ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (Da2-3).  The parapet height extends above the Building Height as clearly shown on the approved [...] architectural plans.  Appellant contends that the dimension shown on the Sketch is the basis for this appeal, not the approved height.  (Da9).  Appellant contends that the approximate +/- 51’ dimensions “represent the distance from the street grade to the top of the building’s façade and is only tangentially related to the approved building height. ” (Da9-10).
[brief] Under the second requirement, the “interest” of the party seeking the records can be “‘a wholesome public interest or a legitimate private interest. ’”  Higg-A-Rella, Inc. v. Cnty. of Essex, 141 N.J. 35, 47 (1995), quoting Loigman, 102 N.J. at 112.  [...]’s “interest in the records” could not be less wholesome – it is clear that he has a personal vendetta against this judge.  Dissatisfied with [...]’s involvement and rulings in his case, [...] sets out on a labored, self-serving campaign against her.  Query as to what end?  Even if [...]’s citizen’s Complaint resulted in a criminal conviction, he does not articulate what – if any – impact this has on his criminal case and 35 year incarceration.  He merely accuses and laments about a fictitious scheme of corruption for which he has no proof or facts.  Importantly, under the case law, [...] “must show a ‘particularized need that outweighs the public interest in confidentiality of the investigative proceeding.
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[brief] “Malicious prosecution provides a remedy for harm caused by the institution or continuation of a criminal action that is baseless. ”  \textit{LoBiondo v. Schwartz}, 199 N.J. 62, 72, 89 (2009).  “Malicious prosecution requires the plaintiff to prove four elements: (1) a criminal action was instituted by this defendant against this plaintiff; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorably to the plaintiff. ”  \textit{Id.} at 90 (citation omitted).  Counts 14 and 15 of the [...]’ proposed Second Amended Complaint set forth allegations which, if later proven to be true, would be sufficient to prove each of these four elements against [...] and the [...]:
[brief] There, the owner of a seafront parcel conveyed by Deed an inland parcel together with “the free use and full rights of sufficient land on my seafront for bathing purposes, with the right to erect thereon bathhouses, and use the same free of charge, undisturbed, at any time. ”  The Court found the circumstances and the vague language in the Deed supported that the permission to place bathhouses was a revocable license, as otherwise the broad terms would allow the permission holder to take over the entire property.
[brief] (Pa115)  Thus, the Court was aware of the fact that the record was incomplete and yet a Summary Judgment decision was made about the case anyway.  When Appellant sat for deposition, the deposition started at about 10:00 A.M. and ended at about 5:30 P.M.  The deposition consisted only of the questions from Respondent’s Counsel.  Respondents’ Counsel was to reschedule the deposition so that the record could be complete and failed to do so.  Appellant’s Counsel had a number of questions to place on the record, however, there was no time to complete the deposition on the date of deposition.  As a result, the deposition transcript is one-sided containing only the direct questioning of the Appellant, then Plaintiff.  Because this Counsel had a right to engage in redirect of the testimony given by Appellant which did not happen, the record is incomplete.  Pursuant to Valenzas v. Colgate-Palmolive and other case law noted above, when the record is not complete, Summary Judgment should not be granted.  This set forth a procedural basis for denial of the Motion for Summary Judgment as the record was not complete.  This Counsel filed a motion to compel Counsel for the Respondents to schedule again the deposition of Appellant so that the deposition could be completed and the Court had notice that the Plaintiff’s deposition had not been completed but failed to compel the deposition completion.  The documentary, evidentiary material developed in this case made it clear that there was information that supported each and every cause of action and illustrated the presence of material issues in dispute.  Despite the notice given to the Court that the record was not complete with regard to Appellant’s deposition, this major issue was not addressed by the trial court.  There was no basis for granting Summary Judgment because the record was incomplete but this is what was done.  It is requested that the Appellate Court reverse and remand this matter to the trial court so that the record can be completed.
[brief] Thus, the Zorba court's analysis cannot be applied to the Insurance Fraud Prevention Act. \(^7\)  Even under the Zorba court's analysis, Plaintiffs here are seeking restitution of the monies they previously paid to the Defendants.  See, e.g., ¶¶ 93-94 of the complaint and ¶(g) of Count Three's ad damnum clause.  Thus, they seek traditional equitable damages and, therefore, there is no right to a jury trial.  --- \(^6\)  In Land, [...] did not seek and was not awarded any traditional "compensatory damages" since it had denied the Lands' claim for insurance benefits.  Thus, there were no improperly obtained insurance benefits to seek restitution of.  Instead, [...] was awarded a judgment for trebled attorney's fees and costs.  See 186 N.J. at 168.  \(^7\)  Even under the Zorba court's analysis, Plaintiffs here are seeking reimbursement of the monies they paid to the Defendants plus attorney's fees.  See, e.g. ¶¶ 93-94 of the complaint and ¶(g) of Count Three's ad damnum clause.  Thus, they seek traditional equitable damages and, therefore, there is no right to a jury trial.  The *Zorba* court also based its holding that the CFA triggered a right to a jury trial upon the failure of the Legislature to amend the CFA to explicitly provide that there was no right to a jury trial after 30 years of litigation under the CFA using model jury charges.  *Zorba*, 362 N.J. Super. at 140-14.  Here, there are no model jury charges for use in Fraud Act litigation such as the instant case.  This factor militates in favor of the conclusion that there is no right to a jury trial under the Fraud Act.  Lastly, the State has been granted leave to intervene in the within matter and has filed an action against the Defendants for the remedies permitted under the Fraud Act, as was the case in the matter of *State v. Sailor*.  See Da5a.  It is undisputed that the Defendants are not entitled to a jury trial of the State's claims, which claims mirror the allegations raised in the Plaintiffs' Complaint.  See Da5a.  Compelling [...] to try its case before a jury would have the result of depriving the State of its statutory right to have allegations raised by its complaint resolved by the Court and would result in numerous other procedural difficulties which would serve only to lengthen the trial of this matter.  Instead, the resolution of both complaints via a bench trial will result in numerous procedural efficiencies, which efficiencies would eventually inure to the Defendants' benefit in the event they are found liable under the Fraud Act since these efficiencies will result in a reduced claim for attorney's fees against the Defendants.
[brief] (6T, 22:18-23:3) (emphasis added).  In other words, [...] was tasked with quantifying lost profits while *assuming* Plaintiffs developed the same project as [...] on the same terms as [...].  Dr.  Powell did not account for Plaintiffs’ inexperience as an affordable housing developer or otherwise address the impact of Plaintiffs’ inexperience on the ultimate viability of the project – a deficiency expressly noted by the Supreme Court (“Powell did not acknowledge in his report that [...] had never been involved with a residential development or built housing of any kind. ”).  Rather, [...] simply *assumed* that the inexperienced Plaintiffs – either with the help of some unidentified professionals or as part of some unidentified “joint venture” – would have completed the project using the same sources of funds, costs, income and expenses as the ultimate developer, [...] -- one of the most experienced affordable housing developers in New Jersey.
[brief] 2.  Sentencing courts may only impose sentences authorized by statute.  The components of [...]’s sentence that prohibited him from having contact with the dog, prohibited him from “owning, possessing, exercising control over or caring for” any other animals, and required him to complete anger management counseling were furthermore not authorized by any statute.  Should this Court properly find that the sentencing court was without authority to fashion conditions of [...]’s PSL, it should not permit the parole conditions to be recast as valid parts of his sentence for animal cruelty.  These components of his sentence, whether characterized as parole conditions or something else, lack statutory support and must be vacated.
[brief] THE TRIAL COURT PROPERLY DENIED [...]’ MOTION TO AMEND THE COMPLAINT AND CORRECTLY FOUND THAT THE SUBSTITUTION OF PLAINTIFF FROM MR. [...] TO [...] WAS FUTILE BECAUSE THE [...]ES WERE THE ONLY PRINCIPALS AND THEY HAD ALREADY LITIGATED THE ENVIRONMENTAL CLAIMS.  (Order: Pa 1a-2a)  Amendments to a pleading are a matter left to the court’s sound discretion.  See R. 4:9-1; Kernan v. One Washington Park, 154 N.J. 437, 457 (1998).  However, the discretion to deny a motion to amend is not mistakenly exercised when the amendment is so meritless that a motion to dismiss under R. 4:6-2 would have to be granted.  Notte v. Merchants Mut. Ins. Co., 185 N.J. 490, 501 (2006).  In other words, “courts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law. ”  Notte, 185 N.J. at 501 (quoting Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256-57 (App. Div. 1997)).  A motion to amend is also properly denied where its merits are marginal, its substance generally irrelevant to the main claim, and allowing the amendment would unduly protract the litigation or cause undue prejudice.  Cutler v. Dorn, 196 N.J. 419, 441 (2008).  The determination to deny a motion to amend “must be made in light of the factual situation existing” at the time the motion is made. ”  Notte, 185 N.J. at 501.  The “granting of a motion to file an amended complaint always rests in the court’s sound discretion. ”  Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998).  Here, the motion to amend was based solely on the addition of a substituted limited liability corporation that was solely owned by the Appellants.
[brief] PROCEDURAL HISTORY  This Action concerns a contract of sale under which Defendant-Appellant [...] was to sell and Plaintiff-Respondent [...] was to purchase a property in Newark, NJ.  [...] commenced the Action with the filing of a complaint on July 25, 2022, in the Law Division, Essex County.  (Da29-Da36.)  The Complaint alleged that [...] had validly terminated the contract, but that [...] had failed to return [...]’s downpayment.  (Id.)  The Complaint set forth a cause of action for breach of contract and a cause of action for specific performance compelling [...] to return the downpayment.  (Id.)  [...] filed an Answer on August 20, 2022.  (Da62-Da68.)  [...] filed a partial motion for summary judgment on June 29, 2023 (the “Motion”).  (Da40-Da335.)  The Motion sought summary judgment only as to the specific performance cause of action, and sought an order compelling [...] to return the downpayment to [...].  (Da40.)  The Motion requested that the court certify its ultimate order and judgment as final pursuant to R. 4:42-2.  (Id.)  The Motion also sought other interlocutory relief not yet ripe for review on this Appeal.  (Da40-41.)  [...] opposed the Motion.  (Da339-360.)  1  Citations to Da refer to Defendant/Appellant’s Appendix.  The trial court heard oral argument on the Motion on October 5, 2023.  (T1-T48².)  In an Order and Final Judgment and accompanying Statement of Reasons, dated June 27, 2024, the trial court granted the Motion, ordered [...] to release the downpayment to [...], and certified the Order and Final Judgment as final pursuant to R. 4:42-2 as to those matters (the “Order and Judgment”).(Da1-Da4).
[brief] Generally, a litigant has standing under the common law to challenge a governmental action when he has “a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and a substantial likelihood that the party will suffer harm in the event of an unfavorable decision. ”  Feld v. City of Orange, 2014 WL 8277956 (App. Div. March 26, 2015) (internal citation omitted).  “[I]n cases of great public interest, any ‘slight additional private interest’ will be sufficient to afford standing. ”  Id.  Our courts have granted “a broad right in taxpayers and citizens of a municipality to seek review of local legislative action without proof of unique financial detriment to them.
[brief] (Pa51-Pa52).  Because [...] testified that he based the allegations in the criminal complaint solely on his personal knowledge (Da2230; Pa317-Pa322), what others may have told him was irrelevant.  Similarly, Defendants wrongfully accuse Plaintiffs of failing to address “what [...] reasonably believed, or even what reasonable inferences were to be drawn from those facts,” (Drb19) even though Plaintiffs directly addressed this issue by quoting [...]’s testimony demonstrating that he did not have a reasonable belief in the truth of his accusations.  (Pb13-Pb14; Pb51-Pb52).  And even if Defendants and [...] were somehow entitled to “reasonable inferences” in their favor on Plaintiffs’ motion for leave to amend (which they were not),\(^2\) it would not be reasonable to infer Plaintiffs could never prove [...] lacked probable cause when [...] admitted his allegations were false.  (Da2542-Da2543).  Unable to explain away [...]’s admissions, Defendants try to turn the tables by making an argument not raised below.
[brief] First, Defendant’s argument that the State failed to present certain evidence during the suppression hearing disregards the fact that the State was prevented from presenting that evidence by the trial court’s incorrect evidentiary ruling.  Specifically, Defendant errs when he argues that the State failed to sustain its burden to present “the most reliable hearsay” related to the 9-1-1 call.  (Db\(^2\), p. 11).  In fact, the trial court prevented the State from presenting any substantive evidence.
[directive] If e. the offense occurred on or after August 2, 1993 you must pay a $75 Safe Neighborhood [Yes/Sim] [No/Nao] Services Fund assessment for each conviction?  Se o crime ocorreu no dia 2 de agosto de 1993 ou ap6s esta data, voce tera que pagar por cada condenai;:iio a taxa de $75 ao Fundo de Servii;:os para Segurani;:a de Bairros?
[brief] As explained above, the BWC statute provides that “every uniformed State, county, and municipal patrol law enforcement shall wear a BWC that electronically records audio and video while acting in performance of the officer’s official duties. ”  Jones, 475 N.J. Super. at 532 (quoting N.J.S.A. 40A:14-118.5).  “[T]he video and audio recording functions of a [BWC] shall be activated . . . at the initiation of any other law enforcement of investigative encounter between an officer and a member of the public” and “the [BWC] shall remain activated until the encounter has fully concluded and the officer leaves the scene. ”  N.J.S.A. 40A:14-118.5(c)(1).  If “a law enforcement officer, employee, or agent failed to adhere to the recording or retention requirements . . . ‘or intentionally interfered with a BWC’s ability to accurately capture audio or video records,’ and . . . the defendant ‘reasonably asserts that exculpatory evidence was destroyed or not captured,’” the defendant is entitled to “a rebuttable presumption that exculpatory evidence was destroyed or not captured. ”  Jones, 475 N.J. Super. at 533 (quoting N.J.S.A. 40A:14-118.5(q)(2)).  The statute’s purpose is to “promot[e] transparency and accountability in policing in our communities” and are critical to “support[ing] or dispel[ing] a civilian’s claim against a law enforcement officer.
[brief] The May 3, 2024 order (Pa1331), being a final order that is appealable as of right, is subject to Rule 1:7-4(a) but the trial court regrettably failed to comply with Rule 1:7-4(a) by denying the plaintiff's motion to abbreviate without any fact-finding and meaningful conclusions of law.  The trial court rationalized its decision with conclusory statements such as “the plaintiff misapprehends the import of both the Rule and many of the cited decisions” (Pa1331) that failed to specify what the plaintiff's misapprehension was or the basis of its determination that the plaintiff misapprehended the rule.  Similarly, another conclusory statement – “this argument misses the mark and leads to the opposite conclusion sought to be drawn by plaintiff” (Pa1331) does not explain why the motion judge was led to draw an opposite conclusion.  Such conclusory statements are of little value in answering the pivotal question of whether the abbreviated transcript permits proper consideration of the questions raised on appeal.  “Naked conclusions do not satisfy the purpose of R. 1:7-4.  Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions. ”  Curtis v. Finneran, 83 N.J. 563, 570 (1980).  “Mere conclusory terminology such as utilized by the trial judge does not suffice.  Such perfunctory treatment constitutes a disservice to the litigants, the attorneys and the appellate court. ”  Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976).  “The absence of adequate findings, as here, necessitates a reversal”  Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996).  The core argument in plaintiff’s 19-page moving certification (Pa1269-87) was that abbreviated transcripts are sufficient for the Appellate Division to properly consider the merits of the appellant’s arguments because the questions presented on appeal concern matters of law as opposed to a challenge to the trial court's factual findings barring limited exceptions.
[brief] See generally, Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268, 276 (1967), Reich v. Borough of Fort Lee Zoning Bd. of Adjustment, 414 N.J. Super. 483, 502 (App. Div. 2010), and Cox & Koenig, New Jersey Zoning and Land Use Administration, (GANN, 2023) Sect. 28-3.  See also, N.J.S.A. 40:55D-70(c) (requiring any “c” variance to relate to a “specific” property), and N.J.S.A. 40:55D-70(d) (requiring any “d” variance to apply to a “particular case”).  Finally, the Trial Court failed to appreciate that the underlying bulk standards and requirements within the VC-2 zone exist to protect the residents of the property being developed, as well as to further the Purpose and General Goals of the VC-2 Zone.
[brief] Page(s)  Cases  Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)  .................................................................  1 Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)  .................................................................  1 P.M. v. N.P., 441 N.J. Super. 127 (App. Div. 2015)  ......................................................................................  6 State v. Bankston, 63 N.J. 263 (1973) ...........................................................................................................
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[brief] The Facts Before the Trial Court  The detailed facts of this dispute are set forth in the parties’ extensive submissions before the trial court as reflected in the accompanying multi-volume appendix.  In brief, the key facts are as follows:  In 1921, [...]’s predecessor-in-title, [...] (“[...]”), acquired oceanfront land that became known as [...].  A subdivision plan for [...] was created in 1923 and filed with the Ocean County Clerk in 1925 (“1925 Plan”).  (Da420)  The 1925 Plan included a map (“1925 Map”) setting forth multiple blocks and lots, including the two properties that are at issue in this case.  (Da420-Da424)  [...] owns one of the properties, known as [...] (“[...]” or “[...] Property”).  (Da486)  [...]’s chain of title runs successively and directly from [...].  (Da447-Da501; Da666-Da704).  None of the title transfers in the chain from [...] through [...] for the [...] Property contains any language identifying any easement enabling other property owners to access the Atlantic Ocean below the MHWL via [...], or implies any similar burden on the [...] Property.
[brief] Therefore, the Board cannot grant the use in the configuration proposed.  Moreover, the proposal as configured puts the Board in the position to rezone the property, which is not the role of the Board of Adjustment and which rezoning request was denied for this very use.  Da140.  The Board’s evaluation of the fourth factor in the Sica test, by weighing the positive and negative criteria, cannot be said to have been arbitrary, capricious or unreasonable.  D.