ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] LEGAL ARGUMENT POINT I THE TRIAL COURT SHOULD HAVE ENTERED SUMMARY JUDGMENT FOR THE PLAINTIFFS AND DENIED THE MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM ON THE MOTION RECORD (Pa115, Pa120-121, Pa131).  In this case the trial court granted the defendants’ motions to dismiss the Complaint for failure to state a claim with prejudice and denied the plaintiffs’ Cross-Motion for Summary Judgment.  An appellate court undergoes a plenary standard of review of motions to dismiss pursuant to R. 4:6-2(e).  Baskin v. P.C. Richards & Sons, 246 N.J. 157, 171 (2021).  Similarly, since the propriety of the trial court’s order on summary judgment is a legal, not a factual question, the review of a summary judgment order is de novo.  Fernandez v. Nationwide Mut. Ins., 402 N.J. Super. 166, 170 (App. Div. 2008), aff’d o.b., 199 N.J. 591 (2009).  The appellate court utilizes the same standard as the trial court on the same motion record.  Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021).  Consequently, the same principles that apply to the trial court in deciding the Motions to Dismiss and the Cross-Motion for Summary Judgment apply to the Appellate Division.  It is the plaintiffs’ position that this matter was ripe for the granting of the Cross-Motion for Summary Judgment because the issues presented by the plaintiffs are questions of law and rested upon undisputed material facts.  The issues dealt with the interpretation of statutes, administrative regulations and constitutional precepts relating to the distribution of powers among the three branches of government under Art. III, Par. 1 and the limits on delegation of legislative authority pursuant to Art. IV, Sec. 1, Par. 1 of the New Jersey Constitution (1947).  Other facts, which were presented for background purposes and to put the questions of law in proper perspective did not foreclose the entry of summary judgment even if they were disputed, because there was an absence of any material factual issue as to those critical facts which are necessary to decide the questions of law.  See, e.g., Rankin v. Sowinski, 119 N.J. Super. 393, 399-400 (App. Div. 1972).  See also, R. 4:46-2; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73-5 (1954); and Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 539-40 (1995) (linking the summary judgment standard to R. 4:37-2(b)).  Summary judgment is also a judicially approved procedure for the issuance of a declaratory judgment, which interprets statutes, regulations and constitutional provisions affecting the rights and legal relations of the parties.  R. 4:42-3; N.J.S.A. 2A:16-52, -53.  See also, New Jersey Ass’n for Retarded Citizens. Inc. v. Dep’t of Human Services, 89 N.J. 234, 241-42 (1982); Bell v. Stafford Tp., 110 N.J. 384, 390-91 (1988).
[brief] Bodycam footage shows the men standing on the sidewalk in front of a row house with an elevated porch when uniform officers approach.  (Ex B 0:30 to 1:00)  [...], who is on the far left of the screen, is holding a bag of chips in one hand and feeding himself with the other.  (Ex B 0:30 to 1:00)  A plastic grocery bag can be seen hanging on the wrought iron railing of the porch, near where [...] is standing, and what appears to be an unopened bottle of liquor can be seen on the floor of the porch, near the grocery bag.  (Ex B 0:30 to 1:00; 3:40 to 3:50)  Within seconds of approaching, the officers can be seen signaling the men to turn around and face the porch.  [...] and the other men turn, place their hands on the railing, and the officers proceed to frisk them.  (Ex B 0:30 to 1:00)  The frisk of [...]’ person revealed that [...] was in possession of a gun; no weapons were found on the other men.  (Da 27; 1T 16-17 to 16-23)  [...] was taken into custody and a search incident to arrest revealed that [...] was also in possession of drugs.  (1T 17-4 to 17-12)  The other three men were handcuffed and detained while a records check was conducted.  (Ex B 1:30 to 3:44; 1T 17-1 to 17-13)  While the men were waiting, one of them can be heard telling the officers that his aunt lives “right there”; they had just come from the liquor store: and they were “just chillin. ”  (Ex B 12:30 to 12:45, 13:40 to 14:20)  [...] and [...] were ultimately released; [...] was arrested on an outstanding warrant.
[directive] 4.5  Crisis Negotiators called to respond to incidents involving barricaded individuals pursuant to Sections 4.3 and 4.4 of this Policy are required to have attended a Crisis Negotiation Course of at least 40 hours duration conducted by the [...], the [...], the [...] or an equivalent course approved by the County Prosecutor or Attorney General.  http://ntoa.org/pdf/TROS.pdf  5
[brief] In *Burt v. W. Jersey Health Sys.*, 339 N.J. Super. 296 (App. Div. 2001), one of two defendants that a plaintiff sued was dismissed from the case because the plaintiff failed to file and serve an Affidavit of Merit.  *Burt*, 339 N.J. Super. at 302.  The remaining defendant had filed a cross-claim against the dismissed defendant seeking contribution or indemnity, so the Appellate Division held that the defendant’s contribution claim should not be vitiated by the plaintiff’s failure to comply with the Affidavit of Merit Act.  *Id.* at 302, 304.  The *Burt* Court therefore reasoned that, at the trial to occur in the future, the fault of the dismissed defendant would be allocated by the jury.  This was so, even though the plaintiff could not recover directly from that dismissed defendant.  *Id.* at 307.  The *Burt* Court concluded that “a plaintiff who fails to file an Affidavit of Merit against a licensed professional is not entitled to recover the full amount of damages from a remaining licensed professional who is deemed to be sixty percent or more responsible for the total damages. ”  *Ibid.*  It must be noted that this ruling was essentially dicta, since the issue had not been briefed, was raised by the appellate panel sua sponte, and was not necessary to determine the issue raised.
[brief] To establish “special reasons" for a density variance, the so-called "positive criteria," the applicant must show "the site will accommodate the problems associated with [a greater density] than permitted by the ordinance."  Grubbs v. Slothower, 389 N.J. Super. 377, 389 (App. Div. 2007) (alteration in original) (quoting Randolph Town Ctr. Assocs. v. Twp. of Randolph, 324 N.J. Super 412, 417 (App. Div. 1999) (emphasis added)).  The Board found the Applicant’s expert, [...], was not credible in his testimony and that he failed to establish that the site would accommodate the problems associated with the additional density in increasing the number of apartments by 100 units, to a density greater than permitted by the ordinance.
[brief] [...] demanded and received vast amounts of discovery from [...].  With its Answer, [...] served Plaintiff with a preservation notice, document requests, supplemental interrogatories, and demand for medical authorizations.  (Pa29–Pa42).  [...]’s vast discovery requests sought information about [...]’s health insurance, tax returns, medical history over the past ten years, social media over the past five years, and other topics.  (Pa29–Pa42).  In other words, [...]’s discovery requests sought information needed to evaluate damages, not coverage.  (Pa29–Pa42).  [...] responded to [...]’s requests on August 16, 2023.  (Pa173).  She produced 749 pages of documents to [...].  (Pa137).  Discovery was ongoing when [...] moved for summary judgment on October 5, 2023.  (Pa44, Pa137).  STANDARD OF REVIEW
[brief] [...], Attorneys for Plaintiff-Appellant  [...] [...] [...]  On the Brief: [...]  Attorney ID #: 009471973  E-Mail: [...] TABLE OF CONTENTS  Table of Contents ..................................................................................................................  i  Table of Authorities ..............................................................................................................  ii  Table of Judgments, Orders and Rulings Being Appealed ............................................. iii  Preliminary Statement .........................................................................................................  1 Procedural History ...............................................................................................................
[brief] On December 8, 2021, plaintiff filed a complaint and jury demand against defendants [...] (“defendant”), John/Jane Does (1-100), and ABC Business Entity(s) (1-100).  (Pa10-16.)¹  The complaint sought to hold defendants liable for negligence after plaintiff fell while entering the bathtub in her hotel room, causing her injuries.  (Pa10-16.)  According to the complaint, plaintiff fell when the towel rack she was “using to assist her entry failed. ”  (Pa11-12.)  Defendant answered the complaint denying the allegations.  (Pa17-21.)  During discovery, plaintiff admitted that she did not fall because of the towel rack’s construction or due to her use of the towel rack to assist her entry; rather, she slipped while getting into the tub independently and sought to grab onto the towel rack to break her fall.  (Pa48, Pa28, Pa84; 1T26-1 to 10.)  Plaintiff submitted the report of an expert who testified that the bathroom was constructed in accordance with industry standards, though he personally opined that the tub would have been safer had the towel rack been constructed --- ¹ Pa – Plaintiff’s Appendix Pb – Plaintiff’s Brief 1T – Transcript of Motion Hearing dated January 5, 2024 to bear weight.  (Pa67-80.)  Defendant moved to exclude the expert’s opinion and for summary judgment.  (Pa24-82.)  Plaintiff opposed the motion (Pa83-189), but the trial court granted it by order dated January 5, 2024 (Pa1; 1T23-20 to 34-13).  Plaintiff appealed limited to the following issues: (1) whether the trial court abused its discretion in granting defendant’s motion to exclude her expert’s testimony; and (2) whether there remained a genuine issue of material fact as to whether the ingress to the bathtub was a hazardous condition.
[brief] Appellant improperly seeks to bootstrap an NJCFLA claim to a claim under the NJCFA.  “[T]o state a cause of action under the CFA, a plaintiff must allege the commission of a deception, fraud, misrepresentation, etc., ‘in connection with’ the sale of merchandise or services. ”  *Castro v. NYT Television*, 370 N.J. Super. 282, 294 (App. Div. 2004).  The Complaint seeks to allege a claim that by failing to be licensed pursuant to the NJCFLA, Holder Respondents committed a deception, fraud, or misrepresentation.  Pa15-16, ¶ 86.  That contortion fails.  Because there is no private right of action under the NJCFLA, such a claim cannot serve as the basis for a claim under the NJCFA.
[brief] (Pa000378).  In reliance on this ex parte limited production, [...] argued that “[t]here is absolutely no support for any ‘common knowledge’ negligence claim against [...]” and argued that a “jury is not capable of interpreting professional plans or understanding an engineer’s duty of care in the context of this project without expert testimony. ” (Pa000121).  The trial court, however, had already ruled that a jury could potentially find [...] negligent, and that expert opinion was not necessary to pursue general negligence or trespass claims against [...].
[brief] After obtaining defendant's room number from the front desk, the officers went to defendant's room and encountered his girlfriend, [...].  Defendant was not there, and [...] told the officers that he was in another specific room.  [...] and other officers went to that room.  [...] answered the door.  Czepiel discounted Deloise as a suspect as he was “very pale,” had no facial hair and was heavier than the robber seen in the surveillance video.  Deloise initially denied that defendant was in the room, but eventually admitted that he was and allowed the officers to enter.  Defendant was wearing a “black T-shirt, shorts and white sneakers” and was holding a pack of Newport cigarettes.  While canvassing the parking lot of the [...], [...] observed a 2004 green Ford Taurus registered to [...].  Powell and Czepiel observed through the car window a two-foot-long metal pipe and a black wool cap with an Eagles emblem.  The car was impounded, towed, and searched pursuant to a warrant.  Police recovered the pipe and cap.  Nothing else of evidential value was found in the car.
[brief] **THE COURT BELOW ERRED WHEN IT GRANTED SUMMARY JUDGMENT ON APPELLANT’S SPOT ZONING CLAIM**  Appellant acknowledges that the adoption of a redevelopment plan is not spot zoning.  Likewise, Appellant recognizes that changes in a redevelopment plan, even if initiated by a property owner, are not necessarily spot zoning.  What Plaintiff argued below, however, is that the change in bulk standards for one property only, that of [...], was spot zoning made in return for a $2,000,000 payment, and that it was incumbent upon the Court to consider expert testimony on the spot zoning claim.  As this Court has found, “spot zoning claims are particularly fact sensitive” and a hearing must be held to allow the proponent of the spot zoning challenge “an opportunity to present expert testimony relevant to a determination if its validity. ”  Jennings v. Borough of Highlands, 418 N.J. Super. 405, 426-27 (App. Div. 2011); see also Riya Finnegan LLC v. Township Council of Tp. Of South Brunswick, 197 N.J. 184, 197 (2008); Hirth v. City of Hoboken 337 N.J. Super. 149 (App. Div. 2001) (reversing summary judgment granted to the City of Hoboken because of the trial court’s failure to evaluate the objector’s expert testimony addressed to rezoning), and St. Paul’s Missionary Baptist Church v. City of Vineland, No. A-4945-06, 2008 N.J. Super. Unpub. LEXIS 839, *9 (App. Div., July 15, 2008) (remanding for spot zoning analysis).
[brief] (98a)  On February 8, 2024, [...] submitted a Supplemental Certification of Legal Services Pursuant to R 4:42-9.  This document showed $99,645.50 for legal services rendered and $2,484.64 for expenses billed to the Trust, which did not include costs for the plenary hearing or billing outside the litigation, which was invoiced separately.  (157a)  1.  THE COURT ERRED IN DECIDING NOT TO ENFORCE [...]’S ORDER (18a)
[brief] .............................- 28 - All the Way Towing, LLC v. Bucks Cty. Int’l, Inc., 236 N.J. 431 (2019)...........- 17 - Associates Home Equity Services v. Troup, 343 N.J.Super. 254 (App.Div.2001) ........................................................................................................ passim Atlantic Ambulance Corp. v. Cullum 451 N.J. Super. 247 (App. Div. 2017) ....- 27 - Bilotti v. Accurate Forming Corp., 39 N.J. 184 (1963)....................................- 29 - Bosland v. Warnock Dodge, Inc., 197 N.J. 543 (2009).................................- 17 -, - 32 - Cameron v. S. Jersey Pubs, Inc., 460 N.J. Super. 156 (App. Div. 2019)..........- 31 - Carroll v. Cellco P’ship, 313 N.J. Super. 488 (App.Div.1998)......................- 29 -, - 30 - Cox v. Sears Roebuck & Co., 138 N.J. 2 (1994)........................................... passim D'Agostino v. Maldonado, 216 N.J. 168 (2013)........................................... - 19 -, - 26 - Diversified Equities, LLC v. Russell, 31 N.Y.S.3d 920 (N.Y. App. Term. 2016)
[brief] (5T 72-2 to 3)  She recovered two shell casings from inside the Honda, and paperwork associated with both defendant and [...] from inside the Malibu.  (5T 88-22 to 23; 5T 92-20 to 24; 5T 101-12 to 14; 5T 111-24 to 112-4)  [...] admitted that she did not process a baseball bat in the Honda for prints even though there was no other baseball equipment in the car.  (5T 112-23 to 113-4)  She swabbed the Malibu for DNA and fingerprints and found one useable fingerprint from a passenger-side door of the Honda.  (5T 77-14 to 15; 5T 79-24; 5T 91-17 to 25)  [...], a ballistics expert, testified that the two spent shell casings found in the Honda and the one bullet recovered at the hospital were fired from the semiautomatic handgun that police found, and that two of the three bullets recovered from the autopsy were fired from the revolver, but that the third bullet recovered in the autopsy was inconclusive as to the revolver but was not fired by the semiautomatic.
[brief] Assembly Appropriations Committee, Statement to A.2100 (Jan. 30, 2006) .........................................................  Pra1 Senate State Government Committee, Statement to A.2100 (May 14, 2007)  .........................................................  Pra3 Legislative History Checklist for N.J.S.A. 13B:6 to -14 ...........................................  Pra5  Third Reprint to S. 287 (1980) .............................................................................................  Pra6  Senate Amendments to S.287 (1980)  .................................................................  Pra10  Senate State Government, Federal and Interstate Relations and Veterans Affairs Committee, Statement to S. 287 (Jan. 29, 1980)  .........................  Pra11  Office of the Governor Statement to S. 287 (July 15, 1980)  ...............  Pra13  Bill text, A. 71 (Aug. 16, 1948)  .........................................................................................  Pra15  Official Reprint to A. 71 (Aug. 16, 1948)  .................................................................  Pra19  Official Reprint to S. 1 (Jan. 13, 1953)  .................................................................  Pra22  REPLY LEGAL ARGUMENT
[brief] “In reviewing a complaint dismissed under Rule 4:6–2(e) our inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint. ”  Printing Mart, 116 N.J. at 746 (emphasis added).  Thus, a statute of limitations defense can be raised on a R. 4:6-2(e) motion only when the expiration of the limitations period affirmatively appears from the complaint.
[brief] See In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 383 (2013); Mazza v. Bd. of Trs., Police & Firemen’s Ret. Sys., 143 N.J. 22, 25 (1995).  Here, the Board’s decision-making process in this matter is the very example of a decision that is arbitrary, capricious, unreasonable, and utterly lacking support in the record.
[brief] Accordingly, the sentencing court erred where it considered [...]’s refusal to acknowledge guilt in its sentencing determination.  *Poteet*, 61 N.J. at 495-96.  A distinction must be drawn here in light of the sentencing court’s finding that it was considering [...]’s so-called “lack of remorse” rather than an exercise of his right against self-incrimination.  These are two distinct concepts: a defendant’s refusal to acknowledge guilt while maintaining his innocence; and a defendant’s admission (to some or all of the accused conduct) and his corresponding failure to recognize the gravity of the admitted-to conduct.  The former cannot be considered within sentencing determinations, while the latter can be considered if the court finds that the lack of remorse increases the likelihood of reoffending.
[directive] Directive # 16-08 (issued November 17, 2008) dealt with the expungement of records from the Criminal Case Management Database.  This directive supersedes that earlier Directive and deals with the expungement of records from the Judgment of Conviction Database as well as from the Criminal Case Management Database.  Chapter 52 of the New Jersey Criminal Code outlines the procedures for the expungement of records.  N.J.S.A. 2C:52-1 specifically addresses the removal and isolation of all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency concerning a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system.  Indigency investigations, presentence investigation reports, and Pretrial Intervention Program reports produced by vicinage Criminal Division staff are stored on the Criminal Case Management database, commonly known as the CCM database.  This is a centralized statewide database that can be viewed by approved users, the majority of which are probation officers and team leaders in the Criminal Division.  All Judgment of Conviction forms produced by vicinage judicial secretaries are stored in the Judgment of Conviction database, commonly known as the “JOC Database. ”  This is a centralized statewide database that can be viewed by approved users, the majority of which are Criminal Division staff, but who now also include some outside agencies.  When the court grants a defendant's petition for expungement, the case file and all copies of case-related documents are secured and can no longer be accessed by the public or by court staff unless specifically authorized by a judge.  The Criminal Division similarly needs to ensure that all information contained in the statewide CCM Database and in the JOC Database related to the case covered by the expungement order is deleted.  [...] • [...] • [...] Accordingly, attached are the protocol (covering both databases) and two accompanying forms (one for each database) to ensure that information pertaining to expunged cases is deleted from the Criminal Case Management Database and the Judgment of Conviction Database in accordance with court-ordered expungements.
[brief] The same expert said that parking and traffic are the problems associated with the proposed density variance -- yet he fails to account for the loss of a parking lot serving the public to make room for seventeen residential units.  If the property deserves a height variance because it is across the street from the boardwalk, then that justifies a height variance the entire length of Ocean Terrace (which is the entire length of the Borough).  As for public notice, even if 'lot area/unit' were not confusing, the fact remains that [...] was not the address where the application documents were made available for public inspection.  That is a jurisdictional deficiency, the error was brought to the Board's attention at the hearing, and the Applicant proceeded at its own risk.  The order affirming the grant of the variances is untenable and should be reversed.
[brief] To support a deadly-weapon sentencing enhancement, the Supreme Court of Washington likewise required “a nexus between the defendant, the crime, and the deadly weapon in order to find that the defendant was ‘armed’ under the deadly weapon enhancement. ”  Washington v. Barnes, 103 P.3d 1219, 1222 (Wash. 2005); see also Washington v. Brown, 173 P.3d 245, 250 (Wash. 2007) (vacating a first-degree burglary conviction and a deadly-weapon sentencing enhancement where there was no nexus between the burglary and a weapon found at the scene).
[brief] ”  Here, the attached documents are necessary to properly explain when Defendants’ arguments on appeal were first raised.  Defendant’s submission to this Court misleadingly implies that their arguments were raised during/before trial, when they were not.  These excerpts are also necessary so Plaintiff can comply with R. 2:6-2(a)(5)’s requirement that she specifically note where her arguments on appeal were raised below.  This is necessitated by Defendants’ failure to order and supply the transcript from the oral argument on their motion.  Pursuant to R. 2:6-1(a)(2), “only the material pertinent” to these issues (i.e., the portions containing legal arguments) are included in this appendix.  TABLE OF AUTHORITIES