ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] N.J.S.A. 2A:23B-6(a).  Furthermore, no hearing was required because under New Jersey law, courts have repeatedly held, “the argument that either plaintiff did not understand the import of the arbitration agreement and did not have it explained to her by the [defendant] is simply inadequate to avoid enforcement of these clear and conspicuous arbitration agreements that each signed. ”  Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 212 (2019), reconsideration denied, 238 N.J. 508 (2019).  Similarly, in Skuse v. Pfizer, Inc., 244 N.J. 30, 54 (2020), the New Jersey Supreme Court held that:  “As a general rule, ‘one who does not choose to read a contract before signing it cannot later relieve himself of its burdens. ’  The onus [is] on plaintiff to obtain a copy of the contract in a timely manner to ascertain what rights it waived by beginning the arbitration process. ”  Skuse, 244 N.J. at 54, quoting Riverside Chiropractic Grp. V. Mercury Ins. Co., 404 N.J. Super. 228, 238 (App. Div. 2008) (quoting another source); Here, the evidence establishes that Plaintiff agreed to the Agreement by Plaintiff affixing his signature to the document and affirmatively checking the boxes included in the Agreement. Pa0087, Pa0090, and Pa0092.  Plaintiffs' reliance on Kleine v. Emeritus at Emerson, 445 N.J. 545 (App. Div 2016) is misguided as the facts in Kleine are unlike the facts in the instant action.
[brief] The inquiry is limited to the four corners of the complaint and, “[i]f, on a motion to dismiss based on the defense numbered (e), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment as provided by R. 4:46 . . .” and not by Rule 4:6-2.  When materials outside the pleadings are relied upon, the motion to dismiss for failure to state a claim no longer viable as such, and should be refiled as a summary judgment motion.  (Emphasis added).  See, e.g., *Lederman v. Prudential Life Ins.*, 385 N.J. Super. 324, 337 (App. Div. 2005), certif. denied 188 N.J. 353 (2006); *Roa v. Roa*, 402 N.J. Super. 529, 537 (App. Div. 2008), certif. granted 197 N.J. 477 (2009).
[brief] PRELIMINARY STATEMENT ..................................................................................1  PROCEDURAL HISTORY AND STATEMENT OF FACTS ........................................2  I.  The Operative Agreement ..............................................................................2  II.  Plaintiff’s Complaint and the Motion to Compel Arbitration .........................5  III.  The Incomplete Agreement .......................................................................6  IV.  The Discovery of the Operative Agreement..................................................7  V.  [...]’s Deposition ....................................................................................9  VI.  The Plenary Hearing ..................................................................................10  STANDARD OF REVIEW .....................................................................................15  LEGAL ARGUMENT ...............................................................................................16  I.  THE TRIAL COURT WAS REQUIRED TO COMPEL ARBITRATION  BECAUSE RESPONDENT FAILED TO SET FORTH A SPECIFIC CHALLENGE TO THE OPERATIVE AGREEMENT’S ARBITRATION PROVISION (1a, 1T at 50:18-25, 35:6-25, 35:15-21)........................................16  II.  THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE FINDINGS OF FACT CONCERNING THE ENFORCEABILITY OF THE OPERATIVE AGREEMENT AND THE PARTIES’ AGREEMENT TO ARBITRATE DESPITE HOLDING A HEARING FROM WHICH IT WAS TO MAKE THOSE FACTUAL FINDINGS (1a, 2T at 56:20-25)......................19  III.  THE TRIAL COURT ERRED BECAUSE IT FOCUSED SOLELY ON THE ORIGINS OF THE INCOMPLETE AGREEMENT WHILE IGNORING VITAL TESTIMONY THAT RECOGNIZED AN ENFORCEABLE ARBITRATION PROVISION (1a, 2T at 56:20-25)  ......20  IV.  DESPITE THE CLEAR AND CONSPICUOUS EVIDENCE THAT THE OPERATIVE AGREEMENT CONTAINED AN ENFORCEABLE ARBITRATION CLAUSE, THE TRIAL COURT ERRED WHEN REFUSING TO ORDER ARBITRATION (1a, 2T at 56:20-25)  ......................21  CONCLUSION ...........................................................................................................22
[brief] the following additional facts also show that the Roads were dedicated to public use on the 2010 Map:  (a) the Roads were not labeled “private” streets, and were not depicted in dashed lines or as part of any lot, thereby designating them as public property (Da173); (b) at the intersection of the Boulevard and the line of Lot 3.01 (where the Boulevard was being extended by an additional 32 square feet), there is an inscription stating “32 S.F. to be dedicated as public right of way,” which would only make sense if the remainder of the Boulevard was already a public right of way (Da173); and (c) if the Roads were private streets, then non-owners of the Roads would need an easement to use them, and the 2010 Map did not show any easements over the Roads (and if such easements existed, they would have needed to be shown on the 2010 Map pursuant to N.J.S.A. 46:26B-2(b)(7)).  (Da173.)  The Borough’s primary argument in response to the above is that the Roads were listed on the 2010 Map as public “rights-of-way,” not “streets,” and therefore the Roads were not dedicated to the Borough on the 2010 Map.  (Db23-Db24.)  However, as the Borough itself acknowledges, a street is constructed within the bounds of a right of way.  (Db24.)  If a right of way is public, then clearly the road built within that right of way is also public.  By showing the Roads on the 2010 Map as “[...] Public R.O.W. ” (Da173, emphasis added), it is beyond dispute that [...] was dedicating the Roads to the Borough (again, the description “[...] Public R.O.W. ” does not leave any room whatsoever for ambiguity).  This conclusion is buttressed by the fact that both the 2010 Map and the Borough’s Official Tax Map depict the Roads as not being on, nor being a part of, any lot (and if the Roads were private property they would need to be part of a lot, or shown in dashed lines, on such maps).
[brief] To be certain—why else would [...] have spent hours in its counterclaim case-in-chief testifying about its performance on Hackensack—and uncompensated work—if it was unrelated, as it now contends?  For example, during the First Arbitration, [...] testified that “we were a subcontract[or] to [[...]]” at the Hackensack Project.  Pa502 at 16:20-17:1.  But, because “the change orders are still not being acted upon…estimated gross profit is now, you know, put into peril. ”  Pa536 at 152:2-20.  In other words, [...] argued (or, at minimum, had a fair and reasonable opportunity to do so) that unpaid change orders directly offset its obligation to make EGP payments to [...].  [...] reiterated this point the following arbitration-hearing day, agreeing that [...] “overpaid on Hackensack…because the owner stopped paying. ”  Pa668 at 201:8-23.  In line with that testimony, [...]’s own pleading in the First Arbitration alleged “the parties agreed that [...] was not obligated to make any further [EGP] Installment Payments on the Hackensack Project given the number of issues [...] inherited from [...] when it took over as contractor on that project. ”  Pa201 ¶¶ 45-46 (adding “[...] is currently owed $2.1 million dollars by the owner on the Hackensack Project”).  The trial court erroneously ignored this pivotal testimony that links [...]’s allegations related to its alleged entitled to unpaid monies as a subcontractor at the Hackensack Project to its reasons why [...] should receive an offsetting credit and should not be required to pay any additional EGP payments to [...].
[brief] See T6:3-8 (Identifying reading of Ordinance No. 26-20 to be the second reading). the City Council in the redeveloper’s agreement. ” (Pa294).  The Amendment also described its relationship to the Master Plan and other county and state plans.  (Pa296).  Specifically, the Amendment provided:  The Plan Area is designated as part of the Beachfront South Redevelopment Area on the Land Use Map of the 2010 Master Plan.  The Master Plan, at that time did not recommend any specific changes to that area.  Design Guidelines Handbook #6 indicates that the objective of the plan is to continue and reinforce the existing residential pattern of 4 to 8 story structures that maximize the views of the ocean.  Consequently, this plan is consistent with both the 2010 Master Plan and the Beachfront South Redevelopment Plan.
[brief] That one Proposed Exhibit, referred to as, P-5, was a 38-page document addressed to the [...], from Plaintiff [...] (“[...]”), dated February 6, 2023 (the “[...] Memo”).  (T19:21; Pa79.)¹  Notably, the [...] Memo was not pre-marked as an exhibit or presented into evidence at trial.  (T19:23-24.)  As SW explained, the [...] Memo is nothing more than argument drafted by the Plaintiff [...] itself that was raised without any witness to cross-examine or even authenticate the document.
[brief] Pa6-7.  Critically, the trial court pointed out that all of [...]’s claims were based on PIP benefits eligibility under the No-Fault Law.  Pa7.  So, because [...]’s claims all involved a dispute involving recovery of PIP benefits that one party wished to arbitrate, all of [...]’s claims must be arbitrated under the No-Fault Law.  *Ibid.*  The No-Fault Law did not single out fraud-related PIP benefits disputes for special treatment.  *Ibid.*  Further, the trial court rejected [...]’s attempt to distinguish claims based on PIP benefits already paid from those yet to be paid because the statute did not make that distinction.  *Ibid.*  Finally, the statute clearly required arbitration of claims based on alleged ineligibility for PIP benefits.  *Ibid.*  Nothing in the statute precluded an arbitrator from deciding [...]’s claims.  *Ibid.*  LEGAL ARGUMENT
[brief] Neither the Defendant nor the trial court ever challenged Plaintiff’s Associational standing in this case.  Why the trial court dismissed the matter “without prejudice” was not revealed in its decision.  Presumably it was to allow an opportunity to bring individual claims.  It is futile to name individual members where a facial challenge is brought.  Either the policy is unlawful or it is not.  As noted the Association understands such claims to be unwarranted and both futile and duplicative in this case.  The Association brought its claims as an Association and all of its claims were dismissed on a final basis against the Association.
[brief] ”  This is exactly the same situation in the instant case.  In the instant case, the record shows the trial judge found no causation and damages for the Plaintiff against the Defendants in the underlying matrimonial case.  A direct verdict should have been granted to the defendants in the malpractice case.  The trial judge however committed a reversible error by sending the case to jury to infer causation from circumstantial evidence and damages.  This is why the jury returned an arbitrary award.  The expert for the plaintiff never established and analyzed that the legal fees incurred by her was to make any corrections, or was to defend a third-party action caused by the wrongdoing of the Defendants.
[brief] A single guiding principle has instructed our interpretation of CEPA in the decade since its enactment, as broad, remedial legislation, the statute must be construed liberally; D’Annunzio, supra at 119.  CEPA defines an employee as an individual who performs services for and under the control and direction of an employer for wages or other remuneration; Id. at 119.  As the Appellate Division noted, the definition does not exclude, explicitly, persons who are designated as independent contractors performing services for an employer for remuneration.  It is beyond cavil that it includes more than the narrow band of traditional employees.  Courts should ‘look to the goals underlying CEPA’ and focus not on labels but on the reality of Plaintiff’s relationship with the party against whom the CEPA claim is advanced; Id. at 119.  When CEPA or other social legislation must be applied in the setting of a professional person or an individual otherwise providing specialized services allegedly as an independent contractor, we must look beyond the label attached to the relationship; Id. at 120.  An employer cannot be expected to exert control over the provision of specialized services that are beyond the employer’s ability, yet the work may be an essential aspect of the employer’s regular business; *Id.* at 121.  Therefore, the test further allows for examination of the extent to which there has been a functional integration of the employer’s business with that of the person doing the work; *Id.* at 121.  The question is who is included in that definition.
[brief] See, e.g., Marks v. Tennessee, 554 F.3d 619, 620 (6th Cir. 2009)(judge insisted on filed paper motions to obtain adjournment due to poor health when AOC rule was clear that simple oral or faxed “Request for Modification” was correct method); Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808 (6th Cir. 2002)(denied instant transcription in custody case for daughter, complained to DoJ, and a judge attempted to have him sign waiver of rights regarding ADA violations before case days late) and, here, he was also a client. would continue; custody case held up for 18 months due to refusal to sign); Duvall v. County of Kitsap, 260 F.3d 1124, 1131-35 (9th Cir. 2001)(also refused instant transcription in a ruling from bench; judge dismissed on judicial immunity but case continued against County and judge’s assistants).
[brief] The ALJ astutely renounced the Board’s misapplication of the consideration that [...] in an imaginary scenario could regain fitness and be unable to return to the PPD.  The ALJ indicated expressly that in the unlikely hypothetical dreamt up by the Board, that [...] somehow magically could regain fitness in the five-year window, the Board “could simply discontinue benefits and [...] could seek employment elsewhere. ”  (Pa128).  [...]’s injuries and disability date back seven (7) years now.  Good faith settlement agreements recognizing the permanent disability and cessation of internal charges coupled with the employer’s full-throated promise to assist in the disability retirement application process all signify that public policy, the need to avoid unnecessary waste of resources, and in furtherance of interpreting the retirement disability statutes which are remedial in nature liberally to effectuate the statutes purposes.
[brief] ”  (21T 186-1 to 9)  Defendant again denied that he and [...] spoke or texted right before the incident:  “I haven’t talked with him at all in a long time. ”  (21T 188-20 to 189-4)  He admitted that, in retrospect, he “should have” called 911 right away, but he said he “just was trying to process everything” and “didn’t know what to do.
[brief] ”  *State v. Smith*, 374 N.J. Super. 425, 430 (App. Div. 2005).  Such findings warrant particular deference when they are “substantially influenced by [the trial judge’s] opportunity to hear and see the witnesses and to have the ‘feel’ of the case, which a reviewing court cannot enjoy. ”  *State v. Robinson*, 200 N.J. 1, 15 (2009).  Those “findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction. ”  *Ibid.*  An appellate court therefore affords “substantial deference to the discretionary determination” that resulted in the issuance of a search warrant.
[brief] The Practical Implementation Of The Legislature’s PIP Arbitration Rules Do Not Allow For Adjudication Of IFPA And RICO Claims.  Were the statutory evidence not enough, the rules governing PIP dispute resolution also make plain the limited scope of such proceedings, and why they are not fit for IFPA claims.  Based on authority granted by the Legislature, N.J.S.A. 39:6A-5.1, the Commissioner promulgated regulations to “establish procedures for the resolution of disputes concerning the payment of medical expense and other benefits provided by personal injury protection coverage in policies of automobile insurance. ”  N.J.A.C. 11:3-5.1(a).  These regulations demonstrate the fulfilment of legislative intent for AICRA PIP arbitration to apply to disputes about whether an insured or assignee can recover unpaid PIP benefits.  There is no indication in the regulations that AICRA was intended to deal with and dispose of claims made by an insurer for damages relating to fraudulent practices and violations of the IFPA and RICO.  Tellingly, the term “fraud” does not exist in the regulations.  See N.J.A.C. 11:3-5.1 to 5.12.  Instead, many of the substantive provisions concern the use of medical review organizations to conduct evaluations of the necessity, nature, and scope of medical treatment in individual cases.  See N.J.A.C. 11:3-5.8 to 5.11.  By contrast, cases involving insurance fraud frequently involve many parties, complex schemes, and require large amounts of fact and financial discovery.  But there is nothing in the regulations providing parameters for such inquiries.  A PIP arbitration is a mechanism designed to provide a streamlined and specialized process to resolve disputes between insured parties and insurance companies regarding PIP claims without the need for court litigation.  It offers an efficient and cost-effective alternative to traditional court litigation, ensuring that claimants can receive fair and timely resolutions to their disputes.  This is further demonstrated by the court rules, which state that a “non-attorney may represent an insurance company employer at a Personal Injury Protection (PIP) arbitration.
[brief] PLAINTIFF’S BARE BONES ALLEGATIONS AGAINST NJ RETINA  NJ  Retina was not referenced for the first time substantively until paragraphs 44 and 45 of the Complaint, wherein Plaintiffs alleged that [...] was approached by an individual named “[...],” a purported employee of [...], who allegedly advised [...] that [...] planned to sell his practice and real estate for $10,000,000.00 to [...], “or a related entity, [...]. ” (Pa58a ¶¶ 44-45).  Plaintiffs further alleged that [...], “and/or John Does 1-50, and/or [...], intend to own the optician practice at [...] should they complete the purchase of defendant [...]’ assets, such that the ongoing relationship with [...] as the building’s ophthalmology practice necessarily would have to be terminated. ” (Pa60a ¶ 53).  Finally, Plaintiffs alleged in conclusory fashion -- “[u]pon information and belief” and without providing a shred of factual support -- that [...] (and other defendants) “maliciously and without reasonable justification actively and/or passively encouraged, approved of, aided and abetted, and/or directed the actions of [the Notis Defendants] as related to the plaintiffs, since the parties commenced and/or completed negotiations to purchase defendant [...]’s assets, which has interfered with the plaintiffs’ business and has caused foreseeable harm to the plaintiffs. ” (Pa62a ¶ 60).  Based on these barebone allegations, Plaintiffs somehow asserted claims against [...] for tortious interference with contractual relations (Counts One through Three), tortious interference with prospective economic relations (Count Five), unjust enrichment (Count Eleven), conspiracy (Count Thirteen), and declaratory judgment (Count Fifteen).  (Pa62a-Pa64a; Pa65a; Pa72a; Pa74a; Pa75a).  III.
[brief] In the Spring of 2020, at the height of the pandemic, Defendant [...] offered certain staff members COVID-19 incentive pay.  (Pa42).  The staffing coordinators, however, were deemed to be ineligible for this incentive pay because they were not “direct patient care staff. ” (Pa42).  [...] requested that the staffing coordinators receive the COVID incentives, but it was denied by management.  (Pa361.)  Defendant [...] told [...] that the staffing coordinators could receive charge pay as long as it did not lead to negative consequences for her.  (Pa661).  Following Defendant [...]’s approval, Plaintiff, [...], and [...] received charge pay for certain shifts during the Summer of 2020.  (Pa45 – Pa46).  In initiating the investigation into charge pay, Defendant [...] essentially derailed any investigation into her harassment.
[brief] The scope of the Appellate Court's review is limited to the issue of whether there was adequate evidence before the Superior Court to justify a finding of guilt.  As a result, the Superior Court's decision must stand unless the Appellate Court finds the decision was arbitrary, capricious, unreasonable, or unsupported by substantial credible evidence in the record as a whole.  Henry v. Rahway State Prison, 81 N.J. 571, 580 (1963); In re Phillips, 117 N.J. 567, 579 (1990).  Here, it should be noted that the Appellant has failed to include a "Standard of Review" section within his submitted Appellant Brief.  The closest the Appellant comes to arguing a standard of review is through citing Grasso v. Borough Council of Borough of Glassboro, 205 N.J. Super. 18 (App. Div.1985) and claiming that all local or departmental level proceedings are "arbitrary, biased, unreasonable and/or prejudicial."  Pb29.  It is worth noting that not only is this not the proper standard of review, but misses the point that the current appeal only concerns the Superior Court's de novo review of the Appellant's disciplinary charges and not any findings or decision from the local proceedings.  See N.J.S.A. 40A:14-150.
[brief] Such a liberal construction "resolves all reasonable doubts in favor of the applicability of the statute to the particular case."  Kochen v. Consol. Police & Firemen's Pension Fund Comm'n, 71 N.J. Super. 463, 478, (App. Div. 1962).  See Duignan v. Bd. of Trs., Pub. Employees' Ret. Sys., 223 N.J. Super. 208, 216 (App. Div. 1988) (same); Hillman v. Bd. Trs., Pub. Employees' Ret. Sys., 109 N.J. Super. 449, 455 (App. Div. 1970) (same).  Francois v. Board of Trustees, 415 N.J. Super. 335, 349.  A person that is eligible for certain pension benefits is entitled to a liberal interpretation of the pension statute.  The determination below is unreasonable because [...] would otherwise be eligible for accidental disability benefits under the Ricci Act.
[brief] ......................................................44  Camden Cty. Energy Recovery Assocs., L.P. v. New Jersey Dept. of Envtl. Prot., 320 N.J. Super 59, 64, 726 A.2d 968 (App. Div. 1999), aff’d o.b., 170 N.J. 246, 786 A.2d 105 (2001)  ........................................................................43  Cano-Diaz v. City of Leeds, Ala., 882 F. Supp. 2d 1280, 1288-89 (N.D. Ala. 2012)  ............................................46  Celestine v. Foley, 2010 U.S. Dist. LEXIS 132511, *22-24 (D.N.J. December 14, 2010)  ..........45  Fed. Deposit Ins. Corp. v. Rosen, 188 N.J. Super. 230, 237, 457 A.2d 52, 56 (Super. Ct. App. Div. 1983)  ...............................................................................................................40  Fernandez v. City of Elizabeth, 468 F. App’x 150, 154 (3d Cir. 2012) .............................................................44 Grillo v. State, 263 A.3d 520, 525 (N.J. Super. Ct. App. Div. 2021) ...........................................26 Heck v. Humphrey, 512 U.S. 477 (1994) .........................................................................................44,45,46 Jersey City v. Hague, 18 N.J. 584, 601-603 (1955) ..............................................................................33 Lindes v. Sutter, 621 F. Supp. 1197, 1201-02 (D.N.J. 1985) ..........................................................44 McKinney v. Prosecutor's Office, 2014 U.S. Dist. LEXIS 79596, at *12 (D.N.J. June 4, 2014) ...............................45 Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 174 (1955); N.J. Crt. R. 4:5-2 ............................................................33 Miltz v. Borroughs-Shelving, Div. of Lear Siegler, Inc., 203 N.J. Super. 451 (Super. Ct. App. Div. 1985) ..................................................33