ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] 2 Statement of Facts ..............................................................................................................  5  Legal Argument ..................................................................................................................  8  The Trial Court Erroneously Dismissed Plaintiff’s Case as Circumstantial Evidence Was Sufficient Proof That The Defendants’ Negligence Was the Proximate Cause of Plaintiff’s Accident and Injuries (T34:24 to T44:18) .......................  8  Conclusion ...........................................................................................................................  20  ## TABLE OF AUTHORITIES | Cases | Page | |----------------------------------------------------------------------|------| | Allen v. Cape May Cty., 246 N.J. 275 (2021) | 9 | | Bergquist v. Pinterman, 46 N.J. Super. 74 (App. Div. 1957) | | | certif. denied, 22 N.J. 55 (1957) | 12, 15, 16, 17, 19 | | Jimenez v. GNOC, Corp., 286 N.J. Super. 533, | 16 | | certif. denied, 145 N.J. 374 (1996) | | | Kita v. Borough of Lindenwold, 305 N.J. Super. 43 (App. Div. 1997) | 12 | | Mazzietelle v. Belleville Nutley Buick Co., | 18 | | 46 N.J. Super. 410 (App. Div. 1957) | | | Ocasio v. Amtrak, 299 N.J. Super. 139 (App. Div. 1997) | 16, 17, 18, 19 | | Townsend v. Pierre, 221 N.J. 36 (2015) | 9 | | Vadurro v. Yellow Cab Co. of Camden, 6 N.J. 102 (1950) | 9, 12 | | Wolczak v. National Electric Products Corp., | 9 | | 66 N.J. Super. 64 (App. Div. 1961) | | | Yormack v. Farmers’ Cooperative Ass’n., | 15, 16 | | 11 N.J. Super. 416 (App. Div. 1951) | | ### Statutes: - N.J.S.A. 34:5-166 ### Rules: - R. 2:10-2 - R. 4:46-2
[brief] Certain oppositions irrelevantly focus on the erroneous decision, currently under appeal, of The Honorable [...], J.S.C., who dismissed the claims against [...] in the 2015 Action, but fail to recognize that Judge Gummer’s decision explicitly held that every single claim pled by Plaintiffs against [...] in the 2015 Action, however labeled, was a legal malpractice claim.  284a.  Indeed, Judge Gummer dismissed all of Plaintiffs’ claims against [...] in the 2015 Action due to the lack of an affidavit of merit.  284a.  Accordingly, in dismissing all of the prior claims against [...] in the 2015 Action, it necessarily follows that Judge Gummer ruled that all of Plaintiffs’ prior claims against [...] were legal malpractice claims.  Therefore, the Court in the 2015 Action held that Plaintiffs never filed a non-legal malpractice claim against [...] in the 2015 Action.  As such, there is no way the Trial Court in this matter could now find that Plaintiffs’ new, non-legal malpractice claims in this matter against [...] arising solely from the discovery that he was Sole Member of [...] and controlled and operated [...] as a sham entity, and not arising out of his capacity as a lawyer, were previously dismissed – because, again, Judge Gummer explicitly found that all of Plaintiffs’ previous claims against [...] were legal malpractice claims.
[brief] This sub-section is similar to N.J.S.A. 48:12-152b(4) as it is also specific to location.  The distinction between this section and B(4) pertains to right of way, (emphasis added) and B(5) pertains to property.  (emphasis added)  Essentially, section B(5) provides immunity to railroads when individuals are using railroad property inappropriately or in violation of posted regulations.  Railroad property refers to railroad real estate or real property.  Examples of railroad property would be a railroad yard or a railroad maintenance facility or perhaps a railroad station.  Applying the facts of the instant case to this analysis, [...] was not using the property of the railroad when she was tragically struck by the train, she was upon a right of way of the railroad.  Thus, based on a plain meaning interpretation of the words of this immunity statute, N.J.S.A.b(5) cannot immunize the railroad defendants for [...]’s death.
[brief] Once a defendant establishes the validity of the arbitration agreement, the burden shifts to plaintiff to rebut the presumption of arbitration.  See Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 92, 121 S. Ct. 513, 522, 148 L. Ed. 2d 373 (2000) (opposing party has the burden of rebutting the presumption of arbitration); Brown v. 5101 N. Park Drive Operations, LLC, 2014 N.J. Super. Unpub. LEXIS 920, 2014 WL 1613648 (N.J. Super. Ct. App. Div. 2014) (same) (Da6-Da9).  D.
[directive] The department’s record keeping system shall document the following information: (a) the date and time of access; (b) the specific BWC recording(s) that was/were accessed; (c) the officer or civilian employee who accessed the stored BWC recording; (d) the person who approved access, where applicable; and (e) the reason(s) for access, specifying the purpose or purposes for access authorized pursuant to Section 10.1, and specifying the relevant case/investigation number, where applicable.  BODY WORN CAMERA POLICY | January 2022 29  11  Public Disclosure of BWC Recordings
[brief] The Special Hearing Officer shall conduct the proceedings in accord with the requirements of the Municipal Land Use Law, N.J.S.A. 40:55D-10.  The Respondents shall present expert testimony as they deem necessary to demonstrate that the Respondents’ proposal meets sound land use planning principles and satisfies applicable environmental regulations.  The Respondents shall present their testimony and evidence in support of their site plan, which may be subjected to cross-examination.  Following completion of the Respondents’ testimony and evidence, the Township may present its response and testimony regarding the [Respondents]’ site plan, which also may be subjected to cross-examination.
[brief] **CONCLUSION**  For the foregoing reasons, Defendant respectfully requests that the Court reverse and vacate Paragraph 1 of the trial court’s Order dated August 31, 2022, which awarded counsel fees and costs in favor of Plaintiff in the amount of $1,049,589.14.  Defendant also requests that the Court rule that the Plaintiff’s fee claim should be dismissed for the reasons set forth in this brief.  Alternatively, if this court does not rule that the fee claim should be dismissed, Defendant requests that this Court enter an order requiring that the trial court accept Defendant’s conclusions set forth in his submission on the remand.  Respectfully submitted, [...]  Attorneys for Defendant/Appellant, [...]
[brief] BECAUSE SUCH EVIDENCE HAD BEEN PRECLUDED, WAS IMPROPER IMPEACHMENT MATERIAL, AND WAS UNDULY PREJUDICIAL.  (1T53:4-62:21)  A.  STANDARD OF REVIEW (Not raised below)  18  B.  THE LAW OF THE CASE DOCTRINE PRECLUDED THE POLICE OPINIONS (1T55:1-3; 1T60:21-24)  18  C.  THE QUESTIONS WHICH QUOTED THE POLICE OFFICERS' OPINIONS WERE NOT VALID IMPEACHMENT MATERIAL.  (1T62:5-21)  20  D.  EVEN IF THE POLICE OFFICERS' OPINIONS WERE VALID IMPEACHMENT MATERIAL, THEY SHOULD HAVE BEEN EXCLUDED UNDER NJRE 403 AS BEING UNDULY PREJUDICIAL.  (1T62:5-11)  24  II.  THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING [...]'S DAMAGES EVIDENCE DURING THE LIABILITY PHASE.
[brief] [6T].  The State asked defendant to be sentenced to a 12-year New Jersey State Prison sentence with a four-year period of parole ineligibility on the Distribution charges and five-year sentences for the Possession convictions.  [6T4-4 to 7-4].  All of the sentences would run concurrently to each other making defendant’s aggregate sentence a 12-year sentence with a four-year period of parole ineligibility.  [6T6-12 to 7-1].
[brief] STANDARD OF REVIEW  An appellate court reviews a grant of summary judgment de novo.  Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021).  In applying the same standard as the motion judge, appellate courts “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party. ”  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).  Appellate courts “therefore must first determine whether, giving the non-moving party the benefit of all reasonable inferences, the movant has demonstrated that there are no genuine issues of material fact. ”  Walker v. Choudhary, 425 N.J. Super. 135, 142 (App. Div. 2012) (quoting Atl. Mut. Ins. Co. v. Hillside Bottling Co., 397 N.J. Super. 224, 230-31 (App. Div. 2006)).  A party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts,” Triffin v. Am. Int'l Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004), and cannot avoid summary judgment based simply on the assertion of “[u]nsubstantiated inferences and feelings,” Petersen v. Township of Raritan, 418 N.J. Super. 125, 132 (App. Div.  A plaintiff’s “self-serving assertion alone will not create a question of material fact sufficient to defeat a summary judgment motion. ”  [...], Current N.J. Court Rules, comment 2.3.1 on R. 4:46-2 (2013) (citing Martin v. Rutgers Cas. Ins. Co., 346 N.J. Super. 320, 323 (App. Div. 2002)).  Instead, the party opposing summary judgment has the burden of producing “concrete evidence from which a reasonable juror could return a verdict in his favor. ”  Housel v. Theodoridis, 314 N.J. Super. 597, 604 (App. Div. 1998) (quotation omitted).  An opposing party who offers no substantial or material facts in opposition to the motion cannot complain if the court takes as true the uncontradicted facts in the movant’s papers.  Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954).  Therefore, the essence of the inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. ”  Brill, 142 N.J. at 536 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)); BOC Group v. Chevron Chemical Co., 359 N.J. Super. 135, 150 (App. Div. 2003) (noting that motion for summary judgment should be granted if the evidence is “so one-sided that [the moving party] must prevail as a matter of law”).  II.
[brief] CONCLUSION  For the foregoing reasons, Appellant’s challenge is unsupported by the clear reading of the applicable statutory and regulatory provisions governing the Permit, and [...]’s extensive review of the Application as cited in the record.  Accordingly, Appellant has failed to show any evidence that the [...] acted arbitrarily, capriciously, or unreasonably in issuing the Permit.  Appellant’s baseless challenges should be rejected, and this Court should grant [...] deference and uphold its decision to issue the Permit.
[brief] ”  *Allstate Ins. Co. v. Howard Sav. Institution*, 127 N.J. Super. 479, 489 (Ch. Div. 1974) (emphasis added) (quoting *Finley v. United States*, 130 F. Supp. 788, 794, 796 (D.C.D.N.J. 1955)) (internal quotation marks and citations omitted).  Thus, the trial court’s application of laches to bar [...]’s sought after relief, despite [...]’s claims not being barred and [...]’s violations of the NJCFLA, constitutes an abuse of discretion and the trial court’s May 24, 2024 Order should be reversed.
[brief] The Commission emphasized that “[w]hile there is an apparent dispute regarding [the September 2022] incident, even discounting this as a disciplinary issue, [...]'s other disciplinary history supports her removal from the list. ”  AA14 n. 2 (emphasis added).  The undisputed record reflected “that [...] received major discipline which involved untruthfulness among other charges approximately seven years prior to the subject examination November 21, 2019 closing date, minor discipline approximately two and six years prior to the closing date, and counseling three years after the closing date. ”
[brief] The central issue on this appeal is that the State, for over a decade, has implemented the SFRA formula in [...] by consistently and significantly underfunding its Adequacy Budget, the spending level prescribed by the formula to ensure students the resources for a constitutional T&E education.  On motions for summary judgment, the Court below failed to analyze [...]’s claim under the standards established by the Supreme Court in *Abbott XX* for determining the SFRA’s continuing constitutionality as a remedy for the longstanding and severe violation of T&E in the *Abbott* litigation.  The failure to apply those constitutional standards to the compelling record evidence of [...]’s underfunded Adequacy Budget constitutes fundamental error and requires reversal of the decision below.
[brief] ¹⁴  The court also noted that various other jurisdictions reached the conclusion that declaratory relief is unavailable when there is no private right of action, citing *Pono v. Molokai Ranch, Ltd.*, 194 P.3d 1126, 1148 (Haw. Ct. App. 2008) (“[I]n order for a private citizen to seek a declaratory judgment that a statute has been violated, the private citizen must, as a threshold matter, have a private right of action to enforce the statute. ”); *Gore v. Ind. Ins. Co.*, 876 N.E.2d 156, 165-166 (Ill. App. Ct. 2007) (holding plaintiff lacked standing to bring declaratory judgment action because statute at issue did not confer private right of action); *Nichols v. Kansas Political Action Comm.*, 11 P.3d 1134, 1146-1147 (Kan. 2000) (refusing to grant declaratory relief under consumer fraud statute because it contained no private right of action); *Bos. Med.Ctr. Corp. v. Sec'y of the Exec. Office of Health & Human Servs.*, 974 N.E.2d 1114, 1134 (Mass. 2012) (stating that a declaratory judgment “cannot be used to circumvent a legislative judgment” denying private right of action); *Alliance for Metro. Stability v. Metro. Council*, 671 N.W.2d 905, 916 (Minn. Ct. App. 2003) (stating that where “[t]here is no private right to enforce" statute, the "Uniform Declaratory Judgments Act cannot create a cause of action that does not otherwise exist”). *Id.* at *15-16.
[brief] This was established in Appellant’s June 18, 2019, to [...] in which she made the following representation:  This is false, my grandfather owned a textiles factory in the Middle East, I have family in Paris that owns a textiles factory and I grew up around these rugs & fabrics.  I 100% testify that my rugs were damaged during this process.  [...], I will not accept you trying to do this to me as you tried to do telling me I don’t qualify for mortgage insurance (per my policy) & how you told me I got ripped off by the plumber, or how you refused to send out a company to record my damaged personal inventory because you claimed “even grandmas can do that”.  I need to be reimbursed for my damaged rugs.  I prefer to settle this but if I need to take this to court, I will.  (Pa332-333).  By the language of her email Appellant clearly intended to convey a single message – that she was an expert on oriental rugs having grown up around them with her family in the Middle East and Paris so as to pressure [...] to pay money for that portion of her claim outside of litigation.  None of this was true, as Appellant later conceded in her deposition.  Specifically, Appellant admitted that, (1) she was not even alive when her family allegedly owned a textile factory (Pa54 110:2-5); (2) she also never worked in a textile factory (Pa55 115:19-20), (3) never worked for a company that cleaned rugs (Pa55 115:21-24), and (4) never personally cleaned rugs professionally like the ones she claims were damaged in her apartment (Pa55 115:25; 116:1-8).  On this documentary record, the Trial Judge made the following finding:  I'm finding, based upon the deemed statement of material facts, that the misrepresentations were knowing and material.  You know if you're working between December -- January and December as opposed to not working.  You know if you were diagnosed not with mold but with something else as the medical records showed which is a big part of her claim and fight with the insurance company, and you would probably know the, the proper value of that iPod.  So they were all knowing and material.  According to, according to my findings today there's no genuine issue of material facts as to those, as to those.  (T 17:11-22)
[brief] [...] made clear that the “general equitable authority of the Court” was insufficient to establish such legal entitlement.  If [...] was able to come up with some other sufficient grounds for legal entitlement, however, then, by way of separate, subsequent application, he could set forth the quantity of fees requested and ask that they be awarded.  [...] failed to heed those instructions.  Rather, he waited until [...] retired and then brought a single “global” fee application in which he sought $3.5+ million in fees covering over six years, much of which the reviewing judge, [...], did not oversee.
[brief] 1.  [...]'s Motion be and is hereby granted, subject to the Court's future determination of the Per Diem Penalty, as set forth herein.  The Court's oral decision on the Motion be and is hereby incorporated into the record.  2.  The supplemental resolution memorialized by the Board on January 23, 2023, notated as Resolution PB-2023-05 (the "Supplemental Resolution"), be and is hereby invalidated, and set aside and said resolution is of no force and effect.  3.  The original resolution memorialized by the Board on December 12, 2022, referred to as Resolution PB-2022-025, be and is hereby affirmed and remains in full force and effect.  4.  **The Court finds that the Board's adoption of the Supplemental Resolution constitutes bad faith conduct.**  5.  The Court hereby awards [...]Bay reasonable counsel fees and costs incurred in connection with the Motion.  Within ten (10) days of entry of this Order, [...]Bay shall submit a Certification of Services detailing its fees and costs incurred in connection with the Motion.  ***  8.  Within ten (10) days of entry of this Order, [...]Bay is permitted to submit an application for award of a Per Diem Penalty it also sought in connection with the Motion.  [...]'s submission shall detail the basis for the claimed Per Diem Penalty, and a calculation of the amount claimed to be due and owing.  (Pa1-2 (emphasis added))  There is no finding in the Order or in the transcript of the Court’s ruling that the Board or the Township breached the Settlement Agreement or defaulted on any terms therein.  Moreover, the trial court did not enforce any provision of the Settlement Agreement when it set aside the Supplemental Resolution.  Instead, the trial court looked beyond the express terms of the Settlement Agreement and considered the past history to find that “the Board's adoption of the Supplemental Resolution constitutes bad faith conduct. ”  The Court’s granting PW relief is not supported by the record, nor is its finding of bad faith.  And, in any event, a finding of bad faith is not a basis for an award of attorneys’ fees or delay penalties and, accordingly, the August 8th Order must be set aside.
[brief] The court stated, in relevant part:  [the bidder] was unquestionably registered throughout the bidding process, although it failed to include proof to [the public entity] by way of the current Certificate.  We agree with the trial court that this was a minor discrepancy or technical omission that was properly subject of a waiver.  The first prong of the materiality test examines ‘whether the effect of a waiver would be to deprive the municipality of its assurance that the contract will be entered into, performed and guaranteed according to its specified requirements.  That [the bidder] was validly registered but had not provided an up-to-date Certificate did not deprive [the public entity] of assurance that the contract would be entered into, performed, and guaranteed.  The second prong of the test concerns whether the omission is one that defeats the purpose of competitive bidding by placing one bidder over another.
[brief] The reason for this is that a judgment extinguishes the original cause of action and makes available a new cause of action on the judgment, which constitutes a higher form of security.  . . .  This is the basis for the disparate interest rates applied by the cases to contract claims prior to, and after, judgment.  In *Shadow Lawn*, supra, 190 N.J. Super. at 318, for example, the court held that in a mortgage default case, interest should be calculated as follows:  The total unpaid principal and accrued interest should be determined as of the date the mortgage was declared in default and the full debt accelerated.  From that date until the date of entry of judgment, interest will run at the contract rate of 9½% per annum on the full unpaid principal and interest due as of the date of the mortgage was declared in default.  After entry of judgment interest will run at the legal rate “except as otherwise ordered by the court and except as may be otherwise provided by law. ”  R. 4:42–11(a); see *Hudson City Sav. Bank v. Hampton Gardens, Ltd.*, 88 N.J. 16, 22 (1981).  Likewise in *Mid–Jersey Nat’l Bank v. Fidelity–Mortgage Investors*, 518 F.2d 640 (3rd Cir.1975), in an action by a bank to recover amounts due under a note, the court applied the contract rate of interest up to the time of judgment and the rate specified in the Court Rules thereafter.  We think this is a rational approach to the issue and adopt it here.  (emphasis added).  Based on the case law identified above, there is no basis to award post-judgment interest at a rate greater than the Court Rules’ post-judgment interest rate.
[brief] THE COURT ERRED IN SENTENCING [...] BY FAILING TO MERGE THE [...]’S CONVICTION OF POSSESSION OF MARIJUANA WITH HIS CONVICTION FOR POSSESSION WITH INTENT TO DISTRIBUTE MARIJUANA AND BY APPLYING AGGRAVATING FACTORS  N.J.S.A. 2D:44-1(A)(1),(3) AND (9) (Da44 - Da46).  ...........................................................................................................41  CONCLUSION ..................................................................................................................................................45  INDEX TO APPENDIX
[brief] Under N.J.R.E. 701, a witness may offer a lay opinion only if the witness’s opinion is (1) “rationally based on the perception of the witness,” and (2) “assist[s] in understanding the witness’ testimony or in determining a fact in issue. ”  McLean, 205 N.J. at 456; N.J.R.E. 701.  Under the first requirement, the testimony must be based on the witness’s personal knowledge.  McLean, 205 N.J. at 459.  In Lazo, the Supreme Court held that it was error to allow a detective testify as to his opinion that the defendant’s arrest photo closely resembled the sketch of the perpetrator drawn by a sketch artist.  209 N.J. at 15.  The Court held it was error for the detective to tell “the jury that he believed defendant closely resembled the culprit—even though the detective had no personal knowledge of that critical, disputed factual question. ”  Id. at 22.  The Detective’s opinion “intruded on the jury’s role” because “[i]n an identification case, it is for the jury to decide whether an eyewitness credibly identified the defendant. ”  Id. at 22, 24.  The Supreme Court recently applied Lazo to a detective’s testimony identifying the suspect in a surveillance video as the defendant, concluding “it was error for [the detective] to refer to an individual depicted in the surveillance video as “the defendant” in his narration of that video.
[brief] ARGUMENT POINT I STANDARD OF REVIEW  Orders compelling or denying arbitration are treated as final orders for purposes of appeal.  R. 2:2-3(3); GMAC v. Pittella, 205 N.J. 572, 575 (2011).  This Court’s review of a motion to compel arbitration is *de novo*, and the Court need not defer to the trial court’s analysis.  *Kernahan v. Home Warranty Adm’r of Fla., Inc.*, 236 N.J. 301, 316 (2019).  Similarly, on appeal, the Court’s review of the trial court’s application of a statute is *de novo*.  *State v. Goodwin*, 224 N.J. 102, 110 (2016).  **POINT II**