ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] 15  POINT I THE LOWER COURT’S ORDERS DISMISSING THE COMPLAINT AGAINST [...] PURSUANT TO RULE 4:6-2(e) FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED SHOULD BE AFFIRMED IN ALL RESPECTS, AS SHOULD THE LOWER COURT’S DENIAL OF PLAINTIFF’S MOTION FOR RECONSIDERATION  ........................................................................................................ 15  The lower court correctly determined that the [...] policy is not an “all-risks” policy ..............................................18  The lower court correctly ruled that the [...] policy provides no liability coverage for the events set forth in the underlying lawsuit ........................................20  CONCLUSION
[brief] I.  PRELIMINARY STATEMENT .................................................................1  II.  PROCEDURAL HISTORY AND STATEMENT OF FACTS .......................4  A.  Trial Court Proceedings ........................................................................9  1.  The First Day Of Trial And Relevant Facts ........................................9  2.  The Second Day Of Trial And Relevant Facts ..................................12  3.  The Third Day Of Trial And Relevant Facts ....................................14  B.  The Trial Court’s Findings ..................................................................19  III.  STANDARD OF REVIEW .....................................................................23  A.  Plain Error/Clearly Erroneous ..............................................................23  B. De Novo ..............................................................................................23  IV.  ARGUMENT .........................................................................................24
[brief] ”  Defendants held the power at all times to eliminate the need for collection fees to be incurred by posting a bond for the merits appeal, as they had pledged to the trial court they would do, to return the secreted funds after they were ordered to do so, or to cooperate with rather than obstruct efforts to liquidate their remaining domestic assets, including [...].  Instead, they have repeatedly perjured themselves concerning their ability to pay and thrown up roadblock after roadblock in response to every attempt to collect what is owed.  Notwithstanding that ongoing obstruction, through painstaking and persistent efforts, Plaintiff’s counsel has managed to recover more than $21 million thus far towards satisfaction of the judgment.  All work done in furtherance of those efforts was necessary and in good faith, and fastidiously documented in the records appended to counsel’s affidavit.  Plaintiff believes reimbursement of all of those fees is warranted and that the fee award should be affirmed in full.
[brief] ...............................................................................................................................  19  #  TABLE OF AUTHORITIES | Cases | Page(s) | |----------------------------------------------------------------------|---------| | **Cherokee LCP Land, LLC v. City of Linden Planning Bd.,** | 15 | | 234 N.J. 403 (2018)  ........................................................................... | | **Cummings v. Bahr,** | 18 | | 295 N.J. Super. 374 (App. Div. 1996)  ......................................... | | **D’Atria v. D’Atria,** | 18 | | 242 N.J. 393 (Ch. Div. 1990)  ..................................................... | | **Fusco v. Board of Ed Newark,** | 17 | | 349 N.J. Super. 455 (App. Div. 2002)  ......................................... | | **In re Probate of Alleged Will of Hughes,** | 18 | | 244 N.J. Super. 322 (App. Div. 1990) ......................................... | | **In Re: Estate of Hope,** | 17 | | 390 N.J. Super. 533 (App.  Div. 2007)  ......................................... | | **Packard-Bamburger & Co. v. Collier,** | 18 | | 167 N.J. 427 (2001)  .......................................................................... | | **Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment,** | 17 | | 440 N.J. Super. 378 (App. Div. 2015)  ......................................... | | **State v. Elders,** | 16 | | 192 N.J. 224 (2007)  .......................................................................... |
[brief] While defendant points to *State v. Branch*, the Court in *Medina* noted:  In *Branch*, we were troubled not by the inherently inflammatory nature of the phrase “based on information received,” but the use of that language given the lack of physical evidence in the case and the fact that the sketch and the witnesses' descriptions of the defendant resembled neither his appearance on the day of his arrest nor the picture of him in the array.  *In the absence of anything else tying the defendant to the crime*, the jury could easily have inferred that the “information received” by the detective was from a non-testifying witness.  [Id. at 419-20.  (emphasis added)]  The Court also specified that the question was “whether *Branch*'s embargo of the phrase ‘based on information received’ extends to other, broader explanatory phrases,” and that answer depends on the context of the testimony.
[directive] Iniciales del acusado/Defendant’s Initials Formulario principal de declaración/Formulario enmendado promulgado por la directriz #01-18 (02/23/2018), CN 10079-Spanish página 2 de 7 Main Plea Form/Revised Form Promulgated by Directive #01-18 (02/23/2018), CN 10079-Spanish page 2 of 7 f. 5.  Si la infracción ocurrió el 5 de enero de 1994 o después de dicha fecha y se le sentencia a [Sí/Yes] [No/No] libertad a prueba, usted tendrá que pagar un cargo de un máximo de $25 dólares por mes durante el término de la libertad a prueba?  If the offense occurred on or after January 5, 1994 and you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation?
[brief] With respect to the Hawaii issue, Plaintiff eventually did file a petition in Hawaii seeking the appointment of a special administrator, and an administrator was appointed.  After an investigation, the Hawaii administrator issued a report stating that no assets belonging to the Estate were found in Hawaii.  (2T:8:16-19)\(^1\).  Not unlike what occurred in New Jersey, legal fees, once again, this time in connection with Hawaii, were spent on a fruitless search at Plaintiff’s urging.
[brief] Critically, references to the facts and the record are pivotal to the reliability of an expert’s opinion, as noted in Nguyen v. Tama, 298 N.J. Super. 41 (App. Div. 1997).  The overarching, fatal defect with Plaintiff’s expert report is that it is rendered only to “a reasonable degree of probability.  (413a).  However, an expert report cannot be merely speculative or conjectured – it must state its opinion to a reasonable degree of certainty and [...]’s report plainly does not.
[brief] **STATEMENT OF FACTS**  On or about April 8, 2019, Plaintiffs filed an eight count Complaint in Lieu of Prerogative Writ stemming from the City’s adoption of an Ordinance granting [...] a thirty (30) year tax abatement for its Project pursuant to the HMFA Law.  Pa1.  The principal allegation raised in the Plaintiff’s Complaint with respect to the abatement granted to [...] by the City appears to be that the tax abatement was wrongfully granted under the HMFA Law, which Plaintiffs assert has been superseded by the Long Term Tax Exemption Law, N.J.S.A. 40A:20-1 et seq. (the “LTTEL”).  Pal.  This case was stayed pending a decision on the [...] Appeal.  The [...] case was an appeal filed by Plaintiff-Appellant, [...], from the July 20, 2020 final decision of the [...] (“[...]”) affirming its mortgage financing commitment for $76,975,000 in permanent funding for the project known as “[...]” in East Orange.  WP32a.  One of Mr. Feld’s primary arguments in [...] is also the primary argument made here – namely, that the LTTEL repealed the HMFA Law.  WP32a.  As it pertains to this matter, this argument is the basis for which Plaintiffs-Appellants sought, among other things, to nullify and invalidate the Ordinance, which granted a thirty (30) year tax abatement to [...] pursuant to the HMFA Law – not the LTTEL – for the Project.  Pal.  Only Count One of the Complaint makes direct allegations against [...].  Pal.  Specifically, Plaintiffs-Appellants allege that [...] “misrepresented and concealed material information from Newark and other stakeholders for material gain. ”  Pal.  As a result, in their request for relief, Plaintiffs-Appellants sought to void and nullify the Ordinance and also sought a declaration that [...] “obtained tax incentives based upon false representations and pretenses. ”  Pal.  For the reasons set forth in more detail below, Plaintiffs-Appellants failed to state a claim upon which relief could be granted, and the Courts’ orders dismissing the Complaint with prejudice must be affirmed.  **STANDARD OF REVIEW**
[brief] Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77 (App. Div. 1961), involved the Rule 104 hearing of a medical expert at the time of trial.  Id. at 82.  The Appellate Division disagreed with the Trial Court’s determination that a showing of cranial nerve damage was a prerequisite to any proof of connection between the automobile accident and [Plaintiff’s] impairment of vision.  Id. at 86.  The Trial Court here did not make any such exclusion or finding – instead, the Trial Court found that the Plaintiff slipped and fell on ice during an ongoing storm.
[brief] That has to count for something because that is his thought process as to what he was doing when he did weigh as the State correctly points out weighing his options.  And, again, it is not a coincidence that this upon my family and the fact that I stated that my family was threatened and I received that threat while I was charged with this crime is one of my plausible reasons of colorable innocence.  Not only that, but the fact that evidence that was from the robbery case, that had no bearing on my guilt or innocence in the homicide case.  The clothing that was allowed in from the robbery that was later suppressed by the Supreme Court because it was illegally, unconstitutionally obtained by the State and it was allowed under 404(b) into my homicide trial which would have left me without the ability of having a fair trial under my Sixth Amendment right.  So that's why I state pertain to the colorable claim.
[brief] (Pb22 citing to Rosenblit, supra. at 401-402, and 407).  Appellant relies heavily on the Rosenblit case but ignored the elements of the tort actions as outlined in Plaintiff’s own papers.  (Pb22).  Plaintiff relied upon the same evidence it now wants the Court to ignore because it exposed the proposed amended claims as futile.  Basic application of the facts of this case to the actual evidence shows that [...] did not intentionally withhold any evidence with a purpose to disrupt the litigation.
[brief] Based on the purpose of the shoplifting statute, which is “preventing the loss of merchandise without full payment—the protection of inventory,” *De Angelis v. Jamesway Dep't Store,* 205 N.J.Super. 519, 525 (App.Div.1985), we believe the better approach would be to interpret full retail price to mean the pre-tax price.  Sales tax is not a part of a store's inventory, so it should not be considered in assessing the value of the merchandise stolen.  Additionally, not all goods are subject to sales tax,¹ and as such, the full retail value of certain products can never include such tax.  Imposing greater criminal liability dependent solely on whether or not sales tax is paid has no rational relationship to an assessment of the gravity of the larcenous act.  *People v. Medjdoubi,* 661 N.Y.S.2d 502, 506 (N.Y.Sup.Ct.1997).  We thus conclude “full retail value” is the price of the stolen merchandise exclusive of tax.
[brief] ”  See Cox, supra, § 34–8.2 at 819.  However, pursuant to the LRHL, the provisions of a redevelopment plan do not need to be consistent or designed to effectuate the master plan, provided the reasons for so acting are set forth in the redevelopment plan.  N.J.S.A. 40A:12A-8(d); see also Powerhouse Arts, supra, 413 N.J. Super. at 332-333 (upholding redevelopment plan amendment, citing N.J.S.A. 40A:12A-8(d) for the proposition that a redevelopment plan may be adopted regardless of consistency or inconsistency, provided a rational basis is set forth in the record).  Pursuant to the LRHL, the authority to adopt a redevelopment plan or amend a redevelopment plan is fundamentally distinct from the classic exercise of a zoning amendment that could potentially trigger illegal spot zoning.
[brief] *In the case of a closely held corporation ... the court in its discretion may treat an action raising derivative claims as a direct action,* exempt it from those restrictions and defenses applicable only to derivative actions, and order an individual recovery, if it finds that to do so will not (i) unfairly expose the corporation or the defendants to a multiplicity of actions, (ii) materially prejudice the interests of the creditors of the corporation, or (iii) interfere with a fair distribution of the recovery among all interested persons.  *(Emphasis added.)*  In the case of closely held entities, “the normal policy reasons for requiring a plaintiff to employ the form of the derivative action may not be present or will be less weighty, even though the action alleges in substance a corporate injury. ”  *Id.* at 37.  This is because “the concept of a corporate injury that is distinct from any injury to the shareholders approaches the fictional in the case of a firm with only a handful of shareholders.  *Id.; Tully*, 457 N.J. Super. at 125-26. ”  Section 7.01(d) does not go so far as to convert all intracompany disputes that --- 19 *Tully* further explained that the pre-suit demand requirement is almost always futile in the context of closely held entities.
[brief] Instead, the question is whether, in light of the failure to meet one of the conditions fixed by the zoning ordinance, the use ‘is reconcilable with the municipality’s legislative determination that the conditions should be imposed on all conditional uses in that zoning district. ’ [Coventry Square, 138 N.J. at 299].  In undertaking that analysis, the weighing is entirely different from that demanded for a (d)(1) use variance because the governing body has not declared that the use is prohibited but, instead, has elected to permit the use in accordance with certain express conditions.  Accordingly, the focus of the analysis is on the effect of noncompliance with one of the conditions as it relates to the overall zone plan.  [TSI, 215 N.J. at 42–43].  This line of case law has one common theme: a more relaxed standard for special reasons (tailored to the specific type of “(d)” variance), and to the negative criteria, when the underlying use is permitted, not prohibited, in the zone.  Like the “(d)” variances in the Coventry Square line of cases, the requested uses in this matter are permitted in the zone.  Again, the underlying use as a warehouse is permitted in both [...] and [...].  Ja085; Ja097; Ja146.  The accessory uses, which only become principal in [...] because of the municipal boundary line, are also permitted uses in both [...]’s ODL and [...]’s SM Zones.  Ja085; Ja097; Ja146.  Since the underlying use is permitted, a more relaxed standard of review, without the enhanced burden of proof, is appropriate, as the requested use variance only seeks relief for that which is already permitted on both sides of the municipal boundary.  Plaintiff had to seek a (d)(1) use variance because there was simply no other variance for the Plaintiff to seek, even though the principal use and all accessory uses are permitted on both sides of the municipal boundary line.  Indeed, if the proposed structure were to be located in [...], which it is not, the application would have been subject to a lower standard of review as a (d)(6) height variance.  Yet, all that is proposed for the [...] side of the Property are permitted, height neutral, accessory uses that result in less parking, less stormwater runoff, and less lot coverage than permitted under [...]’s ordinance.  These uses are all calculated on square footage, not volume.  Height is irrelevant, even under the ordinances themselves.  Plaintiff should not have to bear an unreasonable burden due to a mere boundary line technicality.  This Court should apply the less stringent standard of review as developed in the Coventry Square line of cases.  IV.
[brief] (Db39).  First, the *ex parte* communications between the trial court and the jury prior to deliberations did not prejudice defendant where the communications primarily concerned the practical aspects of the jury’s deliberation process.  *Ex parte* communications between a trial judge and jury are improper, and a trial court should not attempt to communicate with the jury outside the presence of counsel.  (*State v. Morgan*, 217 N.J. 1, 11 (2013)(citing *State v. Basit*, 378 N.J. Super. 125, 131 (App. Div. 2005)).  However, the existence of an *ex parte* communication does not automatically require reversal of a defendant’s conviction.  (*Morgan*, 217 N.J. at 11 (citing *State v. Brown*, 275 N.J. Super. 329, 332 (App. Div. 1994)).  An adequate record of the *ex parte* conduct may dispel a presumption of prejudice against the defendant if the record affirmatively discloses that the communication had “no tendency to influence the verdict. ” (Id. (quoting *State v. Auld*, 2 N.J. 426, 432 (1949)).  In such cases, the outcome of the trial should be upheld. (Id.).  In *State v.* Morgan, the New Jersey Supreme Court affirmed the defendant’s convictions where the ex parte communication at issue “related only to ministerial scheduling matters. ” (Id. at 15).  The record in this matter affirmatively indicates that the trial court’s ex parte communication with the jury did not prejudice defendant.  (See generally 6T:3-2 to 8-20).  As in Morgan, the trial court’s communications in this matter concerned the only ministerial matters, specifically practical aspects of the jury’s deliberations, including the presence of the sheriff’s officer, the presence of the verdict and question sheets, the doorbell used to indicate that the jurors required attention, the use of easels, and the non-deliberating jurors’ freedom to return to jury assembly.  (Morgan, supra.).  Further, nothing in the trial court’s communications before, during, or after the communication indicates that the judge’s “tone and tenor . . . generated unintended and misleading impressions of [his] subjective personal views. ” (Db43; see Basit, 378 N.J. Super. at 131 (internal citations omitted)).  As the record affirmatively discloses that the communication lacked the tendency to influence the jury’s verdict, defendant’s conviction should not be disturbed.  (Morgan, 217 N.J. at 12).
[brief] (Pa10-Pa11).  [...] was removed by the FNDA.  (Pa10-Pa11).  [...] filed his appeal of the FNDA to the Superior Court of the State of New Jersey pursuant to N.J.S.A. 40A:14-150, where supplementation of the record took place on May 23, 2022 through May 25, 2022.  (11T-16T).  Additionally, the \(^1\)Neither [...], his attorneys, or his union played any role in the selection of Departmental Hearing Officer.  Superior Court Judge was supplied with the record below\(^2\) (1T-10T; Pa1-Pa216; Pa254-Pa402).  Written closings were submitted by [...] and [...] to the Superior Court Judge, who then issued a Memorandum of Decision (Pa218-Pa249) and an Order (Pa217) on October 19, 2022.  Same affirmed the findings of the Departmental Hearing Officer below and sustained the removal of [...].  (Pa217-Pa249).  On November 28, 2022, [...] filed a timely Notice of Appeal.  (Pa250-Pa253).  This appeal now follows.
[brief] It states:  **Contents of Record.**  The record on appeal shall consist of all papers on file in the court or courts or agencies below, with all entries as to matters made on the records of such courts and agencies, the stenographic transcript or statement of the proceedings therein, and all papers filed with or entries made on the records of the appellate court.  The portions of the record that must be included in the appendix filed by appellant are set forth in Rule 2:6-1(a).  R. 2:5-4 (a).  Similarly, R. 2:2-3, under which this appeal is pending, allows for immediate appellate review as of right, “to review final decisions or actions of any \(^8\)See *Metromedia*, 97 N.J. at 331-32 (noting that one factor to be considered when determining whether an agency has engaged in *de facto* rulemaking is whether the decision “(5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter . . . .”).  state administrative agency or officer, and to review the validity of any rule promulgated by such agency or officer . . . .”
[brief] However, as New Jersey state courts (including the trial court here) have interpreted it, the Consumer Fraud Act applies only to the sale of insurance, and therefore is inapplicable here.  [See 3T33-6 (“[T]he Court agreed with [...] that the New Jersey Consumer Fraud Act has never been extended to the denial of coverage and/or benefits under an insurance policy. ”)]  In Myska v. New Jersey Manufacturers Insurance Co., for example, the Appellate Division held that, while the Act “encompass[es] the sale of insurance policies as goods and services that are marketed to consumers[,]” it was not intended as a vehicle to recover damages for an insurance company’s refusal to pay benefits.
[brief] CEPA’s goal “is not to make lawyers out of conscientious employees, but rather to prevent retaliation against those employees who object to employer conduct that they reasonable believe to be unlawful[.]”  Mehlman v. Mobil Oil Corp., 153 N.J. 163, 193-94 (1998).  It “is not the actual occurrence of a violation of the promulgated authority or public policy, but rather the existence of a reasonable belief to the effect that such authority or policy has been breached.
[brief] When photographically documenting the scene once the fire was out at the direction of the Fire Marshall’s Office, [...] observed that the majority of the damage was to the rear of the building, away from the street and that the fire significantly compromised several walls and otherwise damaged the building’s structure.  [...] took additional photographs of the damaged building the following day.  On May 29, 2018, [...] was working alone at [...], located at [...], when she heard pops, something hit the building five to six times and then glass braking.
[brief] (Da109).  In fact, [...] sent a letter to [...] of August 7, 2017 on behalf of [...].  In a letter of August 2, 2017 from [...] to Maria, [...] stated that he was representing [...] Miranda.  (Da109).  Also, counsel for Maria, in the Probate case, [...], recognized Carlos [...] as counsel for [...] Miranda in his correspondence of July 16, 2018.  (Da112).  In fact, the [...] filed a Motion on behalf of [...] to intervene in the Probate case on September 25, 2018.  (Da42).  In addition, [...] confirmed that [...] never represented him in the Probate case.