ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Sanctions may be awarded even in the absence of bad faith.  Tracinda, supra, 502 F.3d at 242.  The Third Circuit has also noted that even if the failure to produce has been inadvertent, sanctions may be called for if the impact is severe on the party who was due the discovery.  Id.  The Court finds that the impact on plaintiff has been substantial enough to warrant sanctions.  As is evident from the docket and the history discussed herein, plaintiff had to spend substantial resources to finally track down defendant's documents that should have been produced years earlier.  In addition, the late production unnecessarily delayed the final resolution of the case.  The Court rejects defendant's argument that it already denied plaintiff's request for sanctions and the ruling is binding with respect to the instant motions.  When defendant's discovery problems first came to light soon after September 19, 2012, the Court denied plaintiff's request for fees but Ordered defendant to pay the cost of [...]'s deposition transcript.  See October 24, 2012 Order ¶¶ 7–8, Doc. No. 119.  However, that Order was entered before the extent and importance of the late produced documents became apparent.  Subsequent developments justify an evaluation of the complete record that has now been developed.
[brief] ”  The interior of the building “appeared very rundown,” the stairs were “well worn, [and] some were beat up,” and there was a doorknob on the floor.  To the left of the common hallway was a secured doorway with a metal “clamshell” covering -- the type of covering he said was placed on doors in “abandoned buildings. ”  [...] climbed the curved stairs to the second floor, immediately followed by [...].  Before he reached the top of the second-floor landing, he saw “in plain sight,” a dark jacket, a handgun, a cigarette lighter, a mask or hoodie, and a wallet (later identified as [...]'s wallet).  He said that the second floor was “[d]irty,” the wood looked “[b]eat up,” and he did not see anything that would lead him to believe that anyone lived there.  The officers called the crime scene unit to photograph and collect the evidence.
[brief] The municipal tax duplicate is “a true copy of the assessor’s assessment list,” *Farmingdale Realty Co. v. Farmingdale*, 104 N.J. Super. 314, 318 (App. Div.), rev’d on other grounds, 55 N.J. 103 (1969), which includes the owner’s name, the property address, the mailing address, the block/lot, the assessed value, and other information, N.J.S.A. 54:4-24. complied with.
[brief] In Burnett v. County of Gloucester, 415 N.J. Super. 506, 513-14 (App. Div. 2010), this Court held that the plaintiff’s OPRA request for “settlement agreements” over a twenty-six-month time period was sufficiently specific.  Compliance with [...]’s OPRA requests would have been potentially overwhelmingly burdensome, especially without compensation.  At the time of the OPRA request, [...] estimated that he had at least 45,000 potentially responsive text messages, which would take at least eighty hours to review.
[brief] As [...] discussed, Respondent’s post had the potential to discourage members of the public, namely members of the Muslim community, to engage with the Board “given what may seem to be an apparent bias. ”  As such, [...]’ determination is entirely appropriate.  (Ca030-031) (emphasis added).  It was undisputed that Respondent repeatedly campaigned for her seat on the Board from her Facebook page, including sharing campaign banners precisely like the one in Melnyk.  (Ca220) (campaign banner stating “MERISSA BORAWSKI HEATHER KOENIG CENTRAL REGIONAL BOARD OF ED”); (Ca218) (picture of ballot with Respondent’s name highlighted with the word “VOTE”); (Ca216) (Facebook posts telling Central Regional community members to vote for Respondent and [...]).
[brief] (1T 22-20 to 41-1; Da 20)  The front windows of the Suburban are down for the duration of the MVR.  (1T 11-3 to 12, 55-6 to 11, 71-25 to 74-14; Da 20)  [...] testified that the MVR does not capture when he first saw the Suburban with the front windows up.  (1T 11-3 to 12, 23-5 to 18, 74-6 to 14)\(^1\)  Approximately eleven minutes into the stop, when [...] told [...] that he pulled him over for tinted windows, [...] responded, “my windows are down.
[brief] The notice requirement relies on a homeowner’s reasonable expectations based on the declaration in effect at the time of purchase—in this case, the original declaration.  Under general contract law principles, a majority could impose any new restrictions on the minority because the original declaration provided for amendments by majority vote.  But allowing substantial, unforeseen, and unlimited amendments would alter the nature of the covenants to which the homeowners originally agreed.  See, Dreamland Villa Community Club, Inc. v. Raimey, 224 Ariz. 42, 51 ¶ 38 (App. 2010)  Thus, “[t]he law will not subject a minority of landowners to unlimited and unexpected restrictions on the use of their land merely because the covenant agreement permitted a majority to make changes to existing covenants. ”  (Emphasis ours)  Kalway, supra at par. 15 citing Boyles v. Hausmann, 517 N.W.2d 610, 617 (Neb. 1994).  The Kalway court went on to state that:  “To determine whether the original declaration gave sufficient notice of a future amendment, we must look to the original declaration itself.  ‘Because covenants originate in contract, the primary purpose of a court when interpreting a covenant is to give effect to the original intent of the parties’ with any doubts resolved against the validity of a restriction.  Armstrong v. Ledges Homeowners Ass’n, 633 S.E.2d 78, 85 (N.C. 2006) (emphasis omitted).
[brief] Second, [...] addressed and rejected defendant’s contention that the *Miranda* warnings provided were deficient in any way.  [...] read into the record the exchange between [...] and the defendant with regard to defendant’s right to the presence of counsel and found it sufficient to ensure that defendant understood he had a right to have counsel present during interrogation.  While the court noted that more “clarification” could have taken place, nothing said by the detectives misled or deceived the defendant in any way.  Significant to the court’s finding that defendant understood that he could have counsel present during questioning was the colloquy that followed with regard to appointed counsel.  During that colloquy, [...] advised defendant:  “If you cannot afford an attorney, one will be provided if you so desire prior to any questioning. ”  Defendant stated that he understood this advisement.  As such, the court concluded that the State established beyond a reasonable doubt that defendant fully understood his right to have counsel present during questioning.
[brief] In its statement of reasons attached to the order denying the motion for reconsideration, the trial court did not include any specifics as to why it denied the motion.  (See Pa253).  However, the issues raised by the [...] placed this case in the “narrow corridor” in which reconsideration should have been granted.  Castano, 475 N.J. Super. at 78.  The [...]’ motion for reconsideration properly explained how (1) the trial court should have limited its analysis to the allegations in the proposed pleading, (2) the evidence the trial court considered outside the proposed pleading did not support its original order, and (3) the trial court should not have relied on Restatement (Second) of Torts §654.  For the reasons discussed more thoroughly above, see supra Section III.A, the trial court should have reconsidered and granted the [...]’ motion.  IV.  The Trial Court Erred in Granting  Defendants’ Motions in Limine That Effectively Dismissed the [...]’ Claims for Attorney’s Fees and Punitive Damages (Pa263-Pa264; Pa293-Pa299; Pa301-Pa302; 3T9:5-3T12:9; 3T14:21-3T15:5; 3T15:7-3T19:23)
[brief] THE TRIAL COURT’S STATEMENT OF REASONS FULLY COMPLIES WITH RULE 1:7-4.  (Pa82, Pa225, 1T).  Plaintiff avers that the trial court erred by failing to submit a sufficient statement of reasons to support the final judgment in this matter.  However, the record reveals that the trial court issued a comprehensive well-reasoned opinion to support the Orders dismissing the Verified Complaint with prejudice, fully satisfying the requirements of Rule 1:7-4.
[brief] The 1963 Agreement (Da13) provided in Paragraph 1 and 2 that the [...] would convey Lot 8 to the "[...]" (not the Plaintiff, [...]).  The New Congregation would thereafter construct on Lot 8 a "sanctuary, lounge, family chapel, social hall...."  That Deed for Lot 8 had been already finalized on December 31, 1962.  (Da166)  The remaining Paragraphs (Paragraph 2 through 10) provided various terms as to intended cooperative operation of the properties between the two then cooperative entities.  One paragraph provided that, upon completion of the new synagogue and commencement of religious services, the Synagogue would pay the [...] $10,000 annually for the School's operations, to continue only as long as the [...] operates the School.  The remaining provisions provided for certain personal licenses or cooperations between the [...] and the New [...] and that certain officers or principals were to be officers of both entities.  Paragraph 6 provided that the operations of the synagogue of [...] be conducted by a Board made up of 3 members of the [...] and 3 members of the [...].  The provision primarily at issue (Para. 10) states:  (Da16) 10.  The party of the first part further agrees to permit the party of the third part to utilize for parking purposes the vacant lands it owns on Madison Avenue and also on Sixth Street and to permit use of lands on Sixth Street for boiler room use and for a water cooling tower."  This Agreement was not then recorded or intended to be recorded as its execution was not acknowledged or notarized as required by N.J.S.A. 46:14-2.1.  The synagogue was then constructed and completed during 1963, (TT22-1 to 25), and commenced use in December 1963.
[brief] *Boston Gas*  [...] argues that the trial court applied the “exact allocation methodology” of *Boston Gas* “after carefully reviewing the record evidence, including expert testimony at the Allocation Trial. ” (Db, p. 37).  However, there is no indication in the trial court’s July 20, 2020 Order that it analyzed any evidence from the Allocation Hearing.  The only evidence that [...] mentioned to support of his July 30, 2020 Order was partial testimony by [...]’s expert, [...], that the property damage at the [...] is continuing to occur through the remediation process (not new CVOC operational releases). \(^{12}\) (Pa 208).  The trial court then made the illogical jump from this single piece of information to a conclusion that it is not possible to determine the amount of property damage that occurred from operational releases and during any period in the past – operational releases that [...] specifically identified by start and stop dates at numerous operational locations.  Under *Boston Gas*, the initial factual inquiry that must be decided is whether “the evidence permits an accurate estimation of the quantum of property damage in each policy period. ”  *Boston Gas*, 910 N.E.2d at 316.  When all the evidence is considered, and as discussed below, an accurate estimation of the property damage occurring during each policy period is very much possible.
[brief] (1T:37-1 to 42-9) (2T:12-17 to 14-23); (2T:69-1 to 73-1)  A custodial statement may not be admitted into evidence unless the State proves beyond a reasonable doubt that the defendant’s waiver of these rights is knowing, intelligent, and voluntary.  State v. A.M., 237 N.J. 384, 397 (2019).  If the totality of the circumstances surrounding the interrogation does not reveal “a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it,” a court should not conclude that the Miranda rights have been knowingly, intelligently, and voluntarily waived.  Moran v. Burbine, 475 U.S. 412, 421 (1986); See also State v. Handy, 215 N.J. 334, 362 (2013).  Because the understanding of the warnings is so crucial to the validity of a waiver, when “circumstances cast doubt on the knowing and intelligent quality of the alleged waiver, the doubt must be resolved in defendant’s favor. ”  State v. McCloskey, 90 N.J. 18, 28-29 (1982).  During [...]’s statement with respect to his Miranda rights, he simply says yes to what the police say.
[brief] It "is bound by the Legislature's declaration of purpose, see N.J.S.A. 59:1–2, and enforced through the application of numerous express limitations embodied in the statute's provisions."  *Henebema v. Raddi*, 452 N.J. Super. 438, 442, 451-453 (App. Div. 2017)(additional citations omitted).  To support the argument that defendant was free to ignore its obligation to timely plead TCA defenses, defendant cites *Buteas v. Raritan Lodge #61 F. & A.M., 248 N.J. Super. 351 (App. Div. 1991).
[brief] D’Atria v. D’Atria, 242, N.J. Super. 392, 401 (Ch. Div. 1990).  This was not a case where [...] abused his discretion and issued a decision without a rational explanation, or issued a decision which --- 2 Borrowed from “Old Wine in New Bottles” (December 27, 2019) by [...], The Economic Journal, 101 (Jun. 1991), 33-40. rested on an impermissible basis.  See, e.g., *Flagg v. Essex Cnty. Prosecutor*, 171 N.J. 561, 571 (2002).  [...] made particular findings at the time of the arguments, and the motion for reconsideration was properly denied.  **CONCLUSION**
[brief] 3.  Plaintiff’s arguments rely upon inapposite and inapplicable authority.  The out-of-state cases relied on and the reasoning espoused therein have been considered and rejected by New Jersey courts.  For example, the Supreme Court in Delta explicitly considered – and rejected – the reasoning in two cases cited by Plaintiff, Wisconsin Auto Title Loans, Inc. v. Jones, 714 N.W.2d 155, 173 (Wis. 2006) (Pb25) and Taylor v. Butler, 142 S.W.3d 277, 284-87 (Tenn. 2004), cert. denied, 543 U.S. 1147, 125 S.Ct. 1304, 161 L.Ed.2d 108 (2005) (Pb11, 23).
[brief] See, *Morris Properties, Inc. v. Wheeler, et al.*, No. A-2653-20, 2023 WL 2249975, at *1 (N.J. Super. Ct. App. Div. Feb. 28, 2023)(approved for publication August 22, 2023).  “Actual damages … are real and substantial as opposed to speculative. ”  *Cortez v. Gindhart*, 435 N.J. Super. 589 (App. Div. 2014)(quoting, *Grunwald* v. Bronkesh, 131 N.J. 483, 495 (1993)).
[directive] Retention Schedule  9.4.1  Investigative records created during an internal affairs investigation are included in the "Records Retention and Disposition Schedule for Local Police Departments" issued by the New Jersey Division of Archives and Records Management.  Under the schedule, files concerning a criminal homicide must be permanently maintained.  The schedule also requires that any other file involving a criminal matter resulting in the subject officer’s arrest must be maintained for 75 years.  While the schedule further suggests that all other criminal or administrative internal affairs investigative records be maintained for at least 5 years, agencies should maintain these files as they relate to a particular officer for that officer’s career plus 5 years.
[brief] II.  N.J.S.A . 43:15A-7.2(A)  CONFLICTS WITH NEW JERSEY STATE LAWS GOVERNING DETERMINATION OF EMPLOYEE STATUS (PARTICULARLY N.J.S.A. 43:21-19(i)(6)(A)(B)(C)) AND ARE IMPROPERLY SUPERSEDED BY N.J.S.A.  43:15A-7.2(A).  (ISSUE NOT RAISED BELOW)
[brief] Knorr v. Smeal, 178 N.J. 169, 181 (2003)  Laba v. Bd. of Educ. of Newark, 23 N.J. 364, 381-82 (1957)  Matter of State Comm’n of Investigation, 108 N.J.  35, 44-45 (1987)  Miller v. Zoby, 250 N.J. Super. 568, 576, 595 (App. Div. 1991)  Nordstrom v. Lyon, 424 N.J. Super. 80, 99 (App. Div. 2012)  Osback v. Lyndhurst Township, 7 N.J. 371 (1951)
[brief] (Pa52 – Pa62).  [...] finally suggests the trial court erred in its application of the standard of review on a motion to dismiss pursuant to R. 4:6-2(e).  [...] complains it did not get to brief the merits of its other challenges to Ordinance No. 13-2022, including that the ordinance was allegedly inconsistent with the [...] Master Plan and failed to include an explicit amendment to the zoning map.
[brief] [...], [...] d/b/a [...], and [...] (fictitious entities including public entities) and [...] (fictitious individuals), Defendant-Respondents.  Lead Counsel and On the Brief: [...], Esq.  Attorney ID #034401992  Co-Counsel and On the Brief: [...], Esq.  Attorney ID #261711970  Of Counsel to the Law Offices of [...] and On the Brief: [...], Esq. Attorney ID #011541990  #  TABLE OF CONTENTS | Section | Page | |------------------------------------------------------------------------|------| | TABLE OF CITATIONS | iii | | PRELIMINARY STATEMENT | 1 | | ARGUMENT | 3 | | I.
[brief] (2T105-1 to 8)  This relieved his symptoms of Meniere’s disease (dizziness, spinning, nausea, etc), but he had to do 2-3 years of physical therapy to regain his balance, as well as visual therapy, and he is completely deaf in his right ear.  (2T105-21 to 108-9)  He claims to have constant “ringing in his ear, visual “tracking” problems, he wears “prism” glasses, he has headaches every day and occasional balance problems when he stands up or moves too quickly.  (2T108 to 108, 2T110 to 112)  [...] treated Plaintiff from approximately August 21, 2013 through April 13, 2016.
[brief] I, [...], a Notary Public and Certified Court Reporter of the State of New Jersey, do hereby certify that prior to the commencement of the examination, the witness was duly sworn by me to testify the truth, the whole truth and nothing but the truth.  I DO FURTHER CERTIFY that the foregoing is a true and accurate transcript of the testimony as taken stenographically by and before me at the time, place and on the date hereinbefore set forth.  I DO FURTHER CERTIFY that I am neither a relative nor employee nor attorney nor counsel of any of the parties to this action, and that I am neither a relative nor employee of such attorney or counsel, and that I am not financially interested in the action.  __________________________  Notary Public of the State of New Jersey License No. 30X100177700  Dated: December 11, 2016  November 28, 2018
[brief] Musconetcong Watershed Ass'n v. NJ DEP, 476 N.J. Super. 465, 488 (App. Div. 2023).  Under the WQPA, “The commissioner shall not grant any permit which is in conflict with an adopted areawide plan. ”  N.J.S.A. 58:11A-10.  The Water Quality Management Planning Rules (“WQMP Rules”) similarly provide that, “The Department shall not issue a permit or approval that conflicts with an adopted areawide plan or this chapter. ”  N.J.A.C. 7:15-3.2(a)(emphasis added).  Regarding consistency with “this chapter,” it is critical to note that Subchapter 5 of this chapter, “sets forth the processes for identifying and listing the 303(d) List of Water Quality Limited Waters, setting the priorities and schedule for development of total maximum daily loads (TMDLs) to address impairments in water quality limited waters, and for developing TMDLs and plans to implement TMDLs. ”  N.J.A.C. 7:15-5.1.  Thus, consistency with “this chapter” also requires that surface water quality be considered, including TMDLs.  Exemptions #9 and #11 in the Highlands Act are the only Exemptions that are granted with the express condition that the activity is consistent with the goals and purposes of the Highlands Act.
[brief] THE MOTIONS FOR SUMMARY JUDGMENT (Pa1230-1253, Pa1255-1334)  On January 7, 2022, three individual motions for summary judgment were filed by [...], the [...] and [...] against [...] and Appellant.  Specifically, [...] filed a motion for summary judgment against [...] and Appellant.  The filing contained 256 total pages, including a thirty-two (32) page brief in support of the motion, twenty-one (21) separate exhibits, and a seventy-six (76) paragraph Statement of Material Facts. \(^5\)  Similarly, on January 7, 2022, the [...] filed a motion for summary judgment against [...] and Appellant.  The filing contained 186 total pages, including a twenty-two (22) page brief, fifteen (15) separate exhibits, and a ninety-four (94) paragraph Statement of Material Facts.  (Pa1230-1253).  --- \(^5\)  The following information is provided for procedural history purposes only as [...] is not a party to this appeal.  Finally, on January 7, 2022, [...] initially filed a motion for summary judgment against [...] and Appellant.  [...] Defendants’ March 2, 2022 filing included 1,112 total pages, including a seventy-three (73) page brief, several Certifications from various State of New Jersey employees, seventy-one (71) individual exhibits, and a 224 paragraph Statement of Facts.
[brief] There is great uncertainty that [...] checked the box confirming she read, understood, and agreed to [...]’s Terms and Conditions, including the arbitration provision.  [...] argues that its records confirm [...] checked the box on March 23, 2021, and the prior letter from [...]’s counsel showing a different screen shot was only a “representation. ” (Db28-29).  This gamesmanship by prior counsel is misleading.  Appellants’ argument is that the two different timestamps, in addition to the fact that Appellant has proven the statements made in [...]’s affidavit are false.  It is disingenuous for [...] to claim there is no genuine issue of material fact given these false statements and contradicting timestamps.  Appellants have proven by example with their own [...] application that [...]’s affidavit claiming if the application is set to Spanish, the Terms and Conditions display in Spanish is false.  Given this, how can we blindly believe any of the other statements within [...]’s affidavit are correct without further discovery?  Clearly there was one glaring misstatement which [...] cannot deny—the Terms of Use and Arbitration Provision are clearly in English.  [...] also relies on Williams v. Ysabel, No. A-1391-22, 2023 WL 5768422 at *1 to argue further discovery would not change the trial court’s conclusion that [...] checked off the box which manifested her assent to [...]’s terms.  (Db30).  This is false.  Again, because the affidavit of [...]’s employee is false and unreliable, discovery would further determine how reliable [...]’s record keeping is, and when and if [...] actually checked off the box.  Despite its refusal to engage in formal discovery, [...] has shown it does not have reliable record keeping based on the contradictory timestamps of when [...] allegedly checked the box binding herself and her family to arbitration.  [...] has also shown it cannot be trusted to make accurate statements under oath.  [...]’s own employee made a false representation in her affidavit when she stated the entirety of [...]’s application, including the Terms and Conditions display in English.  (Pa0622).  Thus, discovery could prove [...] did not check off the box.  II.
[brief] Transmitting data to an agent or contractor is not a “third-party” “communication” and is not an attempt to collect a debt.  Congress does not “write upon a clean slate” each time it passes a statute.  *United States v. Texas*, 507 U.S. 529, 534 (1993).  Instead, courts presume that Congress legislates against long-standing and well-established legal principles, including the “the backdrop of the common law. ”  *Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media*, 589 U.S. 327, 335 (2020).  For Congress to abrogate a common-law principle, “the statute must ‘speak directly to the question addressed by the common law. ’”  *Meyer v. Holley*, 537 U.S. 280, 285 (2003).