ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The Noise Control Act  The Noise Control Act (“NCA”) is another example of Legislative regulation of noise.  Although the NCA was a major issue in the arguments at the Trial Court, it does not figure in the arguments on appeal.  However, because arguments infra make reference to the NCA, some words regarding it may be beneficial.  The NCA was enacted as L.1971, c.148.  It became effective on January 24, 1972.  Its purpose was to address the need of the people of the State to enjoy “an environment free from noise which unnecessarily degrades the quality of life. ”  The NCA sought the fulfillment of that purpose by authorizing the [...] ([...]) to adopt and enforce noise standards “embodied in regulations. ”  N.J.S.A. 13:1G-2.  Indeed, much of the substance of the NCA is devoted to providing authorization to the [...] to adopt, “reasonable codes, rules and regulations necessary to carry out the intent of” the NCA.  N.J.S.A. 13:1G-4.  See also N.J.S.A. 13:1G-5; N.J.S.A. 13:1G-6.  The [...] has acted on that authorization, adopting regulations found at N.J.A.C. 7:29-1.1, et. seq.  The standards found in those regulations define permissible limits and therefore, ultimately violations, in terms of decibels.  (See N.J.A.C. 7:29.1.2 Adopted standards on industrial, commercial, or community service facilities).  N.J.A.C. 7:29-1.6 provides that for “the purposes of measuring sound in accordance with the applicable provisions of these regulations, test equipment methods and procedures shall conform to the provisions of N.J.A.C. 7:29-2. ”  Reference to provisions of N.J.A.C. 7:29-2 demonstrate that the “Procedures for the Department’s determination of noise from stationery sources” is accomplished by measures gauged by decibels, as determined by “a qualified investigator using instruments and procedures prescribed by the Department. ”  (emphasis supplied)  One provision of the Noise Control Act is N.J.S.A. 13:1G-21, which permits municipalities, counties or Boards of Health to adopt noise control ordinances defining violations in terms of decibels.  [...] has chosen not to do so in Ordinance No. 2017-17.  Rather, standards are pursuant to the Home Rule Act provisions, similar to Clarksburg Inn and the other cases cited supra.  D.
[brief] On January 7, 2022, Plaintiffs-Appellants filed suit against the Defendants.  (Pa1-Pa8)  Defendants filed an Answer to the Complaint on February 18, 2022.  (Pa9-Pa17)  On January 26, 2024, Defendants moved for summary judgment solely based on the duty owed to the Plaintiff.  (Pa20-Pa27)  On March 1, 2024, the Honorable [...], J.S.C., rendered a decision and granted summary judgement.  On March 19, 2024, Plaintiff moved for reconsideration.  (Pa304-Pa313).  Reconsideration was denied by way of Order dated April 16, 2024.  (Pa318-Pa320).  [...] filed the instant appeal.
[brief] The Arbitrator, acting within his limited role in determining the market value of the Property, properly held that the market value had to account for the existence of the long-term lease under relevant case law.  No arms-length buyer would ever pay $4,845,000 for the Property in 1994 while it was encumbered with a $0.77 per square foot thirty-year lease.  [...], in directly challenging the Arbitrator’s factual findings rather than the Trial Court’s interlocutory order, have exceeded the permissible bounds of appeal under the October 20, 2021 Consent Order.
[brief] An appellate court's review of the trial court's dismissal order for failure to state a claim is de novo.  A reviewing court applies a plenary standard of review from a trial court's decision to grant a motion to dismiss.  Flinn v. Amboy Nat. Bank, 436 N.J. Super. 274 (App. Div. 2014).  See also Gonzalez v. State Apportionment Comm'n, 428 N.J. Super. 333, 349, 53 A.3d 1230 (App. Div. 2012)  The appellate court owes no deference to the trial court's conclusions.  "In reviewing a complaint dismissed under Rule 4:6-2(e) [the] inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint."  Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746, 563 A.2d 31 (1989) (citing Rieder v. Dep't of Transp., 221 N.J. Super. 547, 552, 535 A.2d 512 (App. Div. 1987)).  The "essential test," Green v. Morgan Properties, 215 N.J. 431, 451, 73 A.3d 478 (2013), is "whether a cause of action is 'suggested' by the facts."  Printing Mart, supra, 116 N.J. at 746, 563 A.2d 31 (quoting Velantzas v. Colgate- Palmolive Co., 109 N.J. 189, 192, 536 A.2d 237 (1988))(emphasis added).  A reviewing court “searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary."  Id. (citing Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252, 128 A.2d 281 (App. Div. 1957))(emphasis added).  Further, in Rule 4:6-2(e) dismissals, "the [c]ourt is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint."  Ibid.  (citing Somers Constr. Co. v. Bd. of Educ., 198 F. Supp. 732, 734 (D.N.J. 1961)).  Rather, "'plaintiffs are entitled to every reasonable inference of fact[,] . . . and '[t]he examination of a complaint's allegations of fact required by the aforestated principles should be one that is at once painstaking and undertaken with a generous and hospitable approach.'"  Green, supra, 215 N.J. at 452, 73 A.3d 478 (quoting Printing Mart, supra, 116 N.J. at 746, 563 A.2d 31).  Significantly, the New Jersey Supreme Court noted that, “[g]enerally we seek to afford ‘every litigant who has a bona fide cause of action or defense the opportunity for full exposure of his case. ’”  United Rental Equip. Co. v. Aetna Life and Casualty Ins. Co., 74 N.J. 92, 99 (1977) (quoting Robbins v. Jersey City, 23 N.J. 229, 240-41 (1957))(emphasis added).  When cases involve significant policy considerations, “maximum caution must be exercised before granting summary judgment [or in this case, a motion to dismiss] and the issue should not be resolved until a full record is developed at trial. ”  Sandvik, Inc. v. Statewide Sec. Sys., 192 N.J. Super. 272, 276 (App. Div. 1983) (citing Jackson v. Muhlenberg Hosp., 53 N.J. 138, 142 (1969))(emphasis added).  B.  CEPA
[directive] Underserved communities are groups of people 1 whose opportunity to participate in economic, social, or civic life, or ability to access and use government services, has been adversely affected by a characteristic they share.  Examples of such characteristics include, without limitation, race, color, ethnicity, religion, gender, affectional or sexual orientation, gender identity or expression, geographic location, national origin, nationality, immigration status, age, disability and/or language or communication barriers.  Nothing in this Directive is intended to amend or supersede any statute, law, or regulation.
[brief] LEGAL ARGUMENT:  POINT ONE:  THE FACTS IN THIS CASE DEMONSTRATE THAT THE WAIVER AND ARBITRATION PROVISIONS OF [...]’S SMALL BUSINESS CONTRACT ARE NOT ENFORCEABLE AGAINST THE PLAINTIFFS------------------------  13 (Pa256)  POINT TWO: THESE ARBITRATION AND WAIVER PROVISIONS DO NOT SATISFY  FAA AND NJAA REQUIREMENTS----------------------  18 (Pa253) (not addressed  In ruling)  POINT THREE: THE MOTION JUDGE FAILED TO COMPLY WITH R. 1:6-2----------------------------------------  20 (not raised below)  CONCLUSION---------------------------------------------------
[brief] (6T 7-7 to 17-13)  The codefendant was arrested on July 29, 2020 in Elizabeth.  (5T 202-20 to 203-12)  [...] testified as an expert in the analysis of cell-phone records.  His testimony sought to show two things: (1) a record of communications -- the fact of them, not their content -- that occurred around the time of the offense between the defendant and codefendant, and (2) the fact that on the date of the offense those phones were connecting to certain cell towers in the area, in order to show the phones’ “general location.
[brief] (Pa 112).  On December 8, 2022, Plaintiff filed a Complaint in Lieu of Prerogative Writs and for Declaratory Relief with the Superior Court of New Jersey, Law Division, Middlesex County under Docket Number [...] (the “Instant Action” or “this Action”) challenging, inter alia, the Second Ordinance.  (Pa 114).  In light of the adoption on the Second Ordinance by the Borough, on December 22, 2022, a Notice of Dismissal of the Prior Action challenging the First Ordinance was filed by Plaintiff.  (Pa 112).  On March 22, 2023, the Hon. [...], J.S.C. presided over a trial in the instant action.  [...] entered an Order for Judgment in favor of Defendants dismissing Plaintiff’s complaint and filed a written opinion on May 22, 2023.  Plaintiff filed its Notice of Appeal with this Court on June 28, 2023.
[directive] 3.  The on-scene supervisor will assume command and ensure that the crime scene is secured and that all evidence is collected in accordance with approved police investigative procedures.  4.  The on-scene supervisor will ensure that an arrest is made in cases where mandatory arrest is required or probable cause exists.  5.  If the alleged offender has left the scene and probable cause exists, the supervisor will: a. Exhaust all reasonable means to locate the alleged offender.  b. Ensure that an arrest warrant is sought, if unable to locate the alleged offender.  c. Document all subsequent actions in a timely manner.  6.  If the victim has left the scene, the supervisor will make every effort to follow through on the investigation and attempt to locate the victim.  7.  Arrest of both parties involved in a domestic violence incident should be avoided.  The supervisor will ensure that a thorough investigation is conducted and an arrest of the primary aggressor is made in accordance with State law.
[brief] The State elicited the same information about several other cases [...] had testified in as a jailhouse informant, whether he got reduced sentences for his cooperation – he had, in some cases – and elicited that [...] had solicited the courts and the [...] to have his sentence reduced in exchange for his cooperation.  (28T:57-16 to 58-14, 60-19 to 66-11).  [...] was cross examined on the fact that he was currently facing life in prison, and his testimony in defendant’s case was pursuant to a plea that reduced that exposure to possible probation in exchange for his truthful testimony.  (28T:135-25 to 136-15, 138-16 to 24).
[brief] PLAINTIFF FAILED TO PROVE HIS CLAIMS FOR BREACH OF CONTRACT AND UNJUST ENRICHMENT (Da1-69)  If Plaintiff’s claims are somehow not time-barred, the Court should still dismiss Plaintiff’s claims because he has not proven his claims by a preponderance of the evidence.  Plaintiff has not provided any evidence of any kind to support the existence of this alleged “Third Loan. ”  In fact, Plaintiff even executed a Discharge of Mortgage, which unequivocally stated all amounts were “Paid in Full. ”  Moreover, despite claiming that he entered into a loan with [...] in April 2013, with yearly interest, [...] has been silent and did not make a single written demand or communication to [...], whether through letter, e-mail, or text, requesting payment of the alleged “Third Loan. ”  Now, over ten (10) years later, Plaintiff claims he is owed hundreds of thousands of dollars with no documents to support that claim.  Thus, the Court must dismiss Plaintiff’s Complaint with prejudice because Plaintiff failed to prove his claims of breach of contract and unjust enrichment.
[brief] In Townsend, the lower court found that the “[expert] opinion’s shortcomings could be remedied by the use of hypothetical questions. ”  Id. at 58.  The Supreme Court disagreed.  Hypotheticals must be supported by a “requisite foundation in the facts. ”  Id. at 59.  Lastly, the report failed to cite to any objective sources for the proposition that the slope in the sidewalk causes the snow to pile up.  It contains multiple conclusory statements with no reference to the record.  There was no interaction of facts on the record, nor is there a suggestion that is what happened in this particular matter.  Furthermore, these conclusory statements compound upon themselves but inventing a duty which does not exist for residential landowners in New Jersey.  As such, the Court below properly ruled that the report of [...] was a net opinion.
[brief] As set forth above, the trial court committed clear error by dismissing Appellant’s complaint and denying Appellant an opportunity to amend it, in order to name the proper Plaintiff.  The record clearly shows that the subject claims have not yet been litigated by the current Appellant or proposed Plaintiff.  The trial court misunderstood the procedural history and other events that took place throughout the pendency of other cases between *some*, but not all, of the parties and misapplied the standard for motions to dismiss.  Respectfully, the trial court’s October 16, 2023 Order and Supplemental Statement of Reasons therefor are the product of plain error and abuse of discretion.  For these reasons, Appellant seeks an Order reinstating the complaint and permitting an amendment to name the proper plaintiff, so that the matter can proceed and the matter of liability for the environmental remediation costs can be resolved, rather than simply passing this burden on to the next owner.  Respectfully, [...]
[brief] (Da602, Da607)  However, prior to [...]’s fateful injection on November 6, 2018, [...] did not make any attempt to warn any physician or healthcare providers in the U.S. of the defect and associated risks of Ozurdex.  (Da586)  Of course, nothing prevented [...] from ceasing to distribute the Ozurdex applicators from Lot #E82852 within the United States.  (Pa110)  Further, [...] did not need FDA approval to issue a simple warning to physicians and health care providers in the United States about the defective Ozurdex applicators with the silicone particulate defect, or otherwise issue a product recall.  21 C.F.R. Secs 7.46(a) and 7.46(b).  In support of her opinions, [...]’s expert, [...], MD, cites in her report the FDA publication “Guidance for Industry and FDA Staff, Dear Health Care Provider letters: Improving Communication of Important Safety Information. ”  (Da0258, ¶ 67.)  The FDA makes clear in the publication that:  “FDA’s guidance documents, including this guidance, do not establish legally enforceable responsibilities….The use of the word *should* in Agency guidance means that something is suggested or recommended, but not required. ”  (Da0619, Da0623)  “Guidance for Industry and FDA Staff, Dear Health Care Provider letters: Improving Communication of Important Safety Information” at page 1.  The phrase “Contains Nonbinding Recommendations” is printed at the top of every page of the FDA Guidance.  (Da0619-Da0639; Emphasis in original.)  [...]’s expert, [...], never claimed in her report, or at deposition, that FDA approval was necessary in order for [...] to notify health care providers in the United States about the defective Ozurdex applicators.
[brief] Despite demanding and certainly accepting plaintiffs’ responses to written discovery, [...] never provided its own.  [...] opposed plaintiff’s stance that discovery needed to be taken as to the validity of the agreement and related issues before [...]’s motion to compel arbitration could be decided.  Now, to get over this hump, [...] simply construes every single factual dispute or issue in its own favor.  Cf. Kleine v. Emeritus at Emerson, 445 N.J. Super. 545, 548 (App. Div. 2016) (holding that on motion to compel arbitration, facts and inferences must be drawn in favor of non-movant, citing Brill).  While some of its argument touches on the [...]’ certifications, others it simply invents from whole cloth, such as [...] “undisputedly agreed to [...]’s materially similar Terms of Use just eight months prior in April 2021. ” (Db38).  In reality, [...] never even had an opportunity to state a position on a separate writing [...] only called to attention in its reply papers.  [...] also never addresses the unique circumstances at issue here.  For example, it presumes that any “agency agreement” extends past the ordering of food to the execution of an acknowledgment of terms and conditions.  (Db36).  It does not address the irregularity that the terms and conditions checkbox was not presented until after the user made their purchase.  Given that [...]’s website is apparently one that minors can and frequently do access and utilize to make internet purchases, under the auspices of parents or otherwise, [...] has not addressed the potential applicability of other consumer protection schemes that may be implicated and offer plaintiffs shelter here.  See, e.g., Children's Online Privacy Protection Act, 15 U.S.C. §§ 6501–6505 (1998).
[brief] The jury could also have been improperly swayed by [...]’s testimony about [...]’s previous DUI and believed that [...] might have been intoxicated at the time of this incident, which might have explained his otherwise illogical behavior in [...]’ version of events.  The jury was tasked with listening to the accounts of two individuals and determining whose version of events should be believed.  No one witnessed the incident or captured it on camera.  [...] did not have any history of this type of behavior, or even inappropriate behavior toward women.  As such, the jury faced the onerous task of relying merely upon their perception to determine guilt and ran the risk of either sending an innocent man to prison or setting free a man who tried to kidnap a woman at perceived gunpoint.
[brief] 36 State v. Jackmon, 305 N.J. Super. 274 (App. Div. 1997) certif. denied, 153 N.J. 49 (1998) ................................................................. 45, 48 State v. Johnson, 31 N.J. 489 (1960) ........................................................................... 37, 41 State v. Kille, 471 N.J. Super. 633 (App. Div. 2022) .................................................. 48 State v. Koskovich, 168 N.J. 448 (2001) ........................................................................... 31, 37 State v. LaPorte, 62 N.J. 312 (1973)  ............................................................................. 45, 48 State v. Macon, 57 N.J. 325 (1971) ............................................................................. 36 State v. Mahoney, 188 N.J. 359 (2006) cert denied, 549 U.S. 995 (2006) ...............36, 40, 42 State v. Mathis, 47 N.J. 455 (1966) .............................................................................
[brief] The issue on appeal before this Court is whether the trial court erred in granting summary judgment to the defendants, general contractor and property owner, in the face of circumstantial evidence from which a jury could conclude there was a reasonable probability that the plaintiff’s fall and injuries were caused by the defendants’ negligence.  Plaintiff offered evidence of a hidden hazard at the defendants’ construction site that precipitated his fall and resulting injuries.  Entitled to the facts and inferences viewed most favorably to him, plaintiff contends that the evidence was sufficient to warrant the submission to the jury of the issue of defendants’ negligence as the proximate cause of plaintiff’s accident and injuries.
[brief] Appellant [...] ("[...]") appeals the Trial Court’s erroneous holding that [...] did not suffer any damages as a result of the respondents’, [...]’s former directors [...], [...], [...], and [...] (collectively, the “Third Party Defendants” or “TPDs”) being found to have egregiously breached their fiduciary duties to [...].  (5T 10: 6-7).  The Court reached this conclusion based on an erroneous application of law to the uncontroverted evidence of the monetary damages suffered by [...].  At the center of this action is a mosque which [...] had owned as tenants in common with a congregant, [...].  As the TPDs admittedly knew, [...] had long sought to acquire full title to the mosque which had served as the heart of its community for several years.  In 2018, Dr. Amanat was in poor health and sought to sell his fifty (50%) percent interest (the “Share”) in the mosque.  [...]’s trustees had entered negotiations to acquire Dr. Amanat’s Share for his asking price of $250,000.00.  Unbeknownst [...], the TPDs surreptitiously approached Dr. Amanat to buy the Share for the same amount of $250,000.00 on behalf of a new entity that they formed [...] (“[...]”).  While they continued to hold their fiduciary positions as Trustees of [...], the TPDs undertook a series of actions to wrestle control over the mosque from [...] including forming [...], secretly purchasing the Share from Dr. Amanat for the same price that [...] had negotiated ($250,000), and firing [...]’s Imam.  All of TPDs’ actions were done without the knowledge or authorization of [...].  Only **after** [...] had acquired title to the Share did the TPDs, while still being trustees of [...], announce to [...] and the congregation that they had purchased the Share and demanded that [...] participate in the control of the mosque.  The TPDs sought to control the prayer conducted in the mosque by creating an untenable situation and by disrupting the prayer conducted by [...].  When the TPDs’ efforts to control the mosque failed, they had [...] file the within litigation to remove [...] from the mosque’s prayer space.  To summarize, the TPDs selfishly sought to control the entire mosque and to tear apart the very fabric of the [...] community to which they were obligated to protect as [...]’s fiduciaries.
[brief] In this regard, the panel stated:  “Plaintiff, as a potential judgment creditor, must be charged with notice of any deed which has been duly recorded in the proper county recording office.  A title search of the servient tenement should have been made prior to the filing of the complaint in Fisher I, and plaintiff had over eighteen months to do so after filing the complaint. ”  270 N.J. Super. at 471. for the primacy of the recording statutes cuts both ways in this case and does not tilt in [...]’s favor.
[brief] Defendants claim that *Malhame v. Demarest*, 162 N.J. Super. 248, 258 (Law Div. 1978) supports their argument that Title 26 should not preempt the Noise Ordinance, and stands for the proposition that a separate “Common law nuisance claim dealing with noise continues to exist post adoption of the Noise Control Act”.  Db26.  However, the facts of that case reflect that the municipal sirens at issue were found to be a nuisance by the [...].  The court noted that:  On June 12, 1975 five residents … filed a ‘formal complaint’ in the form of a letter with the [...] charging the use of the sirens at present noise levels to be a nuisance under the local ordinance.  On July 10, 1975 the board of health adopted a resolution finding that the noise levels from the sirens in their present locations represent ‘a severe nuisance and possible health hazard to the residents of Demarest living in close proximity ….  [Id. at 255 (emphasis added). ]  The case does not reflect a separate common law noise nuisance, and instead reflects exactly what is argued herein, that the legislative and enforcement authority over noise nuisances is with the local board of health pursuant to Title 26.
[brief] **REPLY TO AMICI STATEMENTS OF PROCEDURAL HISTORY**  The Office of the Public Defender adopts [...]'s procedural history.  See OPDb1.  Regarding the Office of the Attorney General's comment at OAGb3, the judgment of conviction correctly reflects that Count 3 charged [...] with a second-degree crime.  See Da9.  --- 3  "OAGb_" (Office of Attorney General's brief)  "OPDb_" (Office of Public Defender's brief)  REPLY TO AMICI STATEMENTS OF FACTS