ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Preliminary Statement ........................................................................................................1  Procedural History ..............................................................................................................4  Statement of Facts ..............................................................................................................4  A. Plaintiffs used the [...] Rides platform ........................................................................4  B.  Ms.  McGinty confirmed that she had read and agreed to [...]’s December Terms.  .................................................................................................................................5  C.  The December Terms contain an unambiguous arbitration agreement that also covers third-party beneficiaries and delegates most issues to the arbitrator.  .........................................................................................................................7  D.  [...] had also agreed to [...]’s January 2021 Terms.  ..................10  E.  The trial court denied [...]’s motion to compel arbitration.  .................11  Argument  .............................................................................................................................12
[brief] *Pantich v. Pantich*, 339 N.J. Super. 63, 67 (App. Div. 2001).  More specifically, the focus is not on whether the defendant suffers any prejudice, but rather, a case-by-case analysis of the particular facts presented.  See Dalal, 221 N.J. at 606-07 (recognizing that the standard “calls for an individualized consideration of the facts in a given case,” and noting that there is no bright-line rule for determining whether a judge acted partially).  Indeed, the specific facts matter.
[brief] Despite the request of information from [...] relative to the 20 question factor test on multiple occasions, no information was introduced at trial.  The failure to complete the analysis completely subverted [...]’s rights.  The ALJ ignored this deficiency and ruled essentially exclusively on the resolution.  Municipal Employees are routinely hired by resolution and the mere introduction of a resolution is not a distinguishing factor.  The framework for analyzing whether someone is an employee or an independent contractor is long settled in the State of NJ.  This matter is governed by the statutory "ABC test."
[brief] (Aa136-37).  The statute says that, for existing development, when a property owner proposes such changes, the DEP “shall review the existing public access . . . and shall require as a condition of a permit . . . additional public access to tidal waters and adjacent shorelines .  . . .”  N.J.S.A. 13:1D-153(a).  See Harvey v. Bd. of Chosen Freeholders, 30 N.J. 381, 391 (1959) (use of “shall” in legislation reflects that a provision is mandatory).  Refuting [...]’s contention that public access must have been present in the first instance, the Commissioner noted that “by its plain meaning, ‘additional’ merely indicates the additive nature of any newly required public access, the sum of which represents the ‘additional’ access.” (Aa136).  Notably, [...] does not contest that finding here.  Finally, the Commissioner concurred with the ALJ’s observation that, if the Legislature intended to exclude public access requirements from properties with no existing public access, it could have expressly included such language.
[brief] [...]’s reading of the rules would render the requisite feasibility determination as “mere surplusage. ”  N.J. Dep’t of Envtl. Prot. v. Alloway Tp., 438 N.J. Super. 501, 512 (App. Div. 2015).  Even if the court found that the feasibility determination was extraneous and unnecessary, which it cannot, the [...] also failed to justify a pipe culvert because the rules require that the “invert of the culvert shall be installed at least two feet below the invert of the natural channel [and] filled with native substrate up to the invert of the natural channel” unless this is not possible “due to unstable substrate or other physical constraints.
[brief] If anything, the conclusory assertions contained in the Resolution of Denial not only were not grounded on any facts or rebuttal evidence or opinion of any Board witness (which there were none) or professionals, but also, were tantamount to inadmissible net opinion.  M37.  Even with all the uncontroverted evidence, and given the 2016 Resolution, the Zoning Board voted to deny Plaintiffs’ 2018 Amended Application for variance relief, with Member [...] making a motion to deny the 2018 Amended Application, stating in relevant part that “I think they’re basing everything and every professional that came up kept bringing up the affordable housing.
[brief] United States v. Brown, 334 F.3d 1161, 1164 (D.C.Cir.2003).  Moreover, if the pocketknives were weapons as stated in the police report, plaintiff would have been charged with unlawful possession of the knives.  Pursuant to the police report, [...] stated that he requested the car key from the plaintiff to determine if the car belonged to [...] and to search plaintiff’s bags WITHOUT A WARRANT to confirm there were no proceeds from motor vehicle burglaries inside.
[directive] Cash Bail Option  Actor attempts via electronic or other means, to lure or entice a child, or a person the actor Luring, Enticing a reasonably believes to be a child, into a motor vehicle, structure or isolated place or to meet 2C:13-6 2nd Degree $50,000 to $100,000  10% permissible  Child, Attempts or appear at any other place with purpose to commit a criminal offense with or against the child.  A child is defined as a person less than 18 years old.
[brief] “Probable cause for the issuance of a search warrant requires a fair probability that contraband or evidence of a crime will be found in a particular place. ”  State v. Chippero, 201 N.J. 14, 28 (2009) (internal citations omitted).  “A search executed pursuant to a warrant is presumed to be valid. ”  State v. Hamlett, 449 N.J. Super. 159, 169 (App. Div. 2017) (quoting Jones, 179 N.J. at 388), appeal dismissed as improvidently granted, 233 N.J. 350 (2018).  A defendant bears the burden to prove the lack of probable cause supporting the issuance of the warrant or that the resulting search was unreasonable.
[brief] *Teamsters Local 97 v. State*, 434 N.J. Super. 393, 413 (App. Div. 2014) (“[New Jersey] courts have not hesitated to dismiss complaints with prejudice when a constitutional challenge fails to state a claim. ”).  De novo review is likewise applicable to the denial of [...]’s summary judgment cross motion.  *Samolyk v. Berthe*, 251 N.J. 73, 79 (2022).  A reviewing court must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. ”  *Brill v. Guardian Life Ins. Co of Am.*, 142 N.J. 520, 540 (1995).  The trial court correctly concluded that well-settled precedent forecloses all of [...]’s claims.  At the heart of each these claims, no matter how they are styled, is the theory that the Council is not a state agency, but a private entity wielding public power merely because most of its members are recommended to the Governor by a private organization.
[brief] (Aa3412).  On July 11, 2023, [...] commented on the conservation restriction release, claiming bald eagle and Savannah sparrow, State threatened and endangered species, use the Property as habitat and again asserting that [...] did not meet the water quality, groundwater recharge and peak flow stormwater requirements.  (Aa2546).  On August 10, 2023, [...] released the conservation restriction on the Property.  (Aa2986).  [...] has not appealed this release.
[brief] Moreover, Appellants cannot prove the intent necessary to sustain a claim for wire or mail fraud where [...] testified as to his understanding that the land use approvals under consideration by the Planning Board “ran with the property, so we were obligated to finish those[.]” (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 [...]’s client, [...], “exclusive possession and control” of the Property and left [...] to “complete the project. ” (Id.).  Thus, Appellants cannot even establish the predicate acts of wire or mail fraud to support its civil RICO claim here.
[brief] Pa0000396397.  In addressing issues not specifically identified in those documents, [...] found the following:  If the negotiations that led to the [...] Settlement Agreement included an agreement between the parties regarding [...]'s hiring, promotional, and disciplinary actions, and/or the appeals process used, then those agreements should have been reflected in the [...] Settlement Agreement.  Id. (emphasis added).  There was no discussion or agreement for back wages addressed in the Implementation Memo and Settlement Agreement despite the Trial Court’s reliance on the vague statement of “entire compensation. ”  Applying the Trial Court’s logic, the State could require that employees refund wages previously earned and received because they unilaterally modified the terms of the CNAs after the fact.
[brief] However, incredibly enough, not only did Plaintiff forge [...]’s name on the deed, the deed stated that “[...]” and “[...]” were the same person (Da343 – Da346).  This is clearly incorrect, as [...] and [...] are distinctly different people.  This bit of subterfuge created a clouded title wherein the purported owner was [...].  If this was not the intention to shift the title to [...], however, he had an opportunity to correct this mistake.
[brief] The general charge was not a substitute for a specific directive on how to evaluate the reliability of the identification evidence.  See Green, 86 N.J. at 285, 287 (“inadequa[te]” for the jury to be “generally charged” on “its fact finding responsibility, the elements of each crime and the State’s burden of proof,” in lieu of a specific instruction on the State’s burden to prove identity); Davis, 363 N.J. Super. at 561 (inadequate to only give “general instructions on such things as credibility and the elements of the crimes”).  Cross-examination and summation are also not substitutes for a jury instruction.  “[W]e do not rely on jurors to divine rules themselves or glean them from cross-examination or summation.  Even with matters that may be considered intuitive, courts provide focused jury instructions. ”  Henderson, 208 N.J. at 296.  The instruction-less admission of identification evidence was capable of causing an unjust result, as illustrated by the prosecutor trumpeting the identifications in summation.
[brief] AC Ocean Walk, LLC v. American Guar. & Liab. Ins. Co., 256 N.J. 294 (2023)  8  Aly v. E.S. Sutton Realty, 360 N.J. Super. 214 (App. Div. 2003)  23 Banco Popular N. Am. v. Gandi, 184 NJ. 161 (2005)  7  Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157 (2021)  6  Binder v. Price Waterhouse & Co., LLP, 393 N.J. Super. 304 (App. Div. 2007)  11 City of Philadelphia v. Austin, 86 N.J. 55 (1981)  24 Coello v. Dileo, 43 F.4th 346 (2022)  19, 20, 22 Continental Ins. Co. v. Honeywell Int’l Inc., 406 N.J. Super. 156 (App. Div. 2009)  23 DiCristofaro v. Laurel Grove Mem’l Park, 43 N.J. Super. 244 (App. Div. 1957)  7 Do-Wop Corp. v. City of Rahway, 168 N.J. 191 (2001)  17 Frederick v. Smith, 416 N.J. Super. 594 (App. Div. 2010)  7  Galligan v. Westfield Centre Service, Inc., 82 N.J. 188 (1980)  8  Giannakopoulos v. Mid-State Mall, 438 N.J. Super. 595 (App. Div. 2014)  8  Grunwald v. Bronkesh, 131 N.J. 483 (1993)  9  Hayes v. Delamotte, 231 N.J. 373 (2018)  17 Heck v. Humphrey, 512 U.S. 477 (1994)  19 Helmy v. City of Jersey City, 178 N.J. 183 (2003)  9  Henry v. New Jersey Dept. of Human Services, 204 N.J. 320 (2010)  9  In the Matter of Gauthier, 461 N.J. Super. 507 (App. Div. 2019)  14  Isko v. Planning Bd., 51 N.J. 162 (1968)  17  Kaczmarek v. New Jersey Turnpike Auth., 77 N.J. 328 (1978)  8  Kossler v. Crisanti, 564 F.3d 181 (2009)  22 Lopez v. Swyer, 62 N.J. 267 (1973) passim McDonough v. Smith, 588 U.S. 109 (2019)  19  Michael Bessasparis & SHT Corp. v. Twp. of Bridgewater, 2021 N.J. Super. Unpub. LEXIS 820 at *19 (App. Div. Feb. 2, 2021)  15  Muller Fuel Oil Co. v. Ins. Co. of N. Am., 95 N.J.  Super. 564 (App. Div. 1967).  9  O’Keefe v. Snyder, 83 N.J. 478 (1980)  9  Price v. N.J. Mfrs. Ins. Co., 182 N.J. 519 (2005)  11  Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739 (1989)  7  Rieder v. Dept. of Transp., 221 N.J. Super. 547 (App. Div. 1987)  7  Rogers v. Cape May County Office of Public Defender, 208 N.J. 414 (2011)  15  Schmidt v. Celgene Corp., 425 N.J. Super. 600 (App. Div. 2012)  6  Sensient Colors, Inc. v. Allstate Ins. Co., 193 N.J. 373 (2008)  23  State v. Cherry Hill Mitsubishi, 439 N.J. Super. 462 (App. Div. 2015)  6  Suburban Dep’t Stores v. City of East Orange, 47 N.J. Super. 472 (App. Div. 1957)  17 Thomas v. DeGraffenreid, 11 S.C.L. 143 (1819)  22 Thomas v. New Jersey Institute of Technology, 178 N.J. Super. 60 (Law Div. 1981)  14 Thompson v. City of Atlantic City, 190 N.J. 359 (2007)  24 Thompson v. Clark, 596 U.S. 36 (2022)  21  Trustees of Princeton Univ. v. Trust Co. of N.J., 22 N.J. 587 (1956)  23  Velantzas v. Colgate-Palmolive Co., 109 N.J. 189 (1988)  7  Villalobos v. Fava, 342 N.J. Super. 38 (App. Div. 2001).  11  Wallace v. Kato, 549 U.S. 384 (2007)  25 Yancoskie v. Del. River Port Auth., 78 N.J. 321 (1978)  23 Young v. Prudential Ins. Co. of Am., 297 N.J. Super. 605 (App. Div. 1997)  18 Zaccardi v. Becker, 88 N.J. 245 (1982)  11  PRELIMINARY STATEMENT
[brief] The LAD applies to [...] and its offending employees (many of whom are J. Does) because it’s clear it’s a person, an employer, a place of public accommodation and a public facility.  The State is not a “person” but [...] is NOT suing the State under the CRA.  The complaint very carefully spells out [...] is only using the CRA Officer Suit to address ignoring his Motions and ADA Complaints – for Declaratory Relief.  If you look at the Supreme Court’s affirming opinion in *Pasqua*, 186 N.J. at 668-69, it’s pretty clear [...] electronically transmitted her opinion to AOC AD [...] (or [...]), who issued a Directive the same day to stop putting probation debtors in jail unless and until they had counsel.  Where would the Order be sent without an Executive named in their Official Capacity?  Official capacity suits are a very standard procedure for getting a public entity to follow a declaratory or injunctive order.  It is frequently referred to as “The Officer Suit Fiction. ”  See John F. Duffy, Note, *Sovereign Immunity, the Officer Suit Fiction, and Entitlement Benefits,* 56 University of Chicago Law Review 295,306-310 (1989).  These are the relevant sections of the LAD:
[brief] N.J.S.A.2A:23A–20(a), which mandates arbitration for certain personal injury actions when damages amount to $20,000 or less.  Again, we recognized that either party to the arbitration could petition the court “‘within 30 days of the filing of the arbitration decision for a trial *de novo.*’”  *Hartsfield, supra,*  149 N.J. at 615–16.  *Id.*  In the present matter, as in the cases cited by the Court above and unlike *Jersey Central Power,* the AICRA arbitration process *does* have an express statutory right for either party to seek *de novo* review of an arbitration decision within forty-five days of its issuance.  N.J.S.A.§2A:23A-13, provides, in pertinent:  **2A:23A-13.  Application to court for review of award**  a.  A party to an alternative resolution proceeding shall commence a summary application in the Superior Court for its vacation, modification or correction within 45 days after the award is delivered to the applicant, or within 30 days after receipt of an award modified pursuant to subsection d. of section 12 of this act, unless the parties shall extend the time in writing.  The award of the umpire shall become final unless the action is commenced as required by this subsection.  b.  In considering an application for vacation, modification or correction, a decision of the umpire on the facts shall be final if there is substantial evidence to support that decision; provided, however, that when the application to the court is to vacate the award pursuant to paragraph (1), (2), (3), or (4) of subsection c., the court shall make an independent determination of any facts relevant thereto de novo, upon such record as may exist or as it may determine in a summary expedited proceeding as provided for by rules adopted by the Supreme Court for the purpose of acting on such applications.  . . .
[brief] *5  [...] contends that [...]’s iPhone is relevant because it was used by [...] after the July 1, 2013 relevancy date, which was defined by the parties.  Therefore, [...] contends that the phone is subject to the Protocol.  See R. Doc. 103–1, p. 8.  As such, [...] contends that on October 30, 2014, counsel for [...] indicated that [...] uses two phones, one of which is his iPhone.  Id.  However, [...] was not provided the iPhone for imaging at the inspection, nor has it since been provided the iPhone for inspection.  Therefore, [...] seeks an Order from this Court to compel the inspection and production of [...]’s iPhone 5s.  As to [...]’s iPhone, [...] contends its team alerted everyone at the Deer Park site, including [...], [...] and [...] about the encryption issue.  Id.  [...] filed a separate motion for sanctions on the encryption issue, which has since been denied as premature by the presiding District Judge.  See id., citing R. Docs. 101, 144.  In opposition, [...] contends that it should not have to produce [...]’s iPhone for imaging because on October 30–31, 2013, email communications between the parties evidence that [...] was aware of the existence of [...]’s iPhone, and its availability to be collected on November 1, 2013.  See R. Doc. 121, p. 6.  However, [...], [...]’s forensic imaging experts failed to image the phone on November 1, 2013.  As such, [...] contends that it should not be required to reproduce the phone for imaging when it was the fault of [...]’s forensic imaging expert that the phone was not properly imaged.  During oral argument counsel for the Defendants indicated that [...] had two phones, and during the inspection, their representative only imaged one of the phones but was unable to image the iPhone.  As such, [...]’s iPhone was never imaged or produced to [...].
[brief] Plaintiffs allege that on April 26, 2019, Plaintiff [...] was standing in an aisle of the Meat Department of the [...] warehouse located at [...], when a customer pushed a shopping cart, into her back.  (Pa001-Pa012; Pa231-Pa239).  [...]’s Accident Investigation Form dated April 26, 2019 provides that one customer was pushing an industrial cart known as a “U-boat” and that there was no surveillance video of the incident.
[brief] Yet, Defendant turns to legislative history—specifically, the report of the Senate Committee on Banking, Housing, and Urban Affairs which recommended adoption of H.R. 5294 (Senate Report at *1)—trying to cast doubt on the meaning of the statutory language.  Defendant uses the Report to argue that “any person” in § 1692c(b) does not mean any person but is limited to a consumer’s friends, neighbors, relatives, and employers.  Db1, Db20.  But there is nothing in the Report supporting Defendant’s construction.  The Report refers to friends, neighbors, relatives, and employers under two prefatory sections titled “Need for this Legislation” and “Prohibited Practices. ”  Senate Report at *2, *4.  Those introductory sections do not state or imply that they delineate the scope of § 1692c(b).  Defendant ignores where the Report specifically addressed § 1692c(b).
[brief] In finding that the officers had reasonable suspicion to stop and frisk [...] and his friends, the judge gave uncritical deference to the officers’ belief that the four men were armed and up to no good – based on the men’s presence in a “high-crime area”; the officers’ vague description of contact the men allegedly had with an unspecified number of unknown passersby; the fact that the men were dressed in “heavy” clothing on a cold night; and the men’s alleged “blading. ”  “Such uncritical deference provides the space into which seeps the damaging influence of racial bias. ”  Commonwealth v. Sweeting-Bailey, 178 N.E.3d 356, 381 (Mass. 2021)(Budd, C.J., dissenting).
[brief] ’”  A265.  [...] said the “incorporation of the terms of the MMA under those circumstances did not hold the same coercive effect as were found in Pacelli,” (Id.)  “Additionally,” [...] noted, both agreements “were executed shortly after it was divulged that [[...]] was engaged in an extra-marital affair which tempers any argument that either party had no reasonable belief that the agreements were not intended to define the terms which would terminate the marriage. ”
[brief] Q:  Could you describe me the circumstances when you first met [...].  A: Yes.  So I had reached out to Mr. [...] and we had the discussion about his property on [...] there, and he let me know that he was interested in selling, and so we arranged a meeting a couple months after that initial phone call to meet in person at the property, and that is how we got together.  Q: Right.  Along with [...], was there anybody else you met?  A: His two sons and his wife.  Dean Clark, 4T 59:18-60:5, Jan. 10, 2023 (emphasis added).  Thus, contrary to the Appellant’s argument, the record is replete with testimony by the Appellants themselves specifically acknowledging that they all played a role in planning and carrying out the fraudulent to convey [...]’s property to [...] without [...]’s knowledge or consent.
[directive] Bail Range 10%  Cash Bail Option Actor: $50,000 to $75,000  10% permissible  2C:17-3a(1-7)  Criminal Mischief 2nd Degree (1)(2)  Purposely or knowingly damages tangible property of another or does so recklessly or negligently in employment of fire or explosives or other dangerous means as defined in the statute or tampers with property so as to endanger person or property.
[brief] Plaintiff’s apparent argument that the Trial Court’s decision was somehow ‘rushed’ and offered plaintiff ‘limited time to respond,’ is inaccurate.  first case, *Berkowitz v. Haigood*, 256 N.J. Super. 342, 346 (1992), the plaintiff treated with a doctor (Berkowitz) and the plaintiff entered into the agreement with the doctor “purporting to create a lien against the proceeds of the personal injunction action.  Although that agreement was found valid by the trial court in *Berkowitz*, the Trial Court here correctly noted that the *Berkowitz* case involved a dispute between the plaintiff and the plaintiff doctor.  In *Berkowitz*, there was no conveyance by plaintiff of the right to and title of the action to the doctor.
[brief] The leading case addressing exceptions to policy exclusions is *Cypress Point Condominium Ass’n, Inc. v. Adria Towers*, L.L.C., 226 N.J. 403 (2016), which is discussed in Point I, above.  In *Cypress Point*, the Supreme Court discussed the impact of a change in policy forms that added an exception, the “subcontractor exception,” to an exclusion for liability claims attributable to a contractor’s faulty workmanship.  If the exception applies, the “your work” exclusion “does not apply. ”  By adding an exception to the your-work exclusion, insurers broadened the coverage for construction-related damage by eliminating the exclusion altogether in circumstances where the exception applied.  Thus, if an exception applies, it does in fact “swallow” the exclusion containing it, as was the result in *Cypress Point* when the Supreme Court applied the “subcontractor exception” to avoid the otherwise outcome determinative “your work” exclusion the insurance carrier had invoked.