ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] LEGAL ARGUMENT POINT I.  THE APPELLANT’S EMPLOYMENT HISTORY IS NOT SUFFICIENT TO REMOVE HER NAME FROM THE PROMOTION LIST.  (AA0001-8; AA0009-16)  The [...] promoted Appellant to Sergeant in 2018, after reviewing her employment history including the 2012 major discipline.  The Commission dismissed this prior promotion as irrelevant, but it is clear that this 2018 promotion should be considered when reviewing the current improper request for removal in this matter.
[brief] On April 21, 2021, [...] (herein referred to as “[...]” or “Appellant”) had an appointment with her two young daughters, minors [...] and [...].  [...] does not have a driver’s license, so she relies on car services such as [...] for transportation.  The [...] that [...] had ordered on April 21, 2021 was being driven by Respondent, [...] (herein referred to as “[...]”).  As [...] was driving [...] and her two young daughters to their appointment, he decided to pay more attention to his phone instead of the road.  At the same time, Respondent, [...]’s, truck, which was being operated by Respondent, [...], (herein referred to as “[...]”) was negligently trying to park.  Due to [...]’s inattention, the [...] vehicle rammed into the truck being operated by [...] causing the [...] vehicle to flip over.  As a result, [...] and her two daughters, who were simply trying to get to a routine appointment, suffered severe and permanent injuries that have changed their lives forever.  On July 17, 2024, the trial court granted Respondent’s, [...] and [...] (herein referred to collectively as “[...]”), Motion to Compel Arbitration and Stay the Case.  Appellants contend that the trial court erred in its decision about: (1) whether [...]’s Terms and Conditions, including the Arbitration Agreement, were unconscionable because they were given to [...] in English, despite the [...] application being in Spanish; and (2) whether [...] unequivocally checked the box agreeing to [...]’s Terms and Conditions, including the Arbitration Agreement.
[brief] (Pa873-874; Pa1154-1157; Pa851-858; Pa1159-1166)  Finally, plaintiffs misconstrue the meaning of the word “adjacent” as used in the contract.  They argue it means “nearby” the tenants’ premises, rather than “immediately adjoining” them.  (Pa20-22)  This is a transparent attempt to impermissibly rewrite the lease to support the result they seek.  “Adjacent” means “lying near, close, or contiguous; neighboring; bordering on; as, a field adjacent to the highway. ”  Webster’s 1913 Dictionary.  It is defined in WordNet Dictionary as: 1) nearest in space or position, immediately adjoining without intervening space; “had adjacent rooms,” in the next room”; “the person sitting next to me;" "our room were side by side."  Synonyms: next, side by side 2) having a common boundary or edge; touching; "abutting lots"; "adjoining rooms"; "Rhode Island has two bordering states; Massachusetts and Connecticut;," "the side of Germany contiguous with France"; "Utah and the contiguous state of Idaho"; "neighboring cities"  Synonyms: abutting, adjoining, conterminous, neighboring, contiguous 3) near or close to, but not necessarily touching; "lands adjacent to the mountains"; "New York and adjacent cities"  Plaintiffs focus on the third definition in support of their argument, and ignore the first two.  The third definition is listed third because it is the least common and least accepted.  It is the normal practice of those who define words to set forth the most common definition of the word first, followed by the next most commonly used, and finally the last.  English Language and Usage Stack Exchange, October 8, 2012.  https://english.stackexchange.com.
[brief] 32  Leodori v. CIGNA Corp., 175 N.J. 293 (2003) .........................................................................................  29  Martindale v. Sandvik, Inc., 173 N.J. 76 (2002) ............................................................................................  25 Mattia v. Northern Insurance Co. of New York, 35 N.J. Super. 503 (App. Div. 1955) .................................................................  37 Merchants Indemnity Corp. of N.Y. v. Eggleston, 68 N.J. Super. 235 (App. Div. 1961) .................................................................  37 Miranda v. Arizona, 384 U.S. 436 (1966) .........................................................................................  22 Morgan v. Sanford Brown Institute, 225 N.J. 289 (2016) ................................................................. passim Moore v. Woman to Woman Obstetrics & Gynecology, L.L.C., 416 N.J. Super. 30 (App. Div. 2010) ...........................................  24, 44 Moore v. Woman to Woman Obstetrics & Gynecology, L.L.C., (Moore II), [...] (App. Div. Aug. 14, 2013) ....................................... 44, 45 Muhammad v. County Bank of Rehoboth Beach, Delaware, 189 N.J. 1 (2006) ........................................................................ 9, 32 MZM Construction Co. v. N.J. Building Laborers Statewide Benefit Funds, 974 F.3d 386 (3d Cir. 2020) .......................................................... 31 New Jersey Division of Youth & Family Services v. M.M., 189 N.J. 261 (2007) ..................................................................... 34 NAACP of Camden County East v. Foulke Management, 421 N.J. Super. 404 (App. Div. 2011) .......................................... 14 Nester v. O’Donnell, 301 N.J. Super. 198 (App. Div. 1997) ........................................... 29 New Jersey State Mutual Fireman’s Benevolent Association v. North Hudson Regional Fire & Rescue, 340 N.J. Super. 577 (App. Div. 2001) .......................................... 45 Ogunyemi v. Garden State Medical Center, [...], __ N.J. Super. __ (App. Div. Mar. 25, 2024) .......... 15, 28-29
[brief] The statute details when relief under (c)(1) is appropriate and when relief under (c)(2) is appropriate.  Relief under (c)(1) and (c)(2) are available together and/or alternatively.  Subsection (c)(2) allows the grant of a variance where the purposes of the MLUL would be advanced by a deviation from the zoning ordinance requirements and the benefits would outweigh any detriment to the public good.  “No variance or other relief may be granted under the terms of [subsection c] … without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. ”  N.J.S.A. 40:55D-70(c); Medici v. BPR Co., 107 N.J. 1, 4 (1987).
[brief] M7.  On November 4, 2020, defendants Township, Mayor and Zoning Board filed motions for leave to appeal, which were denied by Orders of the Appellate Division dated December 24, 2020.  M516, M517  Among other things, the Defendants sought interlocutory review of the Trial Court’s October 15, 2020 Order appointing the Special Hearing Officer.  On June 28, 2021, Plaintiffs filed a motion seeking entry of an Order providing that installation of a traffic light on Route 33 shall not be deemed a condition of approval for its proposed inclusionary development, despite language set forth in the prior Resolution of Approval for the Original Application dated April 26, 2016.  By Order dated September 14, 2021, the Court denied the motion in part, and remanded consideration of the installation of the traffic signal to the Special Hearing Officer.  M474.  By subsequent Order dated October 21, 2021, the Trial Court dismissed the Eighth Count of the Complaint (asserting defamation) for procedural reasons.  Ra125.  On March 24 and 25, 2022, the Special Hearing Officer, [...], conducted public hearings on Plaintiffs’ Site Plan Application, preceded by all notices required by law, hearing testimony and considering other evidence produced by the Plaintiffs and the Defendants.  After considering comments provided by the Parties via letter (Ra127, Ra136) the Special Hearing Officer then issued a Resolution recommending that the Trial Court approve the Site Plan Application.  Ra138.  By Order dated August 9, 2022, the Trial Court adopted the Special Hearing Officer’s recommendations and the Resolution granting Plaintiffs’ Site Plan Application seeking preliminary and final major site plan approval.  M477.  On August 29, 2022, Defendants filed another motion for leave to appeal, seeking reversal of the Trial Court’s August 9, 2022 Order, which was denied by Order of the Appellate Division dated September 20, 2022.  M714.  On November 4, 2022, Defendants filed a motion for summary judgment seeking dismissal of the remaining Counts, which sought damages and attorney’s fees.  Plaintiffs cross-moved for summary judgment and, by way of an Order and Opinion dated March 10, 2023, the Trial Court dismissing the remaining claims.  M718.  Defendants Township and Mayor then filed a motion seeking a stay pending this appeal, which motion was denied by Order and Statement of Reasons dated May 12, 2023.  M792.  This appeal and cross-appeal follow.  STATEMENT OF FACTS
[brief] Displeased with the City Council’s decision, on March 17, 2020, [...], through his LLC, [...], filed a complaint in lieu of prerogative writs to vacate the Redevelopment Resolution (the “First Action”) in Hudson County Superior Court, captioned [...] Court, LLC v. [...], (Docket No. [...]).  (Pa286–303.)  [...] did not name [...] as a defendant in this action.  (See id.)  A.
[brief] Although Defendants also cite to [...] and Sons General Contracting LLC v. Biagi Farms LLC, 2024 WL 2492213 (NJ App. Div., May 24, 2024), an unquestionably implied waiver case, it does not assist them here.  [...] found, applying Cole’s totality of the circumstances approach, that [...] had impliedly waived its right to arbitrate by waiting 8 months to move to compel arbitration.  Id., at * 9.  In so ruling, this Court recognized that given the holding of the United States Supreme Court in Morgan, supra, the Cole prejudice factor can never be --- 2  Defendants admitted that the FAA applies to this case in their papers and during argument below.  4T3:11-4:3.  “dispositive” in determining whether or not an implied waiver exists, and that the prejudice element was “not controlling in [[...]], given the totality of the circumstances that otherwise, on balance, further establish waiver. ”  [...], at *1.  Again, here, there is no need for this Court to reach the Cole factors at all because here we have an express waiver.
[brief] A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable.  Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.  (citations omitted)(emphasis added).  “The role of a court in reviewing the decision of a local board’s land use decision is very narrowly circumscribed.
[brief] Plaintiffs conceded at oral argument that not only did [...] have a compensable claim, but if defendant had been injured, he, too, would be entitled to compensation.  Konitch, 81 N.J. Super. at 382-83 (emphasis added).  Since both the plaintiff and defendant in Konitch were in their employer’s parking lot reporting to work, neither had “clocked in” yet when the accident occurred.  The Konitch Court eviscerates plaintiff’s arguments here that [...] loses her co-employee immunity because she had not yet “clocked in” when the accident occurred.
[brief] ”  *Id.* at 248-49.  This is the “tendency for experimenters to obtain results they expect … because they have helped to shape that response. ”  *Id.* at 249.  An “ideal” administrator is someone who “is not investigating the particular case and does not know who the suspect is. ”  *Ibid.*  Here, [...] elicited [...]’s identification after interrogating [...]; [...], who elicited [...]’s identification, also investigated.
[directive] 2.8  Whenever an officer determines that one of the above listed factors exists and is influencing the person’s failure to comply with an officer’s command, when feasible, the officer shall consider whether specific techniques or resources would help resolve the situation without the need to utilize force.  Techniques for responding include, but are not limited to, the following: (a) obtaining information about the person from available sources including family members, caregivers or others who know the individual; (b) decreasing exposure to the potential threat by moving to a safer position.
[brief] ii.  Transmission Of Data To A Mailing Vendor Is Not A Communication In Connection With The Collection of a Debt Second, the Trial Court held that even if the transmission of data could be considered a communication (as the Trial Court put it, this is a “dubious proposition”), Plaintiff’s theory still fails because the transmission of data to the mailing vendor did not meet § 1692c(b)’s requirement that the communication be made “in connection with collection of a debt. ”4  As the Trial Court reasoned:  --- 4  Plaintiff’s Brief states:  “Defendant does not challenge that the Plaintiff is a consumer, Defendants are debt collectors, and that Defendant’s conduct involves an attempt to collect a covered debt.  Instead, the dispute is over the fourth element: whether Defendant violated a provision of the FDCPA. ”  (Pb25).  Plaintiff statement is false because the record plainly establishes that [...] argued (and the Trial Court agreed and issued a written opinion  The purpose of providing the information to the letter vendor was not collection, whether directly or via inducement to pay through persuasion or embarrassment.  The communication made no demand for payment, nor was it intended to inform the recipient of the debtor’s indebtedness for purposes of facilitating a collection.  Indeed, the letter vendor had no ability, directly or indirectly, to persuade, coerce or shame the debtor into payment merely by receipt of the data concerning the debt.  Instead, the debt collector transmitted the data to enable preparation of a letter to the debtor, which letter, when issued by or for the debt collector, was a communication in connection with collection.
[brief] **In re Stallworth,** 208 N.J. 182, 194 (2011) ...................................................................................................................  19  **In re Taylor,** 158 N.J. 644, 656 (1999) .................................................................................................................... 19, 20  **Klug v. Bridgewater Twp. Planning Bd.,** 407 N.J. Super. 1, 13 (App. Div. 2009)  .................................................................................................
[brief] 40 C.F.R. 124.19  State rules: N.J.A.C. 7:13-1.2  N.J.A.C. 7:13-11.1(c)(2)  N.J.A.C. 7:13-11.1  N.J.A.C. 7:13-11.4  N.J.A.C. 7:13-12.7(h)  N.J.A.C. 7:13-21.3(e)  N.J.A.C. 7:13-21.3(b)  N.J.A.C. 7:13-21.3(e)  N.J.A.C. 7:15-2.3  N.J.A.C. 7:15-3.2(a)  New Jersey Register: 47 N.J.R. 2531(a) (Oct 19, 2015)
[brief] To appreciate the issues, some historical background is important as to Zoning and its role in development and use of land.  Through the early 1900’s, property could be used largely at the will of the owner.  Property owners could also grant easement rights to third parties to use the owner’s property without regard to municipal approval or any “zoning” scheme.  There was no requirement of Municipal approval, and no Land Use Boards existed.  See Lake Intervale Homes inc. v. Parsippany-Troy Hills, 28 N.J. 423, 433 (1958); Loechner v. Campbell, 49 N.J. 504, 506-511 (1967).  The Map Filing Law in 1898 provided for very limited municipal regulation and control as to the ability of a property owner to develop and to unilaterally use property.  In the early 1900's, rudimentary legislative and administrative efforts were pursued to establish limited Municipal regulation over development and use of property.  In 1921, the U.S. Department of Commerce promulgated a recommended Standard Zoning Enabling Act; thereafter adopted in whole or part by most States.  See 1 Anderson, American Law of Zoning (4th Ed.) § 2.21, p. 71-72.  Andres v. Ocean Twp. Bd. Of Adj., 30 N.J. 245, 255 (1959); Commercial Realty v. First Atlantic, 122 N.J. 546, 553-555 (1991).  The constitutional validity of zoning was finally confirmed in Euclid v. Ambler, 272 U.S. 365 (1926).
[brief] See Nuckel v. Little Ferry Planning Board, 208 N.J. 95(2011).  A parking area to service an off-site use/building located on a second lot owned by another owner renders that parking area/lot a part of that second off-site use/building.  See e.g., Bell Atlantic N.J. Inc. v Riverdale Zon. Bd., 352 N.J. Super. 407 (App.Div.2002)(use variance required to locate off-site parking on adjacent lot occupied by gas station); also O'Donnell v. Koch, 197 N.J. Super. 134 (App.Div.1984).
[brief] Defendant did not have standing if the building was abandoned, or if he was a trespasser, because under those circumstances he would not “have the requisite possessory or proprietary interest in the property to object to the search. ”  Brown, 216 N.J. at 529.  Applying the factors set forth in Brown, we conclude there was credible evidence to support the trial judge's finding that based on the totality of the circumstances the building was abandoned.
[brief] (E.g., T4-7-12.)  The court stated, “What I’m trying to avoid here by all accounts is this contentious litigation.  It’s going on throughout the country and I do not think it’s fair for” the producing parties “to decide which documents are relevant and which documents are not. ”  (T18-18 to -25.)  The court noted that some parties use logs to withhold “relevant and admissible documents” that “a lot of time” are “hurtful to their case. ” (T21-18 to -25.)  The court stressed that “[t]he purpose is to produce all the relevant documents” and that “if this process makes us produce irrelevant documents but all the relevant ones get produced, I think that is the goal to make sure that every relevant document gets produced. ”  (T24-11 to -12, T25-11 to -14.)  The court assured the parties that the producing party would be protected by the confidentiality and clawback provisions in the Protective Order.  (T6-8 to -21, T23-20 to 24-4.)  Last, the trial court expressed its “hope that the goal here is to produce all the relevant documents” and noted that the protocol in place would not allow the withholding of “the most central documents to the case because one side wants to hide them. ” (T26-10 to 27-3.)  On September 12, 2023, the trial court entered an order (“Order”) formalizing its directive and findings from the July 6 Conference, August 1, 2023 email, and August 24, 2023 hearing.
[brief] (Pa33-Pa34).  Furthermore, unlike the plaintiff in *Pascarella* having second thoughts the very next day after she agreed to the settlement, Defendant had second thoughts approximately three weeks later.  Also distinguishable from *Pascarella* is the fact that County Counsel and defense counsel were actively communicating during the weeks subsequent to the December 20, 2022 memorialization of the settlement, during which time defense counsel confirmed receipt of the written Agreement, and agreed to provide a redlined version.  (Pa46-Pa59).  Also, there has been no showing or even a suggestion of fraud or other “compelling circumstances” which would justify vacating the memorialized settlement.  Under these facts, the trial court’s decisions to deny Plaintiff’s OTSC and decline to enforce the settlement were erroneous, and Plaintiff respectfully recommends that Your Honors reverse the trial court’s findings.
[brief] As the Trial Court correctly found, the purpose of Ordinance 13-2022 was to adopt a redevelopment plan for specified properties.  (Pa60).  Before the Trial Court and now here, Plaintiff alleges that the “purpose” of Ordinance 13-2022 is to change the zoning standards applicable to the Redevelopment Area.  (T2, 39:12-18 & Pb34-Pb35).  That, however, is not the purpose.  The sole reason for adopting the Ordinance is to adopt the Redevelopment Plan for specifically identified properties.  (Pa90-Pa91).  The Notice provided by the Township satisfies the legislative purpose because it gave Plaintiff the opportunity to become informed and to be heard by alerting them to the fact that a redevelopment plan would be adopted, and that the redevelopment plan is on file with the Clerk’s office for inspection.  (Pa114-Pa115).  The Notice further informed Plaintiff of the date and time of the public hearing on the Ordinance, which would allow them an opportunity to be heard.
[brief] In the current matter, the Borough’s acquisition of a permanent easement upon the Property in order to rebuild and maintain the seawall in no way impacted the property rights of Appellant’s residence.  Therefore, any alleged damage to the residence is non-compensable within the confines of a condemnation matter.  The Appellate Division’s opinion in City of Linden v. Benedict Motel Corp., 370 N.J. Super. 372 (App. Div. 2004) illustrates what constitutes a compensable taking in a condemnation action.
[brief] PICARIELLO WAS REMOVED FOR CHARGES OF MISCONDUCT DIRECTLY RELATED TO HIS EMPLOYMENT (Aa61; Aa52-60). **  In its final administrative action, the Board affirmed the ALJ’s determination that [...] was removed for charges of misconduct directly related to his employment within the meaning of N.J.S.A. 43:16A-11.2.  (Aa61).  To this end, the ALJ found there was a sufficient nexus between [...]’s employment as a Sergeant and the offense for which he was disciplined, failing a random urinalysis.  (Aa58).  The Board’s affirmation of the ALJ’s determination was erroneous and belies the applicable law regarding what constitutes “conduct related to employment. ”  Therefore, the Board’s determination must be reversed and [...] must be deemed eligible for deferred retirement benefits.
[brief] The Initial Decision And [...] Decision Did Not Consider The Entire Record; They Relied Upon An Arbitrary and Capricious Selection Of [...]'s Pre-Filed Direct Testimony And Ignored The Cross Examination Of The [...] Witnesses (Argued Below: Ha105)  [...]’s witnesses on the need for the proposed regulator presented two contradictory testimonies.  First, there is the carefully lawyered and curated pre- filed direct testimony, artfully drafted to present the very best possible – and highly distorted and inaccurate – view of the relevant facts.  The court should be mindful that unlike direct oral testimony in a courtroom, which is usually the object of careful preparation, the OAL direct testimony here is pre-filed in written form, allowing the [...] lawyers the maximum control over virtually every sentence of the testimony.  But then, by strong contrast, there is the opposite testimony of those same [...] witnesses on cross-examination, in which they conceded away nearly all of the salient points in those carefully curated written pre-filed directs.  We demonstrate this below.  These two testimonies were in stark contradiction, and thus a bland statement by the ALJ and adopted by the [...] that the [...] witnesses were “credible” is arbitrary and capricious.  Ha70-72.  It is not possible that both direct and cross were credible.  Given a choice between these contradictory testimonies, the correct starting point, and in this case, conclusion, would be to favor the testimony elicited on cross-examination.
[brief] ”  103 N.J. at 368 (citing Cotati Alliance for Better Housing v. City of Cotati, 148 Cal. App.3d 280, 289, 195 Cal.Rptr. 825, 831 (Ct.App. 1983)).  The Supreme Court endorsed a California Supreme Court decision stating that the constitutionality of the return-on-equity standard is dependent upon those who administer it to avoid confiscatory results and that “no formula may indefinitely freeze the dollar amount of a landlord’s profits without eventually causing confiscatory results.