ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Counsel for Amicus Curiae [...] Date: June 25, 2024  [...], [...], [...], [...], [...], and [...], Appellants V. [...], d/b/a [...], d/b/a [...], d/b/a [...], d/b/a [...], [...], [...], [...], [...], [...], [...] [...], d/b/a [...], d/b/a [...], d/b/a [...], [...], [...], d/b/a [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], Respondents
[brief] Expert depositions were expected to continue through the discovery end date -- as reflected in [...]’s Case Management Order then entered on November 18, 2021 (A273).  [...] again placed too much weight on his speculative worries about delaying a trial that wasn’t even scheduled:  “Well, you’ve got a case that’s going to be four years old.  I don’t know what’s happening in other parts of the state, but we are moving cases here in Monmouth. ”  [...]’s concerns about delaying the case had been lessened by [...]’s extension of the deadlines and forecast for when trial might possibly take place.
[brief] PLAINTIFF’S COMPLAINT WAS PROPERLY DISMISSED PURSUANT TO RULE 4:6-2(e)  WHERE PLAINTIFF’S COMPLAINT FAILED TO STATE A CLAIM FOR WHICH RELIEF COULD BE GRANTED AS TO DEFENDANTS  [...] AND PRINCIPAL [...] (Pa3; Pa6; Pa9)  Pursuant to New Jersey Court Rule 4:6-2, a plaintiff’s complaint must be dismissed where it fails to state a claim upon which relief can be granted.  A “defendant is as entitled to be speedily rid of baseless claims. ”  Horton v. American Inst. for Mental Studies, 145 N.J. Super. 550, 552 (Law.  Div. 1976).  Case law requires prompt adjudication of a motion to dismiss where the public interest is at stake.  See Enourato v. New Jersey Building Authority, 182 N.J. Super. 50 (App Div.), aff’d 90 N.J. 396 (1982).  In deciding a Motion to Dismiss pursuant to R. 4:6-2, the plaintiff’s complaint must be searched in depth and with liberality to determine if a cause of action can be gleaned.
[brief] The Court improperly entered Default on Defective Affidavits (Court did not address these issues)  A  Return of process is entitled to a presumption of validity and may be rebutted only by clear and convincing evidence, far more than a mere preponderance.  A sheriff's return facially indicates compliance with R. 4:4-4(a), and consequently is prima facie evidence that service of process on [Defendant] in the suit was proper.  The rule on this State is that a sheriff’s return of service is part of the record and raises a presumption that the facts recited therein are true.  While the presumption is rebuttable, it can be rebutted only by clear and convincing evidence that the return is false.  Garley v. Waddington, 177 N.J.Super. 173, 180-181 (App.Div. 1981).  See also Intek Auto Leasing, Inc. v. Zetes Microtech Corp., 268 N.J.Super. 426, 431-432 (App.Div. 1993), Goldfarb v. Roeger, 54 N.J.Super. 85, 92 (App.Div. 1959), Hotovitsky v. Little Russian Greek Catholic St. Peter & Paul Church, 78 N.J.Eq. 576, 577 (E&A, 1911), Seymour v. Nessenbaum, 120 N.J.Eq. 24 (Ch. 1936), Blair v. Vetrano, 12 N.J.Misc. 462 (Sup.Ct.1934), Vredenburgh v. Weidman, 14 N.J.Misc. 285, 287.
[brief] The Legislature specifically acknowledged the MLUL standard when it decided the general ordinance notice was sufficient.  *N.J.S.A.* 40A:12A-7(c).  Courts will “presume that the Legislature intended the outcome dictated by the clear language of the statute” because “[t]he Legislature knows how to draft a statute to achieve that result when it wishes to do so. ”  *Zabilowicz v. Kelsey*, 200 N.J. 507, 513 (2009).  Neither Plaintiff nor the Court is permitted to rewrite *N.J.S.A.* 40A:12A-7(c) to require something more.
[brief] It includes no accrual cutoff date.  Instead, “Released Claims” includes all claims, “known or unknown, that were, have been or could have been, now, in the past, or in the future” asserted in [...].  Settlement Agreement, § 1.29 (emphasis added) (Pa000044).  As the trial court held, the [...] claims about [...]’s fees and amendments are “striking[ly]” similar to the [...] claims.  Pa000108.  Not only do Plaintiff’s [...] claims “relate to” the same issues in [...], but they center on fees and amendments—“exactly” the issues [...] raises—and therefore “could have” been brought in [...].  Indeed, if Plaintiff wanted to negotiate the cessation of a business practice (i.e., the way in which [...] amends and modifies its fee structure), he could have done that.  He didn’t.  Instead, he released those claims, and [...]’s decision to enforce the Settlement Agreement, should be affirmed on this basis.
[directive] • Reholster an uncocked weapon.  Phase III 15-Yard Line.  Time: 25 seconds.  7 rounds.  Point shoulder position.  Strong-hand kneeling position.  •  On command, from a secured holster position, draw and fire 3 rounds from a point shoulder position.  •  Assume a strong-hand kneeling position.  Reload with 4 rounds, index if required, and fire 4 rounds from a strong-hand kneeling position.  ---STOP TIME--- •
[brief] Despite [...]’s not having pled any claim or cause of action against [...] (PPCIa053-75) and not having filed an answer or other pleading responsive to [...]’s counter-complaint for declaratory judgment, to which [...] was named as a party (PPCIa132), the trial court erroneously granted [...]’s motion for “final judgment” against [...] for $750,000 by reason of the MCS-90 endorsement to its policy.  [...] is a party only by reason of [...]’s third party complaint and its counterclaim and third party complaint for declaratory judgment.  Obviously, a party cannot move for summary judgment with respect to a cause of action it never has pled in a complaint, counterclaim, cross-claim or third party complaint; these are the only affirmative pleadings allowed (see R.  “A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain a statement of the facts on which the claim is based showing that the pleader is entitled to relief” (R. 4:5-2; emphasis added).  The object of affirmatively pleading a claim for relief is to give notice consistent with due process:  “[i]t is fundamental that the pleading must fairly apprise the adverse party of the claims and issues raised. ”  Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 4:5-2 (2024).  Since [...] could not have obtained summary judgment that [...] is obligated to pay the judgment [...] has recovered against [...], having never pled such claim, or any affirmative claim, against [...], the February 23, 2024 “final judgment” entered against [...], holding it liable by reason of the MCS-90 endorsement to its policy to pay $750,000 of the judgment against [...], was entered in error and must be vacated.
[brief] The sham affidavit doctrine was raised by defendants in a reply brief.  There thus existed no provision permitting plaintiff to submit written opposition to the argument prior to the return date of the motion.  R. 1:6-3.  The motion court’s conclusion that [...]’s certification contradicted his deposition testimony and discovery responses is incorrect because [...]’s deposition testimony and answers to interrogatories indicate clearly that he was relying on the proceeds from the sale of the hospital to get paid.  [...]’s deposition testimony reads as follows:  Q.  Did you ever have any conversations with either Tamara or [...] about any alleged amounts you were owed?  A.  Yes.  We—again, it was during the Christmas party event, which was at the end of December 2017, and myself and another physician who was owed money, too, we approached [...] and said you know you’re selling the hospital but we haven’t gotten paid.  And he said don’t worry.  The new owners have six years to pay us and we will pay you.  (Volume 1, Pa. 85; See Bellifemine Dep., TR 83-11 to 25).  [...]’s answers to interrogatories also identify the sale of the hospital and defendants’ non-payment of his salaries after the sale of the hospital as the impetus for the filing of the lawsuit.  In answer to interrogatory #4 which asked about the steps [...] took to obtain payment from the defendants, [...] stated:  Defendants repeatedly promised to pay plaintiff and did not do so.  They claimed that they had six years to pay him but have taken no action to do so since the hospital was sold.  (Italics added)  Volume 4 Pa. 576-577.  [...]’s discovery responses do not provide a basis for application of the sham affidavit doctrine.  Instead, [...]’s prior discovery responses buttress his claim that he relied on defendants’ promises to pay him after the hospital was sold.  The motion court’s decision to bar [...]’s reliance on defendants’ promises to pay him after the sale of the hospital based on equitable estoppel should not have been excluded pursuant to the sham affidavit doctrine.  The entry of summary judgment based on the sham affidavit doctrine should be reversed.
[brief] Complainants discuss I/M/O Treston, [...], [...] in support of their argument that school board members must always include a disclaimer in their social media posts.  Cb29-Cb30.  The Commission's opinion in Teston merely quoted the footnote in Melnyk and states the following:  ...  [T]here is a robust body of decisions and advisory opinions which school officials can utilize to determine when, and how a disclaimer must be used on social media (and other online/electronic publications) when speaking in their personal/private capacity in order to avoid running afoul of the Act.  Treston at 9 (emphasis added).  Thus, Teston, like Melnyk, does not reflect an across-the-board requirement that school board members include a disclaimer in all their social media posts.
[brief] ”  *Cox*, supra, at pp.262, citing *Kenwood Assocs. v. Bd. of Adj. Englewood*, 141 N.J. Super. 1 (App Div. 1976).  “It was not the burden of the board to find affirmatively that the [master] plan would be substantially impaired…it was the burden of the applicant to prove the converse. ”  *Weiner v. Zoning Bd. of Adjust. of Glassboro*, 144 N.J. Super. 509, 516 (App. Div. 1976).  Consequently, Plaintiffs’ claim that they are entitled to the height variance they sought in this case rests entirely upon the probative value, credibility, and thoroughness of the affirmative testimony of Plaintiffs’ witnesses on both the positive and negative criteria applicable to such variances.
[brief] The Company has no interest in protecting [...] personally, and would be expected to have taken a neutral stance on many issues relating to [...]’s wrongdoing.  Yet, the Company expended attorneys’ fees, for example, arguing that it was totally appropriate for [...] to cause the Company to loan [...] $970,000, or that it was completely proper for [...] to cause the Company to issue [...] a $1M AMF bonus at [...]’s direction.  The Company’s arguments were entirely against the Company’s interests, but the Company expended legal fees fighting the Individual Plaintiffs (a third party at the time) as a result of [...]’s breaches of his fiduciary duties to the Company.  The Arbitrator reasoned “this may be tiresome, but the prior Orders entered in this Arbitration, the violation of the Orders, the ancillary litigation in the Chancery Division, the Belize saga, dismissing and retaining counsel, ultra vires activities and Claimant’s companion claims, herein, were initiated by [[...]].”  (Da2215)
[brief] We don’t have to look very far.  In discussing this point at (Pb17), Plaintiff cites State by Commissioner of Transportation v. Caoili 135 N.J. 252, 270 (1994).  The Court states:  “Three valuation methodologies may be used in appraising condemned property with a reasonable probability of a zoning change: reproduction cost, capitalization cost, and the comparable [sale] value.  American Institute of Real Estate Appraisers, The Appraisal of Real Estate 51-53 (1983)…”  The Court then went on to point out that Plaintiff’s experts used the comparable sales approach.  (Actually both parties’ experts used the comparable sales approach).  The issue was whether the Court should require the Gorga approach of using sales as zoned and adding a premium, versus using comparable sales of the likely rezoning which was not yet a reality and subtracting a discount.  The point here is that the Court relied upon the Appraisal text to establish the potential methodologies available and determined that both methods were acceptable.
[directive] The following procedures apply only to collections from municipal court defendants who are obligated to pay transaction fees.  1)  In those jurisdictions where Probation exercises responsibility for collecting payments, pursuant to N.J.S.A. 2C:46-4a(2):  (a) if the defendant makes full payment to the municipal court administrator of all monetary obligations imposed under the sentence, no transaction fee will be charged; or (b) if the defendant makes partial payment to the municipal court administrator, collection of the transaction fee will be deferred until the defendant's next payment to the Probation Division is due; at that time, both the deferred fee and the fee for the second payment will be collected by the Probation Division.  2)  In those jurisdictions where the local practice is for the municipal court administrators to collect payments ordered as a condition of probation, contrary to N.J.S.A. 2C:46-4a(2), the preceding does not apply.  Rather, the municipal court administrator will collect the transaction fees appropriate to each payment, based on the transaction fee schedule, and forward that money to the county probation division monthly.  Administrative forms and instructions to implement these policies will be forthcoming.
[brief] ”  Da42.  Defense counsel was therefore put on notice of the forthcoming Order to Produce and the consequences for failing to comply with that Order.  Thereafter, the trial court filed two separate letters to eCourts advising defense counsel of Defendant’s responsibility to pay the prisoner transportation costs.  On February 16, 2024, the trial court filed a letter to eCourts advising all of the parties that the Court will be issuing an Order to [...] arranging for Defendant to be transported to Morris County for the trial, provided that, because this is a civil litigation, Defendant would be required to pay the transportation costs.
[brief] I.  THE BOARD’S ACTION HEREIN WAS NOT ARBITRARY, CAPRICIOUS AND UNREASONABLE, AND AS SUCH THE TRIAL COURTS HOLDING SHOULD BE UPHELD.  As an initial matter, while Plaintiff-Appellant’s Complaint in Lieu of Prerogative Writ names the [...] as a Defendant, the Complaint contains no specific allegations of a breached standard in the action undertaken by the [...] herein, nor does Plaintiff-Appellant seek any specific relief against the [...].  Even searching Plaintiff-Appellant’s Brief “in-depth and with liberality” as required under Printing Mart v. Sharp Electronics, 116 N.J. 739 (1989), there is no specific allegation against the [...] that it breached any standard, or even what that standard is under the law.  Further, Appellant’s Appellate Brief makes no specific claims as to the [...]’s actions nor does Appellant request any form of relief against the [...].  The [...] defers to the [...] on its defense of the subject ordinances.  To the extent the [...]’s actions are implicated in Plaintiff-Appellant’s Brief, the [...] will address its actions.  Appellant’s Brief does not directly address the claim that the [...]’s actions in respect to Ordinance 2022-17 were arbitrary, capricious and unreasonable; however, it may be read to implicate the [...]’s actions in regard to Ordinance 2022-17.  More specifically, Plaintiff-Appellant alleges that the [...] never made a finding of inconsistency in regard to Ordinance 2022-17, amending the Redevelopment Plan.  Therefore, in an abundance of caution, Defendant-Respondent [...], will address the claim that the [...]’s actions were arbitrary, capricious, unreasonable.
[brief] **  The Board reviewed the [...] application and analyzed the proofs and surrounding facts based upon the *Sica* standard.  The Board found the proposed use to be inherently beneficial (despite including independent senior apartments) and treated the [...] application based upon it being fully inherently beneficial.  This four part test is set forth in *Sica v. Bd. of Adjustment of Twp. of Wall*, 127 N.J. 152, 165-66, (1992):
[brief] “Erroneous instructions on matters material to the juror’s deliberations are presumed to be reversible error. ”  *Id.*; citing *State v. Grunow*, 102 N.J. 133, 148 (1986).  See also *State v. Brown*, 138 N.J. 481, 522 (1984), overruled on other grounds by *State v. Cooper*, 151 N.J. 326 (1996)(clear and correct jury instructions are essential for a fair trial.)
[directive] Section 33-11.1 includes two other provisions that bear mentioning.  First, the law provides that illegally evicted occupants are entitled to reenter their residences “without delay,” and that the occupants who seek reentry shall not be considered trespassers or chargeable with any offense, but only so long as a law enforcement officer is “present at the time of reentry. ”  Second, the law creates an affirmative duty for officers present during reentry to prevent the landlord or other persons from “obstructing or hindering” such reentry by the occupant.  Taken as a whole, Section 33-11.1 outlines a process for preventing illegal evictions and holding irresponsible landlords accountable, but also imposes several requirements on law enforcement officers not typically found in other criminal statutes.
[brief] This was so for six reasons: 1. “defendant admitted that he was the person” depicted in the video; 2. defendant made “key admissions,” e.g., admitting to carrying a handgun he had no permit to possess; 3. defendant “admitted this his handgun had discharged; 4. the officer who was the victim of the shooting testified; 5. the video itself, which “by no means establishe[d] that defendant intentionally shot at” the officer, did capture the entire shooting incident; and 6. the State’s ballistics expert refuted defendant’s claim of an accidental discharge.  Id. at 551.  Like the Allen Court, this Court too can find found on this record “powerful evidence” sufficient to negate the few instances of improper testimony and to ensure that the jury’s verdict is not in doubt.
[brief] Nevertheless, [...] argues that the limitation period in the statute should not be strictly applied because it “fails to advance the legislative purpose of the Ricci Act. ” (Pb14).  But this is a misinterpretation that contradicts the Legislature’s actual intent, as explicitly stated in the statute it enacted.  “The Court’s obligation when interpreting a law is to determine and carry out the Legislature’s intent. ”  Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531, 540-41 (2012) (citing Allen v. V & A Bros., Inc., 208 N.J. 114, 127 (2011)).  “[T]he best indicator of that intent is the statutory language[.]”  Richardson, 192 N.J. at 195 (first alteration in original) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)).  “A court should ‘asccribe to the statutory words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as a whole. ’”  D’Ambrosio v. Dep’t of Health & Senior Servs., 403 N.J. Super. 321, 334 (App. Div. 2008) (citing DiProspero, 183 N.J. at 492).  Here, the Legislature clearly intended a limitation period of eligibility for the presumption or recalculation provided under the Ricci Act, as the plain language of the statute sets a two-year deadline ending July 8, 2021, after which a “retiree shall not be eligible” for such benefits.  N.J.S.A. 53:5A-10(e)(4).  Under [...]’s argument, any member of [...] who was unaware of the Ricci Act could apply at any arbitrarily distant point in the future.  This would nullify the two-year time limitation created by the Legislature, extend the presumption beyond its intended time frame, and diminish the ability of the Division and the Board to verify applicants’ dates and locations of service as witnesses and memories inevitably continue to become unavailable and fade.  Ignoring the plain language of the statute, which imposes a two-year deadline, would not further the Act’s legislative purpose.  Even if the statutory language were not clear, [...]’s position would lead to an absurd result which would render the two-year statutory limitation superfluous.  In this regard, “[w]hen construing a statute, ‘legislative language must not, if reasonably avoidable, be found to be inoperative, superfluous or meaningless. ’”  State v. Regis, 208 N.J. 439, 449 (2011) (quoting Franklin Tower One, LLC v. N.M., 157 N.J. 602, 613 (1999).  Accordingly, the Board reasonably denied [...]’s request to apply for amended benefits under the Ricci Act because he failed to file his Eligibility Registration Form within the required statutory timeframe.
[brief] [...] v. J.J. Farber-Lottman Co., Inc…………Dtsa1  [...] v. [...]…………………………Dtsa4  [...] v. [...]….Dtsa9  Letter brief filed April 28, 2023 in reply to [...]’s surreply brief……  Dtsa15  *  Defendant [...]’ supplemental appendix is abbreviated as “Dtsa. ”  Dtsa15, et seq., is a letter to the court below, which is submitted pursuant to R.2:6-1(a)(2) to confirm that a germane argument was properly presented below, refuting respondents’ assertion that an argument “was first raised in [...]’ reply brief and goes beyond the issues raised in its summary judgment motion. ” (Zb40.)  See, post at 20, n.14.  PROCEDURAL HISTORY
[brief] United Prop. Owners Ass'n of Belmar v. Borough of Belmar, 343 N.J. Super. 1, 35 (App. Div. 2001).  (internal citations omitted)(emphasis added)  Substantive due process requires that the Ordinance have a legitimate purpose or “rational basis” and where a fundamental right is involved, due process will require a “more exacting” standard.
[brief] The court also granted summary judgment on Count Two of plaintiff’s complaint.  T33:2-3.  Count Two alleged that the [...]’ driveway encroached onto plaintiff’s property.  Ibid.  However, plaintiff admitted that he could not establish that the [...]’ driveway encroached onto his property.  T32:15-33:3.  The court therefore dismissed Count Two with prejudice.  T60:17-24.  Plaintiff does not appeal the dismissal of Count Two.
[directive] Pursuant to the authority granted to me under the New Jersey Constitution; the Law and Public Safety Act of 1948, N.J.S.A. 52:17B-1, seq., which provides for general responsibility et of the Department’s operations and the supervision of the organization of the Department; and the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97, seq., which provides for the general et supervision of criminal justice by the Attorney General as chief law enforcement officer of the State in order to secure the benefits of a uniform and efficient enforcement of the criminal law and the administration of criminal justice throughout the State, I have determined that the organization described herein is necessary for the efficient and effective operation of New Jersey Is An Equal Opportunity Employer • Printed on Recycled Paper and is Recyclable Page 2  Department’s law enforcement functions and hereby direct all Department personnel to implement and comply with the following directives.  I.  Office of Public Integrity & Accountability  A. Establishment.  There is established in the Department of Law & Public Safety, within the Division of Criminal Justice, an Office of Public Integrity & Accountability (the Office, or OPIA).
[brief] ’”  [...] v. [...], [...], 2022 WL 2352376, at *6 (N.J. Super. Ct. App. Div. June 30, 2022); ([...]).  In Superior Officers’, the Appellate Division found that “MSRA’s findings and declarations undeniably supply the justifications for granting the State the authority to unilaterally modify the expired-but-effective CNA” at issue.  Id. at *9.  D.  Plaintiffs’ Complaint.