ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] 1  STATEMENT OF MATERIAL FACTS .................................................................  4  STATEMENT OF PROCEDURAL HISTORY .......................................................  8  LEGAL ARGUMENT .........................................................................................  15  I.  STANDARD OF REVIEW .............................................................................  15  II.  THE CHANCERY COURT ERRED IN COMPELLING ARBITRATION  BECAUSE THE CONTRACT UPON WHICH PLAINTIFF-RESPONDENT’S CLAIM IS BASED DOES NOT CONTAIN AN ARBITRATION PROVISION (1T38:16-40:19; 1T42:15-46:16; 1T48:7-51:8)  ....................................................  15  III.  THE CHANCERY COURT ERRED IN COMPELLING ARBITRATION  BECAUSE THE CONTRACTS UPON WHICH THE CHANCERY COURT RELIED WERE SUPPLANTED, INVALID, AND OTHERWISE IN APPLICABLE TO THE DISPUTE AT ISSUE (1T38:16-40:19; 1T42:15-46:16; 1T48:7-51:8).  .........................................................................................  19  IV.  THE TRIAL COURT ERRED IN COMPELLING ARBITRATION  BECAUSE PLAINTIFF-RESPONDENT WAIVED THE RIGHT, IF ANY, TO COMPEL ARBITRATION (1T40:20-42:14).  .........................................................................................  23  CONCLUSION  ..................................................................................................  31  TABLE OF JUDGMENTS, ORDERS, AND RULINGS BEING APPEALED
[brief] (Da572).  Then, on November 8, 1965, [...] conveyed three additional parcels, which were conditioned on [...]’s “enforcement” of the same restrictions in the Genesis Deed, including the requirement that “[n] o building, alteration, fence, or addition shall be made without the written approval of the Developers. ”  (Id.).  For decades, [...] has served as the “property owners’ association” charged with the responsibility of enforcing the Genesis Deed’s restrictions and further implementing and enforcing its own “rules” for the benefit of the club and in furtherance of the [...]’ intent.
[brief] On January 3, 2017, [...] filed its collection Complaint, demanding a judgment against [...] in the amount of $5,139.04, together with interest and costs of suit.  (Complaint, Da1).  On September 26, 2013, [...] requested the entry of judgment by default (Da5), which was entered on the same day (Da13).  Thereafter, [...] executed a bank levy and wage garnishment against [...] until the judgment was satisfied.  (Da20; Da25; Da29; Da32).  [...] objected to the execution on her wages twice—on April 8, 2016, and on May 9, 2016.  (Da27; Da30).  As a result of a hearing, the garnishment was decreased from 10% of [...]’s wages to 5%. (Da31).  On May 23, 2019, [...] initiated a separate putative class action against [...] and its parent company, [...] (“[...]”), in the Superior Court of New Jersey under Docket No. [...], for alleged violations of the New Jersey Consumer Fraud Act (“CFA”), N.J.S.A. 56:8-1 to -20, based on [...]’s and [...]’s enforcement of void debts.
[brief] The standard of review on a motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Rule 4:6-1(e) is de novo.  *W.S. v. Hildreth*, 252 N.J. 506, 518 (2023); *Baskin v. P.C. Richard & Son*, 245 N.J. 157, 171 (2021).  Rule 4:6-2 states, in pertinent part, that:  [e]very defense . . . to a claim for relief . . . shall be asserted in the answer thereto, except that the following defenses . . . may . . . be made by motion, with briefs:  . . . (e) failure to state a claim upon which relief can be granted.  Rule 4:6-2(e) requires that the Complaint must be searched in depth, and with liberality, in order to determine if a cause of action may be gleaned.  Printing Mart v. Sharp Electronics, 116 N.J. 739, 746 (1989).  When assessing the appropriateness of dismissal under R. 4:6-2(e), the inquiry is limited to an examination of the legal sufficiency of the facts alleged in the Complaint.  Rieder v. Department of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987).  When evaluating a motion to dismiss the Complaint, the Plaintiffs are entitled to every reasonable inference of fact.  Independent Dairy Workers Union v. Milk Drivers Local 680, 23 N.J. 85, 89 (1956).  Dismissal is appropriate in the event that the complaint states no basis for relief and discovery would not provide one.
[brief] For all the reasons above, Appellants respectfully request that the Appellate Division issue an order:  1.  [...]’s August 22, 2023 Final Decision  a.  Reversing the [...]’s August 22, 2023 Final Agency Decision; b. Finding that Respondent violated N.J.S.A. 18A:12-24.1(e) with regard to Counts 1 and 4 of the Complaint; and c. Reinstating the penalty of “censure. ”  2.  [...]’s July 26, 2022 Decision on Respondent’s Motion to Dismiss in Lieu of an Answer  a.  Reversing the [...]’s July 26, 2022 dismissal of Count 5 as to N.J.S.A. 18A:12-24.1(e); b.  Reversing the [...]’s July 26, 2022 dismissal of Counts 2 and 3 as to N.J.S.A. 18A:12-24.1 (a) and (e); and c.  Reinstating Counts 2, 3, and 5 of the Complaint for further proceeding before the Office of Administrative Law.  Respectfully submitted, [...]
[brief] E. 2022  Adoption of amendment to the Redevelopment Plan.  Following the entry of the September 15, 2022 Bankruptcy Court Order, and in accordance with the directive of that Order that the requested relief to permit amendment of the Redevelopment Plan was not granted “nunc pro tunc,” on September 27, 2022, the Mayor and Council referred Ordinance 22-1516 (“Ordinance”), the amendment to the Redevelopment Plan, to the Planning Board for review and reporting.
[brief] Plaintiff described a conspiracy as two people talking together and coming up with a plan to hurt someone (1T; 128:6).  Plaintiff referred to the false evaluations (1T; 128:14).  [...] told the Plaintiff that she knew she had an EEO complaint and further, that she didn’t have an Admin Officer’s position and basically, she didn’t know why she was being transferred to the Academy (1T; 129:17 to 129:24).  Plaintiff testified that [...] never said that she was holding the EEO complaint against the Plaintiff; “just in what I’ve experienced” (1T; 130:7).  Plaintiff went to the Management Review Section in July of 2017 (1T; 134:22).  How the lying evaluation affected her career is set forth (1T; 136:15).
[brief] #  Table of Authorities  ## State Cases | Case | Page(s) | |----------------------------------------------------------------------|---------| | Baldyga v. Oldman, 261 N.J. Super. 259 (App. Div. 1993) | 20 | | Conrad v. Robbi, 341 N.J. Super. 424 (App. Div. 2001) | 20 | | Customers Bank v. Reitnour Inv. Properties, LP, 453 N.J. Super. 338 (App. Div. 2018) | 13 | | Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561 (2002) | 13 | | Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100 (2005) | 20 | | Leitner v. Toms River Reg'l Sch., 392 N.J. Super. 80 (App. Div. 2007).
[brief] NOTICE OF THE APPLICATION WAS SUFFICIENT UNDER THE PRINCIPLES ESTABLISHED IN THE PERLMART DECISION, THEREFORE THE DEFENDANT-BOARD HAD JURISDICTION OVER [...]’S APPLICATION  Appellant challenges the sufficiency of the public notice of the application as impermissibly vague under the Municipal Land Use Law.  However, this challenge must fail as members of the public were fairly apprised of the date, time and place of the hearing as well as the location of copies of the application and plans.  Further, the notice sufficiently described the variance relief sought.
[brief] 48 N.J.S.A. 2C:2-6(a) .........................................................................................  2 N.J.S.A. 2C:5-2 .............................................................................................. 2, 40 N.J.S.A. 2C:5-2(c) .........................................................................................  41 N.J.S.A. 2C:11-3(a) ....................................................................................... 2 N.J.S.A. 2C:12-1(b) ....................................................................................... 41 N.J.S.A. 2C:12-1(b)(1) .................................................................................. 2 N.J.S.A. 2C:12-1(b)(7) .................................................................................. 2 N.J.S.A. 2C:44-1(a)(1) .................................................................................. 44, 46 N.J.S.A. 2C:44-1(a)(3) .................................................................................. 44 N.J.S.A. 2C:44-1(a)(6) .................................................................................. 44, 48 N.J.S.A. 2C:44-1(a)(7) .................................................................................. 44 N.J.S.A. 2C:44-1(a)(9) .................................................................................. 44, 49 OTHER AUTHORITIES Model Jury Charges (Criminal), “Conspiracy (N.J.S.A. 2C:5-2)”………………… 40 RULES R. 1:7-2 …………………………………………………………………………………….. 39 R. 2:10-2 ……………………………………………………………………………………..
[brief] IT IS AXIOMATIC THAT A MUNICIPALITY CANNOT BE COMPELLED TO ACCEPT A DEDICATION OF LAND OWNERSHIP (Pa646 and Pa18 (final decision declined to address))  At all stages of the development process ownership of the internal roadways was explicitly made contingent upon acceptance by the Borough.  The trial Court nevertheless transferred ownership and responsibility of the roads to the Borough in express contradiction to the Borough’s own legislative determination to the contrary.  This act of the trial court was improper.  The Appellate Division has held that compelling roadway dedication cannot be imposed upon an unwilling municipality.  “An individual cannot, at his pleasure, create public highways for his own benefit upon his own land, and impose upon the public the burden of maintaining them. ”
[brief] (Pa4).  In light of this, the Board still had concerns with [...]’s lack of problem resolution, noting “[...]’s repeated expressions of deep regret for his actions . . . does not equate to a change in his behavior. ”  (Pa4).  Next, [...] argues the Board failed to properly consider his institutional programming.  (Pb25-Pb26).  However, the Board confirmed it considered this and actually “commended” [...]’s institutional program participation during his hearing.  (Pa2-Pa3).  Last, contrary to [...]’s argument the Board failed to consider his seven letters of support, (Pb26-Pb27), the Board noted it considered the various letters and discussed them with [...] at his hearing.  (Pa6).  And the Board clarified that, just because it had singled out his sister’s letter “was notably positive” that did not indicate a failure to give “due consideration” to the other letters.  Ibid.  In conclusion, the Board did not abuse its discretion because there is sufficient evidence to support its finding of “a substantial likelihood that [[...]] will commit a crime” if paroled.
[brief] [N.J.S.A. 2A:24-8.]  Notwithstanding that an arbitration award can (possibly) be vacated on the grounds listed above, it is recognized that “the standard for vacation will be met only in rare circumstances. ”  East Rutherford, supra, 213 N.J. at 202 (emphasis original).  This is because if the matter is reasonably debatable, then judicial intervention is unwarranted.  Id. at 203.  See also Township of Wyckoff v. PBA Local 261, 409 N.J. Super. 344, 354 (App. Div. 2009) (“An arbitrator’s award ‘is entitled to a presumption of validity and the party opposing confirmation ha[s] the burden of establishing that the award should be vacated pursuant to N.J.S.A. 2A:24-8’”); Heffner v. Jacobson, 185 N.J. Super. 524, 526-27 (Ch. Div. 1982) (“Arbitration is favored by the courts as a speedy and efficient means of resolving disputes without resort to judicial intervention”; “Thus, when such award is presented for confirmation and enforcement, the presumption is in favor of its validity”; this “furthers the goal of expeditious final resolution of disputes”); City of Atlantic City v. Atlantic City Firefighters Local, 198, IAFF, 234 N.J. Super. 596, 310 (Ch. Div. 1989) (judicial review of an arbitrator’s award is much more limited in scope, than is appellate court review of a trial court decision); New Jersey Transit Bus Ops., Inc. v. Amalgamated Transit Union, 187 N.
[brief] ”  Id. at 352-53.  In this case, however, even if this Court determines that a remand is necessary, [...] did not make the type of errors made by the judge in Melvin, which the Supreme Court later found were fundamentally unfair.  Indeed, this case was remanded initially only because Torres was decided after defendant’s trial and necessitated a more explicit statement regarding the consecutive sentences than was required at the time of the original sentences; otherwise, there was no error at all.  And [...] has already demonstrated that he can arrive at a different result—the sentence he imposed after remand was two years shorter than the original sentence, based on the new evidence defendant presented at the resentencing hearing.  Thus, there is no reason to believe [...] cannot continue to be open-minded if another sentencing remand is ordered.  CONCLUSION
[brief] ”  [...], supra, 2022 N.J. Super. Unpub. LEXIS 1303, *18 (citing, State v. Simon, 161 N.J. 416, 444 (App. Div. 1999)).  As to the alternative ground of dismissal of Appellants’ claims, namely failing to state a claim upon which relief could be granted, the trial court’s decision is reviewed de novo.
[brief] (10T 121-11 to 24)  This Court recently recognized the applicability of self-defense to a defendant’s possession of a knife and reversed the defendant’s conviction due to the erroneous omission of this charge.  *Oguta*, 468 N.J. Super. 100.  In *Oguta*, the defendant testified that he usually carried a pocketknife because he used it for work to cut up boxes.  *Id.* at 110.  He further testified that he “spontaneously pulled out the knife in self-defense” after he was attacked.  *Ibid.*  This Court held that, “[g]iven that testimony, the judge should have instructed the jury that self-defense could be a justification to the charge of unlawful possession of a weapon if the jury found facts supporting self-defense. ”  *Ibid.*  The court held that the omission of this self-defense instruction was clearly capable of producing an unjust result because “[t]here was really no dispute that an altercation took place and that [the victim] had been stabbed.  The critical question in this case was whether defendant acted in self-defense. ”  Id. at 111.  The harm from the omitted self-defense instruction was particularly acute as the court had provided a self-defense instruction to the charges of aggravated assault and possession of a weapon for an unlawful purpose.  Id. at 110.  The court explained, “[b]y not giving that same instruction in connection with the charge of unlawful possession of a weapon, the jury could have reasonably concluded that self-defense was not relevant. ”  Ibid.  Thus, this Court concluded that “the error of not giving the self-defense instruction in connection with the charge of unlawful possession of a weapon was sufficient to raise reasonable doubt as to whether it led the jury to a verdict it otherwise might not have reached. ”  Id. at 111.  Here, as in Orguta, [...] testified that she grabbed the knife in self-defense after she was attacked by [...].  Thus, the trial court should have instructed the jury that self-defense could be a justification to the charge of unlawful possession of a knife.  As in Orguta, the omission of this self-defense instruction was particularly harmful because the jury was instructed that self-defense applied to the homicide and possession of weapons for an unlawful purpose charges.  Thus, as in Orguta, [...]’s conviction for unlawful possession of the knife should be reversed because of the omission of this critical instruction.
[brief] [Ibid.]  Here, the trial judge's instructions were apparently directed at “five people who [had] come to view this trial. ”  Addressing this group directly, the judge informed them that due to the small size of the courtroom, the number of prospective jurors expected, and the need to keep the public “separate” from the prospective jurors, they would have to leave the courtroom.  Another key factor here is the duration of the exclusion.  In this respect, the trial judge advised the five spectators that they would have to leave the courtroom “at least until we get ... through some of the jurors ... [Y]ou'll come back in ... once we have the fourteen in the box, you're free to come and go as you please. ”  *12  From these words we infer that the judge intended to limit the duration of the exclusion to the time it took for the voir dire process to excuse a sufficient number of prospective jurors to free up enough space in the courtroom to accommodate the five members of the public.  Although we are unable to ascertain how much time transpired before the members of the public were able to return, we are satisfied that such period of time was constitutionally insignificant.
[brief] --- 5  At Pa83-Pa95 & Conf. at Pa136-Pa141.  6  The Judge also asserted the critical term “Reckless Indifference” was absent from the 6th AC.  2T-45-25 to 46-5.  This is just incorrect.  I have made an extensive statistical study of the frequent appearance of that term and identical terms in 5th AC & Both SACs.  Pa397-402.  Regarding “That ruling was not appealed. ”  His Honor is just dead wrong: we’re working on a remand from this Court of [...]’s Opinion.  All issues are still “live. ”  The lack of review of both SACs we feel was counter to this Court’s instructions on remand not to be bound by prior (possibly erroneous) decisions, citing to Lawson.  In all events, His Honor basically “affirmed” [...]’s 2021 decision with frequent citations to it.  This re-appeal now follows.  This recast Brief relies on the same Appendices Volumes I, II & III from the prior Appellate Case.
[brief] For starters, there is no dispute that the only documents that Defendants provided through their own efforts were tax returns for the [...], despite the fact that the [...] had owned the Property for several years and that [...] had been its property manager from 2018-2019. \(^6\)  That is, Defendants claimed not to have a single email relevant to the allegations or their defenses, any records of any payments to any employee or independent contractor who worked on the Property, or even any awareness of where the [...] maintained its bank accounts.  As [...] correctly observed, Defendants’ claims that none of these documents ever existed is provably false, in that Plaintiffs obtained emails from former tenants in which they raised complaints of water infiltration and mold directly to [...].  Da9, ¶ 24, Pa43.  \(^6\)  As noted above, Defendants merely re-produced to Plaintiffs other documents that Plaintiffs had obtained through their own efforts and produced to Defendants.  The trial court was likewise fully within its discretion to reject Defendants’ claims that they have ever performed any meaningful search for any of these documents, as they denied ever having lost, deleted or destroyed any records pertaining to the Property, the [...], tenant records, employees or independent contractors, or repairs performed to the Property.
[brief] And I want to just piggyback on the testimony of the Applicant's traffic engineer who testified that, from a traffic impact and a trip generation standpoint, there was really no distinction between a 30-foot or, say, a 50-foot warehouse.  5T 96:17-23  Emphasis added.  Since, it was founded on the shaky underpinnings of traffic testimony that was not supported by the underlying data (and which is also inconsistent with the testimony of Plaintiffs’ other witnesses about the greater amount of product to be stored and moved through taller buildings), the Board quite properly did not accept this argument of [...].  [...]’s concluding testimony on the final night of hearings, in which he asserted that the proposed warehouse development was actually less intense than permitted under the SM Zone District’s building coverage standards because an additional 309,000 sq. ft. of warehouse could be constructed, does not bolster [...]’ conclusion that the proposed development would not be more intense than envisioned for the SM Zone.  6T 9:24-10:12.
[brief] 2T121.  After learning about the settlement from a third party, Plaintiff filed a motion to enforce her rights under the PSA in September 2022.  Following a plenary hearing on March 28, 2023, the Trial Court ruled, sitting in equity, that the undefined term “sale” in the parties’ PSA is broad enough to include eminent domain and related proceedings, awarding Plaintiff half of Defendant’s share of the [...] proceeds.  Defendant filed this appeal.
[brief] Plaintiff utilized the Fifth and Sixth Street Lots for parking for nearly five (5) decades, paid (and continues to pay) for the lighting required for the parking areas, provides snow removal for the parking areas and provided for a complete modernization of the boiler room located on the Subject Property.  Moreover, the 1972 addition did not interfere with Plaintiff’s enjoyment of its easement rights.  “It is the exclusive right of the owner of the dominant tenement [Plaintiff] to say whether or not the servient owner [Defendant] shall be permitted to change the character and place of the servitude suffering the burden of an easement localized and defined. ”  Ingling v. Public Service Electric & Gas Co., 10 N.J. Super. 1, 8 (App. Div. 1950).  “Where the easement comes into being by way of an agreement”, as is the case here, the “universally accepted principle” is that the “landowner may not, without the consent of the easement holder, unreasonably interfere with the latter’s rights or change the character of the easement so as to make the use thereof significantly more difficult or burdensome.
[brief] The United States Supreme Court has repeatedly held that the “principal purpose of the FAA is to ensur[e] that private Arbitration Agreements are enforced according to their terms. ”  See, e.g., AT&T Mobility, LLC v. Concepcion, 131 S. Ct. 1740, 1748 (2011) (citing Volt Info. Scis. v. Bd. of Trustees, 489 U.S. 468, 479 (1989)); Stolt-Nielsen S.A. v. Animal Seeds Int’l Corp., 130 S. Ct. 1758 (2010); Atalese v. U. S. Legal Servs. Grp., L.P., 219 N.J. 430, 440, 99 A.3d 306, 312 (2014).  The FAA was enacted by Congress to “reverse the longstanding judicial hostility to Arbitration Agreements. ”  Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991); Vaden v. Discover Bank, 556 U.S. 49 (2009); Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 225-26 (1987); Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 177-78 (3d Cir. 2010).  As the Supreme Court stated:  [T]he recognition that arbitration procedures are more streamlined than federal litigation is not a basis for finding the forum somehow inadequate; the relative informality of arbitration is one of the chief reasons that parties select arbitration.  Parties trad[e] the procedures and opportunity for review of the courtroom for the simplicity, informality and expedition of arbitration.  14 Penn Plaza, LLC v. Pye, 129 S. Ct. 1456, 1471 (2009) (citations omitted); accord AT&T Mobility, 131 S. Ct. at 1748-49; see also Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1621 (2018) (reiterating the benefits of arbitrating favor a presumption that arbitration should apply because of “the promise of quicker, more informal, and often cheaper resolutions for everyone involved”).  The Supreme Court’s preference for arbitration extends to consumer disputes as well.  See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 280 (1995).  Under the FAA, a court must compel arbitration if it finds: (1) that a valid arbitration agreement exists between the parties, and (2) the dispute falls within the scope of the agreement.  See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626-28 (1985); Gay v. CreditInform, 511 F.3d 369, 386 (3d Cir. 2007) (citing Great W. Mortgage Corp. v. Peacock, 110 F.3d 222, 228 (3d Cir. 1997)).  Because of the favored status afforded to arbitration, “[a]n agreement to arbitrate should be read liberally in favor of arbitration. ”  Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282 (1993).  B.