ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] It made clear that, while the Weinberg immunity carve-out could apply to the parties’ subrogation transactions, it did not apply to the tortious conduct manifested in [...]’s failure in that case to prevent a live electric wire from setting plaintiff’s building ablaze.  What is important to note is that the holding and rationale of Weinberg, referred to at times as the “Weinberg rule”, were applied to the negligent conduct of [...], itself an electric company:  However, unlike Franklin Mutual and Weinberg, the instant case is not grounded on a claim for damages due to service interruption.  Here the alleged negligence of [...] was the precipitating cause of the fire that destroyed the business premises.  We do not read either Weinberg or Franklin Mutual to immunize a primary tortfeasor from liability in a subrogation action.  Notably, other reported cases have drawn the distinction between negligent failure to provide a service and negligence directly causing harm.  See Ebert v. South Jersey Gas Co., 260 N.J. Super. 104, 615 A.2d 294 (Law Div.1992) (in a subrogation action a gas company may be held accountable for property damage from a gas explosion due to its alleged negligent failure to adequately install, inspect or repair a gas line) rev’d on other grounds, 307 N.J. Super. 127, 704 A.2d 579 (App.Div.1998), aff’d, 157 N.J. 135, 723 A.2d 599 (1999); Bongo v. New Jersey Bell Telephone, 250 N.J. Super. 524, 595 A.2d 557 (Law Div. 1991) (Weinberg carve-out not applicable to immunize public telephone utility from motor vehicle subrogation claim).  Immunity from wrongful acts is not favored, see e.g., Merenoff v. Merenoff, 76 N.J. 535, 547, 388 A.2d 951 (1978), and public utilities do not enjoy a general tort immunity.
[brief] Plaintiff filed a Notice of Appeal and a Case Information Statement on January 9, 2024.  (Aa280-85).  After failing to correct noted deficiencies, plaintiff’s appeal was dismissed on February 9, 2024.  In response to plaintiff’s Motion to Vacate Dismissal and Reinstate Appeal, the Court entered an Order on February 29, 2024 vacating the dismissal.  Plaintiff successfully moved to extend the time to file his Brief and Appendix, which were filed on June 2, 2024.  After receiving multiple Deficiency Notices, plaintiff filed his amended Brief and Appendix on July 22, 2024, which was approved on July 24, 2024.  However, plaintiff did not correct all of the deficiencies previously noted, and, as importantly, added substantive matters (e.g., arguments and case law) to his amended Brief\(^2\) and raised new issues – conflict of interest and venue – which were not properly raised before or addressed by the trial court.
[brief] Much of the discussion in the decision is about the history of zoning in New Jersey, the “meticulous” way in which zoning authority had been delegated to municipalities by the Legislature, and how the “… zoning power is an extremely important and sensitive element of municipal power, one that the Legislature has recognized as being singularly within the expertise of local boards of adjustment. ”  Ferraro, supra at 71.  Further, the Ferraro court cites NJSA 40:55D-20 in support of the court’s decision that the 1962 agreement did not divest [...]’s zoning board of its authority:
[brief] It consisted of a perception-reaction distance which is the distance traveled by the vehicle from when the driver recognized a hazard and reacted up to the instant that the brakes were applied.  The second component was braking distance which was the distance traveled by the vehicle at a rate of deceleration.  Stopping site distances increased exponentially with speed due to principles of kinetic equations.  Whereas plaintiff's expert referenced a 1.5 second perception-reaction time, the AASHTO method was more conservative using a 2.5 perception-reaction time.
[directive] the offense occurred on or after January 5, 1994 and you are being sentenced to probation, [Yes/Wi]  [No/Non]  If f. you must pay a fee of up to $25 per month for the term of probation?  Si enfraksyon an fet le 5 janvye 1994 oswa apre epi yap kondane w a libete kondisyonel, wap oblije peye yon fre de jiska $25 pa mwa pandan tout tern libete kondisyonel la?
[brief] This would be a different situation if [...] testified that he did indeed sign the Retainer Agreement.  Cf., Froom, supra.  [...] testified that his lawyer was [...] from [...], and that he sent correspondence for [...] in the Probate matter.  Therefore, there is no basis for plaintiff to make this unsupported argument.  More specifically, [...] testified that he would never have signed a Retainer Agreement with anyone other than [...].  Therefore, there was no reliance by [...] on anything that [...] did.  Accordingly, this Court should reject plaintiff’s argument.
[brief] When the [...] disposed of tree branches, they did not enter plaintiff’s property, nor did they damage it.  Before the [...] bought the property, a tree that had stood on a neighbor’s property had fallen across the [...]’ backyard and onto plaintiff’s side yard.  Pa49, ¶ 51; Pa331, ¶ 51; accord Pa209 at 40:23-41:9.  When [...] later removed the branches from that tree, he placed most of them in front of his property by the curb of [...] for municipal pick up.  Id. at 42:8-46:9.  Because he ran out of room, he placed some of the branches on the municipal right-of-way by the curb in front of plaintiff’s property.  Pa320, ¶¶ 2-3.  He purposefully avoided placing any branches on plaintiff’s plants.  Pa320, ¶ 4.  The location where [...] placed the branches are depicted in the photographs marked D-24 and D-21 for identification.  Pa50, ¶ 55; Pa331, ¶ 55; accord Pa320, ¶ 5; Pa312 (photograph marked D-24 for identification) & Pa314 (photograph marked D-21 for identification).  The [...] removed the branches from the [...]’ property the next morning, but plaintiff prevented the municipal workers from removing the branches that were in front of his property.  Pa50, ¶ 56; Pa332, ¶ 56; accord Pa321, ¶ 6.  The [...] removed the remaining branches during the following week.  Pa50, ¶ 57; Pa331, ¶ 57; accord Pa321, ¶ 7.  The condition of the municipal right-of-way after the branches were removed is depicted in the photographs marked as D-22 and D-25 for identification.  Pa50, ¶ 58; Pa331, ¶ 58; accord Pa321, ¶ 8; Pa316 (photograph marked D-22 for identification) & Pa318 (photograph marked D-25 for identification).  Plaintiff identified the plants that he claimed were damaged by the branches by annotating the photographs marked for identification as D-21 and D-25.  Pa50, ¶ 59; Pa331, ¶ 59; accord Pa149 at 98:17-101:22; Pa314 (D-21); Pa318 (D-25).
[brief] (9T 217-1 to 4)  No weapons were found in the car or on [...].  (9T 217-13 to 14)  [...]'s phone rang after he hung it up.  [...] relayed the phone number of the incoming call.  The police were not able to determine the identity of the caller.  (9T 233-2 to 9)  [...]'s car was towed and impounded.  (9T 218-22 to 24)
[brief] CONCLUSION  Defendants terminated Plaintiff immediately in response to her expressed concerns for the health and safety of herself and others in light of the Covid-19 Pandemic.  Defendant’s actions were blatant and unlawful.  The trial court erroneously dismissed these causes of action on summary judgment.  The trial court failed to appreciate the facts, and as is clear from the written transcript, did not allow counsel for Plaintiff the opportunity to fully argue these points and direct the trial court to the relevant portions of the record that support her claim.  Based upon the totality of evidence, a jury, and respectfully not the trial court, should decide the merits of Plaintiff’s claims.  Summary judgment must be reversed.  Respectfully submitted, [...]  By: ____________________________  [...]  DATED: April 24, 2024
[brief] This Policy appropriately balances a student’s rights to express their gender identity in school with concomitant parental rights.  More significantly, the Policy is in the student’s best interest to facilitate a healthy environment to communicate with parents rather than allow for haphazard notification of parents without the support school can provide.  Indeed, as the State has recognized, “Appellants would still be required to supply school records to a parent,” including presumably, a student record that a transgender student has changed without parental consent or notification.  Pb29-30.  Thus, the State’s desired result is for the parents to learn of student’s expressed gender, without the support of the school, and without notice to the affected student.  It is painfully obvious that this is not a good result.
[brief] 3.  In November 2018, Plaintiff completed the Advanced Placement® (“AP”) exam form incorrectly and failed to give it to [...] until just two days before it was due back to the College Board, when she had it since October 15, 2018.  (Da286).  4.  Plaintiff continued to send unapproved pre-conference forms to staff even though she was reminded a “second time” that “only approved forms were to be used,” as brought to [...]’s attention by a staff member.  (Da287).  5.
[brief] oral argument, the Honorable [...], J.S.C., issued a written opinion on February 12, 2024, finding the defendant guilty of DWI and imposed the same sentence as the municipal court.  (Da 1-16).  On March 21, 2024, defendant filed a Notice of Appeal from the Law Division decision.  (Da 27-33).  This appeal follows.  **COUNTER-STATEMENT OF FACTS**
[brief] ”  Anderson, supra, 477 U.S. at 249.  Credibility determinations will continue to be made by a jury and not the judge.  Only if there exists a single, unavoidable resolution of the alleged disputed issue of fact, which does not exist here, then and only then should that issue be considered insufficient to constitute a “genuine” issue of material fact for purposes of Rule 4:46-2.  Anderson, supra, 477 U.S. at 250.
[brief] THE TRIAL COURT BELOW ERRED IN MAKING FACTUAL FINDINGS THAT ARE NOT SUPPORTED BY THE RECORD (T1 at 57:21-58:11; 58:25-59:5; 59:11-16; 60:6-9; 61:22-25; 62:1-23; 64:4-66:14; 85:408; 101:6-12; 103:16-104:1; 105:16-106:11; 153:2-5; 153:20-21; 154:23-24; 155:1-6; 157:21-22; T3 at 16:13-23; 16:25-17:10; 20:8-21:14; 30:20-33:18; T4 at 25:2-4)  The Court below found that [...] use was “similar to [...]. ” (T4 at 25:2-4).  That finding is not supported in any way by the testimony below.  It is uncontested that [...] had no deliveries of food product from purveyors because he himself went shopping, got whatever he needed and brought it to the store himself. (T3 at 30:20-32:9; 16:13-23; 16:25-17:10; 20:8-21:14; T1 at 101:6-12; 105:16-106:11).  [...] has delivery trucks.  Those trucks, including tractor trailers, illegally park on the street, within fifty feet of a stop sign, within twenty-five feet of a crosswalk, and make dangerous U-turns and K-turns trespassing on the property of the [...] and [...].  (T1:60:6-9; 61:22-25; 62:1-23; 64:4-66:14).  There was uncontested testimony that [...] operation creates more noise than [...]’s.  Obviously, there are two days of the week that [...] is open that [...]’s was not, which are days that noise is created from the business operation.  In addition, it is uncontested that the hours of operation are greater at [...], which adds additional noise during hours when there was quiet for the [...] operation.  Some of the delivery trucks for [...] are refrigerated and some are diesel and they are left idling for a substantial period of time creating noise that was not present during the [...] operation.  (T1 at 57:21-58:11; 58:25-59:5; 59:11-16; 85:4-8; 103:16-24; 103:25-104:1).  In addition, the smells generated by the business are greater/different under [...] than under [...].  No one contested the testimony that the diesel fumes from delivery trucks are present in [...] operation that were not present in [...]’s.  The appliances for the preparation of food are substantially different in [...] than in [...]’s.  [...] only had a pizza oven.  (T3 at 30:20-32:9; T1 at 153:2-5; 153:20-21; 154:23-24; 155:1-6; 157:21-22).  [...] has induction cooktops, microwave and more refrigeration.  At no time did [...] ever apply to the Board of Adjustment for permission to add these additional appliances like [...] did.  It is to be remembered that [...] in fact in 1984 went to the Board for permission to install a pizza oven.  Finally, the [...] menu is substantially more expansive than [...]’s. (T3 at 32:10-33:18).  Appellants submit that the Court’s factual conclusion that [...] operation is “similar” to the [...] operation is patently incorrect and is unsupported by the uncontradicted uncontested evidence in the record.
[brief] The so-called “Consumption Exception” was triggered by the mold on food that [...] consumed.  The revised mold exclusions in the three [...] policies at issue not only eliminated the restrictive ACC clause, but further broadened coverage with new language stating that the mold exclusion “does not apply to fungi or bacteria that are, are on, or are contained in, an edible good or edible product intended for human or animal consumption. ” (emphasis added).
[brief] THE TRIAL COURT ERRED IN EXCLUDING FROM EVIDENCE  THE [...] RESOLUTION THAT THE LOT 8 OFF-SITE PARKING ON THE SCHOOL LOT 5 IS NOT A LEGAL NONCONFORMING USE.  THERE IS NO MUNICIPAL LAND USE BOARD APPROVAL FOR ANY SUCH JOINT PARKING USE ON THE SCHOOL LOT 5.  THE 1972 SITE PLAN APPROVAL FOR THE EXPANSION OF SCHOOL PROPERTY DOES NOT INCLUDE JOINT PARKING USE, INFERENTIALLY PRECLUDES SUCH USE, AND IS CONCLUSIVE THAT NO EASEMENT EXISTED OR THAT THE LICENSE TERMINATED (APPEALS FROM TRIAL COURT RULING ON MOTION IN LIMINE  EXCLUDING BOARD  RESOLUTION  6T 62-13 TO 72-25)  While the first Appeal was pending before the Appellate Court, the School in August 2018 filed an Administrative Appeal to the Zoning Board as per N.J.S.A. 40:55D-68 for a determination as to whether the off-site parking use by [...] staff/attendees was a valid and legal pre-existing, nonconforming use on the School Lot 5.  The Zoning Board on October 15, 2018 conducted a hearing - both the School and the Synagogue, each represented, participated.  Witnesses and evidence was presented on the issues.  The Zoning Board concluded that the off-site parking of [...] staff/attendee vehicles on the School Lot 5 is not now a permitted use, and that no proof was presented that use is a legal pre-existing non-conforming use; the Resolution of November 19, 2018 memorialized that determination.
[brief] Although Petitioner’s argument is not easy to understand, Petitioner appears to be arguing that at the time the Board issued its November 16, 2022 Final Administrative Decision, Petitioner had been disabled for five years and therefore the examinations set forth in N.J.S.A. 43:16A-8(2) were purportedly a “moot issue” (Pet. Br., pp. 19, 26-27).  Petitioner argues that the Board has not ordered an IME to determine whether Petitioner regained fitness or could regain fitness (Pet. Br., p. 11), and notes the ALJ’s observation that [...] can seek employment with another employer should he believe he is fit for duty, and disability benefits can then be discontinued (Pet. Br., pp. 13, 18, 27, 36).  As an initial matter, the alleged shooting incident occurred on January 1, 2018, four years before the November 16, 2022 Settlement Agreement (PA147).  The Board had no reason to order an IME because Petitioner was barred from re- employment with [...] due to the Settlement Agreement.  Nor had he been retired on a disability retirement allowance as contemplated by N.J.S.A. 43:16A-8(2).  Petitioner’s argument that [...] can seek employment with another employer was rejected by the Court in M.R., which noted that our courts have consistently ruled that employees who are no longer disabled must return to either their prior positions or any available duty that their employers are willing to assign to them.  M.R., 2020 N.J. Super. Unpub. LEXIS 615, at **9-10.  In short, [...]’s inability to return to work for [...] “is fatal” to his AD application.
[brief] The Respondent/Applicants hereby join in and rely upon the arguments presented to this Court by co-defendant Respondent [...].  POINT I THE LOWER COURT PROPERLY FOUND THAT APPELLANTS FAILED TO ESTABLISH THAT THE APPLICANT’S NOTICE OF HEARING WAS DEFECTIVE.  (Pa 30-Pa 37; 3T35-4-3T38-5)  One of Appellants’ contentions throughout their Appellant brief is that the Applicants failed to provide proper Notice of the hearing.  However, nothing in Applicants’ submissions or in the Trial Court’s ruling indicate that the Notice failed to comply with N.J.S.A. 40-55D-11.  The statute demands that the Notice provide: (1) the date, time and place of the hearing; (2) nature of the matters considered; (3) identification of the property by street address or block and lot number; and (4) location and times available of any maps and documents concerning the application.  Moreover, the test for adequacy of a Notice is whether it “inform[s] the public of the nature of the application in a commonsense manner such that the ordinary lay person could intelligently determine whether to object or seek further information. ”  Cox & Koenig, New Jersey Zoning and Land Use Administration (Gann), § 18-1.2 (citing Perlmart v. Lacey Township Planning Board, 295 N.J. Super. 234 (App. Div. 1996)).  Additionally, whether the application and corresponding Notice were expressed in terms of an expansion of a preexisting nonconforming use, or a new, non-allowed use, is immaterial to the adequacy of the Notice.  The burden of proving the positive and negative criteria of the Municipal Land Use Law, N.J.S.A. 40:55D-70(d), remains the same.  Cox & Koenig, New Jersey Zoning and Land Use Administration (Gann), §33-2.1.  Moreover, although the expansion of a preexisting nonconforming use ordinarily requires a (d)(2) variance, “the addition of an entirely new non-permitted accessory…use should require a d(1) variance. ”  Cox & Koenig, New Jersey Zoning and Land Use Administration (Gann), §33-2.1.  In this case, the Notice stated:  The applicant is seeking a use variance to allow an accessory structure larger than the principle [sic] use on the property, along with any other variances deemed necessary by the Board.  The accessory is approximately 2160 square feet and the principle [sic] structure is approximately 1152 square feet.  [July 18, 2022 Notice to Property Owners].  (Pa 31)  Here, the Notice properly expressed in a “commonsense” manner, the relief requested by the Applicant.  A lay person could understand that Applicants were requesting a use variance to allow a structure of a particular size, expressed in square feet, to exceed the size of the principal structure on the property, also expressed in square feet.  The Notice needs not express citations to the Township Code nor particular provisions of the MLUL, in order to inform an “ordinary lay person” the nature of the relief requested.  Thus, the Board properly determined that the Notice adequately expressed a “commonsense” description of the relief requested by the Applicants in a manner that an ordinary lay person could intelligently determine whether to object to or seek further information.
[brief] The Trial Court’s Orders Entered against Defendant for its Continued Violations and Installation of a Fence across the Sixth Street Lot were not an Abuse of Discretion and Cannot be Disturbed on Appeal.  (Da170; Da177-209; Da295-693; Da965-972; 1T; 2T; 3T)  As set forth in detail in Plaintiff’s Counter Statement of Facts, Defendant’s violations of the 2017 Judgment were repeated, intentional and exhibited a total lack of regard for the rulings of the Trial Court.
[brief] . . .”  Similarly, the award of the litigation receiver’s fees and costs is precluded by exclusion q.  The request that the litigation receiver’s fees and costs be assessed against the non-prevailing party was made by the [...] through its receiver.  The Court adopted the receiver’s request in awarding these fees and costs.  Coverage for this award is barred by exclusion q because the award is based on a “claim . . . brought by or on behalf of an [] insured. ”  Lastly, the award of fees and costs under 17A V.S.A. Section 4-117(a) are precluded under exclusion o, as a penalty imposed by law.
[brief] A.  THE TRIAL COURT FAILED TO RECOGNIZE THE DEFENDANTS’ INHERENT CONFLICT OF INTEREST IN A CASE SUBJECT TO THE CNA.  (RAISED BELOW, PA307-08; PA310; PA313-14; PA316).  ..................................................................................................................................................................................11  B.  DEFENDANTS’ PER SE CONFLICT IS UNWAIVABLE IN LIGHT OF GRAND JURY’S PROHIBITION OF THIRD-PARTY PAYOR ARRANGEMENTS.  (RAISED BELOW, PA307-08; PA310; PA313-14; PA316)  ..................................................................................................................................................................................24  C.  SHOULD THIS COURT FIND THAT DEFENDANTS’ PER SE CONFLICT IS WAIVABLE, THE RECORD WAS INSUFFICIENT FOR THE TRIAL COURT TO ASSESS THE SUFFICIENCY OF THE WAIVER.  (RAISED BELOW, PA307-08; PA310; PA313-14; PA316). .29 CONCLUSION ......................................................................................................................33 # TABLE OF AUTHORITIES | Case Name | Page(s) | |------------------------------------------------|---------| | **Cases** | | | Allstate Ins. Co. v. Northfield, | 5, 22 | | 228 N.J. 596 (2017) | | | Bituminous Ins. Cos. v. Pa. Mfrs.’ Ass’n Ins. Co., | 18 | | 427 F. Supp. 539 (E.D.Pa.1976) | | | Brazza v. Kagen, | 29 | | A-1991-21, 2023 WL 4418263 (App. Div. July 10, 2023) | | | Brodsky v. Grinnell Haulers, Inc., | 15, 19 | | 181 N.J. 102 (2004) | | | City of Atlantic City v. Trupos, | 11 | | 201 N.J. 447 (2010) | | | Clark v. Corliss, | 19 | | 98 N.J. Super. 323 (App. Div. 1967) | | | Comando v. Nugiel, | 12 | | 436 N.J. Super. 203 (App. Div. 2014) | | | Dewey v. R.J. Reynolds, | 24 | | 109 N.J. 201 (1988)
[brief] 3.  [...] f/k/a [...] was named as a defendant in this earlier action filed by [...] in New Jersey Superior Court, Hunterdon County in 2012, on behalf of itself and all others similarly situated.  The claims brought against [...] in 2012 were settled in an executed settlement and release dated Sept. 22, 2014 (Pa000039) and final judgment was entered Feb. 20, 2015 (Pa000071).  4.  [...] is a Delaware limited liability company, with a principal business address of [...] and a registered service of process address at [...], [...].  [...] Financial, LLC is a Pennsylvania limited liability company with its principal business address at [...].  Shift4 Payments and [...] Financial are corporate affiliates of Defendant [...] f/k/a [...].  All three entities were separately named as defendants in the action brought by [...] in federal court, Docket No. [...] (see Pa0000117-118).
[brief] In its Resolution, the Board did the following analysis of comparable zones in [...] and the appropriate density that would be permitted, as follows:  32.  By way of further comparison, the zoning ordinance provides for adult community housing in more than one zone, either limited to a density of 9 units per acre and not more than 12, or not more than 15, habitable rooms, depending on the zone, other than a living room, dining room or kitchen, per acre.
[brief] (Ia143).  As the trial court stated, the “questions were specific.  They were tailored to this situation. ” (2T49:24).  Any reasonable person filling out the Supplemental Form, after already renting 12-15 passenger vans, and knowing they had to fill out the Supplemental Form to obtain coverage for those vans, would understand the information requested.  Moreover, to the extent that Intervenor is suggesting that [...] should have worded its questions differently, New Jersey’s courts have repeatedly rejected arguments that rescission is not available because an insurer should have been “more circumspect or astute.