ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] **  As with many other government functions, municipalities are entitled (by statute) to defray or recoup the associated costs by imposing certain charges.  Municipalities may impose periodic service charges to defray costs associated acquisition, construction, and operation of water supply facilities:  After the commencement of operation of water supply facilities, the local unit or units may prescribe and, from time to time, alter rates or rentals to be charged to users of water supply services.  In fixing rates, rental and other charges for supplying water services, the local unit or units shall establish a rate structure that allows, within the limits of any lawful covenants made with bondholders, the local unit to:  (1)  Recover all costs of acquisition, construction or operation, including the costs of raw materials, administration, real or personal property, maintenance, taxes, debt service charges, fees and an amount equal to any operating budget deficit occurring in the immediately preceding fiscal year; (2)  Establish a surplus in an amount sufficient to provide for the reasonable anticipation of any contingency that may affect the operation of the utility, and, at the discretion of the local unit or units, allow for the transfer of moneys from the budget for the water supply facilities to the local budget in accordance with section 5 of P.L.1983, c. 111 (C.40A:4-35.1).  N.J.S.A. 40A:31-10.a., c.  As is clear from the above-quoted statutory provision, the only purpose for which a municipality can impose a charge on residents in relation to supply of water is to “recover” actual costs and to establish a reasonable surplus to pay for contingencies that may arise.
[brief] The language of the contract, by itself, must determine the agreements force and effect if it “is plain and capable of legal construction. ”  Id. (quoting Township of White v. Castle Ridge Dev. Corp., 419 N.J. Super. 68, 74-75 (App. Div. 2011).  [Pa7 (Opinion at p.  5)].  \(^5\)  The Trial Court found the Consent Order was clear and unambiguous when it determined it did not need to consider parole evidence in connection with the motion to dismiss.  See Pa6 (Opinion at p. 4)(citing precedent that parole evidence should not be considered in interpreting language that is “plain and capable of legal construction”, “clear and unambiguous. ”).  The Trial Court properly considered all of the pertinent terms of the Consent Order.  See Pa7 (Opinion at p. 5, quoting pertinent provisions of the Consent Order).  Again, Appellants do not even claim that the Trial Court somehow overlooked any of the Consent Order’s pertinent provisions.  In addition, Appellants are not challenging any of the Trial Court’s factual conclusions that support the Order and the Opinion.
[brief] 179 (1981)...  16  Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) .......................  14  Churm v. Prudential Prop. & Cas. Ins. Co., 634 A.2d 741, 742 (N.J. App. Div. 1994).....................................................  16  CompuCredit Corp. v. Greenwood, 565 U.S. 95, 100-01.  (2012)...  30  Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217 (1985)......  32,35  Gambino v. Royal Globe Ins. Cos., 86 N.J. 100, 107(1981)........  16,21 GEICO v. Elkholy, [...] (6/30/2022)
[brief] The *Harvester* Court ultimately remanded the case to determine whether the insurer had provided notice of mid-term cancellation to the insured and, if so, “whether there were objective and reasonable underwriting reasons at the time the notice was sent that did not exist at the inception of the policy. ”  *Id.*, at 432.  Moreover, the decision emphasized the purposes of cancellation rules, including: (1) “prohibit[ing] arbitrary mid-term cancellation,” (2) ensuring an insurer “notify [the insured] of an intent to cancel” and (3) “protect[ing] injured third parties” by obviating “uncompensated injury.
[brief] Defendant seeks to avoid the clear lack of a private enforcement right in the Act by arguing the legislative history of prior New Jersey consumer lending statutes implies such a right.  Plaintiff notes first that the court will only resort to extrinsic evidence, such as legislative history and committee reports, in the event that the statutory language at issue is ambiguous.  Tumpson v. Farina, supra, at 468.  Implying a right in a statute where none is made explicit is to be done sparingly.  The New Jersey Supreme Court has stated New Jersey courts have been reluctant to infer a statutory private right of action where the Legislature has not expressly provided for such action.  R.J. Gaydos Ins. Agency, Inc. v. Nat'l Consumer Ins. Co., 168 N.J. 255, 271, (2001).
[brief] Petitioner wrote Decedent a letter to shock her, and shortly after, they met up, talked and reconciled. (7T 145:22).  No other facts were presented to support Respondent’s aspersion that Petitioner had extramarital affairs. \(^4\)  The hearsay remarks allegedly made by Decedent were irrelevant to this litigation as they did not relate to the Will, and were obviously interposed solely to create the false illusion that Petitioner was unfaithful to Decedent.
[brief] Each time, however, the trial court expressly rejected Defendants’ arguments.  To that end, the trial court stated as follows:  No, no, no, no, no.  I don’t see anything in this record to show anything except his quote, unquote, feelings before the phone call of February where the school came up.  * * *  No, that was all speculation on [[...]’s] part until there’s a promise of a school.  * * *  [S]o there was a school discussed but where was the idea that he was aware that it was a promise for a school?  * * *  There’s nothing in the City Council transcript from January of ’20 or the Certification that you talk about that even remotely indicates that there was this indication that the school was a deal or an agreement or anything like that.  So I don’t think he even had a basis to speculate about that before February ’21.  [3T19:4-7; 19:17-18; 22:10-11; 27:10-16.]  The Trial Court Dismisses Plaintiff’s Complaint, Without Prejudice, Despite Finding the Claims Were Not Barred By Any Preclusionary Doctrine
[brief] … (6) the deprivation complained of in the instant case arose out of *official policy.*”  *Id.*  The relevant point is (2), above:  “Local governments could not be held liable under a theory of *respondeat superior*, but rather could be held liable only when the constitutional deprivation arises from a government custom. ”  *Id.*  *Monell* claims are specific to claims against a public entity as the employer, supervisor, and policymaker.  In this matter, Plaintiff does not even allege that it was the [...]’s or [...]’s custom or policy to cause constitutional deprivations to its inmates.  Plaintiff does not identify any specific policy or custom or any supervisor or actor that implements such policies as a custom and practice.  The failure to set forth these specificities warrants dismissal of all claims against the [...] and [...].  Thus, even if Plaintiff did somehow manage to hurdle the egregious failures to meet the basic pleading requirements, Plaintiff’s failure to assert Monell claims against the [...] and [...] preclude any claims against the [...] and [...].  As such, the Court must affirm the dismissal the Plaintiff’s Amended Complaint as a matter of law.
[brief] Plaintiff-Appellant, [...], a retired public school teacher aged 70, on July 4, 2018, suffered permanent debilitating injuries when she slipped and fell in a pool of standing water that had accumulated as a result of the day’s rain storm in the defendant’s commercial storage facility property’s lobby.  The incident was witnessed by Ms. Jelken’s long-term friend, [...], who had accompanied her to the facility.  Both Ms. Jelken and Ms. Castello testified at trial, as well as Ms. Jelken’s treating neuro-surgeon, [...]  At trial the defense challenged the nature and seriousness of Ms. Jelken’s injuries and how she fell, maintaining that there could not have been any liability on its part since it was not possible to slip on defendant’s concrete floor.
[brief] For the foregoing reasons, Defendant- Respondent respectfully requests this Court affirm the Order of March 4, 2024, granting the Motion and denying the Cross-Motion.  Respectfully submitted, [...], A Professional Corporation  /s/ [...]  JOSEPH R. MCCARTHY, ESQ.  /s/ Marshall T. Kizner  [...], ESQ.  Dated: June 5, 2024
[brief] [...] pressured [...] to waive his right against self-incrimination by telling him that if he did not confess or consent to a search, he would continue to detain [...] to seek assistance of a drug dog unit.  (1T 43-8 to 14)  After [...] refused consent to search, [...] said, “Listen, you don’t have to consent.  I can get a canine to come and they can (inaudible) the car and then I get it or you can just consent to search or even just tell me. ”  (1T 43-8 to 14)  Thus, [...] knew that he would not be released upon completion of the tasks related to the traffic stop (which had already been completed) and his detention would not be brief.  This case is akin to the situation identified by the Berkemer Court, where the individual knows that he will not be released until he gives the police that answers they are looking for.
[brief] 12T:25:18-21, 26:5-8, 30:5-10.  The Board did so even though [...] was neither asked, nor permitted, to address the retroactivity of any rent increase.  [...] criticized the Board’s attorney for advising the Board that it need not “not deal with” the issue of retroactivity because it was not addressed by the parties after the Board advised it would rely upon its attorney’s advice.
[brief] The [...] (“Developer”) created the [...] – a residential condominium situated in [...], [...] (the “Condominium”).  According to the Condominium’s Master Deed, the Developer is required to reserve an unsold condominium unit as a ‘common element’ to house the property’s superintendent.  The Developer designated Unit 74 as a common element for this purpose (“Unit 74”).  Unit 74 has been used to house the superintendent since the Condominium’s formation.  Under the New Jersey Condominium Act (“Condominium Act”), a condominium association has certain rights and powers in connection with the common elements.
[brief] See, CSC Final Administrative Decision, footnote 3:  “The disposition of certification of [...] was done July 20, 2022 and was returned August 1, 2022. ”\(^3\) Pa6.  While it is uncontroverted that the July 2022 were made without “genuine vacancies,” and while uncontroverted that the City was using retirements that occurred AFTER the promotions were made to retroactively create the requisite “genuine vacancies,” the CSC ruling denied Appellant a promotion for lack of “genuine vacancies. ”  The CSC states, “The vacancies left by the retirements of [...] and [...], per the appointing authority’s unrebutted indication, had already been filled by the time certification [...] was issued. ”  Pa8.  The CSC cites no legal authority allowing the City to retroactively remedy its violation of CSC precedent mandating “genuine vacancies” to exist before promotions are made.  The CSC further cites no legal authority permitting it to sanction violation of CSC precedent.  For the foregoing reasons, the CSC’s Final Decision that “genuine vacancies” did not exist for promotions from Certification [...] is false as it is an argument predicated on illegalities and/or the improper actions of the City and CSC.
[brief] (10T70:22 to 71:8; 11T18:20 to 19:22).  In fact, the trial court sustained the defendants’ objections when [...]’s testimony went too far afield.  (11T21:15 to 22:5).  The appellants mistake the net opinion rule for a “standard of perfection. ”  An expert need not “organize or support an opinion in a particular manner that opposing counsel deems preferable. ”  Townsend v. Pierre, 221 N.J. 36, 54-55 (2015).
[brief] ”  See Ja2105 (¶ 20) (quotation marks omitted) (alterations in original); Ja2097–98 (¶ 7 response) (The [...] “build[s] technology systems that power [its] market and provide transparency for issuers, institutions, and the investing public. ” (quotation marks omitted) (second alteration in original)).  A small minority of authorities, two of which are unpublished trial court decisions, have diverged from widely recognized false claims act legal standards, and concluded, for differing reasons, that false claims act “news media” sources are limited to traditional news outlets like newspapers, broadcast or cable news, or sources that resemble those organizations.
[brief] Hearings were held before the trial court on May 15, 2020, June 12, 2020, August 10, 2020, and August 28, 2020.  Following the May 15 hearing, the Court issued correspondence containing a tentative conclusion.  Pa15.  The Honorable [...], J.S.C., held that the Plaintiff’s OPRA request was “narrow” and that it was not covered by the appellate decision in *L.R. v. Camden City Public School District*, 452 N.J. Super. 56 (App. Div. 2017).  [...] found that the aforementioned opinion did not address settlements that went to the Office of Administrative Law (“OAL”).
[brief] The two-pronged test of Strickland and Fritz is: (1) whether counsel's performance was deficient, and (2) whether there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."  Strickland, 466 U.S. at 694.  In deciding if a defendant has established a prima facie claim, courts must "view the facts in the light most favorable to a defendant."  Preciose, 129 N.J. at 463.  The Preciose Court set forth this surmountable standard because a defendant usually needs a hearing to establish a record to support his claim of ineffective assistance of counsel.  The Court reasoned that a hearing is more likely required on ineffectiveness claims "because the facts often lie outside the trial record and because the attorney's testimony may be required."  Preciose, 129 N.J. 462; see also State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991) ("generally, a claim of ineffective assistance of counsel cannot be raised on direct appeal [because] defendant must develop a record at a hearing at which counsel can explain the reasons for his conduct and inaction.")
[brief] The plaintiff claimed that the presence of the plastic calling card on the ground created an unreasonably safe condition.  However, the plaintiff in Arroyo was unable to establish how the calling card ended up on the ground or how long it had been there.  Consequently, the trial court granted the defendant’s motion for summary judgment as plaintiff was unable to present any evidence that the calling card was on the ground for an unreasonable amount of time.  Arroyo, supra, 433 N.J. Super. at 242.  In upholding the trial’s court’s decision, Arroyo held that “there is no genuine issue as to whether defendant had actual or constructive notice of the presence of the discarded phone card on the sidewalk.  The absence of such notice is fatal to plaintiff’s claims of premises liability.
[brief] See Asb18-25.  Further, TMDLs are typically handled through the New Jersey Pollutant Discharge Elimination System (“NJPDES”) permitting program under which NJDEP regulates the discharge of pollutants to surface and ground waters.  N.J.A. C. 7:14A-2.1(a).  A person may not “discharge any pollutant except in conformity with a valid NJPDES permit” unless specifically exempt.  N.J.S.A. 58:10A-6; N.J.A.C. 7:14A-2.1(d).  The NJPDES permits establish limits and conditions to ensure water quality standards are met.
[brief] Statement of Facts and Procedural History\(^1\)  This case began with the demand for arbitration filed on February 21, 2022 for PIP arbitration through [...].  (Pa12-14)  This matter arises out \(^1\)  For this Court’s ease and because they are inextricably intertwined, the statement of facts and procedural history will be presented together. of a motor vehicle accident which occurred on or about September 17, 2019.
[brief] On one hand, [...]’s Toms River search warrant became invalid the moment it was executed outside Toms River.  On the other hand, the [...] officers violated their own territorial jurisdiction by arresting [...] and executing the warrant and purported consent search in Lakewood.  Because these errors resulted in a violation of [...]’s constitutional rights, suppression of the evidence from [...]’s car and Lakewood home is required. \textsuperscript{11}  \textsuperscript{10}  Many municipal court judges have not been empowered to issue search warrants at all.  “[A]ssignment judges in only about half the counties in the state have authorized municipal court judges to issue search warrants. ”  32  \textit{N.J. Crim. Prac. & Proc.} § 59:20 (2023 ed.).  “In those counties where municipal court judges have not been administratively authorized, all the search warrants are issued by Superior [C]ourt judges. ”  \textit{Ibid.}  \textsuperscript{11}  Again, because [...]’s purported consent to the search of his home arose from the unconstitutional execution of the search warrant, the fruits of that search must be suppressed too.  \textit{Smith}, 155 N.J. at 100-01; \textit{Atwood}, 232 N.J. at 449; \textit{Rodriguez}, 172 N.J. at 132.  POINT III
[brief] ” (R. 2:10-2).  A defendant is not entitled to an adverse inference instruction when he fails to request one prior to the issuance of final jury instructions and does not raise the issue before filing a motion for a new trial.  (State v. W.B., 205 N.J. 588, 609 (2011)).  Though a trial court may consider an adverse inference charge to “balance the scales of justice” when the State withholds exculpatory evidence, defendant has offered no evidence that the State was in possession of such evidence aside from an “impression” from unnamed “Legal Officials.
[brief] THE DISMISSAL OF COUNT FIVE SHOULD BE REVERSED BECAUSE THE TRIAL COURT INCORRECTLY DETERMINED THE DEFENDANTS’ ACTIONS WERE AUTHORIZED BY SECTION 8(e) OF THE MASTER DEED (T1, p. 17, Ins. 20-23).  Count Five alleged the Defendants breached their fiduciary duty to the Plaintiff by leasing and selling Unit 74 know it held no marketable title.  The trial court found there was no breach of a fiduciary duty “based upon the deed. ”  See T1 at p. 17, Ins. 20-23.  Consequently, the Court dismissed Count 5 with prejudice.  Dismissal is inappropriate because it is based upon the trial court’s incorrect conclusion that Section 8(e) authorized the sale of Unit 74.  As set forth above, the Master Deed could not have authorized the sale of Unit 74 given its status as a ‘common element. ’  Moreover, the Court failed to explain how Section 8(e) of the Master Deed (or any other provision) authorized the Developer to lease Unit 74 from June 1983 through April 7, 2016.  See T1, p. 17, lns. 10-16.  The Developer’s actions in this respect are anathema to the Condominium Act.  Indeed, the Association has the exclusive authority to manage and operate the common elements, including the leasing or license common elements to third parties.  See N.J.S.A. 46:8B-15(c).  For these reasons, the lower court erred by dismissing Count Five.
[brief] There was no such discussion at the hearing.  Fourth, if the Court indulges this new argument, the fact patterns in *de facto* rezoning cases are much different than in this matter.  See, e.g., *Price*, 404 N.J. Super. at 298, 303 (zoning board granted a density variance for an 18 story, 91-unit residential building, where the permitted density was 30 units, and the Township’s ordinance, albeit unlawfully, prohibited density variances); *Feiler*, 240 N.J. Super at 251, 253 (zoning board granted use and bulk variances, where the residential portion of the project included the entire zone, the zone allowed one and two-unit dwellings, and the board approved two residential towers with 670 total units, that exceeded the 35 foot height restriction by 316 and 221 feet).
[brief] Therefore, Respondent’s appraisal report should be barred from presentation to the jury as unduly speculative.  Respondent’s professional planner testified during his deposition that numerous variances would be required for the proposed building which Respondent contends is the Highest and Best Use of the Property:  Q: Your proposed eight-story, 98 residential unit development, can you identify the number of variances that would be required for that development if the R-2 zoning classification was applied to the subject property?  A:  It would be a D variance, for starters.  Pretty much, every aspect of the building would be a variance.  It does not conform to the R-2.  Pa180 [emphasis added].  Respondent’s appraiser failed to make the necessary adjustments to reflect the additional cost and risks associated with obtaining a zoning change/variance to allow the proposed Highest and Best Use despite acknowledging the hypothetical 8-story, 98 residential unit development building proposed as the Property’s Highest and Best Use was not a permitted use under the R-2 zoning and would require two (2) additional use variances due to exceeding the maximumly permitted height and density standards which existed under the R-2 zoning.
[brief] (Pa000007-12).  With respect to the original site plans’ inclusion of Plaintiffs’ portion of Church Lane, Plaintiffs had pre-suit knowledge that these preliminary plans were modified before any work was carried out by any contractor.  In an email dated February 9, 2021, Plaintiffs were informed that [...] had drafted new site plans which: (1) removed the proposed changes to Plaintiffs’ Property; and (2) acknowledged that portion of Church Lane which, by ordinance, belonged to Plaintiffs.  (Pa000435-36).  This was seven months prior to the Complaint being filed.  Not only that, but Plaintiffs’ counsel – the very same counsel representing Plaintiffs both in the court below and in the present appellate proceedings – was also included on this email thread.  (Id.).  Plaintiffs knew, prior to commencing this litigation, that they had no viable cause of action against [...] with respect to the actual design of the initial plans.
[brief] See [...] & [...], *New Jersey Zoning & Land Use Administration* §18-1.2 (2024) (citing *Edison Bd. v. Zoning Bd.*, 464 N.J. Super. 298, 307-310 (App. Div. 2020)) (“As long as a memorializing resolution is adopted at a regularly scheduled meeting, and there is no modification or elimination of a significant condition or conditions therein, it would appear that notice with regard to the adoption of such a resolution is not necessary either under the MLUL or OPMA. ” (emphasis added)).  Without proper notice, the Board is without jurisdiction to act.
[brief] PROCEDURAL HISTORY  Plaintiff filed a Complaint for personal injury on October 1, 2020.  Plaintiff then moved to dismiss Defendants’ affirmative defense of immunity under the Equine Activities Liability Act (“Act”), N.J.S.A. 5:15-1, et seq.  This motion was granted.  Plaintiff then moved for leave to amend the Complaint to include a common law claim for strict liability on the basis that Defendants “knew, or in the exercise of reasonable care, should have known of the particular vicious or dangerous traits(s) or propensity(ies) in [...] which caused Plaintiff[‘s] . . . injuries. ”  [Pa 14-15].  This motion was also granted.  Plaintiff’s Amended Complaint asserts common law theories of negligence and strict liability.  [Pa 1-18].  At the close of discovery on issues of liability, Defendants moved for summary judgment.  In responding to the motion, Plaintiffs admitted that it was undisputed that Defendants were unaware of any prior vicious behavior by [...],\(^2\) but argued that summary judgment should have been denied because Defendants were on notice that all breeding stallions are inherently capable of a sudden, unprovoked attack that is impossible to predict based on past behavior.