ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] THE STANDARD ON A MOTION TO DISMISS  Appellate review of a motion court’s ruling on a motion to dismiss is de novo.  Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002).  Rule 4:6-2(e) permits a court to dismiss claims for “failure to state a claim upon which relief can be granted .  . . .”  In deciding a motion to dismiss, the Court must “review[] the complaint to determine whether the allegations suggest a cause of action. ”  In re Reglan Litig., 226 N.J. 315, 324 n.5 (2016) (citing Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)).  The Court’s “inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint. ”  Printing Mart, 116 N.J.  at 746.  That includes considering documents referenced in the complaint that form the basis of the claims, as well as documents in the public record.  See Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005).  “It is the existence of the fundamental of a cause of action in those documents that is pivotal; the ability of the plaintiff to prove its allegations is not at issue. ”  Id.  In reviewing a motion to dismiss, “a court may consider documents specifically referenced in the complaint without converting the motion into one for summary judgment. ”  Myska v. New Jersey Mfrs. Ins. Co., 440 N.J. Super. 458, 482 (App. Div. 2015) (internal citations omitted).  The Court “must ‘assume the facts as asserted by plaintiff are true and give her the benefit of all inferences that may be drawn in her favor. ’”  Id. (quoting Velantzas v. Colgate–Palmolive Co., 109 N.J. 189, 192 (1988)).  Unsupported conclusions, legal assertions and unwarranted inferences, however, are not entitled to an assumption of truth.  See Glass v. Suburban Restoration Co., 317 N.J. Super. 574, 582 (App. Div. 1998) (“[P]leadings reciting mere conclusions without facts and reliance on subsequent discovery do not justify a lawsuit. ”).  “When a plaintiff fails to allege facts sufficient to support a claim for relief, the complaint should be dismissed. ”  B.R. v. Vaughan, 427 N.J. Super. 487,490 (L. Div. 2012).  Here, the motion court properly applied the standard on a motion to dismiss to find that Plaintiff’s claims fail as a matter of law.
[brief] The New Jersey Rules of Court provide that a party may waive his or her right to a jury trial.  “Issues in civil actions triable of right by a jury shall be so tried only if a jury trial is demanded by a party in accordance with R. 4:35-1 or R. 6:5-3. ”  *R.* --- \(^1\)  In the interest of full disclosure:  Counsel for *amicus* [...] was counsel for the successful Appellants in *Lajara*.  Counsel for *amici* [...] and [...], [...], was counsel for Appellee [...], *et al.*, in *Lajara*.  1:8-1(b).  A party may also waive such rights in an arbitration agreement.  “By its very nature, an agreement to arbitrate involves a waiver of a party’s right to have her claims and defenses litigated in court.
[brief] Pierre, 223 N.J. at 579 (quoting Strickland, 466 U.S. at 689).  The reviewing court must reconstruct the challenged conduct “from counsel’s perspective at the time. ”  Ibid. (quoting Strickland, 466 U.S. at 689).  Always, the reviewing court “should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.
[brief] Any unchallenged issue with the jury charge is considered “in light of ‘the totality of the entire charge, not in isolation. ’”  *State v. Burns*, 192 N.J. 312, 341 (2007) (quoting *Chapland*, 187 N.J. at 289).  “The mere possibility of an unjust result is not enough. ”  *Funderburg*, 225 N.J. at 79.  “Rather, ‘[t]he possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.
[brief] Before this Court is an appeal filed by Appellant, [...].  The Respondent, [...], has filed a brief in opposition to the appeal.  Please accept this letter brief in lieu of a more formal brief in Reply to Respondent’s opposition.  A.  THE 2024 ORDER IS A FINAL, APPEALABLE ORDER.  A dismissal of a complaint without prejudice may be appealable as of right.  See Rubin v. Tress, 464 N.J. Super. 49, 56 n. 3 (App. Div. 2020).  In Rubin, the Appellate Division ruled that a dismissal without prejudice, premised on a R. 4:6-2(e) motion to dismiss, was appealable as of right even though the only issue decided was the Plaintiff’s failure to provide discovery in a timely manner pursuant to R. 4:18-2.  Ibid.  While dismissals without prejudice may invite questions as to their finality under R. 2:2-3, they can nonetheless be appealable as of right when they dispose of all issues as to all parties.
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[brief] This is precisely the purpose of the certain persons statute identified by [...] in his initial brief.  (Db26)  The Wright Court’s only comment on a consecutive versus concurrent sentence was that “[t]he additional penalty under N.J.S.A. 2A:151-8 may either be concurrent with, or consecutive to, that for the conviction under N.J.S.A. 2A:151-41(a).”  Id. at 555.  The Court did not set forth any criteria to distinguish between circumstances where the sentence for a conviction under N.J.S.A. 2A:151-8 should run concurrent or consecutive to a sentence for a conviction under N.J.S.A. 2A:151-41(a), and, more importantly, this Court’s decision in Wright preceded the Supreme Court’s Yarbough decision.  Finally, this Court’s unpublished decision in Flowers is neither binding nor persuasive.
[brief] (T2 36:12-18).  Moreover, [...] testified that [...] was lawfully prescribed opioids for pain.  (T2 48:10-25).  [...] testified that he did not know anything about the reason that [...] had been prescribed opioids since he did not treat or examine [...].  (T2 48:10-52:6; T2 71:16-73:25).  Thus, [...] had no specific information about [...]’s physical condition that required prescription pain medications.  Prescribing medication and its effects are beyond [...]’s training and experience.  Moreover, [...] did not examine or treat [...] relating to the specific medication that he was prescribed or the reason underlying that prescription.  [...]’s testimony as to the length of time that medication should be prescribed, the dosages that should be prescribed and the impact of medication upon an individual’s work performance has no probative value and should be disregarded.  While the ALJ explicitly ruled “I am not going to accept [...] as an expert in substance abuse. ” (T2 33:23-36:22), the ALJ relied upon and adopted [...]’s testimony regarding the prescribing and the effects of opioid medication as if he was so qualified.  In sum, while the ALJ correctly ruled that [...] was not an expert witness and could not provide opinion testimony on opioid substance abuse, he nonetheless permitted the testimony and more egregiously relied heavily upon this inadmissible evidence to sustain the disciplinary charges against [...].  Also, [...]’s testimony was not only improper as expert testimony, it was rampant speculation from a factual standpoint and his conclusions cited above by the Court should have been disregarded.  For this reason, this court should reverse the decision below and permit a new hearing.
[brief] Ibid. (citing Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 55 (App. Div. 1990), modified on other grounds, 125 N.J. 421 (1991)).  Based on decades of experience in the design, construction and evaluation of roadways and walkways, along with investigation of the site, measurements of the as-built conditions, examination of photographs and consideration of the testimony of the witnesses, [...] concluded that the condition of the sidewalk exceeded safe limits and was a contributory cause of plaintiff’s fall.  It was not constructed consistent with design standards applicable at the time and presented a hazardous condition in its current state.  That is not a net opinion.  See Townsend v. Pierre, 221 N.J. 36, 53-54 (2015); Evid. R. 703.  It is properly based on education, training, experience, personal observations, admissible evidence and data on which experts normally rely.  A jury may disregard an expert’s properly based conclusions.  See Model Jury Charge (Civil) 1.13 “Expert Testimony” (Apr. 1995).  On summary judgment, however, when all reasonable inferences must be resolved in favor of the non-movant, the evidence may not be disregarded.
[brief] The allegation that people “habitually” made that illegal turn at the time of the accident was not argued by the plaintiff until the self-serving affidavit, dated November 6, 2023, and filed with the court on November 7, 2023, and was only served in response to the subject motion for summary judgment.  **Pa 154-155. **  Importantly, the plaintiff admits that when she was stopped at the light she was in the middle lane of First Street, which was designated to go straight and that she attempted a left turn from that lane.  After the parties entered the intersection, the plaintiff did not take note of the defendant’s location (**Pa 52:6-8**) and that is when the Plaintiff struck the vehicle [...] was driving.
[directive] The original policy concerning these devices that had been issued on November 23, 2009 was revised and replaced in 2010 based upon the recommendations of the County Prosecutors, the [...], and other law enforcement professionals.  Those professionals expressed concern that the original policy was too restrictive both in terms of the number of officers who might be authorized to carry and use a conducted energy device, and the circumstances when the device might be deployed.  In some instances, the original policy would have prohibited the use of a conducted energy device even though an officer would be allowed to use deadly force.  The revised supplemental policy issued on October 7, 2010, developed in consultation with State, county and local law enforcement executives, brought the rules governing the use of conducted energy devices more closely in line with the policy governing the use of less lethal ammunition (dated March 19, 2008).
[brief] Matter of Enf't of N.J. False Claims Act Subpoenas, 229 N.J. 285, 295 (2017).  Stated differently, “‘[c]ourts read every word in a statute as if it was deliberately chosen and presume that omitted words were excluded purposefully. ’”  N.J. Dep't of Children & Families, Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 21 (2013).  Here, the Legislature concluded that the mere non-use of commercial, industrial and office buildings is, in and of itself, a blighting condition.
[brief] They are [...] (2/1/17, Pa28 ¶91), [...] (3/14/17, Pa23 ¶54), [...] (4/1/17, Pa27 ¶77), [...] (4/12/17, Pa383), [...] (5/1/17, Pa19 ¶21), and [...] (6/1/17, Pa26 ¶77).  Based upon the analysis set forth in Point I above, these six Plaintiffs' right to terminal leave vested at the time of their retirement dates.  The remaining Plaintiffs all retired prior to the December 14, 2017 vote by [...]'s union membership to approve the settlement of the First Police Matter.
[brief] The 1892 Resolution provides, in relevant part:  Resolved, That the [...] in the County of Union and the State of New Jersey, do hereby grant unto the [...], of Elizabeth, New Jersey, their successors and assigns the right and privilege of erecting and maintaining such and so many poles and other necessary supports and fixtures as may be necessary along, over or under the streets, lanes, avenues or alleys in said Township for the purpose of furnishing electric light, heat and power and to place electric lamps over the sidewalks or over the streets wherever such lamps may be subscribed for by citizens, firms, corporations, etc., Provided however, First.
[brief] See, e.g., Wear v. Selective Servic, Inc., 1455 N.J.Super 440 (App. Div. 2018)(discussing application of Appleman’s Rule in a CGL case).  [...] did not refuse to apply Appleman’s Rule because the case involved CGL coverage, but because the plaintiff’s injury claim in the underlying case was not based on a covered cause of loss.  The plaintiff had sued for bodily injury caused by the negligence of the insured contractor, but that cause of loss was expressly excluded by policy language barring coverage for the insured’s negligent work.  The [...] Court ruled that “the particular negligent conduct [of the insured contractor] at issue was clearly not covered by the policy. ”
[brief] At the outset, defendant’s weight-of-the-evidence argument is waived.  Following the verdict, defendant never filed a motion for a new trial pursuant to Rule 3:20-1, instead moving for a judgment of acquittal notwithstanding the verdict pursuant to Rule 3:18-2.  (Da62-63, 65; 10T3-15 to 14-21).  This Court “do[es] not consider a weight-of-the-evidence argument on appeal unless the appellant moved in the trial court for a new trial on that ground. ”  *State v. Fierro*, 438 N.J. Super. 517, 530 (App. Div. 2015) (citing R. 2:10-1).  A motion for a judgment of acquittal does not satisfy Rule 2:10-1’s requirement because it is “controlled by a different standard than a motion for a new trial. ”  *State v. Johnson*, 203 N.J. Super. 127, 133 (App. Div. 1985) (in context of R. 3:18-1).  Having failed to preserve the issue below, defendant’s present argument that the jury verdict is against the weight of the evidence is not cognizable.
[brief] Under the existing C-57 Zoning, the minimum buffer to residential use is a 25-foot open space buffer plus a 25-foot landscape buffer/screen.  (Pa290 & Pa292-Pa293).  The landscape buffer/screen need only be 6 feet tall and screen 75% of the development after 5 years.  (Pa293).  By comparison, under the new Redevelopment Plan, a landscape buffer/screen of at least 50 feet is required which must provide a year round audio and visual screen to the residential neighbors.
[brief] THE APPLICABLE RELEVANT LRHL SECTIONS (Pa0074-Pa0098)**  Section 7 of the LRHL specifically requires that any redevelopment plan meet the requirements of Section 5, that is the provision which controls a redevelopment study.  This means that when any redevelopment plan is adopted, a study must have been completed first and the plan must meet the criteria for a study.  Section 7a states:  No redevelopment project shall be undertaken or carried out except in accordance with a redevelopment plan adopted by ordinance of the municipal governing body, upon its finding that the specifically delineated project area is located in an area in need of development or in an area in need of rehabilitation or both according to the criteria set forth in Section 5 or Section 14 of P.L.  1992, C.79 N.J.S.A. 40A:12A-7a.  Section 5 states:  A delineated area may be determined to be in need of development, if after investigation notice and hearing as provided in Section 6 of P.L. 1992, C.79 (N.J.S.A. 40A:12A-6) the governing body of the municipality by resolution concludes that within the delineated area any of the following conditions is found:  …b.  The discontinuance of the use of buildings previously used for commercial manufacturing or industrial purposes;” …  Section 5h states:  The designation of the delineated area is consistent with smart growth planning principles adopted pursuant to law or regulation.  Section 40A:12A-5(h).  Section 14a states:  A delineated area may be determined to be in need of rehabilitation if the governing body of the municipality determines by resolution that a program of rehabilitation, as defined in Section 3 of P.L. 1992, C.79, (N.J.S.A. 40A:12A-3) may be expected to prevent further deterioration and promote the overall development of the community; and that there exists in that area any of the following conditions such that (1) significant portions of structures therein are in a deteriorated and substandard condition;(2) more than half of the housing stock in the delineated area is at least 50 years old;…(6) a majority of the water and sewer infrastructure in the delineated area is at least 50 years old and is in need of repair or substantial maintenance.  Where warranted by consideration of the overall conditions and requirements of the community, a finding of need for rehabilitation may extend to the entire area of a municipality.  N.J.S.A. 40A:12A-14(a).  None of these relevant statutes were analyzed at all to apply to the [...] plan.  The Trial Court’s failure to do so warrants reversal.  The legal standard of “arbitrary, capricious or unreasonable” need not be reached at all if these legal substantive standards of the LRHL are not first satisfied.
[brief] ’”  *Troupe v. Burlington Coat Factory Warehouse Corp.*, 443 N.J. Super. 596, 601 (App. Div. 2016), citing, *Nisivoccia v. Glass Gardens, Inc.*, 175 N.J. 559, 563 (2003) and *Hopkins v. Fox & Lazo Realtors*, 132 N.J. 426, 433 (1993).  In other words, the defendants owed the plaintiff a duty “to use reasonable care to make the premises safe[.]”  *Handleman v. Cox*, 39 N.J. 95, 111 (1963).  The law is clear that a warning alone may satisfy this duty only “in those circumstances where it is reasonable to do so[.]”
[brief] [...] Does Not Dispute That Its Failure To Timely Vacate The Leased Premises Or To Leave It Broom Clean Constituted Two Additional Breaches Of The Settlement Agreement That Should Have Resulted In The Entry Of The Money Judgment.  [...] also does not dispute that Subtenant’s continued possession of the Leased Premises beyond the October 31, 2023 Vacation Date constituted another event of default.  [Pa214 at ¶ 10].  Nevertheless, [...] argues:  “[...]’s assertion that the sub-tenant asked for additional time to remove its vehicles from the property is irrelevant to this appeal.  The focus of the trial court’s decision was properly on whether [...] improperly prevented [...] from access to the property, not whether the sub-tenant still had property at the site as of October 31, 2023. ”  [Db11, fn 4 (emphasis in original)].  This is incorrect.  [...] agreed in Paragraph 3(a) of the Settlement Agreement to “vacate the Leased Premises and relinquish all possessory rights that Tenant, or those claiming under it, presently has, or has ever had.  On or before the Vacation Date, Tenant, and all other persons or entities in possession, will remove all personal property and debris from the interior and exterior of the Leased Premises such that it is broom clean, as set forth in and required by Paragraph 31 of the Lease. ”  [Pa51 at ¶ 3(a) (Emphasis added.)].  It is immaterial whether it was [...] or its Subtenant that failed to relinquish possession or to remove personal property, as such a failure by either of them constituted a breach of the Settlement Agreement that entitled [...] to submit the Money Judgment for entry.  [Pa52 at ¶ 4].  [...] has also admitted that it did not leave the Leased Premises “broom clean. ”  [Db11 (“[...] still had a water cooler and some personal property at the site when [...] took possession”); Pa309 at ¶¶ 4-5 ([...] certifying that [...] left abandoned vehicles, trailers, approximately 17 commercial vehicle tires, and an approximately 50-gallon drum, in addition to the other debris dumped at the Leased Premises, and that removal of these items alone was estimated to cost $40,000)].  [...] was entitled to submit the Money Judgment for entry for this reason, too.  The trial court’s failure to enforce the Settlement Agreement, and to enter the Money Judgment as a consequence of these additional breaches, was reversible error.  C.
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[brief] 12  I.  STANDARDS OF REVIEW ........................................................................  12  A.  The standard of review of this summary judgment decision is plenary.  .........................................................  12  B.  Prerogative Writ  Standard of Review ......................................................  15  II.  [...]’S REMOVAL OF MALONEY WAS NOT ARBITRARY OR CAPRICIOUS AS MALONEY’S CONDUCT CONSTITUTES “MISCONDUCT” AND “NEGLECT OF DUTY” UNDER N.J.S.A 40:14A-5(c).  (Raised Below: Da 377)  ...........................................  16  A.  As an appointed public official/officer, [...] neglected his duty under N.J.S.A. 40:14A-5(c) to act ethically in his private life and to treat all people equally with respect and dignity.  (Raised Below: Da 376)  ........................................................................................................  17  B.  As per Karins, supra, as an appointed official, [...] engaged in “misconduct” in violation of N.J.S.A. 40:14A-5(c).  (Raised Below: Da 375)  ...........................................  22 CONCLUSION .......................................................................................................
[brief] Defendant had also contended that its communications with its agents fall outside the prohibitions under § 1692c(b).  Two observations about that argument.  First, if communications with Defendant’s agents are allowed notwithstanding § 1692c(b), then the section’s expressed authorization of communications with one specific agent (i.e., the debt collector’s attorney) would be rendered superfluous.  There is no reason for Congress to have expressly authorized communications with only one specific type of agent if, as Defendant contends, communications are permitted for all agents.  Second, even if communications with all agents are allowed, there is nothing in the record on this R. 4:6-2(e) motion demonstrating that Defendant’s mail vendor is its agent.  POINT VI.