ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [...] challenges the Order on two principal fronts.  Neither warrants reversal.  First, [...] incredibly contends that the Purchase Order underlying the Complaint is hearsay documentary evidence and so it was improper for the trial court to rely on that agreement in dismissing the Company.  As with much of its appellate submission, this argument is raised improperly for the first time on appeal, and so [...]’s belated objection is of no moment.  Moreover, the Purchase Order is integral to the Complaint as it is the agreement forming the basis of its claim, and so the trial court properly considered the Purchase Order on [...]’s motion to dismiss.  Finally, [...]’s argument fails on the merits because its own Executive Vice President admitted in his certification that the Purchase Order was the operative agreement.  Accordingly, even if the Purchase Order was inadmissible hearsay (and it clearly was not), any error by the trial court should be disregarded based on [...]’s admission that the Purchase Order is the operative and enforceable agreement between the parties.  Second, [...] argues that the mandatory dispute resolution provision is inapplicable because the dispute was resolved informally before it commenced litigation.  Like [...]’s hearsay objection, this argument is also devised and advanced for the first time on appeal and should be rejected accordingly.  Had [...] believed the parties informally resolved the dispute such that the mandatory dispute resolution provision did not apply, it would have alleged the same in the Complaint.  But the Complaint is deafeningly silent on that score.  Even if it is considered by this Court, [...]’s position is nonsensical.  Clearly, the dispute was live if [...] felt it needed to commence litigation.  The existence of a dispute, in turn, required mediation that [...] never alleges to have pursued.  Finally, [...] implicitly concedes that if it circumvented the Purchase Order by prematurely filing this action, [...] is entitled to its fees and costs.  On appeal, [...] makes much of the fact that [...] initially sent correspondence to [...] requesting payment of the fees.  That correspondence was sent as a courtesy in an effort to resolve the fee issue.  [...] did not respond to the letter and instead filed the appeal, staying the lower court proceedings.  Upon this Court’s affirmance of the Order, [...] respectfully requests that the case be remanded for the determination of the fees and costs to which [...] is rightfully entitled.  PROCEDURAL HISTORY
[brief] Netzel, 2023 U.S. Dist. LEXIS 135427, *10 (Ja84-Ja85) (wherein the court determined the alleged damages were private injunctive relief) is unrelated to Plaintiff’s case as it merely involves employees at a private company\(^6\) alleging “specific injuries and injuries to a ‘group of individuals similarly situated’” involving civil rights violations at the private company.
[brief] | | | **Suarez v. Eastern International College,** | 7 | | 428 N.J. Super. 10 (App. Div. 2012) | | | **Terry v. Central Auto Radiators, Inc.,** | 8, 9 | | 732 A.2d 713 (R.I. 1999) | | Statutes & Other Authorities: 2B  N.J. Practice: Evidence Rules Annotated (3d ed. 2024)  ...........................................15
[brief] See Furey v. County of Ocean, 273 N.J.Super. 300, 310 (App Div. 1994).  As seen above, where the public employee creates the hazard, no form of notice is required.  Palpable unreasonableness connotes a "more obvious and manifest breach of duty" than mere negligence, and "implies behavior that is patently unacceptable under any given circumstance."
[brief] Additionally, [...] testified regarding [...]’s site selection process for the Project.  (Aa782).  In particular, he indicated that [...]’s site analysis evaluated six potential properties located along the Holmdel transmission line corridor based on whether they were: (1) “as close as possible to the southern end of the Holmdel transmission line”\(^8\); (2) zoned for \(^8\) [...] testified that a pump station for the Holmdel transmission line was commercial, industrial, or utility uses; (3) not Preserved Farmland, properties acquired with Green Acres funding\(^9\), wetlands, contaminated property, or properties requiring significant tree clearing; and (4) “already developed land” for the purpose of mitigating environmental impacts.  (Aa782-84; Aa790).  Based on the criteria, [...] testified that [...] was a suitable site for the Project.  (Aa793).
[directive] 1  2  Definitions  Activate.  To actuate the recording mode/function of a body worn camera.1  Body worn camera (“BWC”).  A device worn by a law enforcement officer that makes an electronic audio and video recording of activities that take place during any law enforcement action.  The term does not include a mobile video recording device when mounted inside a police vehicle (i.e., a dash cam).  The term also does not include any form of electronic recording device worn by a law enforcement officer while acting in an undercover capacity.  Nor does the term include an electronic recording device when used to comply with the requirements of Rule 3:17 (electronic recording of station house custodial interrogations).  Constructive authority.  Shall have the same meaning as defined in the Attorney General’s Use of Force Policy, except that the term shall apply only to constructive authority directed against a person who is subject to an investigative detention or arrest (e.g., “show me your hands,” “get out of the vehicle,” etc.), or directed against a person if the officer has un-holstered a firearm or a conducted energy device (e.g., “move out of the way,” “get down,” etc.).  Force.  Shall have the same meaning as defined in the Attorney General’s Use of Force Policy.  The term “force” shall include physical, mechanical, enhanced mechanical, and deadly force.  Investigation of a criminal offense.
[brief] There can be no recovery in a negligence action if the defendant did not violate any duty owed to the plaintiff.  See Kravath v. Geller, 34 N.J. Super. 442 (App. Div. 1979), aff’d 31 N.J. 270 (1980).  It is this nexus between duty and liability which is necessary for the proof of negligence.  See Dwyer v. Skyline Apartments, Inc., 123 N.J. Super. 48 (App. Div.), aff’d 63 N.J. 577 (1973).  The question of the existence of a duty is one of law and not one of fact.
[brief] See, O'Donnell v. Ahmed, 363 N.J. Super. 44, 51-52 (Law Div. 2003).  See, also, Rivers, 378 N.J. Super. at 78 (recognizing that the circumstances must be “unusual or remarkable. ”)  In Rivers, the Court held that a party seeking to extend discovery based upon “exceptional circumstances,” had to satisfy four inquiries: (1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's failure to request an extension of the time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.
[brief] Here, because the Agreement’s arbitration clause failed to include such express waiver language the clause unenforceable.  --- 13  [...] could not have waived its right to access a court, since the MBPA did not exist when the Agreement was executed.  Nonetheless, [...] insists that [...] should have known of the MBPA when the Legislature introduced it as a mere bill (Pb44).  [...] fails to support its suggestion that [...] should have been clairvoyant, and its additional argument that the Agreement’s automatic renewal after the MBPA was enacted necessarily reflects [...]’s knowledge, assent or agreement to waive the right to a court is as impractical as it is meritless.
[brief] *Hoffman v. Encore Capital Grp., Inc.*, 2008 N.J. Super. Unpub. LEXIS 1627, at *6, 2008 WL 5245306 (App. Div. Dec. 18, 2008)*¹⁹ (holding the NJCFA is not intended “to cover the sale of delinquent debt from a commercial lender to a third-party debt collector”).  Instead, the legislature ¹⁹ (Da17-Da19). intended for the NJCFA to apply only to those consumer transactions made generally available to the public and not, rather, to “every sale in the marketplace. ”  *Id.* at *6-7.  The scope of the NJCFA was further defined in *Boyko v. American Intern. Group, Inc.*, 2009 U.S. Dist. LEXIS 119339, 2009 WL 5194431 (D.N.J. Dec. 23, 2009), where the court concluded that a third-party debt collector’s activities did not fall within the ambit of the NJCFA.
[brief] THE REMAINING DEFENDANTS SHOULD BE REINSTATED UPON REMAND SINCE THE SECOND AMENDED COMPLAINT STATES REASONABLE, VALID CLAIMS AGAINST THESE DEFENDANTS  [Pa3334]  Defendants [...] and [...] were added in the first amended complaint as nominal defendants, whose ultimate responsibilities were dependent upon the CEP Defendants’ roles.  The June 23, 2021, [...] Certification in support of motion for leave to amend states:  6.  Defendant [...] ([...]) is an entity engaged in the solar power business and is believed to have purchased solar rights from defendant [...], without reviewing records and without proper due diligence.  The relief we seek regard to [...] is essentially declaratory so no new discovery is necessary at this time.  7.  Defendant [...] and/or its Planning Board is a municipal government that facilitated and recognized certain fraudulent representations of [...]/[...] without reviewing records and without properly verifying CEP  Defendants’ claims of ownership and “acquisition” of plaintiffs’ solar rights.  The relief we seek regard to [...] is essentially declaratory so no new discovery is necessary at this time.  8.  Even if discovery was required or some of these defendants had sought discovery, no more than 60 days would be required to turnover the discovery already developed by the parties.  After they were served, these defendants failed to respond to the FAC; after passage of the 35 day period after service of the FAC, plaintiffs eventually sought entry of declaratory judgment by default.  Eventually a default judgment was entered against [...] and vacated; a default judgment was denied without prejudice as against [...], and the case terminated.
[brief] (Pa106)  The Application was diligently processed and the public hearing process before the Board commenced in April 2022.  (Pa268)  The Application was presented over the course of four (4) public hearings on April 25, 2022, May 9, 2022, May 23, 2022 and June 13, 2022.  (Pa106)  As originally presented, [...] proposed to include elevators in only Buildings A (clubhouse building) and B (320 unit midrise building).  By the time of the last hearing, [...] presented a development plan calling for Lot 19 to be developed with 55 townhouse units (all of which would be ‘market rate units and no ‘affordable’ units) in eleven buildings (together with various associated infrastructure) and for Lot 16 to be developed as 418 multi-family apartment units in five (5) buildings, together with various associated amenities and infrastructure, which would include 71 ‘affordable’ units.
[brief] The Conway case, however, stands for the proposition that the introduction of parol evidence is necessary to define the intent of the parties.  Specifically, Conway involved the meaning of the word “modification” used by [...] in his retainer agreement in order to activate his client’s obligation to pay him a bonus of $375,000.  The retainer agreement defined the triggering prerequisite for that bonus as the attorney’s ability to effect “any modification of the zone change which permits construction of any type, residential or commercial, or the sale or lease of the property. ”
[directive] Supervisors should utilize Victim- Witness Assistance resources from the County Prosecutor’s Office or the State Police on- scene to assist in these scenarios.  See section 6.4 of this Policy.  In some situations, community resources, such as community crisis response teams, may be helpful in communications with family members and close friends on scene.  The decision to seek or deploy assistance from such community-based resources should be made by supervisors, in consultation with the County Prosecutor’s Office, to ensure that all safety and evidentiary concerns are properly addressed.  7  USE OF FORCE POLICY
[directive] 2 STANDARDS ............................................................................................................................................  5  Standard 1: CONFIDENTIAL SEXUAL ASSAULT ADVOCACY .................................... 5  Standard 2: LAW ENFORCEMENT ......................................................................................  7  Standard 3: STANDARDIZED SEXUAL ASSAULT MEDICAL FORENSIC EXAM AND TREATMENT ........................................................ 11  Standard 4: SAFE KITS ..........................................................................................................  14  Standard 5: EXAMINATION FACILITIES ......................................................................... 17  Standard 6: SPECIALIZED SERVICES FOR CHILD AND ADOLESCENT VICTIMS ................................................................................ 20  Standard 7: SPECIAL CONSIDERATIONS FOR VULNERABLE POPULATIONS ................................................................................................ 21  Standard 8: DISCHARGE AND REFERRAL INFORMATION .......................................  24  Standard 9: ASSESSMENT OF SART SERVICES BY VICTIMS AND SERVICE PROVIDERS .....................................................................................  25  Standard 10: PROSECUTION ................................................................................................ 26  Standard 11: SART TEAM TRAINING ................................................................................. 28  Standard 12: COUNTY SART ADVISORY BOARDS .........................................................  29  Standard 13: STATEWIDE SART ADVISORY BOARD .....................................................  31 Standard 14:  SART COMPLAINT PROCEDURES .............................................................  33  APPENDICES ........................................................................................................................................
[brief] The Board rejected plaintiff’s contention that the surrounding neighborhood had changed since the most recent re-examination finding the Borough’s population growth had been 33 persons or .4% between 2000 and 2014.  The Board further found a net growth of eleven (11) dwelling units between 2000 and 2015.  The Board noted that the 2018 Master Plan discussed rezoning certain areas but the applicant’s property and neighboring areas were not proposed for rezoning. ”  Pa36.
[brief] It is now far too late to correct the sentence imposed on Count Six of [...] (possession of a weapon for an unlawful purpose).  E.  Only Count Five of [...] May Be Reinstated for Re-Prosecution.  As in other similar matters where an illegal sentence has been imposed following a guilty plea, this Court’s only recourse is to vacate defendant’s conviction and sentence under [...], reinstate the original charges, and restore the parties to their pre-plea positions.
[brief] (11T 156-16 to 23; 11T 158-17 to 165-18; 11T 169-23 to 24)  Three days later, via a prearrangement with defendant, [...] and others retrieved the remainder of defendant’s NJSP property, like uniforms, from his residence.  (11T 165-19 to 174-22)  The State then called as witnesses the four local police officers who stopped defendant for minor traffic offenses in 2017 and 2018, while he was suspended and after his current IDs had been confiscated, and, each time, quickly let him proceed on with only a warning, not a ticket.
[brief] In essence, Appellants argue that because the [...] follows form to the underlying primary [...] policy, including as to the definition of “underinsured motor vehicle,” coverage is ambiguous.  This argument too is incorrect.  Follow form policies are routinely used, including for excess UIM coverage, and are applied as written.  The definition of “underinsured motor vehicle” applies equally to coverage under the primary [...] Policy, which also does not provide UIM coverage for this matter.  Additionally, contrary to Appellants’ assertions and as correctly found by [...], the excess UIM coverage part of the [...] provides coverage in many scenarios, but not for the intra-family accident at issue in this matter.  Appellants’ hypotheticals purporting to demonstrate otherwise indicate a fundamental misunderstanding of excess UIM coverage.  For these reasons, this Court should affirm.
[brief] With respect to the nuisance claim, Defendants installed a curb around their driveway that prevented the natural flow of surface water through their backyard and redirected that water through a gap at the corner of the curb onto Plaintiff’s property.  After a heavy rainstorm, Defendants’ new drainage system caused a flood on Plaintiff’s property that destroyed trees and other plants in his backyard.  It is undisputed that Defendant’s property slopes toward Plaintiff’s property, and Plaintiff introduced unrebutted evidence from his survey expert that Defendant’s curb, with gaps at its corners, materially altered the original flow path for surface water and caused flooding on Plaintiff’s property.  The Chancery Division disregarded that unrefuted evidence that Defendant’s conduct caused the flooding of Plaintiff’s property and granted summary judgment for the Defendants solely because it was unpersuaded by Plaintiff’s engineering expert’s opinions on the quantity of water that flowed onto Plaintiff’s property.  Because Plaintiff’s engineering expert’s opinion was not essential to establishing Defendants’ liability in nuisance, and that expert’s opinion was supported by calculations from various sources of data, the Chancery Division erred in granting summary judgment on the nuisance claim.
[brief] In Tidewater, the plaintiff sought an easement that could not “in a strict sense, be designated as an easement of necessity in the classic sense, as plaintiff has a means of ingress to and egress from the demised lands other than that which could be afforded over the disputed lands, and since without the easements sought he would not be deprived of any access to the beneficial use of the property. ”  Tidewater, supra, 40 N.J. Super. at 161.  In finding the plaintiff had established it did have an easement by necessity created by implication even though the property was not landlocked, the court reasoned as follows:
[brief] Pa078.  On November 8, 2023, Appellant filed an Opposition to Respondent’s Motion regarding the triggered Offer of Judgment.  Pa082.  Appellant objected only to the requested hourly rate sought by Respondent’s counsel; indicating specifically that Appellant “…has no objection to Plaintiff’s counsel’s calculation of the interest and the litigation expenses. ”  Pa082, second paragraph.  On November 8, 2023, Respondent filed a Reply Brief relative to the Motion for Offer of Judgment penalties, further emphasizing the basis for the requested attorneys’ fee.  Pa084.  On December 7, 2023, the Court circulated a tentative disposition in lieu of oral argument, relative to the Motion for New Trial.
[brief] The exemptions, however, to a break in service also include an abolishment of the position and approved leaves of absence.  Without question [...] abolished, at least temporarily, [...]’ position with the Recreation Department.  All of this was done under emergency circumstances, and with the specific intent this would be a temporary disruption and that [...] would return to his full employment status at the end of the COVID19 crisis.  The statute also indicates that an approved leave of absence does not count as a break in service.  This is clearly what [...] was attempting to do when they reacted to the Governor’s emergency orders and shut down the Recreation Department.  The appellant’s situation should correctly be defined as a layoff.  If not a layoff, certainly it was an unpaid leave of absence directed by the employer based upon a national emergency.  The Board’s decision makes no attempt to legally analyze the appellant’s legal status pursuant to the definitions set forth in N.J.S.A. 43:15A-7.
[brief] (Db16-18)  Conversely, in support of the argument that [...]’s prison conduct did not demonstrate rehabilitation, the State cites exclusively to arguments from [...]’s PCR petitions.  (Sb25-26)  Undisputedly, no documents from those proceedings were introduced at sentencing.  (3T30-15 to 31-6)  By coincidence, [...] had presided over [...]’s PCR proceeding from 2016 – seven years prior to the sentence hearing currently on appeal.  (Pa156)  While [...] had asked the prosecutor a question concerning that PCR during [...]’s 2018 re-sentencing, the judge’s memory of the PCR was limited (in that he could not remember whether he had heard [...] or [...]’s petition), and the prosecutor had not relied upon the PCR, explaining that he didn’t “know anything about it. ”  (3T30-15 to 31-6)  This discussion of [...]’s PCR petition at the 2018 re-sentencing thus did not constitute a “particularized statement of reasons” in support of the sentence currently on appeal.  State v. Watson, 224 N.J. Super. 354, 363 (App. Div. 1988).  And [...]’s 2023 re-sentencing included no discussion whatsoever of any of PCR petitions.  (5T)  Because [...] never made a finding that [...]’s PCR petitions formed the basis for its sentence, those petitions cannot be used to justify the court’s sentence on appeal.
[brief] The lower court issued an opinion (61a), in support of its order.  Additionally the lower court ordered [...] to submit a proposed order for post-judgment interest.  (60a)  On August 31, 2022, [...] filed its amended proposed order under the Five Day Rule seeking payment of post-judgment interest in the amount of $5,111.99.  (1T:8/26/22 4:17)(66a)  On 8/29/22, [...] ordered (60a) [...] file a Certification confirming their compliance with the 8/28/20 Order (8a) and [...] submit a proposed order (66a) for the amount of interest [...] owed [...].  However, [...] in his 8/29/22 Opinion (61a) and 9/16/22 Order (180a) held [...] was not entitled to interest on the $78,646 stayed fee award held by [...] from 8/28/20 to 7/20/22, but only from 7/20/22 to 8/29/22.  The Judge denied all the other requested enforcement relief.  Not until 9/6/22, almost four months after the final order was affirmed, did [...] finally begin to comply with the final order to give [...] access to the OPRA records (74-75a).
[brief] Plaintiff had a dispute with [...] about the chain of command which was her job to do what she was doing (1T; 60:10).  As the Admin Officer, she was responsible to the Major and carried out his directions (1T; 61:4).  Once the incident with [...] happened, she discussed the matter in particular with the Major and they were told that she was in charge of setting up everything (1T; 62:2).  She was told by [...] that, going forward, that was her job and if there were any issues, for her to report them to him (1T; 62:21).
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[brief] **The trial court erred in upholding the Distance Regulation (Pa14)**  The trial court made two distinct errors in upholding the Distance Regulation: (i) hypothesizing the factual basis for the purported substantial government interest and how it could be narrowly tailored; and (ii) allowing [...] to succeed on supposition and hypothesis, rather than requiring a plenary hearing with actual evidence.  The latter was compounded by the trial court’s improper conversion of the “motion to dismiss” to summary judgment.  A.