ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] THE LAW DIVISION ERRED BY HOLDING THERE WAS NO COMMON LAW DUTY TO MAINTAIN [Raised At Pa549-1040; Decided at Pa1-2]  The Law Division also dismissed all of Plaintiffs’ common law claims by holding that, generally speaking, a commercial tenant in a retail mall does not have a duty to maintain parking areas.  (See Transcript, citing Kandrac v. Marrazzo’s Market at Robbinsville, 429 N.J. 79 (App. Div. 2012)).  Nonetheless, a more careful inspection of Kandrac demonstrates that this principle was announced in a case in which the lease agreement – in contrast to the leases in this case – “squarely assigns the duty to maintain the area where plaintiff was injured to the landlord. ”  Kandrac, 429 N.J.Super. at 89.  Tellingly, the Kandrac court critically observed “the assignment of responsibilities in the lease, within the context of a multi-tenant shopping center, also impacts the scope of tenant’s ability to address conditions in the parking lot. ”  Id.  Thus, in Kandrac, the fact that the lease did, in fact, place an exclusive duty on the landlord to maintain the parking lot, where the plaintiff fell, was essential to the outcome.  Kandrac, 429 N.J.Super. at 482.  Critically, this language or any form of similar language, does not appear in the leases of the Respondents.  In fact, as the earlier review of Article 3 demonstrates, the language of these leases did not include language placing the Landlord under such an “exclusive” duty at all; and, in fact, included language which three times placed the Respondents under a duty to maintain the property.  In their briefs, Respondents essentially ignore Plaintiffs’ discussion of Kandrac and Nielsen v. Walmart Store #2, 2171, 429 N.J.Super. 251, 260 (App. Div. 2013).  Plaintiffs respectfully refer the Court to that discussion as if set forth at length here.  POINT III
[brief] See, Da366.  Specifically, the trial court found that [...] failed to pay [...] monthly operating fees, pursuant to Section 6.2(a) of the Operating Agreement, in the amount of $8,168.00 for March 2020 and $21,000.00 from April 2020 to present, which amount aggregates to $1,449,005.74 to date.  Da366; Da52.  The Authority has established that [...] failed to pay these amounts based on the corresponding invoices issued by [...] and testimony provided that such payments have not been made, and this lack of payment has financially damaged [...]. and Opinion on June 29, 2022; 6T refers to the trial court decision on the Order that is subject of this appeal on March 12, 2024; and, 7T refers to the transcript of the trial order denying [...]’s motion for stay pending appeal on April 26, 2024.  Pursuant to the requirements set forth in the Trial Order, on November 8, 2022, [...] prepared and submitted a request to [...] requesting consent for the construction and financing of [...] Garage (the “Consent Request”).
[brief] I.  NEGLIGENT TRAINING AND SUPERVISION DOES NOT REQUIRE A SHOWING OF DANGEROUS CHARACTERISTICS.  (9T109:12-130:18; 10T4:1-6:23)  REPLY BRIEF  II.  ADMISSION OF THE POLICE OFFICERS' OPINIONS AND CONCLUSIONS.  (1T53:4-62:21)  A.  [...] Fails to Explain How the Police Officers' Opinions and Conclusions  Impeach Plaintiffs' Expert.  B.  [...] Fails to Address the Issue of Prejudice and the Officers' Unqualified Expert Opinions.  III.
[brief] Given the punitive nature of deviations from the statutorily imposed rate of interest, generally, and compounded rates of interest, specifically, this Court has required detailed findings by trial courts who award interest outside the structure of Rule 4:42-11 or other appropriate statute.  In Township of West Windsor v. Nierenberg, this Court approved the trial judge’s prejudgment interest award at the prime rate compounded annually.  345 N.J. Super 472 (App. Div. 2001).  The trial court specifically made findings as to why the prime rate (rather than the rate in Rule 4:42-11) was more appropriate, and why the judgment should compound annually rather than compound at different intervals or not compound at all.
[brief] The first Miller factor  Defendant argues that the first Miller factor required the judge to presume his immaturity at the time of the crime.  (Db20-21).  To rebut this presumption, defendant claims, the State would have had to call an expert to testify that defendant was mature.  (Db21).  Because the State never called such an expert, defendant asserts that the judge should have relied on [...], [...], and [...]’s testimony.  (Db20-26).  Defendant points out that [...] and [...] found that he was “uniquely immature,” and that [...] found that he had become mature since his offense.  (Db20-23).  Defendant also complains that the judge did not spend enough time on [...]’s report and erroneously found his animal abuse to be disturbing.  (Db23-24).  Such abuse, defendant claims, occurred because “he was 11 years old” and “suffered substantial trauma and developmental deficits. ” (Db24).  The first Miller factor “invites consideration of the ‘hallmark features’ of youth – ‘among them, immaturity, impetuousness, and failure to appreciate risks and consequences. ’”  Comer, 249 N.J. at 407.  As the Supreme Court explained, these features are not to be confused with whether a defendant is intelligent, and [o]n rare occasions, the State might be able to present expert psychiatric evidence as proof that a particular juvenile offender possessed unusual maturity beyond his years.  If unrefuted, the first factor would not weigh in the defendant's favor.  But a juvenile offender has no burden to produce evidence that his brain has not fully developed in order for the first factor to be considered in mitigation.  [Ibid.]  Defendant claims that the above language required the judge to find that the first factor weighed in his favor because the State presented no expert testimony.  Preliminarily, the language at issue states that defendants need not call an expert for the first factor to “be considered in mitigation”; it does not say that upon consideration, the court must attribute mitigating weight.
[brief] The transcription vendor, [...], advised me to attend the hearing in person, because she could hear me much better than Zoom.  She said she usually has a hard time understanding me in Zoom hearings because of my “heavy” English accent.  Additionally I can hear better when I attend the court in person.  So, in the morning of 9/25/23, around 8:30 am, I was in the parking lot of the Monmouth County Courthouse.  I called [...] Chambers and someone picked up the phone and I asked her name.  She said she was [...]’s secretary.  I told her I wanted to attend my hearing in person.  She said “the Judge wanted it by Zoom” so I better go back home and attend my hearing in Zoom.  The transcript of that hearing is at 1T.
[brief] B.  THE 2017 WFD PERMIT AND 2019 PERMIT MODIFICATION COMPLIED WITH ALL APPLICABLE NJDEP RULES AND APPELLANT’S ATTEMPT TO CONFLATE THE TERMS OF THE 2017 WFD PERMIT AND 2019 PERMIT MODIFICATION IN ORDER TO EXPAND ITS CHALLENGE SHOULD BE REJECTED.  Appellant bears the burden of making a clear showing that the 2019 Permit Modification decision is arbitrary, capricious, and unreasonable in order for this Court to overturn it.
[brief] Although plaintiffs argue there was more evidence than [...]’s conclusions to support the judgment they obtained, the “evidence” they cite as proof that these transactions were “misappropriations” consists only of [...]’s conclusion that this amount was transferred to an account belonging to the [...].  Pb46.  Plaintiffs cite no evidence that [...] was unaware of this transaction or did not authorize it.  The final “misappropriation” plaintiffs claim they proved involved a transfer of $2.3 million from [...]’s bank account on November 26, 2014.  Pb47-48.  Once again, the “evidence” cited by plaintiff is that [...] identified this as a transfer to an account belonging to defendant [...].  Citing only [...]’s conclusory testimony, plaintiffs claim this transfer was “significant” because it showed that [...]’s interest was acquired with the use of [...] funds while [...] continued to be a member of [...].  8T125:6-14.  Although plaintiffs acknowledge there were “competing explanations” regarding this transaction, they do not cite any explanation by a plaintiff with personal knowledge of the details of the transaction.  There is no testimony from [...] that he did not approve this arrangement.  Even if the trial court’s rejection of [...]’s explanation had merit, plaintiffs fail to cite evidence that this transaction constituted a conversion, breach of contract or any other claim they have alleged. \textsuperscript{11}
[brief] POINT II  THE ARBITRATION AWARD MUST BE VACATED BECAUSE THE ARBITRATOR EXCEEDED OR SO IMPERFECTLY EXECUTED HIS POWERS THAT A MUTUAL, FINAL, AND DEFINITE AWARD UPON THE SUBJECT MATTER SUBMITTED WAS NOT MADE.  (Raised Below: T7-18, T16-2).  Under N.J.S.A. 2A:24-8 subsection (d), an arbitrator exceeds or imperfectly executes his or her powers if the arbitrator ignores the clear and unambiguous language of an agreement and relies solely on past practices.  City Ass'n of Sup'rs and Adm'rs v. State Operated School Dist. of City of Newark, 311 N.J. Super. 300 (App. Div. 1998).  Where an arbitration award does not “draw its essence from the [collective] bargaining agreement, it will not be enforced by the courts. ”  County College of Morris Staff Ass’n v. County College of Morris, 100 N.J. 383, 392 (1985) (citation omitted).  In order for the process of arbitration to merit the confidence of parties to labor disputes, arbitrators must at all times adhere to the rules that have been agreed upon by the parties as set forth in their contract.
[brief] N.J.S.A. 2C:43-6(f).  The “qualifying Chapter 35 offenses” to which the Directive applies include “any violation subject to a mandatory extended term pursuant to 2C:43-6(f). ”  Directive 2021-4 at 6.  Thus, the prosecutor was required to abide by the Directive for [...]’s possession with intent to distribute convictions.
[brief] Orji represents “circumstances” under which this Court found no error in the failure to hold a hearing before ordering restitution:  No dispute exists as to amount of restitution …  Moreover, during the sentencing hearing, defense counsel suggested that defendant would have the funds to pay restitution …  Defendant raised no objection to the concession made by his counsel nor did he dispute his ability to pay.  Consistent with counsel’s representation, we believe that defendant has the ability to pay restitution.  There was evidence in the pre-sentence investigation report that defendant has a bachelor’s degree in marketing and is gainfully employed as the owner-operator of a limousine-taxi service.  From this evidence, the judge properly could have inferred that defendant had the ability to pay.  Also, the court gave defendant the maximum probationary sentence … thereby allowing a maximum duration for payment of restitution …  No restitution hearing is required here.  Orji, 277 N.J. Super. at 589.  The circumstances of Orji bear sufficient identity to those before this Court such that the same result is warranted.
[brief] (Da387).  On December 3, 2021, the probate court held a teleconference with counsel to discuss the status of the remand.  At that conference, the court directed that Plaintiff make his submission within 10 days.  (2T:46:17-18).  Plaintiff filed his “submission” on December 13, 2021.  His “submission” consisted of a one-page letter and a copy of the fee application that had been filed by [...] in August 2018.
[brief] To reduce the costs and burdens of preservation, and to ensure proper ESI and/or electronically stored information is preserved, the Parties agree that:  a)  They have exchanged a list of custodians, the types of ESI and/or electronically stored information they believe should be preserved, or general job titles or descriptions of custodians, for whom they believe ESI and/or electronically stored information should be preserved, e.g., “HR head,” “scientist,” “marketing manager,” etc…; b)  In addition to the previously preserved ESI and/or electronically stored information, the Parties agree that any ESI created or received between (date) and (date) will be preserved for the custodians and/or for those individuals who meet the general job titles or descriptions of custodians provided by the opposing party; c)  They have agreed/will agree on the number of custodians per party for whom ESI and/or electronically stored information will be preserved; d)  Data sources that are not reasonably accessible because of undue burden or cost and ESI from these sources will be preserved but not searched, reviewed, or produced: [e.g., backup media of [named] system, systems no longer in use that cannot be accessed]; e)  Among the sources of data the Parties agree are not reasonably accessible, the Parties agree not to preserve the following: [e.g., backup media created before (date), digital voicemail, instant messaging, automatically saved versions of documents]; f)  Any data sources, ESI and/or electronically stored information that has or potentially could have been destroyed is listed below and has been divulged to the opposing party:
[brief] This appeal arises out of a summary disposition proceeding (the “Underlying Action”), pursuant to which Plaintiff-Respondent-Cross-Appellant, [...] (“Respondent” or “Landlord”), sought to evict Defendant-Appellant-Cross-Respondent, [...] (“Appellant” or “Tenant”), from certain commercial real property located in Woodbridge, New Jersey due to Tenant’s admitted failure to pay any rent due and owing under the parties’ written Lease Agreement (the “Lease”) for the months of April 2020 through August 2020 (the “Events of Default”).  As recognized by The Honorable [...], J.S.C., as of November 10, 2021, absent legal fees and costs, Tenant owed Landlord nearly $200,000 in past due Rent and Additional Rent under the Lease (the “Rent Arrears”).  Tenant has not appealed, nor does dispute, this aspect of the lower court’s holding.  Rather, Tenant attempts to escape its admitted defaults by arguing that its liability to Landlord should be “offset” because, had it not been in monetary default, it would have been entitled to certain construction reimbursement payments under Section 4.02 of the Lease.  This argument is specious because the Lease expressly provides that Tenant is not entitled to these reimbursement payments where, as here, it was in monetary default under the Lease when the payments came due.  Tenant’s attempt to rewrite the Lease to reinstate these payments and grant itself a better deal than it bargained for has twice been rejected by the lower court.  This Court should, respectfully, affirm these holdings as they are in accordance with the express terms of the Lease and well-settled New Jersey law.
[brief] POINT TWO .............................................................  34  THE PLAINTIFF’S EVIDENCE AT TRIAL FAILED TO MEET ITS BURDEN TO PROVE THAT THE 1963 AGREEMENT ESTABLISHED A PERMANENT EASEMENT ON THE SCHOOL LOT 5 FOR AN OFF-SITE PARKING USE BY STAFF/ATTENDEES OF THE SYNAGOGUE LOT 8 OR FOR ACCESS TO THE SIXTH STREET BOILER ROOM (APPEALS THE FINAL OPINION/ORDER Da978, Da980, Da1004)  POINT THREE ..........................................................  44  THE TRIAL COURT ERRED IN EXCLUDING FROM EVIDENCE  THE [...] RESOLUTION THAT THE LOT 8  OFF-SITE PARKING ON THE SCHOOL LOT 5 IS NOT A LEGAL NONCONFORMING USE.  THERE IS NO MUNICIPAL LAND USE BOARD APPROVAL FOR ANY SUCH JOINT PARKING USE ON THE SCHOOL LOT 5.  THE 1972 SITE PLAN APPROVAL FOR THE EXPANSION OF SCHOOL PROPERTY DOES NOT INCLUDE JOINT PARKING USE, INFERENTIALLY PRECLUDES SUCH USE, AND IS CONCLUSIVE THAT NO EASEMENT EXISTED OR THAT THE LICENSE TERMINATED (APPEALS FROM TRIAL COURT RULING ON MOTION IN LIMINE EXCLUDING BOARD RESOLUTION
[brief] Likewise, the Court also found that the Photocopy contained Petitioner’s signature, stating that the testimony of [...], Respondent’s expert, “is contraindicated” (P37a).  The Court overlooked the limits to [...]’s evaluation.  (9T167:11-22).  [...] acknowledged that because he was working with a photocopy there were certain things he could not examine including the dynamic evidence of the signature using pen pressure.  (Id, see also 9T206:20-23).  The Photocopy also could not be dated because an original is needed for an ink analysis, which precluded a more conclusive opinion as to the signature.  (9T:206:15-25).  [...]’s evaluation was limited to looking at the density and variation of the ink lines to determine if writings appeared similar.  (9T188:14-21).  The Court’s ruling also disregards that [...] admitted that he could not opine that a document had not been fabricated or altered.  (9T204:2-4).  [...] explained that cutting and pasting a signature from one source to another is referred to in the industry as manipulation.
[directive] Czy rozumie Pan(i), [Tak/Yes] [Nie/No] samochodu lub bezprawnym przejęciem pojazdu silnikowego, może wiązać się z wyrokiem konfiskaty prawa jazdy i nałożeniem obowiązkowych kar grzywny kolejno i osobno za każde z tych przestępstw?  Do you understand that if you plead guilty to more than one theft of an automobile or unlawful taking of a motor vehicle that the license forfeitures and mandatory penalties imposed can be consecutive to each other?
[brief] Plaintiff argues that the Borough found the Property was untenantable due to code violations.  (Pb20-Pb21).  It also suggests that the LSRP never testified as to the need to dig up the slab under the building.  (Pb21).  This is contradicted by the record.  At the Planning Board hearing, Plaintiff’s attorney stated that the current LSRP “went in there and saw that there was some additional work that needed to be done under the floor.  So we -- my client allowed the lease to expire so that we could get in there and dig up whatever needed to be dug up, which we’re in the process of doing now. ” (T1, 13:16-23).
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[brief] [...] and [...] further argue that since the CCIP Policies were issued to [...] as a “named insured” and not [...], [...] was not an enrolled contractor.  They also argue that the CCIP’s workers compensation component was cancelled, resulting in a cancellation endorsement sent to the Ratings \(^{1}\)  [...] and [...] claim Plaintiffs “concede [...] was notified it was being unenrolled from the CCIP mere hours after [...] received the auto-generated ‘Welcome Letter’ on July 30, 2015. ”
[brief] [Ha140.]  Moreover, as noted above, there are very few residences in [...]'s territory that use propane or oil heat.  Ha140-141.  This means that [...] must attain reductions in natural gas usage by halting installations in new construction, beginning retrofitting residences and commercial buildings immediately, not until 2030 or later.  Avoiding natural gas installations in new construction doesn't reduce gas consumption but merely avoids a further increase.  Putting together the Clean Energy Act, the Global Warming Response Act, the EMP and the 80x50 Report, these are conclusions that cannot be responsibly disputed.
[brief] However, plaintiff has argued that a dangerous condition of the tree root existed in this matter and was the cause of plaintiff’s injuries which were reasonably foreseeable.  Plaintiff continues to argue that a decision has not been rendered as to whether defendant [...] created the dangerous condition of the shaved tree root and subsequent tree falling.  Plaintiff has provided uncontested evidence that the defendant [...] admitted to owning the tree which caused plaintiff’s injuries.  Defendant [...] as the owner had a duty to maintain subject tree.  Plaintiff further argues that the Department of Public works will either issue permits needed to work on the tree or determine if the work can be done around the tree root or even shave the tree roots themselves.  If they are the ones to shave the root or working with the outside company hired to work on the tree, a permit will not be issued as established in the deposition of [...], representative for the [...].  “No, if they're working with us, they don't need a permit if they're working with us.  We work hand in hand with them. ” (Pa172-193, Tr 26:5-7).  Whether the defendant [...] had notice or not is not the only issue at hand, but rather the issue is defendant caused and created the condition.  The lower court has continued to review this case in the light of subsection b of the New Jersey Tort Claims Act, but plaintiff argues that defendant created the dangerous condition.  Defendant [...] is not immune from liability under the New Jersey Tort Claims Act if they caused and created the dangerous condition of the shaved tree root.
[brief] And the “demand for relief” – suppression of the physical evidence – is the same in both motions.  Thus, the first factor is satisfied.  The second factor, the theory of recovery, does not appear to be applicable here, except to the extent that, should defendant’s motion be granted, he seeks suppression of evidence seized.  The third and fourth factors are also satisfied.  Because both motions involve the same incident – defendant’s arrest on April 23, 2022 – the witnesses and evidence needed to determine the constitutionality of the arrest, search, and seizure are the same.  Likewise, the material facts are the same because the incident is identical, and the issue – the constitutionality of the arrest, search, and seizure – is identical.  For these reasons, the motion court erred when it determined the issue in the Hudson County suppression motion is not identical to the issue in the Union County suppression motion.
[brief] In Section II.A.3, Defendants argue for the first time that the trial court based its ruling in part on its determination that the Property was not abandoned, even though a finding of abandonment is not necessary to determine that the Redevelopment Designation criteria in N.J.S.A. 40A:12A-5(b) has been met.  In Section III, Defendants argue for the first time that the trial court erred in finding that the record lacked substantial evidence to support a finding that the Property satisfies the criteria in N.J.S.A. 40A:12A-5(d).  Defendants admit that they failed to raise either of these arguments before the trial court, and, therefore, Plaintiff submits, these arguments should not be considered on appeal.
[brief] That was not the issue before [...].  The defendant-owner argued there was no evidence that the stolen vehicle was being operated at the time of the accident by the agent of defendant [...], who was the owner of the automobile.  The issue was whether she could be held liable when it appears established that she was not driving nor present at the time of the accident.  The Police Report stated that [...], while out looking for his mother-in-law’s vehicle, which was stolen, spotted the vehicle on Second Avenue.  [...] stated that the unknown driver of vehicle number two made a left off of Second Avenue onto Summer Avenue, and then stopped.  [...] stated that he jumped out, ran to vehicle two, grabbed the driver around the neck, pulled himself into the vehicle, and told the suspect to cut the vehicle off.  The driver of the vehicle pulled away at a fast speed.  The defendant relied on cases which hold that an automobile owner cannot be held liable for the negligence of a third-party car thief in the absence of evidence of the defendant’s negligence incurring or allowing the theft.  However, it was not a standard car theft case, because the Police Report indicated that the defendant’s son-in-law, [...], contributed to causing the accident.