ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (Pa493).  On the evening of May 23, 2022, the Homeowners continued the presentation of their case in chief with supplemental testimony from [...], --- 4  See prior footnote regarding the adoption of the Appellants’ citation convention for the transcripts of the hearings before the Zoning Board of Adjustment.  The transcript from the motion argued before the Trial Court will be referred to hereinafter as “1T.” the surveyor and the architect as well as testimony from a professional planner.  (Pb5).  All four (4) witnesses were cross-examined and the Objectors commenced (but did not conclude) their case in chief.  (Pb5).  Immediately following the May 23, 2022 hearing, counsel for the ZBA wrote to the Homeowners and the Objectors to alert the parties that, due to an audio malfunction, there was no audio recording of the May 23, 2022 hearing.
[brief] The distinction is ultimately fatal to the Board’s misplaced reliance on these two cases to deny [...] from filing his application.  Cardinale and M.R. both regained physical fitness or would in the five-year period.  [...] we know did not and could not, based on the therapist’s report which s unrebuted, ever regain fitness.  Most importantly, in *Cardinale* and *M.R.* the exception provision in subsection (2) of *N.J.A.C.* 17:1-6.41 was not available to these litigants.  That exception provision as we know from the aforementioned arguments above allows for an application for retirement permanent disability to be made even if an irrevocable settlement agreement occurs as long as the dismissed IA charges are related to the disability.  [...] enjoys having that right.  M.R. and Cardinale as litigants did not have that right and neither unlike [...] alleged any more than temporary disability.  M.R. and Cardinale intended to return to work, whereas [...] is seeking permanent 2/3 accidental disability.  As the ALJ clearly recognized, the statutes involved in our matter before Board must be considered only after the decider liberally interprets that statutes that are pertinent matter, and that did not occur in this matter.
[brief] ..............................................................................................................45  Kanter v. Passaic, 107 N.J. Super. 556 (L. Div. 1969) ...............................................................47  Kozesnik v. Montgomery, 24 N.J. 154 (1957) .........................................................................................49  Nunziato v. Planning Bd. of Edgewater, 225 N.J. Super. 124 (App. Div. 1988) ............................................................35  O’Connell v. State, 171 N.J. 484 (2002)  .......................................................................................23 SB Bldg. Assocs., L.P. v. Planning Bd., 2017 N.J. Super. Unpub. LEXIS 36 (App. Div. Jan. 6, 2017) .........................32, 33 State v. Miller, 170 N.J. 417 (2002)  .......................................................................................23  Taxpayers Assn. of Weymouth Tp. V. Weymouth Tp., 80 N.J. 6 (1976), cert. den. 430 U.S. 977 (1977) .............................................44, 49 Trust Co. of NJ v. Planning Bd., 224 N.J. Super. 553 (App. Div. 1990) ............................................................49 Weeden v. City Council of the City of Trenton, 319 N.J. Super. 214 (App. Div.), cert. den. 192 N.J. 73 (2007) .......................33, 34 Statutes Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq.............passim Municipal Land Use Law, N.J.S.A. 40:55D-42 .................................................26 N.J.S.A. 40:55C-1, et seq...............................................................................47 N.J.S.A. 40:55D-42 .......................................................................................32, 34 N.J.S.A. 40A:12A-1(b) ..................................................................................................................38 N.J.S.A. 40A:12A-4 to -8 ..............................................................................................................40 N.J.S.A. 40A:12A-7.....................................................................................................................8, 11, 25, 46, 50 N.J.S.A. 40A:12A-7(e) ...............................................................................................................40
[brief] ”).  In line with this general rule, our courts have held that a party without standing cannot disqualify opposing counsel.  The most prominent example of this rule is *In re Trust for the Benefit of Duke*, 305 N.J. Super. 408 (Ch. Div. 1995), *aff’d o.b.*, 305 N.J. Super. 407 (App. Div.), *certif. denied*, 151 N.J. 73 (1997).
[brief] 8a.  The Proposed Amended Pleading alleged by way of counterclaim that tenants Brian and [...] operated an illegal business on the Property and caused environmental damage to the Property by installing a parking area using asphalt “millings” and by discharging fuel, oil, chemicals and other hazardous substances on the Property requiring remediation.  See 8a; Da75.  Based upon these facts, [...] included a claim for negligence against Brian and [...], and a claim for violation of the New Jersey Spill and Compensation and \(^1\)  The granting of summary judgment by [...] truly was not on the merits, because although the Chancery complaint named the Puglias as defendants, the complaint literally contained no claims against them.
[brief] As the Trial Court stated:  Although the Court did not establish a per se requirement that an expert analysis include an assessment that accounts for the novice status of a new business, patent in the Court’s analysis was that consideration of a Plaintiff’s novice status was preeminent among the constellation of factors to be determined.  [1285a-1286a].  The Trial Court acknowledged that the Supreme Court did not establish a per se requirement that an expert include an assessment that accounts for the novice status of a new business, yet in the same breath impermissibly created a standard that the Plaintiff’s novice status is the “preeminent” factor in the Court’s analysis.  According to the Trial Court, the underlying facts demonstrating that the novice nature of the new business was irrelevant were not preeminent, expert testimony establishing that the novice nature of the new business was irrelevant was not preeminent, and the circumstances and factual reality were not preeminent.  However, the Trial Court did not have authority to invent this standard where the “novice” status of a business is so “preeminent” as to overlook expert testimony explaining that in this particular set of facts the newness of the business was in fact irrelevant.
[brief] (4T53:8-14; 4T191:9-193:10).  The Trial Court recognized [...] as an expert in the fields of architecture, engineering, human factors, and facilities management and [...] as an expert in the field of medical billing.  (4T59:19-60:5; 4T191:9-193:10).  The plaintiff rested her case on June 9, 2023 at which time the defendant moved for dismissal.
[brief] (625a-626a).  All Plaintiffs retired before the union voted on whether to approve the settlement of the First Police Matter.  As part of the settlement agreement of the First Police Matter, the parties agreed to modifications of the June 7, 2017 Implementation Memorandum.  Compare (217a-219a) & (230a-234a).  Many of which terms were inured to the benefit of the police unions and their membership.  Ibid.  For instance, the Defendants negotiated a provision awarding each police officer 110 hours of Kelly time per calendar year.  (230a ¶2).  Further, the parties agreed that there would be an anticipated savings to the municipal budget of $2.261 million dollars due to police officer retirements.  (230a ¶3).  The parties agreed to allocate this anticipated $2.261 million dollars to the 252 currently employed law enforcement officers actively employed as of the date of this agreement.  Ibid.  The agreement further provided that the unions will provide a proposed distribution of these additional monies to each of the actively employed law enforcement officers which is subject to review and approval by both Defendants, which approval shall not be unreasonably withheld.  Ibid.  This additional money was included in each officer’s base salary and is pensionable.  Ibid.  Further, sergeants also benefited the settlement agreement.  While the June 7, 2017 Implementation Memorandum directed that the current rank differential upon promotion from police officer to sergeant was eliminated (222a), the settlement agreement increased their base salaries to $100,000 per year.  (231a ¶3).  In addition to the foregoing, Defendants also agreed to review the amount of overtime for any significant savings and take same into account when making determinations regarding salary increases the following year.  (232a ¶8).  Defendants also withdrew a directive from the June 7, 2017 Implementation Memorandum that reduced police officers’ workers compensation payments.  (231a ¶5).  On June 7, 2017, [...] directed that police officers would receive only 70% of their weekly wages while on workers’ compensation.  (218a)  In the settlement agreement, “[t]he parties agree that employees will receive one hundred percent (100%) of his/her pay when absent due to approved workers’ compensation leave.
[brief] [...] has been a licensed attorney since 1973.  His practice includes, among other areas, simple Will preparation.  His practice does not include estate or tax planning.  (Pa000192-193)  Prior to meeting with [...], [...] and [...] discussed how [...] wanted to distribute his assets to his wife, to [...], and to [...].  At that time, [...] had concerns about his wife’s health, which had started to decline.  [...] wanted [...] to inherit the $500,000 from the mortgage and note and the interest thereon, so that [...] could continue with the business and take care of his mother.
[brief] TABLE OF ORDERS BEING APPEALED ................................................................. iii  TABLE OF AUTHORITIES .................................................................................. iv  PROCEDURAL HISTORY ..................................................................................1  STATEMENT OF FACTS ....................................................................................3  ARGUMENT ........................................................................................................4  A.  The Appeal Should Be Dismissed Because the [...] are not Creditors and Lack Standing .................................................................4  B.  The Appeal Should Be Dismissed Because the [...] Are Litigating Their Claim In Another Action .................................................................6  C.  The [...] have Failed to Provide Evidence that the Court Abused Its Discretion or Erred .................................................................8  CONCLUSION .....................................................................................................10  TABLE OF ORDERS BEING APPEALED
[directive] AG Directive 2010-2 (“Supplemental Directive Modifying the Guidelines to Account for Judicial 5 Brimage Authority to Waive or Reduce Mandatory Minimum Sentences in School Zone Cases Pursuant to N.J.S.A. 2C:35- https://www.nj.gov/oag/dcj/agguide/directives/brimage_all.pdf; AG Directive 2004-2 7b”), issued March 12, 2010, (“Brimage Guidelines 2: Revised Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12”), https://www.nj.gov/oag/dcj/agguide/directives/brimagerevision.htm.  issued July 15, 2004, e.g., Revised Guidelines, Appendix 1B (“Brimage Plea Negotiation Worksheet”), 6 See, Brimage https://www.nj.gov/oag/dcj/agguide/directives/appendix1b.pdf, and Appendix II (“Table of Authorized Plea Offers”), https://www.nj.gov/oag/dcj/agguide/directives/appendix2.pdf.  “[...] Convenes the Criminal Sentencing and Disposition Commission,” February 11, 2018, 7  https://nj.gov/governor/news/news/562018/approved/20180211a_criminal.shtml.  Page 4 unanimously recommended that the State, among other things, eliminate mandatory minimum sentences for non-violent drug crimes.  The Commission—which includes the Attorney General, the Public Defender, the President of the New Jersey County Prosecutors Association, and the Chairman of the State Parole Board, as well as representatives of the Governor and legislative leaders of both parties—recommended that the Legislature amend the State’s sentencing laws to end the imposition of mandatory parole ineligibility for these crimes and create a mechanism to retroactively modify the sentences of individuals currently incarcerated under mandatory terms.8 minimum
[brief] Id.  The Court also found that the business could be chargeable with a duty to be “familiar with the perimeter outside its unit and other common areas that its invitees and passersby might foreseeably use. ”  Id., at 263.  In this case, however, there are no similar facts which are analogous to the key factors that the Nielsen Court relied upon.  First, there is simply no evidence that anyone at [...] directed to travel around the side of the parking lot towards the back of the building, as was the case with the contractor in Nielsen.  Plaintiff claimed that he told the people in [...]’s kitchen that he was going to bring the birthday cake to the back door, but there is no evidence—even from Plaintiff, himself—that anyone from [...] directed Plaintiff to bring the cake to the back of the restaurant.  Furthermore, the area where the accident allegedly occurred is not the “perimeter outside [[...]’s] unit” nor in an area where [...]’s invitees “might foreseeably use. ”  Id., at 263.  The spot where the accident occurred was along the perimeter of the shopping center, itself, but well away from [...]’s unit.  Moreover, it was not an area which its patrons might foreseeably use.  There is no public access to the restaurant from the rear of the building, and the entrance for the public is at the front of the building.  When Plaintiff went 8  This is a point which [...] disputes.  to retrieve the cake, he proceeded from his car past the public entrance and proceeded along the side of the building.  He clearly left the area which might be considered a place that patrons “might foreseeably use. ”  Thus, the key factors in Nielsen are not present here, and [...] was correct in finding that the conclusion in that case had no bearing on the present matter.
[brief] [2T].  She granted the State’s motion to dismiss Count Five of the Indictment, Distribution of Drug Paraphernalia.  [2T8-1 to -25].  The State moved to amend the language in Count Four of the Indictment, which originally charged defendant with Distribution of a Controlled Dangerous Substance.  [2T8-13 to -18; 2T9-4 to -19].  The State moved to amend the language to Possession with Intent to Distribute.  [2T9-4 to -19].  The State sought to introduce evidence that the defense characterized as N.J.R.E. 404(b) material.  [2T24-11 to 27-6].  The State argued that evidence of a prior CDS distribution transaction captured on CCTV footage corroborated the State’s theory of the case and evidence of phone calls made by defendant while he was in the [...] asking someone to find witnesses to testify on his behalf served to negate defendant’s theory of the case.  [2T24-11 to 27-6].  [...] held that the material was too prejudicial in its current form to be admitted at trial.
[directive] 1.0.2  State and federal courts have emphasized the importance of the internal affairs function for protecting the constitutional rights and civil liberties of the State’s residents.  Case law generally requires that law enforcement agencies do three things under the internal affairs function.  First, agencies must implement an internal affairs policy that provides for a meaningful and objective investigation of complaints and other evidence of police misconduct.  Second, agencies must monitor and track the behavior of police officers for incidents of misconduct.  Third, when officers are found to have engaged in misconduct, agencies must correct the behavior.  The courts have with increasing frequency issued decisions that set minimum standards of performance for the internal affairs function.  1.0.3
[brief] “[A]ppellate review,” nonetheless, “remains a backstop to correct errors that may not be caught at or before trial. ”  Guerino, 464 N.J. Super. at 620.  In determining the reliability of an in-court identification, the Court in Madison, 109 N.J. at 243, adopted the factors set forth in Manson, 432 U.S. at 114.  Those factors include the “opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation and the time between the crime and the confrontation. ”  Id. at 239-40 (quoting Manson, 432 U.S. at 114).  Significantly, in Guerino, we recently rejected a defendant's contention that the court should “ban all in-court identifications, or at least to restrict in-court identifications to cases where there has been an ‘unequivocal’ out-of-court identification.
[brief] Both defendants and the trial court relied heavily on the fact that the Commissioner of the [...] (“[...]”) approved the form endorsement containing Exclusion C5.  Their argument is the endorsement cannot possibly violate public policy because the Commissioner approved it.  Approval by [...], however, is not dispositive.  It does not mean the endorsement must be enforced, especially where, as here, the endorsement violates statutory intent.  Statutes and legislative intent trump [...].  Indeed, courts have held that approval by the Commissioner of Insurance of a form endorsement, like the one at bar, is ultra vires where the endorsement violates statutory intent.
[brief] Dueñas v. Life Care Ctrs. of Am., 236 Ariz. 130, 139(Ct. App. 2014).  “New Jersey case law is guided by the principle that unless both parties are signatories to the agreement, one party may not compel the other party to arbitrate unless the benefits of the underlying arbitration agreement have extended to the non-signatory party ‘based on the traditional principles of contract and agency law. ’”  In re Estate of Hekemian, 2022 N.J. Super. Unpub. LEXIS 191, *20, aff’d N.J. Super. Unpub. LEXIS 60 (App. Div. 2023) (citing E.I DuPont de Nemours and Co. v. Rhone Poulenc Fiber and Resin Intermediates, S.A.S., 269 F.3d 187, 200 (3d Cir. 2001); Wasserstein v. Kovatch, 261 N.J. Super. 277, 286, 618 A.2d 886 (App. Div.), certify. Denied, 133 N.J. 440, 627 A.2d 1145 (1993)).
[brief] [...] testified that [...] asked to say something during the lineup, and said, “If you have something to say on Facebook, say it to my face” in response to comments made about the prior evening’s activities.  (Pa114a).  Minivich testified that he did not know what had been posted on Facebook.  (Pa114a).  During cross-examination, Minivich admitted that he never felt threatened by [...]’s words.  (Pa114a).  [...] also testified that the only thing [...] said to [...] was, “If you say something, say it to my face. ” (Pa114a).  In a similar fashion, [...] did not hear any threatening language or threats addressed to [...].  (Pa114a).  Maretti and [...] were at opposite ends of the line during the lineup.  (Pa114a).  [...] testified that at the end of the lineup, [...] stated, “Can I say something?
[brief] The headings of the various counts of Plaintiff’s complaint were:  Count I: N.J. Constitution  Violations of Article I, Paragraphs 1, 6, 7, 10, 18, 20, 22  Count II: Violation of N.J.S.A. 10:6-2(c)  Count III: Violation of N.J.S.A. 10:5-4, 12(d)(e)(f), N.J.S.A. 10:1-2, Place of Public Accommodations  Count IV: Wrongful Arrest, False Imprisonment, Malicious Prosecution, Assault and Battery, Excessive Force  Count V: Reckless and Intentional Infliction of Extreme Emotional Distress  Count VI: Class of One Endangerment; [...] [sic]
[brief] Supplemental discovery request from Defense Counsel to State, dated October 28, 2020 .................................................................Da1 Follow-up email from Defense Counsel to State, dated November 17, 2020 .................................................................Da2 Notice of Motion to Compel Discovery, dated March 31, 2021 .................................................................Da3 # TABLE OF AUTHORITIES | Cases | Pages | |--------------------------------------------|------------------------| | Arizona v. Youngblood, | 11 | | 488 U.S. 51 (1988) | | | Berger v. United States, | 10 | | 295 U.S. 78 (1935) | | | Brady v. Maryland, | 9, 10, 11, 14 | | 373 U.S. 83 (1963) | | | Branzburg v. Hayes, | 21 | | 408 U.S. 665 (1972) | | | California v. Trombetta, | 14 | | 467 U.S. 479 (1984) | | | Crane v. Kentucky, | 19 | | 476 U.S. 683 (1986) | | | Kyles v. Whitley, | 10, 15, 16 | | 514 U.S. 419 (1995) | | | Napue v. Illinois, | 17 | | 360 U.S. 264 (1959) | | | State of New Jersey v. Dreher, | 11, 14 | | 302 N.J. Super. 408 (App. Div. 1997) | | | State of New Jersey v. Ford, | 8 | | 240 N.J. Super. 44 (App. Div. 1990) | | | State v. Francis, | 21 | | 191 N.J. 571 (2007) | | | State of New Jersey v. Hollander, | 10, 11, 16, 17, 19 | | 201 N.J. Super. 453 (App. Div. 1985) | | | Cases | Pages | |-------------------------------------------|-------| | State of New Jersey v. Laganella, | 12 | | 144 N.J. Super. 268 (App. Div. 1976), | | | app. dism. 74 N.J. 256 (1977) | | | State of New Jersey v. Landano, | 17 | | 271 N.J. Super 1 (App. Div. 1994) | | | State of New Jersey v. Marshall, | 11 | | 123 N.J. 1 (1991) | | | State of New Jersey v. Mustaro, | 9 | | 411 N.J. Super. 91 (App. Div. 2009) | | | State of New Jersey v. Robinson, | 9 | | 229 N.J. 44 (2017) | | | State of New Jersey v. Russo, | 9 | | 333 N.J. Super. 119 (App. Div. 2000) | | | State of New Jersey v. Spano, | 10 | | 69 N.J. 231 (1976) | | | State of New Jersey v. Tull, | 8 | | 234 N.J. Super 486 (Law Div. 1989) | | | Taylor v. Illinois, | 19 | | 484 U.S. 400 (1988) | | | United States v. Bagley, | 8 | | 473 U.S. 667 (1985) | | | Washington v. Texas, | 19 | | 388 U.S. 14 (1967) | | TABLE OF AUTHORITIES
[brief] **  In fact, the testimony cited by Plaintiff on Pb24 confirms that [...] did apply “walking finish” paint.  (Pa451, 15:19-22 (“Q. And item No. 3 [on Pa393], apply two coats exterior acrylic walking finish paint, was that completed as part of this project? A. Yes. ”)).  Plaintiff’s confusion over the type of paint is nothing new and was addressed by [...].  (T 24:4 – T 25:16; Pa6 (“Even if Plaintiff had not confused the paint used on the stairs…”)).  In short, there is no evidence to suggest that there was anything wrong with the paint used by [...].  There is no expert on behalf of Plaintiff who offers an opinion as to the paint being defective.
[brief] ”).  In that regard, it is also clear from the record that Plaintiff is solely responsible for the delays in this case.  Plaintiff’s assertion that the “of the seven years, 3.5 are attributable to the Defendant’s removal to what they knew was a much slower court system” (Pb43) is categorically false.  First, Plaintiff provides absolutely no support for his contention that the federal district court is a “slower court system. ”  Moreover, the “slow” nature of the federal court system was not what caused the delays in this case; rather, as the record establishes beyond any doubt and as set forth in the Procedural History Section above, Plaintiff is solely responsible for the unreasonable delays in this case.  Plaintiff, unsurprisingly, completely glosses over this aspect of the case with a statement that Plaintiff “admits” that this case “suffered a tortured history” in the District Court.  (Pb18).  This “tortured history”, however, is highly relevant to this appeal because, as the Trial Court correctly found, Plaintiff’s conduct during the federal action of not only filing convoluted non-confirming pleadings, but then seeking upwards of four (4) extensions for any brief and still often failing to make timely filings, is the primary reason why this case is over seven years removed from the date of the subject incident and is not yet even past the pleading stage.