ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ” (Aa96; Ra13).  Indeed, the record reflects that “the entire 750-linear foot bulkhead will be moved 24-inches waterward of its existing location along the shore” thereby “extend[ing] the dry land area on the site by 1,500 square feet and [reducing] the existing water area by the same amount. ” (Aa87; Aa96; Ra205).  Likewise, the Permit legalizes preexisting “catwalks” (or finger piers) “and mooring piles within the boat basin in their existing dimensions and configuration. ” (Ra181).  According to the Permit-approved plans (Ra195), these structures include twenty-two private fingers piers and forty-seven mooring piles, which take away a total area of 478.2 square feet from the waterfront.  (Ra205).  These structures were previously constructed without required DEP permits, and are thus “legally new because they were built without a permit and must be authorized in the first instance. ” (Aa133).  See N.J.S.A. 12:5-3(a) (no “improvement shall be commenced or executed without the approval of” DEP).  On this record, both the reconstructed bulkhead and the legalized structures extend out into the water and therefore expand [...]’s overall existing footprint, necessitating a public access condition.  (Aa134); N.J.S.A. 13:1D-153(a).
[brief] Recognizing its precarious position substantively, [...] resorts to taking potshots at [...]’s Order (and his handling of the case, in general) in an attempt to flout the plain language of the Purchase Order.  For example, [...] complains that “[t]here is very little development in the record of this case. ”  (Pb6.)  But grievances about an underdeveloped record are of no concern given the pre-answer, motion to dismiss posture of the case.  A motion to dismiss for lack of subject matter jurisdiction is a pure question of law.  The trial court only had two questions to answer: Did the Purchase Order require [...] to mediate the dispute before filing a lawsuit, and, if so, did [...] mediate the dispute?  [...] had everything that he needed to make an informed decision—the Complaint and the Purchase Order.  See Hoffman v. Supplements Togo Management, LLC, 419 N.J. Super 596, 611 n.7 (App. Div. 2011) (on a motion to dismiss for lack of subject matter jurisdiction, the trial court may consider materials outside the pleadings without converting the motion to a motion for summary judgment).  E.
[brief] In the Matter of the [...] Obligation to Provide Relief Applications under the Open Public Records Act, 230 N.J. 258, 282 (2017), quoting Keddie, 148 N.J. at 51.  Courts are to “consider whether the claim of confidentiality is ‘premised upon a purpose which tends to advance or further a wholesome public interest or legitimate private interest. ’”  Keddie, 148 N.J. at 51, quoting Loigman, 102 N.J. at 112.  “[W]hen the requested material appears on its face to encompass legislatively recognized confidentiality concerns, a court should presume that the release of the government record is not in the public interest. ”  Michelson v. Wyatt, 379 N.J. Super. 611, 621 (App. Div. 2005).  As noted by the court below:  But the Court also shall not order defendant to disclose the requested records pursuant to the common law right of access because they are not common law public documents.  ***
[brief] Regarding [...]’s failure to warn claim under the PLA, [...] disingenuously attempts to characterize it repeatedly as a claim for “failure-to-timely-recall” or a “failure-to-timely-warn-of-recall. ”  Casting aside [...]’s subterfuge, [...]’s failure to warn claim is predicated upon [...]’s abrogation of its post-sale duty to warn of the dangerous defects it discovered after the Ozurdex left its custody pursuant to N.J.S.A. §2A:58C-4.  Clearly, [...]’s post-sale duty to warn began on June 21, 2018, when it first discovered the existence of these manufacturing defects.  Moreover, on September 17, 2018, [...] discovered that the manufacturing defects were present within the specific lot [E82852] that was eventually injected into [...]’s eye on November 6, 2018.
[brief] [A89-91.]  [...]’s dock extension angles in a westerly direction, thereby cutting across Appellant’s access to the navigable channel of Barnegat Bay.  [Aa149; Aa150; Aa152-Aa153; Aa188; Aa291-Aa295; Aa297; Aa298.]  The photographs and other documentary evidence in the record demonstrate the navigational restraint to Appellant presented by the dock extension.  [Aa149; Aa150; Aa152; Aa188; Aa291-Aa295; Aa297; Aa303.]  Appellant is unable to safely maneuver its watercrafts in or out of its waterfront facilities due to the extension.  [Aa380-Aa382.]  This factual situation is supported by the documentary evidence in the record.  [Aa149; Aa150; Aa152; Aa188; Aa291-Aa295; Aa297; Aa303.]  [...] acknowledged in its May 31, 2019 letter that “[Appellant’s] claimed right to a hearing would have merit only if her claims that [...]’s dock will materially interfere with the ability to navigate to and from the [Appellant’s] dock were valid and substantial.
[brief] ([...] Reply 41-42).  There is no question that recent decisions have adopted this more equitable approach.  In re Estate of Lash, 169 N.J. 20 (2001), is one such example.  There, the Supreme Court upheld the award of prejudgment interest “from the date each improper use of funds was made by the administrator. ”  Id. at 25.  The Supreme Court agreed with the Appellate Division’s conclusion that “the date of defalcation should serve as the commencement date from which interest should be assessed,” quoting directly from this Court’s opinion in the matter:  [W]e conclude simple interest should be calculated from the date the improper use of the funds was made.  Under these circumstances, we view lost interest as an element of the estate's damages claim.  . . .  We are persuaded this approach is more equitable in that lost interest is an integral part of the estate's damage claim as a result of the defalcation.  . . .  Id. at 35.  In re Estate of Sogliuzzo, 2015 N.J. Super Unpub. LEXIS 2921 (App. Div. Dec. 17, 2015), is yet another more recent example.
[brief] For example, in *Doe v. Emory Univ.*, 2021 WL 358391, at *5 (N.D. Ga. Jan. 22, 2021), the plaintiff sued his college for breach of contract when the College switched to virtual classes during the COVID-19 pandemic.  He pointed to a number of promotional items, including the school’s website, that explicitly discussed in-person class offerings.  However, the Court dismissed the breach of contract claims by applying Georgia law – which, like New Jersey law, provides that advertisements do not constitute offers to form contracts.  Specifically, the Court held:  …[T]hese promotional statements merely describe these features and *opportunities*, and there is no language identified that indicates a promise to provide in-person education.  While these statements might conjure images of the typical academic, residential, and social opportunities enjoyed by college students, these statements cannot be deemed a legal offer.  Instead, these promotional statements are essentially advertising materials, which do not constitute offers to form express contracts under longstanding Georgia law.  *Doe v. Emory Univ*, 2021 WL 358391, at *5 (N.D. Ga. Jan. 22, 2021) (emphasis added).
[brief] Here, the trial court’s decision to allow the case to proceed to trial based on speculation of a product defect disrupts the balance of interests the Legislature sought to achieve through the PLA.  Although the PLA applied strict liability principles, the Legislature still required a plaintiff to prove certain basic, prima facie, elements to establish a product liability claim.  N.J.S.A. 2A:58C-2 (requiring plaintiff to prove “by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it: a. deviated from the design specifications, formulae, or performance standards of the manufacturer…”); see also Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 97 (1999) (“[A] plaintiff must prove that the product was defective, that the defect existed when the product left the manufacturer's control, and that the defect proximately caused injuries to the plaintiff .
[brief] Two design waivers were also requested by [...].  37.  Importantly, the Proposed Site is also located in the OL-2 zone.  As a result, the proposed Facility is a conditionally permitted public utility use under Holmdel’s municipal zoning ordinances.  The Company demonstrated before the Zoning Board that this public utility use is both appropriate for the property and for the OL-2 zone.  As set forth in its application and as demonstrated at the Zoning Board hearings, the Facility meets the conditions required for the public utility conditional use and it is an inherently beneficial use.
[brief] and N.J.S.A. 2C:2-6 (count five); - first-degree accomplice to first-degree purposeful, knowing or serious bodily injury murder, under N.J.S.A. 2C:11-3(a)(1) and (2), and N.J.S.A. 2C:2-6 (count six); - third-degree endangerment by knowing conduct that creates a substantial risk of death under N.J.S.A. 2C:24-7.1(a)(3) (count seven); - third-degree criminal restraint, under N.J.S.A. 2C:13-2(a) (count eight); and - third-degree theft by unlawful taking, under N.J.S.A. 2C:20-3(a) (count nine).  [Da5-Da9.]  The trial was held on fourteen days from September 28 to October 26, 2021 (13T-26T).  Deliberations began on October 28, 2021, and continued on October 29, and November 1, 2021 (26T168-12 to 15;Da71).  There were no deliberations from November 2 to November 15, 2021.  After additional deliberations, the jury returned a verdict on November 19, 2021 (32T3-1 to 32T5-12).  It acquitted defendant of: murder, felony murder, aggravated manslaughter, accomplice to murder, second-degree robbery, criminal restraint, endangering, and robbery (32T3-16 to 432T5-9).  The jury convicted defendant of: accomplice liability for felony murder (count four), accomplice liability for robbery (degree not specified) (count five), reckless manslaughter as a lesser-included offense of murder (count two), accomplice liability for reckless manslaughter, and theft by unlawful taking (count nine) (Da10-Da13;32T20 to 32T5-5).
[brief] [Emphasis added.]  This paragraph constitutes the third strike against the award of counsel fees because it, too, fails to even mention attorneys’ fees, let alone provide express authorization for an award of counsel fees and litigation expenses.  Plaintiffs contended this contract justified the award of fees because the trial court found that this contract had been breached.  25T14:6-12.  Clearly, the award of fees is not justified merely by the occurrence of a breach.  B.  The Court Erred In Awarding Expert Fees And Other Litigation Expenses.
[brief] Plaintiff's argument fails to properly separate two different issues that were presented to the Court on summary judgment: (1) liability of the Tenant LLC for rent and other charges incurred after the lease termination and (2) the liability of the individual guarantors for obligations of the Tenant LLC after the lease termination.  The issue of whether the Tenant LLC could be bound by a verbal amendment of the lease is a type (1) issue and the lease statute of frauds (N.J.S.A. 25:1-12) might have had some relevancy had that issue been litigated in the case.  The contested issue at summary judgment and the ruling sought to be reversed on appeal is a type (2) issue—liability of the individual guarantors post lease termination.  As to this issue the guaranty statute of frauds is directly on point and was correctly applied by the Court to bar the claim.
[brief] The Constitution Article. I, Section. 9, reads as follows:  '...No Bill of Attainder or ex post facto Law shall be passed...'  United States v. Lovett, 66 S.Ct. 1073 reads in pertinent part as follows:  '...They stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution....'  Cummings v. The State of Missouri, 71 U.S. 277, reads in pertinent part as follows:  '...The theory upon which our political institutions rest is, that all men have certain inalienable rights—that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection *322 of these rights all are equal before the law.  Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined.  Punishment not being, therefore, restricted, as contended by counsel, to the deprivation of life, liberty, or property, but also embracing deprivation or suspension of political or civil rights, and the disabilities prescribed by the provisions of the Missouri constitution being in effect punishment, we proceed to consider whether there is any inhibition in the Constitution of the United States against their enforcement....'  Between the three, clearly the [...] order relied upon by [...] is an illegal Bill of Attainder as the order subjects just one person to a deprivation of....the right to pursue happiness...via the denial of the right to trial by jury, or via failing to hold the right to trial by jury inviolate.
[brief] As set forth herein, there are clear benefits to rezoning the subject properties to allow for senior residential health care facilities, such as providing additional opportunities for the aging [...] community to age in place ….  Da46.  However, the Township should weigh these benefits against the apparent conflict with the master plan goal of limiting higher density residential uses to the locations prescribed in the plan.  If the Township ultimately finds that rezoning the site is in the best interest of the community, it would also be appropriate for the Planning Board to adopt a master plan amendment so as to be consistent with the zoning on-site.  In addition, the Township should also consider whether the scale of the project is suitable for the area in question.  The appropriate number of units and other factors of scale and bulk will need to be explored….  Da46.  (emphasis added).  Thus, the Township Planner saw merit to a discussion on the rezoning request, but was also concerned about the conflict with the Master Plan and the bulk of the three story facility (“scale of the project”) in that residential area, as well as the appropriate number of units ([...] sought 150 total units, and [...] applied for 165 units).
[brief] The Defendant asserted that although the Plaintiff was occupying her motor vehicle at the time of the injury, the motor vehicle was incidental to her injuries and so, she was not entitled to PIP benefits (Pa 170, 1T7-9).  Argument on the two Motions for Reconsideration was held on January 10, 2024, during which the Trial Court highlighted the following facts:  “On June 26, 2020 [...] had an incident at the [...] drive-thru while stopped with her foot on the brake, car immobile, receiving a hot beverage through the drive-thru window. ” (2T11).  The Trial Court denied the Plaintiff’s motion and granted the Defendant’s motion finding the Plaintiff was not entitled to statutory PIP benefits as she was “not operating a motor vehicle at the time of the injury…” and “there is no causal relationship between the plaintiff’s use and occupancy of the vehicle and the injuries sustained.
[brief] The defendants engage in semantic gamesmanship when arguing that the converted sums were not discrete or identifiable.  (Db47-50).  Plaintiffs identified the discrete sums they alleged the defendants converted in their Amended Complaint (Da32-38), which they filed shortly after obtaining the financial information they had long been seeking; in the 44 schedules appended to the [...] report (Pa189-351); and in extensive trial testimony.  (*See* Point III, *supra*).  Contrary to the defendants’ argument, the trial court was clear in its findings that the sums that formed the basis for its judgment were both identifiable and belonged to the Plaintiffs.  Because Plaintiffs were equal owners with the defendants in [...] and [...], half of what the defendants took for themselves rightfully belonged to the Plaintiffs.
[brief] He said he gave up following the car when the car "jumped on the highway."  (4T112-12 to 23).  [...] said he did not try to remember the license plate because he assumed he had gotten a picture of the car.  But when he reviewed the photographs, "everything was blurry," making it impossible to read the license plate, so he said he deleted the picture.  (4T113-17 to 114-4).  Nonetheless, the phone number [...] provided [...] with was the same number that had sent [...] the image of the car.  (4T114-11 to 17).  He was confident that the car's license plate was not from New Jersey because he regularly saw New Jersey license plates working in the repo yard.  (4T119-4 to 8).
[brief] The expert will tell you it’s not possible.  You can pour all the water you want on that floor, you cannot slip.  (2T34-19 to 35-16; emphasis added).  * * * *  *  So, liability, there is no liability.  You cannot slip on the floor.  [...], you heard 10, 15 minutes, they have a duty.  They have a duty.  They have a duty.  They make money.  They make money.  They make money.  That’s correct.  They’re well aware of what goes on at a [...] facility, water gets brought in sometimes, hence, the floor is created, so you cannot slip to prevent this.
[brief] (T1)  Immediately after both counsel appeared formally before the lower court, but prior to any oral arguments taking place, [...] queried of Plaintiff’s counsel, “Motion by the defendant to dismiss.  Plaintiff has no evidence of negligence.  At best, at best if you accept the -- I think the plaintiff’s opposition paper says we have \textsuperscript{2}  Defendant movant did \textbf{not} upload on e-Courts, and therefore did \textbf{not} file a supporting certification, nor did Defendant serve Plaintiff’s counsel with the any Certification in support of the motion for summary judgment.  [...] (phonetic) who signed the certification - Would she be a witness in this case?  We can stipulate for that for the purposes of this motion?” (1T³4:10-16)  Plaintiff’s counsel answered in the affirmative.  The trial court continued, “And she said I was on the bus.  I was in the process of sitting down when the bus suddenly, violently, and abruptly made a sudden stop.  That’s the best that the plaintiff will be able to establish, correct, Counsel?” (1T4:18-22)  Again, Plaintiff’s counsel responded affirmatively.  (1T4:23)  The trial court then posited, “All right.  How does that prove negligence?” (1T4:24-25)  Plaintiff’s counsel promptly answered His Honor, stating “Because buses aren’t supposed to suddenly stop, Your Honor. ”  (1T5:1-2)  To which the lower court replied, “Buses are not supposed -- that doesn’t happen \textit{in the normal course} of a bus operation?  Somebody runs in front of the bus, they’re not supposed to stop?  A cat runs in front of the bus, they’re not supposed to stop?” (1T5:3-7)  (Emphasis added.)  His Honor is casually but clearly conflating “\textit{normal course}” with the separate and contrary “\textit{sudden emergency doctrine}.”  [...] then turned to counsel for the Defendant, and asked if he would like to “make your argument on that issue?”  (1T5:21-22)  Counsel for the Defendant candidly stated to the lower --- ³ For purposes of this Brief, “1T” shall refer to the transcript of the oral argument that took place on March 31st, 2023, to decide the Defendant’s motion for summary judgment.
[brief] Ibid (Da34; Pa4-Pa5; 1T).  The judge offered an exhaustive, detailed explanation for the denial, including finding that the proposed Second Amended Complaint did not meet the basic pleading requirements and that the causes of action [...] attempted to plead were futile.  (1T31:7-31:12).  Acknowledging that all pleadings are to be liberally construed in the interest of justice, the judge found that—even under that forgiving standard—the proposed complaint could not be accepted.
[brief] In State v. Guenther, 181 N.J. 129 (2004), our Supreme Court held that “in limited circumstances and under very strict controls a defendant has the right to show that a victim-witness has made a prior false criminal accusation for the purpose of challenging that witness’s credibility. ”  Id. at 154.  This created a “narrow exception” to N.J.R.E. 608 as it was then-written, which had previously disallowed such testimony.
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[brief] particular form required, the employee must “make clear that…assistance [is desired] for his or her disability. ”  Id.  Where no request is made and/or the employer is unaware of the need for accommodation, a failure to accommodate claim cannot be sustained.  See, e.g., Victor, 203 N.J. 423-525 (affirming Appellate Division ruling that the plaintiff failed to establish prima facie case for failure to accommodate where plaintiff could not demonstrate he sought a reasonable accommodation); Grubb, 2010 WL 3516847, *4-6 (the request must be “sufficiently clear that it conveys to the employer the employee’s request that an accommodation be attempted to address the employee’s disability”).
[brief] He contends, essentially, that Respondents engaged in “private action” because they pursued a course of action which furthered nothing more than their own private purposes, thus eroding the public’s confidence and trust.  At the outset, it is difficult to see how a public bond referendum which was approved by the District's voters benefits nothing more than the Respondents’ “private interests. ”  Petitioner clearly is passionate about the issues underlying the bond referendum, and it is clear that he strongly disagrees with Respondents’ position.  That is his right, but it does not mean that Respondents’ position is illegitimate, unfair, or born of selfish desire.  There are thousands of voters in the District’s municipalities who approved the referendum.  That Petitioner’s position was a losing one does not mean that it fell victim to some greater conspiracy.  Petitioner supports his position with citations to unpublished Appellate Division cases and to the New Jersey Supreme Court decision discussed extensively above, *Citizens To Protect Public Funds*.
[brief] *Jarwick*, 2018 WL 2449133, at *29.  *Jarwick* focuses on the Court’s holding that the Trial Court’s finding of a common core of operative facts “ignores the time-limitations that apply to the non-RICO and RICO claims” and argues that this Court simply remanded for a redetermination of whether the claims involving a longer limitations period than the RICO claims had a common core of operative facts with the RICO claims.  (Jarwick_Pb 27).  But that is not what this Court said.  Instead, this Court found that the Trial Court’s finding of a common core of operative facts was erroneous.  This mandated that, on remand, any award be limited to work “reasonably devoted” to the RICO claims.  *Jarwick*, 2018 WL 2449133, at *29.