ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Plaintiff had the burden of proof; the Defendant enjoys decision-making discretion; and its decision is generally entitled to deference.  That burden of proof, discretion, and deference are not, however, without boundaries.  Deference “is predicated on the existence of adequate evidence in the record supporting the board’s determination either to grant or deny variance relief. ”  *Lang v. Zoning Bd. of Adjustment*, 160 N.J. 41, 58-59 (1999) (citing *Kramer v. Bd. of Adjustment of Sea Girt*, 45 N.J. 268 (1965)).  That discretion, while considerable, must still be “supported by substantial credible evidence from the record as a whole. ”  *Charlie Brown of Chatham, Inc. v. Bd. of Adjustment for Chatham Twp.*, 202 N.J. Super. 312, 330 (App. Div. 1985).  Zoning boards must “root their findings in substantiated proofs rather than unsupported allegations. ”  *Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor Twp.*, 172 N.J. 75, 88 (2002).  “[A] determination predicated on unsupported findings is the essence of arbitrary and capricious action. ”  *In re Holy Name Hosp.*, 301 N.J. Super. 282, 295-96 (App. Div. 1997) (citation omitted).  Said another way, if a decision is not grounded in substantial credible evidence in the record, then the board has exceeded its discretion, and deference is no longer owed.
[brief] R. 2:10-2.  The case depended on the testimony of the defendant, who testified that she stabbed the victim in self-defense.  (6T 137:10 to 138:10).  The location of the stabbing was not a major issue in the case.  [...]’s testimony that the amount of blood in the Toyota was not consistent with someone being stabbed in the jugular did not affect the outcome of the case.  There was no possibility that testimony could have led to an unjust result, rendering it harmless error.
[directive] 4.6.5  In cases involving a sexual assault, the police officer making the arrest and/or an assistant prosecutor or deputy attorney general consulted in accordance with Section 3.2 of this Directive, before trial on bail or personal recognizance, the court authorizing the release may as a condition of release issue an order prohibiting the defendant from having any contact with the victim including, but not limited to, restraining the defendant from entering the victim’s residence, place of employment or business, or school, and from harassing or stalking the victim or the victim’s friends, co-workers, or relatives in any way.  The court may also enter an order prohibiting the defendant from having any contact with any animal owned, possessed, leased, kept, or held by either party or a minor child residing in the household.  In addition, the court may enter an order directing the possession of the animal and providing that the animal shall not be disposed of prior to the disposition of the crime or offense.  The court may enter an order prohibiting the defendant from possessing any firearm or other weapon enumerated in subsection r. of N.J.S. 2C:39-1 and ordering the search for and seizure of any such weapon in any location where the judge has reasonable cause to believe the weapon is located.  The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order.  Note that the provisions of this subsection of the Directive take precedence over subsection 4.5.9 (setting forth the general standard for overcoming a presumption of issuing a complaint-summons), reflecting the paramount goal of this Directive to protect victims.  However, the police officer or prosecutor shall still consider whether mandatory detention in county jail resulting automatically from issuance of a complaint-warrant would exacerbate the domestic violence situation in a manner and to a degree that outweighs the benefits of obtaining a no-contact, weapons surrender, or other special condition of pretrial release imposed on a complaint-warrant.
[brief] ”  Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 813-14 (2011) (J. Alito, concurring) (emphasis omitted).  Conversely, N.J.S.A. 4:22-24a(2) forbids knowingly being present at and witnessing, paying admission to, encouraging, or assisting a place kept or used for the purpose of, fighting or baiting a living animal or creature, and N.J.S.A. 4:22-17c(3) prohibits a person from purposely, knowingly, or recklessly causing or procuring the torment, torture, maiming, hanging, poisoning, or the unnecessary or cruel beating, cruel abuse, or needless mutilation of a living animal or creature by any direct or indirect means, including, but not limited to, through the use of another living animal or creature.
[brief] 12  POINT I ...............................................................................................................  14  THE COURT CORRECTLY FOUND THAT THE STATE IS LIKELY TO SUCCEED ON THE MERITS .................................................................  14  A.  The Trial Court Correctly Found That The Amended Policy Likely Violates The LAD .................................................................  14  i. Disparate Treatment .......................................................................  14  ii. Disparate Impact ..........................................................................  17  B.  Appellants’ Responses Are Unavailing ..............................................  22  i. Settled Right To Relief .................................................................. 23  ii. Recordkeeping Requirements .......................................................  27  POINT II ..............................................................................................................
[brief] Da367 EXHIBIT P April 13, 2018  Order temporarily prohibiting occupancy of the Nursery School entered by the Honorable [...], A.J.S.C. Docket No. [...] Da380 EXHIBIT Q Certification of [...] in Opposition to the Emergent Relief xviii and Temporary Restraints filing in the Law Division Matter under Docket No. [...] EXHIBIT R Statement of Approval to Operate a Child Care Center dated May 1, 2018
[brief] [...] FAILS TO ADDRESS THE ERRORS IN THE TRIAL COURT’S REASONING REGARDING ARC’S SETOFF CLAIM AND IT ALSO INCORRECTLY ARGUES THAT THE SETOFF CLAIM IS ONE THAT REQUIRES A DETERMINATION OF PAYMENT LIABILITY  [...] fails to address the Trial Court’s erroneous determination regarding [...]’s setoff claim and instead repeatedly and incorrectly insists that [...] is prevented from asserting such a claim in this proceeding and the setoff claim is one that can only be resolved with an full-fledge investigation into the merits of [...]’s nonpayment claims on the Hackensack Project.  The Trial Court denied [...]’s request to assert a counterclaim for a setoff of the monies owed to [...] on a separate project because the Trial Court determined that this counterclaim could be decided in the Hackensack Arbitration.
[brief] [...] produced a \textit{physical document} which it identifies as the contract between the parties and avers that it was prepared by [...].  [...] referred to and quoted that document in its Complaint.  [...] has uniformly denied that the produced document was the contract between the parties.  He should not now be permitted to rely on it.  The Court must find that Defendant is equitably estopped from demanding arbitration by the terms of the Contract in this matter, as, to date, Defendant himself has not even acknowledged the Contract’s existence.
[brief] In 2010 alone, Defendant spent approximately $158,000 on his horses.  (2T 150:10-20)  Of course, it is his 2009 and 2010 income level that is most relevant regarding the $70,000 in question, since the down payment was made near the beginning of 2011.  If $70,000 was “significant” to him, there is no adjective to adequately express what it was to Plaintiff.  Certainly, when one compares Plaintiff’s assets at the time, approximately $200,000 plus the property in [...] and the unknown value of her 401(k), to Defendant’s 2011 assets of $3,353,431.00, and considering that for the previous twenty-three years it had been Defendant’s income and assets that had determined their lifestyle and which had provided her with support that she relied on (2T 118:3-16), it is a mere drop in the bucket for Defendant.  Additionally, the matter as to which the mistake was made did not relate to a material feature of the contract – the material feature of the contract is that the townhouse would be purchased so that Plaintiff could move out of Defendant’s house.
[brief] PLAINTIFF WAS NOT UNDULY PRESSURED TO ENTER INTO THE SETTLEMENT AGREEMENT.  Plaintiff goes on to argue that plaintiff was pressured into the settlement and that it should be set aside.  (Pb6-Pb8).  She was given an opportunity to brief this issue before the trial court and declined to do so.  (1T:42).  As such, any argument as such should be deemed waived on appeal.  See Shaw v. Bender, 90 N.J.L. 147, 150 (E. & A. 1917).  Nevertheless, if a “settlement agreement is achieved through coercion, deception, fraud, undue pressure, or unseemly conduct, or if one party was not competent to voluntarily consent thereto”, a settlement agreement should be set aside.  Peskin, supra 271 N.J. Super. at 276; see also Nolan, supra, 120 N.J. at 472.  The burden of proof is on the party seeking to set aside a settlement agreement.  See Wolkoff v. Villane, 288 N.J. Super. 282, 291-292 (App. Div. 1996).  In Peskin, the defendant was found to have been “improperly coerced” into settling the case when the trial court had indicated it would take his refusal to settle into account in any fee application and that it would hold defendant in contempt if he did not give a yes or no answer to the question as to whether he would settle, and that it “would not be ‘taking a settlement’ and ‘trying the case to conclusion’” after a lunch break.  Id. at 278.  In this matter, plaintiff alleges generically that she felt pressured to settle the matter.  (Pb7-Pb8).  However, she was simply advised both by counsel and by the trial court at a settlement conference that the policy limits of defendant [...] were $100,000.00 and that she should globally resolve for defendant [...]’s policy limits and the offer from codefendant [...].  (1T:32, Da16-Da19).  The record is devoid of any undue pressure or coercion.  **CONCLUSION**
[brief] As in this matter, the plaintiff in Morgan testified that before the subject incident, she had been asymptomatic with respect to the areas of alleged injuries, her neck and back.  Unlike in this matter, however, the plaintiff testified to suffering a prior injury, about one year before the subject incident, that resulted in neck and back pain that ‘completely recovered’.  [...] was not afforded the opportunity to review the prior treatment records, that existed, but was able to base his opinion upon the objective post-collision medical testing, coupled with physical examination and the patient’s subjective history, to offer his diagnosis of incident-related injury.  Morgan, A-2964-15T2 at 3 (App. Div. Nov. 8, 2017).
[brief] Appellants misrepresent the holdings in a number of cases, all of which are discussed in [...]’s Brief.  However, Appellants’ manipulation of Hirth v. City of Hoboken, 337 N.J. Super. 149 (App. Div. 2001) calls for special emphasis.  Appellants rely on Hirth to support the flawed argument that a challenge to a blight designation can occur concurrently with a challenge to a redevelopment plan.  (Pb19.)  In *Hirth*, two separate challenges were before the Appellate Division – a blight designation and the adopted redevelopment plan.  *Id.* at 161, 164.  Since the challenges were made within weeks of one another, there was no time-bar issue that is present in this matter.  *Id.* at 155-56.  The *Hirth* Court took special pains to undertake two separate reviews for both the blight designation and the adoption of the redevelopment plan.  *Id.* at 164.  In its review of the adoption of the redevelopment plan, the *Hirth* Court confirmed that Section 7 – not Section 5 and not Section 14 - of the LRHL was the appropriate statutory standard to apply.  *Id.* at 164-66.  The case law could not be more clear that there are two separate standards for reviewing a blight designation and adoption of a redevelopment plan.  However, for their appeal, Appellants persist in combining the two standards, which demonstrates either a fundamental misunderstanding of the law or a disturbing effort to mislead the Appellate Division as to the validity of its arguments.
[brief] **SSAP No. 25.**  All insurance entities are, of course, required to comply with all Statutory Accounting Principles, which are articulated in NAIC’s handbook and adopted by statute in all jurisdictions, including New Jersey.  Ja48-65.  These principles promulgate various reporting and disclosure requirements for a variety of financial transactions.  Id.  Specifically, as discussed above, SSAP No. 25 governs accounting and disclosures for transactions between affiliates and related parties, which it defines as --- \(^8\)  The Department demanded that [...] agree to submit to the Holding Act as a condition of its acquisition, despite knowing that [...] disagreed.  Ja36-47.  No such demand would have been necessary if [...] had already been subject to the Holding Act.  “entities that have common interest as a result of ownership, control, affiliation or by contract. ”  Id. at (4).  According to SSAP No. 25, the AIF for a reciprocal exchange is considered a related party to the exchange, and therefore transactions between the exchange itself and the AIF may be subject to SSAP No. 25.
[brief] In *Veras, supra*, 2014 U.S. Dist. LEXIS 34176, at *18* (D.N.J. March 17, 2014) (Pa134), the District Court denied defendant’s debt buyer’s motion to dismiss and stated that “it would strain logic to conclude that if a debt collector is prohibited from engaging in debt collection activity in a state, he avoids the risk of liability under the FDCPA so long as he conceals this fact and does not make any representation that he actually has debt collection authority.
[brief] See, generally, 34 CFR §99.1 to -99.67.  FERPA regulations provide that “a parent or eligible student must be given the opportunity to inspect and review the student's education records. ”  34 CFR §99.10(a).  Education records means “those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a --- \(^2\)  Indeed, the State’s policy, which it asserts here, also threatens its receipt of Federal funds.
[brief] | | | Dunkin' Donuts of N.J., Inc. v. North Brunswick Planning Bd., | 53 | | 193 N.J. Super. 513, 514-15 (App. Div. 1983) | | | El Shaer v. Planning Bd., 249 N.J. Super. 323, 329 (App. Div.), | 36 | | certif. denied, 127 N.J. 546 (1991) | | | Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., | 7 | | 369 N.J. Super. 552, 562 (App. Div. 2004) | | | Grasso v. Borough of Spring Lake Heights, | 9, 12, 13, 16, 17, 21, 22, 26, 31, 35, 52 | | 375 N.J. Super. 41 (App.
[brief] The adult Plaintiffs allege that on February 22, 2022, Plaintiff, [...], was at [...] in South Hackensack, New Jersey.  Pa0038,¶1.  Plaintiffs further allege that [...] was injured while using the trampoline equipment at the Park.  Pa0039,¶ 4.  As a precondition of entry to the Park, all participants must sign a Customer Release, Assumption of Risk, Waiver of Liability, Arbitration and Indemnification Agreement.  Pa0087-Pa0092.  [...] voluntarily signed the Agreement on the date of the alleged incident.  Pa 0087.  The Agreement provides in relevant part as follows:
[brief] Here the request, dated April 1, 2022, was for "All police reports + notes relating to:"  two individuals and one address for a specific set of date ranges.  (Da10)  (Da15)¹  Defendant promptly responded on April 7, 2022, by producing one operations report and stating that the second document was a (criminal) investigation report that was exempt from OPRA.  (Da19)  Plaintiff, instead of discussing the response with the custodian or requesting the "information" specifically identified in the pertinent section of OPRA, N.J.S.A. 47:1A-3b, immediately filed (April 19, 2022) a complaint in the Superior Court Law Division.  (Da3)  After a hearing in the Law Division, the trial court dismissed ¹  References are to Defendant’s Appendix filed herein.  the case on the grounds that the OPRA request only sought records, not the “information” described in N.J.S.A. 47:1A-3b.  (Da66-67)  On Appeal, the Appellate Division remanded to the trial court to conduct an in camera review to ascertain whether “documents and information are not improperly withheld under OPRA”.  (Da80)  The trial court conducted an in camera review and concluded that the withheld document was indeed a criminal investigatory record, but, under N.J.S.A. 47:1A-3b, then ordered the release of the “information” not requested by the Plaintiff.  (Da96)  On motion for reconsideration, he ruled that, while not creating “a new standard for records custodians under OPRA”, he was complying with the Appellate Division’s clearly binding remand decision.  (Dall14)  Unfortunately, his ruling does exactly that inasmuch as he awarded counsel fees against the [...], notwithstanding the custodian’s compliance with OPRA.
[brief] III.  [...]’s Height Restriction Is Not Capricious.  A fundamental flaw in Plaintiffs’ contentions and the trial court’s decision is that it is based upon a single property, and, incredibly, ignores the neighborhood scheme enjoyed by more than 300 other homes in the [...] community.  Restrictions to properties situated in community associations in which living conditions are close and limited, as they are in Appellant’s community, obviously require oversight to maintain a quality of life, in this case one enjoyed for 75 years, by monitoring development and, most importantly, from preventing overdevelopment.  The Appellate Division has recognized the importance and need for property restrictions in a community association.  See Cape May Harbor Village and Yacht Club Association, Inc. v. Sbraga, 421 N.J.Super. 56, 70-72 (App. Div. 2011); Fulton Bank of New Jersey v. Casa Eleganza, LLC, 473 N.J.Super. 387, 395-396 (App. Div. 2022).  No analysis was done by the trial court as to the reasonableness of construction limitations on the building height in Appellant’s community.  The lack of analysis, as a matter of law, mandates reversal of the court’s order granting Respondents summary judgment.  Sbraga at 71 - 72.  Certainly, as a general proposition, the higher the building the more people, pedestrians, cars, and undesirable congestion it brings along with it.  [...]’s regulations minimize congestion and maximize emergency response access on narrow private roads, and, enhance tranquility and traditional shore quality of life.  The absence of the Court finding that the Appellant’s building height restriction was capricious, imposed for spite or malice and did not benefit the community belies the obvious truth, namely, Appellant’s building height restriction was not capricious, was not imposed for spite or malice and did, for a very long time, benefit the community.
[brief] Lee v. Carter-Reed Co., L.L.C., 203 N.J. 496, 520 (2010) (quotation omitted).  Indeed, in a class-action setting, "[i]ndividual questions of law or fact may remain following resolution of common questions."  Id. at 108.  The CFA provides relief to [...] and the putative subclass if the Chargeback Provision is unlawful, N.J.S.A. 56:8-2, and [...] and the subclass members suffered an ascertainable loss causally related to that alleged unlawful practice, N.J.S.A. 56:8-19.  Bosland, at 557.  Here, the unlawful conduct is the inclusion of the illegal charge-back provision.  The ascertainable loss is the amount of the concession that [...] attempted to charge-back.  As such, whether other subclass members were afforded the same “allowances” as [...] hardly matters, as it does not change the fact that: (1) the provision is unlawful; and (2) [...] attempted to enforce the unlawful provision.
[brief] Da96.  \textsuperscript{2}See Da10-11, n.4; Da14, n.7 (“this Court finds that [...] was not a credible witness”); Da15, n.8 (finding [...]’s testimony “convenient, and what [...] believed would serve him best during [] trial”); Da22-23, n.12 (describing [...]’s testimony as “nonsensical”); Da24, n. 14; Da24-25, n. 15 (describing [...]’s testimony as “not believable”); Da27, n. 17 (describing “defendant’s demonstrated lack of credibility”); Da33, n. 22 (“the record does not support defendant’s claims of honesty,” and “[a]gain, this Court finds [...]’s trial testimony . . . incredible”); Da36 (“this Court finds that [...]’s story is without any factual basis.
[directive] The courts routinely examine agency practice in evaluating the expectation of privacy.  Written notification thus would quickly be nullified if representatives of the agency never entered or inspected any of these areas.  In addition to notifying employees of the agency's right to search and inspect, the agency should also, with some regularity, inspect these areas to establish the practice coinciding with the policy.  Any search of agency or personal property should be conducted in the presence of the subject officer and a property control officer.  7.8.9  A voluntary consent to a search may preclude some Fourth Amendment problems.  A consent search eliminates the need to determine what threshold standard must be met before conducting the search or seizure, either for an administrative or criminal investigation.
[brief] 2T:98-19 to 99-2.  Additionally, Plaintiff suggests that the diagram was of little value and would not have assisted the jury.  This is simply not true.  The accident involved three vehicles and two separate impacts.  Understanding the configuration of the intersection and exactly how the vehicles impacted one another was critical to a full and complete understanding of how the accident occurred.  The diagram correctly shows that [...] was struck by [...] in the right front bumper and pushed to the left causing [...] to then collide with Plaintiff.  Da140.  Had the jury seen the diagram, they likely would have better understood that [...] did not act negligently and that the sole proximate cause of the accident was [...]’s entering the intersection against the light.  The diagram was critically important evidence and its exclusion was an abuse of discretion that deprived [...] of a fair trial and resulted in a miscarriage of justice.
[brief] A court may only order a new trial when, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.  R. 4:49-1(a); see also Caldwell v. Haynes, 136 N.J. 422, 431 (1994).  Therefore, a trial court should not interfere with a jury verdict unless the verdict is clearly against the weight of the evidence.  Id.  The verdict must shock the judicial conscience.  Id. (citing Carey v. Lovett, 132 N.J. 44, 66 (1993)).  In the American system of justice the presumption of correctness of a verdict by a jury has behind it the wisdom of centuries of common law merged into our constitutional framework. ”  Baxter v. Fairmount Food Co., 74 N.J. 588, 597-598 (1977).  The jury's evaluation of factual issues must be afforded “the utmost regard. ”  Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004).  “Once the jury is discharged, both trial and appellate courts are generally bound to respect its decision, lest they act as an additional and decisive juror. ”  Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 135-36 (1990).  In reviewing a trial judge's decision on a motion for a new trial, appellate courts view the evidence in a light most favorable to the party opposing the motion, Caldwell, supra, 136 N.J. at 432 and give substantial deference to the trial judge who observed the same witnesses as the jurors in recognition of the importance of the “intangibles” not transmitted by the record such as credibility, demeanor and overall “feel of the case. ”