ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (Da80, ¶34; Da86, ¶47; Da110, ¶122; and Da120, ¶151).  The mantra of oral misrepresentations claimed amongst all eleven (11) of the plaintiffs and that formed the basis of their lawsuit against [...] were and are expressly contradicted by the signed and integrated writings:  First, all eleven (11) plaintiffs claimed they were told the purchase of their timeshare was an “investment. ” (Da76, ¶21; Da81, ¶35; Da86, ¶48; Da92-93, ¶¶65 and 67; Da97, ¶80; Da102, ¶95; Da106, ¶109; Da111, ¶123; Da115, ¶138; Da120, ¶152; and Da126, ¶170).  The one-page Owner Acknowledgment Form that each plaintiff initialed and signed says the precise opposite: “for own personal vacation use and enjoyment and not because of any financial or monetary advantage. ” (Da193, ¶13). ²  The 4¼ page Purchase and Sale Agreement that each plaintiff signed also contradicts that claim: “for the Buyer’s personal use, and not for investment purposes. ” (Da201, ¶22).  And each of the Public Offering Statements at issue repeatedly state the purchase is not an investment.  (Da231-232). ³ ²  The owner acknowledgement form and purchase and sale agreement cited to here are from Plaintiff [...]’ transaction.  Each of the owner acknowledgement forms and purchase and sale agreements contain the same provisions contradicting the plaintiffs’ claims of oral misrepresentations and appear at Da195-Da220 & Da943-1019.
[brief] THE TRIAL COURT ERRED BY ADMITTING MR. SANFORD’S STATEMENT BECAUSE IT CANNOT BE SANITIZED BY ANY JURY INSTRUCTION OR REDACTION.  (Dma 3-14)  The trial court further erred by determining a limiting instruction could be used to protect against any undue prejudice created by [...]’s statement.  (Dma 10-11).  There is no limiting instruction or redaction that could sanitize the prejudice inherent in [...]’s statement—namely, that he was arrested and charged with possession of a BB gun in Union County.  To admit the statement, is to admit that [...] was arrested and faced charges other than those before the jury and court in Hudson County.  Additionally, the trial court fails to address exactly how the jury will be instructed about the Union County statement.  Critically, the trial court left unanswered as to whether the jury will be instructed that [...]’s charges stemming from his Union County statement were dismissed.  See J.M., J.R., 438 N.J. Super. at 234 (finding “the order under review troubling and unsustainable because of a dangling question the trial judge did not consider: if the evidence is admitted, should the jury be told that defendant was acquitted of [other crimes evidence]?”).  The admission of [...]’s Union County statement presents a practical problem for the court as there is no way to include the statement, without ultimately instructing the jury that the charges resulted in dismissal.  This practical problem cannot be solved with a limiting instruction and the trial court erred in finding it could.  **CONCLUSION**
[brief] Plaintiffs also rely on Olson v. Jantausch, a case in which “a title search made at the time [of defendants’ purchase] fully revealed the restrictions, as did a policy of title insurance covering the property. ”  44 N.J. Super. 380, 385 (1957) (emphasis added).  Once again, the Plaintiffs point to no case where a purchaser is charged with notice of a prior boundary or lot width based on an old tax map or the size and shape of a prior/adjacent lot from which a subdivision is carved.  Certainly, an easement or restriction in an old deed could bind a buyer even if a deed or two skipped over it in 60 years, but no case cited involves a buyer rejecting a recorded subdivision, three deeds and a current survey in favor of performing math equations on adjacent lots to figure out one of them is 1.3’ narrower than a tax map inset.
[brief] **APPELLANTS DID NOT WAIVE THEIR ARGUMENT REGARDING RESPONDENT’S RETALIATION CLAIM (DA001-DA082; 4T:133:1-25—159:1-25;4T:110-199; 7T:57:1-25—86:1-25).**  Appellants never waived their argument about the jury’s verdict against the weight of the evidence with respect to Respondent’s retaliation claim.  Appellants’ brief-in-chief at Legal Argument, Points III and VI, raised the issue of Respondent’s claims for disability discrimination and retaliation in the context of surprise trial testimony and trial counsel’s summative comments, which are interrelated to the jury’s verdict on retaliation.  See Db. Br. at pp. 18-21;33-41.  For the sake of judicial economy, Appellants rely on the arguments made in their brief-in-chief regarding the jury’s verdict against the weight of the evidence on Respondent’s retaliation claim.  **POINT IV**
[brief] Here, the 2019 [...] Permit Modification meets at least two needs.  First, [...] needed to legalize the dock structure as erected and legalizing the structure as built rather than relocating the dock made sense to avoid potentially disturbing more SAV habitat in the process.  Second, [...]’s dock extension removes the need for [...] to pilot through waters below Water Depth Requirements, and DEP specifically provides for such modifications of existing dock structures in the CZM Rules.  *N.J.A.C. 7:7-9.6(b)(7)*.
[brief] The Board conducted its second set of hearings on October 24, 2018 (5T) and November 28, 2018 (6T).  On October 24, 2018, three Board members disclosed that they knew [...] but would not be influenced by their relationship with him.  (5T:12).  [...] again testified regarding the income and expenses for the Unit.  She stated that [...] (“[...]”) was [...]’s Managing Agent (5T:27:17), was billing [...] $150 monthly (5T:27:7), that an increase in condominium association fees was due to a change in Hoboken’s Ordinance regarding the time when the garbage could be put on the street (6T:157:22-158:14, 108:15-20, 110:22-111:8), and that a tax return had to be filed for the Unit irrespective of whether or not it was an apartment or single condominium unit (5T:24:8, 129:24-130:1, 43:7-44:1).  Ms. Metzger testified that these expenses were common expenses for a residential dwelling unit and had not changed because the Unit was a condominium (5T:37-22).  On November 28, 2018, [...] again testified that Hoboken’s $404,600 assessed value for the Unit accounted for [...]’s protected tenancy and that it was assessed at approximately 35% lower than the other units in the building.  6T:20:9-21:13; 30:9-14; 33:20-24; 35:17-19; 40:17-22, 44:18, 54:20-23.  The Board reduced [...]’s allowance for real estate taxes from $6,275.00 to $1,937.22 on the basis that the increase in the Unit’s taxes was because it was a condominium.
[brief] THE TRIAL COURT FAILED TO RECOGNIZE THAT EXPERT TESTIMONY IS NOT NEEDED BECAUSE PLAINTIFF CAN DEMONSTRATE BEFORE A JURY THAT DEFENDANT, [...], OWED PLAINTIFF  A NON-DELEGABLE DUTY TO USE REASONABLE CARE TO PROTECT PLAINTIFF AGAINST KNOWN OR REASONABLY DISCOVERABLE DANGERS AND BREACHED THAT DUTY BY NOT ONLY FAILING TO IMPLEMENT POLICIES AND PROCEDURES TO ADDRESS THE RISK OF OVERLOADED U-BOATS, BUT ALSO BY FAILING TO PROVIDE ADEQUATE AND PROPER TRAINING TO ITS EMPLOYEES TO ENSURE PROPER USE OF THE U-BOATS BY ITS CUSTOMERS  (2T.20:9-16)  The trial court erred in ruling that without the aid of expert testimony, Plaintiffs cannot demonstrate that Restaurant Depot was negligent.  (2T.20:9-16)  While Plaintiffs would have been able to retain an expert had Restaurant Depot not spoliated such evidence, expert testimony is not possible because Plaintiffs’ expert could not review the events surrounding the incident that would have been depicted on surveillance footage had such footage been retained by Restaurant Depot.  Therefore, despite the inability to serve an expert report since video surveillance was unavailable to be reviewed by Plaintiffs’ expert as a result of Restaurant Depot’s failure to preserve such footage, which effectively deprived Plaintiffs of critical evidence surrounding the event, Plaintiffs contend that expert testimony is not needed.  Our Supreme Court has acknowledged that “[a]s to the absence of expert testimony, except for malpractice cases, there is no general rule or policy requiring expert testimony as to the standard of care.
[brief] If an “individual states that he wants an attorney, the interrogation must cease until an attorney is present. ”  State v. Gonzalez, 249 N.J. 612, 628 (2022) (citing Miranda, 384 U.S. at 474).  A suspect who has expressed his desire to deal with the police only through counsel may not be interrogated further until counsel is present, “unless the accused himself initiates further communication, exchanges, or conversations with the police. ”  Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).  The police are required to “scrupulously honor[ ]” a suspect’s invocation of the right to counsel.
[brief] ”  Ibid. (citation omitted); see In re Nicosia Flood Hazard Gen. Permit by Certification 5, __ N.J. Super. __, __ (App. Div. 2024) (slip op. at 15).  Courts should not “reverse the ultimate determination of an agency” unless it concludes that “it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implied in the act governing the agency.
[brief] The Union fails to appreciate or acknowledge the [...] (“City” or “[...]”) has no comparator; it is a municipality like no other; it does not enjoy the same fiscal freedoms as all other municipalities.  [...] has been categorized by the State of New Jersey as a “distressed city. ”  The City is enrolled in the State’s Transitional Aid (“TA”) Program (“Program”) and receives financial assistance from the State to avoid going into receivership.  TA comes at a steep price.  As a condition of the Program, the City operates under zealous oversight of the State’s fiscal monitors who every week report directly to the Director of the Division of Local Government Services (“LGS”) in the Department of Community Affairs (“DCA”).  Every single financial decision the City makes must be vetted and approved by the State.  The purpose of this oversight is to make the City fiscally self-sufficient and the transitional aid discontinued.  As recognized by [...], the City is already over-extended beyond its fiscal means and the Union’s demands were patently unrealistic.
[brief] Juror 12 indicated that, “I just told them I was reclusing [sic] from the case.  That’s all. ”  Of particular significance, the Court indicated that its notes did not indicate that the juror relayed the message (from the caller) to any of the other jurors.  (11T29-15 to 19).  Defense counsel indicated he did not have a transcript but stated he did not disagree with the Court’s memory or notes.  (11T30-6 to 15).  The Court went on that not one of the other jurors indicated that they heard the phrase, “Do the right thing” and …not one of them really seemed ruffled or concerned at all about the fact that the juror had excused himself.  Frankly, I was surprised how flat affected everybody was about what they had heard, except the one juror who had some concerns about it and we questioned her in greater detail.  That was juror four, I think.  (11T32-23 to 33-5)  The decision to grant or deny a motion for a mistrial rests in the sound discretion of the trial court.
[brief] [...] chose to hide the existence of his new counsel solely so he could request an eleventh-hour adjournment on [...]’s behalf weeks later.  [...]’s appeal is tantamount to complaining that the Arbitrator saw straight through his tactics. \(^9\)  [...] then had his existing lawyer write a letter asking for more time \textit{a full week after his brief was due} on extension.  Then, [...] simply submitted a 49-page brief on his own, on October 26, 2018, proving that he could have submitted this brief at any point.  (Da2160-2208)  Third, [...] absurdly argues that the Arbitrator should have granted the third adjournment because [...], though a lawyer, is a bad writer.  This nonsensical argument overlooks the fact that [...] made the strategic decision to remain \textit{pro se} even when he had the means to retain counsel.
[brief] For example, [...] testified on direct that he was battered, and his attorney argued on opening and closing that such conduct constituted negligence without being rebuked by the trial judge.  Part of this trial strategy also included precluding [...] from cross-examining [...] on the fact that he dismissed the battery claim against [...], while still seeking to recover against [...] for [...]’s battery.  This line of questioning would have highlighted to the jury the inconsistency in Plaintiffs’ trial position and would have undermined Plaintiffs’ credibility.
[brief] IT WAS ERROR TO PERMIT THE DEFENDANTS TO INTRODUCE EVIDENCE OF COLLATERAL SETTLED LITIGATION AND THE SUBSEQUENT PURCHASE OF A HOME BY DR.  FOCAZIO AS THE ARGUABLY MINUSCULE PROBATIVE VALUE OF SUCH EVIDENCE WAS GREATLY AWAID BY ITS PREJUDICIALLY EFFECT THE DISTRACTION FROM THE ISSUES OF THE CASE AND WAS AN ABUSE IN DISCRETION BY THE TRIAL COURT (APPEALING ORDER DATED JUNE 27, 2023 FOUND IN Pa0355)  The applicable standard when this Court reviews the trial court's evidentiary rulings is that of abuse of discretion.  State v. Kemp, 195 N.J. 136, 149 (2008).  See also Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (citation omitted); Brenman v. Demello, 191 N.J. 18, 31 (2007) (citation omitted).  This Court only correct those errors “‘of such a nature as to have been clearly capable of producing an unjust result.
[brief] Since defendant indicated that he was having engine trouble, [...] asked defendant to turn the car on so he could attempt to diagnose what was wrong with the vehicle as part of his initial attempt to assist.  The vehicle did not start.  (2T11:2-11).  Defendant advised [...] that he was traveling home and on his way to see a friend in Hackettstown.  (2T11:13-14).  As he continued to speak with defendant, [...] detected a strong odor of an alcoholic beverage on defendant’s breath.  [...] also observed that defendant was speaking with slurred speech and his eyes appeared droopy and bloodshot.  (2T11:16-23).  [...] believed that it was possible that defendant was under the influence.  (2T11:21-23).  [...] testified that he then requested that defendant get out of his vehicle.
[brief] Id.  *1.  This conclusion was based on facts found by the Magistrate Judge which differ from our case.  [...] argued that the document he signed did not disclose the agreement containing the terms and condition of his contract with [...] and that [...] effectively represented to him that his signature would have the sole effect of securing the personal identification number associated with the account.  *[...] v. [...] Bank*, 2010 W.L. 6403721 (D. Ore. 2010).  (Vol. II, PA 194).  Unlike our case, [...] did not contend he never saw the [...] application or that he didn’t sign it.  The magistrate judge found the application clearly stated its an application for a bank account and his signature appeared immediately above a short paragraph containing a statement that the signatory received a copy of the applicable account agreement and primary brochure and agreed to be bound by them.  [...] offered no evidence that [...] made any misrepresentations in reliance on which [...] elected to enter into the agreement, and the court declined to construe the agreement as unenforceable on the theory [...]’s consent was fraudulently obtained, Id. at *8.  These facts readily distinguish [...].
[brief] Municipalities should not develop by the continual use of variances.  *See Cox & Koenig, supra*, at Sec. 19:6-1 (every variance to some extent “presumptively” creates “some detriment” to a town’s zoning ordinance).  This land use principle is particularly important, because the LRHL allows the municipality to eliminate all existing zoning ordinances within the redevelopment plan sites.  For this reason, the LRHL requires a very careful and thoughtful comparison of the existing master plan with the redevelopment plan by both the planning board and the town governing body.  In all land use matters, the Supreme Court has recognized the importance of the master plan in relation to all applications to develop or redevelop sites within any municipality.  See Kaufmann, supra, at 557.  There, our Supreme Court instructed municipalities about the importance of analyzing the trends of development periodically to determine if the master plan and zoning ordinance should be changed.  Id., at 557 (“We have increasingly emphasized that planning, not ad hoc discussion making, is the cornerstone of SOUND GOVERNMENT OR POLICY in this area”) ([...], J.) [emphasis added].  For example, some towns may choose to increase the lot sizes so that larger lots are created to prevent overcrowding.  See Cicchino v. Berkley Heights T.P., 237 N.J. Super. 175, 182 (App. Div. 1989).  In this case the Trial Judge simply ignored these controlling principles, thereby permitting the plan to be declared valid even though on its face, the plan was “inconsistent” with the master plan.  This legal error must be corrected by the Court in this appeal.  And this can be accomplished only by a decision finding for plaintiffs as a matter of law without the need for remand.  The legal issues are clear requiring no further hearings.  In this case, the plan is “inconsistent” with the existing Master Plan in [...], because its proposal to put residential units within the GB2 is prohibited by the existing zoning ordinance and Master Plan.  There are 38 additional inconsistencies set forth in the WARD document, the testimony before the Planning Board and Town Council.  The legal conclusion that the redevelopment plan is “consistent” with the existing Master Plan is simply incorrect as a matter of law.  That erroneous legal conclusion provides another basis to reverse the judgment of the Trial Court.  II.
[brief] **CONCLUSION**  The trial court’s decision, if left in place, allows plaintiff to circumvent the AOM requirement and the COVID-19 immunity statute by recasting the nursing negligence claim—which is premised solely upon allegations that [...] contacted COVID-19 and passed away during the initial stage of the pandemic—as instead involving “administrative” or “institutional” failures to provide “basic medical care” and “gross negligence” or “willful disregard”, a narrative that is contradicted by [...]’ own affidavit.
[brief] On appeal, a motion to dismiss is reviewed de novo.  Sashihara v. Nobel Learning Cmtys., Inc., 461 N.J. Super. 195, 200 (App. Div. 2019)  A motion under R. 4:6-2(e) is a statement by a defendant that there is no legal claim alleged by the plaintiff.  A court is “to approach with great caution applications for dismissal under R. 4:6-2(e) for failure to state a claim on which relief may be granted. ”  Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 771-72 (1989).  The court is to search the complaint in depth to determine if a claim is even suggested in the papers.  Id. at 746.  The court is not concerned with plaintiff’s ability to prove the allegations but rather only that a cause of action can be gleaned from the complaint.  Id.; Smith v. SBC Commc’ns, Inc., 178 N.J. 265, 282 (2004).  1Appellees set forth the relevant facts alleged in the Complaint for purposes of this Appeal only and reserve the right to respond to and deny all facts and allegations if the Appeal is granted.  All facts alleged in the complaint are to be taken as true.  *Craig v. Suburban Cablevision*, 140 N.J. 623, 625 (1995).  These allegations must be reviewed with great liberality, and all inferences resolved in favor of the plaintiff.  *Commc’n Workers of Am. v. Whitman*, 298 N.J. Super. 162, 166-67 (App. Div. 1997).  However, it should be remembered that discovery is intended to lead to facts supporting or opposing a legal theory, not to the formulation of one.  *Camden Cnty. Energy Recovery Assocs., L.P. v. N.J. Dep’t of Envtl. Prot.*, 320 N.J. Super. 59, 64 (App. Div. 1999).  Legal sufficiency requires allegation of all the facts that the cause of action requires.  *Cornett v. Johnson & Johnson*, 414 N.J. Super. 365, 385 (App. Div. 2010).  Without such allegations, the claim must be dismissed.  *Id.* (emphasis added).  Generally, if a matter is to be dismissed under R. 4:6-2(e), “(it) should be without prejudice to a plaintiff filing an amended complaint. ”  *Printing Mart*, 116 N.J. at 772.  However, when the plaintiffs have not offered either a certification or a proposed amended pleading that would suggest their ability to cure the defects of the complaint, and it appears to the court that the opportunity to amend would be futile, the appellate court has found it proper to dismiss the complaint with prejudice.  *Johnson v. Glassman*, 401 N.J. Super. 222, 246-47 (App. Div. 2008).  Amendment remains a matter addressed to the court's sound discretion.  *Id.*  Furthermore, "[a] thoroughly deficient complaint--a complaint that completely omits the underlying basis for relief--cannot be sustained as a matter of fundamental fairness."  Bauer v. Nesbitt, 198 N.J. 601, 610 (2009).  A defendant must be able to ascertain, investigate, and defend a claim raised against it.  Id.  A court, as well, is "not bound to accept as true a legal conclusion couched as a factual allegation."  Papasan v. Allain, 478 U.S. 265, 286 (1986).  V. LEGAL ARGUMENT
[directive] The COVID-19 pandemic has had an enormous effect on society since March 2020.  Across the globe, millions have died and taken ill from the virus.  Coronavirus Resource Center, Johns Hopkins Univ. & Med., https://coronavirus.jhu.edu (last visited June 21, 2022).  The pandemic has also upended the personal and professional lives of countless people.  COVID-19 has affected the justice system as well.  Early on, the Judiciary pivoted to virtual proceedings in place of in-person gatherings.  According to the Administrative Office of the Courts (AOC), since mid-March 2020, more than 381,000 virtual court events have taken place involving more than 6 million participants.  Today, the court system operates with a mix of virtual and in-person proceedings, and certain changes will likely extend beyond the pandemic.  See Sup. Ct. of N.J., Future of Court Operations -- Continuation of Both In-Person and Virtual Court Events, at 1 (Nov. 18, 2021 Order).1
[brief] This Court’s decision in *Edison Bd. of Educ.* is instructive in this regard.  In *Edison Bd. of Educ.*, the [...] filed a complaint in lieu of prerogative writs claiming, among other things, that the [...]’ decision to approve certain use and bulk variances was arbitrary, capricious and unreasonable.  464 N.J. Super. at 302-03.  The Board of Education argued that it possessed standing to challenge the board’s approval because “the school district was overcrowded and permitting further multi-family residential development would only exacerbate the problem. ”  Id. at 303.  The trial judge rejected that argument and dismissed the plaintiff’s claim, finding that “the BOE had no possessory interest in the property or adjacent property that would be adversely affected by the development, nor had the BOE alleged that the action taken by the Board created a likelihood of harm to it, as a body. ”  Id.  This Court affirmed the trial court’s decision, finding that the “BOE’s generalized claim of harm caused by the possibility of students being added to an already overcrowded school district is insufficient to make the BOE an ‘interested party,’ entitled to litigate its claim under the MLUL. ”  Id. at 306-07.  In reaching its erroneous conclusion that Plaintiffs possess standing in this matter, the trial court refused to apply the relevant standard set forth under the MLUL – the “interested party” standard.
[directive] C.  Convictions of crimes entered more than 10 years prior to an application for a Certificate shall not be considered in determining whether a person has one criminal conviction.  D.  A person seeking relief at sentencing who will have one conviction upon sentencing and issuance of the judgment of conviction.  IV.  Notice:  In all cases, the applicant shall provide a copy of the application to the County Prosecutor or Attorney General's Office that prosecuted the case.  Notification of the pendency of an application and issuance of a Certificate shall be provided by the Court to that office.