ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Moreover, by providing elevators in the other multistory buildings (i.e., Buildings B through D) and none for Building E, the project would effectively be giving disparate treatment to the affordable housing residents of Building E.  The Planning Board’s approval condition to require an elevator in Building “E” and make Building “E” in parity with the other buildings is not inconsistent with a ‘duty to cooperate’ and certainly is not a breach of the Agreement.  The Planning Board’s elevator condition was imposed to promote the public health, safety and general welfare, which is entirely consistent with the foremost purpose of the Municipal Land Use Law “[t]o encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare. ”  See N.J.S.A. 40:55D-2a.  In accordance with its obligations under the Municipal Land Use Law, the Planning Board, exorcising its charge and jurisdiction, voted to include terms and conditions in the approval of [...]’s development application that, in its view, promoted the safety, health and welfare of the future inhabitants of the development, their visitors and the first responders who may be called to provide life-saving measures.  It has long been held that it is not for the court to substitute its conception of what the public welfare requires in place of the conception of the local land use body.  Pascack Assoc’n, Ltd. v. Mayor & Council of the Twp. of Washington, 74 N.J. 470, 485 (1977).  A municipality may condition a land development approval upon the developer’s installation of improvements [that] a local governing body may find necessary for the protection of the public interest.  *Divan Builders v. Wayne Tp. Planning Bd.*, 66 N.J. 582,595 (1975).  Moreover, “[t]he protection of apartment dwellers has long been recognized as consistent with the public health, safety and welfare. ”  *State v. C. I. B. Int’l.*, 83 N.J. 262, 272 (1980).  It should also be noted that it was the Board, and not the Township, which imposed the elevator condition and thus the Township could not have breached the Settlement Agreement thereby.  The trial court made no distinction between the two and offered no explanation.  It is difficult to imagine that a court could logically or properly decide whether a land use board’s condition of approval was unjustified without examining the entire record before the board.  Here, the trial court permitted [...] to proceed upon the Motion in Aid, and the Court ultimately decided the Motion in Aid, without benefit of any of the record before the Board—a strongly disfavored practice.
[brief] This language [i.e., any case of fraud by you at any time] provides that concealing or misrepresenting a material fact at any time will void the policy.  Clearly, therefore, the policy provides that falsity through either concealment or misrepresentation will void the policy.  Therefore, Plaintiff need not establish fraudulent intent on the part of Defendant in order for the insurance policy to be rendered void.  Northland Ins. Companies v. Fantasy Bus Serv., Inc., 1996 WL 115515, at *6 (E.D. Mo. Jan. 9, 1996) (emphasis added).  At bottom, Intervenor’s argument that the standard for rescission can be changed by policy language is contradicted by the policy provision on which the argument is premised, and is unsupported by New Jersey’s common law, equitable fraud standard.
[brief] As the New Jersey Supreme Court explained in Caldwell v. Haynes, 136 N.J. 422, 426 (1994), “plaintiffs have the burden to prove damages,” id. at 426, and the “law abhors damages based upon mere speculation. ”  Id. at 442  Per Caldwell, plaintiff has the responsibility to “provide . . . some evidentiary and logical basis for calculating or, at least, rationally estimating a compensatory award. ”  Id. at 436 (quoting Huddell v. Levin, 537 F.2d 726, 743 (3d Cir. 1976))  The Law Division should enter summary judgment when the record is lacking evidence of damages to a reasonable certainty.
[brief] There was no legal work here.  There’s no—the issue of, well, was it a complex legal issue, because that’s the thread, as the Court says, that runs through is that there was no—where there is no complex legal issue you don’t need an affidavit of merit for legal malpractice claims.  In this case here there is no legal issue.  There was no legal issue…  THE COURT: Then why did you plead one?  [...]:  At the time we—we didn’t have this—this is newly discovered evidence.  We didn’t have [...], who provided this information, saying that—I didn’t—I didn’t even know.  (2T:61:13-62:13.)  The newly discovered evidence cited by plaintiff during the March 29, 2018 oral argument dealt with the alleged ownership of [...].  (2T:67: 7-9.).  During the March 29, 2018 oral argument, the Court denied plaintiffs’ Motion to Vacate, holding:
[brief] There are a number of established facts and circumstances that support that the 1963 Agreement was at most a temporary permission/license, and that ended no later than the School’s 1972 expansion, including the following:  1.  That the December 31, 1962 Deed (Da166) conveyed the title to Lot 8.  Any easement rights in favor of Lot 8 would have logically been included and set forth in that Deed if such were intended.  That Deed and the January 7, 1963 Agreement were contemporaneous documents.  2.  That the 1963 Agreement did not reference the terminology of "permanent", "perpetual", or "easement".  (Da13)  The Agreement at Paragraph 10 only agreed “to permit” the “new [...] to utilize the then vacant lands on Madison Avenue and also on Sixth Street.  The terms denote a temporary permission.  3.
[brief] As now-[...] warned, “a long line of decisions uniformly in favor of a legal proposition suggests that a legal proposition is generally accepted.  We are mindful, however, that in science, the repetition of authority does not automatically establish reliability for purposes of a Frye hearing. ”  State v. Pickett, 466 N.J. Super. 270, 316 (App. Div. 2021).  [...] also emphasized that the value of prior decisions admitting scientific testimony are only as good as the basis for those decisions; “a laundry list of admissibility rulings” that do not actually consider the underlying science is not a basis for admitting a scientific technique.
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[brief] ”  Ca245-Ca249.  Complainants allege that Respondent’s actions “could be reasonably be seen as compromising the Board and as speaking for the Board as a member of the public” and that Respondent “held herself out as a member of” the Board on her Facebook page.  Ca246, Ca247, Ca248.  In response to Respondent’s Motion to Dismiss in Lieu of an Answer (Ra14-Ra15), the Commission found:
[brief] For all the reasons set forth herein, the State respectfully urges this Court to affirm defendant’s convictions, outside a limited remand for merger.  Respectfully submitted, [...]  [...]  ATTORNEY FOR PLAINTIFF-RESPONDENT  By: s/ [...]  [...]  ASSISTANT PROSECUTOR [...] [ID:910402012]  MOTIONS AND APPEALS UNIT [...]’S OFFICE  [...] [...]  EMAIL: [...] OF COUNSEL AND ON THE BRIEF  DATED: JULY 8, 2024  July 17, 2024
[brief] These cases have only a surface-level similarity and the Tyler decision is not a proper guidepost in the present case.  Indeed, in reaching their decision in the decision in the Tyler case, the court examined the role of a medical examiner and opined that “state law requires medical examiners to investigate the cause and manner of death, conduct an autopsy, and prepare a written report on their findings” and that they are often required to “conduct a preliminary investigation of the cause and manner of death.
[brief] Lafler v. Cooper, 566 U.S. 156, 162 (2012); State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 147 N.J. 544 (2002).  The duties and responsibilities of defense counsel during the plea-bargaining process are “difficult” to define.  Missouri v. Frye, 566 U.S. 134, 144 (2012).  “The alternative courses and tactics in negotiation are so individual that it may be neither prudent nor practicable to try to elaborate or define detailed standards for the proper discharge of defense counsel’s participation in the process. ”  Ibid.  “[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution[,]” *Id.* at 145, *State v. Powell*, 294 N.J. Super. 557, 564 (App. Div. 1996), and to advise defendant of the sentencing exposure and consequences of accepting or rejecting a plea offer.  *Padilla v. Kentucky*, 559 U.S. 356, 374 (2010); *Gaitan*, 209 N.J. at 380; *Taccetta*, 351 N.J. Super. at 200.  As part of this advice, counsel “should usually inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed. ”  *Purdy v. United States*, 206 F.3d 41, 44-45 (2d Cir. 2000).  The second prong of the *Strickland* test requires a defendant to establish that counsel’s ineffectiveness prejudice him, that is, “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ”  *Strickland*, 466 U.S. at 690; *Fritz*, supra, 105 N.J. at 52.  A.  The PCR Court Correctly Found that a Third-Party Guilt Instruction Would Have Been Improper in this Case.
[brief] .........................  21  POINT II: BECAUSE THE TRIAL JUDGE MISCONSTRUED THE LEASE BY FAILING TO ASCERTAIN THAT TENANT’S ALLOWANCE WAS AN UNWAIVABLE REIMBURSEMENT OWED TENANT AND THAT ANY RENT OWED WAS AUTOMATICALLY OFFSET AGAINST TENANT’S ALLOWANCE, PARAGRAPH 1 OF THE COURT’S NOVEMBER 10, 2021 ORDER, AND THE ENTIRETY OF THE NOVEMBER 9, 2023 FINAL ORDER MUST BE VACATED (Da 1-3) ....................... 26 POINT III: THE TRIAL JUDGE ERRED IN FAILING TO ASCERTAIN IT HAD JURISDICTION TO FIX THE AMOUNT LANDLORD OWED TENANT FOR REIMBURSEMENT OF TENANT’S ALLOWANCE AS AN ELEMENT OF TENANT’S DEFENSE TO LIABILITY (Da3) ........... 42 POINT IV: IF, UPON REMAND, TENANT PREVAILS IN FIXING THE AMOUNT OWED UNDER THE LEASE, THE ATTORNEY’S FEES PAID FOR TENANT’S “BREACH” MUST BE RETURNED TO TENANT AND TENANT’S ATTORNEY’S FEES MUST BE PAID BY LANDLORD (Da3)... 47 CONCLUSION .............................................................. 48 TABLE OF JUDGMENTS, ORDERS, AND RULINGS BEING APPEALED  November 10, 2021  Order ...........................................  Da 1-2 November 9, 2023  Order ..............................................  Da 3  ###
[brief] On February 19, 2021, [...] filed a Complaint in the within action, seeking recovery of association fees claimed due and owing (Da8, Complaint).  Although [...] was well aware that the Defendant resided at [...], which was listed on the Statement of Account for each of [...]’s units (Da36-Da37, Statements of Account), [...] requested process service at a number of other addresses (see, generally Da43 to Da61, Process Service Records and Due Diligence Reports).
[brief] Id., at p. 337.  [...] is a commercial construction company sophisticated enough to bid public contracts upwards of $70 million.  Any moderately experienced construction contractor, and certainly all of the heavy highway construction contractors that regularly appear before [...] seeking contracts know and intuitively understand what needs to occur with a POA and Consent of Surety.  [...], purporting to be such a contractor, certainly was fully capable of understanding New Jersey statutory and common law requiring that, when an attorney-in-fact executes a document on behalf of a principal, here a surety, a written power of attorney needs to granted by the principal conveying that authority to the agent/attorney-in-fact, here [...].  See Yengo, supra at *6; see, also N.J.S.A. 46:2B-8.2(a).
[brief] Accordingly, the publication of the individual’s name is not something the [...] has any control over—it is mandated by the [...].  Likewise, the [...]’s policy does not allow for the hearing that plaintiff in the underlying complaint is seeking in suing the [...].  Nonetheless, rather than step forward and defend its own policy and directive, the [...] has wrongfully attempted to make the [...] carry its water.  In denying the [...]’s request for coverage under Wright, the [...] has relied exclusively on the fact that there is no claim for monetary damages in this matter and therefore, not covered by the TCA.  However, as set forth above, given that the claims against the [...] are tied directly to the [...]’s Policy & Procedures and Directive 2022-14, based on Gramiccioni, there can be no question that the [...]’s role was solely a “State law enforcement function,” and that coverage under Wright was mandated.  The Court in Gramiccioni was not focused on the nature of the claim against the [...], but rather whether the claim arose from the [...] acting in a law enforcement capacity and acting in accordance with a Law Enforcement Directive issued by the Attorney General.  Here too, the [...] was mandated to follow the Attorney General’s Law Enforcement Directive in how it conducted the IA investigation of [...].
[brief] THE TRIAL COURT WAS NOT REQUIRED TO CREDIT PLAINTIFF’S SELF-SERVING INTERPRETATION OF EVENTS  Plaintiff next contends that the Court’s decision not to adopt Plaintiff’s version of events was contrary to CEPA’s status as a remedial piece of legislation and the standard for granting summary judgment.  See Pb8-Pb9.  This is again incorrect.  Plaintiff’s reliance on the courts’ “liberal construction” of CEPA is misplaced, as that requirement clearly refers to the court’s interpretation of CEPA’s statutory language, not the inferences of fact made on a summary judgment motion.  See Lippman v. Ethicon, Inc., 222 N.J. 362, 381-82 (2015)(determining whether CEPA extends to employees engaged in compliance duties); D’Annunzio v. Prudential Ins. Co. of America, 192 N.J. 110, 120-21 (2007)(applying liberal construction principal to definition of “employee” under CEPA); Abbamount v. Piscataway Tp. Bd. of Educ., 138 N.J. 405, 430-31 (1994)(resolving apparent conflict between CEPA and New Jersey Tort Claims Act).
[directive] Force as a last resort.  Officers shall exhaust all other reasonable means to gain compliance before resorting to force, if feasible.  Thus, if a safe alternative would achieve law enforcement’s objective, force shall not be used.  Officers shall, therefore, use verbal commands, critical decision making, tactical deployment and de-escalation techniques to gain voluntary compliance, when feasible.  Importantly, officers shall never engage in unnecessary, overly aggressive, or otherwise improper actions that create a situation where force becomes necessary.
[brief] [4T126-1 to -8].  The instructions for second-degree robbery require that the trial court judge inform the jury that the State must prove defendant “threatened another with or purposely put another in fear of immediate bodily injury…” and requires the judge to define bodily injury or that the defendant “committed or threatened immediately to commit [a crime of the first or second-degree] while in the course of committing the theft. ”  It does not require any more definition.  [...] stated:  A person is guilty of robbery if in the course of committing a theft he threatens another with or purposely puts him or her in fear of immediate bodily injury.  In order for you to find the defendant guilty of robbery, the State is required to prove each of the following elements beyond a reasonable doubt:  That the defendant was in the course of committing a theft and that while in the course of committing a theft the defendant threatened another with or purposely put him or her in fear of immediate bodily injury.  [4T123-12 to -24].  As the elements of theft and bodily injury were outlined for the jurors and the jury was not left to question or come to their own conclusions as to the laws governing the case, defendant’s arguments must fail.
[brief] Id.⁶ 24.  According to minutes for the January 15, 1974 meeting of the [...], [...], attorney for the owners of the property now owned by Defendant, appeared in support of the [...]’s 1972 Application and explained that “Parcels 3A and 3B conveyed to the [...] [now designated as Block 69, Lot 8] . . . both served the same community; parking facilities for both institutions,” explicitly acknowledging that the Fifth Street and Sixth Street Lots provided for parking for both the [...] and the Congregation.
[brief] N.J.S.A. 18A:7F-5(c).  The Legislature also understood that there may be factors that are not captured in the LFS calculation that could inhibit a district’s ability to raise its full LFS right away.  As the Supreme Court has acknowledged, “the SFRA provides various protective measures to alleviate the initial stress placed on the districts due to the requirement that they pay their LFS. ”  *Abbott XX*, 199 N.J. at 165 (emphasis added).  But that does not relieve districts of their ultimate obligation to contribute their LFS.  The Court understood this, noting that “the State expects that eventually every district will be able to contribute their LFS . . . .”  *Ibid.*  [...] improperly concludes that “optimal” funding from the State under the formula means that “full funding” must be provided by the State according to the adequacy budget.  As a result of this misunderstanding, [...] claims there have been compounding “shortfalls” in funding to the District since 2012.
[brief] *Grunwald*, 131 N.J. at 493-94.  Further, the “Statute of Limitations begins to run when the plaintiff is aware, or reasonably should be aware, of facts indicating that she has been injured through the fault of another, not when a lawyer advises her that the facts give rise to a legal cause of action. ”  *Burd v. New Jersey Tel. Co.*, 76 N.J. 284, 291 (1978) (emphasis added); see also *Lopez v. Swyer*, 62 N.J. at 273 (1973).
[brief] .......................................................................................................................  18  TABLE OF JUDGMENTS, ORDERS, AND RULINGS BEING APPEALED  1.  Flood Hazard Area Verification & Flood Hazard area Individual Permit, [...], [...], dated August 14, 2023.  (Aa5-Aa45).  #  TABLE OF AUTHORITIES  ## Cases - **In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp.**, 216 N.J. 370, 385 (2013)  ...........................................................................................................  4 - **In re Proposed Xanadu Redev. Project**, 402 N.J. Super. 607, 640 (App. Div. 2008)  .................................................................................................................................................. 4 - **In re Stormwater Management Rules**, 348 N.J. Super. 451, 457 (App. Div. 2006)  ..................................................................................................................................................  6 - **In re Taylor**, 158 N.J. 644, 656 (1999) .................................................................................................  5 - **Mazza v. Bd. of Trs.**, 143 N.J. 22, 25 (1995)  .........................................................................................  4 - **New Jersey Ass’n of Realtors v. New Jersey Dept. of Environmental Protection**, 367 N.J. Super. 154, 160 (App. Div. 2004) ..................................................  4 - **Pascucci v. Vagott**, 71 N.J. 40, 51-54 (1976)  ......................................................................................  4 - **Pinelands Pres. All. v. N.J. Dep't of Envtl. Prot.**, 436 N.J. Super. 510, 524-25 (App. Div. 2014)  ..................................................................................................................................................  5 - **Rova Farms Resort, Inc. v. Inv'rs Ins. Co.**, 65 N.J. 474, 484 (1974)  ............................................. 5  ## Other Authorities - **BMP Manual, Chapter 10.4** ............................................................................................................  8 - **BMP Manual, Chapter 12** ...............................................................................................................  13 - **BMP Manual, Chapter 13** ............................................................................................................. 10, 11, 12  ## Regulations - **N.J.A.C. 7:8-2.2** ...............................................................................................................................  6 - **N.J.A.C. 7:8-5.2(h)**  ..........................................................................................................................  9 - **N.J.A.C. 7:8-5.4**  ...............................................................................................................................  6  PRELIMINARY STATEMENT
[brief] [...]b11.  [...] does not have to be an employee of [...] to give rise to liability.  Ordinarily the existence of an employer-employee relationship, in the past sometimes referred to as a master-servant relationship, is a matter of fact for a jury rather than law for a judge.  *Bennett v. T. & F. Distributing Co.*, 117 N.J. Super. 439 (App. Div. 1971), certif. denied, 60 N.J. 350 (1972); *Gilborges v. Wallace*, 153 N.J. Super. 121 (App. Div. 1977), rev’d in part on other grounds, 78 N.J. 342 (1978).
[brief] The second Miller factor  Defendant contends that he suffered “considerable violence, both emotional and physical, within the household. ” (Db28).  He “found himself influenced and coerced” by his codefendants, and his “childhood trauma made him prone to reckless, and ultimately criminal, behavior. ” (Db29-30).  As a result of his environment and developmental deficits, he became “highly sensitive, impulsive, immature, angry, incapable of independence, and vulnerable to coercion. ” (Db29).  Defendant claims that the judge was required to attribute significant mitigation to factor two in light of “unrebutted” expert testimony, and that the judge improperly found his childhood not to be mitigating just because his crime was planned.
[brief] Our caselaw has stated very clearly that the accomplice charge, in and of itself, can be prejudicial to the defendant as it tacitly acknowledges that the defendant was an accomplice to the cooperator’s admitted crime.  Thus, where the charge is unrequested, “[c]ertainly it is not error, let alone plain error, for a trial judge to fail to give this cautionary statement where it has not been requested. ”  State v. Artis, 57 N.J. 24, 33 (1970).
[brief] [N.J.S.A. 40A:12A-7(d) (emphasis added)].  In Manalapan Realty v. Township Committee, supra, the New Jersey Supreme Court addressed the meaning of the term “substantially consistent” in the zoning context:  The Legislature has not defined what is meant by “substantially consistent” with a master plan.  “When construing legislation, in the absence of a specific definition, we give words their ordinary and well-understood meanings.  Great Atl. & Pac. Tea Co. v. Borough of Point Pleasant, 137 N.J. 136, 143-44 (1994)  Levin v. Township of Parsippany-Troy Hills, 82 N.J. 174, 182 (1980).  The only interpretation of “substantially consistent” that will not defeat the objective of the MLUL is to give these words their plain meaning.