ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Standard of Review  This Court reviews a “trial court's order granting or denying a motion to compel arbitration de novo because the validity of an arbitration agreement presents a question of law. ”  Ogunyemi v. Garden State Med. Ctr., 478 N.J. Super. 310, 315 (App. Div. 2024) (citing Skuse v. Pfizer, Inc., 244 N.J. 30, 46 (2020)).  B.  The trial court correctly enforced the parties’ Agreement (Pal-14).  Plaintiff’s primary argument on appeal focuses on a single sentence of the Agreement’s dispute resolution provision.  That sentence reads as follow:  NOTWITHSTANDING THE FOREGOING, WE RESERVE THE RIGHT AND MAY AT OUR DISCRETION  EXERCISE THE RIGHT TO COMMENCE LEGAL ACTION IN ANY COURT OF COMPETENT JURISDICTION TO COLLECT MONIES YOU OWE UNDER THIS AGREEMENT, IN WHICH YOU AGREE TO WAIVE THE RIGHT TO MEDIATION OR ARBITRATION.  According to Plaintiff, the foregoing language transforms a valid and enforceable arbitration provision into a “one-sided” arbitration clause, which, he claims, other state high courts have “spoken with a universal voice” and determined to be substantively unconscionable.  (Pb22).  This argument fails for several reasons.
[brief] The State argues that because there was sufficient evidence to convict on the record, Defendant’s Sixth Amendment argument has no merit.  (Sb10.)  But the Court has explained that even when there is sufficient evidence, if a Defendant’s Sixth Amendment rights to confrontation are violated, error that might lead to a different result justifies reversal.  State v. Bankston, 63 N.J. 263, 273 (1973).  As argued in Defendant’s opening brief, in Bankston, an officer testifying as to information received from an informant constituted a Sixth Amendment violation due to the hearsay nature of the statement.  Id. at 268-69.  The Court explained that the officer testifying to the details provided by an informant bolstered the State’s position improperly.  Id. at 272-73.  Similar to Bankston, the de novo judge’s consideration of the Alcotest – even just the mere fact that the State had originally sought to rely upon the Alcotest – deprived Defendant of the opportunity to cross-examine [...] who authored that report.  (Da17.)  The fact that the State had intended to introduce the Alcotest, even without the details, gave the de novo court sufficient information to bolster the other evidence without offering Defendant the opportunity for cross-examination.  The Court Rule limited the de novo court to “the record below,” and thus, consideration that there was an Alcotest necessarily exceeded the scope of review and harmed Defendant’s ability to cross-examine [...], who administered the Alcotest.  R. 3:23-8(a)(2); (1T14:24-15:3.)  Such constituted error sufficient to justify reversal and remand to an impartial judge.
[brief] The trial court erred in determining: (1) it was not unconscionable to bind [...], along with her two minor daughters, to arbitration, where the Terms and Conditions which included the Arbitration Agreement, were not given to her in Spanish; and (2) [...] agreed to the Terms and Conditions of [...] binding herself and her family to Arbitration.  Pa17-20.  I.  STANDARD OF REVIEW (Pa03)
[brief] State v. Brown, 463 N.J. Super. 33, 51 (App. Div), certif.  denied, 244 N.J. 351 (2020).  "[T]o be admissible in evidence the videotape must be properly authenticated."  State v. Wilson, 135 N.J. 4, 16 (1994) (citing N.J.R.E. 901).  "To that end, any person with the requisite knowledge of the facts represented in the photograph or videotape may authenticate it."  Id. at 14.  "An authenticator need not even have been present at the time the photograph was taken, so long as the witness can verify that the photograph accurately represents its subject."  Ibid.  "[T]estimony must establish that the videotape is an accurate reproduction of that which it purports to represent and the reproduction is of the scene at the time the incident took place."  State v. Loftin, 287 N.J. Super. 76, 98 (App. Div. 1996).  In Loftin, the police investigating a murder in a hotel-casino obtained a bellman's ([...]) description of a suspect.  [...], employed by the casino's surveillance team, testified that it ultimately became apparent that an individual matching [...]'s description appeared on various videotapes in various locations.  After the police and [...] personnel segregated the twelve to fourteen videotapes in which the suspect appeared, [...] then made a single composite videotape showing each appearance of the suspect in chronological order.  He testified that other than this editing process, no other alterations, deletions or changes of any kind were made to the videotapes.  Defendant's authenticity argument clearly has no merit.
[directive] Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of P.L.1991, c.261 (C.2C:25-29) or substantially similar orders entered under the laws of another state or the United States shall be excluded from the provisions of this paragraph.  (2)  In all other cases a person is guilty of a disorderly persons offense if that person purposely or knowingly violates an order entered under the provisions of the “Prevention of Domestic Violence Act of 1991,” P.L.1991, c.261 (C.2C:25-17 et al.) or an order entered under the provisions of a substantially similar statute under the laws of another state or the United States.  Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of P.L.1991, c.261 (C.2C:25-29) or substantially similar orders entered under the laws of another state or the United States shall be excluded from the A- 30
[brief] ”  The court in *Bove v. Bd. Of Adj. of Borough of Emerson*, 100 N.J. Super. 95, 101-102 (App. Div. 1968) likewise stated:  “The rationale of our statutory scheme respecting local zoning is that the Board of Adjustment is charged with the responsibility of applying expert discretion to matters coming within its cognizance and that interference by an appellate court is permissible only for redress against arbitrary, capricious or unreasonable action …  As a reviewing court we may not exercise anew the jurisdiction of the administrative agency.  ‘This philosophy is even more cogently applicable to a case where we review a denial of a variance than where we review a grant, for generally speaking more is to be feared from a breakdown of a zoning plan by ill-advised grants of variances than by refusals thereof. ’” (internal citations omitted)(emphasis added).
[brief] To the contrary, the [...] acted properly and relied upon a substantial record in ultimately adopting the Redevelopment Plan amendment found in Ordinance 2022-17.  First, Defendants did not approve a Redevelopment Plan that was “completely inconsistent with the Township’s Master Plan. ” (Pb1).  When the Redevelopment Plan was first introduced by ordinance on September 8, 2022, it included the language prepared by the Township Planner quoted below (p. 20) to wit: that the Plan, “in this regard, can be considered consistent with the Master Plan.
[brief] Pearson v. Callahan, 555 U.S. 223, 244 (2009).  Moreover, there is no presumption of qualified immunity; rather, the immunity is considered "an affirmative defense that the defendant must establish."  Schneider v. Simonini, 163 N.J. 336, 354 (2000).  A cause of action is provided under 42 U.S.C. § 1983 in state or federal courts, to redress federal constitutional and statutory violations by state officials."  GMC v. City of Linden, 143 N.J. 336, 341 (1996).  The trial Judge abused his discretion in concluding that the defendants were entitled to qualified immunity.
[brief] In fact, in the trial court’s sole reference to this statute in its opinion, the trial court mischaracterizes the allegation that Defendant breached his fiduciary duty in failing to provide information as an allegation of conversion.  1T16:10–15.  Thus, the trial court’s mistake of fact in its ruling, as a practical matter, can result in a court-appointed trustee continuing to breach his fiduciary duty in failing to provide information to a beneficiary.  Finally, in researching the legal precedents applicable to this matter, searches of N.J.S.A. § 3B:17-2 and its predecessor (N.J.S.A. § 3A:9-2 (1981)) were performed, and resulted in seven (7) Appellate Division cases (including Hekemian) and four (4) trial court decisions.
[brief] The SHO’s Resolution further focuses on the imposition of the Route 33 Signal on the Respondents but not upon the other two developers of the properties within the VC-2 overlay zone.  The SHO’s Resolution ignores the Purpose and General Goals of the VC-2 overlay zone; namely, to provide for a comprehensive development of the properties within the zone.  Ba6-7.  This is demonstrated by the lot area requirement of 75 acres.  The VC-2 Zone was designed to provide for the holistic development of the area within its boundaries in order to foster its Purpose and achieve its General Goals.  By failing to amalgamate the necessary lot area to comply with the VC-2 Zone requirements, the impact of the Route 33 Signal on the Respondents was a self-created hardship.
[brief] It is therefore fitting and proper to regulate the business relationship between brewers and wholesalers of malt alcoholic beverages and set forth their respective responsibilities to further the public policy of this State and protect beer wholesalers from unreasonable demands and requirements by brewers, while devoting sufficient efforts and resources to the distribution and sale of malt alcoholic beverages.  N.J. Rev. Stat. § 33:1-93.13(2)(c) (emphasis added).  Every brewer shall contract and agree in writing with a wholesaler for all supply, distribution and sale of the products of the brewer in this State, and each contract shall provide and specify the rights and duties of the brewer and the wholesaler with regard to such supply, distribution and sale.  The terms and provisions of such contracts shall be reasonable, reflect the parties’ mutuality of purpose and community of interest in the responsible sale and marketing of their products, and shall comply with and conform to State law and the terms of this act.  N.J. Rev. Stat. § 33:1-93.15(4)(a) (emphasis added).  Similarly, the New York Legislature enacted the ABC Law with the purpose of “supporting economic growth, job development, and the state’s alcoholic beverage production industries and its tourism and recreation industry[.]”
[brief] (Pa8-12).  Plaintiff then filed a Motion for Reconsideration of [...]’s Order granting defendant [...]’s Motion for Summary Judgment, which was also denied.  (Pa13-20).  Plaintiff filed the Motion for Reconsideration to address that in the Court’s original Summary Judgment Order, they failed to provide a decision on whether defendant [...] caused or created the dangerous condition, as opposed to simply having notice of the dangerous condition.
[brief] For Bringing Motion to Compel  Defendants seek attorneys’ fees for having to bring this discovery dispute before the Court.  In their proposed form of Order, Defendants specifically seek fees due to the unreasonableness of Plaintiffs’ boilerplate objections.  (Doc. 186-1 at 9).  For the reasons discussed above, Defendants have not prevailed on that argument; thus, the request for fees on that basis is denied.  However, in Doc. 186 at 4, Defendants more generically ask for attorneys’ fees for having to seek the Court’s intervention.  Thus, the Court is unclear if there are other bases on which Defendants wish to seek fees.  As a result, the Court will allow Defendant to file a motion for attorneys’ fees within 14 days of this Order.  If a motion is filed, it must comply with L.R. Civ. 54.2 and this Court’s Scheduling Order.  If a motion is filed, it must show both an entitlement to fees and the reasonableness of the fees sought.  The response and reply times will be those set by the local rules.  The parties are cautioned that seeking fees or responding to fee requests shall not be a basis to extend any deadlines in this case.  VII.
[directive] All Chief Law Enforcement Officers  [...], Attorney General  FROM: Guidelines  Shared Municipal and Police Computer Systems  SUBJECT: June14, 2000  DATE: 1.  Introduction  The Division of Criminal Justice has received increasing numbers of inquiries from police departments asking whether records may be placed on a computer system shared by the police department and non-law enforcement municipal agencies.  While there are no statutes prohibiting the sharing of computer systems, the law provides many instances in which information that police departments gather is required to be kept confidential.  Often, it is a disorderly persons offense to wrongfully disclose statutorily protected information.  As a result of these restrictions, most information stored on a police department computer system will need to be stored on a separate computer system that is not shared with non-law enforcement municipal agencies.  However, personnel information may be kept on shared systems.  Detailed guidelines are set forth in the body of this directive.
[brief] In *Rodriguez v. Rosenblatt*, 58 N.J. 281 (1977), the New Jersey Supreme Court held that indigent defendants who face the possibility of imprisonment or a consequence of magnitude are entitled to have counsel assigned to them.  *Id.* at 295.  Alternatively, an indigent defendant may waive counsel and proceed *pro se*.  *Id.*  The New Jersey Supreme Court has directed that the “court should explain to the defendants the difficulties in acting as their own counsel and should specifically advise the defendants that it would be unwise not to accept the assistance of counsel. ”  *State v. Crisafi*, 128 N.J. 499, 512 (1992).  In *Crisafi*, the New Jersey Supreme Court set forth the inquiry that the courts must engage in when determining whether a defendant can proceed *pro se*.  The Court held that the trial courts must: (1) Notify the defendant of the charges against him, the defenses available to him, and the possible punishment if convicted.  (2)  The court should also inform the defendant of the technical risks and difficulties of proceeding *pro se*.  (3)  The court must inform the defendant that he is bound by the rules of court and evidence and that his lack of knowledge may hinder his ability to put forth an adequate defense.  (4)  Finally, the court should inform the defendant of the difficulties of representing himself and that it is inadvisable to proceed without an attorney.  *Id.* at 511-12.  However, the New Jersey Supreme Court has held that “the ultimate focus must be on the defendant’s actual understanding of the waiver of counsel. ”  Crisafi, 128 N.J. at 512.  Also, “[i]t is for the court to determine whether an accused has knowingly and intelligently waived [the] right” to counsel. ”  Id. at 509.  Defendant waived her right to representation in a hearing that was not transcribed for the record.
[brief] [...]’s corporate representative testified that there were no written arrangements between [...] and [...] with respect to policies on how [...] should use [...]’s trademark, proprietary images or marks, or how [...] should display or use the [...]’ name, or as to how [...] displayed [...] grills and how [...] advertised at its [...] location.  There was no written arrangement regarding displays at trade shows or restricting [...]’s ability to display or sell non-[...] grills at trade shows.  [...] and [...] did not have any written arrangement whereby [...] limited [...]’s marketing and advertising materials for other branded grills.  [...]’s corporate representative also testified that there were no written requirements that [...] dictated how [...] should display [...] at the [...] showroom, [...] did not require [...] dedicate a minimum amount of square footage to displaying [...] products, and there was no written arrangement prohibiting [...] from displaying other brands at its showroom.  [...] and [...] did not have written arrangements as to how [...] displayed [...]’ banners in its showroom or whether [...] displayed banners from other manufacturers.  There was nothing in writing whereby [...] controlled [...] as to sales, marketing, and/or promotion of [...].  [...]’s corporate representative also testified that [...] and [...] did not have any written arrangement where [...] imposed any requirements on [...] regarding [...]’s social media postings.  There was no written arrangement whereby [...] dictated which [...] [...] could order and/or sell, and there was no budget imposing any spend that [...] was required to make to promote [...] products.  [...] and [...] did not have any written arrangements whereby the parties shared costs related to advertising.  Furthermore, [...] and [...] did not have a written arrangement requiring that [...] sell a certain amount of [...]’s products or that imposed limitations on the volume of grills [...] could sell from another grill manufacturer.  [...]’s corporate representative testified that there was no written arrangement that precluded [...] from selling other grills in a retail or wholesale capacity.  [...] and [...] did not have any written arrangement regarding control of the standards for [...]’s hiring practices or for [...]’s employees conduct.  Importantly, [...]’s corporate representative testified that [...] and [...] did not have any written arrangement at all in which [...] controlled any aspect of [...]’s business.  The CEO of [...], [...], also testified that there was no formal agreement between [...] and [...].
[brief] In March 2000, [...] and [...] purchased their home, [...], from [...] for $160,000.  (2T11-18).  With the buyers and seller agreeing that the purchase would be seller financed, [...] then provided the [...] with a mortgage payoff schedule.  (2T45-24) (Da15).  The [...] aggressively paid on their mortgage so that by September 1, 2011, they had reduced the mortgage balance to $110,090.  (Da15, Da22).  In 2007, the [...], through inadvertence, missed a $759.12 property tax assessment payment.
[brief] The Supreme Court adopted this Court’s holding in Karlinski, which held that “under normal circumstances, when the result of an action conforms to that which one would predict, the demonstration of a subjective intent to injure is sufficient to preclude coverage without further inquiry into the intent to cause the actual injury that resulted. ”  *SL Industries*, 128 N.J. at 210.  It is only when the facts indicate that the injury was unlikely to result from the alleged acts must there be an “inquiry into the subjective intent to cause the resulting injury is in order. ”  *Id.*; see also *id.* at 212 (adopting *Karlinski*, *supra*).  Put another way, there are times when the objective conduct of the actor also determines the actor’s subjective intent to injure.  *Merrimack Mut. Fire Ins. Co. v. Coppola*, 299 N.J. Super. 219, 227 (App. Div. 1997) (citing *Malanga v. Manufacturers Cas. Ins. Co.*, 28 N.J. 220, 225 (1958)).  “Where, as here, the plaintiffs claim no more than the type of injuries that are inherently probable from such conduct there is no need to inquire into defendant’s subjective intent. ”  *Id.*  When, like here, an excluded act is an essential element to the lone theory of relief, there is no reason for the trial court to probe the subjective intent of the insured.  In such a case, the insured is not covered if found liable.  *N. Plainfield*, 2008 U.S. Dist. LEXIS 39555 at *74-75.
[brief] Nor is there any authority for the [...]’ biased supposition that a long-term lease must be accounted for in market value when it increases the value of a property, but not when it decreases the value of a property.  “The property's actual rent and income history should not be the sole basis upon which to determine market rent subject to capitalization, but the cited authority is clear that it must be a factor. ”  Katz, supra, 334 N.J. Super. at 485 (emphasis added).  No exception or carve out was made in Katz, or any of the cases that followed it, for long-term leases that had a detrimental effect on the market value of a property.  The [...] also erroneously assert that a mere treatise, the Appraisal of Real Estate, should trump prevailing case law which establishes a flexible, case by case approach to the determination of market value.  The Appraisal of Real Estate is not a persuasive authority, much less a precedential authority, to either the Trial Court or to this Court.  Nor was the model jury charge on condemnation in the record below, which the [...] have recently appended to their opposition papers.  See, Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 2:5-4(a) (2024)("It is, of course, clear that in their review the appellate courts will not ordinarily consider evidentiary material which is not in the record below by way of adduced proof, judicially noticeable facts, stipulation, admission or a recorded proffer of excluded evidence.")  As New Jersey case law holds that long-term leases would be considered by a potential buyer and thus impact market value of the Property and the Trial Court did not err in leaving it to the Arbitrator’s discretion on whether to factor the [...] lease into a determination of just compensation, this Court should not disturb those holdings.
[brief] Defendant [...]’s attorney [...], Esq. argued, “With that being said, though, there's just simply nothing in this record that shows that the City had any notice whatsoever that this tree that fell on [...]'s car ever had any potential to fall. ”  1T 5:17-21.  Whereas plaintiff’s attorney [...], Esq. argued “And therefore, by their own protocol, knowing that there was construction done there that would have been an inspection, and the report that they exchanged to us indicates that the entire sidewalk had been constructed and had been inspected in 2018.
[directive] 1.  Murder, N.J.S.A. 2C:11-3; 2.  Aggravated manslaughter, N.J.S.A. 2C:11-4(a); 3.  Manslaughter, N.J.S.A. 2C:11-4(b);  The RST is used for the initial detention request (complaint-warrant), and is not intended to bind the court’s 16 subsequent detention decisions.  Law enforcement shall advise Juvenile Intake of all relevant information that should be factored into a decision 17 for detention or enhanced monitoring services, especially all facts and circumstances that account for the strength of the case, the juvenile’s prior involvement with the juvenile justice system, victim impact, pending charges, adjudications from another State, and any relevant information.  A law enforcement officer may also take a juvenile into custody without process if the officer has probable cause 18 to believe that the juvenile is delinquent as defined by N.J.S.A. 2A:4A-23.
[brief] (Pa2209-2223)  Parts of his decision were made based on the lack of opposition and facts being “uncontroverted”, which his postponement denial had caused.  (Da2211)  The Arbitrator also misinterpreted New Jersey law against fee-shifting by considering the third-party tort exception as applicable in this direct action.  That decision, although later vacated, cost [...] $314,000 and would not have resulted if [...]’s new counsel was permitted time to appear.  (Da2216)  The Arbitrator also awarded Plaintiffs $70,975 for a fee reimbursement in a separate matter although Plaintiffs failed to document that claim in any way.
[brief] [...] AND [...], Plaintiffs-Respondents, V. [...], [...], [...], Defendants-Respondents, [...] F/K/A [...] F/K/A [...], Defendant-Appellant, [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], AND [...], Defendants-Respondents.