ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] To determine whether an agreement is procedurally unconscionable, we examine the circumstances surrounding the transaction, including (1) the manner in which the contract was entered, (2) whether [...] had a reasonable opportunity to understand the terms of the contract, and (3) whether the important terms were hidden in a maze of fine print, to determine whether a party lacked a meaningful choice.  See *Nelson*, 127 Wash.2d at 131, 896 P.2d 1258; *Schroeder v. Fageol Motors, Inc.*, 86 Wash.2d 256, 260, 544 P.2d 20 (1975); *Zuver v. v. Airtouch Commc’ns, Inc.*, 153 Wash.2d 293, 304, 103 P.3d 753.  753 (2004)).  A contract is “procedurally unconscionable” when a party with unequal bargaining power lacks a meaningful opportunity to bargain, thus making the end result an adhesion contract.  *Adler v. Fred Lind Manor*, 153 Wash.2d 331, 348, 103 P.3d 773, 773 (2004).  *[...] v. Pagliacci Pizza, Inc.*, 196 Wash.2d 38, 54–55, 470 P.3d 486, 494–95 (2020).  Under Point II, below, in the course of discussing the Law Division’s ruling concerning substantive unconscionability, Appellant will address the holdings of other cases in line with the Washington Supreme Court in *[...]*.  In the interest of brevity, and to avoid duplication, Appellant incorporates that discussion under this subpoint, as if set forth here.  Appellant respectfully requests that this Court consider the briefing under Point II(B) below in further support of this argument that a one-sided arbitration clause is not enforceable.
[brief] [...] and [...] committed equitable fraud in the Applications, entitling [...] to rescind the Policies.  (18)  The trial court correctly held that the Firm and [...] “made material misrepresentations of fact that were relied upon by [...] warranting recission of the [Policies].”  [3T28-12]  Specifically, the trial court correctly determined that [...] is entitled to rescind the Policies as to the Firm and [...] because (1) the Firm (with [...] signing) made a material misrepresentation when it stated in the Applications that no attorney had been the subject of any bar complaint, investigation, or disciplinary proceeding within the past 5 years; (2) the Firm intended for [...] to rely on that material misrepresentation in the Applications when issuing the Policies; and (3) [...] detrimentally relied on that material misrepresentation when issuing the Policies.  See First Am. Title Ins. Co. v. Lawson, 177 N.J. 125, 136-37 (2003).  Notably, [...] need not prove intent to deceive where, as here, an applicant provides an inaccurate answer to a question regarding objective facts.  See Lawson, 177 N.J. at 137.  New Jersey courts hold that the difference between objective and subjective questions is that an objective question is one that calls “for information within the applicant’s knowledge,” while a subjective question is one that “seek[s] to probe the applicant’s state of mind. ”  Liebling v. Garden State Indem., 337 N.J. Super. 447, 454 (App. Div. 2001) (quoting Ledley v. William Penn Life Ins. Co., 138 N.J. 627, 636 (1995)).  Here, the Firm, acting through [...], made a material misrepresentation in response to objective questions in the Applications, and [...] relied on the Firm’s misrepresentations when issuing each of the Policies.  A.
[brief] *Dewey*, supra, 109 N.J. at 218.  Thus, “close judicial scrutiny of the facts of each case is ‘required to prevent unjust results. ’”  *Carlyle Towers Condominium Ass’n, Inc.*, supra, 944 F. Supp. at 345 (quoting *Gould, Inc. v. Mitsui Mining & Smelting Co.*, 738 F. Supp. 1121, 1126 (N.D. Ohio 1990)).  In this matter, [...] was disqualified pursuant to RPC 1.7(a), which provides in relevant part:
[directive] (1)  Closed sessions for reviews or investigations.  The Board must be in a closed session whenever the content of internal affairs records are discussed or testimony or other evidence regarding a specific incident is presented.  (2)  Protection of internal affairs information.  No part of any internal affairs file may be disclosed by the Civilian Review Board under any circumstances to any person who is not a Board member or employee, the law enforcement executive, or a member of the law enforcement agency’s internal affairs function, except in a final public report appropriately redacted in accordance with instructions from the law enforcement executive.  This prohibition on disclosure includes any statement made by police officers to law enforcement investigators under the provisions of Garrity v. New Jersey, 385 U.S. 493 (1967).  (3)  Personal identifiers.  Even in the Civilian Review Board’s final public report, the Board may not disclose the personal identity of subject officers, complainants, or witnesses.  (4)  Dedicated location for reviewing internal affairs records.
[directive] CASH SEIZED FOR FORFEITURE OF except where t o be used i t is  Cash seized for forfeiture, a s evidence, is to be deposited either within sixty (60) days---aTter seizure or ten days after indictment; or (10) within five days after the sLizing agency learns that the cash may be deposited, whichever occurs first, into the U.S. Customs Suspense Account pending forfeiture.  The Director, Executive Office for Asset Forfeiture, may grant exceptions to this policy in extraordinary circumstances.  Transfer of cash to the United States Customs Service Suspense Account shall be accomplished in accordance with these instructions.  June R e v . 19, 1996
[brief] Liability of the insured to the plaintiff is not the criterion: it is the allegation in the complaint of a cause of action which, if sustained, will impose a liability covered by the policy.  [Danek v. Hommer, supra, 28 N.J. Super at 76-77, 100 A.2d 198.]  There is little dispute that the complaint was inartfully drafted.  It does not clearly articulate the facts necessary to prove any specific cause of action.  The duty to defend, however, is determined by whether a covered claims is made, not by how well it is made.  A third party does not write the complaint to apprise the defendant’s insurer of potential coverage; fundamentally, a complaint need only apprise the opposing party of disputed claims and issues.  Jardine Estates, Inc. v Koppel, 24 N.J. 536, 542, 133 A.2d 1 (1957); Miltz v. Boroughs-Shelving, 203 N.J. Super. 451, 458, 497 A.2d 516 (App. Div. 1985).  As written, the complaint alleges outrage and negligent infliction of emotional distress just as convincingly or unconvincingly as it does defamation.  It states that [...] made statements “serving to * * * inflict upon her humiliation, embarrassment, emotional distress and mental anguish.
[brief] (A439).  [...], then self-represented, desperately argued that extensive litigation was unnecessary given [...]’s specious and false claims, unreasonable timing and the obvious facts enumerated in legal documents.  In light of the trial court’s October 20, 2017 Order, [...]’s plea to stop the costly litigation from the start and continuing thereafter was ignored.  (A439).  At various times in this litigation, [...] entered case management orders that set the deadlines for discovery in this case and controlled discovery disputes.  Other orders raised jurisdictional questions, especially since the parties were involved in a complex bankruptcy case and a currently pending ancillary legal malpractice case in Pennsylvania.  On June 1, 2018, [...] granted [...]’s motion for declaratory judgment that the New Jersey Courts could not disturb the findings of the Bankruptcy Court under the Supremacy Clause:
[brief] New Jersey has regulated the debt adjustment field since 1960.  Over time, the Legislature enacted civil and criminal statutes to protect the public, including the law at issue here.  The New Jersey Debt Adjustment and Credit Counseling Act (the “DACCA”), N.J.S.A. 17:16G-1 to -9, as amended in 2009, protects debtors from exploitation by for-profit entities by limiting who may engage in debt adjustment to licensed non-profit entities and to a small group of individuals under limited exemptions.
[brief] See, Piscitelli v. City of Garfield Zoning Board of Adjustment, 237 N.J. 333 (2019); Grabowsky v. Twp. of Montclair, 211 N.J. Super 536 (2015); Kane Properties, LLC v. City of Hoboken, 214 N.J. 199 (2013); Thompson v. City of Atlantic City, 190 N.J. 359 (2007); Mollica v. Township of Bloomfield, A-2467-14T3 (App. Div. Oct 17, 2016)(Pa407); Diamond Chip Realty, LLC v. Township of Sparta Planning Board, SSX-L-399-23 (Law Div. March 28, 2024) (Pa413).  IV.  The Trial Court Committed a Series of Patently “Manifestly Unjust” Reversible Errors and Omissions Supporting Reconsideration, Vacation, Amendment and Alteration of the September 22, 2023 Pre-Discovery Dispositive Summary Judgment Dismissal In Favor of All Defendants.
[brief] Appellant’s Letter Vendor Theory is Contrary to Congressional Intent Concerning Third Party Communications  “The paramount goal of all statutory interpretation is to carry out the Legislature’s intent. ”  Nicholas v. Mynster, 213 N.J. 463, 480 (2013) (citation omitted).  See also Matter of C.P.M., 461 N.J. Super. at 582–83 (“When interpreting a statute, our main objective is to further the Legislature's intent. ” [citation and quotation omitted]); Young v. Schering Corp., 141 N.J. 16, 25 (1995) (the “overriding goal has consistently been to determine the Legislature’s intent. ”).  Courts must therefore “construe the statute sensibly and consistent with the objectives that the Legislature sought to achieve. ”  Mynster, at 480 (citation omitted).  Here, the Senate Report on the FDCPA lays out the type of conduct Congress was attempting to curtail through § 1692c(b), namely: “disclosing a consumer’s personal affairs to friends, neighbors, or an employer.
[directive] Inisyal Akize a / Defendant’s Initials Fòm Prensipal Deklarasyon Koupab/Fòm Revize Kreye pa Direktif #01-18, (02/23/2018), CN 10079-Haitian Creole paj 3 nan 7 Main Plea Form/Revised Form Promulgated by Directive #01-18, (02/23/2018), CN 10079-Haitian Creole page 3 of 7 ki 7.
[brief] [Id. at 85, quoting State v. Vick, 117 N.J. 288, 294-95 (1989) (Clifford & Stein, JJ., dissenting). ]  Not only did we see that counsel dismissed presenting his client’s defense at trial, but we can easily infer that he also failed to meaningfully discuss and develop the defense before trial.  For [...], “[d]espite what might have been honorable intentions and a thorough investigation of defendant's claims, [trial counsel in the present case] breached the rule's clear mandate” to advocate for a claim to which his client was committed but with which counsel disagreed.  State v. Rue, supra at 19-20 (Verniero concurring).  “As a result, defendant is entitled to the relief sought. ”  Id. at 20.  In Rue, the Supreme Court vacated the denial of the defendant’s PCR petition and remanded his case for a new hearing.  Here, this Court should vacate [...]’s conviction and remand his case for a new municipal court trial.  II.
[brief] But the DNA was matched, through the CODIS database, to a woman named [...] (21T163-4 to 12).  Seth was a known heroin addict (21T185-14 to 15).  Hospital records showed that at 9:48 p.m. on March 10, 2017, Seth had gone to the emergency room at [...], where she was admitted at 3:03 a.m. on March 11, 2017, and discharged at 6:27 a.m. that day (21T177-19 to 21T180-15).  [...]'s DNA was found as the major contributor in the blood stains on both gloves taken from defendant (22T161-20;22T164-9 to 22T166-21;23T139-4 to 23T141-13).  Defendant's DNA was found in the saliva on a black and white bandanna that the police seized from his [...] house (22T88-22 to 22T89-1;22T116-11 to 22T117-17;23T163-3 to 6).
[brief] 1.  **The Redevelopment Project**  [...] is a civil engineering firm.  On February 24, 2016, it was retained by co-defendant [...] (“[...]”) to prepare a preliminary site plan for a redevelopment project taking place in the [...], New Jersey.  (Pa000389).  This preliminary site plan was prepared in 2017.  (Pa000378; Pa000390).  As part of this project, [...] also retained [...]  (“[...]”), a remediation contractor, to address environmental contamination at the redevelopment project; [...] (“[...]”), an excavation contractor; and [...], a general construction contractor.  (Pa000001-000013).  In March 2020, the redevelopment project was sold to defendant [...] (“[...]”), though [...] remained responsible for overseeing --- 4 “Da” is in reference to [...]’s Appendix, filed in conjunction with this brief. remediation efforts.  (Pa000622).  Plaintiffs’ claims in this matter arise from environmental remediation performed on the Property.  (Pa000001-000013).  At [...]’s direction, [...]’s preliminary site plan contemplated that Plaintiffs’ Property, located at [...] in Bridgeton, New Jersey, would be part of the redevelopment project and that improvements to the Property would be made at no cost to Plaintiffs.  (Pa000390 at ¶ 3).  Specifically, the preliminary site plan contemplated the construction of new, paved parking spaces and a location for dumpsters on Plaintiffs’ Property.  (Id.; Pa000199 at ¶ 10).  The preliminary site plan by [...] did not call for “any remediation efforts, soil excavation, storage of construction materials, or installation of security fencing to be performed on Plaintiffs’ [P]roperty. ”  (Id. at ¶ 7).  (a)  [...]’s Remediation Efforts
[directive] If the subject of the Internal Affairs investigation is the Police Chief, Police Director, Sheriff or Head of Internal Affairs, the County Prosecutor or the Attorney General’s Office shall handle the investigation.  The investigation may involve any type of alleged employee misconduct, as described in Section 4.1.3, and shall be conducted pursuant to Section 6 20 INTERNAL AFFAIRS POLICY & PROCEDURES | August 2020 (Investigation of Internal Complaints).  At the conclusion of the investigation, the internal affairs investigator and/or the investigating agency shall make factual findings, summarize the matter, and indicate the appropriate disposition (Sustained, Unfounded, Exonerated, or Not Sustained) as to each allegation of misconduct.  See Sections 6.2.3, 6.3.9.  In cases involving Police Chiefs, final dispositions and recommendations shall be forwarded to the appropriate authority.  While the appropriate authority must make the final decision regarding discipline, the County Prosecutor may make a non-binding recommendation regarding the discipline to be imposed by the appropriate authority.  The County Prosecutor or the Attorney General’s Office also may determine that it is appropriate to handle other internal affairs investigations of high-level officials in their discretion.
[brief] As *Erlinger* makes clear, it was for the jury to determine the critical facts regarding whether [...]’s prior convictions were committed at “different times” and whether the latest of them or his release from confinement occurred within ten years of the present offense.  Therefore, [...]’s fifty-five-year sentence violates Apprendi and Erlinger and must be vacated.  Finally, even though the court could have imposed fifty-five years under the ordinary sentencing range, the court expressly chose to consider [...]’s status as a persistent offender and did so immediately before pronouncing his sentence, indicating its importance to the ultimate sentencing decision.  (14T 27-6 to 20; Da 100)  That extended term finding necessarily influenced the court’s decision because it made [...] appear more deserving of a harsher sentence.  See State v. Blann, 429 N.J. Super. 220, 226-27 (App. Div. 2013) (holding overall sentence did “not shock our judicial conscience” where defendant was extended term eligible but judge imposed “a sentence on the high end of the ordinary term”), rev’d on other grounds, 217 N.J. 517 (2014).
[brief] [Pa38].  Thereafter, [...] moved to dismiss Plaintiffs’ claim for negligent hiring on the basis that Plaintiff’s vocational expert, [...], never criticized the hiring of [...], and even acknowledged that [...] acted appropriately in doing so.  The trial court granted this motion and dismissed the claim for negligent hiring via Order dated September 13, 2022.  [DLa 069]  __________________  5  Also at issue in the first appeal was the trial court’s order precluding portions of the testimony of Plaintiffs’ vocational and economic experts, precluding police testimony as to how the incident occurred, and permitting testimony of [...]’ biomechanical engineering expert.  The Appellate Division reversed the trial court’s limitation on testimony of Plaintiffs’ vocational and economic experts and otherwise affirmed the trial court’s evidentiary rulings.
[brief] Counsel emphasized that:  [W]e do not have just one isolated incident and if that was in and of itself I probably would not be asking for a mistrial but within the last hour we've had two significant things happen regarding this trial.  We got a father coaching his son and then we have a family member of the victim speak out and basically almost threaten our clients.  The State argued that the incidents were two separate and distinct events, subject to remediation with an appropriate curative instruction from the court.  The trial court declined to address, at that time, the incident involving [...]'s testimony.  With respect to the conduct of decedent's sisters, the judge characterized the event as a “very unfortunate outburst. ”  However, the judge concluded that she had “already instructed the jury not to pay any mind to it. ”  The judge also indicated that she would repeat the curative instruction concerning the incident as part of her general charge to the jury at the end of the case.  When the jurors returned to the courtroom, the judge again instructed them to disregard the outburst and “not be governed by prejudice, sympathy or emotions. ”  “[A] mistrial should be granted ‘only in those situations which would otherwise result in manifest injustice. ’”  “State v. Harris, 181 N.J. 391, 518, 859 A.2d 364 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed.2d 898 (2005) (quoting State v. DiRienzo, 53 N.J. 360, 383, 251 A.2d 99 (1969)).
[brief] The exclusion of portions of Plaintiff/Respondent’s Amended Complaint was not an abuse of discretion due to the risk of misleading or confusing the jury, and because it would have been unduly prejudicial.  Here, the Trial Court did not abuse its discretion because the jury – without any knowledge or understanding of the full procedural context, Court Rules, and prevailing case law – would be confused and misled by inferences (both legitimate and inappropriate) if read only selected portions of the pleadings in this case.
[brief] ”  Pb31.  This is not a new right.  The “fundamental parental right to care for and guide their children” is one of the bedrocks of our constitutional jurisprudence.  Likewise, the State’s reliance on Anspach v. City of Phila. Dep’t of Pub. Health, 503 F3d 256 (3d Cir. 2007) is also misplaced.  As discussed in Point 2, above, New Jersey public schools sit in a unique space with legal obligations to students and parents.  As such, appellants incorporate its arguments contained in Point 2, above, herein.  For this reason, the Court must reject Respondents’ arguments and reverse the Chancery Court’s August 18, 2023 Order.
[brief] Alternatively, in accordance with a report from the Delaware Department of State: Division of Corporations (Da65), this Court may take judicial notice of the specific fact that [...] is a Delaware domestic LLC.  \textit{N.J.Evid.R.} 201(a)(3) & (d), 202(b).  See also, Da61.  \textsuperscript{13}  This would be true even if [...] had remained a 10% member and plaintiff is viewed as being a 10% member.  [...] had at least a 40% membership interest under any possible view of the evidence.
[brief] On July 3, 2018, Plaintiff\(^1\) filed his initial complaint against [...]’s landlord, [...]  (“[...],” “landlord” or “lessor”); its owner, Cosima [...]; [...]; and several fictitiously named parties.  (Pa118-130)  On October 15, 2018, Plaintiff filed a motion to amend the complaint.  (Pa148-169)  The amendment added [...] as a Defendant and removed [...], Inc., as a Defendant.  (Id.)  --- \(^1\)  Although technically there are two Plaintiffs, [...]’s claim is a derivative, per quod claim, so the singular will be used to avoid confusion.  On May 21, 2019, Plaintiff filed a second motion to amend the complaint to include, *inter alia*, [...] as a Defendant.  (Pa198-316)  That motion was granted by order dated June 7, 2019.  (Pa317-318)  Plaintiff filed the second amended complaint on June 12, 2019.  (Pa319-330)  This was the first time Plaintiff named [...] as a defendant.  (Cf. Pa118-130, Pa156-167 and Pa319-330)  On September 10, 2019, [...] filed an Answer to the second amended complaint.  (Pa425-431)  Plaintiffs filed a third amended complaint on September 23, 2019 to which [...] responded on September 24, 2019.  (Pa436-454)  After several other defendants filed motions for summary judgment, [...] filed its own cross-motion for summary judgment on January 14, 2020.  (Pa522-529)  [...] argued that the Plaintiff failed to file its complaint within the two-year statute of limitations and that, therefore, dismissal was warranted.  (Id.)  On January 24, 2020, the Hon. [...], J.S.C., denied the motions to dismiss.  (Pa7-8; 1T47:15-48:22²)  --- ² 1T=January 24, 2020 hearing on motion for summary judgment  2T=February 14, 2020 transcript of motion 3T=June 25, 2021 hearing on second motion for summary judgment  4T=August 9, 2021 hearing on motion for reconsideration  At the conclusion of discovery, on May 28, 2021, [...] filed its motion for summary judgment, arguing Plaintiff produced evidence in discovery demonstrating that [...] had a duty to maintain the area where Plaintiff fell, and reraising the statute of limitations claim.  (Pa888-928)  On June 25, 2021, the Hon. [...], J.S.C., granted [...]’s motion for summary judgment finding that there was no basis to impose a duty on [...] based either on the lease or on the common law, but rejecting the statute of limitations argument.  (Pa1-2; 3T4:2-68:9)  Plaintiff filed a motion for reconsideration which [...] opposed and which [...] denied.  (4T4:1-28:24)  After the dismissal of the tenant defendants, including [...], the case was tried to a verdict against [...] and [...].  (See, Pa3-4)  The jury found no liability against [...], and Plaintiff and [...] reached a settlement after the jury’s verdict found each of them partially liable.  (Id.)  The order to enter judgment was entered on June 27, 2023.  (Id.)  Plaintiff’s appeal and [...]’s cross-appeal follow.  (Pa14-24; 38-60)
[brief] In addition, as the judge found, the State’s conduct was not “willful” or “outrageous. ” (Da25 to 26).  As soon as the trial prosecutor was aware that “notes” possibly existed, she immediately contacted [...] about them and asked if he made or kept any notes.  [...] responded that he did and provided her with the notes, which was a two-paged diagram of the searched location.  Though there had been a reference in [...]’s report to see that “attached diagram,” both the trial prosecutor and defense counsel inadvertently missed that the diagram had not been attached.  Upon receiving the diagram, the trial prosecutor promptly turned it over to defense counsel—which defense counsel acknowledged at oral argument.
[brief] [*Pollino, supra*, 39 N.J. Super. at 299, 121 A.2d 62].  *See also Feldman v. Urban Commercial, Inc.*, 78 N.J. Super. 520, 533, 189 A.2d 467 (Ch.Div. 1963); *aff'd*, 87 N.J. Super. 391, 209 A.2d 640 (App.Div. 1965).