2018 Amended Application.
[brief] *County of Passaic v. Horizon Healthcare Servs., Inc.*, 474 N.J. Super. 498 (App. Div. 2023) (“Passaic”) states that the express jury waiver under *Atalese v. U.S. Legal Services Group, L.P.*, is not required when parties to a commercial contract “are [1] sophisticated \textbf{and} [2] possess comparatively equal bargaining power. ”
[brief] In 2009, the Department conducted a Needs Assessment of [...] to “assess[] the adequacy of the educational inputs and programming currently being provided” and to “identify the unique educational needs of the students .  . . .” (Ra73).  In its assessment, the Department noted that while the public school enrollment was stable, [...]’s non-public enrollment was increasing at a rapid pace.  (Ra74).  The assessment also identified transportation and special education costs as large strains on [...]’s budget, but found that the District “could do significantly more with the funds currently available to it. ”  Ibid.  5  From FY18, State aid has started to be allocated based on the SFRA’s funding formula.  Specifically, the Department recommended that the [...] reconsider its courtesy busing\(^6\) policy and develop ways to educate more special education students in-district, neither of which the District acted on with any sense of urgency.  (Ra74; Ra100; Aa16).  In 2014, [...] was subject to a State audit by the [...] ([...]).
[brief] E.  The Waiver Language Must be in the Arbitration Clause Itself .........  35 F.  Plaintiffs Repeatedly Objected to the Arbitration and Did Not Waive Their Constitutional Right To Be In Court  .......................................  42  POINT IV  DEFENDANTS’ ARBITRATION CLAUSE PROVIDES ONLY FOR ARBITRATION  “DURING THE WARRANTY PERIOD” WHICH HAS NOT YET OCCURRED ....................................................................................  48  CONCLUSION ..........................................................................................
[brief] On 2/14/2005 I signed a Promissory Note and gave it to my original lender and servicer: [...] ([...]) in exchange for a loan to by my house.  [...] went out of business by 12/31/2005 and [...] ([...]) took over the servicing of the mortgage without any authorization from [...].  [...] did not let me know that [...] was out of business after 12/31/2005.  I made monthly mortgage payments to [...] until Sep 2008.  [...] did not pay [...] for its share of the payment because [...] did not exist.  Since chase was not authorized by any one to be my servicer, on 2/27/2009 [...] forged a mortgage assignment from [...] ([...]) to [...].  The first Foreclosure Complaint against my house ([...]) was filed by [...] from [...] ([...]) on behalf of [...] on 3/10/2009.  [...] represents [...] in this instant appeal.  On paragraph 1 of that Complaint I read:  “On February 14, 2005, [...], executed to [...], a Note in the sum of $359,650.00 payable on March 1, 2035, with interest at the rate of 5.750% per annum, payable by payments of $1,723.32 per month for interest and principal. ”  on paragraph 3, [...] pleaded that “Said mortgage was assigned by [...], AS NOMINEE FOR [...], to [...], Plaintiff herein, by assignment dated February 27, 2009, assignment to be recorded. ”  [...] filed that Complaint without that alleged mortgage assignment which was illegal in NJ.  Also in the last line of paragraph 8 in that complaint, Attorney Canova pleaded on behalf of [...]: “The date of default is October 1, 2008”.  On 12/20/2010 Hon.  [...] from the [...] ([...]) ordered that mortgage assignment of 2/27/2009 was fraudulent and to be removed from the first Foreclosure Complaint and suspended that Complaint of 3/10/2009.  In my Opening Brief I proved that Respondent, [...] Loan Servicing LLC ([...]), was a total stranger to my Note (091) and allegedly purchased a defaulted debt from [...] in a fire sale on 2/28/14.
[brief] (See supra Point I).  It is for that Judge to make a determination within the confines of the Court Rules and caselaw whether or not to remain with the litigation or to recuse.  [...] properly determined that recusal was unwarranted in this matter.  (See supra Point IV).  Following that determination, the Court Below made a determination on Plaintiff’s Motion for Reconsideration.  Plaintiff’s Motion for reconsideration did not present a single iota of new information or new caselaw for the Court’s consideration.  (See supra Point III).  Plaintiff is not entitled to his own interpretation of the law or Court Rules when they suit him or when he believes they are necessary.  The Court Below did nothing untoward and its rulings should not be disturbed by this Court on the basis of this argument nor any others advanced by Plaintiff.
[brief] The Tort Claims Act (“TCA”), N.J.S.A. §§ 59:1-1 to 59:12-3, provides protection for public entities involved in tort claims.  The standard for liability under the TCA depends on whether the conduct of individuals acting on behalf of the public entity was ministerial or discretionary.  Henebema v. South Jersey Transportation Authority, 219 N.J. 481 (2014).  The Act creates two standards for immunity based on whether the public entity's action in allocating resources was ministerial or discretionary.  *Id.* at 490.  If the action was ministerial, liability for the public entity is evaluated based on an ordinary negligence standard.  However, a more difficult threshold must be overcome in order for a public entity to be liable for an individual's discretionary acts.  A public employee remains liable for ordinary negligence in the performance of *ministerial* acts unless such acts are covered by specific sections of the Act declaring non-liability.  *Id.*  A “ministerial act” has been defined as “one which public officers are required to perform upon a given state of facts in a prescribed manner, in obedience to the mandate of legal authority and without regard to their own judgment or opinion concerning the propriety or impropriety of the act to be performed. ”  *Ritter v. Castellini*, 173 *N.J. Super.* 509,513-514 (Law Div. 1980) (sheriff required to safekeep property levied upon).  It has also been defined as synonymous with “mandatory. ”  *Marley v Palmyra Bor.*, 193 *N.J. Super.* 271, 289 (Law Div. 1983).  See discussions in *Morey v. Palmer*, 232 *N.J. Super.* 144 (App. Div. 1989); *Flodmand v Institution & Agencies Dep’t.*, 175 *N.J. Super.* 503 (App. Div. 1980); *Sutphen v Benthian*, 165 *N.J. Super.* 79 (App. Div. 1979).
[brief] On January 5, 2024, the trial court denied [...]’s Motion for Reconsideration.  (Da045-046; Da047-048; 2T).  A jury trial was conducted before the Honorable [...] from April 1, 2024 through April 11, 2024.  Notably, as [...]’s Cross-Motion for Summary Judgment was granted, the third-party claim by [...] against [...] was not submitted to the jury.  (Da050-092; 3T).  On April 15, 2024, [...] entered judgment against [...] in the amount of $909,547.00.
[brief] There was no fixed sales price agreed upon between the State of New Jersey and Defendant.  In [...] vs. State of New Jersey, 2019 N.J. Super. Unpublished Lexus 188, (App. Div. September 12, 2019) (Da 35), (opinion not relied upon for precedent, but for background and factual information), the parties disputed the amount of just compensation owed to Starvos, Inc. under the eminent domain taking.  A Jury awarded [...] $998,400.00.  The net amount to be divided among Defendant and his siblings was $30,179.77 which would mean Defendant’s 15% share was $7,544.93.  [...] subsequently filed an Inverse Condemnation lawsuit seeking a fair and reasonable compensation for the loss of use of his remaining parcel of land.
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[brief] Ja019.  The [...] adopted a new comprehensive Master Plan that recommended rezoning of the subject property on July 28, 2022, and the governing body adopted [...] to implement (inter alia) the Planning Board’s rezoning recommendation pertaining to the subject property  On October 5, 2022.  Ja 026.  Pursuant to the “time of application” rule set forth in N.J.S.A. 40:55D-10.5, Plaintiffs are entitled to the land use regulations that were in place at the time they submitted their application for development to the Board, notwithstanding subsequent changes.  Warehouses and distribution facilities with buildings up to 50 feet tall were permitted in [...]’s ODL Zone District.  Warehouses and distribution facilities with buildings up to 30 feet tall were permitted in Florence Township under the subject property’s former SM Zoning.  Ja019.  Warehouses with heights in excess of 30 feet are permitted elsewhere in Florence Township, notably in the GM General Manufacturing Zone District.  5T 69:8- 5T 70:3.  Since the height of the proposed buildings exceeds the permitted maximum height of 30 ft. in Florence Township’s SM Zone District by more than 10 ft. or 10 percent, Plaintiffs were obliged to seek a height variance from the Board under N.J.S.A. 40:55D-70(d)6.
[brief] North Dakota v. United States 495 U.S. 423, 431 (1990) (citation omitted); see also Sea Girt Restaurant and Tavern Owners Ass’n, Inc. v. Borough of Sea Girt, New Jersey, 625 F. Supp. 1482, 1485 (D.N.J. 1986) (“The New Jersey courts have held consistently that this power to regulate the sale of alcoholic beverages is virtually limitless”).  Whether the FAA preempts the exercise by New Jersey of a core power granted pursuant to the Twenty-First Amendment is a matter of first impression for New Jersey.  In deciding whether a state statute enacted pursuant to the Twenty-First Amendment should prevail, a two-step analysis should be applied.  See Liquor Corp. v. Duffy, 479 U.S. 335, 341 (1987).  First, the threshold question is whether the statute does, in fact, conflict with federal law.
[brief] Other than the fact that there is no precedent on-point to sustain this outlandish proposition the precedent with respect to this issue deal with technical, non-material deviations.  See State v. Bisaccia, 58 N.J. 586, 592 (1971) (sustaining validity of search where the warrant contained an incorrect street number and held that the "place searched was undeniably the place as to which probable cause had been made out, and the place searched was in fact the place the warrant was meant to describe.  Nor did the error in the street number in the warrant taint the justice of the search.").  While defendant concedes that there is precedent to the effect that where supporting affidavits set forth the items/persons to be seized with the requisite particularity, the "technical irregularities" in preparation or execution of the warrant will not result in invalidation of the search.  See, e.g., State v. Brooks, 201 N.J. Super. 10, 14 (App. Div. 1985) (sustaining validity of search where warrant incorrectly described items to be seized, due to incorrect transcription, but which were correctly described in warrant application); State v. Bickham, 285 N.J. Super. 365 (App. Div. 1995), certif. den. 143 N.J. 516 (1996).11
[brief] The trial court properly found that the New Jersey Administrative Code did not apply to the [...].  [...] makes several baseless arguments as to why New Jersey regulations should apply to the [...].  First, [...] cites N.J.A.C. 11:1-20, arguing that it requires: (1) notice of “nonrenewal or cancellation” to be sent no less than 30 days prior to cancellation; and (2) that such notice shall provide the reason and be sent via certified or first class mail.  (TRVb31.)  However, as the trial court found, [...]’ argument sorely “misses the point” because the [...] Policies were never cancelled and, instead, remained in effect for the Project for all other entities permitted to enroll in the [...].  See Matter of N.J.A.C., § 11:1-20, 208 N.J. Super. 182 (App. Div. 1986) (“The rule was designed to curb what the commissioner conceived as abuses by insurance companies, including midterm policy cancellations, blanket nonrenewals, cancellations of entire lines of insurance and midterm premium increases without adequate reasons or notice to the insured”).  In other words, the [...] Policies were not cancelled, rather [...] was unenrolled, just hours after receiving the auto-generated Welcome Letter, at the request of [...], which had authority to request [...]’s unenrollment.  [...] cites no testimony to support its statement that “every single party's representative testified that unenrollments from [...]s are a rarity.