ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] **FACTS CONCERNING CONDOMINIUM FEES**  On remand, [...] submitted two years of the condominium association’s operating expense report.  As to the condominium expenses, [...] testified that the expenses were for:  Building supplies, cleaning and garbage service, repairs, pest control, snow removal…property liability insurance and directors and officers insurance, flood insurance…licenses and permits, management fee, postage and delivery, tax preparation…replacement reserve expense cost…water, sewer, telephone, fire panel monitoring, and PSE&G.  5T24:1-13 (emphasis added).  In 2016, the year for which [...] provided the Board with financials, there was a special assessment of $72 a month included in the condominium fees.  The evidence submitted by [...] shows that the special assessment was characterized as replacement reserves in the condominium budget.  It is undisputed that at the time the Board was considering the application, in 2017, the special assessment was no longer in place.  3T57:4-9 ([...] testifying that the monthly condominium fees were $407.50, not $481, as presented in the application).  The Board discussed the issue and one Board member made a motion to exclude the special assessment because it was (and is) no longer in place.  The motion was discussed at length, and ultimately failed.  6T196:21-215.  However, [...], in digesting the voluminous transcripts, apparently thought the motion had passed and commented on it in her opinion.  She said:  “The special assessment discussion is the only discussion on the record where it seems that reason and logic prevailed.  If a special assessment is charged on a one-time basis, and is not an annual, monthly regularly-occurring expense, it should not be passed on to the protected tenant.  DA14.  The Board appeared to be confused on this point as well on remand.  For example, at the first hearing of the second remand on March 11, 2020 one board member asked how much the condo fee was.  Someone “four-hundred-and-nine dollars and 17 cents I believe” and another person agreed “yea, about $410. ”  7T116:1-9.  The Board discussed it again at their next meeting, wondering if they should revisit it given [...]’s instruction.  8T20-24.  This is the amount of the condo fee without the special assessment.
[brief] In examining the plain meaning of a statute, “the Legislature’s intent is paramount and, generally, the statutory language is the best indicator of that intent. ”  *Hodges v. Sasil Corp.*, 189 N.J. 210, 223 (2007) (citing *DiProspero v. Penn*, 183 N.J. 477, 492 (2005)).  “Statutory words are ascribed their ordinary meaning and are read in context with related provisions, giving sense to the legislation as a whole. ”  *Ibid.*  The court’s duty is clear: “construe and apply the statute as enacted. ”  *Ibid.* (quoting *In re Closing of Jamesburg High Sch.*, 83 N.J. 540, 548 (1980)).  Plaintiff’s complaint is premised on a conclusory allegation that defendants’ use of a letter vendor to create a debt collection letter was, in and of itself, abusive, deceptive or unfair.
[brief] 1.1  Proposal  The applicant seeks use variance approval for a previously constructed 24 ft. x 40 ft. 2-car garage addition to an existing 30 ft. x 40 ft. pole barn.  1.2  Existing Conditions  The 1.79± acre parcel is located at [...] (a.k.a. U.S. Route 322).  The property contains an existing 1-story frame dwelling (approximately 1,152 s.f.) with stone driveway and associated improvements, a 30 ft. x 40 ft. metal garage with a 24 ft. x 40 ft. addition, concrete pad, a swimming pool with deck and accessory shed surrounded by chain link fence.  The property is served by private well and septic and is zoned RD-C, Rural Development - Commercial District.
[brief] “When more than one reasonable inference can be drawn from the review of a video recording ... then the one accepted by a trial court cannot be unreasonable. ”  S.S., 229 N.J. at 380.  “In such a scenario, a trial court’s factual conclusions reached by drawing permissible inferences cannot be clearly mistaken, and the mere substitution of an appellate court’s judgment for that of the trial court’s advances no greater good.
[brief] The Supreme Court opined in *Beirn v. Morris*, 14 N.J. 529, 534 (1954):  “These considerations are manifestly insufficient for the exertion of the statutory power to vary the terms of the general regulations.  The landowners acquired the property fully cognizant of the use restrictions, avowedly to make a more profitable use of the lands than conformance to the use regulation would permit, if that could be accomplished – such as would serve their own private business interests at the time; and **the profit motive is not an adequate ground for a variance.
[brief] There was no motion to preclude or to bar the testimony of [...], P.E.  As such, his testimony was incorrectly barred.  As a basis for barring the opinion, the trial court incorrectly concluded that there was no way to know what defendants had done when defendants rebuilt the sidewalk and that it could have been rebuilt as it originally existed.  1T8:15-9:7.  That is not the point.  The trial court failed to appreciate that because defendants had rebuilt the driveway “completely new,” they were obligated to build it correctly, properly and safely.  Defendant [...] testified that he did not repair the sidewalk and carport entrance.  **He rebuilt the location from scratch. **  “Q. Okay.  During the time that you owned your home had you ever – have you ever had your sidewalk repaired or constructed?  A. Repaired? No.  It was done new about 25 years ago, completely a new one. ”  Pa66 at 14:22-15:1.  There was no need to know what was there before; what was there at the time of the fall was created by defendants.  There was no speculation involved.  Based on that incorrect reasoning, the court ruled that the 1995 design standard considered by [...] was “out. ”  1T9:3.  “You can’t rely upon that, and he has no other facts to support his opinion that the defendant might have violated that standard, which is what he’s basing his opinion on.  So, I’m going to bar [...]’s opinion.  It is a net opinion for that reason. ”  1T9:3-8.  That decision was factually incorrect.  The testimony, photographs, measurements and defendants’ admission all support the conclusion that defendants deviated from the 1995 design standard and created a hazardous condition.  The trial court also failed to apply the proper standard to the proposed expert testimony because it disregards all other factors in favor of a single basis for [...]’s analysis.
[brief] The Plaintiff’s Complaint challenges the validity of two actions taken by public entities: (i) the decision by the Planning Board that the proposed ordinance authorizing the Second Amendment to the Redevelopment Plan was substantially consistent with the Borough’s master plan; and (ii) the decision by the Borough Council that the proposed ordinance authorizing the Second Amendment to the Redevelopment Plan to accept that recommendation and to adopt Ordinance 1667 approving the Second Amendment to the Redevelopment Plan.  1.  The Planning Board’s Determination Was Entitled To Great Deference  “A planning board is a subordinate municipal agency whose role is limited “to effectuat[ing] the goals of the community as expressed through its zoning and planning ordinances. ”  Kaufmann v. Planning Bd. for Twp. of Warren, 110 N.J. 551, 564 (1988); see also PRB Enters., Inc. v. South Brunswick Planning Bd., 105 N.J. 1, 7-8, (1987) and Willoughby v. Planning Bd. of Twp. of Deptford, 306 N.J. Super. 266, 279 (App. Div. 1997).  The municipal planning board plays a critical role in determining if a proposed redevelopment plan is consistent with the municipality’s master plan.  Specifically, N.J.S.A. 40A:12A-7 requires the referral of any proposed redevelopment plan, or amendment thereto, to the municipal planning board for review as to consistency with the municipality’s master plan.  It is the planning board’s responsibility to transmit a report to the governing body containing its recommendation concerning the redevelopment plan.  N.J.S.A. 40A:12A-7(e).  The report should contain “an identification of any provisions in the proposed redevelopment plan which are inconsistent with the master plan and recommendations concerning these inconsistencies and any other matters as the board deems appropriate. ”  N.J.S.A. 40A:12A-7(e).  Once the municipal planning board completes its consistency review, its determination must be given “deference and great weight”.  See Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 383 (1995).
[brief] Bidders bid based on perception of value of the property, not the notice’s statement of the judgment amount.  The judgment amount appearing in the sale notice is simply relevant to determine the maximum credit bid that the Plaintiff may make or the amount of the proceeds from the sale to which the Plaintiff is entitled.  It does not affect a rational bidder’s determination of the value of the property being sold and thus cannot rationally be held to have affected bidding strategy.  This is why, as the Supreme Court has noted, 89% of sheriff sales result in “nominal bid acquisitions ($300 or less) by the mortgagee. ”  Carteret Sav. & Loan Ass’n, F.A. v. Davis, 105 N.J. 344 (1987).  Defendants have not proffered any evidence to indicate that the reality noted by the Supreme Court in Carteret has changed since that decision was issued.  Further, Defendants have not proffered any evidence to show that the extremely rare deviance from this result would have been obtained here.  Defendants do not identify any bidders who contacted them or who appeared at the sale.  At the time the sale occurred, and the redemption amount was computed, the advertised judgment amount was only 7% over the redemption amount.  The advertisement need only state the “approximate” amount of the judgment.  And, since for the reasons above, the amount in the notice is actually correct, all the more so the Defendants’ appeal is without merit.  **CONCLUSION**
[brief] I annex Addendum 1 which has been initialed by the Buyer as requested by [...].  I am requesting that [...] advise that its right of first refusal is being waived so that this matter can close.  I am also requesting updated termination amounts from [...].  The agreement by Buyer to purchase the property continues to be subject to calculation of the amount of termination fees due and owing to [...], and review and acquiescence by Buyer.  Da145.  Addendum I was an amendment to the PSA by [...] and [...], disclosing environmental issues and assigning indemnification rights not previously stated in the PSA.
[brief] He was medevacked from [...] to the [...] where he succumbed to his injuries three (3) days later.  [...]’ mother, plaintiff [...], M.D. (herein, “[...]”), and father, plaintiff [...], M.D. (herein, “[...]”) were sensibly well insured.  Dr. Butzbach and [...] maintained an automobile insurance policy with [...] that provided $500,000/$1,000,000 in liability coverage.  Above and beyond the USAA policy, Dr. Butzbach and [...] maintained an excess insurance policy with defendant [...] (herein, “[...]”) that provided for $5,000,000 in excess liability coverage and $1,000,000 in excess uninsured/underinsured motorist (herein, “UM/UIM”) coverage.  Dr. Butzbach and [...] reasonably expected that any driver of their vehicles, including defendant [...], would be covered by the $5,000,000 excess liability provisions of [...]’s policy.  Failing the applicability of liability coverage, Dr. Butzbach and [...] reasonably expected that they would at least be entitled to pursue excess UIM coverage that they purchased to cover themselves in the event that, as alleged by defendant [...], the liability limits of a tortfeasor-defendant fell short of adequately covering the damages incurred.
[brief] [...] also made a claim for breach of the covenant of good faith and fair dealing, and for attorneys’ fees under the fee shifting provision of the Settlement Agreement.  (Da15-17).  [...] argued that [...] waived her rights to receive [...]’s Interest in the Palm Beach Property in Paragraph 24(F).  (Da279).  [...] also argued that [...] never intended to pass her interest in the Palm Beach Property to [...] in the Trust, such that the Trust Agreement should be read to preclude the interest from passing to [...] despite the operation of the Residuary Clause.  (Da275-76).  [...] argued that Paragraph 24(F) concerned only rights flowing from [...]’s Estate, and that the plain language of Paragraph 24(G) preserved all rights flowing from [...]’s Estate, including to [...]’s interest in the Palm Beach Property.
[brief] (Da3; Da12-13).  Despite the request not containing a subject matter, [...] conducted an initial search for all emails sent or received by [...] during the ten-day time period in the request and identified 3,125 emails.  (Da40).  On January 13, 2023, [...] sent notice to [...], explaining that:  The University has determined that your request under OPRA is overly broad and invalid under OPRA and the common law right of access to government records.  Please provide the required information as identified below.  Your request is invalid under OPRA as it fails to specify the content and/or subject of the emails sought.  The Government Records Council (“GRC”) has established specific criteria deemed necessary under OPRA to request an e-mail communication.  See Elcavage v. West Milford Twp. (Passaic), GRC Complaint No. 2009-08 (Apr. 8, 2010) (stating that a proper request for email correspondence must contain “(1) the content and/or subject of the e-mail, (2) the specific date or range of dates during which the e-mail was transmitted or the emails were transmitted, and (3) a valid e-mail request must identify the sender and/or the recipient thereof”).
[brief] Estoppel requires the reliance of one party on another.  *Country Chevrolet, Inc. v. North Brunswick Planning Board*, 190 N.J.Super. 376, 380 (App. Div. 1983)  In short, to establish equitable estoppel, plaintiffs must show that defendant engaged in conduct, either intentionally or under circumstances that induced reliance, and that plaintiffs acted or changed their position to their detriment.
[brief] *Restatement  Third of Property, Servitudes*, Section 7.10, part 1.  [...] presented credible and detailed evidence of its uninterrupted utilization of its easement rights in the Subject Property from the early 1960s.  Defendant’s own witnesses admitted at trial that the 1972 Site Plan and related documents are not conclusive evidence Plaintiff was prohibited from parking on the Sixth Street Lot or the Congregation’s easement rights in the Subject Property were terminated.
[brief] (15T 176-19 to 21)  In defense counsels’ post-trial motion for judgment notwithstanding the verdict or for a new trial, one of the arguments raised was the court’s refusal to provide a Clawans instruction.  (18T 34-11 to 36-22)  The judge denied the motions.  As to the Clawans issue, she essentially restated everything she had placed on the record in deciding not to give the instruction.  (18T 84-19 to 89-4)  The court’s failure to give the jury charge was error that denied [...] his right to due process and a fair trial.
[brief] The PCR Court’s Discovery Decisions Must Be Reversed.................................................................60  1.  Discovery Related To The Hard Drive  ...........................................62  a.  [...]’s denial of [...]’s motion to enforce the earlier discovery order regarding the hard drive, her sua sponte vacation of prior discovery orders, and the denial of reconsideration motion were improper and demand reversal.  (25T24-4 to 9, 37-4 to 41-3; Da322-26, 386-90)  .......................65  b.  Alternatively, the court should have granted PCR or the alternative relief requested in the April 7, 2022 motion: deeming it a fact that the destroyed footage would have established [...] did not arrive by car at [...] between 12:11 and 12:45pm.  (Da302-03)  ..............................................  68  2.
[brief] New Jersey’s Railroad Immunity Act, N.J.S.A. 48:12-152, was never intended to immunize a railroad for a pedestrian fatality at a crossing its operator likely could have avoided, merely because the Do Not Cross signal might have been active.  The text and purpose of the Act, as first enacted in 1869 and as amended in 1998, has always been to immunize railroads from the claims of trespassers.  The trial court’s interpretation, where in a lit sign’s flicker commuters are somehow morphed into trespassers or suicidal-persons unlawfully-within-the-crosswalk barred from recovery, represents a harsh expansion of the immunities afforded by the Act.  The subsection at issue, N.J.S.A. 48:12-152(b)(5) (hereafter, (b)(5)), bars recovery for “using the property of any railroad in a manner in which it was not intended to be used or in violation of posted regulations[,]” providing the specific example of “attempting to board or disembark from a moving train[.]”  As will be explained, the text, history, and purpose of the Act reflect that its conception of “property” never included the nebulous idea of the crossing itself (where in actuality the Act’s prohibitions do not attach) or this type of conduct.  Historically, contributory negligence has not attached to unindicated crossings where a jury could draw the legitimate inference a railroad operator breached their duty to avoid a collision.  Here, with sufficient time and distance to brake to avoid the ultimate collision, the operator blew his horn.  This is an act reserved for emergency or to prevent an accident.  Yet, he did not apply the brake for an additional six or seven seconds.  In fact, he accelerated.  Defendants and the trial court have fixated on a red herring – it is not a matter of his reaction time to [...] actually stepping into the crossing, a jury could conclude it was unreasonable to have let the tragedy even unfold to that point.  The [...] ([...]) is a voluntary bar association dedicated to the pursuit of equal justice for all.  [...] seeks to intervene here as amicus curiae out of concern for the safety of the people of the State of New Jersey and their ability to seek redress for civil wrongs.  This tragedy is never one the Legislature intended to be cruelly governed by the contributory negligence standard.  Crossing when not indicated, something thousands of New Jersey commuters must absentmindedly or foolishly do each day, is not the sort of culpable conduct like being suicidal, trespassing, or disembarking from a moving train that would warrant an absolute bar to recovery.  As the trial court’s interpretation of the Railroad Immunity Act conflicts with its the text, history, and purpose, this Court should reverse the Order of February 14, 2024 and remand the matter for trial.  A jury, not judge, must determine if [...]’s stepping back into the crossing is more negligent than the operator accelerating toward the point of impact rather than braking.
[brief] [...] AND [...]  TABLE OF CONTENTS  TABLE OF APPENDIX ........................................................................................................ ii  TABLE OF AUTHORITIES .................................................................................................  iii  PRELIMINARY STATEMENT .............................................................................................  1  PROCEDURAL HISTORY .................................................................................................  2  COUNTERSTATEMENT OF FACTS ...............................................................................  3 TRIAL COURT RULING .................................................................................................  4  LEGAL ARGUMENT ........................................................................................................  4  A. STANDARD OF REVIEW ......................................................................................  4  B.  THE TRIAL COURT CORRECTLY HELD THAT WALMART DID NOT HAVE A DUTY TO WARN OF THE RAISED BARRICADE LEG BECAUSE THE DANGER WAS SELF EVIDENT AND KNOWN TO PLAINTIFF (Pa40, T13:13-15)  ..................................................  5  CONCLUSION  ....................................................................................................................  10  TABLE OF APPENDIX
[brief] In fact, the employer specifically stated the opposite: that there were no other positions available for [...].  The only “other options” would have involved the same type of work that was already aggravating his condition.  It is readily apparent and clearly undisputed that based on the small size of the workplace and the limited positions available, that there were no alternative positions that could have accommodated [...]’s medical condition.  The Board further mischaracterized the employer’s testimony by finding that [...] would have been provided with additional help, had he sought an accommodation, by way of additional workers being sent to the worksite.  The Board failed to recognize that additional workers would not have alleviated the work that [...] still had to do; specifically, his job required him to bend, squat, and kneel, all of which exacerbated his condition.  This “accommodation” would only have provided relief to [...] if by providing the additional workers that meant that [...] no longer had to do his job, and if he no longer had to do his job, then clearly this “accommodation” would merely have resulted in [...] being terminated for failure to do the work for which he was hired.  Essentially, it would not have been an accommodation at all, but rather would have likely resulted in his termination.  As established above, based on an individualized determination of [...]’s specific situation, he should not have been required to expressly seek an accommodation, a requirement that the Board erroneously imposed upon him.  III.
[brief] Rather, that easement was granted by the [...] (the previous owner of Block 902, Lot 7) to the previous owner of Lot 2.01.  (Pa3 at ¶ 7.)  In 2001, [...] purchased title to a portion of Block 902, Lot 7, which portion contained the easement area.  (Id. at ¶ 7; Pa35.)  At such time, the easement was extinguished by merger, even though it still appears on the filed map.