ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] 12  I.  Introduction and Standard of Review .........................................................  12  II.  The Preexisting Deterioration of the Stairs and the Defendants’ Recent Paint Job Made the Stairs Unreasonably Dangerous Upon a Mere Trace of Freezing Rain, Raising a Genuine Issue of Material Fact for the Jury and Making the “Ongoing Storm” Doctrine of Pareja Inapplicable.  (Pa1-3; Pa4-7; Pa8-10)  .........................................................................................  14  A.  Condominium Premises Liability, In General ..............................................  14  B.  [...]’ Report is Sufficient to Create a Genuine Issue of Material Fact as to Whether the Deterioration in the Stairs, Without Reasonable Repairs or Maintenance, Allowed Water Infiltration and Freezing and Caused an Unreasonably Dangerous Condition, Obviating the Applicability of the “Ongoing Storm” Doctrine of Pareja.  (Pa1-3; Pa4-7; Pa8-10)  .........................................................................................  16  C. [...] Was Allowed to Give His Opinion Based on His Personal Perception that the Stairs Became “Sleeker” and “Rougher in the Rain to Navigate or When They’re Wet,” Thereby Creating a Genuine Issue of Material Fact as to Whether [...]’s Paint Job on the Stairs Caused an Unreasonably Dangerous Condition, Obviating the Applicability of the “Ongoing Storm” Doctrine of Pareja.  (Pa1-3; Pa4-7; Pa8-10)  .........................................................................................  21  D.  The Trial Court Improperly Adjudged a “Battle of the Experts” and Wrongly Granted Summary Judgment by Giving [...]’s Expert Report More Credence Than [...]’ Expert Report, Where the Conflicting Reports Raised a Genuine Issue of Material Fact as to Whether There was a Preexisting Dangerous Condition of the Defendants’ Making That Precluded Application of the “Ongoing Storm” Doctrine of Pareja.  (Pa1-3; Pa4-7; Pa8-10)  ..........24  CONCLUSION  .........................................................................................................................28
[brief] The Supreme Court’s recent decision in Robey v. SPARC Group has no bearing on ascertainable loss under the facts alleged in this action.  As discussed in the Appellants’ initial brief, the New Jersey courts have repeatedly held that imposition of an improper debt, even if unpaid, constitutes actionable ascertainable loss under the Consumer Fraud Act (CFA).  This principal was expressly recognized by the Supreme Court in Cox v. Sears Roebuck & Co., 138 N.J. 2 (1994), which stated, “We conclude that an improper debt or lien against a consumer-fraud plaintiff may constitute a loss under the Act, because the consumer is not obligated to pay an indebtedness arising out of conduct that violates the Act. ”  Id. at 23.  See also Atlantic Ambulance Corp. v. Cullum, 451 N.J. Super. 247, 253-54 (App. Div. 2017); Joy Systems, Inc. v. FIN Associates, 2018 WL 2922988 (App. Div.), cert. denied, 236 N.J. 33 (2018).
[directive] In the alternative, the Superintendent may specify a duty position within a station in which event the member in that duty position may be authorized to review and approve charging decisions.  Nothing in this paragraph limits a County Prosecutor’s authority to impose conditions or limitations on the approval authority of a State Police member and/or duty assignment designated by the Superintendent.  Designated Supervisory Officers shall have authority to review/approve charging decisions only in cases from their own department.  They shall not be authorized to review or approve a charging decision for any other agency.  V.
[brief] THE LAW DIVISION ERRED IN FINDING THAT OFFICER ORDWAY HAD PROBABLE CAUSE TO ARREST DEFENDANT (Aa041-049).  The Law Division further erred in finding that the State proved that [...] had probable cause to arrest Appellant by a preponderance of the evidence.  In New Jersey, probable cause “is a well-grounded suspicion that a crime has been or is being committed. ”  State v. Moore, 181 N.J. 40, 45 (2004).  “Probable cause exists where the facts and circumstances within . . . [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed. ”  Id. at 46 (alterations in original).  When determining whether probable cause exists, courts look at the totality of the circumstances.  *Id.*  The Law Division erred in crediting [...]’s testimony in finding that [...] had knowledge of circumstances sufficient to create probable cause for an arrest.  (Aa047).  While the Law Division, in a trial *de novo* on appeal from the municipal court, is required to give due deference to the municipal judge’s determinations regarding witness credibility, that deference need not be controlling.  *Robertson*, 228 N.J. at 148.  This is especially true where, as here, the witness’s testimony is inconsistent and otherwise incredible.  See *id.*  Here, [...]’s testimony contained instances of forgetfulness such that [...] should not have credited same in finding that the State proved probable cause to arrest by a preponderance of the evidence.
[brief] In State v. Washington, 2022 Ohio 1426 (Ohio Ct. App. 2022), the Court of Appeals for the Second Appellate District rejected the defendant’s claim that step and stair (elevation) data extracted from the app should not have been admitted at trial through the lay testimony of the detectives who analyzed the phone using a Cellebrite extraction program.  *Id.* at ¶153-165.  In *Washington*, the defendant alleged that he was sleeping at his mother’s one-story home at the time of the offenses.  The Fitbit app data demonstrated that at the time at issue, the defendant was walking around and climbing steps.  *Id.* at ¶156.  In rejecting defendant’s claim the Court held:
[brief] Here, plaintiff, because of his head injury, may not be able to say with certainty what caused him to fall, but based upon the evidence presented, a jury could reasonably have concluded that the defendants’ negligence, i.e. failure to see to the construction site being properly maintained for safety, caused plaintiff’s fall and injuries.  In point of fact, there is virtually no other conclusion a jury could reach given the undisputed evidence.  Under normal circumstances, persons walking do not fall unless they come into contact with some obstruction.  Here, the only obstruction with which [...] could have come into contact was the plywood strewn in front of the dumpster.  It was slippery because of the snow covering it and a jury could logically conclude that [...] slipped on the plywood as he was discarding debris in the dumpster.
[brief] SUPERIOR COURT OF NEW JERSEY APPELLATE  DIVISION  Docket No.: [...]  On Appeal from the Superior Court of New Jersey, Law Division- Middlesex County Sat Below: Hon. [...], J.S.C.  Docket No.: [...] PLAINTIFFS-RESPONDENTS/CROSS-APPELLANTS’ REPLY BRIEF AND SUPPLEMENTAL APPENDIX IN SUPPORT OF CROSS-APPEAL [...]
[brief] [...] was killed when she was struck by a [...] train on December 24, 2019, at approximately 4:33 PM.  When she was fatally struck, [...] was walking in a crosswalk near the southeast corner of the intersection of [...] and --- \(^2\) “T\(_\)” refers to Oral Argument Transcript, dated February 2, 2024.  [...] in [...], [...].  Pa777.  This was drawn by [...] depicting the “point of impact” with an “x” within the crosswalk.  Pa777.  [...] testified in his deposition taken March 31, 2022, that [...] was within the crosswalk when she was struck.
[brief] *State v. Case*, 220 N.J. 49, 64 (2014).  Its failure to do so requires a resentencing.  Finally, the court gave medium to heavy weight to aggravating factor three and “somewhat heavy” weight to aggravating factor six, but it should have given minimal weight, if any, to those factors because [...]’s criminal history was mostly remote, largely drug-related third-degree offenses, and he had no violent homicides or assaults in his past.
[brief] ” (Db49).  Aggravating factor three is applicable where the trial court determines there is a “risk that the defendant will commit another offense. ” (N.J.S.A. 2C:44-1(a)(3)).  A defendant’s repeated history of criminality can support the trial court’s conclusion that aggravating factor three is applicable.  (State v. Rivera, 249 N.J. 285, 300 (2021); see also Dalziel, 182 N.J. at 502 (finding that a defendant’s “uninterrupted history of criminality” justified the finding of aggravating factor three)).  Aggravating factor six concerns the “extent of the defendant’s prior criminal record and the seriousness of the offenses of which [he] has been convicted. ”  Provided that they are not given the weight of a criminal conviction, a trial court may consider defendant’s history of arrests and juvenile offenses so that it may possess “the fullest information possible concerning the defendant’s life and characteristics. ” (State v. Marzolf, 79 N.J. 167, 176-77 (1979)(quoting Williams v. New York, 337 U.S. 241, 247 (1949)).  The court properly found that aggravating factors three and six applied based on defendant’s extensive history of offenses, namely: his seven felony convictions from ages eighteen to twenty-nine, one of which was for the unlawful possession of a handgun and carried a three-year term without parole; six disorderly persons convictions; three State Prison terms; a violation of probation leading to termination in 2018; a record of an escape, and; a record of a parole violation.
[directive] FROM: [...], Attorney General DATE: May 8, 2020  SUBJECT: Directive  Revising Firearms Qualification and Requalification Standards for New Jersey Law Enforcement  On March 20, 2020, I issued Attorney General Law Enforcement Directive 2020-2, a Directive  At that time, I determined that Updating Certain Reporting, Training, and Certification Deadlines.  it was not yet necessary to revise New Jersey’s twice-annual firearm requalification requirement, outlined in Semi-Annual Firearms Qualification and Requalification Standards for New Jersey Standards”).1  Law Enforcement (“the I indicated that my office would continue to monitor the situation and revisit firearms requalification requirements should the circumstances require.  Over the past several months, many law enforcement firing ranges have been closed, which makes it harder for law enforcement agencies to complete the first round of requalification required by the Standards.  In addition, the assets of law enforcement agencies have been stretched thin addressing the many challenges created by the battle against the COVID-19 pandemic.  Protecting the well-being of our residents during this unprecedented emergency, and ensuring the health and well-being of our law enforcement professionals, must always be my primary goals.
[brief] (19T 29-3 to 30-5; 19T 55-12 to 21)  But he admitted that he did not know what defendant wore at the time of the incident, and that if defendant wore a hooded sweatshirt, he might have avoided any scratches even if there had been a struggle.  (19T 59- 24 to 60-2; 19T 81-18 to 20)  [...] reviewed security footage, from a neighbor’s camera, that recorded from 4 to 8 p.m. on the day of the incident, and, corroborating [...]’s account, he did not see a car drop off [...] at the [...].
[brief] 37  TABLE OF JUDGMENTS, ORDERS, AND RULINGS BEING APPEALED November 10, 2021 Order ........................................ Da 1-2 November 9, 2023 Order ........................................ Da 3-4 # TABLE OF AUTHORITIES ## Cases - **Benjoray, Inc. v. Acad. House Child Dev. Ctr.**, 437 N.J. Super. 481 (App. Div. 2014) .................................................. 10 - **Bowser v. Bd. of Trs., Police & Firemen's Ret. Sys.**, 455 N.J. Super. 165 (App. Div. 2018) ........................................... 11 - **Brown v. Brown**, 348 N.J. Super. 466 (App. Div. 2002) ......................... 13 - **Cohen v. Radio-Electronics Officers Union, Dist. 3, NMEBA, AFL-CIO**, 275 N.J. Super. 241, 250 (App. Div. 1994) ....................... 22 - **DeNike v. Cupo**, 196 N.J. 502, 517 (2008) .................................... 7 - **Evans v. Atl. City Bd. of Educ.**, 404 N.J. Super. 87 (App. Div. 2008) .... 15-16 - **Fanarjian v. Moskowitz**, 237 N.J. Super. 395 (App. Div. 1989) ............. 21 - **Feliciano v. Faldetta**, 434 N.J. Super. 543 (App. Div. 2014) .............. 30, 32-33 - **Franzoni v. Franzoni**, 60 N.J. Super. 519 (App. Div. 1960) ............... 10-11 - **Furst v. Einstein Moonjy, Inc.**, 182 N.J. 1 (2004) .......................... 30, 32, 35 - **Great Atlantic & Pacific Tea Co., Inc. v. Checchio**, 335 N.J. Super. 495 (App. Div. 2000) ............................................. 8-9, 13 - **Green v. Morgan Props.**, 215 N.J. 431 (2013) .................................. 24 - **Hansen v. Rite Aid Corp.**, 253 N.J. 191 (2023) ............................... 31 - **In re Advisory Letter No. 7-11 of the Supreme Court Advisory Comm.**, 213 N.J. 63 (2013) ......................................................... 6-7 - **In re Somerset Reg'l Water Res., LLC**, 949 F.3d 837 (3d Cir. 2020) ...... 25 - **Innes v. Marzano-Lesnevich**, 435 N.J. Super. 198 (App. Div. 2014)
[brief] He also admitted that when he initially went into the backyard on [...], he did not see that person, let alone see them hopping a fence, and did not find anything of evidentiary value.  (2T 121-3 to 122-2)  He also agreed that his radio description that was limited to a male with a light hoody was “not very specific” and that he has “seen lots of males wearing light-colored hoodies” in [...].
[brief] [...] maintains that the Redevelopment Ordinances control pursuant to the Long Branch Rule, and under the Redevelopment Ordinances, compliance with the SRD Rule is not required.  Notwithstanding the foregoing, the Project still complies with the SRD Rule.  1.  The Project Is Visually Compatible With Its Surroundings.  Appellant’s argument that the Project fails to comply with the visual compatibility requirement under Subsection C of the SRD Rule is wholly undermined by the evidence in the record.  Ab16; see Aa33.  The Setback Survey & Analysis showed that 23 out of 45 similarly situated buildings, including buildings in the Beachfront South Sector, were not set back in accordance with the SRD Rule.  Aa23-28; 2Ra141-48; see Aa33.  Appellant asserts that “the two buildings to the immediate south of [...],” specifically, “Block 216, Lots 1.01 and 10,” “are substantially stepped back,” and misleadingly implies that these buildings comply with the SRD Rule.  Ab11.  The buildings located on Block 216, Lot 1.01 and Block 216, Lot 10 were analyzed as part of the Setback Survey & Analysis, and were found not to be in compliance with the SRD Rule’s setback requirement.  Aa25; 2Ra143.  The Setback Survey & Analysis was provided to the Department, and it acknowledged in the Settlement Agreement that “many buildings in the vicinity of the Project do not comply with the Step Back requirement, as a result of which the Project’s design will not have a significant adverse effect on the scenic resources of the coastal zone.
[brief] The standard for appellate review of the grant or denial of summary judgment is de novo, using the same legal standard as the trial court.  See Dugan Constr. Co. v. N.J. Tpk. Auth., 398 N.J. Super. 229, 238 (App. Div.), certif. denied, 196 N.J. 346 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).  Summary judgment is appropriate and should be granted when the pleadings and admissible evidence submitted show “that there is no genuine issue as to any material fact challenged and that the moving party is entitled to judgment as a matter of law. ”  R. 4:46-2(c).  The purpose of the summary judgment procedure is to eliminate needless trials.  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 521, 540-42 (1995).  New Jersey’s Supreme Court encourages trial courts to grant summary judgment “when the proper circumstances present themselves. ”  Id. at 541.  To avoid summary judgment, the non-moving party must submit properly admissible evidence that creates a genuine issue of material fact for each challenged essential element of their claims.  Id. at 529, 540 (citing R. 4:46-2).  The evidence must be “sufficient to permit a rational factfinder to resolve the alleged dispute” in the non-moving parties’ favor.  Id. at 540.  Here, there were no material facts in dispute, and [...]’s claims were invalid as a matter of law.  Therefore, [...]’s entry of summary judgment was proper and should be affirmed.
[brief] The parties and their counsel mutually agreed to opt out of mediation in an e-mail exchange on July 16, 2021.  (Pa274).  On August 27, 2021, defendants served discovery demands on plaintiff, including Interrogatories, Demands for Production of Documents, Requests for Admissions, a Request for Inspection of the Santa Fe and a Notice to Depose the Plaintiff. (Pa44).  Plaintiff served her written discovery responses on defendant on December 1, 2021.  Ibid.  Also on December 1, 2021, plaintiff served document subpoenas on two of the three Hyundai dealerships that serviced the Santa Fe: [...] in [...] and [...] in [...] (Pa43; Pa).  On December 9, 2021, defendant moved to quash both subpoenas.  (Pa43).  Plaintiff’s counsel opposed the motion and it was denied.  (Pa43-44).  Plaintiff was deposed on December 23, 2021.  (Pa44).  On February 20, 2022, defendant’s expert inspected the Santa Fe and its expert report was served on plaintiff, along with supplemental discovery, on March 14, 2022.  Ibid.  According to the expert report, the Santa Fe had an odometer reading of 93,723 miles on the date of inspection (indicating that the 10-year/100,000-mile power train warranty was still in effect).  Ibid.  A pre-trial conference was held before the Honorable [...], J.S.C. on May 31, 2022 and a trial date was scheduled for July 25, 2022.  Ibid.  The parties agreed to and requested non-binding arbitration on June 3, 2022 and an arbitration hearing was held on July 27, 2022.  Ibid.  At the hearing, the arbitrator awarded plaintiff $7,500.00 in consequential damages plus attorney’s fees and costs to be decided by the Court.
[brief] Following its decision in Mittra, the Appellate Division, in Romeo v. Seton Hall Univ., 378 N.J. Super. 384, 395 (App. Div. 2005), further held that “[a] contractual relationship cannot be based on isolated provisions in a student manual. ”  Thus, it follows that Plaintiff-Appellant cannot claim a contractual relationship with [...] based on one isolated iteration of one page of [...]’s website – divorced from all of the other written materials that simultaneously (1) gave Plaintiff-Appellant advance notice of the 3.0 GPA requirement, and (2) explicitly reserved [...]’s right to create and/or modify its academic curricula at any time.
[brief] The Complaint in this case was filed in 2019.  That same year the Appellate Division decided a case with similar facts wherein the plaintiff had appealed from two orders dismissing his complaints challenging tax abatements awarded by [...].  In *Feld v. City of [...], et al.*, A-1272-16T4, (2019) N.J.Super. Unpub., 2019 WL 2303248 (App.Div. 2019), *cert. den.* *Feld v. City of [...], et al.*, 2020 N.J. WL 808315 (N.J. Feb. 6, 2020)(Pa143), the appellate court rejected the contention that his standing derived from the real estate taxes he pays on property located in Essex County, ruling that he lacked standing to challenge [...]’s decision as he neither resided in [...] nor paid real estate taxes there.  The Complaint in the present case was brought against Essex County defendants-respondents  [...], Essex County Executive [...] and the [...] (formerly “Freeholders,” hereinafter collectively referred to as the “County defendants”) along with the State, [...] and [...].  defendants-respondents.  It alleges that as non-residents of the City of [...] but taxpayers of the County, plaintiffs have standing to challenge statutes applied by [...] in granting long term tax abatements.  The plaintiff’s claims against the County defendants are based on the premise that [...] wrongfully approved a 30-year tax abatement to [...]. pursuant to the New Jersey Housing and Mortgage Financing Agency Law (“NJHMFA”), *N.J.S.A. 55:14K-37(b)* as opposed to the Long Term Tax Exemption Law ("LTTEL"), N.J.S.A. 40A:20-1 to 22, with the plaintiff arguing that the former statute was repealed by the latter such that the County should have collected 5% of quarterly revenue payments under LTTEL.  Importantly, under the NJHMFA there is no requirement that a municipality remit a 5% service charge to the County as is the case under LTTEL.  However, the Appellate Division in the case of In re Approval of a Financing Commitment for the Project known as [...] ("[...]"), Docket No. [...], Unpub., decided May 31, 2022, (Pa267), rejected outright plaintiff’s contention that LTTEL repealed the NJHMFA law, finding no merit in plaintiff’s argument.  While this case is unpublished, it offers guidance in speaking to the central premise of plaintiff’s case, with its disposition having been eagerly awaited by plaintiff, and is binding on the parties for purposes of res judicata, as will be explained below.  **PROCEDURAL HISTORY**
[brief] ..................................................................................21 POINT 6 – [...] Has Provided No Basis For This Court to Apply Estoppel .................................................................24 POINT 7 - The Trial Court Properly Dismissed [...]’s Counterclaims against [...]..................................................................................29  A.  Because the Court Properly Found that [...] Owed No Duty to [...] Arising Out of the Underlying Litigation, [...] Cannot Succeed with His Breach-of-Contract-Based Counterclaims ......30  B.  Because the Court Properly Found that [...] Owed No Duty to [...] Arising Out of the Underlying Litigation, [...] Cannot Succeed with His Bad-Faith-Based Counterclaims.......................30  POINT 8 - The Trial Court Adequately Stated Its Reasons for Granting Summary Judgment ..............................................................................31
[brief] The reach of the Entire Controversy Doctrine was at its most expansive following the Court's 1995 decisions in *Circle Chevrolet Co. v. Giordano*, *Halleran & Ciesla, P.C.*, 142 N.J. 280 (1995).  Eventually the Court moderated its approach by reinterpreting the doctrine as it related to parties and certain claims and, in that context, by directing the Civil Practice Committee to propose revisions to the relevant *Rules*.  See *Olds v. Donnelly*, 150 N.J. 424, 444–49 (1997).  *Rule* 4:5–1(b)(2) was amended as part of changes made in 1998 to the *Rules* governing mandatory joinder.  Our Supreme Court finally resolved these issues concerning non-joinder of attorneys by holding that the entire controversy doctrine did not bar subsequent lawsuits for legal malpractice.
[brief] Plaintiff’s assertion that this case is “at a far more advanced posture than the Missouri Action” (Pb29) and is a “more efficient vehicle to resolve the dispute” (Pb26) also lacks merit.  Although this case has been pending a few months longer, it had not advanced any further than the Missouri Action prior to it being dismissed.  Moreover, prior to dismissal and when jointly seeking adjournment of a trial date, plaintiff represented to the trial court that there is “much fact discovery” (Da005) and “extensive expert discovery” (Da006) left to do before this case could be ready for the six-week trial plaintiff has requested.\(^{22}\) (Da009).
[brief] Around 7:00 a.m. there is regularly a “mass entrance” of employees arriving for work and crossing through the parking area.  Id.  In general, 70 to 100 nurses and technicians would be coming in around 7:00 a.m.  Pa586 (87:8-19).  At approximately 6:57 a.m. on October 6, 2021, [...] parked her car along the far eastern edge of the employee parking lot.