ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).  Summary judgment is appropriate when the movant demonstrates “that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. ”  Rule 4:46-2(c).  The New Jersey Supreme Court in Brill v. Guardian Life Ins. Co. of America held:  Under this . . . standard, a determination whether there exists a “genuine issue” of material fact that precludes summary judgment, requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.  142 N.J. 520, 540 (1995).  To preclude summary judgment, the non-moving party must present competent evidence sufficient to create a genuine issue of fact.  *Id.* at 523 (quoting *Judson v. Peoples Bank and Trust Co. of Westfield*, 17 N.J. 67, 75 (1954)).  Disputed facts “of an insubstantial nature” do not preclude summary judgment.  *Id.* at 529.  The pertinent inquiry on a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. ”  *Id.* at 536.  Where a rational jury could reach but one conclusion, the trial judge must not send the case to trial.  *Id.* at 541 (internal quotation omitted).  The issue in this case is whether Defendants owed a duty to Plaintiff to warn of the raised barricade leg.
[brief] After more than three years of discovery since the lawsuit was filed, Defendants effectively produced no documents and provided no information in response to Plaintiffs’ interrogatories other than to state that Defendant [...] and the former superintendent were former building workers.  That is, despite the [...] having owned the building for several years, and there being documentary evidence that Defendant [...] had communicated via email with former tenants, Defendants claimed not to have a single written communication, bank statement, maintenance invoice, or record of payment to anyone for anything.  Indeed, Defendants claimed they could not recall at what bank the [...] maintained accounts.  Incredibly, Defendants still swore that they had performed a diligent search for responsive documents and information, while denying that any documents had been destroyed or lost.  In the face of Defendants’ recalcitrance, the trial court granted Plaintiffs’ motions to strike the [...]’s answer with prejudice and Defendant [...]’s answer without prejudice, orders which Defendants do not challenge here.
[brief] The trial court also ignored the Supreme Court’s express rejection of other efforts to limit or restrict an attorney’s right to practice law under the rationale that clients are ultimately the parties harmed by such a restriction.  The Court has adopted RPC 5.6(b), which prohibits any agreement between private parties to limit an attorney’s right to practice law.  In *Cardillo v. Bloomfield 206 Corp.*, 411 N.J. Super. 574, 580 (App. Div. 2010), the court invalidated an agreement between the plaintiff’s attorney and defendants as part of a settlement where the attorney agreed to restrain from representing clients adverse to defendants in the future.  The agreement was deemed unenforceable because it restricted the attorney’s right to practice law in violation of RPC 5.6(b).  The court noted that the rule is intended to ensure that the public has access to the best available attorneys.  The same logic should apply here and is further grounds to invalidate this section of the Act because it impermissibly restricts an attorney from practicing a certain type of law and denies the public the right of access to the best available debtor/creditor attorneys – far afield from the purported purpose of the Act.
[brief] THE DECISION BELOW WAS NOT SUPPORTED BY THE SUBSTANTIAL EVIDENCE AND SHOULD THEREFORE BE REVERSED.  (Not Raised Below).  The substantial evidence presented does not support the final agency determination made by the [...].  Substantial evidence has been defined alternately as "such evidence as a reasonable mind might accept as adequate to support a conclusion," and "evidence furnishing a reasonable basis for the agency's action."  Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (citations omitted).  The Board’s determination references a “presumption” that mail properly addressed with proper postage was received by the party it was addressed to.  However, [...] certified in an affidavit provided to the Board that he never received a postcard from the Division, regardless of if it was ever sent.  This affidavit should overcome any presumption that the postcard was received.  The Board’s decision failed to consider the almost one hundred affidavits of other active and retired troopers who also did not receive a postcard from the Division notifying them of the Ricci Act that were submitted to the Board in support of [...]’s appeal.  As such, the finding that it was “undisputed” that the Division sent the postcard to [...] (and others) is not supported by the facts and evidence presented.  Furthermore, any presumption claimed by the Board has clearly been rebutted by the overwhelming evidence presented in this matter.  Considering the evidence presented, the agency’s action does not have a reasonable basis.  Additionally, the Board failed to consider the evidence presented demonstrating that Registrations Forms submitted were not accepted by the Division because the Trooper(s) who submitted them were not sick at the time the Registration Form was sent.  [...] attempted to file an Eligibility Registration Form back in September of 2019.  [...] was denied the ability to register because he was told the Ricci Bill “is for those who are currently sick.  Not for possible future illnesses. ”  Pa131.  The Board also failed to consider the evidence presented regarding the [...] membership polling.  [...], President of the [...], polled his membership to ascertain whether anyone received notice of the Ricci Act.  Of the fifty-nine (59) [...] members (retired troopers) who responded to the polling, fifty-seven (57) did not receive any notice of the Ricci Act.  The Board ignored the evidence from this polling when making its determination.  In light of all of the evidence presented on [...]’s behalf, a reasonable mind could only conclude that these postcards were never received.  Without proper notice, [...] should have been permitted to register for the Ricci Act.  Therefore, the determination below should be reversed because it is against the substantial weight of the evidence.
[brief] (a.)  The penalties that have been assessed against Defendant relate solely to the allegation that Defendant failed to pay to Plaintiff $70,000.00 in monthly payments beginning six years after the agreement became effective.  The Court has pointed to the penalty provision in the contract which assesses a penalty of $100.00 per day.  The reason for the penalty was to insure that Plaintiff received sufficient funds from Defendant in order to meet her living expenses.  (b.)  Plaintiff was required under the agreement to pay $70,000.00 to Defendant pursuant to the contract.
[brief] See State v. Fitzsimmons, 286 N.J. Super. 141 (App. Div. 1995), remanded 143 N.J. 482 (1996); cf. State v. Puryear, 441 N.J. Super. 280, 294-295 (App. Div. 2015), in which the philosophy of R. 4:49-2, as well as R. 4:42-2 and 1:7-4(b) (discussed below), was also applied in a criminal matter upholding the trial court's decision to grant reconsideration of its motion to suppress ruling.  See also State v. Wilson, 442 N.J. Super. 224, 233 n. 3 (App. Div. 2015), rev'd on other grds., 227 N.J. 534 (2017).  Cummings v. Bahr, 295 N.J. Super. 374, 384-385 (App. Div. 1986), held that R. 4:49-2 is applicable only when the court's decision is based on plainly incorrect reasoning or when the court failed to consider evidence or there is good reason to consider new information.
[brief] The trial court abuses its discretion if its decision is “made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis. ”  Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 572 (2002).  Thus, an appellate court “will not substitute [its] judgment unless the evidentiary ruling is ‘so wide of the mark’ that it constitutes ‘a clear error in judgment. ’”  State v. Garcia, 245 N.J. 412, 430 (2021) (quoting State v. Medina, 242 N.J. 397, 412 (2020)).  B.  THE TRIAL COURT’ RELIANCE ON N.J.R.E. 105 AND CASE LAW WAS PROPER IN ADMITTING THE OFFICERS’ OPINIONS WITH A LIMITING INSTRUCTION FOR THE PURPOSE OF IMPEACHING [...].
[brief] Even so, an officer’s comment about the inevitability of a search warrant “does not indicate coercion if it is ‘a fair prediction of events that would follow’ rather than ‘a deceptive threat made to deprive [an individual] of the ability to make an informed consent. ’”  Hagans, 233 N.J. at 42 (quoting State v. Cancel, 256 N.J. Super. 430, 434 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993)).  “As a best practice, police officers should tell a suspect only the measures they intend to take — apply for a search warrant — and should not offer a prediction about whether a warrant will issue. ”  Hagans, 233 N.J. at 42.
[brief] A.  The New Jersey Court Rules Promote Efficiency in ESI Discovery by Requiring Courts to Assess Relevance and Burden.  Relevance is the “touchstone” of discovery.  Estate of Lasiw v. Pereira, 475 N.J. Super, 378 (App. Div. 2023).  Rule 4:10-2 accordingly limits the scope of discovery – both paper and electronic – to “any matter, not privileged, which is relevant to the subject matter involved in the pending action. ”  Rule 4:10-2(a).  On its face, therefore, the Rule excludes from the scope of discovery those documents which are not relevant to the case.  Further, the Court Rules recognize many circumstances in which even relevant discovery should be shielded from production: undue burden or expense, annoyance, embarrassment, oppression, that the requests are cumulative, duplicative, and that the burden outweighs the benefit.
[brief] Although [...]’s continuing attempts to construe [...]’s Property at Lot 22 as [...]’s Lot 20 confuses what is otherwise a straightforward issue based upon the Meccia Report and the Pronesti Survey, [...]’s requests must be denied.  In order to quiet title, [...] must be in “peaceable possession” of the subject property.  N.J.S.A. 2A:62-1.  “Peaceable possession” is a jurisdictional prerequisite to a quiet title action.
[brief] I won’t call it a minuscule, but a very small amount of marijuana.  Testimony is it’s within this bag, you know, as it, not in the evidence bag, obviously.  But in the sealed and knotted plastic, which is not, you know -- And then that was inside, stuffed inside bricks of heroin inside that black bag, inside a closed glove compartment.  And when the door opened, that immediately gave rise to the smell of marijuana.  I’ve got some credibility issues with that.  I have to tell you that.  I’m struggling with it.  (2T 147-25 to 148-11)  In order to save the search and avoid calling the officer incredible in its opinion, the trial court speculated that perhaps large amounts of raw marijuana had recently been removed from the car.  Not only is there no basis for that speculation—in particular because [...] had never been accused of dealing marijuana—but speculation that fills in the gaps in the State’s record cannot be used in the context where the State bears the burden of proof.
[brief] The courts have stated that statutes are written so the everyday citizen would be able to interpret the laws.  *State v. Kazanowski*, DOCKET NO. [...], 12 (App. Div. Dec. 9, 2020) ("Although the officer here should have taken more care to cite to N.J.S.A. 39:4-50.4a in the charging summons  The everyday citizen would not know to dig through dozens of case laws to figure out what they are really being charged with and that 39:4-50.2 and 39:4-50.4a are interrelated.  If the police officer, prosecutor or municipal judge corrected this summons, I would have prepared extra arguments as to the 3 elements in 39:4-50.4a that the prosecutor needed to prove beyond a reasonable doubt.  *State v. Singh*, DOCKET NO. [...], 7 (App. Div. Nov. 1, 2018) ("As our Supreme Court has held "[t]o identify all of the elements of a refusal offense, we must look at the plain language of both statutes because although they appear in different sections, they are plainly interrelated."")  Therefore, because of the police officer, prosecutor and judges' errors, I was prejudiced from making proper arguments in relation to the 3 elements required in 39:4-50.4a.
[brief] Id. at 9-10.  However, the court also found that the Board did not consider whether “static operating costs” such as garbage collection fees and tax preparation fees should be included in condominium fees in [...]’s operating expenses.  Id. at 5.  The court further held that the Board arbitrarily decided to reduce the management fee to 5% of monthly rent.  Id. at 11.  Finally, the court below addressed the Board’s determination of [...]’s equity.  Id. at 12.  The Board considered [...]’s cash contribution into [...]’s unit, but did not address property improvements, market conditions, re-assessments, and inflation, all factors the Board must contemplate in deciding [...]’s equity.  Id.  [...] then remanded this matter to the Board for a third set of hearings.
[brief] PROCEDURAL HISTORY  Plaintiff’s Complaint and Jury Demand asserts three counts for relief.  [7a].  The First Count asserts a claim for nuisance based on allegations that Defendants caused rainwater to flow from their property to Plaintiff’s property.  [9a].  The Second Count asserts a claim for trespass based on allegations that Defendant’s driveway encroaches on Plaintiff’s property.  [10a].  The Third Count asserts a claim for trespass based on allegations that Defendants made an unauthorized entry onto Plaintiff’s land and that Defendants deposited tree branches on Plaintiff’s plants, causing damage thereto.  [11a].  Defendants filed an Answer, Affirmative Defenses, Counterclaims and Jury Demand, and Plaintiff answered the counterclaim.  [13a–38a].  Following discovery, Defendants moved for summary judgment on all counts of Plaintiff’s complaint, which Plaintiff opposed.  [39a].  At the conclusion of oral argument, the Chancery Division granted Defendants’ motion in its entirety and placed its oral opinion on the record.  [T60:17–68:24].  It subsequently entered a written order, and the instant appeal followed.  [5a, 1a].  Plaintiff’s appeal challenges the Chancery Division’s with respect to summary judgment on the First Count (nuisance) and Third Count (trespass).  STATEMENT OF FACTS
[brief] (Da25-26).  This Court recently considered police conduct in executing a search warrant in Nieves.  In Nieves, this Court held that where the police – while executing a search warrant – waited less than five-seconds before entering the defendant’s residence after knocking and announcing their presence, suppression of evidence was warranted because the officers did not wait a reasonable amount of time before forcibly entering the premises.  Nieves, 476 N.J. Super. at 429-30.  This Court reasoned that [t]o hold otherwise under the circumstances presented – where the purported pause following the officers’ first knock-and-announce is tantamount to no pause at all – would impermissibly render the constitutional requirement that officers wait a reasonable time prior to making a forcible entry during the execution of a knock-and-announce search warrant a meaningless nullity.  Unlike *Nieves*, here the trial court properly concluded that suppression was not warranted because there is no constitutional requirement that police record the audio of themselves announcing their presence prior to executing a warrant.  (Da24).  Defendant’s argument that the expansion in the use of body camera policies requires a change in the law is unfounded.  Essentially, defendant is arguing that an alleged breach of the Attorney General Directive is tantamount to a breach of the constitutional rights of defendant.  The trial court rightly declined to expand the application of the exclusionary rule to apply in cases of alleged violations of police procedure reasoning that such a remedy is “saved for constitutional violations”.  *Ibid.*  Because there was no violation of defendant’s constitutional rights, the exclusionary rule does not apply to the instant case, and this Court should reject his arguments.
[brief] Id. \(^{28}\)  The trial court did not bar the deposition of [...], contrary to Plaintiffs assertions on appeal, because that deposition occurred with all parties’ consent.  Regardless, there is nothing cited by Plaintiff in [...]’s deposition that supports the arguments Plaintiff has put forward on appeal.  In the motion to quash the out of time subpoena on [...], the trial court also told Plaintiff that if he wished to reopen discovery to take the deposition of [...], he would need to move before [...] to do so.  “You’ve got to make a motion to reopen discovery in front of [...].  That’s how Hudson County Local Rules are…  You want to try to make that argument, you make a Motion to Reopen Discovery with [...]. ”  See T1 at 5:1-23.  However, despite both [...] telling Plaintiff that the motion was denied on procedural grounds for failing to submit courtesy copies and [...] telling Plaintiff to file a Motion to Reopen Discovery, Plaintiff elected not to do so.  Ignoring this reality, Plaintiff blames Defendants for his own failures to demonstrate his damages, claiming that Defendants “did not list [...] as an individual having relevant knowledge of the facts of the case and failed to produce a witness having relevant knowledge of the amounts of defendants financial obligations to [...]. ”  Plaintiff’s Brief pg. 030.  This places reality on its head because Defendants have no way of knowing about one-on-one conversations Plaintiff claims he had with a “Russian girl”.  The plaintiff bears the burden of proof and if Plaintiff was having conversations to this effect it was up to Plaintiff to identify such an individual during discovery (or at a minimum attempt to amend his discovery once the identity of this individual became clear to Plaintiff).  It was not until Plaintiff’s disastrous deposition, where he conceded he did not produce relevant documents and conceded that he has no way of ascertaining any amounts owed to him by Defendants, if at all, that Plaintiff suddenly recalled the name of this individual.  Rather than moving to reopen discovery (and complying with the trial court’s procedural requirements for such a motion) or attempting to amend his prior interrogatory responses (or correcting his deposition testimony for that matter), Plaintiff sat on his hands after August 5, 2022 and made no attempt to correct the record.  Under such circumstances, there is no basis for this Court to reverse the trial court’s denial of the Motion to Amend and correct the litigation strategy of the Plaintiff.  CONCLUSION
[brief] In recognition of the fact that the Commission is the administrative agency which, given its expertise, is uniquely capable of regulating the public workforce of this State, the Legislature has vested the agency with broad supervisory power, including in the area of selection and appointment of employees.  See N.J.S.A. 11A:4-4 to -8.  In light of this authority, the court will not interfere in the Commission’s exercise of authority unless its determination is “patently incompatible with the language and spirit of the law. ”  In re Hudson Cty. Probation Dep’t., 178 N.J. Super. 362, 371 (App. Div. 1981) (quoting Walsh v. Civil Service Dep’t., 32 N.J. Super. 39, 44 (App. Div. 1954), certif. granted, 17 N.J. 182 (1955) (subsequently dismissed)).  As the Commission noted in its June 7, 2023 decision, N.J.A.C. 4A:4-4.7(a)1, in conjunction with N.J.A.C. 4A:4-6.1(a)9, allows the Commission to remove an eligible’s name from an eligible list for having a prior employment history which relates adversely to the title.  (Aa005).  The Commission found [...]’s employment record, which included major discipline stemming from untruthfulness, was adverse to the position sought given the high standards for law enforcement officers.  Thus, [...]’s removal from the eligible list was entirely reasonable.
[brief] NJ RETINA’S INITIAL RULE 1:4-8 LETTER AND DEMANDS FOR DISMISSAL  In response to the Complaint, [...]’s counsel sent Plaintiffs’ counsel a letter dated October 23, 2019 (the “Initial 1:4-8 Letter”) notifying him that Plaintiffs’ claims against [...] were frivolous within the meaning of Rule 1:4-8 and N. J.S.A. 2A:15-59.1 and demanding that they be withdrawn with prejudice.  (Pa443a-Pa446a).  Specifically, the Initial 1:4-8 Letter explained that [...] did nothing more than engage in preliminary discussions with [...] regarding the possibility of acquiring his practice.  (Pa444a).  While [...] sent [...] a letter of intent in March 2019 (the “Draft LOI”) (approximately six months before Plaintiffs’ Complaint was filed) [...] did not sign the letter, and [...] had never consummated a transaction with [...].  (Pa444a).  Plaintiffs rejected [...]’s demand for dismissal by correspondence dated November 6, 2019.  (Pa448a-Pa450a).  Plaintiffs’ counsel claimed that he could not dismiss [...] because “no backup documentation has been provided to support your fact assertions and, obviously, no discovery has yet been conducted. ” (Pa448a).  In response, [...] provided him with a certification from its representative, [...], who confirmed under oath that [...] did not enter into a transaction with [...] and had nothing to do with the dispute between Plaintiffs and the Notis Defendants.  (Pa260a-Pa262a).  Plaintiffs refused to dismiss the complaint despite [...]’s sworn certification.  (Pa452a-Pa455a).  Thereafter, on November 20, 2019, [...] filed a motion to dismiss or, alternatively, for summary judgment.
[brief] On August 11, 2022, the Commissioner issued an Order denying Appellants’ Request for Leave to File an Interlocutory Appeal as to the dismissal of Counts 2, 3, and 5 of the Complaint.  (Ca160).  The Commissioner did not address the merits or whether the [...] erred in dismissing these counts.  Id.  Respondent filed its first Answer on September 6, 2022, which contained a one sentence blanket denial.  (Ca161-162).  Respondent then filed an Amended Answer on January 3, 2023 (Ca163-164).
[brief] [...]’s reliance on the Red Bank case is misplaced.  [...] argues that N.J. Nat. Gas Co. v. Borough of Red Bank, 438 N.J. Super. 164 (App. Div. 2014) (hereafter “Red Bank”) establishes that municipalities retain some control over poles and electric lines even after permission is first granted to place said poles and lines.  (Db45).  The Red Bank decision is wholly inapposite.  In Red Bank, the Appellate Division held that a gas utility was not exempt from a municipal ordinance that regulated the placement of certain gas-related facilities on public streets.  Id. at 185.  Among other things, Red Bank turned on the construction and application of a statute, N.J.S.A. 48:9-17, that governs only natural gas utilities and has no application whatsoever to electric utilities.  That alone renders the Red Bank decision as inapplicable to this case.  Furthermore, Red Bank involved a utility project that was situated wholly within the municipality, in stark contrast to the multijurisdictional electric transmission project that was the subject of the In re [...] decision (and the multijurisdictional electric transmission project that is the subject of this litigation).