ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] THE TRIAL COURT’S INTERPRETATION OF THE PSA IS UNSUPPORTED BY THE FACTS AND THE LAW (Pa0192; Pa0194)  A.  The Trial Court  Erred in Dismissing Count One of the Complaint and Granting in Part and Denying in Part Specific Performance  The trial court’s interpretation of the PSA is unsupported by the evidence and the law.  The PSA expressly provides that the Seller’s Environmental Obligations include obtaining a site-wide RAO to the extent possible.  The trial court improperly relied on extrinsic evidence to effectively rewrite the PSA, and the trial court’s order for specific performance improperly shifts the burden of obtaining the RAO from Defendants to Plaintiff.  Rather than address the core of Plaintiff’s argument, Defendants merely recite purported “facts” regarding the parties’ negotiations while ignoring the crucial testimony of their own representatives.  Moreover, Defendants’ legal arguments are inconsistent with applicable law and rely on irrelevant legal doctrines.  Accordingly, the Final Judgment should be reversed as to Count One of the Complaint, and Plaintiff is entitled to an order for specific performance requiring Defendants to satisfy their obligations under the PSA and obtain a site-wide RAO.  1.
[brief] D.  The Court’s finding that the Noise Ordinance is preempted does not serve as an implied repealer of the Home Rule Act.  Finally, Defendants argue that a finding of preemption here results in an implied repealer of the Home Rule Act and render its language a nullity.  Plaintiffs submit that this is not the case as the Home Rule Act, NCA, and health nuisance provisions of Title 26 must all be read *in pari materia* so that the more specific acts serve as an exception to the former.  New Jersey courts have long expressed that an implied repealer must only result as a last resort.
[directive] 5.  The prosecutor, using the Brimage Worksheet, see Appendices IB and IC, must document whether each authorized Aggravating and Mitigating Factor applies to the defendant’s conduct, and must determine the appropriate point value for each such factor.  Only one factor from each numbered category of related factors (e.g., “Community Impact,” “Organization,” “Defendant’s Role in Scheme,” etc.) may be counted.  Where a defendant is subject to more than one factor within a given numbered category, the prosecutor must count the aggravating or mitigating factor within the category that has the highest point value.  (See Section 10.)
[brief] [...], Esq.  Attorney ID# 028091996  [...], Esq.  Attorney ID# 113632015  On the Brief TABLE OF CONTENTS  PROCEDURAL HISTORY ...........................................................................................................1  LEGAL ARGUMENT ..................................................................................................................3  POINT I THE TRIAL COURT’S DECISION SHOULD BE REVERSED AS THE BOARD’S DECISION WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE.
[brief] But even putting aside that it is not, of course, Defendants’ responsibility to identify a forum in which they may be sued, Defendants have never taken either of those positions.  Plaintiff has been aware since 2016 that [...] was barred in the District of Columbia and practiced law during his representation of Plaintiff from the [...] office located there—facts that --- \(^6\) Plaintiff’s assertion that it “does not have an office in North Dakota,” Pb6, is undercut by its prior filings with North Dakota’s Secretary of State, which reflect that Plaintiff’s headquarters and principal executive office from 2016-2018 was in North Dakota.  Da148, 156–65.  Not until 2019 did Plaintiff claim on its annual reports that its headquarters was located in New Jersey.  Da148.
[brief] Cellco P’ship 2023 WL 2670713 (App. Div. Mar. 29, 2023)  Gilbert v. Stewart 247 N.J. 421 (2021)  Hermes v. Okla. Arthritis Ctr. 2021 WL 3540322 (W.D. Okla. June 8, 2021)  Hoffman v. Asseenontv.com, Inc. 404 N.J. Super. 415 (App. Div. 2009)  Housel for Housel v. Theodoridis 314 N.J. Super. 597 (App. Div. 1998)  Jansen v. Food Circus Supermarkets, Inc. 110 N.J. 363 (1988)  MacDougall v. Weichert 144 N.J. 380 (1996)  Maher v. New Jersey Transit R.O. Inc. 125 N.J. 455 (1991)  Mason v. Zoom Tech., Inc. 2010 WL 3075556 (App. Div. Aug. 3, 2010)  Mehlman v. Mobil Oil Corp. 707 A.2d 1000 (N.J. 1998)  Pierce v. Ortho Pharm. Corp. 84 N.J. 58 (1980)  Puder v. Buechel 183 N.J. 428 (2005)  Robbins v. Jersey City 23 N.J. 229 (1957)
[brief] To demonstrate that the City had notice, Plaintiff introduced three work orders—none of which show the sign was missing in the weeks, days, hours, or minutes before Plaintiff’s accident—and his own testimony that the sign was missing at the time of his accident.  (Da181; Da 225; Da226; 5T73:19-74:11).  No rational juror could conclude Plaintiff marshaled enough evidence to show the City had actual or constructive notice of the missing sign.  Smith, 225 N.J. at 397; see also Arroyo v. Durling Realty, LLC, 433 N.J. Super. 238, 243 (App. Div. 2013) (“The mere ‘[e]xistence of an alleged dangerous condition is not constructive notice of it. ’” (alteration in original) (quoting Sims v. City of Newark, 244 N.J. Super. 32, 42 (Law Div. 1990))).  And Plaintiff’s failure to do so was fatal to his claim against the City.  See Polzo v. Cnty. of Essex, 196 N.J. 569, 585 (2008) (explaining the requirements of the TCA “are accretive; if one or more of the elements is not satisfied, a plaintiff’s claim against a public entity alleging that such entity is liable due to the condition of public property must fail”).  In his opposition brief, Plaintiff does not point to any evidence in the record showing the City had notice of the missing sign or showing the length of time that the sign had been missing.  Rather, Plaintiff simultaneously argues: (1) he did not need to prove notice because the City created a dangerous condition by not placing traffic signs in the appropriate places; and (2) the City, in fact, had notice that it created a dangerous condition by its placement of the 2 “5T” refers to the November 2, 2023 trial transcript.  traffic sign because the sign had previously been knocked down.\textsuperscript{3}  These arguments are without merit and must be rejected.  II.
[brief] On February 14, 2018, [...] executed the final proposal from [...] which indicates the following scope of work:  “Install Arcadia Louver Roof on structural steel beams by others”.  Pa64.  The total contract amount was $182,000.00.  Id.  [...] paid an $80,000.00 deposit upon execution and the work commenced.  Pa74.  [...] then paid a second draw of $50,000.00 on April 24, 2018.  Id.  [...] proposed that its work was completed in May 18, 2018.  1T 23:24-25.  Almost immediately thereafter, [...] began to experience issues with the function of the system and effective use of the space.  1T 182:1-23.  On May 19, 2018 the General Manager of [...], [...], took a video of the system leaking in the interior portions during a rain storm.  Id.  On June 6, 2018, [...] sent a final payment request to [...] in the amount of $57,619.92.  Pa74.  Three days later, on June 9, 2018 [...] was preparing for one of its first wedding events of the season in the new veranda space under the Louver system.  1T 184:18-24.  However, water continued to leak from the system throughout the interior portions of the space where seating was to be provided.  1T 185:1-18.  Shortly thereafter, [...] notified [...] and [...] of its dissatisfaction with the installed system and its function.  1T 121:4-10.  In response, on August 29, 2018, the regional sales director for [...] appeared for a site visit with [...] and then followed up a letter to [...] indicating for the first time that the “Arcadia louvered roof” they had contracted for was in fact a “louvered adjustable pergola” which is designed to “control the sun and shade and can control the majority of typical rain fall” but that the “system is not designed to perform as a completely dry environment with the performance of a shingled roof”.
[brief] Correcting a Transposed Vote Total Is a Ministerial Act, Not a Recount  [...], as Board Clerk, did not disturb ballots, revisit voter intent, or weigh extrinsic testimony.  He did not add any ballots to the count that had not already been included previously in the certification, albeit in the wrong column; he simply moved a write-in ballot that had been cast for “[...]” to the “[...]” column of the certification.
[brief] 32 R. 1:6-2 ........................................................................................................  8 R. 1:6-2(d) ..................................................................................................  36 R. 1:7-4 ......................................................................................................20,21 R. 1:36-3 ....................................................................................................8,11,29,30  R. 2:6-1(a)(2) .........................................................................................................................  9 R. 2:6-2(a)(4) ..........................................................................................................................  1 R. 2:6-2(a)(5) ..........................................................................................................................  1 R. 4:42-9(8)...............................................................................................................................  7 R. 4:58-1(a)...............................................................................................................................  33 R. 4:58-3(b)...............................................................................................................................  33 R. 4:58-3(c)(4)...........................................................................................................................  5,9,33  NEW JERSEY RULES OF PROFESSIONAL CONDUCT CITED
[brief] In addition, the organization has a Board of Directors/Grand Body.  (Pa140).  Under Rule 8 of the current Rules and Regulations, the Grand Sheik is empowered to “oversee all temples, entities, subsidiaries, rights, and possessions of the [...] throughout the U.S.A. and the world established by the Grand Body. ” (Pa169) (emphasis added).  Act 13 of Defendant’s original Rules and Regulations and Rule 13 of its current Rules and Regulations prohibit members from withholding property from the national religious organization.  (Pa140; Pa158; Pa170).  Under the Rules and Regulations, all local Temples and officials must follow the instructions and decisions issued by the Grand Sheik.  (Pa140).  In this case, by letter dated May 19, 2021, the Grand Sheik informed the Plaintiff that [...] (Tax Map Block 5402, Lots 1 & 64) (hereinafter, the “Property”), which includes a Moorish Temple, is the Property of Defendant [...] and directed them to relinquish their claims of title.
[brief] Keansburg calls [...], the Deputy Borough Manager, Municipal Clerk and Tax Collector of Keansburg at the March 9, 2022, Trial (4T16:21).  He testifies that he “believes” the Borough owns Lot 3 and Lot 3.01 (4T21:18).  He bases this decision on Borough records.  He has been employed by the Borough since 1988 (4T21:25).
[brief] ”  Id. at 295-96 (emphasis added).  Further, a “notice of a proposed change in the zoning laws must be reasonably sufficient and adequate to inform the public of the essence and scope of the proposed changes. ”  Id. (emphasis added).  Similarly, in Rockaway Shoprite, the municipality substantially changed the relevant existing zoning in addition to creating two entirely new zoning districts to allow development of forty-five acres fronting two major highways.  424 N.J. Super. at 340-42.  In publishing notice of that ordinance’s introduction, the municipality only identified the ordinance being amended, and the location of the relevant properties.  Id.  Applying N.J.S.A. 40:49-2.1, the court held such a notice “was legally deficient in apprising the public of the substantive changes to the municipality’s zoning effected by the proposed ordinance. ”  Id. at 344.  --- 10
[brief] Plaintiff, the [...], filed a complaint on May 18, 2023, asserting medical malpractice against the defendants, [...], MD, [...], CRNA and the [...].  (Da 005-026).  Specifically, plaintiff asserted both a survival action pursuant to N.J.S.A. 2A:15–3, and a wrongful death action pursuant to N.J.S.A. 2A:31–1.  (Da007-009).  In response, the defendants collectively filed a motion on July 19, 2023, to stay the litigation and instead have the case submitted to arbitration pursuant to an agreement previously executed by the parties.  (Da001-Da026).  The motion was heard by the Honorable [...], J.S.C., who entered an Order on September 8, 2023, staying the case for 30 days to permit the parties to engage in limited discovery relating to the formation of the arbitration agreement only.  (Da028).  Judge Hudak subsequently entered a second Order on March 22, 2024, which dismissed Count Two of plaintiff's Complaint asserting the wrongful death claim without prejudice and granted the defendants' motion to stay the litigation in favor of arbitration as to the survival claim asserted in Count One of plaintiff's Complaint.  (Da070-Da079).  Plaintiff had filed a motion on March 21, 2024, seeking leave to file an amended complaint to correct a pleading deficiency with respect to the wrongful death claim asserted in Count Two of plaintiff's Complaint.
[brief] *Case*, 220 N.J. at 65 (“trial judges must explain how they arrived at a particular sentence”) (emphasis added); R. 3:21-4(h) (“At the time sentence is imposed the judge shall state reasons for imposing such sentence including. . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence”) (emphasis added).  Thus, a remand for resentencing is required in this case because the sentencing court merely listed the aggravating factors it found without providing the required explanation.  Second, the error with the court’s finding of aggravating factors 3 and 9 is both further demonstrated and heightened by the court’s finding of inconsistent mitigating factors: 8, circumstances unlikely to recur, (12T 36-13 to 18) and 9, character and attitude indicate defendant is unlikely to reoffend.
[brief] **Standard of Review**  On appeal, this court must apply the same standard of review as the trial court – it defers to the Board’s factual findings if there is substantial credible evidence to support them, *Kramer v. Bd. of Adj.*, 45 N.J. 268, 285 (1965), but give no deference legal conclusions.  *See, Reich v. Bd. of Adj.*, 414 N.J. Super. 483, 517 (App. Div. 2009).  The focus must be on whether the Board’s exercise of its discretionary authority is arbitrary and capricious or unreasonable.  *Price v. Himeji, LLC*, 214 N.J. 263, 284 (2013).  The Board’s decision can be affirmed only if it exercised its discretionary authority properly.  *Id.*  If not, the Board acted in an arbitrary and capricious manner mandating a reversal.  *See Cell South of N.J. v. Bd. of Adj.*, 172 N.J. 75, 89 (2002).  “While the words ‘arbitrary and capricious’ may sound harsh, they are simply the standard of appellate review in particular cases. ”  *Anatasio v. Planning Bd.*, 209 N.J. Super. 499 (App. Div.), certif. denied, 109 N.J. 46 (1986).
[brief] **STATEMENT OF FACTS**  On December 31, 2017, the [...] hosted a small gathering at [...] in [...] to watch the ball drop New Years Eve.  (6T:100-23 to 24); (6T:115-17 to 116-2).  [...], [...], [...], [...], [...] Sr., [...], [...], [...], [...] and [...] were present at the gathering.  (6T:115-23 to 116-12).  Linda and [...] were the parents of [...] Jr., [...] and [...].  (6T:101-2 to 104-18).  Richard and [...] are [...]’s aunt and uncle that lived in a separate apartment in the basement of the Kologi home located at [...].  (6T:107-6 to 108-1).  [...] is [...]’s grandfather and [...] was [...]’s longtime girlfriend.\(^2\) (6T:108-3 to 8).  [...] was [...]’s girlfriend at the time.  (6T:114-11 to 25).  [...] had another sibling, [...], who did not live in the house at the time.  (6T:105-3 to 9).  [...] was approximately five (5) years older than [...] Jr. (6T:105-10 to 11).  On New December 31, 2017, [...] was at the Kologi for approximately two hours during the day before leaving to go to a friend’s house in Philadelphia later that night.
[brief] ARGUMENT POINT I STANDARD OF REVIEW  [Issue not raised below]  Plaintiff appeals from both the trial court’s Order dismissing the complaint under Rule 4:6-2(e) and the trial court’s Order denying Plaintiff’s motion for reconsideration.  A. R. 4:6-2(e)  Motion To Dismiss [Issue not raised below]  “We review de novo a trial court's denial of a motion to dismiss a complaint for failure to state a claim under Rule 4:6-2(e).
[brief] (Da999-1000).  On January 17, 2018, the Company moved to confirm that award, and [...] opposed.  [...] did not raise the three-arbitrator, even though [...] was already aware of it, since his correspondence with the [...] about three arbitrators all predated that confirmation motion.  [...] did not temporarily forget, since he said twice in his brief that the Company’s amended pleading resulted in a “large complex case by the [...]. ”  [...] took the issue of the arbitrator’s authority to act all the way to the New Jersey Supreme Court in Phase I (Da460) yet in Phase II decided to take a nearly identical, jurisdictional issue all the way… to a sternly worded letter to the [...].  (Da325)  There is simply no reason why a litigious, wealthy, licensed attorney like [...] would not raise these arguments to the trial court during Phase II, when he plainly knew the exact course of action to take if he thought he had a valid argument.  In failing to do so, he waived raising the argument now.
[brief] The archaeologist’s scope of services for the [...] are contained in its entirety in section 3.09 of the Bid Specifications under the heading “ARCHAEOLOGICAL MONITORING/ARTIFACT RETRIEVAL”  1527a-  On May 21, 2024, the [...] received and opened bids for the [...].  The three lowest bids are as follows: a. [...] - $40,255.770 b. [...] - $41,819,780 c. [...] - $50,565,551 (0274a).
[directive] $500 to $1,000 10% permissible b.  Defiant trespass.  Actor not licensed or privileged enters or remains in any place where notice is given by communication, posting or fencing; petty disorderly persons offense.  c.  Peering into dwelling.  Actor when not licensed or privileged peers into a window or other Petty  Disorderly $100 to $500 10% permissible opening of a dwelling or other structure adapted for overnight accommodation for the Persons purpose of invading the privacy of another person; fourth degree 2C:20-2 Theft  This section indicates grading of various theft offenses.
[brief] Cole, 215 N.J. at 281.  Here, the Trial Court made no findings as to this factor.  [4T47:25-48:2].  Regardless, the brief interval between the case’s transfer to the Law Division and the timing of Defendants’ motion seeking arbitration conferred no benefit on Defendants, and moreover, does not bespeak a litigation strategy of the Defendants in any sense.  Contrary, any undue delay is more suggestive of the Plaintiff’s litigation strategy where he intentionally omitted reference to the Partnership Agreement and 2007 Addendum to the Partnership Agreement in his pleadings in an effort to avoid their application.  With respect to the fourth Cole factor, the Trial Court correctly determined that the parties have not yet exchanged any discovery in this matter, except for certain subpoenaed documents that Plaintiff sought and received from Defendants’ prior counsel, [...].
[brief] | 10 | | 109 N.J. 575 (1988).  | | | Henry v. Rahway State Prison | 10, 11 | | 81 N.J. 571 (1980) | | | In Re Adopotion of N.J.A.C. 7:15-5.24(b) | 26 | | 420 N.J. Super. 552 (App. Div. 2011) | | | In Re Carter | 11 | | 191 N.J. 474 (2007).  | | | In Re Freshwater Wetlands Gen. Permits | 23 | | 372 N.J. Super. 578 (App. Div. 2004) | | | In Re Herrmann | 12 | | 192 N.J. 19 (2007)  | | | In re [...] Conditional | 12, 16, 17, 21, 22 | | Highlands Applicability Determination, [...] | | | 433 N.J. Super. 223 (App. Div. 2013) | | | In Re [...] | 12, 13 | | 247 N.J. Super. 13 (App. Div. 1991).
[brief] Following approval, counsel for the [...] and [...] worked jointly on the form of resolution, the final version of which was circulated on October 7, 2022.  Pa238-Pa262.  [...] specifically requested that the [...] consider the resolution at the [...]’s next meeting.  Pa263.  The [...] did not respond, and the resolution was not considered at all in October or November.  Pa265.  As the [...] had failed to consider the resolution in a timely manner, [...] was left with no choice but to serve a Notice of Default under the Settlement Agreement on November 21, 2022.
[brief] To the contrary, [...] testified that [...]’s proposal would enhance the general welfare of the surrounding community since the proposed use would be significantly less intense than other uses permitted under the Zoning Ordinance.  Pa249, at 85:14-24.  The B-3 Zone permitted uses include: retail stores, mercantile stores, professional and governmental offices, radio and television repair as well as furniture repair, and other similar service establishments furnishing services other than that of a personal nature.  Pa407.  Restaurants are also permitted as conditional uses.  As [...] testified, a retail use or restaurant, for example, would not be as appropriate of a use compared to the non-conforming mixed-use building in the Second Application because the number of available parking spots would be lower and the constant inflow of deliveries in and out of the Property would be significantly larger.
[brief] Additionally, the Congregation’s HVAC system remained connected to the boiler room on the Subject Property from the time the Congregation was constructed until 2012 when Defendant cut off the system.  (Da129, Da948)  Moreover, [...] established without contradiction that the Congregation has paid for the lighting and snow maintenance of the Fifth and Sixth Street Lots since at least 1995 when he took over as the Rabbi of the Congregation, through to the present.  (8T 5:1-6:18)  In 2007, [...] caused the 1963 Agreement to be recorded as an easement in attempt to protect the Congregation’s historic easement rights proving unquestionably that the Congregation never terminated its easement rights.  (8T 8:19-13:25)  Based upon the evidence presented at trial, the Trial Court correctly concluded Defendant failed to establish the 1972 Site Plan prohibited parking on the Sixth Street Lot or the easement granted to the Congregation in the Subject Property was renounced or terminated as a result of the 1972 Site Plan approval.  Moreover, the Trial Court found the testimony of the Congregation’s witnesses was credible and the evidence establishes the Congregation continuously and without interruption enjoyed its easement rights in the Subject Property, including utilizing the Fifth Street and Sixth Street Lots for parking and connecting its HVAC system to the boiler room located on the Subject Property.  (Da980)  Accordingly, the Congregation never abandoned or terminated its easement rights.