ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The Docks Rule considers “recreational docks . . . conditionally acceptable” provided the proposed dock development: demonstrates “a need that cannot be satisfied with existing facilities;” complies with “the submerged vegetation habitat rule, N.J.A.C. 7:7-9.6;” “minimizes adverse environmental impact to the maximum extent feasible;” and “do(es) not hinder navigation. ”  N.J.A.C. 7:7-12.5.  These four factors balance ecologically sensitive areas with water use.  For instance, the “need” portion of the Docks Rule can sometimes depend on whether other rules such as the SAV Rule are also applicable.  In certain coastal areas like Barnegat Bay, DEP enforces “longstanding rules protect(ing) the special areas known as submerged aquatic vegetation (SAV)” areas.  54 N.J.R. 277(a).  SAV grows primarily in partially enclosed, shallow tidal areas with water depths at or below three feet, three inches.  54 N.J.R. 277(a).  SAV serves several important ecological and environmental functions, and is especially vulnerable to human disturbances, most notably boat traffic scraping through shallow areas.  When boats “resuspend solids” by piloting through shallow waters, sunlight cannot reach the SAV, causing water temperatures to increase and water to evaporate, leading to eutrophication, which has a compounding negative effect on SAV and water quality.  *Ibid.*  Thus, per the SAV Rule, a dock may only be constructed or extended if “a minimum water depth of four feet at mean low water (is present) in the area where the boats will be moored” (“Water Depth Requirements”).
[brief] DeRitis, 861 F.3d at 453.  Furthermore, to the extent he chose to publicly refer to “fracking” as an “f word,” he was not raising an issue of “public concern,” but could be casting some doubt on the professionalism displayed by a DEP Section Chief.  The trial court noted that [...] was not speaking as a private citizen, and his profane reference could not be considered a matter of public concern.  (3T41:13-16).  [...], speaking in his advertised role as a DEP Section Chief, before licensed water operators regulated by his department, was not free to speak as he wished.  His constitutional free speech rights do not insulate him from the written warning that he received.  *DeRitis*, 861 F.3d at 453; *Garcetti*, 547 U.S. at 421.
[brief] “Absent competent expert proof of these three elements, the case is not sufficient for determination by the jury. ”  *Lanzet*, 126 N.J. at 195.  Moreover, it is the Plaintiffs burden to prove each element by “some competent proof. ”  *Townsend*, 221 N.J. at 51 (citations omitted).  When it comes to proximate cause and expert testimony, the Court has cautioned that given the weight a jury may accord an expert’s opinion, it is the duty of the trial court to ensure an expert is not permitted to express speculative opinions or personal views that are unfounded in the record.
[brief] POINT II  THE TRIAL COURT PROPERLY DISMISSED PETITIONER’S COMPLAINT WITH PREJUDICE DUE TO HER FAILURE TO COMPLY WITH COURT ORDERS TO RETAIN COUNSEL  In the event that the court considers Petitioner’s arguments as to the March 1, 2024 Order of dismissal with prejudice despite her lack of filed opposition below, Respondent submits that the trial court’s dismissal was entirely appropriate under the circumstances.  This court ordered Petitioner to retain counsel on behalf of the [...] in its Opinion dated December 2, 2022 since she cannot appear and prosecute the Estate’s claims pro se.  See Kasharian v. Wilentz, 93 N.J. Super. 479, 482 (App. Div. 1967); R. 1:21-1(a).  Over a year-and-a-half later, Petitioner has still not retained an attorney on behalf of the Estate.  This longstanding failure follows this court’s original order, the trial court’s March 3, 2023 Order setting a date certain for the retention of an attorney and filing of an Amended Complaint in Petitioner’s capacity as the administrator ad prosequendum of the Estate, and the trial court’s May 12, 2023 Order dismissing the Complaint without prejudice for failure to comply with the prior orders.  As a result plaintiff’s failure to obey multiple orders to retain counsel, R. 4:37-2 permitted the trial court to dismiss the Complaint with prejudice.  See Zaccardi v. Becker, 88 N.J. 245, 254 (1982).  R. 4:37-2 specifically applies to the failure to of a party to comply with “any order of court” and permits the court to specify that such dismissal is with prejudice.  See R. 4:37-2.  As this court held in Kohn’s Bakery, Inc. v. Terracciano, “[t]here is no doubt at all of the right of a trial judge, as an exercise of discretion, to impose sanctions for violation of the rules or failure to obey the orders of the court, and those sanctions may include dismissal of the action.
[directive] Interviewing Procedures  8.6.1  Interviews should take place at the internal affairs office or a reasonable and appropriate location the investigator designates.  The subject officer's supervisor should be made aware of the time and place of the interview so the officer's whereabouts are known.  Interviews shall be conducted at a reasonable hour when the officer is on duty, unless the seriousness of the matter requires otherwise.  8.6.2  The employee shall be informed of the name and rank of the interviewing investigator and all others present during the interview.  The questioning session must be of reasonable duration, considering the subject matter’s complexity and gravity.  The officer must be allowed time for meal breaks and to attend to personal physical necessities.  8.6.3  In cases of potential criminal conduct, interviews of subject officers should be recorded consistent with AG Directives 2006-2 and 2006-4.  As to serious disciplinary infractions, the agency should audio or video record the interview.  A transcript or copy of the recording shall be made available to the officer, if applicable, at the appropriate stage of a criminal or disciplinary proceeding.  If the subject officer wishes to record the interview, he or she may do so, and a copy of the recording shall be made available to the agency upon request, at the agency's expense.  Agencies should consider adopting a policy requiring officers to inform the agency or internal affairs investigator if the officer plans to record the interview.  52
[brief] Plaintiffs argue that the NJDEP should have required a formal survey prior to making a determination on [...]’s FHA Permit Application because rare wildlife sighting report forms were submitted to NJDEP in March 2022 (Aa2553-Aa2575) and because a report prepared by [...] for Plaintiffs dated July 7, 2022, and last updated April 13, 2023, (Aa2576-Aa2616) alleged the presence of Bald Eagles on the Property.  (Pb16-18).  Plaintiffs also contend that sightings of Savanna Sparrows by [...], alleged by Plaintiffs to be a State threatened species, support Plaintiffs’ claims that the Property contains suitable habitat for that species.  (Pb17).  Plaintiffs previously submitted a report urging the NJDEP to find the [...] Property a suitable habitat for these species in an effort to persuade the NJDEP to change the resource value classification for onsite wetlands as set forth in [...]’s Freshwater Wetlands Letter of Interpretation which would have resulted in enhanced transition area requirements around those wetlands.  (Aa2576-Aa2616).  In its Environmental Report, the NJDEP rejected those claims.  (Aa0063).  The NJDEP has broad general authority for the protection and enhancement of wildlife, including threatened and endangered species, under The Endangered and Nongame Species Conservation Act, N.J.S.A. 23:2A-1 et seq., which vests exclusive jurisdiction in the Commissioner of the NJDEP to develop species protection programs, including protections against killing or harassment of threatened and endangered species.
[brief] At best some of the later plats or plans refer to a "public right of way".  A public right of way is not a street.  N.J.S.A. 48:3-17.2.  Defines a "right of way" as "the area devoted to passing over, on, through or under lands...." whereas a "street" means "any highway, road, street, alley, lane or place dedicated to public use whether or not accepted....".  The use of the term "public right of way" does not directly correlate into a public street.  A "right of way" usually denotes access, not ownership.  Blacks Law Dictionary describes "Right of Way" as describing "a right belonging to a party to pass over land of another".
[directive] 1 of Determination a 10- 2  Direct Purchase Equipment by Agency of Disbursements  Non-Law Enforcement Agency to a -. 1  11- SOPNo. 11 121 5  12- Disposal of Indivisible Forfeited 0 Property - - - - 3 12:5 12- DistribuGoG Contraband of 16  Distribution Forfeited Property  Participating of to - 1 12  12- Enforcement Agencies SOP NO. Law - 07 7 - of 1  Distribution Forfeited Property/Requests No. SOP of Criminal Asset Forfeiture/ Division Justice 2:5 Property Office 2 - 5 Management - SOP 2 of lndex State New Jersey Forfeiture Program Administration Page - DL&PS Cash Management Fund Seized Asset Dedicated 2 - 2 Account (SADA) 2 - 2 Seized Asset Trust Account (SATA) 2 - $50,000 2 Seizures Limitations Disbursements from the DL&PS on - 2 2-3 Seized Asset Dedicated Account 12- 2 Entity, defined 2 - 4 2 4 Establishment of an Asset Maintenance Account 2 - 4 Interest 2 - 4 Expenditures 2 - 5 Applicable Use Standard Law Establishment of the Attorney General’s Enforcement 2 - 2:2 1 Forfeiture Account (AGLEFA) 2 - 1 Department’of the Treasury 2 - 1 Office Attorney General of 2 - 1 Forfeited Property 2 - 1 Forfeited Funds 2 - 1 Division of State Police 2 - 1 Alcoholic Beverage Control 2 - 1 Division Criminal Justice of 2 - 1 Interest Generated AGLEFA by 2 - 1 State General Treasury 2 - 2 Attorney GeneraVDisbursements from AGLEFA 2 2 - Director of Office of Management and Budget 3:2 3 - 1
[brief] The Court first looks to the plain language of the statute and then ascribes to the statutory language its ordinary meaning.  See D’Annunzio v. Prudential Ins. Co., 192 N.J. 110, 119–20 (2007).  Under New Jersey law, words in statutes shall be given their “generally accepted meaning, according to the approved usage of the language[,]” unless that reading is inconsistent with “the manifest intent of the legislature” or a “different meaning is expressly indicated[.]”  N.J.S.A. 1:1-1.  The “overriding goal has consistently been the Legislature’s intent. ”  Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 95 (2006) (quoting O’Connell v. State, 171 N.J. 484, 488 (2002)).  In the Superior Officers matter, this Court had occasion to construe the MSRA and explained:  The Legislature’s enactment of N.J.S.A. 52:27BBBB-5(3)(i) contemplated precisely the circumstance here where the State may unilaterally modify the terms and conditions of employment in connection with an expired CNA.  Applying the principles of statutory interpretation, the Legislature’s intent by the plain language of this provision is apparent.  The State may “unilaterally modify” any term or condition of employment where the CNA with a municipality in need of stabilization and recovery is expired.  This “clear and unambiguous result” concludes our interpretative process.  Richardson, 192 N.J. at 195.  Thus, MSRA permits the Director to unilaterally modify the contract term for accumulated sick leave upon from Lieutenant to Captain as that CNA expired.  Superior Officers, 2022 WL 2352376, at *8; (Pa000676).  While not precedential, the Superior Officers decision is instructive.  See Sauter v. Colts Neck Volunteer Fire Co. No. 2, 451 N.J. Super 581, 600 (App. Div. 2017) (explaining that a court may find “the logic of the opinion persuasive and adopt[]” the unpublished, nonbinding opinion).  As in the Superior Officers case, the only alleged improper conduct by Defendants here is action that is expressly permitted by the MSRA, which was granted by the Legislature to ensure the economic recovery of the City.  Plaintiffs’ Complaint does nothing more than complain of conduct that is expressly permitted under the MSRA.  Recognizing the fatal flaw in Plaintiffs’ Complaint, the Superior Court properly concluded that “[t]here is no basis under the MSRA that provides the Plaintiffs with any basis for relief for any of their asserted causes of action in their Complaint. ” (Pa001031).  Here, the complained of conduct was expressly permitted under the MSRA and therefore cannot be the basis of Plaintiffs’ claims.  See Superior Officers, 2022 WL 2352376, at *8–9 (affirming dismissal); (Pa000676–677).  POINT III
[brief] As to the positive criteria for relief under subsection “(c)(1)” the Board rejected the expert testimony of the Applicant’s Planner and found that the Applicant had not demonstrated that strict application of the zoning regulations would result in peculiar and exceptional difficulties to, or exceptional and undue hardship upon it as the owner of the Property as a result of unique conditions of the Property.  Applicant’s Planner presented no credible testimony that the site was unique or that strict application would result in any peculiar and exceptional difficulties.  The Board found that the requested relief only intensified the non-conformity of the site with no relief to the current residents or to the public.  Further, the Board found that the proposed variances to locate the new improvements exacerbated already existing deficiencies in parking and open space and would detrimentally impact how the Site and surrounding areas function as a whole.  The Board found that due to the size of the proposal, the addition of new buildings and insufficient parking, any hardship would be self-created by the Applicant or any predecessor-in-title.
[brief] With regard to a permanent loss of a bodily function that is substantial, New Jersey Courts have held that there is no permanent loss when “plaintiff’s daily activities, although painful, [are] not substantially precluded by [the] injuries[,]…” and plaintiffs are “…able to return to [their] former … activities … albeit with some restrictions”  Knowles, 176 N.J. at 333 (citing Brooks v. Odom, 150 N.J. 395 (1997)); Ponte v. Overeem, 171 N.J. 46, 50-51 (2002).  Based on that standard, and as a matter of law, the trial court correctly determined Plaintiff has failed to show a permanent loss of a bodily function that is substantial.
[directive] Notwithstanding the provisions of 3.2, the following officers are not required by this Policy to be equipped with BWCs:  (a)  Officers engaged in undercover assignments.  (b)  Officers acting as hostage negotiators or crisis negotiators working in conjunction with tactical teams.  (c)  Officers assigned to administrative positions within the law enforcement agency.  This provision shall not exclude officers assigned to “front desk” duty, as defined in Section 3.2(f), from the requirement to be equipped with BWCs.  (d)  Officers meeting with confidential sources or recruiting potential confidential sources.  (e)  Officers engaged in union representation of a member of the collective bargaining unit.  (f)  Officers assigned to duties within schools or youth facilities as part of the normal daily educational environment, such as School Resource Officers (SROs) and Class III Special Law Enforcement Officers (SLEO IIIs).  Officers assigned to duties at schools or youth facilities working security or crowd-control functions at special events such as athletic competitions, graduations or similar public events shall be equipped with BWCs.  (g)  Non-uniformed officers assigned to investigative, non-enforcement duties, when authorized by the agency’s law enforcement executive.  BODY WORN CAMERA POLICY | January 2022
[brief] b.  The Gannon claims “relate to” [...]’s fees (Pa000100, Pa000103).  Second, in the same way Plaintiff’s class claims in *Gannon* concern [...]’s right to amend its agreements, they concern [...]’s right to charge fees as it sees fit.  Both Sections 1.29 and 2.1 of the Settlement Agreement show that Plaintiff and the *Roma* class released fee-related claims—another independent basis for affirmance.
[brief] Itself  The New Jersey Supreme Court has repeatedly held in Atalese, Kernahan, Skuse and Flanzman that there must be some words in the arbitration clause itself that inform a consumer that he or she is giving up the right to proceed in court.  Atalese held that it is not enough to provide for “binding arbitration,” just like Kernahan held it was not enough to just provide for “mandatory arbitration. ”  See also, Bartz v. Weyerhaeuser Company, 2020 WL 5033356 (App. Div. 2020) (Da1618) (arbitration clause providing for arbitration “conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association as modified herein” was unenforceable under Atalese because the clause “does not mention waiving the right to trial by jury or the right of access to the courts”).
[directive] This contract for Certified Court Certified Realtime Court Reporters. is a statewide of contract containing a regionalized list agencies approved to provide court reporting services.  ADA  When a court reporter is obtained through this list to provide accommodations, the who reporter must be certified to provide real-time transcription services.  A court reporter has not been certified for real-time services cannot be used as a substitute.  Coordination and of of payment CRCRs will be accordance with the terms the State contract.  in for CART
[brief] Among other things, the Appellate Division observed that the court had adopted a dollar amount in the most “conclusory of fashions” by rigidly utilizing that January 5, 2017 date as the cut-off without analyzing the reasonableness of the services occurring within that time frame.  The Appellate Division instructed that the determination “required a more searching analysis than that. ” (Da258).  The Appellate Decision also stated:  “When the fee application is based on the ‘fund in court’ rule, a court should also consider: (1) the amount of the estate and the amount in dispute; (2) the skill, diligence, ability and judgment shown by the attorney; (3) the results obtained; and (4) the benefits or advantages resulting to the estate, and their importance. ”  (Ibid., Da258).  The Appellate Division held: “The judge should focus on those steps taken by plaintiff that actually benefited the estate and fix a reasonable fee for those steps based on the principles outlined in *Rendine v. Pantzer*, 141 N.J. 292 (1995)], RPC 1.5(a), and [*In re* Bloomer] [37 N.J. Super. 85 (App. Div. 1955)].”
[brief] The evidence in the hearing record diverges dramatically from the ALJ’s findings.  For instance, the Decision provides as follows:  During the Incident, appellant greeted the responding police officer by requesting “the stuff” to revive his houseguest, taken to mean Narcan.  Yet when asked what [...] might have taken, appellant did not mention opioids.  Decision at p.42 (emphasis added).  (Pa53).  The ALJ’s finding that [...] “did not mention opioids” when he was asked by [...] about TL’s condition is inaccurate.
[brief] [...], do you believe there'll be any family members of the deceased that will be addressing the Court?  MR. GRILLO:  I do, Judge.  I think for now we can set it for that day.  I think that's enough time that they can make themselves available.  If for some reason someone who wants to be here can't make it that day I'll just request an adjournment from the Court.  THE COURT: All right.
[brief] State v. Behn, 375 N.J. Super. 409 (App. Div.), certif. denied, 183 N.J. 591 (2005) (citing State v. Carter, 91 N.J. 86, 121 (1982) (Carter IV); State v. Bey, 161 N.J. 233, 287 (1999), cert. denied, 530 U.S. 1245 (2000)); See also Russo, 333 N.J. Super. at 136-137; Henries, 306 N.J. Super. at 529.
[brief] Specifically, in the Summer of 2019, the tenant of Apartment 103 ([...]) and his fiancé ([...]), who would visit the unit during that time period, noticed what appeared to be “white fungus and/or mold” in multiple locations in the unit, which had spread to the tenant’s personal belongings.  Pa40.  [...] and [...] spoke to [...], who, in turn, instructed them to reach out to [...] via email.  Id.  On July 6, 2019, [...] and [...] sent an email from [...]’s email account to [...] that wrote that they “discovered white mold on Kiran’s winter clothes that were packed in a box in the room closet” and that it “freaked us out when we saw the fungus and white mold. ”  Pa41, 43.  [...] and [...] followed up with [...] on July 11, 2019 writing: “[...] informed us that you had emailed us regarding the HVAC guys coming to our apt to change them.  However, we haven’t heard from you. ”  Pa43.  As described below, [...] claimed to have not located any communications with former tenants and denied ever speaking to them, despite this clear evidence to the contrary.
[brief] [...] created a map, admitted as S-85, that depicted the approximate location of [...] phone at 11:04 p. m. on September 17, 2019.  (12T170-20 to 22; Da20).  Kohler stated that he “physically reviewed [the call detail records] and then . . . ingested them into software to map the call tower location for the calls in question. ” (12T170-17 to 19).  The top of the map contains “information from the call itself from the provider showing the tower, the location of the tower and GPS coordinates and the orientation or azimuth, which is the direction that the middle of that base that the call was placed off of faces.  In this case, it was 210 degrees. ” (12T171-6 to 11).  Kohler stated that this information “would give you a face, a rough -- rough area depending upon a lot of environmental factors, such as, where somebody is in a building or if there is a large building next to them, as to how far out the tower may go. ” (12T171-16 to 20).  He opined that in an urban area like Trenton, a phone generally would not hit off a tower that was “several miles away. ” (12T171-25 to 172-6).  He also opined that in Willingboro, “Roughly, the same thing.  It could be a little bit further.  Willingboro is not as urban, but I know, based on my training and experience, that Willingboro has several towers throughout the different park areas that Willingboro is made up of. ” (12T172-8 to 12 (emphasis added)).  Kohler opined that the call that [...] placed at 11:04 would have originated from the area on the map depicted within the angle depicted by two pinks lines.  (12T174-24 to 175-15, Da20).  Kohler added a red dot to show that [...] was within the area from which the call could have originated.  (12T176-1 to 8).  Kohler created a similar map, admitted as S-86, that showed that [...]’s phone was near the area of [...] when a call was made at 2:25 a.m. (12T176-5 to 178-22; Da21).
[brief] Also, the Agreement clearly explained the arbitration process.  First, there was a Pre-Arbitration Notice Requirement.  That is, [...] and Appellants agreed that before initiating arbitration, they were required to first provide to the other a written “Notice of Dispute” (Dr97).  The justification underlying the Notice requirement was, in part, to allow [...] and Appellants to “make attempts to resolve the Dispute . . .” (Dr97).  If a resolution could not be reached, however, the Agreement explained how to initiate arbitration.