ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] In [...], a new owner obtained by foreclosure a derelict 20 unit apartment building, now zoned single family residence.  Permits to renovate the apartment building were issued as a pre-existing-nonconforming use.  An appeal to the Zoning Board was filed by the objecting neighborhood association.  The building, when constructed and operating, had been a permitted use (undisputed); the issue was had the nonconforming use been lost by abandonment.  The Zoning Board upheld the Zoning Officer approval and the Trial Court affirmed by Summary Judgment.  On Appeal, the Appellate Court found that the burden of proof does not rest upon which party files the appeal; the burden to prove a current nonconforming use had been permitted by Zoning at its inception rests upon the proponent of that position.  After that is established, if the claim is the nonconforming use was abandoned, the objector then has the burden to come forward with some evidence of abandonment to then require the owner (or proponent) to sustain its ultimate burden.  On all issues, the proponent of continuation of the nonconforming use bears the burden of proof.  The point is that the burden of proof has always been on the proponent of the current nonconforming use as being legal preexisting use; to prove that the use, when initially put in place, was legally permitted.  If the proponent cannot prove --- that, the now nonconforming use is illegal and must stop.  In most situations, the proponent of the nonconforming use is the owner and the “applicant” for the certificate.  That [...], here as an objector, filed the application as allowed by N.J.S.A. 40:55D-68 does not shift the burden of proof to [...]; the burden remains on the [...] as proponent of the nonconforming use.  The Trial Court clearly erred in finding and shifting the burden of proof onto the School to establish that other off-site parking was not a pre-existing nonconforming use (Da279).  POINT IV
[brief] Both were also subpoenaed and made available for trial.  (Da79 and Da70).  Plaintiff further raises, as fact, how the witnesses deposed during discovery stated that the ceiling lights in the auditoriums at the [...] are “sometimes off” when they should be on.  (Pb5).  Plaintiff’s counsel then equates “sometimes off” as proof and an absolute fact that the ceiling lights were off when plaintiff was walking in the auditorium.  This is pure speculation and cannot be treated as factual but Plaintiff does it anyway.  Similarly, Plaintiff claims that the deponents stated that sometimes, the cues to lower the lights do not work but there is no citation to the testimony to back that up.
[brief] ”  Tarta Luna Properties, LLC v. Harvest Restaurant Grp., LLC, 466 N.J. Super. 137, 154 (App. Div. 2021) (quoting In re Estate of Vayda, 184 N.J. 115, 120-21 (2005)).  “This category of common law fee-shifting arises out of fiduciary breaches in certain settings, for example the attorney-client relationship or attorneys acting as escrow agents,” id. at 154-55 (citing In re Estate of Folcher, 224 N.J. 496, 507 (2016)), or “when the interests of equity demand it. ”  Vayda, 184 N.J. at 123 (quoting In re Estate of Lash, 169 N.J. 20, 43 (2001) (Verniero & LaVecchia, J.J., dissenting) (quoting Red Devil Tools v. Tip Top Brush Co., 50 N.J. 563, 575-76 (1967))).  Whether a court should allow fee shifting in “the interests of equity” depends “on the particular circumstances as they appear from the totality of the evidence presented.
[brief] ([...]).  The trial court rejected this argument and restated that “the purpose of that search warrant was to try --- \(^2\) Franks v. Delaware, 438 U.S. 154, 156 (1978). to get evidence related to the homicide[,]” and not, as defense counsel alleged, “‘cause he entered and then left the premises. ” (1T95-20 to 96-5, 101-4 to 25).  On September February 3, 2023, the trial court heard defendant’s motion for reconsideration.
[brief] “[I]mmediately prior to the stop of the Audi the detectives had sufficient reasonable suspicion to believe that the defendant had done that which the CI had reported knowing the defendant to do: drive to New York to purchase CDS. ”  (Pb 13)  That is simply wrong.  A CI’s tip can furnish reasonable suspicion for an investigatory stop when it is sufficiently reliable.  A non-specific tip, devoid of any detail or predictive events is not sufficiently reliable, even from a CI whose veracity has been demonstrated.  *State v. Birkenmeier*, 185 N.J. 552 (2006), provides an example of the type of detail and predictive facts that give rise to reasonable suspicion.
[directive] On July 31, 1985, Governor [...] signed into law the "Crime Victim's Bill of Rights" which specifically defines a victim to include the nearest relative of the victim of a criminal homicide and requires that information be provided about financial assistance and social services.  On January 13, 1986 Governor [...] signed into law the "Drunk Driving Victim's Bill of Rights" which provides that in the event of a death, "victim" means surviving spouse, a child of the next of kin and also mandates that assistance be provided.  Since survivor needs are often unique, it is difficult to determine all forms of assistance which may be required.  It is equally difficult to identify all available resources to meet those needs.  It is recommended that law enforcement, funeral service, and hospital personnel attempt to identify the resources within their geographic or jurisdictional area which may prove useful in their effort to facilitate the survivors' recovery from the trauma produced by the sudden and unexpected death of a loved one.
[brief] Losing all the equity saved up in property has life-altering consequences for owners like [...].  The City has not disclosed to the Court or to [...] how many confiscatory tax foreclosures it has engaged in during the last six years.  But if its potential liability is large, that only reflects the magnitude of the gross injustice done to property owners.  If the liability is small compared to its annual budget, then its fears are unjustified.
[brief] The motion court determined that [...]’s statement to [...] in December of 2017 that the hospital owed him $255,000.00 constituted a party statement admissible to establish the amount owed by defendants.  (IT2 31-4 to 32-4).  The motion court rejected defendants’ argument that an alleged $10,000 payment to [...] constituted an accord and satisfaction of the $255,000 claim because defendants had no release establishing an agreement to settle the claim for $10,000.00 (IT2 37-13 to 38-1).  The motion court denied plaintiff’s claim for summary judgment based on [...]’s late completion of patient medical records because the issue of whether the late submissions constituted a material breach of contract constituted a jury question.
[directive] II of Court - (3)  Credentials  Freelance Reporters; CourtSmart as the Official Record  CourtSmart Supersedes July 16, 1990 Directive (Freelance Stenographers & Recording) judge  In addition to approving trial requests for assignment of staff OCRs, the an Assignment Judges can permit licensed freelance stenographers to make unofficial record of of by court proceedings (even when a sound recording is made CourtSmart) at the request the the or The attorneys parties and at parties' expense.
[brief] In May 2011 [...] ("[...]") and several other members of [...] ("[...]") sued his brother, [...] ("[...]"), in Chancery.  (Da1456; Pa226)  On August 11, 2011, the Court referred the matter to binding arbitration based on the [...] operating agreement.  (Da1456)  The arbitration proceeded in two "Phases".  The first phase pertained to injunctive relief for management control, and the second as to [...]’s alleged breaches of duty and damages.  (Da1905)  In October 2015, the appointed Arbitrator changed management control from [...] to [...]’s group.  (Ibid.)  The Court confirmed on January 28, 2016.  (Da1906-07)  On February 23, 2016, the Court restrained [...] from interfering with the transition of control and from representing to anyone that a new operating agreement was valid.  (Da120)  On June 7, 2016, the Court made additional restraints.  (Da7)  On June 15, 2016, Plaintiffs filed an amended complaint which sought more than $1,000,000 in money damages based on [...]’s breaches of fiduciary duty, which the Arbitrator and the Court deemed “Phase II” of the dispute.  (Da269)(Da308)  In Phase II Plaintiffs sought and received several arbitration orders for monetary relief between 2016 and 2018, which the Court confirmed.  For example, on May 23, 2018, the Court confirmed a January 5, 2018, award voiding a $970,000 loan that [...] made to [...] and Ordered [...] to repay it.  (Da3153; Da999)  On July 18, 2018, Plaintiffs obtained a “Partial final award” that stripped [...] of $1,000,019 in [...] interests (the “Partial Final Award”).  (Da131)  On October 9, 2018, Plaintiffs moved to confirm the Partial Final Award.  (Da127)  [...] opposed and cross-moved to vacate.  (Da183)  On December 7, 2018, the Court confirmed that award and denied [...]’s cross-motion. \(^1\) (3T80:15-93:13)(Da3157)  On December 13, 2018, the Arbitrator issued his “Final Award” for money damages and disassociating [...], which Plaintiffs moved to confirm on February 26, 2019.  (Da2209-2223)(Da1377)  [...] again cross-moved to vacate.  (Da2224)  On April 10, 2019, the Court denied [...]’s motion to reconsider vacatur of the Partial Final Award.  (4T18:14-25)(3159a)  On June 3, 2019, the Court confirmed almost all of the Final Award.  (Da3161-3184)  The Court then appointed an independent expert for [...]’s interest and in April and May 2022 held a valuation hearing.  (Da3255)  On November 18, 2022, the Court valued [...]’s interests.  (Da3185-3208)  On January 24, 2023, the Court denied reconsideration.  (10T27:18-30:5)(11T:6)  (Da3209)  On March 7, 2023, [...] filed his Notice of Appeal.  (Da3220)
[brief] ....................................................................  8 - **Gold Tree Spa, Inc., v. PD Nail Corp.**, 305 N. J. Super. 240 (App. Div. 2023) .......... 4 - **Hagrish v. Olson**, 254 N.J. Super. 133 (App. Div. 1992) ............................................. 4 - **Honeywell v. Bubb**, 130 N.J. Super. 130 (App. Div. 1974) .......................................... 4 - **Horne v. Edwards**, 477 N.J. Super. 302 (App. Div. 2023) ........................................... 5 - **J. Wiss & Sons Co. v. H.G. Vogel Co.**, 86 N.J.L. 618 (E. & A. 1914)) ....................... 9 - **Jannarone v. W.T. Co.**, 65 N.J. Super. 472 (App. Div. 1961) ....................................... 4 - **Jennings v. Reed**, 381 N.J. Super. 217 (App. Div. 2005) ............................................. 3 - **Kaur v. Assured Lending Corp.**, 405 N.J. Super. 468 (App. Div. 2009) ....................... 3 - **Lahue v. Pio Costa**, 263 N.J. Super. 469 (App. Div. 1997).  ........................................  4 - **Lampley v. Davis Mach. Corp.**, 219 N.J. Super. 540 (App. Div. 1987) .......................  5 - **LoBiondo v. O’Callaghan**, 357 N.J. Super. 488 (App Div. 2003)  ..................................  9 - **Newark Branch, NAACP v. West Orange**, 786 F. Supp. 408 (D.N.J. 1992)  ............  5 - **Nolan v. Lee Ho**, 120 N.J. 465 (1990)  ...........................................................................  3, 10 Pascarella v. Bruck, 190 N.J. Super 118 (App. Div. 1983) ...........................................3  Peskin v. Peskin, 271 N.J. Super. 261(App. Div. 1994)
[brief] See N.J.S.A. § 33:1-93.13(b) (the purpose of the MBPA was in part to “protect beer wholesalers from unreasonable demands and requirements by brewers”); Winer Motors, 208 N.J. Super. at 666, n.3 (recognizing the “unequal bargaining power between franchiser and franchisee”).  As previously discussed, [...] and Appellants do not have equal bargaining power.  Appellants are a family-run business that have loyally supported the Sapporo brand for over 45 years, and the sudden loss of Sapporo products—a brand Appellants are closely associated with—if Appellants attempted to negotiate, question or accept the proposed arbitration clause would cause them “irreparable damage. ”  There is no basis to question the imbalance between [...] and Appellants, particularly in light of [...]’s decades-long discriminatory policy of limiting Appellants to Asian markets, [...]’s admitted antitrust policies for wholesalers, [...]’s history of rummaging through Appellants’ offices to copy confidential materials, and [...]’s limitation on Appellants—though not other Sapporo wholesalers—from utilizing sub-jobbers.  The need to have express waiver language is particularly necessary here because the Agreement’s arbitration clause waives statutory rights to State Court and New Jersey law set forth in the MBPA for the very purpose of protecting wholesalers from such predatory behavior.  Clearly, the Wholesaler Agreement’s arbitration clause falls woefully short of the “express waiver” language required under Atalese and Passaic and provides no explanation or language describing that the parties are waiving their rights, as well as provisions of the MBPA, to seek redress in State Court.  This arbitration clause is therefore unenforceable as a matter of law.
[brief] (Da371-72)  First, an attorney’s duties to a client, including the confidentiality obligation, continue after the termination of representation, including after a client’s death.  See Michels & Hockenjos, *N.J. Attorney Ethics* §§ 15:2-2b, -4; *State ex rel. S.G.*, 175 N.J. 132, 141-42 (2003).  Second, it is readily apparent that counsel did in fact represent [...].  (Dca1-7, 12, 14, 21, 23, 33-39;) N.J.R.E. 201, 202(b).  It was improper for the judge to deny the PCR claim without an evidentiary hearing at which counsel would explain when he learned about the conflict and why he failed to reveal it, and provide needed information about his prior representation of the victim and his brother.  Reversal is required.
[brief] Carrero, 229 N.J. at 129.  The subjective elements of the offense “should usually be left to the jury to determine. ”  State v. Mauricio, 117 N.J. 402, 413 (1990).  The Supreme Court has acknowledged that passion/provocation can arise in “an infinite number of factual settings. ”  State v. Crisantos, 102 N.J. 265, 275 (1986).  Thus, in determining whether to charge the jury on the offense, the trial court must look at “[t]he specific evidence” “carefully” “in the context of the entire record. ”  Ibid.  The amount of time between the provocation and the killing, and “the precise sequence of events,” are “pivotal factors” in determining whether to charge the jury on passion/provocation manslaughter.  Galicia, 210 N.J. at 380.
[brief] When defendant’s counsel was ready to talk about the evidence, he first interjected, “Now, I want to start off before I go into the actual witnesses, not that there’s many....” (16T:14-16 to 17).  In speaking to the testimony to [...], defendant’s counsel referred to him as “the most important witness, the most striking witness” and then specifically stated, “Now, here’s a witness who’s a victim.  He wasn’t called by the State, he was called by the defense.  And his testimony proves that they got it wrong.  That [...] should not be sitting here today.
[brief] (Pa25).  With her second lawsuit, Plaintiff-Appellant alleged retaliation in violation of the NJLAD as well as violations of the Civil Rights Act (Count X) and a violation of the Open Public Records Act (Counts VIII and IX).  (Pa25-Pa70).  The lawsuit was filed against the [...], [...], [...], [...], [...], and [...].  (Pa25).  On October 26, 2021, Defendants Kucinski and Dancheck Martin moved to dismiss Plaintiff’s Complaint.  (Pa72).  On October 28, 2021, Defendants [...] and Restel moved to dismiss Plaintiff’s Complaint pursuant to Rule 4:6-2(e).  (Pa96; Pa171).  On November 5, 2021, Defendants Glazer and Sarno moved to dismiss Plaintiff’s Complaint.  (Pa188).  On November 18, 2021, in contravention of New Jersey Court Rules, without leave of Court and without consent of the parties, while the Motions to Dismiss were pending, Plaintiff-Appellant filed an “Amended Complaint. ” (Pa210).  By correspondence dated November 19, 2021, Defendants [...] and Restel advised that they would not be responding to the Amended Complaint, and that the Amended Complaint contained the same deficiencies that were the subject of the pending Motions to Dismiss.  (Da1-Da2).  The Trial Court heard oral argument on the Defendants’ Motions to Dismiss on or about January 7, 2022.  By order and written opinion dated February 28, 2023, the Trial Court dismissed all Counts of Plaintiff’s Amended Complaint as to all Defendants.  (Pa3-Pa23).  On April 14, 2023, Plaintiff filed the within Appeal.  (Pa394)  **STATEMENT OF FACTS**
[brief] MEDICAL EXPENSE BENEFITS DO NOT APPLY  The automobile which Plaintiff/Appellant was occupying at the time of her injury was incidental to the injuries sustained and therefore, [...] is not responsible for payment of PIP medical expense benefits for the claims at issue in this matter.  The policy of insurance applicable to this matter states that  Subject to the Limits of Liability, if you pay the premium for Personal Injury Protection - Medical Expense Coverage, we will pay benefits incurred because of bodily injury caused by an accident.  (Pa. 124)  N.J.S.A. 39:6A-4 provides that every standard automobile liability insurance policy issued or renewed on or after the effective date of P.L. 1998, c. 21 (C.39:6A-1.1 et. al.) shall contain personal injury protection benefits for the payment of benefits without regard to negligence, liability or fault of any kind, to the named insured and members of his family residing in his household who sustain bodily injury as a result of an accident while occupying, entering into, alighting from or using an automobile, or as a pedestrian, caused by an automobile or by an object propelled by or from an automobile, and to other persons sustaining bodily injury while occupying, entering into, alighting from or using the automobile of the named insured, with permission of the named insured.
[brief] The Law Division relied on the automobile exception to the warrant requirement, finding that defendant’s admission that the car contained drugs justified the search under *State v. Witt*, 223 N.J. 409 (2015).  (2T15-11 to 20).  For this reason, defendant’s reliance on *State v. Carty*, 170 N.J. 632 (2002), is inapposite.  In *Carty*, the Supreme Court held that “to effectuate a --- \(^5\) The State does not rely on the legal authority of the out-of-state warrant as establishing probable cause to arrest defendant.
[brief] Finally, the admission of this improper net opinion requires reversal because the State relied heavily on the historical cell-site testimony to place [...] with [...] at the time of the murder.  As detailed in [...]’s opening brief (Db32-33), the prosecutor relied on this testimony extensively in his opening statements and summation.  (10T25-11 to 17; 13T154-3 to 5; 13T175-10 to 14).  Indeed, the prosecutor needed to emphasize this testimony because the State lacked direct evidence to place [...] with [...] at the scene of the murder.  No eyewitness placed [...] at the murder scene.  The surveillance videos from [...] did not reveal the occupant or occupants in the car that [...] got into.  The videos from outside of [...]’s grandmother’s house are not clear enough to identify the two individuals who went into the house.  And although the location data from [...]’s cell phone strongly suggests that he was at the murder scene and returned to his home during the relevant time frame, the only forensic evidence placing [...] in [...] near that time of the murder was [...]’s impermissible net opinion.
[brief] For the forgoing reasons, [...] submits that the Court would act properly in rejecting [...]’s spurious arguments as to why it should be excused from compliance with the plain language of the COVID Statute and affirm the trial court’s entry of judgment in favor of [...].  Dated: April 10, 2024 /s/[...]  PATRICK T. COLLINS  [...], Plaintiff-Appellant, v. [...], and [...], Defendants-Respondents.
[brief] As in all variance cases, the applicant bears the burden of proving both the positive and the negative criteria.  *Ten Stary Dom Ptp. v. Mauro*, 216 N.J. 16, 30 (2013).  The negative criteria under *N.J.S.A.* 40:55D-70 “requires proof that the variance will not result in substantial detriment to the public good or substantially impair the purpose of the zoning plan. ”  *Ten Stary Dom Ptp.*, supra, 216 N.J. at 30.  As stated in the previous section, [...]’s testimony makes clear that the Application satisfies the positive criteria for a c(2) variance in that it promotes a number of the purposes of zoning as set forth the in the MLUL; including promoting the general welfare, providing adequate open space and space for residential and recreational purposes, by promoting a desirable visual environment and encouraging the efficient use of land.
[brief] In the Order denying the Lacey Sand project, In The Matter of [...] – Petition for Assignment of “Preferred” TREC Factor For Floating Photovoltaic Solar Pursuant to the Board’s Transition Incentive Order, Order, New Jersey Board of Public Utilities, Docket No. [...], dated September 27, 2023, (hereinafter “Order”), at 4.  (001a.), the Board refused to allow the project based upon a newly-articulated “policy” and understanding that floating solar was required to be net metered.  This was “news” to [...], and seemingly news to the Board as well, based upon all of the prior Orders in the chain of the floating solar development.  In the Order the BPU claims speaks to this topic, the Board, in I/M/O the Closure of the SREC Registration Program Pursuant to P.L. 2018, C. 17, Order, New Jersey Board of Public Utilities, Docket No. [...], dated March 27, 2020, provided the following statement:  Finally, the Board **FINDS** that in light of the SRP closure, any expression of interest for Energy Year 2021 that may be submitted pursuant to Subsection r (N.J.A.C. 14:8-2.4(g)) shall not be considered for the Transition Inventive program.  Thus, the Board **ORDERS** that grid supply projects that are not proposed on landfills, brownfields or areas of historic fill and that have not previously been approved by the Board as “connected to the distribution system” pursuant to Subsection r shall not be eligible for SRECs or for the Transition Incentive program.  [Id., at 7.]  The Board appears to believe that this statement is not only germane but is dispositive on the question of allowing an innovative technology floating solar project to receive TREC s when it is designed as a grid supply project.  It is neither.  As an initial matter, the Board’s expressly states that the foundation for this Order clause concerns “expressions of interest for Energy Year 2021 that may be submitted pursuant to Subsection r”.  The Lacey Sand application was not submitted pursuant to Subsection r.  The Lacey Sand project is not a Subsection r project, or, in fact, any Subsection project.  By its very nature, the floating solar projects are creatures of Board orders, and not subsections of the Solar Act.