ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (Pa000390; Pa000237).  Plaintiffs sued [...] and were free to conduct discovery to confirm that [...]’s preliminary site plan regarding future paved parking spaces had nothing to do with [...]’s remediation activities.  Further, the [...] representative testified that [...] (not [...]) was responsible for obtaining Plaintiffs’ permission to enter the Property.  (Pa000215 at 32:9-12).  The lower court properly rejected Plaintiffs’ argument in the context of [...]’s remediation activities as well.
[brief] 4T, 146:21-148:7; 149:25-150:8.  Having control of the land, said land being rezoned for a 100% affordable housing development, said affordable housing project being a 9% tax credit project, and having the 15% developer fee to be paid on the total development cost, provided both the leverage to Plaintiff [...] and a very attractive incentive to any affordable housing developer to form a 60%-40% partnership.  4T, 35:9-36:24.  The Trial Court’s misplaced preoccupation with the arguments that Plaintiff [...] was not an affordable housing developer, allegedly had no construction or real estate development experience, had no experience in managing affordable housing developments, and allegedly did not have the money to develop the affordable housing project, was nothing more than a disguised “new business rule” ignoring the above-stated realities of 100% affordable housing developments as expertly and irrefutably set forth by [...] and [...].
[brief] Furthermore, “at the time of purchase” does not mean afterwards.  When Plaintiffs finished signing their sales documents, they had completed their purchase.  Plaintiffs established at trial that [...] regularly and routinely violated the statute and the regulation by only providing the POS after the contract documents were signed and they were ready to walk out the door, and then on a CD that could not be contemporaneously viewed by any Plaintiff.  [...] and [...] testified under oath they did this each and every time, [...] knew this, and the resort never took any steps to change their processes.  (11T28:16-31:6 and 14T255:17-257:4).  [...] should not now be allowed to argue that the contents of the POS, which it delivered late and in violation of their statutory duty, contain contract terms that each Plaintiff knew of and agreed to.  Timeshare resorts are expected to know and comply with the RETA in its entirety.  This includes giving a prospective buyer a copy of the POS and affording them a reasonable chance to read it before they sign the contract documents.  The POS may be provided on CD-ROM format, but the duty to afford the buyer a reasonable chance to access the contents of the CD-ROM and read it before signing remains regardless of what format the POS is in.  There is nothing conflicting about the statute and the code provision, they simply complement each other.  These requirements are reasonable because the POSs contain many of the purchase contract terms the resorts, including [...], later hold buyers to.  (Pa56 ¶34).  It is unfair to hold a consumer to the terms of a contract the seller prohibits them from reading in violation of the RETA regulations.
[brief] “Notwithstanding the provisions of subsection b. of this section to the contrary, no individual shall be disqualified from employment on the basis of any conviction disclosed by a criminal history record background check performed pursuant to sections 2 through 7 of P.L.1999, c.358 (C.30:6D-64 through 69) if the individual has affirmatively demonstrated to the community agency head, or the community agency board if the individual is the community agency head, clear and convincing evidence of the individual’s rehabilitation.  In determining whether an individual has affirmatively demonstrated rehabilitation, the following factors shall be considered: (1) the nature and responsibility of the position which the convicted individual would hold, has held or currently holds, as the case may be; (2) the nature and seriousness of the offense; (3) the circumstances under which the offense occurred; (4) the date of the offense; (5) the age of the individual when the offense was committed; (6) whether the offense was an isolated or repeated incident; (7) any social conditions which may have contributed to the offense; and (8) any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of those who have had the individual under their supervision.
[brief] See R. 2:10-2.  We observe defense counsel in summation questioned the credibility of the witnesses present at the shooting.  He questioned the veracity of [...]'s testimony that defendant ran after [...], two shots were heard, and that defendant ran back entering the vehicle with [...] before admitting he shot [...] in the face.  Defense counsel further challenged the truthfulness of [...] and [...]'s testimony.  The prosecutor's comment “to find [defendant] innocent, you have to completely discount the testimony” of the State's witnesses was followed by a recitation of the testifying witnesses who were present at the shooting and responded to defense counsel's challenges to their credibility.  We conclude the prosecutor's remarks were not “‘clearly and unmistakably improper,’ and [did not] substantially prejudice[ ] defendant's fundamental right to have a jury fairly evaluate the merits of his defense.
[brief] Stewart v. Dexter, 218 N.J. Super. 417 (Law Div. 1986)........................................19  Stone v. Police Dep’t of Borough of Keyport, 191 N.J. Super. 554 (App. Div. 1983).......................................23  RULES N. J.R.E. 401..................................................................................18  N.J.R.E. 402..................................................................................18  N.J.R.E. 410(a)(1) and (2)............................................................21  N.J.R.E. 607(a)..............................................................................19  N.J.R.E. 803(a)(1).......................................................................19,22,23 R. 2:2-4.........................................................................................16
[brief] This phrase functions as a catchall, invoking any type of turn that one could make beyond the two types specifically listed: a turn at an intersection and a turn to enter a private road or driveway.  See Paroline v. United States, 572 U.S. 434, 447 (2014) (“[C]atchall clauses are to be read as bringing within a statute categories similar in type to those specifically enumerated.)  (Internal quotations omitted.)  A car that changes lanes does not “turn,” as that word is commonly understood, because it does not change course.  The American Heritage Dictionary defines “course” as “[t]he route or path taken by something that moves, such as a stream or vehicle. ”  The American Heritage Dictionary, https://ahdictionary.com/word/search.html?q=course (last visited Nov. 27, 2023).  When a car changes lanes, its route or path does not change — it merely moves right or left upon the same roadway and continues heading in the same direction as before.  Consequently, a lane change does not fall within the ordinary meaning of the word “turn.
[directive] Rule 3:3-1(c)(1) on the Bail Schedule 2 charges of robbery, criminal sexual contact, second degree aggravated assault, aggravated arson, arson, burglary, first or second degree violations of Chapter 35 (drug offenses), any crime involving the possession or use of a firearm, or conspiracies or attempts to commit such crimes.  Rule 3:3-1(c)(2-6) (indictable offenses) and Rule 7:2-2(b)(1-6) delineate factors regarding whether a warrant or summons should issue for other offenses.  Rule 3:26-1 (indictable offenses) and Rule 7:4-1 (non-indictable offenses) delineate factors to be considered when setting bail and provide for the option of R.O.R. bail where appropriate.  Bail Ranges for attempts or conspiracies should generally be the same as the actual substantive crime.  Statute Charge Description  Degree Bail Range 10%  Cash Bail Option  Actor engages in course of conduct toward a specific person that would cause a reasonable 3rd Degree $20,000 to $50,000 10% permissible person to fear for his safety or the safety of a third person or suffer other emotional distress; third degree if committed in violation of an existing court order, or is a second or subsequent 2C:12-10  Stalking offense of stalking against the same victim, or is committed while serving a term of imprisonment, or while on parole or probation for a conviction for any indictable offense under 4th Degree $1,000 to $2,500 10% permissible the laws of this state, any other state or the United States; otherwise, fourth degree.  Actor knowingly takes or attempts to exercise unlawful control over a firearm or other weapon 1st Degree $100,000 to $250,000 10% permissible in the possession of a law enforcement or corrections officer when that officer is acting in the Disarming Law performance of his duties, and either is in uniform or exhibits evidence of his authority, 2C:12-11(a)(b)  Enforcement Officer second degree; first degree if the actor fires or discharges the firearm, or uses or threatens to use the firearm or weapon against the officer or any other person, or the officer or another 2nd Degree $50,000 to $100,000 10% permissible person suffers serious bodily injury.  Actor unlawfully restrains another in circumstances exposing the other to serious bodily injury  2C:13-2(a)(b)  Criminal Restraint 3rd Degree $10,000 to $25,000 10% permissible or holds another in a condition of involuntary servitude.  24  Updated December 2, 2013  Bail Schedule 2
[brief] Governing New Jersey and Federal FCA Precedents Require Prospective Application.  (Ja1–3; 4T)  The framework to assess the retroactivity of a statutory amendment is well-established and longstanding.  There is a presumption in favor of “prospective rather than retroactive application of new legislation,” consistent with New Jersey’s “long-held notions of fairness and due process. ”  Ardan v. Bd. of Rev., 231 N.J. 589, 609–10 (2018) (quoting James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 563 (2014)).  This “deeply rooted” presumption is grounded in “[t]he principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place. ”  Hughes Aircraft, 520 U.S. at 946 (quotation marks omitted).  “This presumption against retroactivity is even stronger where an amendment eliminates a defense to a qui tam suit. ”  U.S. ex rel. Judd v. Quest Diagnostics Inc., 638 F. App’x 162, 165 (3d Cir. 2015) (emphasis added).  The default presumption against retroactivity can be rebutted only where “supervening considerations clearly compel a contrary determination. ”  Twiss v. State, Dep’t of Treasury, Off. of Fin. Mgmt., 124 N.J. 461, 467 (1991) (quotation marks omitted); see also Landgraf v. USI Film Prods., 511 U.S. 244, 272–73 (1994) (“[P]rospectivity remains the appropriate default rule,” overcome only by “clear intent” from Congress.).  Notably, “[t]he first question is whether the Legislature intended to give the statute retroactive application. ”  Johnson v. Roselle EZ Quick LLC, 226 N.J. 370, 387 (2016) (quotation marks omitted).  Retroactive intent is absent unless: (1) “the Legislature expresses its intent that the law apply retroactively, either expressly or implicitly”; (2) “an amendment is curative”; or (3) “the expectations of the parties so warrant.
[directive] Whether to re-open an internal affairs investigation remains within the discretion of the law enforcement executive and, with regard to criminal matters, the County Prosecutor’s Office.  The Civilian Review Board may not override any finding or decision made as part of the internal affairs process, impose discipline, require that another official impose discipline, or render any finding or decision that requires deference from any other official.  If a law enforcement agency declines to re-open an investigation at the request of the Civilian Review Board, the Board may issue a final public report regarding the complaint or incident after appropriately redacting the report in accordance with instructions from the law enforcement executive.  The personal identity of specific subject officers, complainants, or witnesses may not be disclosed to the public.  Under no circumstances may a Civilian Review Board immunize any person from prosecution or take any other action that would have the effect of conferring immunity on any person.  (b)
[brief] Piro v. Pub. Serv. Elec. & Gas Co., 103 N.J. Super. 456, 463 (App. Div. 1968).  The trial court erred when it ruled that Plaintiffs needed to retain an expert in order to establish [...]’s negligence.  (2T.20:9-16)  Ample evidence exists to prove that [...] owed Plaintiff a non-delegable duty to use reasonable care to protect Plaintiff against known or reasonably discoverable dangers, and that [...] breached that duty, by not only failing to implement policies and procedures to address the risk of overloaded U-boats, but also by failing to provide adequate training to its employees to ensure proper use of the U-boats by its customers.  Furthermore, since Plaintiffs are alleging that [...] was negligent based on a premises liability theory, and that [...] breached its duty of due care to Plaintiff, a business invitee, by failing to undertake risk reducing measures to avoid situations where dangerous conditions can arise due to customers overloading the U-boats supplied by [...] and which can lead to injury, an expert opining on [...]’s responsibilities under a premises liability theory is unnecessary.
[brief] (16T:84-25 to 111-14)  After erroneously admitting [...]’s statement, the trial court denied defense counsel’s request to redact the statement to avoid showing the jury [...]’s repeated attempts to invoke his Miranda rights.  Considering the reality that many jurors are likely to draw a negative inference from a defendant’s unwillingness to speak with police, our Supreme Court has repeatedly held that “[t]rial courts should endeavor to excise any reference to a criminal defendant’s invocation of his right to counsel’ from the statement the jury hears. ”  State v. Clark, 251 N.J. 266, 292 (2022) (quoting State v. Feaster, 156 N.J. 1, 75-76 (1998)).  Here, the jury saw [...] asking detectives about the scope of his rights at length prior to signing the waiver form and repeatedly invoking his right to silence in response to particular lines of inquiry from detectives about his recent visits to New Jersey and communications with his mother.  Given the nature of the State’s circumstantial case, the erroneous inclusion of these prejudicial portions of his statement plainly “could have led the jury to a result it otherwise might not have reached,” compelling reversal.
[brief] See *Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs.*, 182 N.J. 210, 225 (2005) (stating that plaintiff must prove “conduct that denied the benefit of the bargain originally intended by the parties. ”) (quotation omitted); *Wade v. Kessler Inst.*, 343 N.J. Super. 338, 345 (App. Div. 2001); *Noye v. Hoffmann-La Roche, Inc.*, 238 N.J. Super. 430, 434 (App. Div. 1990) (‘In the absence of a contract, there can be no breach of an implied covenant of good faith and fair dealing’).
[brief] For these substantial and credible reasons, the Board relied upon [...]’s opinions and testimony concluding that Petitioner’s disability was an aggravation of pre-existing cervical conditions caused by prior accidents and aging.  (3T21:2-18; 22:2-14).  Specifically, [...] testified that Petitioner had a pre-existing disc herniation at C6-C7, disc bulging at C5-C6 and stenosis at both C5-C6 and C6-C7, the same discs that were operated on in Petitioner’s 2015 surgery.
[brief] In making this determination, the trial court relied upon Reyes v. Egner, 404 N.J. Super. 433, 437 (App. Div. 2009) and § 358 of --- \(^3\)  As this determination is factual in nature, this conclusion should be afforded deference.  See Potomac Ins. Co. of Illinois ex rel. OneBeacon Ins. Co. v. Pa. Mfrs.' Ass'n Ins. Co., 215 N.J. 409, 421 (2013).  the Restatement (Second) of Torts (1965).  However, these sources of authority are inapt to the present facts.
[brief] Likewise, [...] does not afford Defendant relief from the law of case established by the Appellate Division since the trial court indisputably had jurisdiction to enter the June 29, 2020 final judgment.  Lastly, analogous to the defendants in Poppy Holdings and City of Newark, although the Defendant raised equitable principles before the trial court, he never fully established a loss of property equity before the trial court.  Contrariwise, the record establishes that the Plaintiff would be owed in excess of the approximate sum of $268,803.85 to make it whole if the final judgment were vacated and the Property was encumbered by mortgages in the total approximate amount of $295,000.00.  Thus, the total debts encumbering the Property would exceed the sum of $563,803.85 if the final judgment were vacated.
[brief] The insured’s CGL insurer, [...], filed a declaratory judgment action seeking a declaration that an absolute pollution exclusion barred coverage for property damage caused by lead contamination.  *Ibid.*  The insured argued that because the “cause of the damage was a covered risk – his alleged negligence in the normal course of performing the painting contract,” the train of events test, also known as Appleman’s rule, mandated coverage.  For support, the insured cited to a Supreme Judicial Court of Massachusetts decision applying the efficient proximate cause rule to a first-party property policy.  *Id.* at 789.  The First Circuit decided it “need not linger long on this argument. ”  *Ibid.*  In rejecting the precise argument [...] makes here – that loss caused by negligence was a covered risk, the court held, “[i]t would be ironic indeed to hold that an insured is not covered for damage to property caused by his discharge of pollutants unless it happens that the proximate cause was his own negligent conduct. ”  *Id.* at 790.  Moreover, the insured’s “reasoning would eviscerate the plain language and explicit purpose of the Absolute Pollution Exclusion clause. ”  *Ibid*; see also *[...]*, 2007 U.S. Dist. LEXIS 81411, at *27 (“if there is a claim against the insured regarding mold, it is excluded.  It is irrelevant whether the mold was caused by [...]'s negligence, [...]'s intentional acts, acts of unaffiliated third parties, or acts of god. ”).  The Mold Exclusion, like the pollution exclusion in *Bourbeau*, bars coverage for liability caused by a certain agent.  It would be equally ironic here to hold that [...] is not covered for liability or damage caused by its negligent creation of mold unless it happens that the proximate cause of that liability was its own negligent conduct.  Similarly, [...]’s reasoning would eviscerate the plain language and explicit purpose of the Mold Exclusion.
[brief] The salesman did not explain the four business relationships a real estate agent can have with a buyer and did not give them a Consumer Information Statement as required by code.  (6T96:1-97:4).  As he had been trained, the salesman instead questioned the [...] to learn their vacation and travel interests so he could craft his sales presentation to them.  (6T99:9-100:21).  [...], one of [...]’s salesmen, corroborated this by testifying he does not tell potential buyers he is acting as the seller’s agent (8T121:1-7), that he does not tell a potential buyer about the four business relationships, that he does not provide them with the Consumer Information Statement, and that he did not remember ever seeing a Consumer Information Statement in the six years he had worked for [...].  (8T122:10-123: 15).  He described being trained in “the warm-up,” from [...]’s training manual, in which salespeople ask questions to learn the potential buyer’s “dominant buying motives,” their “emotional hot buttons,” so the salesperson can “tell them the things they want to hear” to make the sale.  (8T141:19-143:24).  The [...] were told they would have access to hotels all around the world, that [...]’s timeshare was like “any other piece of real estate,” “something tangible you could use,” and that improvements to Atlantic City would increase the value of their timeshare.  (6T101:1-103:8).  Their salesman claimed he had a [...] timeshare and that he acted, “like a rich uncle” by giving his niece a week in Hawaii for her honeymoon.  (6T102:1-21).  Their salesperson compared the timeshare to “owning a house, where you could buy, you could sell, and there was a market for it. ” (6T103:25-104:6).  The [...] understood they could book stays at [...] whenever they wanted.  Their salesman described the timeshare as an “investment,” but pointedly never referred to it as a timeshare.  (6T106:3-18). 2
[brief] As the trial court correctly found, the Special Undertaking Contract is a Missouri contract which will be governed by Missouri law.\footnote{[...] signed the Special Undertaking Contract and then returned it to [...] in Missouri, where [...] signed it to finalize the agreement.  See (Da101) (stating, in pertinent part: “Thank you for signing and returning the ‘Special Undertaking By Purchasers of Polychlorinated Biphenyls’ document.  It has now been signed by Monsanto and we are enclosing a copy for your files. ”); Filson v. Bell Tel. Labs., Inc., 82 N.J. Super. 185, 190 (App. Div. 1964) (“A contract is made at the place where the final act necessary for its formation is done. ”).  The Special Undertaking Contract became a part of all existing and future PCB contracts between [...] and [...], which specifically included Missouri choice-of-law provisions.  See, e.g., (Pa390 at ¶ 12) (“This contract is to be construed according to the laws of the state of Missouri. ”).}  At the time it was executed, the Special Undertaking Contract required [...] to defend and indemnify a Missouri company headquartered in Missouri.  (Pa001-002, Pa089).  The PCBs forming the basis for plaintiff’s obligations to defend and indemnify [...] were sold by [...] from Missouri.  (Pa385-468).  Moreover, [...] and [...] remain headquartered in Missouri, (Pa002) and the vast majority of the underlying PCB lawsuits tendered to plaintiff (approximately 103 of the 180) were filed in state or federal courts in Missouri.  (Pa180-188).  Finally, the Missouri Action is a more comprehensive and coercive action that seeks recovery of billions of dollars from multiple defendants (including plaintiff) who entered into substantially similar defense and indemnity agreements.
[brief] POINT IV.  THE TRIAL COURT ERRED BY GRANTING DEFENDANTS’ MOTION TO COMPEL ARBITRATION WITHOUT ALLOWING DISCOVERY ON THE ISSUE OF ARBITRABILITY (Raised Below: T1)  With their Motion to Compel Arbitration, Defendants provided evidence of the assignments of [...]’s alleged account (Pa164-Pa186) but failed to provide any terms included in the pertinent forward flow purchase agreements related to arbitrability.  In opposing Defendants’ Motion to Compel Arbitration, [...] (through counsel) argued that discovery should be permitted on the issue of arbitrability, because there is no evidence on record regarding the terms of the assignment(s) of [...]’s account and Defendants had refused to fulfill any of their defaulted discovery obligations; to wit, it is entirely plausible that terms in the forward flow purchase agreement(s) limited Defendants ability to compel arbitration as assignees.  See T1 6:20-7:8.  Given the undeveloped trial court record and Defendants’ failure to participate in discovery, [...] should have been entitled to discovery on the issue of arbitrability before the Motion to Compel was granted.