ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] REPLY BRIEF AND APPENDIX IN SUPPORT OF THE APPEAL  On the brief and of counsel: [...], Esq. (042741990)  [...]  [...]  [...], Esq. (027982008)  [...]  [...]  [...], Esq.  (909162012)  [...]  [...]  #  TABLE OF CONTENTS – REPLY BRIEF | Section | Page | |----------------------------------------------|------| | TABLE OF CONTENTS – REPLY BRIEF | i | | TABLE OF JUDGMENTS, ORDERS AND RULINGS | ii | | TABLE OF TRANSCRIPT DESIGNATIONS | ii | | TABLE OF CONTENTS – REPLY APPENDIX | ii | | TABLE OF AUTHORITIES | iii | | PRELIMINARY STATEMENT | 1 | | LEGAL ARGUMENT | 2 | | POINT I: THE ISSUE ON APPEAL IS WHETHER | | | DEFENDANT BREACHED ITS DUTY, NOT | | | WHETHER A DUTY EXISTS.  | 2 | | POINT II: DEFENDANT’S RELIANCE ON N.J.S.A. | | | 2A:58C-3a(2) IS MISPLACED BECAUSE HAVING THE | | | SAFETY SYSTEMS INSTALLED WOULD NOT IMPAIR | | | THE USEFULNESS OF THE PRODUCT.  | 6 | | POINT III: BECAUSE THE TRIAL COURT INCORPORATED | | | CONSIDERATIONS OF CAUSATION IN ITS ANALYSIS OF | | | DUTY AND BREACH, THE PROPER CONSIDERATION OF | | | CAUSATION ON REMAND SHOULD BE CLARIFIED.  | 7 | | CONCLUSION | 8
[brief] The DEP concedes that the consistency determinations at issue in this HAD do not rise to the level of scrutiny that the DEP ordinarily requires in its review of an application for a Highlands Preservation Area Approval (“HPAA” or permit).  In addition, the DEP concedes that if the proposed project is not exempt under the specific provision at issue in this appeal then an HPAA would be required under the Highlands Act.  Critical to understanding the reasons the DEP’s issuance of the exemption is inappropriate is the fundamental starting point that the proposed project has not been the subject of any permit application or associated review under the Highlands Act.
[brief] [...]’s Detection of PFNA in Excess of the MCL  [...] continually monitors for the presence of drinking water contaminants, including PFNA.  Pa166-67 at ¶ 10.  On January 22, 2020, the results of routine testing showed that the wells from which [...] draws its water supply contained PFNA in excess of the MCL.  Id.  [...] immediately became involved in the situation.  On February 13, 2020, in compliance with applicable state and federal regulations, [...] issued an advisory notice to all residents stating that samples collected for the previous quarter (10/1/19 to 12/31/19) showed the presence of PFNA exceeding the MCL.  Pa167 at ¶ 11.  This advisory notice was reviewed and approved by [...] before dissemination to Borough residents.  Pa167 at ¶ 10.  [...] continued to send its residents update notices on the sampling results and the status of the efforts to address the PFNA MCL exceedances, with each such notice being subject to [...] review and approval.  Pa167 at ¶¶ 10-12, Pa170 at ¶ 29, Pa112-137.
[brief] At that time, the Trial Court stated:  [W]hat has [been] suggested is that we try as the first part of this case really the issues that the Court decided on summary judgment.  Those issues including essentially the nature of the property rights that involve the Sixth, primarily the Sixth Street parking area.  I think that necessarily in order for me to decide these issues, or given the ambiguity I’m going to require to hear testimony as to the behavior of the parties at or about the time that these property rights were created, or the purported property rights were created…  But in any event, the Court I think is necessarily going to be required to hear how the parties behaved afterwards, which include the use of that property, the use of the parking area.  * * *  And I’ll hear evidence as to those things, as to the creation of those property rights, the behavior of the parties at or about the time and afterwards to the extent that they will impact on this Court’s ability to decide on what ambiguities existed and to try to address those ambiguities.  (Da888 8:24-10:9)  Any claims regarding monetary damages and other issues not resolved in the first part, were to be tried if necessary.
[brief] 4:42-2 governs motions for reconsideration of interlocutory orders and provides, in pertinent part, that “any order … which adjudicates fewer than all claims as to all parties … shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice. ”  *See* also Lombardi v. Masso, 207 N.J. 517, 536 (2011); Lawson v. Dewar, 468 N.J. Super. 128, 134 (App. Div. 2021)(citations omitted).  As the Supreme Court noted in Lombardi, R. 4:42-2 “sets forth no restrictions on the exercise of the power to revise an interlocutory order. ”  207 N.J. at 534.  Indeed, the Court recognized that cases continue to develop after orders have been entered and judges continue to think about them.  Id. at 536.  Cases are not static and, where appropriate, the trial court is empowered to revisit the prior ruling in the interests of justice to “right the proverbial ship. ”  Id. at 537 (noting a judge “is not required to sit idly by and permit injustice to prevail” where, for whatever reason, he sees or hears something that convinces him that a prior ruling is not consonant with the interests of justice).  The Court further held, “[t]his entitlement to change a prior ruling in the interests of justice is what distinguishes an interlocutory order from a final judgment.
[brief] Appellant’s development in the [...] was a previously existing multi-family housing development that had been constructed “post-World War II. ”  Prior to the appellant’s acquisition the property had a history of being poorly maintained, and a major generator of neighborhood parking and traffic congestion.  The area of the existing development was in excess of seventeen acres and was developed in excess of the density requirements for the zone.  The appellant subsequently acquired two small contiguous properties which together added a half-acre or less to the total area.  With the addition of this half-acre, the appellant sought to add six new apartment buildings comprised of 100 additional residential units further expanding an already nonconforming apartment complex.  Approval of appellant’s application would have required the grant of a d (5) density variance, as well as numerous bulk variances.  Appellant made no attempts to comply with the updated zoning standards, rather seeking to build out the property beyond what the property could sustain, and the surrounding neighborhood could reasonably accommodate.  PROCEDURAL HISTORY
[brief] There also has never been a credible explanation of where the cobbled together document came from or why Appellant twice certified its accuracy.  The Appellant’s story was he found the document when he went into the Respondent's office and there was a green folder which contained the initial agreement.  This makes little sense.  Why would an obvious fake agreement be in a folder in the Respondents office?  [...] testified that the document was stapled together as if to be presented as a single agreement.  [2T P21:L8-15]  When confronted with these inconsistencies, in court he again stated the original cobbled together document was the actual employment agreement.  [2T P25:L6-23,P29:L22-P30:L9]  While counsel for the Appellant has attempted to rehabilitate [...], he has never provided a credible explanation for the fraudulent document.  There was an attempt to blame the Respondent for creating the fake agreement.  Why would any employee create for themselves a fake arbitration agreement?  As the court took note, even after there was a forensic evaluation in search of these agreements, none were found or presented to the court.  [2T P50:L25-P58:L25]  The original word version was never discovered.  [2T P50:L25-P58:L25]  It was only a year after the Appellants filed suit and after the court expressed serious doubt concerning the veracity of the Appellants’ position, that the new agreement materialized.  The Court saw and heard all of this.  While a transcript of a hearing is helpful to understand the basic facts and positions of the parties, there is nothing like seeing and hearing a witness testify live in Court.  A witness’s evasiveness, confusion, or lack of candor can best be understood by a trained jurist observing the witness in real time.  This is why our courts have traditionally deferred to trial judges on questions of credibility.  A review of the questioning of [...] indicates he bounced back and forth between different positions concerning which agreement was the real agreement.  What the transcript does not reveal is the hesitation of the witness, lack of eye contact, and other signs that allow an observer to doubt their veracity [2T P49-59]  The Court came to the only conclusion it could, that the Appellants’ position lacked credibility and that there was insufficient evidence to demonstrate the Respondent signed a binding arbitration authentic agreement.
[brief] 29  | Cases | Page(s) | |----------------------------------------------------------------------|---------| | A. States Group v. Skovron, | 6, 25 | | 892 A.2d 683 (N.J. Super. App. Div. 2006) | | | Acierno v. Cloutier, | 24 | | 40 F.3d 597 (3d Cir. 1994) | | | Avant v. Clifford, | 11 | | 341 A.2d 629 (N.J. 1975) | | | Bell A. Corp. v. Twombly, | 22 | | 550 U.S. 544 (2007) | | | Bernstein v. State, | 15 | | 986 A.2d 22 (N.J. Super. App. Div. 2010) | | | Besler v. B., d. of Educ. of W. Windsor-Plainsboro Regl. Sch. Dist., | 12 | | 993 A.2d 805 (N.J. 2010) | | | Bright v. Westmoreland Cnty., | 26 | | 443 F.3d 276 (3d Cir. 2006) | | | Brooks v. Odom, | 9 | | 696 A.2d 619 (N.J. 1997) | | | Cnty. of Essex v. First Union Nat. Bank, | 5, 25 | | 891 A.2d 600 (N.J. 2006) | | | Cnty. of Sacramento v. Lewis, | 24 | | 523 U.S. 833 (1998) | | | Dodson v. Cook Cnty. Jail, | 18 | | No. 16 CV 0345, 2019 WL 764041 (N.D. Ill. Feb. 21, 2019) | | | Durmer v. O'Carroll, | 19 | | 991 F.2d 64 (3d Cir. 1993) | | | Edwards v. Prudential Prop. and Cas. Co., | 21 | | 814 A.2d 1115 (N.J. Super. App. Div. 2003) | | | Estelle v. Gamble, | 17 | | 429 U.S. 97 (1976) | | Felicioni v. Admin. Off. of Courts, 961 A.2d 1207 (N.J. Super. App. Div. 2008) ......................... 28
[brief] A  Well, a tour could be anything.  They could walk in and walk out, but yes, it's a tour.  Q  Okay.  So you're saying they didn't do an appropriate tour?  A  What I'm saying is this is so global that it leaves a lot to the imagination on what they did and didn't do, ma'am.  I don't have any idea of what they did.  They're supposed to do certain things.  A tour could be halfway down the hallway, through every hallway.  I have no idea, so it just leaves a lot to the imagination, but – Q  So, are you – A -- that's what they said.  Q  Are you saying that the State of New Jersey didn't do an appropriate survey?
[directive] 종신 가석방 감독을 선고 받는다는 것은 귀하가 감옥에서 (3)  석방되거나 선고 유예에 처해지는 즉시 적어도 년 15  동안 가석방부의 감독을 받고, 상담, 인터넷에 대한 접근 또는 사용과 같은 대중을 보호하고 재활을 촉진하기에 적합한 조건, 그리고 귀하의 거주지, 직장, 여행 또는 귀하가 접촉하는 사람들에 대한 제한을 포함하는 가석방에 대한 조항과 조건들을 지켜야 한다는 것을 아십니까?
[brief] As the Trial Court explained:  The purpose of N.J.S.A. 54:5-89.1 is not to bar third-party investors from helping property owners in desperate need of financial assistance, but rather to ensure that the third-party investors do not exploit vulnerable owners by offering only nominal consideration for their property interests. ”  Simon, supra, at 328.  As the Supreme Court further explained in Green Knight Capital, LLC v. Calderon, 252 N.J. 265 (2002):  “[b]y insisting on the investors intervention into the foreclosure action, the Legislature intended to ensure the avoidance of sharp practices by calling for judicial oversight – that a last-minute investor would not be permitted to redeem without the trial court’s imprimatur. ”  Id. at 275.  In light of the undisputed facts on the record, the Trial Court correctly held that Plaintiff’s failure to intervene in the underlying foreclosure action that the Property was subject to as required by the New Jersey Tax Sale law, and the contract for the sale of the property was therefore invalid, void, and unenforceable.
[brief] Contrary to [...]’s assertion, the trial court did not unilaterally amend the New Jersey Constitution and its ruling does not affect all municipalities.  The trial court rightfully considered [...]’s right to engage in condemnation and redevelopment activities, but balanced those rights against the Township’s constitutional obligation to enact the zoning ordinances necessary to provide its fair share of affordable housing:  It's that as a matter of Mount Laurel law – and… I know that… [...] has a constitutional right to condemn property, but [...] is not sort of noticing that… it’s not the judiciary… plowing through and not enforcing… [...]’s legislative right to pursue condemnation.
[brief] Rivers v. LSC P’ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005); see Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:10-2(a) (2024) (“[T]he appellate court will not defer to a determination based on an incorrect view of the law. ”).  Reversal here is warranted on both grounds.  First, the ESI Order misconstrues or disregards the applicable law, i.e., Rule 4:10-2(a).  That Rule explicitly limits the “scope of discovery” to documents that are “relevant to the subject matter involved in the pending action. ”  Id.  The Rule also explicitly treats ESI the same as paper documents; accordingly, as this Court has observed, “relevancy remains the touchstone” for e-discovery the same as paper discovery.
[brief] Such express authorization existed where "the plain language in the Agreement provides that attorneys' fees and costs are included in the definition of 'losses.'"  Litton, 200 N.J. at 385-86.  Further, the fact a contract may permit fee-shifting for a specific breach does not mean that any breach of the contract will provide a basis for an award of fees.  A contractual provision that permits fees for an identified purpose cannot be broadened to encompass fees for purposes not specified in the contract.  In McGuire, the subject lease provision permitted "fees only for legal services related to reletting, such as the recovery of possession of the premises or the drawing up of a new lease to replace that of the breaching tenant."  125 N.J. at 326-27.  The Court reasoned that because the landlord's sale of the properties constituted a mitigation, "the lease's provision concerning attorneys' fees would entitle him to recover fees for legal services related to the sale, [but could not be] applied to support an award of attorneys' fees in an action for damages for breach [because] there is no equivalent provision in the lease to allow attorneys' fees in an action . . . to recover damages for breach."
[brief] ”  *Halstead*, 791 N.W.2d at 815.  Accepting such a verdict, moreover, runs counter to New Jersey’s doctrine of fundamental fairness, which is meant to guard against unfair and arbitrary results in the criminal justice system.  *State v. Saavedra*, 222 N.J. 39, 67 (2015) (citation omitted); *State v. Ruffin*, 371 N.J. Super. 371, 385 (App. Div. 2004) (citations omitted).
[directive] De-Activation at the Request of a Person Seeking Emergency Medical Assistance.  Notwithstanding Section 5.3, an officer may de-activate a BWC when a person, other than an arrestee, is seeking emergency medical services for him or herself or another and requests that the BWC be de-activated.  In deciding whether to de-activate the BWC, the officer shall consider the privacy interests of the person requesting de-activation and the person in need of medical assistance.  6.3
[brief] Instead, the Atalese Court clearly intended for its decision to apply to all consumer contracts and to provide a bright line rule for persons contracting with consumers - - an arbitration clause in those contracts must contain some language explaining that the consumer is waiving his or her right to have their claims heard in court or by a jury, so that it will be clear and unmistakable that the consumer is knowingly and intentionally waiving that right.  The Atalese Court did not state that this language would be excused from a form contract used with the entire public, as here, because the contract happened to be signed by an allegedly “sophisticated” rather than “average” consumer who walked through the [...]’s sales office door.  The clause must be sufficient for every consumer who walks through the door, regardless of the consumer’s educational degree, experience, or I.Q.  In sum, defendants’ allegation that plaintiffs are “sophisticated” consumers is wholly irrelevant to the Atalese analysis.
[brief] The Court viewed the dispute in the Lortech/Longo matter and in the Atlas/Gerhard/DSG matters as merely business disputes, stating that “there was nothing else so similar about them as to distinguish their relevance. ” (T21:10-14).  The Court viewed the representation, though, of [...] very differently.  The Court was concerned about the representation of [...] in his individual capacity in the Lortech/Longo matter.  It cited to RPC 1.9(a) and (c).  (T22:5 to T23:1-5).  The Court stated:  Here, the [...] represented not only [...] but, "IMPORTANTLY TO THE COURT," [...] individually in the Longo matter.  They're asserting direct claims against him as an individual in the case – in the present case by way of a counterclaim.  This is a more personal relationship that which might exist in other corporate litigation and is one of the facts that the Court considers when determining the potential for implications of RPC 1.9 not only (a), but part (c).  In this regard, [...] provided a four-page certification, along with counsel's submission of August 29, 2024, which shall be marked as C-1 for identification.  [emphasis added].  (T23:6-20).  The Court continued:  I will say that certification expressed significant concern on the part of [...] regarding how his personal and financial information which he claimed was provided to Ansell's office and which he claims materially affected and would continue to materially affect the decision-making process vis-à-vis the management and resolution of litigation in which he is involved and how it could be used to his detriment in the current litigation where, again, he is an individual defendant by way of a counterclaim.  (T24:4-13).  The Court found that the information contained in the certification and which [...] represented had been given to the Ansell law firm is subject to attorney-client privilege.  (T25:20 to T26:1-17).  The Court found that the information in the Certification "is intrinsic to the handling of any litigation to which, in this instance, Mr. [...] may be involved."  (T26:14).  The Court also considered that the attorney-client privilege belongs to [...] and it is his privilege to waive.  (T25:22 to T26:1-8).  The Court also stated that it would consider and give deference to the representations of [...].  (T25:20).  Under the circumstances of this case, RPC 1.9 precludes [...] from representing [...] and [...] in a case adverse to [...] and [...].
[brief] McQuillin, supra, at § 12.143; and see Adams v. City of Modesto, 53 Cal. 2d 833, 3 Cal. Rptr. 561, 566, 350 P.2d 529 (1960); Giuliano v. Bd. of Trustees of Fireman's Pension F., 89 Ill. App. 2d 126, 231 N.E.2d 257, 258 (1967); Flake v. Bennett, 156 N.W.2d 849, 854 (Iowa Sup. Ct. 1968).  Geller v. Department of Treasury, 53 N.J. 591, 597-598.  In Geller v. Department of Treasury, 53 N.J. 591, the Court evaluated a “preponderance of the equities” and “all of the circumstances” to achieve a “just result. ”  Id. at 600.  This Court is not bound by an agency's determination of a purely legal issue.  Francois v. Board of Trustees, 415 N.J. Super. 335, 348 citing Utley v. Bd. of Review, Dep't of Labor, 194 N.J. 534, 551 (2008); see Krayniak v. Bd. of Trs., Pub. Employees' Ret. Sys., 412 N.J. Super. 232, 237 (App. Div. 2010).
[brief] (9T 163-12 to 15, 164-3 to 6; 10T 16-9 to 12)  On cross-examination, [...] agreed that “things started getting better” with his pending case as soon as he gave this second statement to police.  (10T 27-10 to 14, 28-1 to 4)  For example, [...] had been on home detention, but the day after his second statement, his attorney successfully moved for that condition to be lifted.  (10T 28-5 to 16)  In October 2019, [...] pleaded guilty to simple assault with a maximum possible sentence of six months in jail for his involvement in [...]’s death.
[brief] [...], who evaluated [...] in 2004, described the incident as follows:  [[...]] had a previous back injury sustained when he tackled an individual who was stealing a police bicycle.  He had neck and upper back symptomatology necessitating treatment and he was out of work at that time for two and one-half months.  [...], who testified in 2019, described the incident as follows:  [...]: Let’s go back to the [incident] that happened in 2000.  What do you recall the incident being?  Mr. [...]: [I] do one of the take-downs that we learned from being on the bike patrol.  He falls down.  Mr. [...]:  I jump off my bike, I go up to him, he tries to run, I tackle him.  By tackling, you know, other police officers [] come to assist me.  We lock him up.  When tackling, you know, I thought I had a helmet on, so I go and tackle him, hit first, get a nice little tackle in and, you know, cuffed him up, everything.  Mr. [...]: [I injured] my knee, my lower back, and my neck was bothering me a little bit.  [...]: Did you have to have any surgeries?  Mr. [...]: No, sir.
[brief] Plaintiff [...] and his wife filed a personal injury Complaint on April 13, 2022, against Bunting’s employer, [...].  Ja17-31.  The Complaint alleged that, on September 28, 2020, Bunting’s foot was seriously injured when part of a machine described as a bailer broke and fell on his foot as he was feeding copper through the machine.  Ja17-18 ¶4.  The Complaint further alleged that [...] “knew, or had reason to know, that the . . . bailer was damaged and could not be used safely,” and that the employer intentionally used “dangerous equipment in an ultra-hazardous and unsafe manner. ”  Ja18 ¶6.  Next, the Complaint alleged that a reasonable person would “conclude with practical certainty that some employee of Defendant, [...] [sic] would be injured . . . ” by the machine.  Ja18 ¶7.  Thus, Bunting sought to pursue tort claims against his employer based on the exception for intentional conduct in the section of the Workers Compensation Act that prohibits such lawsuits, N.J.S.A. 34:15-8.
[brief] .........................................................................................19  A.  The Settlement Agreement  Expressly Limited [...]’s Rights Concerning the Palm Beach Property (Da274a-75a)  ..................................................................................20  B.  [...]’s Argument That Paragraph 24(G) Preserves Her Right to Any Interest Held by [...]’s Estate in the Palm Beach Property is Without Merit (Da274a-75a).  ..................................................................................23  C.  [...]’s “Canon of Construction” Argument is Entirely Without Merit (Not Raised Below).  ...........................................26  III.  THE TRIAL COURT PROPERLY DETERMINED, EVEN ABSENT THE SETTLEMENT AGREEMENT, PERELMAN LACKS ANY INTEREST IN THE PALM BEACH PROPERTY UNDER HARRIET’S WILL AND REVOCABLE TRUST(DA276a-77a).
[brief] (Pa315).  Plaintiff slipped as soon as his foot hit the landing and did not make it to the actual staircase before falling.  (Pa329, 17:8-17).  Plaintiff recalled possible freezing rain at the time of the incident.  (Pa329, 14:2-4).  Weather reports from the Incident Date provide that precipitation in the form of freezing rain occurred intermittently from around 4:20 AM to 5:50 AM.  (Pa345).  Thereafter, from 5:50 AM to approximately 7:30 AM, freezing rain and freezing drizzle occurred frequently.  (Pa345).  Finally, after 7:30 AM, rain/freezing rain occurred frequently until approximately 8:25 AM.  (Pa345).  A few weeks before the Subject Incident, Plaintiff took note of the fact that the stairway in question had been painted.