ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Following the conclusion of the July 6, 2023 hearing, [...] counsel advised Appellant that the Hearing Officer “has determined that the Applicant did not present sufficient evidence on the loading and unloading of cannabis product or cash at the hearing to support a recommendation to the Authority that the application be approved” and invited the Appellant to reopen the hearing and present additional evidence on these issues.  (Aa182-83).  Thereafter, at a second hearing on the application held on October 5, 2023, Appellant proposed to utilize a driveway off Atlantic Avenue to access a loading area at the northeast corner of the subject property. (See T2/25:4-24).
[brief] The New Jersey Supreme Court has emphasized that "even the broadest view of the scope of the Act suggests that discretion should be exercised against granting declaratory relief where another remedy would be more effective or appropriate."  Adams v. Atlantic City, 26 N.J. Misc. 259, 261-262 (1948); see also Elizabethtown Water Co. Consol. v. Bontempo, 67 N.J. Super. 8, 12 (App. Div. 1961) (explaining that "refusal of declaratory relief may also be justified where there is a more effective remedy."); Giua v. Closter, No. 019457-2012, 2013 WL 12497892 (N.J. Tax Ct. Nov. 19, 2013) (slip op. at *4).  As explained in Giua, The [New Jersey Supreme] Court went on to strongly caution against allowing a declaratory judgment action to supplant administrative or other statutory procedures for relief.  Id.  Thus, "[t]he doctrine that a litigant must first exhaust his administrative remedies before he seeks judicial review is widely recognized and has been the subject of extended discussion."  Central R.R. v. Neeld, 26 N.J. 172, 178 (1958).  The same principle is formalized in the New Jersey Rules of Court at R. 4:69-5, which states:  "Except where it is manifest that the interest of justice requires otherwise, actions under R. 4:69 shall not be maintainable as long as there is available a right of review before an administrative agency which has not been exhausted."  Giua, No. 019457-2012, 2013 WL 12497892, (slip op. at *4).  Further, "It is clear that relief by way of a declaratory judgment should be withheld when the request is in effect an attempt to have the court adjudicate in advance the validity of a possible defense in some expected future lawsuit."  Donadio v. Cunningham, 58 N.J. 309, 325 (1971).  To the extent Plaintiff advanced this is a declaratory judgment action and not a LAD case per se, the above principles dictated that the Court choose not to grant declaratory relief in this matter even if any issue was properly presented.
[brief] See, e.g., State v. Townsend, 2020 N.J. Super. Unpub. LEXIS 1648, *22 (App. Div. Aug. 28, 2020) (“As to the omitted portion of the Model Charge, defendant failed to offer an explanation for his flight at any juncture during the trial. ”)  (Da58); State v. Honore, 2019 N.J. Super. Unpub. LEXIS 997, *13 & n.4 (App. Div. May 1, 2019) (the trial court removed the explanation portion of the “instruction because he observed that the defense did not have to suggest any explanation for the flight.
[brief] [...], ACTING COMMISSIONER  [...] IN OPPOSITION TO APPELLANT’S APPEAL  Date Submitted: September 27, 2024  [...]  Attorneys for Respondent, Acting Commissioner of the New Jersey Department of Banking and Insurance [...] [...]  [...], ESQ.  Attorney ID 042321991  [...], ESQ.  Attorney ID 035071987  [...], ESQ.  Attorney ID 380542022  Of Counsel and on the Brief #  TABLE OF CONTENTS | Title | Page(s) | |----------------------------------------------------------------------|---------| | TABLE OF AUTHORITIES ........................................................................ | iii | | PRELIMINARY STATEMENT ....................................................................... | 1 | | PROCEDURAL HISTORY .......................................................................... | 4 | | COUNTERSTATEMENT OF FACTS .................................................................. | 5 | | A.
[brief] If the jury were to determine that [...] was acting outside the scope of employment and that he intentionally attacked the plaintiff, then Section 317 would apply.  Subsection (a)(i) of 317 is satisfied because [...] was on the premises of [...].  Since he was on duty at the time, subsection (b)(i) is also satisfied because [...] certainly had the ability to control an employee who was working in their store.  The second half of subsection (b)(ii) is satisfied because [...] certainly had the “opportunity” to control [...] because he was in their store working.  The only remaining question is whether [...] knew or had reason to know of the necessity for exercising control.  A reasonable person could conclude that by putting an inexperienced trainee like [...] on the sales floor by himself before he was ready, before he had even come close to completing his departmental training, without a uniform, without a visible name tag, whom they knew could feel “too much pressure” when dealing with customers who want answers, and encouraged him to approach those customers on his own, on a busy Saturday, meant that [...] should have known of the necessity of controlling [...] under such circumstances.  [...] exercising of “control” in this case could have been something as simple as assigning [...] to shadow an experienced employee, or work only at times when his supervisor, [...], was also working, or assigning him to do computer training in the training room when no one else was around.  Yet, [...] did none of these things, and therefore the jury should have been instructed on Section 317.
[brief] Today there is a sharp distinction between school board employment decisions and local governing body discretionary legislative decisions involving the use of taxpayers' trust fund monies without any prior public comments and explanation.  Indeed, State law has dramatically changed since the issuance of Local Finance Notice 2002-4 on September 24, 2002.  See, Tarns v. Borough of Pine Hill, 189 N.J. 497 (2007) (permitting residents to record public meetings); Besler v. Board of Educ. of West Windsor-Plainsboro Reg'l School Dist., 201 N.J. 544 (2010) (finding school board violated resident's First Amendment rights).
[directive] Law enforcement agencies have a duty to monitor their employees’ behavior, and establish mechanisms that provide the internal affairs function and the law enforcement executive with the ability to track the complaint records of individual officers and identify those officers with a disproportionate number of complaints against them.  Law enforcement agencies must utilize the information developed by these mechanisms to prevent individual officers from engaging in conduct or behavior that violates the constitutional liberties every member of the community enjoys.  It also is expected that law enforcement agencies will utilize the information to prevent development of patterns, practices or trends of inappropriate behavior or conduct.  3.4.3
[directive] To provide such direction and control, supervisory personnel must be granted the proper authority to carry out their responsibilities.  To properly exercise this authority, supervisory personnel must be fully familiar with applicable agency rules and regulations.  Based on the size and needs of the individual agency, supervisory personnel may be permitted to impose  Agencies operating under Civil Service Commission statutes (N.J.S.A. 11A:2-20) and regulations may only assess a fine in 2 lieu of a suspension where loss of the officer from duty would be "detrimental to the public health, safety or welfare" or if the assessment is restitution or is agreed to by the employee.  INTERNAL AFFAIRS POLICY & PROCEDURES | November 2022  9 specific disciplinary measures (subject to approval of the law enforcement executive) including oral reprimands or performance notices, written reprimands and suspensions.  In addition, the supervisor should be permitted to make written recommendations for other disciplinary actions.  The extent of this authority must be clearly stated in the agency's disciplinary rules and regulations.  2.4
[brief] As the Appellate Division noted the definition does not exclude, explicitly, persons who are designated as independent contractors performing services for an employer for renumeration.  *Id.* at 121  Taken out of context, labels can be illusory as opposed to illuminating when CEPA or other social legislation must be applied in the setting of a professional person or an individual otherwise providing specialized services allegedly as an independent contractor, we must look beyond the label attached to the relationship; *Id.* at 122  An employer cannot be expected to exert control over the provision of specialized services that are beyond the employer’s ability yet, the work may be an essential aspect of the employer’s regular business.  Perhaps the most important questions are, “has the worker become one of the ‘cogs’ in the employer’s enterprise; is the work continuous and directly required for the employer’s business to be carried out; is the professional routinely and regularly at the disposal of the employer to perform a portion of the employer’s work as opposed to being available to the public; do the professional services include a duty to perform routine or administrative activities? ”  The Court tells us that if the relationship is as described above, then an employer-employee relationship has been established.  Clearly, in [...]’s Certification (Pa-46), all of the above questions are answered in the affirmative.  The single most important consideration is, “Therefore, in order that CEPA’s scope fulfills its remedial promise the test for an ‘employee’ under CEPA’s coverage must adjust to the specialized and non-traditional worker who is nonetheless integral to the business interests of the employer;”
[brief] As the trial court properly noted at oral argument on September 22, 2023, [...] initially cited only Section 17.1(c) and Section 18.2 of the PSA, in support of its claim for an award of attorneys’ fees.  (See 5T, at 5).  According to [...]’s initial strained arguments, sub-paragraph (c) of Section 17.1 entitled [...] to recover its legal fees, just by making a demand for same upon being sued by Plaintiff, whether or not it prevailed in the lawsuit.  In opposing [...]’s motion for fees, Plaintiff pointed out that [...]’s reliance upon Section 17.1(c) was misplaced and, frankly, absurd.  That sub-paragraph plainly envisioned indemnification of [...] in connection with defense of legal proceedings commenced against [...] by third parties, and not by the other parties to the PSA.  Specifically, Section 17.1(c) states in pertinent part, “[[...]] shall not be required to defend any legal proceeding which may be instituted against it… unless [[...]] is indemnified to its satisfaction against the cost and expense of such action. ”  (See PSA Section 17.1(c) (emphasis added) (Pa119)).  The notion that this language would allow [...] to demand, in the context of a first-party suit by another party to the PSA, an automatic award of its fees “by right, with no requirements imposed other than making a request for indemnification ‘to its satisfaction’” is implausible.  Yet, that is precisely what [...] first argued before the trial court.  When faced with these arguments in opposition to its motion for attorneys’ fees, [...] changed its tune to introduce a new argument based upon Section 17.1(b), in reply papers.
[brief] Next, the Board considered whether to include tax preparation fees in [...]’s condominium fees.  [...] testified that [...] would hire a Certified Public Accountant (“CPA”) to file its tax returns, even if the conversion to condominiums had not occurred.  See 7T at 25:4-13.  The Board reviewed the minutes from their November 28, 2018 meeting to ascertain the tax preparation fee to the Unit.  See 8T at 157:6-18.  Next, they confirmed that their numerical figure remained accurate.  See id. at 161:11-24.  The following step was to discuss and debate whether the numerical figure is supported by a rationale basis and the applicable caselaw.  See id. at 165:16-24.  The Board agreed that it is a recurring expense and not due to the unit’s conversion into a condominium.  See id. at 171-72.  Turning to [...]’s management fee for [...]’s unit, the Board reviewed past testimony on comparable management companies and the respective fees they charge.  See 11T at 46.  Next, they examined the quality of the service, pursuant to the instructions from the trial court, and in particular, issues with [...]’s intercom and the delay in fixing same.  See id. at 49-52.  The Board additionally discussed the state of the unit’s smoke and carbon monoxide detectors and [...] testified that they are rarely inspected.  See id. at 55-59.  The Board considered all aspects of quality management and concluded that [...]’s unit has either required or utilized less management than other tenant-occupied units.  See id. at 61-62.  Therefore, for those reasons, the Board opted to reduce the management fee from $150 to $100.
[brief] The jury instructions here, like the instructions in Jackson and Bzura, did not specify that the jury had to be unanimous on alleged act or acts that formed the basis for the conviction.  The State alleged six possible overt acts: 1. Soliciting [...] to cause bodily injury to [...]; 2. Traveling to confront [...]; 3. Demanding [...] come out of his home to be assaulted; 4.  Assaulting [...]; 5.  Picking up [...] and/or [...]; 6.  Paying [...] and/or [...].  [(Da 32; 13T 194-5 to 17)]
[brief] For that reason, while actions may appear to a layperson to constitute merely innocuous behavior, particularly in drug distribution schemes, a trial court should credit the articulated beliefs of an experienced officer.  *State v. Alvarez*, 238 N.J. Super. 560, 565-66 (App. Div. 1990).  Here, there is sufficient credible evidence in the record to affirm the trial court’s considerable discretion in finding reasonable suspicion to stop defendant.
[brief] SAC ¶ 71.  Defendants [...], [...] and others in [...]' zone of authority, conspired and agreed that [...] and [...] would destroy or hide their own "paper trail" such that even in the face of a lawsuit, and a mandatory duty to disclose relevant records pertaining to their actions, they would claim that certain records do not exist or are not in their possession, custody or control, so that plaintiffs will not expose the proverbial "smoking gun."  SAC ¶ 72.  Based upon repeated assurance of intention to purchase plaintiffs' solar rights by [...], plaintiffs understood that [...] were communicating with various persons and entities involved in plaintiffs' efforts including the [...], as part of their due diligence.
[brief] A key PSA estoppel provision is the one in paragraph 13 stating “[u]pon receipt of the executed Estoppel Certificate, Seller shall promptly deliver a copy thereof to Purchaser: ”  (Da211)  [Emphasis added]  Plaintiff submits this explicit language, using the definite article ‘the’ not the indefinite article ‘an’, and referencing only the defined Estoppel Certificate, and not the separately defined Acceptable Estoppel Certificate, is significant in interpreting the contract and proves the Defendant misreads the PSA.
[brief] For all of the foregoing reasons, the Court should reverse the Trial Court’s ruling that the execution of the Lease by Defendants [...], [...] and [...] created personal liability by them for the obligations of [...] under --- 6  Plaintiff’s Appeal Brief fails to give any reason why Mr. [...] and Mr. [...] would be bound by the April 17, 2019 Consent to Enter Judgment.  Mr. [...] and Mr. [...] were not named as defendants in the underlying landlord tenant matter, and did not sign the Consent Judgment.  the Lease.  In the alternative the Court should affirm the Trial Court’s ruling that any personal guaranties terminated as of May 11, 2016 or were revoked prior to the accrual of the obligation sought to be enforced.  [...]  Attorneys for defendants Zane [...] and Fred [...] /s/ [...]  By: [...]  Dated: October 11, 2023  October 11, 2023  Via E-Courts and Regular Mail  [...], Clerk Appellate Division Clerk’s Office [...] P.O. Box 006 [...]  Attn: [...]  RE: [...] v. [...] Enterprises, d/b/a [...], et al Appellate Division
[brief] [...] PRESENTED AMPLE EVIDENCE TO THE MOTION COURT THAT THE PAYMENT  APPLICATION RULE BARRED  DEFENDANTS’ STATUTE OF LIMITATIONS  DEFENSE (Volume 1, Pa.83; Bellifemine, TR 75-1 to 10; Volume III, Pa. 389, 405-415)  Defendants’ argument that Dr. Bellifemine did not raise the payment application below ignores the evidence presented by Dr. Bellifemine presented to the motion court and the arguments presented by counsel.  Whenever Dr. Bellifemine received a check from [...], the check was compensation for all Dr. Bellifemine’s positions and did not identify a specific date of service.  The checks Dr. Bellifemine received from [...]. never requested that the services be applied to a specific time period.  In the absence of a request from a debtor to apply a payment to a specific time period, the payment application rule permits a creditor to apply a payment to the debtor’s oldest debt.  *Craft v. Stevenson Lumbar Yard Inc.*, 179 N.J. 56, 72-76 (App. Div. 1965); *General Elec. Co v. Fred Sulzer & Co*, 86 N.J. Super. (App. Div. 1996).  Dr. Bellifemine not only presented unrebuted documentary evidence that none of the checks issued to him by [...] requested application of the payment to a specific time, but application of the payment application rule which would defeat defendant’s statute of limitations defense was argued by counsel at plaintiff’s motion for reconsideration.  Pursuant to *Doctoroff v. Barra Corporation*, supra, 230 N.J. Super. at 236-237, the Appellate Division reviewing a motion court’s decision based on statute of limitation grounds “should consider all issues presented to us regardless of whether plaintiff’s principal theory has changed. ”  In the case at hand the payment application was argued below.  The issue of the payment application doctrine was asserted adequately for appellate review.  III.
[directive] If by FAIR professional standing, such as Attorney Fee. approved Act the - the Division of Criminal Justice, Deputy Director Operations, forfeiture a funds may be used to pay the salaries of temporary employees hired for which specific function, such as persons with a special expertise is needed or a MLETA may for particular investigation.  Funds be expended from a to MEA only upon the request of the participating law enforcement agency, by a the appropriate county prosecutor accompanied written certification that the request complies with the provisions of these standard operating law procedures, and only upon appropriation to the participating .- enfokement agency accordance the accepted budgetary provisions . in with a CLETA, a of its funding entity.  No expenditure shall be made from either MLETA MEA without the approval the appropriate county prosecutor.
[brief] Following this Court’s 2006 Opinion, the [...] claimed that their taking of “management fees,” “interest” on “loans” and other “fees” (however recorded in the partnership’s financial records) did not constitute theft, or any of the other predicate crimes that formed the basis of [...]’s NJRICO claims, but rather a “trueing-up” for the monies owed to them:  [[...]] kept saying, you know, I just did it that way because I was truing up for things that happened 10 years or 20 years before, and since the Appellate Division said [in 2006] that there was going to be an accounting, I was relying on the Court to make it right.  …  (235T72:7-13)  ….  It was a true up to make up for past expenses.  …  It was an arbitrary grab at whatever was left in [...], allegedly, to make up for fees that had not been charged to [...] in the past.  …  (223T98:10-99:6)  [...] further found that the [...]’ thefts continued even while Her Honor attempted to conduct the partnership accounting ordered by this Court in its 2006 Opinion, and that the [...]’ lack of candor unnecessary prolonged those proceedings:
[brief] At the close of public comment, [...] added that an October 21, 2022 traffic impact study review memo from [...], Township Administrator, as well as an October 27, 2022 memo by Sahol titled "Data related to township land uses, PVD, and assessed value apportionment" were also part of the "record" in the matter.  (2T59:1-6).  The Committee's Chair then raised two concerns he had with the Plan.  (2T60:8-10).  The Chair asked for stronger language to be inserted in the Plan to ensure [...]\(^5\) was relocated and preserved, and for a stronger encouragement of the use of renewable energy on the Property.  (2T60:11-20); (2T62:18-24).  Thereafter, [...] also raised a few revisions to the Plan.  (2T73:12-15).  First, he suggested removing a sentence from the plan which stated there was a national trend of closing golf clubs in recent years.  (2T73:22- --- \(^5\) [...] is an existing historical structure located on the property.
[brief] Point One  PLAINTIFFS-APPELLANTS WERE NOT REQUIRED AT TRIAL TO RELITIGATE  LEGAL ISSUES  PREVIOUSLY DECIDED ON MOTION FOR PARTIAL SUMMARY  JUDGMENT  In Point One of their Brief, plaintiffs-appellants argue [...] Ordinance Sections 900B and 902A expanded the HPC’s permit review authority beyond the scope of review authorized by N.J.S.A. 40:55D-111.
[brief] “[I]f counsel makes a thorough investigation of the law and facts and considers all likely options, counsel’s trial strategy is ‘virtually unchallengeable. ’”  *State v. Chew*, 179 N.J. 186, 217 (2004) (quoting *Strickland*, 466 U.S. at 690–91).  To satisfy the second prong, a defendant must show that the error committed was “so serious as to undermine the court’s confidence in the jury’s verdict or the result reached. ”  *State v. Allegro*, 193 N.J. 352, 367 (2008); *Castagna*, 187 N.J. at 315.  It is not sufficient for the defendant to merely show that the errors had some conceivable effect on the outcome.
[brief] At the initial hearing on Plaintiff’s application to enforce the MOU, Plaintiff’s principal, [...], repeatedly represented to the Court that he was “stepping into” the Owner’s obligations and had taken on the burden of paying off the Note:  MR. STURMAN:  I am stepping into those obligations.  I am the new shareholder.  I am the debtor that has to negotiate with [...] [i.e., counsel for the holder of the mortgage], that has to pay [...]’s client off.  All those obligations are mine.  Mine.  1T40-5.  Later on during the same hearing, Mr. Sturman re-iterated the same point:  MR. STURMAN:  And, your Honor, I stepped into the debtor’s shoes, pay the debt off, pay – basically I have spent about 600,000 dollars already moving in soft costs on this transactions and I plan to move forward.  1T52-21.  Yet, Mr. Sturman apparently made these representations while he was under the impression that the Note was a non-recourse loan:
[brief] ”  *Id.* at 540.  Our courts have stated that the two coverages are meant to be considered in tandem to provide “seamless coverage. ”  "The essence of the two-part policy, Part One covering workers' compensation defense and indemnification, and Part Two covering defense and indemnification in other employer liability situations, is seamless coverage."  *Delta Plastics*, *supra*, 380 N.J. Super. at 542.  “Employers liability coverage * * * ‘is traditionally written in conjunction with workers' compensation and is intended to serve as a 'gap-filler' providing protection to the employer in those situations where the employee has a right to bring a tort action despite provisions of the workers' compensation statute. ’”  *Schmidt*, *supra*, 155 N.J. at 49-50 (citations omitted).