ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] DEFENDANT’S ARGUMENTS DO NOT AVOID ENFORCING CONGRESS’S INTENT AS EXPRESSED IN THE ORDINARY MEANING OF THE STATUTORY LANGUAGE.  At 15 U.S.C. § 1692c(b), the FDCPA provides that “a debt collector may not communicate, in connection with the collection of any debt, with any person. ”  The Amended Complaint alleges that Defendant communicated in connection with the collection of a debt with a person.  Although there are expressed statutory exceptions, Defendant does not contend that any apply.  Therefore, the Amended Complaint states a cause of action and should not have been dismissed.
[brief] Moreover, what is also a fact is that [...] does not actually own Block: 184, Lots: 3.01, 3.02 and 3.03.  Rather such property is (subject to plaintiff separate ownership claim) owned by the State of New Jersey and is only under the dominion and control of Defendant [...] by virtue of a Tidelands Lease.  Possession and use of Block 184, Lots 3.01 is specifically subject to the terms and conditions of a January 9, 2020 “REVOCABLE LICENSE – A Rental Agreement from the State of New Jersey” (hereinafter “the Lot 3.01 Tidelands Lease”) which is in effect from May 1, 2019 to May 1, 2034 (Pa368).  The Lot 3.01 Tidelands Lease unequivocally limits its use as follows:  “… the license authorizes the continued use of this area as a municipal parking lot.  Any development of the site contrary to the use as a municipal parking lot will require a new license and new fee calculation (as appropriate).  This document is for the area described as Block 184, Lot 3.02 only …[.]  …  *** …  The license may be revoked at any time and for any purpose deemed necessary and reasonable by the Tidelands Resource Council in the Department of Environmental Protection.  Tidelands, also known as “riparian lands,” are lands now or formerly flowed by the tide of a natural waterway and are regulated by the State of New Jersey.  See N.J.S.A. 12:3-1 et seq. – “New Jersey Tidelands Act”.  This includes lands that were previously flowed by the tide but have been filled.  These lands are owned by the State and held in trust for the public.  Tidelands are stringently managed by the Tidelands Resource Council, a board of twelve Governor-appointees, along with DEP staff at the Bureau of Tidelands Management, with a charge of maintaining public access to beaches and the ocean.  Pursuant to a review of historic aerial photography (Pa1640-1655), Lot 3. 01 has always been used as a public parking area providing beach/ocean access dating back to at least 1956 and was further expanded in the 1970s.  The Redevelopment Plan here is wholly contingent on the ability of [...] to obtain clear title to Lot 3.01 from the State so that [...] can in turn transfer ownership to the designated developer who will in turn erect condominiums and eliminate all public parking.  In light of the now codified Public Trust Doctrine and the DEP’s clearly applicable “Public Access Rule”, it would appear to be illegal as contrary to those Laws and Regulations for the Tidelands Resource Council to convey the ownership of Lot 3.01 and allow elimination of all or substantial public parking, and would further violate the clear and unambiguous terms of the Lot 3.01 Tidelands Lease.  Therefore, Plaintiff argued as a matter of fact and law, that the Redevelopment Plan should be struck down as invalid because it is legally impossible for the Defendant [...] to substantially eliminate the public parking spaces that the Public Trust Statute, the DEP’s “Public Access Rule”, the Common Law Doctrine, and the Tidelands Lease, all require to be preserved for public beach/ocean access.
[brief] (452a-459a)  27.  My March 20, ‘23 letter to Judge pointed out there were outstanding issues & actions for [...]'s compliance w/Oct. 2022 Order, par. 2, incl. 3B:14-7. to file Final Informal Trust Accounting.  It noted that I had 2 lists of required info for inclusion in the Accounting.  (Exh. “AA”, Appendix Exh. “D”)  (451a-454a).  Judge never addressed these matters, even after I requested a conference.  Refuting Judge’s Claims and Rulings at Feb. 17, 2023 Hearing 29.
[brief] STANDARD FOR PARTIAL SUMMARY JUDGMENT.  In this case, Plaintiff was entitled to partial summary judgment.  R. 4:46-1 provides that a party seeking affirmative relief may move for a summary judgment or order on all or any part thereof or as to any defense.  R.4:46-2 provides that “A summary judgment or order, interlocutory in character, may be rendered on any issue in the action (including the issue of liability) although there is a genuine factual dispute as to any other issue (including any issue as the amount of damages).  Subject to the provisions of R.4:42-2 (judgment upon multiple claims) a summary judgment final in character may be rendered in respect of any portion of the damages claimed. ”  Plaintiff moved for damages through and including April 19, 2020 in the amount of $100,965.77, an amount not disputed by the Tenant, [...].  Moreover, Plaintiff sought judgment against [...], [...] and [...] on their guarantees for the amount owed by [...], $100,965.77.  In addition, Plaintiff is entitled to judgment against [...], [...], [...] and [...], for attorney’s fees pursuant to Paragraph 6 of the Lease, and the Final Judgment by Consent, if the Court rules that Defendants guaranteed the obligations of [...] after May 11, 2016.  Pa14.  This will leave for remand to trial damages as to actual expenses incurred following Tenant departure for Tenant damages to leasehold of $27,304.47, and estimated costs due to Tenant failure to maintain premises and remove alterations installed by Tenant in the amount of $138,872.00.  Pa14.  IV.
[brief] and actuarial assumptions, Db30—subjects the Department, ALJ, and Commissioner have admitted are grounded in regulations and a different source of authority than the statutory term “excessive. ”  As [...] showed, the Department had a duty to ensure “adequate notice, a chance to know opposing evidence, and the opportunity to present evidence and argument in response. ”  Pb19 (citation omitted).  “[U]nstated reasons” cannot justify agency decision post hoc.  Pb16 (citing Berta v. N.J. State Parole Bd., 473 N.J. Super. 284, 303–04 (App. Div. 2022)).  Nothing about the disapproval letters met these requirements given the “excessiveness” ruling that popped out of the end of administrative review.
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[brief] ...................................................................20  A.  The Legislature Has Explicitly, and Repeatedly, Mandated that Personal Choice Votes are Void if Cast for a Candidate who Appears on the Ballot.  ..20  B.  The Appellate Division Has Upheld the Legislative Mandates that Personal Choice Votes are Void if Cast for Candidates on the Ballot ..........24  C.  Courts Have Consistently Upheld the Invalidation of Ballots that Violate Technical Statutory Requirements, Even Absent Bad Faith ..................................30  CONCLUSION .........................................................................................................................35
[brief] (5T14-2 to 7)  [...]’s review of Plaintiff’s medical records led him to conclude that Plaintiff’s Meniere’s disease was not stable prior to the incident in question.  (5T14-13 to 21)  [...]’s records from February and March of 2013 show that Plaintiff’s condition “was definitely not stable at that time. ”  5T15-8 to 24)  [...]’s records from February 20, 2013 noted that Plaintiff was complaining of “increasing symptoms of his Meniere’s disease.  (5T16-7 to 11)  There were audiograms showing fluctuating hearing loss as well.  (5T16-18 to 21)  [...] also reviewed Plaintiff’s medical records post July 29, 2013, which included records from [...], [...], dated August 28, 2013.
[brief] On April 11, 2023, upon motion by Appellant, the Honorable [...], J.S.C. entered an Order finally vacating the judgment of conviction for Appellant’s violation of probation (VOP) and dismissed the judgment of conviction (JOC) against Appellant with prejudice.  Appellant subsequently served a Notice of Claim in May of 2023 on multiple defendants, including the Defendants in the present matter.  Appellant is subject to file an Amended Complaint in this matter given the most recent disposition of the criminal proceeding in Appellant’s favor and, now, pending the outcome of this appeal as the outcome of this appeal will determine whether an amended complaint is required or the filing of an entirely new action.  On October 16, 2023, Defendant [...] and its Defendant members moved for Summary Judgment.
[brief] On March 22, 2017, a Cumberland County Grand Jury returned Indictment No. [...], charging defendant, [...], with first-degree murder, in violation of N.J.S.A. 2C:11-3(a)(1) (Count One); possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a)(1) (Count Two); unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b)(1) (Count Three); and fourth-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1) (Count Four).  (Da1-2).  Defendant’s father, [...], and brothers, [...] and [...], were charged in the same indictment with second-degree conspiracy to commit aggravated assault, attempting to cause serious bodily injury (Count Five).  (Da2).  Defendant was tried by a jury before the Honorable [...], J.S.C., over five days from January 17 to 24, 2018. (8T-13T).  On January 29, 2018, the jury found defendant guilty of the lesser-included offense of second-degree manslaughter (Count One), possession of a weapon for an unlawful purpose (Count Two), unlawful possession of a weapon (Count Three), and fourth-degree aggravated assault (Count Four).  (16T5-3 to 6-10; Da3-6).  On March 23, 2018, [...] sentenced defendant on Count One, second-degree manslaughter, to ten years’ imprisonment with an 85% parole disqualifier, followed by three years of parole supervision, under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.  (17T70-8 to 15; Da6).  He imposed a consecutive sentence of ten years’ imprisonment on Count Three, unlawful possession of a weapon.  (17T70-17 to 23; Da6).  The remaining counts merged into Count One.  (17T70-16; 17T70-24 to 25; Da6).  Defendant filed a direct appeal.
[brief] Almost immediately upon beginning its initial presentation to the Planning Board at the March 20, 2023, hearing, Plaintiff’s initial presenter stated the following:  So we have two intersections, one at Fire Road and Tilton and the other one is going into the shopping center.  So the presumed reason for that separation requirement, from what we've seen over the years, is a safety concern.  Fair enough.  But we're going to present testimony that there is no safety issue at the location we have.  In fact, there's no study, no study that's ever shown that being close to an intersection with a digital billboard or other billboards is safely concerned.  There are studies that show the contrary, that when you do a before and after analysis, when you add a digital board or a non-digital board near an intersection, there's no change in traffic accidents.  (3/20/23 Transcript @ T52:8-T52:20).  After initially noting the presumed safety concern, Plaintiff’s next opening remark point to the Planning Board on March 20, 2023, was to warn the Planning Board that Plaintiff contemplated a constitutional challenge to the ordinance if the variance were denied.
[brief] ”  *Kerr*, 295 N.J. Super. at 158.  In evaluating the propriety and need for the deposition of an opposing attorney, courts should consider: (1) “the relative quality of the information purportedly in the attorney’s knowledge;” (2) “the availability of the information from other sources that are less intrusive into the adversarial process, i.e., the extent to which all other reasonable alternatives have been pursued to no avail;” (3) “the extent to which the deposition may invade work product immunity or attorney-client privilege;” and (4) “the possible harm to the party’s representational rights by its attorney if called upon to give deposition testimony. ”  Id. at 159.  In Kerr, the Appellate Division expressly recognized that circumstances exist under which a party’s attorney may be compelled to submit to a deposition:  “For instance, . . . where an attorney is a fact witness in the sense that the attorney has observed or participated in the underlying transaction or occurrence giving rise to the cause of action, the presumption in favor of a protective order may be overcome. ”  Id. at 159-60; see also Johnston Dev. Grp., Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348, 352 (D.N.J. 1990) (“The deposition of the attorney may be ‘both necessary and appropriate’ where the attorney may be a fact witness, such as an ‘actor or viewer,’ rather than one who ‘was not a party to any of the underlying transactions giving rise to the action. ’” (citations omitted)).  Here, the trial court’s Discovery Order is premised on a misapplication of the law.  During oral argument, the trial court found that the discovery sought from [...] was privileged, that Plaintiff failed to overcome the presumption in favor of a protective order, that [...] was not a fact witness, and that the information sought could have been “directly and easily” sought from [...].  (1T22:6-19.)  These findings are unsupported by the motion record and, as explained below, completely ignore the Appellate Division’s clear guidance in Kerr.  See Kerr, 295 N.J. Super. at 159-60.
[brief] Chapter 230, Schedule E “Off-Street Parking Requirements” shall be amended as follows (see attached):  - Codify amendment to parking requirement for “residential health care facilities” already adopted in 2019 as part of the Housing Element & Fair Share Plan ordinances (R-27F Zone).  - Rename “medical clinics and laboratories” as “medical offices. ”  - Amend parking requirement for “building materials and contractor’s yards” to refer to “outdoor storage area” instead of “outdoor display area. ”  SECTION 27.
[brief] (Pa417)  Counsel for Appellants contracted COVID-19, so at the January 24, 2022 meeting, the application was carried to the next meeting on February 28, 2022.  (Pa418)  The ZBA did not reach the application on February 28, 2022, so it was carried to March 28, 2022.  (Pa417)  On March 28, 2022, Applicants began their presentation and each Applicant [...], his architect, and surveyor gave their direct testimony before the meeting was adjourned and the application was carried to May 23, 2022.  (Pa412-Pa494)
[brief] However, as explained by the references relied upon by Appellants in their own brief, the Water Quality Planning Act (“WQPA”), N.J.S.A. 58:11A-1 et seq., and the NJDEP’s Water Quality Management Planning Rules specifically relate to proposed wastewater treatment facilities, and NJDEP has specifically found in its rules that projects like [...]’s are consistent with the relevant areawide WQMP.  “[T]he WQPA mandates the creation of wastewater treatment management planning areas and authorizes the DEP to set water quality standards, implement areawide waste treatment management plans within each of the planning areas, and adopt rules and regulations to effectuate the objectives of the WQPA. ”
[brief] Statement of Facts  6  POINT I:  The Court erred and abused its judicial discretion 13 in failing to enforce the order of 1) 7/20/2012 (DA53) to hold a hearing, on the record, and 2) the Order of 1/11/2022 (DA76) to provide Defendant a complete “full accounting” and to provide “a credit for any overpayments or improper garnishments” from the period commencing from October 1, 1998 to the POINT I:  The Court erred and abused its judicial discretion in failing to enforce the order of 1) 7/20/2012 (DA53) to hold a hearing, on the record, and 2) the Order of 1/11/2022 (DA76) to provide Defendant a complete “full accounting” and to provide “a credit for any overpayments or improper garnishments” from the period commencing from October 1, 1998 to the present date. ”  Re: Order of 5/12/2023 (DA14), Order of 3/30/2023(DA20)  POINT II:  The Court erred and abused its judicial discretion not only in overlooking or by mistake or by misapplication of law failing to comprehensively review [...]’s alleged “accounting” and the missing and overlooked credits duly issued by court Orders, but given the evidence of [...]’s withdrawal of decades of erroneous account postings and audits, the Court erred and abused its judicial discretion and its obligation to ensure the accurate enforcement of its Orders in a manner so as to manifestly offend the interests of justice and equity.
[brief] The trial court (Hon. [...], P.J.Cv., now retired) heard oral argument on June 20, 2023 and reserved decision.  (See 1T30 and 72-21.)¹  The matter next came before the trial court on July 18, 2023.  At that time, the trial court announced its ruling granting [...]’s motion and specifically setting aside the January 23rd Resolution, adjudging legal fees were due and owing and (2T5-23) and permitting additional submissions as to [...]’s request for delay penalties.  (2T13-2)  In his ruling the Judge explained his rationale:  I quite frankly find this is a tactic in a long line of tactics that [...] has utilized to delay meeting its constitutional obligation of affordable housing.  I incorporate by reference [...]’s October 19th 2020 missive that was - oh, I don’t know.  I’ve – you read it.  It must have taken you – it was 12 pages.  But it lists chapter and verse of all the delay tactics and the failures to mediate not just with Avalon, but with failure to approve other interveners’ applications that they contend that we were settled with.  And we said well do we have anything in writing.  And these things lingered on and lingered on.  And quite frankly I did at that time revoke the immunity.  That was back on November 10th of 2020.
[brief] However, an accident reconstructionist is not necessary here because the Plaintiff will testify about how the accident happened.  In fact, Plaintiff testified that he lost control and crashed after his motorcycle hit the expansion joint which connects the road and the overpass.  (Pa0523 at 18-21);(Pa0522 at 16-19).  Not only is Plaintiff’s testimony admissible under N.J.R.E. 601 and N.J.R.E. 701, but it must be accepted as true pursuant to Rule 4:46-2.  Plaintiffs should not be required to utilize an accident reconstructionist expert when the Plaintiff himself can testify as to the cause of his accident; particularly in light of the fact that there is no other evidence that the accident happened another way.  Stated differently, this is Plaintiff’s version of the accident which in this setting must be accepted.  Finally, [...] criticizes Plaintiffs’ expert for not inspecting the condition.  However, none of the liability experts had the opportunity to inspect the condition because it was re-paved in order to correct the settlement issue.  (Pa1396); (Pa1397).  Nevertheless, the condition was inspected by two different groups of engineers on two separate occasions and both groups identified the settlement and recommended that it be fixed.  (Pa1193); (Pa1350).  The recommendation to fix the settlement creates the inference that it was dangerous.  In fact, ultimately the settlement was fixed.  (Pa1396);(Pa1397).  The fact that it needed to be fixed is also evidence that it was dangerous.  Otherwise, one may ask rhetorically, why did it need to be fixed?  Is it not a fair inference, if not a compelling one, that the settlement needed to be fixed because it posed a danger to the traveling public?  As Urban engineer [...] said, if it was not causing a problem for the traveling public then it would not have needed to be fixed.  (Pa0698 at 100:5-13).  Again, Plaintiffs’ expert was permitted to rely on this evidence in support of his opinions.
[brief] And I had even clarified that factual finding, by informing the trial court of my understanding of his rulings, which was that what he had meant by "hiding", was I would then need to prove "an act of concealment."  The trial court did not then say that my understanding of his rulings was incorrect.  So to the extent that my opening brief suggested otherwise, that was an inaccuracy on my part, and I apologize for any confusion, and for not being more accurate with presenting my arguments.
[brief] Yet the Supreme Court declined to explicitly extend this same requirement to a request to search something other than a motor vehicle, such as a residence, as is the case here.  *State v. Domicz*, 188 N.J. 285, 305-08 (2006); *State v. Birkenmeier*, 185 N.J. 552, 564 n.3 (2006).  But even if the *Carty* rule applies when police conduct a consent search of a residence immediately following a lawful motor-vehicle stop, officers met the standard here.
[brief] The judge's concern regarding the families or other spectators mingling with the prospective jurors could also have been addressed by an order requiring observers to be segregated from prospective jurors, such as by keeping some of the prospective jurors in other parts of the courthouse until they were needed in the courtroom.  The judge might even have arranged for temporary use of a larger courtroom for jury selection, and then moved the balance of the trial back to his own courtroom.  [Cuccio, supra, 350 N.J.Super. at 265–66, 794 A.2d 880.]
[brief] While not under any obligation to review defendant’s citation of an unpublished case (R. 1:36-3), People v. Kruckenberg, 2019 IL App (3d) 170505-U (2010), [...] found Kruckenberg, which also involved a traffic stop conducted by [...], but which had occurred on August 3, 2015 or 19 months before the officer’s stop of [...] on February 28, 2017, to be factually inapposite to the facts of this case.  (Da20).  In Kruckenberg, the Illinois appellate court first found that [...] prolonged the traffic stop by his “in-vehicle” conversation with Kruckenberg, which protracted the warning writing process.
[brief] ”  *State v. Dunbrack*, 245 N.J. 531, 545 (2021).  “[T]he right to have the jury consider lesser included offenses implicates ‘the very core of the guarantee of a fair trial. ’”  *State v. Short*, 131 N.J. 47, 53 (1993) (quoting *State v. Purnell*, 126 N.J. 518, 531 (1992)).  “[S]o paramount is the duty to insure a fair trial that a jury must deliberate in accordance with correct instructions even when such instructions are not requested by counsel.
[brief] Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S. Ct. 1099, 1105, 55 L. Ed. 2d 331, 339 (1978) (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L. Ed. 646, 651 (1872)).  Pasqua v. Council, 186 N.J. 127, 150 (2006).  New Jersey frequently follows federal law with respect to civil rights claims.  The NJCRA was modeled after the Federal Civil Rights Act of 1871, 42 U.S.C.A. §1983.
[brief] C.  Prejudice is No Longer a Viable Factor  As to the final Cole factor, whether Plaintiff has suffered any prejudice, it is immaterial under the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, and it is not a factor to consider when dealing with either an express or implied waiver.  In 2022, the United States Supreme Court held that under the FAA even in an implied waiver situation, prejudice, i.e. “detrimental reliance,” should not be a consideration.