ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Initially, Defendant seeks to claim that New Jersey precedent governs this outcome [Defendant’s Brief, pp.10-15].  Defendant cites two cases as the purported “precedent” requiring that this clause be enforced.  Defendant cites the Supreme Court’s decision in *Delta Funding Corp. v. Harris*, 189 N.J. 28 (2006).  This is an example of the first great mistake.  In *Delta Funding*, the Supreme Court permitted a secured lender to file legal action for foreclosure remedies, not available through arbitration, even though the borrower was required to arbitrate all of his claims.  That narrow holding does not govern the much broader clause before this Court.  Second, Defendant cites to *Kalman Floor Co. v. Joseph L. Muscarelle, Inc.*, 196 N.J. Super. 16, 23 (App. Div. 1984), *aff’d o.b., Kalman Floor Co. v. Jos. L. Muscarelle, Inc.*, 98 N.J. 266 (1985).  This is an example of the second great mistake.  *Kalman* is off-point because it concerned a one-sided arbitration clause negotiated in a commercial contract between two business entities.  The *Kalman* agreement was not one “between the rabbits and the foxes. ”  *Arnold v. United Cos. Lending Corp.*, 511 S.E.2d 854, 862 (W. Va. 1998).  A commercial agreement,, or an agreement “between a fox and a fox,” is not before this Court.  Moreover, a claim for money is the only claim Defendant could possibly have under the agreement.  Defendant suggests otherwise but the single example it cites – a claim for property damage arising from Plaintiff’s entering the worksite and damaging Defendant’s equipment – is an independent tort claim.  Tort claims for property damages are not “arising out of or relating in any way to this agreement or its breach. ”  Such a claim would be resolved under tort law.  Defendant asserts further that a secured lender could never possess other claims against the borrower except for foreclosure remedies.  That is clearly incorrect.  In fact, the principal remedy sought by a secured lender is payment in full of the underlying promissory note.  The lender’s claim under the Promissory Note can always be pursued outside of a foreclosure proceeding in New Jersey.  The Promissory Note and the Mortgage are distinct agreements -- the mortgage merely being security for payment of the Promissory Note.
[brief] DiFiore v. Pezic, 254 N.J. 212, 228 (2023).  And under Rule 4:10-2, the answer is simple: the “scope of discovery” is limited to documents—including “electronically stored information”—that are “relevant. ”  R. 4:10-2.  The trial court disregarded Rule 4:10-2(a)’s relevancy limitation because, as it stated repeatedly, it believed that “ESI is different. ”  T24:18; see T20:23-21:2.  Contrary to Plaintiffs’ assertion, these comments were not merely “some general statements about ESI. ”  Pb21 n.11.  That rationale was essential to the trial court’s ruling.
[brief] We discern that the trial judge recognized the unfairness in barring the State from introducing the evidence of [...]'s belated identification of defendant as his assailant.  Barring that evidence would have been unfair to the State and indeed to [...] himself.  Under these circumstances, the only fair thing to have done would have been to grant a mistrial and thereby afford defendant and his attorney the opportunity to adjust their trial strategy and make an orderly determination of how to proceed in light of the new evidence.  We recognize that ultimately the State, apparently sensing the appellate issues that could be presented if defendant were to be convicted after such an egregious discovery violation had occurred, told defendant and his attorney that it had reconsidered and did not plan to introduce evidence of [...]'s identification of defendant.  We further recognize that at that point defendant and his attorney were restored to the status quo ante, in that they were at that juncture in no worse position than they were before the assistant prosecutor revealed that [...] could now make an in-court identification.  Although defense counsel could, at that point, have decided not to pursue the issue of [...]'s ability to identify defendant, and could have refrained from asking for the Rule 104(a) hearing, we view her decisions in an indulgent light.  We do so because of the inherent unfairness that resulted from forcing a defense attorney to constantly readjust her strategy in the middle of the trial.  It would be unfair to conclude under the extreme circumstances presented here that this was “induced error” that should cause a defendant to forfeit his right to any relief.  *State v. Corsaro*, 107 N.J. 339, 346 (1987).
[brief] RETROACTIVELY  [...] contends in its complaint that the effective date of the COVID Statute was June 29, 2020, which is actually the date of the Statute’s amendment, where the Legislature added a “belt and suspenders” clause, reiterating that contracted service providers receiving payments pursuant to its provisions are required to pay their employees as if the schools had remained open.  [...] makes an argument that boils down to this:  Until this language was added, the Statute’s requirement that school districts pay their service providers during health-related closures was of no force and effect, and that to require otherwise is to apply the COVID Statute retroactively.
[brief] In a similar case seeking to oust other Rutgers’ BOG members, the Law Division determined that such members do not hold “office” (or State employment or position) and cannot be ousted on residency grounds pursuant to the New Jersey First Act, N.J.S.A. 52:14-7.  In a published opinion authored by former Assignment Judge [...], the court closely examined the New Jersey First Act’s statutory language, purpose and legislative history.  The court concluded that volunteer members of the Rutgers BOG do not hold office.  Kratovil v. Angelson, 473 N.J. Super. 484, 520 (Law Div. 2020).  That holding should apply with equal force here.  That is so because, even though the statute in Kratovil is different, both that case and the present one deal with the same concept (removing a BOG member on residency grounds) and contain the same specific reference to “office.
[brief] CCMC Appendix, Da138.  The waiver of a jury trial set forth in [...]’s policies could hardly be clearer.  In a recent precedential case that is indistinguishable from this one, the United States Court of Appeals for the Third Circuit persuasively predicted that the New Jersey Supreme Court would compel arbitration where the insurer’s own contracts required it.  GEICO v. Mt. Prospect Chiropractic Center, PA, Consol. Case Nos. 23-1378, 23-2019 & 23-2053 (April 15, 2024).  CCMC Appendix, Da158.
[brief] THE COURT ERRED WHEN IT PLACED THE BURDEN ON PETITIONER TO PROVE THE EXISTENCE OF UNDUE INFLUENCE BY CLEAR AND CONVINCING EVIDENCE  In its opposition, the Respondent contends that the Petitioner had the burden of proving undue influence using the "clear and convincing" standard.  Respondent's opposition overlooks the shifting burdens associated with claims of undue influence and how that impacts the burdens of proof.  It is well settled that even a will, which on its face appears to have been validly executed, can be overturned upon a demonstration of undue influence.  Haynes v. First Nat'l State Bank of N.J., 87 N.J. 163, 175-76, 432 A.2d 890 (1981).  In Haynes v. First National Bank of New Jersey, 87 N.J. at 175-76, the Supreme Court set forth the standard to be applied to rebut a presumption of undue influence (1) a confidential relationship and (2) "suspicious circumstance" that "need only be slight."
[brief] The decision was based upon the court's assessment of whether there was an exception to the prohibition against warrantless searches because defendant gave third-party consent to the police to search the house.  Illinois v. Rodriguez, 497 U.S. 177, 186 (1990).  The court found the police officers' belief that defendant had the authority to consent to a search was objectively reasonable in view of the attendant facts and circumstances.  Id. at 188-89; State v. Bruzzese, 94 N.J. 210, 219, 221 (1983).  The court held:  Based on all the testimony presented ..., the facts establish that [defendant] opened the door in response to the police knocking; he did not object to police entry or state in any way, shape, or form that the police were not allowed to come in; police asked about [...]'s presence and [defendant] stepped aside in response to the question.  The act of stepping aside by [defendant] can fairly be interpreted as granting permission to enter the premises.  The reasonableness of that inference is also buttressed by [defendant's] failure to verbalize any objection to the officer's search into the residence.[ ]  Based on these circumstances, the court finds that the police had an objectively reasonable basis to believe that [defendant] possessed common authority over the property to be searched and that his actions and inactions granted the officers consent to enter the residence.
[brief] (8T103:11).  [...] also extensively used the MDT which was in his police car as an essential tool to conduct necessary police procedures.  (8T104:2).  [...] never just turned off the MDT and the policy was that the MDT was never to be turned off.  (8T104:18; 21).  [...] instructed the officers that it was mandatory to use the MDT and if there was a malfunction or the MDT did not work for some reason there was a written mandate to let a supervisor know.  (8T104:21 - 105:2).  In [...]'s initial IA interview, [...] repeatedly indicated that, since the interview was taking place more than a year after the day of the alleged event, that [...] could not remember everything with specificity.
[brief] A.  That's a broad – I'll characterize it this way, is that we conduct annual drills, transmission safety drills, with local OEM.  [...] may have been one of the participating groups, OEM, prior PB in one of our drills in the past, but I don't have that in front of me.  But we do regularly interact by way of drill as part of our safety program with the state.  And also part of our federal requirements is that we have an annual transmission drill where we talk about incidents that can occur along a transmission line.  Q.  Okay.  That's good to know.  The first passage I asked you to read involved the possibility of equipment failures as well as feeding high pressure gas into homes.  Would you agree with me that that's a pretty significant risk?
[brief] Plaintiff-Appellant’s Brief at 12-14.  Specifically, the State argues that the definition of “final judgment” used by the Restatement of Judgments is controlling for these purposes.  Id. (citing Barker v. Brinegar, 346 N.J. Super. 558, 566 (App. Div. 2002) (quoting Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 659 (1996)).  “[F]or the purposes of issue preclusion… ‘final judgment’ includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect. ”  Plaintiff-Appellant’s Brief at 12-13 (quoting Restatement (Second) of Judgments § 13 (1982).  However, the State mistakenly relies on comments to the Restatement (Second) of Judgments, and the text of the Restatement itself, as binding.
[brief] However, in each case, the party seeking the protection of the statute of limitations must be the party who induced the reliance by the plaintiff.  Trinity Church v. Lawson–Bell, 394 N.J. Super. 159, 171 (App. Div. 2007) (“[A] defendant may be denied the benefit of a statute of limitations where, by its inequitable conduct, it has caused a plaintiff to withhold filing a complaint until after the statute has run. ”  Emphasis added); Konopka v. Foster, 356 N.J. Super. 223, 232 (App. Div. 2002) (party seeking to apply equitable estoppel must prove “conduct on the part of the defendant occurring intentionally or under such circumstances that it is both natural and probable that the conduct would induce inaction, together with reasonable detrimental reliance on plaintiff’s part. ”  Emphasis added.); Villalobos v. Fava, 342 N.J. Super. 38, 50 (App. Div. 2001) (“Typically the doctrine [of equitable tolling] is applied ‘where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass. ”  Emphasis added.)  In this case, because Plaintiff did not allege nor demonstrate that [...] indicated that no other party may be responsible, it cannot be said that [...] committed any inequitable conduct sufficient to bar the application of the statute of limitations under any of these equitable theories.  Consequently, [...] erred in not dismissing the complaint for failure to file within the statute limitations.  Therefore, in the event this Court somehow finds that [...] erred in dismissing the complaint against [...] for lack of a duty, [...] is nevertheless entitled to summary judgment as a matter of law, based upon Plaintiff’s failure to commence suit within the two-year statute of limitations.
[brief] See also, Report of Eminent Domain Revisions Commission, pp. 24-28 (April 15, 1965), citing Wilson v. Long Branch, 27 NJ 360 (App. Div. 1958).  3  See Pemberton Township v Berardi 378 N.J. Super. 430 (App. Div. 2005) letter and appraisal (Da13;Da18;Da20) to point out that the purpose of the appraisal and the "property rights appraised" clearly stated that the opinion was of the leased fee in order to comply with the ethics requirement of the Appraisal Institute.  Defendants' motion to bar Plaintiff's expert from using the [...] rent in his income approach and sales of "the leased fee" of shopping centers was denied by the Honorable [...], P.J.C.V. October 14, 2020.  (Da108) (2T 32-34)  Because of covid restrictions, the parties agreed to arbitration.
[directive] 3.7.4  CEDs must be capable of making a digital recording of the encounter each time the device is utilized, unless the officer carrying the CED is equipped with a body worn camera (BWC) as defined in Attorney General Directive 2015-1.  The officer shall activate the BWC prior to utilization of the CED, unless exigent circumstances make it unsafe or not feasible for the officer to do so.  3.7.5  CED spark displays shall be considered constructive authority, but must be reported as a Show of Force in the Attorney General’s Use of Force Reporting Portal.  3.7.6  Police administrators and officers authorized to utilize CEDs and other authorized less- lethal devices and ammunition are also required to adhere to the instructions contained in Addendum A to this Policy.  3.8
[directive] The property stolen is a controlled dangerous substance or controlled substance analog as defined in N.J.S.2C:35-2 and the quantity is in excess of one kilogram; (d)  The property stolen is a person’s benefits under federal or State law, or from any other source, which the Department of Human Services or an agency acting on its behalf has budgeted for the person’s health care and the amount involved is $75,000.00 or more; or (e)
[brief] A litany of New Jersey statutes and regulations use the phrase “principally engaged” without specifically defining it which signifies that the phrase does not require a special definition.  A litany of other New Jersey statutes and regulations use the phrase “principally engaged” without specifically defining it.  See e.g. N.J.S.A. 52:17B-41.11 (“[A]ll applicants who have been principally engaged as an ophthalmic technician . . . shall be issued a license”); N.J.S.A. 34:1B-243 (“Mega project” means . . . a qualified business facility primarily used by a business principally engaged in research, development, or manufacture of a drug or device . . . ); N.J.S.A. 34:1B-185 and N.J.A.C. 19:31–16.2 (“Life sciences business” means a business engaged principally in the production of medical equipment, ophthalmic goods, medical or dental instruments, diagnostic substances, biopharmaceutical products; or physical and biological research; or biotechnology”); N.J.S.A. 44:5-2a (defining “health care facility” as a “private facility or institution, engaged principally in providing services for health maintenance organizations.
[brief] Fernandez v. Costco Wholesale Corp., No. A-6466-06T1, 2009 N.J. Super. Unpub. LEXIS 46 (App. Div. Jan. 8, 2009) (employer’s decision to not tolerate theft of any kind was a legitimate business reason for termination) (Da364-370).  “To prove pretext, however, a plaintiff must do more than simply show that the employer’s proffered legitimate, non-discriminatory reason was false; he or she must also demonstrate that the employer was motivated by discriminatory intent. ”  Fulton v. Sunhillo Corp., 2013 N.J. Super. Unpub. LEXIS 2770, at *20-22 (App. Div., Nov. 18, 2013), quoting Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002); Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002) (sham affidavit allegations contrary to prior testimony do not create a fact issue to withstand summary judgment).  Stated differently, retaliatory discharge claims must be dismissed unless there is competent evidence from which a reasonable factfinder could determine that unlawful animus “played a role in the decision-making process and that it had a determinative influence on the outcome of that process.
[brief] (Pa002231).  When questioned as to his understanding of when his client actually acquired the development rights, [...] testified that his client acquired the development rights to the Property when it “signed a lease with the property owner. ” (Pa002250).  Furthermore, [...] testified that the land use approvals under consideration by the Planning Board “ran with the property, so we were obligated to finish those[.]” (Pa002236).  [...] further described his letter:  “[u]nder the Municipal Land Use act, I wrote this letter to the Planning Board Secretary and I am speaking about the preliminary and final site plan approval, which is all I can do.  What I am saying to her is that we have the right to continue.  We have the right to continue the application. ” (Pa002250).  So, [...] acquired the development rights to the Property because it entered into a lease and assumed “the obligation to complete the project. ” (Id.).  The lease gave Bellin’s client, [...], “exclusive possession and control” of the Property and left [...] to “complete the project.
[brief] Appellants nonetheless contend that the “trial court failed to recognize or address this Court’s ruling” in County of Passaic v. Horizon Healthcare Services, Inc., 474 N.J. Super. 498 (App. Div. Feb. 8, 2023).  (Pb at 29.)  However, as explained in greater detail in Section IV.A below, County of Passaic supports affirming the trial court’s holding because Appellants and [...] are sophisticated commercial parties who clearly understood that they were agreeing to arbitrate their claims.
[brief] HAD Application – Highlands Exemption Request – Aug. 2020 (CONT.) d.  Section 4 – Narrative Report in Support of HAD – Highlands Exemption Request (CONT.) xiv.  Exhibit N – Feb. 11, 2010 – DEP Agency Determination: Highlands Act – Exempt, Exemption 11, re: 300 Line Project – from [...], Director, Division of Watershed Management, DEP, to [...], State Government Affairs Manager, TGP.
[brief] SINCE DEFENDANT NEVER PLED ANY AFFIRMATIVE DEFENSE PREDICATED ON THE TCA, THE DEFENSE WAS WAIVED (931a-954a)  Defendant was obliged to plead in its answer plaintiff’s alleged failure to comply with the TCA's notice requirements\(^1\) and a defense based on the TCA's notice requirements is subject to waiver. \(^2\)  Defendant is unapologetic about failing to plead any TCA defenses in its answer or any statement of facts as mandated by R. 4:5-4 supporting such defenses.  377a-414a; defense brief, p. 41.
[brief] Preciose, 129 N.J. at 464.  B.  Trial Counsel Failed to Have a Forensic Expert Testify Regarding the Viability of Testing the Tire Iron for Fingerprints and DNA.  (Da 113 to 115)  As referenced in POINT A, the State’s case was reliant upon defendant's having weaponized a tire iron to assault and rob [...].  Consequently, the identity of the individual who employed the tire iron was essential to the State’s case.  In this regard, [...] did not “process” the tire iron for fingerprints, because he had been “told” that if an item was dusted for fingerprints, it could not be submitted for DNA analysis due to contamination.  (5T 152-20 to 155-9; 5T 184-23 to 185-7).  [...] understood that fingerprint and DNA analyses could be conducted on the same piece of evidence.  (8T 43-14 to 20).  He requested that the tire iron be tested for DNA, but that it was not done, nor was it tested for fingerprints, Brining testified, because the authorities wanted it tested for DNA and were concerned the fingerprint powder would “contaminate it. ” (8T 47-19 to 49-20).  In support of defendant's PCR petition, [...], having a Ph.D. in microbiology, submitted a report with an extensive C.V. (Da 56 to 84).
[brief] THE PLAINTIFF [...] AND THE [...]  ATTORNEY (NOT THE [...] ITSELF)  ERRONEOUSLY ASSERTED BELOW THAT THE CHANCERY COURT DETERMINATION --- THAT A PARKING EASEMENT ON LOT 5 WAS ESTABLISHED BY THE 1963 AGREEMENT --- WAS DETERMINATIVE AS TO THE N.J.S.A. 40:55D-68 DETERMINATION OF THE [...].  THE TRIAL COURT  ERRONEOUSLY ADOPTED THAT ANALYSIS/ POSITION (RAISED BEFORE [...]  Da68, Da1 AND BEFORE TRIAL COURT Da270; APPEAL TRIAL COURT OPINION/ORDER Da270)
[brief] ([...]’s document production, Bates stamp D02132-D02134 at Pa. 65-67.)  In addition, [...] admitted that when he was admitted into the Pharmacy Program that he signed the University admission form that said:  It is agreed and understood that the signing of this application constitutes an agreement on the part of the student to abide by all rules and regulations of the University.  (Plaintiff Dep. T63:21-24 at Pa.155).  The University admission form continued:  Students who accept enrollment at the University agree to abide by all the rules and regulations now or hereinafter promulgated by the University.  Any student failing to comply with such rules and regulations may be dismissed by the University.  (Plaintiff Dep. T64:12-24 at Pa.155; [...]’s document production, Bates stamps D02393, D02394, D02485 at Pa.66) (emphasis added).
[directive] This Addendum to the Use of Force Policy is not intended to constitute a comprehensive document addressing all of the complicated issues involved in law enforcement responses to barricaded individuals.  Rather, it is designed to ensure that every agency is utilizing best practices, including integrating mental health professionals into the response.  Mental health professionals, with appropriate education, requisite experience and familiarity with law enforcement response procedures, can bring unique perspective, expertise in dealing with a person experiencing a mental health crisis, and input informed by access to patient information to the incident leadership team.  Their input will provide additional tools and resources to maximize opportunities to successfully resolve delicate encounters with barricaded individuals.  1.4
[brief] *State v. Carey*, 168 N.J. 413, 422 (2001) (quoting *State v. Yarbough*, 100 N.J. 627, 643 (1985)).  To that end, the court should consider the extent to which: (a) the crimes and their objectives were predominantly independent of each other; (b) the crimes involved separate acts of violence or threats of violence; (c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (d) any of the crimes involved multiple victims; (e) the convictions for which the sentences are to be imposed are numerous.  [Id. at 422-23 (quoting *Yarbough*, supra, 100 N.J. at 644). ]  "[T]he *Yarbough* guidelines are just that—guidelines.  They were intended to promote uniformity in sentencing while retaining a fair degree of discretion in the sentencing courts.