ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ”  While the statute certainly extends to cover a dispute among multiple adjoining properties, there has to be a dispute at inception.  In this case, no such dispute existed.  The evidence adduced at trial demonstrated beyond question that the Boundary Commissioners exceed the scope of the issue before them.  Their Report created a solution to a problem that had not previously existed.  They issued an ultra vires Report.  See Generally City Council of Orange v. Edwards, 455 N.J. Super. 261, 270-71 (App. Div. 2018), cert. denied 237 N.J. 205 (2019).  However well intentioned, the trial court’s post hoc efforts to make the Report and affected parties fit together failed.  The failure to follow the recommendation of the Report compounded that failure and created the untenable current situation where the boundary line of all affected properties, including the Properties, are unsettled.  C.
[brief] Purpose (i) to promote desirable visual environment, is not advanced as the proposed "beautiful" buildings are not of exceptional quality or features as they are in conformance with the design guidelines in the zoning ordinances.  Purpose (d) to ensure that development does not conflict with adjacent municipalities and the State is not advanced as the variances affecting the neighboring residential development in [...] will not provide appropriate air, light and undeveloped space in that portion of the Property.  Purpose (d) to ensure that development is consistent with the State Plan's vision of creating mixed-use communities and incentives is not advanced as those goals are premised upon reasonable and appropriate development and the number, type, character and extent of the variances requested are excessive and overly intense.  Although this leaves purpose (h) to promote the free flow of traffic by the proposed traffic light that in and of itself is not a sufficient reason to find the Applicant has met the positive criteria and that if it were to be considered so, that it would outweigh the substantial negative impacts of the proposed use.
[brief] THE COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT SERVICE WAS PROPERLY EFFECTUATED ON DEFENDANT IN ACCORDANCE WITH THE COURT’S SEPTEMBER 24, 2021 ORDER.  “Defective serve that results in a ‘substantial deviation from service of process rules’ typically makes a judgment void. ”  *M & D Associates v. Mandara*, 366 N.J. Super. 341, 352-53 (App. Div. 2004) (citing *Jameson v. Great Atl. & Pac. Tea Co.*, 363 N.J. Super. 419, 425 (App.Div.2003); *Sobel v. Long Island Entm't Prods., Inc.*, 329 N.J. Super. 285, 293 (App.Div.2000)).  However, “even if there . . . [is] a technical defect in the method of service of process, defendant would not be automatically entitled to vacate the default judgment against him. ”  *Citibank, N.A. v. Russo*, 334 N.J. Super. 346, 352 (App. Div. 2000).  “Where due process has been afforded a litigant, technical violations of the rule concerning service of process do not defeat the court's jurisdiction. ”  *Ibid.* (quoting *Rosa v. Araujo*, 260 N.J. Super. 458, 463 (App.Div.1992)).  “Thus, ‘not every defect in the manner in which process is served renders the judgment upon which the action is brought void and unenforceable. ’”  *Ibid.* (quoting *Rosa*, 260 N.J. Super. at 462).  Defendant raises an oft-repeated argument that he was not served properly.
[brief] (Da25-26).  As [...] acknowledges, in prior fee applications considered by the same judge, Plaintiff had further supported the reasonableness of the rates by comparison to the rates of [...], a comparably-sized firm with a large Bergen County presence.  (Da266-270).  [...] concedes that the rates charged were similar to those of Plaintiffs’ counsel.  His objection that they were charged in connection with a bankruptcy proceeding is without merit, as the stakes here are similarly high and have required diligent, creative, and high-level legal work to attempt to collect in the face of unprecedented obstruction.\footnote{13}
[brief] ”  *Staff Commentary.*  **F.  Federal Agency Interpretations Are Not in Conflict with the Federal Court Decisions. **  Defendant argues three federal agency statements conflict with the construction in *Hunstein/Khimmat/Jackin*.  Those agency statements do not address whether a debt collector may share the type of information which Defendant conveyed to its mail vendor.  And, even if the agency statements say what Defendant contends, they are not accorded deference.  Instead, the role of this Court is “to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. ”  *Loper Bright Enters. v. Raimondo*, --U.S.---, 144 S. Ct. 2244, 2263 (2024) (overruling *Chevron* deference).
[brief] The Respondent’s physicians also offered testimony regarding their opinion on whether or not the Respondent suffered a permanent injury.  Only [...] mentioned that the Respondent suffered an aggravation or exacerbation of a pre-existing condition to her cervical spine.  Neither [...] nor [...] offered any opinion that the Respondent had a pre-existing condition much less than she suffered an aggravation.  Drs. Dworkin and Pello testified that there were minor age-appropriate degenerative changes visible in the studies of Respondent’s cervical spine but offered no testimony that there was aggravation of a pre-existing condition.  Drs. Dworkin and Pello further opined that the findings on the Respondent’s MRI of her cervical spine were the result of the March 3, 2020 accident.
[brief] At the October 20, 2020 hearing, [...] also explained that the amended plan “remov[es] the maximum density requirements” and “added a minimum lot size to prevent further subdivision of a parcel. ”  (Pa627; 4T40:6-9).  During the public comment portion, [...] stated that while the amended plan removes the maximum density requirement, the conditionally designated redeveloper had submitted a concept plan containing 109 units.  (Pa628; 4T42:9-17).  [...] concluded that the amendments were “definitely consistent with the Master Plan in that this redevelopment area was designed for buildings eight stories of a residential use,” and “[t]hat’s what we’re going to be establishing with this document. ” (Pa627; 4T41:3-7).  Further, he explained, “[T]his is a project that’s in keeping with the goal and intent to provide multi-family residential buildings within that portion of the municipality as well as to have eight stories of residential dwellings which this building will have.  So it was determined that this proposal is definitely consistent with the Master Plan.
[brief] Just as “there are palpable risks of confirmation bias when a DRE [drug recognition expert] officer administers the protocol, particularly in the more subjective aspects of the examination, such as the SFSTs and the eye tests,” State v. Olenowski, 255 N.J. 529, 608 (2023), so, too, is there a danger of confirmation bias with allegations of alcohol impairment.  Without any objective evidence of a substance that would cause intoxication, the evidence fails to establish that [...] was under the influence of either alcohol or drugs.  See id. at 548.
[brief] This appeal from a final judgment following a trial in Landlord-Tenant court raises multiple errors and irregularities in the disjointed and protracted proceedings in the trial court below that warrant vacating the orders the trial court issued, correcting its errors, and remanding for further proceedings.  The trial court’s principal error was failing to recognize that the landlord seeking to dispossess its commercial tenant owed the tenant more money in construction reimbursements under the lease than the tenant owed in rent.  The lease contemplated this scenario and provided a remedy, namely that if the amount owed under the reimbursement exceeds the amount owed under the delinquent rent, the smaller number would automatically be deducted from the bigger one to make both parties whole without judicial intervention.  Instead, the landlord refused to acknowledge the automatic deduction, refused to pay the reimbursements owed, and sued to evict the tenant.  The trial judge, after openly prejudging the case in the landlord’s favor without having first read the lease, then issued an order on November 10, 2021 finding that the tenant was not entitled to recover the reimbursement amounts the landlord owed under the lease while tenant was in “breach. ”
[brief] Ja94 Line 15 to Line 19, Ja228, J229  Both applications proposed placement of a septic system 10 feet from Maple Avenue.  Ja167, Ja245  Both applications detracted from the existing characteristics of the neighborhood scheme.  Ja129 Line 6 to Line 15, Ja130 Line 1 to Line 6, Ja130 Line 22 to Ja131 Line 8, Ja134 Line 11 to Line 16, Ja138 Line 6 to Line 17  In the present matter, Plaintiff failed to demonstrate that sufficient changes had been made to justify a different result.  The essential nature of the application remained unchanged.
[directive] Barricaded Individuals 3  Initial Response to Barricaded Individuals  3.1  First Responding Officers.  The first officers to arrive at a scene are a critically important component of the overall response.  The initial responding officers must assess the situation, make a preliminary determination whether a barricaded individual situation exists, and begin to request appropriate resources to the scene.  Officers shall immediately request the response of a supervisor to any incident that appears to involve a barricaded individual or appears to have a reasonable probability of evolving into a barricade situation.  Consistent with ICS principles, the first officer on scene is the incident commander until relieved by higher authority.  Responding to a report of a barricaded individual incident alone should be avoided, when feasible, as this may limit the responding officer’s potential resolution responses.  3.2  Supervisory Response.  Supervisors shall respond immediately to all requests resulting from in accordance with section 3.1 of this directive.  barricaded individual incidents  Law enforcement agencies shall adopt policies requiring immediate supervisory response to such incidents.  Officers and supervisors shall quickly determine whether additional resources are needed and promptly call for the response of the needed resources, which may include ARRIVE Together teams or other mental health/crisis intervention resources.
[brief] *Id.* at 143-44.  A year later, in *Leach v. Anderl*, 218 N.J. Super. 18 (App. Div. 1987), the Appellate Division declined to find an express easement for an adjoining neighbor to use a roadway where “the several references to the right of way as a ‘roadway’ in various deeds are only for the purpose of describing the property and its boundaries and do not constitute a grant of the right to use the adjoining property.
[brief] #  TABLE OF CITATIONS | Cases | Page(s) | |----------------------------------------------------------------------|---------| | **E.S. for G.S. v. Brunswick Inv. Ltd. Partnership,** | | | 469 N.J. Super. 279 (App. Div. 2021) | 7 | | **G.A.H. v. K.G.G.** | | | 238 N.J. 401 (2019) | 5, 6, 7 | | **Pitts v. Newark Bd. of Educ.** | | | 337 N.J.  Super. 331 (App. Div. 2001) | 10 | | Rules | | |----------------------------------------------------------------------|---------| | **Rule 4:37-2** | 10 | | **Rule 4:40-1** | 10 | | **Rule 4:46** | 10 |
[brief] Had the parties to the PSA intended that [...] was not to be indemnified for first-party claims, they would not have used the words “any and all” to describe the claims that were subject to indemnification.  Third, the language “arising in connection herewith” clearly indicates that Section 17.1(b) applies to all claims related to the PSA – not just to third-party claims.  Di Filippi v. Target Corp., No. A-6050-05T2, 2008 N.J. Super. Unpub. LEXIS 1549, at *9 (App. Div. Jan. 16, 2008) (“[i]n the indemnification context, the words ‘arising out of or resulting from’ are given ‘their common and ordinary meaning as referring to a claim ‘growing out of’ or having its ‘origin in’ the subject matter’ of the parties’ underlying agreement (citing Leitao, 301 N.J. Super. at 193).
[brief] Defendants further state that the “jury was polled later in the trial, and they indicated that they had no idea what was happening. ” (Def. Brief, pg. 26).  While such a poll did occur several days after the fact, in the immediate aftermath of the event in the hallway, [...] made a clear statement on the record they everyone did know what had happened.  Specifically, a Juror had noted that “there’s a fight going on outside. ” (4T, Pg. 55, line 22).  [...]’s counsel requested a Mistrial at the time.  (4T, Pg. 59, lines 20-21).  [...] stated explicitly to [...]’s attorney, “It was your client shouting that the jurors heard.  I heard his voice, you heard his voice, everyone heard his voice.  And the juror indicated they can’t hear the witness because of the shouting in the hallway. ”  (4T, Pg. 60, lines 14-18).  And further, “The voice we heard shouting, I’ll tell you, was [...]’s. ”  (4T, Pg. 73, lines 9-10).  [...]’s attorney argued the altercation in the hallway was believed by [...] to have been “generated by law enforcement.  And he respectfully believes that prejudices his case and asks for a mistrial on that basis. ”  [...]’s attorney opposed the motion for a mistrial arguing that it was “a contrivance by the plaintiff [i.e. [...]]…that it was plaintiff who caused the interruption. ”  As they did then, Defendants are again arguing that [...] caused the interruption, but even the Sheriff’s officer admitted that it was he who initiated the contact, not [...].  The facts simply do not support the arguments presented by Defendants.
[brief] The fact that the fourth-degree model jury charge template was used instead of the second-degree template amounts to nothing more than harmless error because the instructions – as given – were not capable of producing an unjust result, nor did they provide an avenue for the jury to come to a verdict they would not have otherwise come to.  McKinney, 223 N.J. at 496-497 (citing LaPorte, 62 N.J. at 318-19 (quoting R. 2:10-2)).  To be sure, it is undisputed that [...] died from a gunshot wound to the head.  To that end, there was overwhelming evidence of defendant’s guilt, including defendant’s own admission that he fired a shot from a handgun that killed [...].  In other words, there was no question or possible confusion as to what type of “weapon” killed [...] or that defendant was the one who possessed it.  However, even if this Court were to deem the instruction given was error, only the two charges for possession for a weapon would need to be reversed.  See State v. Kille, 471 N.J. Super. 633, 648 (App. Div. 2022) (holding that reversal of the two weapons offenses due to a difference in the written jury instructions and the verbal instructions given do not affect defendant’s other conviction for aggravated manslaughter, which was affirmed); see also, State v. R.P., 233 N.J. 521 (2013) (holding that guilty verdict can be molded when defendant was given his day in court, all of the elements have been properly established and defendant has not established prejudice).
[brief] As a starting point, Appellant [...] was the sole member/manager of [...] and in need of security-related services.  As such, he was sophisticated enough to realize that [...] was not his only option as he obtained an additional quote from a local security company.  Also, when faced with deciding between [...] and the local company, there was no apparent rush or constrained timeline forcing Appellants to decide.  During that time, Appellants could have obtained additional quotes, acquired more information, sought the advice of an attorney, or undertaken any number of other activities to ensure they were making the right decision based on their needs.  Instead, satisfied with just the two quotes, they selected [...].  Appellants’ admitted interest was “only . . . the price and amount of security equipment in the transaction”.  Appellants should be foreclosed from breaking their agreement with [...].  Their lack of due diligence and/or affirmative disregard of certain aspects of the Contract should not be advanced by granting their requested relief to the detriment of [...].  Appellants were sophisticated enough to understand the Contract’s clear and unambiguous Clauses and had every opportunity to carefully examine them to their liking or identify a suitable alternative.  However, Appellants selected [...] and bound themselves to the Contract.  Additionally, Appellants knew of their obligation to arbitrate disputes associated with the Agreement and consistently acknowledged the same (See Dr35; see also Dr37) (“we have no objection to arbitrating this matter . . . ”).  Specifically, Appellants admitted they “ha[d] a binding agreement to submit all claims between themselves and [...], pursuant to the operative arbitration agreement contained in Plaintiff’s Small Business Contract” (Dr35).  Nevertheless, Appellants failed to meaningfully participate in arbitration and stalled efforts related to the same because they wanted to arbitrate through “the Sussex County Arbitration system. ”  Allowing Appellants to prevail on appeal would amount to an endorsement of their clear violation of the Agreement and Consent Order.  For these reasons, the binding contract that included valid, legal, and enforceable waiver and arbitration provisions must be enforced.
[brief] The ABSENCE OF SERVICE OF PROCESS or a waiver of service by the defendant establishes as matter of law that due process will NOT PERMIT a court to exercise power over a party named as defendant in the complaint as cited in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999).  It is of note that Rule 4:50-1(f) as a “catchall” provision allows courts to RELIEVE a party from a final judgment for “any other reason justifying relief from the operation of the judgment. ”  Motions under subsection (f) are “addressed to the broad discretion of the trial court. ”  Court Inv. Co. v. Perillo, 48 N.J. 341 (1966).  “That discretion is ... to be exercised according to equitable principles, and the decision reached by the trial court will be accepted by an appellate tribunal in the ABSENCE of an ABUSE of its discretion”  Ibid.  The court in [...]’s case articulated that: “the very ESSENCE of (f) is its capacity for relief in EXCEPTIONAL SITUATIONS.
[brief] 6.  Section 1:7-6 of the Revised Statutes is amended to read as follows:  1:7-6.  If the [Supreme] Court, upon the final hearing of a petition authorized by this chapter, shall [decree] determine any law or joint resolution, or any part thereof, to be null and void, [such decree shall be drawn in writing and signed by the Chief Justice and shall be recorded at length in the minutes of the court and filed by the clerk of the court.] judgment shall be entered to that effect.
[brief] ”  4T 33:25; 4T 34:1-13 (Emphasis added).  [...]’s testimony is that building height is **not** an independent variable that he can extract from the ITE data.  That data, he tells us, probably includes buildings with “a 24 foot or higher ceiling height”.  4T 34:9-10.  [...] is unable to tell us what the effect will be of a warehouse building that is 48 feet tall instead of 30 feet tall because the aggregated data incorporated into the equation developed by [...] includes buildings with ceiling heights of 24 feet and greater, and building height is not an independent variable in the ITE equation that he can change or examine in order to create a comparative analysis.
[brief] TABLE OF CONTENTS  ..................................................................................................................i TABLE OF AUTHORITIES...........................................................................................................ii  POINT I THE BOROUGH MAY ALWAYS DECLINE TO ACCEPT A DEDICATION WHEN IT DEEMS SAME TO BE IN THE PUBLIC INTEREST.........................................................................................................................1 POINT II THE RECORD DOES NOT DISCLOSE SITE PLANS AND SUBDIVISION MAPS WHICH WERE APPROVED BY THE PLANNING BOARD.......................................................................................................................2 POINT III THE FAILURE TO PROVIDE THE TRANSCRIPTS OF THE 2004 AND 2010 PLANNING BOARD RESOLUTION IS FATAL TO PLAINTIFF’S CLAIM OF DEDICATION...............................................................................5 POINT IV A DEVELOPER MAY NOT IMPOSE OWNERSHIP OF A ROADWAY THROUGH A CONFUSING AND OPAQUE RECORD......................................................................................................................................6 POINT V PLAINTIFF WAS REQUIRED TO NOTICE THE CHURCH WHO HOLDS AN IMPLIED EASEMENT WITHIN THE ROADWAY AT ISSUE.....................................................................................................................................7 POINT VI THE REMAINDER OF PLAINTIFF’S ARGUMENTS LACK MERIT.........................9 PUBLIC ACCESS AND PUBLIC OWNERSHIP ARE MUTUALLY EXCLUSIVE.................................................................................................13 CONCLUSION..................................................................................................................................15 | CASE | PAGE | |------------------------------------------|------| | **N.J. TRANSIT CORP v FRANCO,** | 1,2 | | 447 N.J. Super. 361, 375-376 (App. Div. 2016) | | | **VELASCO v GOLDMAN BUILDERS, INC.,** | 5 | | 93 N.J. Super. 123.136 (App. Div. 1966) | | | STATUTES, REGULATIONS, AND COURT RULES | | |------------------------------------------|------| | **N.J.S.A. 40:55D-40.6** | 1 | | **N.J.S.A. 40:55D-38(b)(4)-44** | 1 | | **N.J.S.A. 46:26B-4** | 6 | | **N.J.S.A. 40:55D-53(j)** | 2,7,16| | **N.J.S.A. 40:67-19** | 16 | | **N.J.S.A. 40:67-1** | 16 | | **N.J.A.C. 5:21-1.5(d), (d)(1)** | 1 | POINT I
[brief] **NO HEARSAY EXCEPTION APPLIES.**  Contrary to defendant’s newly conceived contentions, there are **no** hearsay exceptions applicable at bar.  Likewise, there was nothing reliable or trustworthy about those documents.  The alleged DOH conclusions were contained in an unsigned letter dated August 18, 2016, which referred to an alleged investigation that took place on July 6, 2016, six months after [...]’s death in January 2016.
[brief] *Id.*  As noted above, the Board denied the application, not for either design waiver, but for the following reasons:  A.  While the application represented a conforming subdivision, it is the duty of the planning board to weigh the evidence and to exercise its discretion in the event of significant concerns on the board [*sic*] of the board.  *The Board ultimately rejected the application on the basis of significant public safety concerns regarding the lack of street parking* coupled with the substantial proposed density *particularly in light of the basement apartments notes on the plans*.  The Board found that an approval of this application would have significant detrimental effects on the safety of the neighborhood.  B.  The Board finds the applicant’s proposal does not further the purposes of zoning pursuant to N.J.S. 40:55D-2 (*Ia72*)  It should be noted that no waiver or variance relief was requested with regard to any parking or density requirement.  As a matter of fact the Applicant comported with all [...] Land Use Ordinance requirements except for the waivers as discussed above.  Furthermore, as explained above, and at length in Plaintiff’s trial brief, no basement apartments were proposed as part of the application.  Furthermore, the court in *Pizzo Mantin Group v. Randolph Tp.*, 137 N.J. 216 (1994) prohibits a board from denying the application based on “the broad purposes of the MLUL” rather than on specific standards contained in the municipal ordinances.