ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Ja37 *(emphasis added)*.  Finally, the delegation clause in the arbitration agreement specifically incorporates the parties’ agreement to arbitrate in accordance with the rules of the American Arbitration Association (“AAA”) or JAMS (the “Delegation Clause”):  7.5  **Arbitration Procedures and Location**:  Either you or [...] may initiate arbitration proceedings.  Arbitration will be conducted before a single arbitrator.  If you or [...] initiate arbitration, you and we have a choice of doing so before JAMS or the AAA:  (1)  For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply.  The JAMS rules are available at jamsadr.com or by calling 1-800-352-5267.  (2)  Which particular rules apply in AAA arbitration will depend on how much money is at issue.  For less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes/ Consumer Arbitration Rules will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply.  The AAA rules are available at adr.org or by calling 1-800-778-7879.  If required for the enforceability of the Arbitration Agreement under the Federal Arbitration Act, [...] will pay all arbitrator’s costs and expenses.  If not, those costs will be paid as specified in the above-referenced rules.  You and [...] both agree to bring the arbitration in either the county in which your Home Club is located or in New York City, New York.  As set forth in Section 8.5 below, the arbitrator will apply New Jersey law.  C.  Plaintiff’s Claims in the Lawsuit  Plaintiff’s lawsuit claims relate solely to certain terms and conditions of her [...] membership agreement.  By way of example, plaintiff alleges that her membership agreement: - does not comply with the HCSA because it fails to accurately set forth her “total payment obligation;” - does not comply with the CFA because its cancellation provisions are deceptive; and, - does not comply with the RISA because it does not contain a specific statutory notice.
[brief] 249 (2015) | 18 | | State v. Jackson, 326 N.J. Super. 276 (App. Div. 1999) | 38, 39 | | State v. Jaffe, 220 N.J. 114 (2014) | 47 | | State v. Johnson, 120 N.J. 263 (1990) | 22, 24 | | State v. Kromphold, 162 N.J. 345 (2000) | 46 | | State v. L.H., 239 N.J. 22 (2019) | 26, 27 | | State v. M.L., 253 N.J. Super. 13 (App. Div. 1991) | 18 | | State v. Madden, 61 N.J. 377 (1972) | 31 | | CASES (CONT'D.) | PAGE NOS. | |--------------------------------------------------------------------------------|-----------| | State v. McCloskey, 90 N.J. 18 (1982) | 22 | | State v. McFarlane, 224 N.J. 458 (2016) | 47 | | State v. McKinney, 223 N.J. 475 (2015) | 34 | | State v. Melendez, 454 N.J. Super. 445 (App. Div. 2018), aff’d as modified, 240 N.J. 268 (2020) | 18 | | State v. Natale, 184 N.J. 458 (2005) | 42 | | State v. O.D.A.-C., 250 N.J. 408 (2022) | 27 | | State v. O’Donnell, 117 N.J. 210 (1989) | 42 | | State v. Parker, 124 N.J. 628 (1991) | 36, 37, 38| | State v. Puryear, 441 N.J. Super. 280 (App. Div. 2015) | 27 | | State v. Reddish, 181 N.J. 553 (2004) | 12, 13 | | State v. Reed, 133 N.J. 237 (1993) | 22 | | State v. Rhett, 127 N.J. 3 (1992) | 31, 33 | | State v. Rose, 458 N.J. Super. 610 (App. Div. 2019) | 13, 14, 15| | State v. Tindell, 417 N.J. Super. 530 (App. Div. 2011) | 36 | | State v. Tung, 460 N.J. Super. 75 (App. Div. 2019) | 25, 26 | | State v. Vick, 117 N.J. 288 (1989) | 34 | | State v. Wint, 236 N.J. 174 (2018) | 23 | | State v. Wright, 97 N.J. 113 (1984) | 24 | | Sullivan v. Louisiana, 508 U.S. 275 (1993) | 34 | | TABLE OF AUTHORITIES (CONT'D.) | PAGE NOS. | |-------------------------------|-----------| | **STATUTES** | | | Model Penal Code Commentaries, § 5.03 | 30, 32 | | Model Penal Code, § 5.03 | 30 | | N.J.S.A. 2C:2-6(a) | 2 | | N.J.S.A. 2C:5-2 | 2, 29 | | N.J.S.A. 2C:5-2(d) | 35 | | N.J.S.A. 2C:12-1(b)(1) | 2 | | N.J.S.A.
[brief] (Pa39, 25:10-15).  Certainly, there are no allegations that the Township negligently placed the clay soil in her backyard and therefore can be held responsible.  For Plaintiff to establish causation, she would need to produce an expert who is qualified in evaluating the ground conditions, water intrusion, and resulting damage to her Property sufficient to tie the Township’s actions to said conditions, intrusions, and damage.  Plaintiff has done no such thing.  At no point during the decades that Plaintiff has complained of a water condition on her Property has she investigated, or hired anyone qualified to investigate, the cause of the water intrusion.  No expert report has been served in discovery, and therefore Plaintiff cannot establish that the Township’s conduct, or omissions, if any, are causally related to the damages claimed.
[brief] 18 Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)  .............  8 DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 336 (App. Div. 2013)  .........................  9 First Mut. Corp. v. Samojeden, 214 N.J. Super. 122, 129, (App. Div. 1986)  ..........................................................  18 Garley v. Waddington, 177 N.J. Super. 173 (App. Div. 1981)  .....  9 Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997).  8, 17 Gillman v Bally Mfg. Corp, 286 N.J. Super. 525, 528 (App. Div. 1996)
[brief] This is not to mention the fact that Plaintiffs alleged a so-called “de facto” partnership with [...].  Plaintiffs offer no explanation for how a third party could conceivably have had knowledge of such a relationship.  Third, even if [...] made an offer to purchase the assets of [...]’ practice at a time when it had knowledge of Plaintiffs’ optical shop and of their alleged “de facto” partnership with [...] (which it did not), such an offer hardly amounts to malicious interference and did not cause Plaintiffs to suffer damages in any event.
[brief] See Wells Fargo Bank v. NJ Prop. Group, 2020 N.J. Super. Unpub. LEXIS 1130, at *11 (standing for the proposition that once the mortgage is discharged, it is null and void and plaintiff lacks standing to foreclose) (Pa46).  Plaintiff fails to cite a single case for the proposition that entitles it to reinstate a mortgage that was properly discharged because of a later bankruptcy litigation.  For this reason, we ask that the Court affirm the Foreclosure Court’s ruling which dismissed Plaintiff’s complaint with prejudice.
[directive] Positional asphyxiation.  Officers must recognize the heightened risk of positional asphyxiation and compression asphyxiation during restraint and be alert to any actions that must be immediately taken to avoid or minimize the risk of asphyxiation.  Positional asphyxia can occur when a person is restrained, handcuffed or left unattended in any position that impedes their ability to breathe normally, particularly in a prone position.  If the person cannot escape from the position, death may occur very rapidly.  Thus, in the course of using force officers shall be alert to the following heightened risk factors for positional asphyxiation: (a) alcohol or drug intoxication; (b) possible mental health episode or incident; (c) a substantially overweight individual; (d) possible suffering of respiratory muscle fatigue (exhaustion); (e) possible airway obstruction; and (f) unconsciousness.
[brief] Clearly, Appellant’s claims of account error did have merit.  Conflicts between the Appellate Remand Orders of 1/17/2002 and 10/25/2005 and the Appellate Orders of 6/5/2018 and 6/15/2023 and Probation’s lack of proper enforcement of court Orders need be resolved.  Clearly, Law of the Case and “collateral estoppel” doctrine has been made inapplicable by further compounded Probation and Court error upon error over 23 years because “no one did the analysis.
[brief] Spinks and El-Sioufi are good law and support the trial court’s decision dismissing the LAD claims brought against [...] and [...] as a matter of law.  An employer must be free to investigate complaints of employee misconduct without fear of LAD liability.  Only when the investigation results in some real detriment, such as a suspension, demotion, or termination, should the aggrieved employee be able to invoke the protection of the LAD.  [El-Sioufi v. St. Peter's University Hosp., 382 N.J. Super. 145, 169-70 (App. Div. 2005)].  Cf. Beasley v. Passaic County, 377 N.J. Super. 585, 606, 873 A.2d 673 (App. Div. 2005) (in the CEPA context, ‘an investigation of an employee is not normally considered retaliation’).  Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 484 (App. Div. 2008).  To constitute an adverse employment action under the NJLAD, the action must “rise above something that makes an employee unhappy, resentful or otherwise cause[s] an incidental workplace dissatisfaction. ”  Victor v. State, 401 N.J. Super. 596, 615 (App. Div. 2008).  See also El-Sioufi, 382 N.J. Super. 170-71 (holding that unfavorable job evaluations and reassignment to another job did not constitute an adverse employment action under the NJLAD).  Moreover, although not directly relevant to Plaintiff’s claims against these defendants, Plaintiff’s Complaint does allege claims of adverse employment action based upon her transfer and a letter of reprimand allegedly put in her file.
[brief] That was reaffirmed in *Moody*, which is, in fact, an unreported decision, but the standards can, in fact, be used as evidence of neglect.  Again, the experts have to establish the standard of care.  (12T55:14-57:4.) \(^4\)  [...] also *denied* defendant’s motion *in limine* to bar plaintiff’s experts from presenting opinions to the jury that were beyond the scope of their expertise, including, to prohibit [...] from presenting opinions regarding the nursing standard of care, explaining that “While the Court agrees that experts cannot testify beyond the scope of their expertise, [...] is permitted to testify about nursing home standards of care and about the care and treatment received by plaintiff while he was at the nursing home.
[directive] [...], Director  For Immediate Release: For Further Information Contact: November 15, 2019  [...] [...]  STATE GRAND JURY RETURNS “NO BILL” IN FATAL SHOOTING INVOLVING COUNTY DETECTIVE IN VINELAND TRENTON –  A state grand jury has voted not to file any criminal charges at the conclusion of its deliberations regarding the death of [...], 19, of Millville, N.J., who was fatally shot by a county detective last year in Vineland, N.J.  According to police and civilian witnesses, Servais drove his car at the county detective who was immediately in front of the car, causing the detective to fire his service handgun at him.  Under the Attorney General’s Independent Prosecutor Directive, the use of deadly force by the county detective was investigated by the Attorney General’s Shooting Response Team, made up of investigators from the Office of Public Integrity and Accountability and the New Jersey State Police Homicide Unit.  The investigation included interviews of civilian witnesses and the law enforcement officers directly involved; collection of forensic evidence, including evidence from the scene and ballistics evidence; and autopsy results from the medical examiner.  After hearing testimony and evidence from the team’s investigation, the state grand jury concluded its deliberations today and voted “no bill,” meaning they found the actions of the detective who shot Servais were justified and no charges should be filed against him.
[brief] Finally, the Union cites to two cases as supporting its position that the Arbitrator did not exceed his authority: *Linden Bd. of Educ. v. Linden Educ. Ass’n ex rel. Mizichko*, 202 N.J. 268, 276 (2010); and *Mobil Oil Corp. v. Independent Oil Workers Union*, 679 F.2d 299 (3rd Cir. 1982).  As to *Linden*, the Union attempts to distinguish a prior case cited extensively by [...]: *Cty. Coll. of Morris Staff Ass’n v. Cty. Coll. of Morris*, 100 N.J. 383, 391 (1985), arguing that *Linden* holds an arbitrator is free to define “just cause” where the parties previously have not defined that term.  [...] does not dispute that well-established principle.  Importantly, the *Linden* Court explained that an arbitrator never can “contradict the express language of the contract,” even when attempting to define “just cause. ”  202 N.J. at 276.  The Arbitrator here ignored that command.  Thus, the *Linden* Court did not distinguish *County College of Morris*, as the Union contends, but rather reaffirmed the holding that an arbitrator may not disregard express contractual language and “read in” language making a better deal for the grievant than the union made through the collective bargaining process.
[brief] SECTION V – DEFINITIONS  * * *  5.  “Loss” or “losses” means damages, settlements, and/or defense costs.  9.  “Wrongful acts” means any negligent act(s), error(s), or omission(s) directly related to the operations of the condominium property of the Named Insured.  In the “Underlying Hokenson Action”, plaintiffs asserted that the “composition of the Board”, which included [...] and his wife, [...], “created grave risks of self-dealing, conflicts of interest, and the likelihood that the Board, and its individual members, would breach their fiduciary duties to the Association’s members.
[brief] The Petitioner testified credibly and extensively about the overwhelming amount of control exerted by the [...] Judge, Administrator, and others in performing her duties as municipal prosecutor.  The control over the Municipal Court docket and the types of cases are solely governed by the Municipal Court Judge and Administrator and the Petitioner simply has no say in the process.  Winslow’s Police Records Department handles all local discovery requests and even uses its own letterhead with Petitioner’s name on it when issued to defense counsel.  By contrast, the Respondent did absolutely no investigation whatsoever of municipal court personnel and despite the overwhelming evidence to the contrary, still found the Petitioner was an independent contractor while stating this Factor is not a strong indicator of such.  Curiously, the Respondent is concerned about the so-called lack of control by Winslow officials over Petitioner when she is not in Court session.  This finding is preposterous as the overwhelming amount of municipal prosecutor functions are done while Court is in session.  The fact that Petitioner took a call or two on her cell phone or at her law office pales in comparison to the overwhelming amount of control exerted by Winslow over the Petitioner.  Here again, Respondent ignored the determinations of both [...] and [...] that for this Factor, Petitioner was considered an employee by the Township.  Regardless of Respondent’s position, the Pandemic has changed all this so whether she takes a call in the municipal building or outside of it, is no longer a viable basis to deny employee status and never really was.
[brief] \(^1\)  As set forth below, Haviland does not stand for the proposition that no affidavit is merit is required against a professional engineering firm, where the allegations are against the \(^1\)  In Haviland, Plaintiff sued [...], a fictitious name used to designate the agent, servant and/or employee of the defendant [...] and/or [...] for an injury which occurred when a non-licensed technician, contrary to instructions given by the licensed physician, instructed the plaintiff to hold weights which resulted in Plaintiff’s injury.  professional entity and a non-party, non-licensed employee is acting under the direction and control of a professional engineer.  In such a case, the Plaintiff’s claim arises out of the professional negligence of the professional engineer which had the duty.  **PROCEDURAL HISTORY**
[brief] **Statement of Facts**  In 1987, the [...] bought a home at [...] in [...], with a loan secured by a mortgage on the property.  The [...] refinanced the loan in 1992 and 2002.  They refinanced again, on October 4, 2004, when they executed a Note for a $353,000 loan from [...] with an accompanying Mortgage to secure the loan, recorded by the [...] on October 14, 2004.  A1165, A1173.² --- ²  Following the 2004 refinancing, the [...] instituted litigation in the United States District Court for the District of New Jersey against various defendants, including [...] as Trustee, charging the defendant [...] with failure to pay off credit card debts that were supposed to be paid off via the 2004 loan, and contesting a claimed delinquency of an outstanding mortgage dating to 1992.  The federal lawsuit ended in 2020, *Schiano v. HomEq Servicing Corp. & HomEq Servicing*, 832 Fed. Appx. 116, 118 (3d Cir. 2020), based on a claim of  In 2022, the [...] obtained a new loan and mortgage for their residential property.
[brief] It does not matter how much time elapsed before Appellant admitted he believed [...] was suffering from an oxycodone overdose because Appellant made multiple misrepresentations prior to finally admitting same.  [Pa44; 4T52:20-24, 4T134:11-21].  Neither this Court nor [...] needs conclusive evidence of exactly how long it took Appellant’s story to fully evolve, because nothing will change the record clearly showing Appellant’s attempts to mislead [...].  [4T52:20-24, 4T134:11-21].  [...] also provided a credible explanation of why opioids did not show up on [...]’s drug screen, which was a very common occurrence, and therefore [...]’s overdose is also based on record evidence.
[brief] See N.J.S.A. 34:15-8.  We appreciate the hardship that this ruling may have on this plaintiff.  But our ultimate obligation in dealing with the issue before us is to preserve the integrity of the workers’ compensation law and to insure its interpretation and application in a manner consistent with its remedial and social purposes.  That obligation requires the conclusion that the special-mission exception to the going and coming rule applies here.  Ehrgott, 208 N.J. Super. at 399 (emphasis added).
[brief] (Pa245).  On June 17, 2013, Plaintiff spoke to [...] (“[...]”) who advised him that he was not able to matriculate into the master’s program at that time because his GPA was not a 3.0 or higher.  (Pa245-Pa246).  Accordingly, Plaintiff sought to apply to the MBA Program on his own accord.  After doing so, Plaintiff received a letter from the [...] advising him that he had been placed on academic probation for “failure to meet the minimum 2.75 grade point ratio as required for progression in the program. ” (Pa460-Pa461).  At that time, Plaintiff was alleged to have been on “academic probation” even though not all of Plaintiff’s final grades from his summer class were accounted for and factored into his GPA.  (Pa261).  Plaintiff appealed his academic probation, and met with [...], Pharm.D., BCPS (“[...]”), Assistant Dean for Faulty, as well as [...], Ed.D., Assistant Dean for Student Affairs & Programmatic Effectiveness (“[...]”), who advised him that once the grades were entered, and if Plaintiff was no longer under a 2.75, he would no longer be on academic probation.
[brief] Courts have struck down similarly deficient or unclear arbitration clauses.  Atalese, 219 N.J. at 441 (absence of language about giving up statutory rights made arbitration clause unenforceable); Marchak v. Claridge Commons, Inc., 134 N.J. 275 (1993)(unenforceable it did not clearly state that buyer was electing arbitration as his sole remedy); NAACP of Camden Cnty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 424 (App. Div. 2011)(provisions among various documents were too plagued with confusing terms, inconsistencies, so arbitration was unenforceable); *Barr v. Bishop Rosen & Co.*, supra (documents during employee’s 17 years failed to show he agreed to arbitrate); *Ogunyemi v. Garden State Med. Cntr.*, 478 N.J. Super. 310 (App. Div. 2024)(clause was ambiguous and unenforceable); *Delta Funding Corp. v. Harris*, 189 N.J. 28, 42 (2006)(requirement that employee pay arbitration costs can have chilling effect); *Alexander v. Anthony Int’l, L.P.*, 341 F.3d 256, 270 (3d Cir. 2003)(unconscionable as parties had to pay their own arbitrator’s costs).  Accordingly, Defendants’ attempt to overturn the October 17, 2023 Order and January 30, 2024 Order that found that there was no enforceable arbitration provision fails.
[brief] 3 Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243, 618 A.2d 868 (App. Div. 1993)  ...............................  7 Couri v. Gardner, 173 N.J. 328, 340 (2002)  .................................................................  3 D. Russo, Inc. v. Township of Union  417 N.J. Super. 384 (App. Div. 2010)  ......................  5 D. Russo, Inc. v. Township of Union, 417 N.J. Super. 384, 9 A.3d 1089 (App. Div. 2010)  ..........  1 Dixon v. Rutgers, The State University of N.J., 110 N.J. 432, 451, 541 A.2d 1046 (1988)  ...........  2 Doyle v. Warren Cty., 15 N.J. Misc. 434 (Circ.Ct. 1937)  ..................................................  10 Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002)  .............................................  12 Hasbrouck Heights B.O.E. v. W.J., 358 N.J. Super. 8, 12 (App. Div. 2003) ............................ 3 In re Burlington County Bd. of Chosen Freeholders, 99 N.J. 90, 97 (1985) ......................... 11 In re Burlington Cty. Freeholders Bd., 188 N.J. Super. 343, 347-48 (Law Div. 1983) ............... 10 In re Burlington Cty. Freeholders Bd., 188 N.J. Super. 343, 351 (Law Div. 1983) ................. 11 In re C.M., 458 N.J. Super. 563, 569-70 (App. Div. 2019) ............................................... 7 In re Civil Commitment of B.V., DOCKET NO. [...], 5 (App. Div. Mar. 4, 2016) ....... 4 In re Khoudary, Docket No. [...], 20 (N.J. Jun. 6, 2013) ....................................... 13 In re Schleimer, 78 N.J. 317, 319 (1978) ........................................................................ 13 In re Shearin, 166 N.J. 558 (2001) (Shearin I) ................................................................. 13 Kumar v. Piscataway Twp. Council No. [...] (App. Div. Aug. 23, 2022) ....................... 4 Mason v. City of Hoboken 196 N.J. 51 (N.J. 2008) .......................................................... 4 Matter of Kushner, 101 N.J. 397, 401-2 (N.J. 1986) .......................................................... 13 Matula v. Twp. of Berkeley Heights, DOCKET NO. [...], 10 (App. Div. Aug. 21, 2015) ........................................................................................................................................ 11 Matula v. Twp. of Berkeley Heights, DOCKET NO. [...], 9 (App. Div. Aug. 21, 2015) 11 Mullen, supra, 428 N.J. Super. at 102 .............................................................................. 11 Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973) ................................................ 9 Perna v. Elec. Data Sys. Corp., 916 F.Supp. 388 , 397 (D.N.J. 1995) .................................... 13 Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) .........................
[brief] *Id.*  Once the moving party has met its burden of excluding all reasonable doubt as to the existence of any genuine issue of material fact, *Judson v. Peoples Bank & Trust Co. of Westfield*, 17 N.J. 67 (1954), the burden shifts to the non-moving party to produce concrete evidence, setting forth the specific facts that prove there is a genuine issue for trial, that would support a jury verdict in his or her favor.  *Housel* v. Theodridis, 314 N.J. Super. 597, 604 (App. Div. 1998).  As the Supreme Court stated, “by its plain language, Rule 4:46-2 dictates that a court should deny a summary judgment motion only where the party opposing the motion has come forward with evidence that creates a ‘genuine issue as to any material fact challenged’. ”  Brill, 142 N.J. at 529 (emphasis in the original).  Critically, what is of vital importance in the requirements for successfully opposing a motion for summary judgment is the word “genuine. ”  Swarts v. Sherwin-Williams Co., 244 N.J. Super. 170, 178 (App. Div. 1990).  If the disputed issues of fact are insubstantial in nature summary judgment is proper and should be granted.