ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] In an attempt to obfuscate the Trial Court’s mistakes in both law and fact in confirming the Award, [...] mischaracterizes New Jersey law on the standard for vacating an arbitration award and discusses red herring issues that have no bearing on the validity of the Award itself.  While the grounds for declining to confirm an arbitration award are narrow, they are not limited to instances of arbitrator fraud and corruption.  It is sufficient that that the Arbitrator clearly and irrationally disregarded the written terms of the parties’ PTA.  Further, there is no support whatsoever for [...]’s argument that the Award was based on some unwritten amendment to the PTA that was purportedly formed with the parties’ mutual assent.  The Award contains no discussion of any such amendment.  [...] also improperly conflates the distinct and alternative grounds requiring the Court to modify the Award, and instead lumps together the different mathematical and transcription errors and erroneously claims that the Court may only correct “simple” errors.  [...], however, ignores the fact that correcting these errors requires the Court only to either perform simple mathematical operations or properly transcribe EGPs from the record to the Award.  Finally, [...] fails to respond to [...]’s arguments regarding its setoff claim, i.e. that [...] is not seeking a substantive ruling on the merits of its claims concerning nonpayment on the Hackensack Project but rather the imposition of a provisional setoff of its claims from the Award to avoid an indisputable windfall to [...].  [...] ignores the Trial Court’s finding and recycles its previously asserted arguments, incorrectly asserting that [...] is not allowed to assert a counterclaim in a summary action (which is false) and [...] is trying to debate the merits of the claim in this forum (which it is not).
[brief] Rockaway Shoprite, 424 N.J. Super. at 344; Wolf, 182 N.J. Super. at 292-96.  It is not meant to apply to Ordinance No. 13-2022, which adopts a redevelopment plan subject to N.J.S.A. 40A:12A-7(c) that involves only a land use consistent with longstanding permissible zoning.\textsuperscript{11}
[brief] These independent duties are also well-established by statute.  In the case of [...], N.J.S.A. 14A:6-14, for example, imposes an independent duty of good faith upon corporate directors and officers.  As to [...], N.J.S.A. 42:2C-39 imposes on LLC members fiduciary duties of loyalty and care.  As this Court previously explained, the existence of a fiduciary relationship between parties creates an “independent duty imposed by law” sufficient to permit imposition of a tort remedy separate from a contract remedy.  Hirsch v. Phily, 4 N.J. 408, 416 (1950) (holding personally liable officers of corporation who personally participated in conversion of proceeds of accounts receivable assigned to plaintiff); see Estate of Barry Gimelstob v. Holmdel Fin. Servs., 2021 N.J. Super. Unpub. LEXIS 5, at *36 (App. Div. Jan. 4, 2021); Pilkington N. Am., Inc. v. Mitsui Sumitomo Ins. Co. of Am., 420 F. Supp. 3d 123, 136 (S.D.N.Y. 2019) (existence of special relationship akin to a fiduciary duty was sufficient to overcome economic loss doctrine); CLI Interactive, LLC v. Diamond Phil's, LLC, 2023 U.S. Dist. LEXIS 21116, at *19 n.15 (D.N.J. Feb. 8, 2023) (defendants’ argument that plaintiff’s conversion claim was barred by the economic loss doctrine failed because tortious conduct (*i.e.*, conversion) was extrinsic to the contract).  C.
[brief] B.  The Trial Court Erred By Enlarging the Statute of Limitations Applicable to [...]’s Claims and Permitting [...] to File Her Otherwise Time-Barred Claims.  (Da515-516; 3T12-13.)  Pursuant to Rule 4:69-6, the statute of limitations for challenging a planning board’s decision is forty-five days.  See Rule 4:69(a) (“No action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to review, hearing or relief claimed . . .”); Rule 4:69(b)(3) (providing that the 45-day limitation period applies to actions seeking to “review a determination of the planning board[.]”)  The 45-day time frame set forth in Rule 4:69-6 “is designed to give an essential measure of repose to actions taken against public bodies. ”  Washington Twp. Zoning Bd. v. Planning Bd., 217 N.J. Super. 215, 225 (App. Div.), cert. den., 108 N.J. 218 (1987).  That time limitation is specifically “aimed at those who slumbered on their rights. ”  Id.  It is undisputed that, pursuant to R. 4:69-6, [...] was required to commence an action by no later than November 27, 2022 – 190 days prior to the date she filed a motion to intervene.  Notwithstanding the untimeliness, the trial court elected to “relax” the 45-day requirement, pursuant to R. 4:69-6(c), and permit [...] to file and pursue her otherwise time-barred claims.  That decision was plain error and should be reversed.
[brief] \(^8\)  The court found mitigating factor 8 at sentencing but this mitigating factor does not appear on the judgment of conviction.  (12T 36-13 to 18; Da 25)  Thus, if the sentence is not vacated and remanded for resentencing, the judgment of conviction must be amended to reflect the mitigating factors the court actually found.  When imposing a sentence, a court must consider the applicability of the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1 to determine the length of a defendant’s prison term within the available range.
[brief] The [...] is a municipal agency serving as an arm of the [...], responsible to the [...] acting pursuant to the MLUL by reviewing applications for development and holding hearings for the same, as was plainly intended by the [...] when the agency was established. \(^5\)  It is beyond legitimate dispute that [...] submitted a complete application to the [...] – a municipal agency and arm of the [...] – before the Ordinance was passed, thereby triggering the TOA Rule.
[brief] [...] also self-reported to have taken 2 Percocet pills which would be insufficient to cause an overdose.  T4 26:11-20, 29:17-70.  As to Appellant’s involvement, there is no evidence (or charge) that he maintained “a cache of various pills at his home. ”  Instead, Respondent’s witnesses affirmed there was nothing illegal or improper as to Appellant having been prescribed pain medication for his job related injury.  T1 164:8-14; T2 52:3-6, 67:5-68-1.  Also, no competent evidence was adduced that Appellant improperly obtained, abused or shared his medication.  T1 164:8-14; T2 52:3-6, 67:5-68:1; T1 164:8-165:5.  As noted, the Penalty section of the Decision includes a determination that Appellant suffered from an “opioid addiction”.
[brief] If procedurally the appellate division prefers that [...] file a motion for reconsideration of the prior Appellate Decision, we are happy to file same.  However, the Appellate Division has the authority to manage and direct proceedings and for efficient judicial administration, the Appellate Division has the flexibility and discretion to review this case and address the merits of this appeal, at this time, even if there are procedural irregularities and there was no prior remand order.  Either way, the extraordinary circumstances of this matter support the fact that the Appellate Division should vacate judgment and permit [...] to redeem to ensure a just result is reached.  Under the circumstances the Court should be extremely flexible in situations like this regarding loss of equity especially since the Plaintiff is not prejudiced by permitting redemption and Plaintiff will still receive all amounts due plus hefty interest on its investment.  [...] will be greatly prejudiced if foreclosure judgment is not vacated.  The severe consequences of Plaintiffs foreclosure in this case are exactly what the Supreme Courts are confirming is unlawful and have stopped.
[brief] Appellants-Plaintiffs [...] and [...] (“Appellants”) brought this appeal based on Respondent-Defendant [...]’s (“Respondent”) failure to register [...] as a charity with the State of New Jersey.  Respondent assisted in forming the corporate entity on October 3, 2008 but did not file and register Merlin’s Kids as a charitable entity with the Consumer Affairs Division of the Attorney General’s Office.  That failure did not have any consequences until December 18, 2020, when the Attorney General filed a complaint against Appellants based, in part, on their failure to register Merlin’s Kids as a charitable entity.  Despite these facts, the Law Division dismissed Appellants’ complaint as barred by the statute of limitations for a legal malpractice claim, which runs for six years.  This is manifestly unjust and inequitable.  Respondent’s inaction—by failing to register Merlin’s Kids as a charity—set a metaphorical landmine for Appellants that they only stepped on when the Attorney General’s office filed the action against them in December 2020 (in which Appellants continue to defend themselves four years later).  Because Respondent’s negligence did not cause any damages to Appellants from 2008 to 2020, Appellants must have the right to pursue their claim for legal malpractice as against Respondent.  To bar them from doing so—effectively because the Attorney General did not file the action against Appellants within the first six years of Merlin’s Kids’ operations—is an inflexible, inequitable result and runs counter to established case law in the State of New Jersey.  LEGAL ARGUMENT I.
[brief] The trial court further erred by making credibility and factual determinations that are the sole province of the jury.  The trial court imprudently relied extensively on the certification of Defendants’ underwriter in concluding that the “omission” of the OAE Proceedings in the Policy Applications was material and that, if reported, Defendants would not have issued the Policies.  These factual determinations were premature as Plaintiffs were improperly deprived of the opportunity to depose Defendants, even though three months remained before the Discovery End Date.  LEGAL ARGUMENT I.
[brief] [...] says “the situation in [...] from 20 years ago” is different now, but in those twenty years and up through the midpoint review, in [...]’s own words, “no affordable housing units have been physically rehabilitated or constructed within the Borough. ”  545a.  [...], having failed when given the opportunity to implement a plan for realistically securing affordable housing with respect to the seven off-site units, should have been ordered to adhere to the only plan that ever existed for the construction of the seven off-site units; the plan that undisputedly existed at the time the judgment was entered; and the only plan that has a realistic opportunity to lead to the actual construction of the affordable housing envisioned by the court.
[brief] **T&M Memo**:  [...] argues that the T&M Memo was not credible due to a subsequent email that was circulated after the memo was drafted.  As explained in Plaintiffs’ original brief, this email does not amount to a correction in the location of the settlement.  To begin with, the person that sent that email, which allegedly corrects the location of the settlement, was not the same person that wrote the memo.  (Pa1191); (Pa1192).  The memo was prepared by [...] of [...] but the email was sent by [...] of [...] (Pa1191); (Pa1192).  Simply put, the memo says what it says; that the pavement at the north approach exhibited “significant settlement. ” (Pa1193).  In fact, the November 17, 2017 paving records reinforce that the location of the settlement described in the memo was accurate.  Those paving records state that paving was performed to correct the settlement at the southbound approach to the bridge in the left lane.  (Pa1396); (Pa1397).  At best, the subsequent email merely creates an inconsistency and therefore a genuine issue of material fact, however, it does not make the memo inaccurate as a matter of law.
[brief] If defense counsel files a motion to dismiss after the 120–day deadline and before plaintiff has forwarded the affidavit, the plaintiff should expect that the complaint will be dismissed...”)  Moreover, even if it were true that the N.J.S.A. 2A:53A-28 sworn statement need not be filed within the sixty days required to provide an Affidavit of Merit, it is not any failure to provide discovery from which a plaintiff may evoke the provision of N.J.S.A. 2A:53A-28.  Rather, it is only relevant when a defendant withholds “medical records or other records or information having a substantial bearing on preparation of the affidavit[.]”  N.J.S.A. 2A:53A-28.  This is an important distinction.  This Court in Scaffidi v. Horvitz, 343 N.J. Super. 552, 559 (App. Div. 2001) specifically construed N.J.S.A. 2A:53A-28 “to require a plaintiff to identify with specificity any medical records or other information he believes are needed to prepare an affidavit of merit, in order to trigger the running of the forty-five day period for a response. ”  Scaffidi, 343 N.J. Super. at 559, (emphasis added.)  The reason for that requirement is that Plaintiff “may request a great variety of documents to assist in the preparation of a case that are not essential for the preparation of an affidavit of merit” and that it would “generally would be difficult, if not impossible, for a defendant to distinguish between documents that have a substantial bearing on preparation of the affidavit of merit and documents that may simply aid the plaintiff in the eventual proof of a case at trial.
[brief] See Saunders v Collabella, Inc., 2021 U.S. Dist. LEXIS 143237, *4 (D.N.J. 2021) (Ja93-Ja97)  State courts have similarly found that on a motion to compel arbitration, a court must first apply state contract-law principles to determine whether a valid agreement to arbitrate exists, and then evaluate whether the particular claims at issue fall within the arbitration clause’s scope.  See Hirsch v Amper Financial Services, LLC, 215 N.J. 174, 187 (2013)  In determining whether a valid arbitration agreement exists, a court must first decide whether to use the motion to dismiss or the summary judgment standard of review.  See Schultz v Midland Credit Mgmt., 2019 U.S. Dist. LEXIS 79889 (D.N.J. 2019) (Ja103-Ja114)  New Jersey courts have clarified the standards to be applied to motions to compel arbitration, identifying the circumstances under which district courts should apply the standard for a motion to dismiss, and those under which they should apply the summary judgment standard.
[brief] The only hint that Defendants made as to prejudice in this matter was their inability to locate the witness, [...].  Defendants were served with this lawsuit in September of 2020 and they did not seek to depose [...] until July of 2022.  If the Defendants identified a reason why they waited twenty-two months after the filing of the lawsuit to seek to depose [...], they have not set it forth in their papers nor have they set forth any plausible difference it would have made had [...] amended the R.4:5-1 statement in the underlying action.  Pursuant to R. 4:5-1 in the underlying action, the Court, in its discretion, would decide whether or not to notify [...] if the R. 4:5-1 statement were amended.
[brief] POINT VII  APPELLANT PLED THE CAUSE OF ACTION OF RETALIATION WHICH RESULTED FROM APPELLANT ENGAGING IN PROTECTED ACTIVITY WHICH INVOLVED VIOLATION OF THE SCHOOL POLICY WHICH PROHIBITS DISCRIMINATION, YET THE TRIAL COURT SPENT A GREAT DEAL OF TIME REJECTING THIS CAUSE OF ACTION  Pa294, Pa394 48 POINT VIII [...] WORKED AS THE SUPERINTENDENT OF SCHOOLS AND WAS ON NOTICE FROM APPELLANT THAT SHE WAS RECEIVING DIFFERENTIAL TREATMENT AND FELT THAT THERE WAS A BIAS AGAINST HER AND FAILED TO ADDRESS HER CONCERNS WHICH HE WAS ON NOTICE OF Pa1 52 POINT IX PUNITIVE DAMAGES WERE WARRANTED IN THIS MATTER AND THE COURT REJECTION OF THIS REQUEST SHOULD BE REVIEWED BY THE APPELLATE COURT AND REVERSED BASED ON THE FACTS DELINEATED IN THIS MATTER Pa1, Pa211 54 CONCLUSION 56 | CASES | PAGES | |----------------------------------------------------------------------|-------| | Anderson et al v. Liberty Lobby, Inc. et al, | 15 | | 477 U.S. 242 (1986) | | | Baker v. National State Bank, | 54,55 | | 161 N.J. 220 (1999) | | | Branch v. Cream-O-Land Dairy, | 21 | | 459 N.J. Super. 529 (App. Div. 2019) | | | Brill v. Guardian Life Insurance Company of America, | 14,15,22 | | 142 N.J. 520 (1995) | | | Cardenas v. Massey, | 53 | | 269 F.3d 251 (2001) | | | Carmona v. Resorts Int’l. Hotel Inc., | 48 | | 189 N.J. 354 (2007) | | | Cichetti v. Morris County Sheriff’s Department, | 53 | | 194 N.J. 563 (2008)
[brief] A member or retiree shall not be eligible for the presumption or recalculation under this subsection unless within two years of the effective date of this act, P.L.2019, c.157, the member or retiree files a written and sworn statement with the retirement system on a form provided by the board of trustees thereof indicating the dates and locations of service.  [...] was denied the ability to register for the Ricci Act and apply for amended benefits because he did not submit his registration form prior to July 8, 2021.
[brief] The above excerpt from the transcripts clearly demonstrated to the Trial Court that the [...] did not limit the rehearing to a single evening or any set duration at all.  (Pa500-501).  Though the Board Attorney expressed a hope that the rehearing could occur in two (2) hours on the evening of August 22, 2022, the [...] acknowledged that this might not be possible at the outset of the rehearing, indicated that the rehearing would be continued to September 12, 2022 if necessary and (in fact) allowed the rehearing to continue without limitation on September 12, 2022.
[brief] THE GRANT OF A LIFE ESTATE WITHOUT RIGHTS OF ALIENATION IS UNEQUITABLE AND AN ABUSE OF DISCRETION (P43a to 44a)  In the alternative, the Court’s grant of a life estate in favor of Petitioner should be set aside in favor of a more just allocation of assets.  The Court found that Petitioner has sufficiently demonstrated marital contributions primarily in the form of physical labor and attachment of Petitioner’s name to certain documents for the benefits of Decedent.  (P43a).  The Court impressed the trust after finding he had an interest in the Estate assets due to Petitioner’s veteran status, his income, his assistance in Decedent growing her Avon business for nearly two decades and the physical labor he performed to improve and maintain the Home.  (P43a).  Yet, when impressing a constructive trust, the Court granted the Petitioner a life estate in the Home with restrictions on alienation in that he is not free to sell mortgage or otherwise alienate that interest. (P43a).  There is no rational basis for restricting Plaintiff’s interest in his home to a life estate that he cannot mortgage, sell or otherwise alienate.  The Court did not rely on any appraisal of the Home or the other assets of the Estate or place any value on the contributions that Petitioner invested in his long marriage to the Decedent.  The restrictions are significant, in that they affect a fundamental property right and significant aspects of the manner in which property can be used that have been found to be unreasonable as a matter of public policy.  Highway Holding Co. v. Yara Engineering Corp., 22 N.J. 119, 133 (1956).  The grant of the life estate without rights of alienation is unreasonable, unjust and arbitrary, warranting that it be set aside.
[brief] Moreover, like Hooper, the indemnification provision in Oscar Gruss was followed by a provision giving defendant the right to notice of any indemnification claim and an opportunity to assume Plaintiff’s defense thereof, and a provision requiring that defendant obtain the prior written consent of Plaintiff before settling any lawsuits.  The inclusions of these provisions indicated to the court that the claims contemplated by the subject indemnification provisions contemplate only third-party claims.  Such is not the case in this matter.  The other cases that [...] cited in support of its proposition that [...] may not collect its attorney’s fees pursuant to litigation brought by the parties to the contract are similarly unavailing.
[brief] Section c. of N.J.S.A. 4:22-24 provides that “‘[b]ait’ means to attack with violence, to provoke, or to harass an animal with one or more animals for the purpose of training the animal for, or to cause an animal to engage in, a fight with or among other animals. ”  And N.J.S.A. 4:22-15 mentions that “[a]s used in this article . . .  ‘[a]nimal’ or ‘creature’ includes the whole brute creation. ”  Applying those definitions to the language of the statute — and as the trial court correctly found — a person of common intelligence would reasonably understand what conduct is prohibited by N.J.S.A. 4:22-24a(2).
[brief] Following their anachronistic Nestle case, Plaintiffs argue that Rule 4:10-2(a) permits such disclosure because it also limits the circumstances under which parties can object to discovery on admissibility grounds.  Pb17, 36.  But as Defendants explained (Db33-34), that provision does not displace “relevance” as the “general standard of discoverability. ”  Pressler & Verniero, supra, cmt. 1 on R. 4:10-2(a).  It means only that if a document is relevant, it must be produced even if not itself admissible—because, for instance, it involves hearsay—so long as the production is “reasonably calculated to lead to the discovery of admissible evidence. ”  R. 4:10-2(a).  But if the document itself is not even relevant—that is, if it has no “tendency in reason to prove or disprove any fact of consequence”—a plaintiff has no grounds to obtain it in discovery.  R.L., 402 N.J. Super. at 408.¹  Plaintiffs’ remaining authorities are even further afield.
[brief] “A verdict sheet is intended for recordation of the jury’s verdict and is not designed to supplement oral jury instructions. ”  State v. Gandhi, 201 N.J. 161, 196 (2010).  This Court’s inquiry focuses “on whether the jury understood the elements [of the offense] as instructed by the judge, and was not misled by the verdict sheet. ”  Id. at 196-97 (brackets added).  So long as (1) the court’s oral jury instructions “were sufficient to convey an understanding of the elements to the jury,” and (2) the verdict sheet was not misleading, then “any error in the verdict sheet can be regarded as harmless.
[brief] (Raised Below: Pa8-Pa11; Pa20-Pa29)  Tax exemptions are permitted by the Constitution (N.J. Const., art. VIII, § 3, ¶ 1) and legislative enactment, and are recognized by the Supreme Court as a critical tool for promoting affordable housing.  See S. Burlington Cty. N.A.A.C.P. v. Mount Laurel Twp., 92 N.J. 158, 265 (1983) (“Mount Laurel II”).  In Mount Laurel II, the Court required that municipalities use every avenue available, whether financial or otherwise, to assist affordable housing developers:
[brief] The Facebook post that is the subject of Count 7 was posted from Respondent’s public Facebook account on November 19, 2021 – after she had already announced she won her seat on the Board.  (Ca290).  This post contained a picture of [...], a vigilante who shot three men with an illegally possessed AR-15-style rifle during civil unrest in Kenosha, Wisconsin in August of 2020, killing two of them.  (A more detailed account of the record on this issue can be found at Ca237-239).  The men Rittenhouse shot were protesting the shooting of a Black man – [...] – at the hands of police.  Rittenhouse is closely associated with White Supremacy.  (Ca238 at fn3 and fn4).  The post that makes up Count 7 of the Amended Complaint celebrated the “not guilty” verdict at Rittenhouse’s homicide trial, and contained the words “Thank God for true justice. ” (Ca290).  This is precisely the type of transparently racist Facebook post that the School Ethics Commission has repeatedly found to violate N.J.S.A. 18A:12-24.1(e) of the School Ethics Act.