ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] May 21, 2018 – Correspondence from [...], Esq. to [...], Esq.  EXHIBIT  C  Relevant portion of the April 4, 2017 Transcript of Trial before the Honorable [...], P.J.Ch. Da475 **EXHIBIT D Relevant portion of the June 5, 2017 Transcript of Trial before the Honorable [...], P.J.Ch. (Da177)  **EXHIBIT E March 6, 2018 – Order executed by the Honorable [...], P.J.Ch. (Da288)
[brief] 2.  The Negligible Impact of an Alleged Defect on the Results Is a Permissible Consideration for Waiver or Cure (0017a).  Under the law, the [...] is permitted to take into consideration whether the disputed defect in question is consequential or not for purposes of determining whether a potential defect is waivable or curable.  *Terminal Const. Corp. v. Atl. Cnty. Sewerage Auth.*, 67 N.J. 403, 411 (1975); *Mountain Home Contractors v. United States*, 425 F.2d 1260, 1264 (Ct. Cl. 1970) (noting that the fact that a disputed contract item arising from ambiguity in the bid specifications was less than 0.5% of the total contract price was illustrative of its insignificance).
[brief] THE AGREEMENT’S ARBITRATION CLAUSE IS UNENFORCEABLE UNDER NEW JERSEY LAW (Pa5-7)  A.  The Wholesaler Agreement’s Arbitration Clause Is Invalid Because It Does Not Expressly Waive Appellants’ Rights To Access Courts When Appellants Are In A Much Weaker Bargaining Position To [...] (Pa5-7).  The arbitration provision in the Wholesaler Agreement violates New Jersey law and is therefore unenforceable.  While the trial court and Defendants contended that the Federal Arbitration Act (“FAA”) provides for enforcement of arbitration agreements in contracts, that preference is “not without limits. ”  Garfinkel v. Morristwon Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 132 (2001).  A court must first apply “state contract-law principles…[to determine] whether a valid agreement to arbitrate exists. ”  Hojnowski v. Vans Skate Park, 187 N.J. 323, 342 (2006).  This preliminary question underscores Restatement (Second) of the Conflicts of Laws § 188(2) (1971).  These contracts are to be evaluated according to their “relative importance with respect to the particular issue. ”  Id. the fundamental principle that a party must agree to submit to arbitration.  See Garfinkel, 168 N.J. at 132.  Under New Jersey law, the first step is to ask “whether the agreement to arbitrate all, or any portion, of a dispute is the product of mutual assent. ”  Kernahan v Home Warranty Adm’r of Fla., Inc., 236 N.J. 301, 319 (2019).  In this context, the Court cannot favor arbitration in determining whether a contract has been legally formed.  See Jaludi v. Citigroup, 933 F.3d 246, 255 (3d Cir. 2019) (“In applying state law at step one, we do not invoke the presumption of arbitrability. ”).  The Supreme Court found that “under New Jersey law any contractual waiver-of-rights provision must reflect that the partie[s] ha[ve] agreed clearly and unambiguously to its terms. ”  Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014).  Thus, an arbitration clause “in some general and sufficiently broad way, must explain that the [party] is giving up [their] right to bring [their] claims in court. ”  Id. at 447.  The clause must convey that “arbitration is a waiver of the right to bring suit in a judicial forum. ”  Id. at 444.  The ruling in Atalese has historically not been limited to consumer contract contexts, and the Supreme Court has never narrowed its applicability to exclude commercial contracts.
[brief] (10T124:16 to 126:20).  •  Though there were competing explanations offered for this transfer, the trial court resolved the factual dispute in Plaintiffs’ favor and rejected the defendants’ alternative explanation.  The trial court held that the defense theory, that [...] asked for these funds as a deposit toward the DGNS buyout so that he could use the money for an investment in India, did not hold up to scrutiny.  Two final arguments relating to [...]’s testimony warrant responses.  First, the appellants attack the trial court’s findings on the ground that [...] did not specifically testify as to his damage claim.  Not so.  [...] provided deposition testimony, which was part of the parties’ designations at trial concerning his claimed damages.  (Pa356-59; 2T 325:1 to 328:8; 360:25 to 364:10; 365:7-16; 509:17 to 510:8; 512:5 to 513:10).  [...] also testified at trial that he adopted [...]’s damage calculation in his report.  (6T80:21 to 81:20; 83:15 to 84:2).  In addition, [...] testified that he consulted with [...] concerning damages (23T75:15-23).  Despite the insinuation that this was improper, it was appropriate for [...]—a scientist and not an accountant—to rely on his forensic accounting expert in this misappropriation case to establish the basis for his damages.  (26T 55:14-20).  Second, the appellants argue that the trial court’s inclusion of certain transactions was improper because they occurred after [...] provided Exhibit S to [...], the balance sheets for the companies that ultimately formed the basis for [...]’s buyout offer.  (Da981-82; 1497-1500).  As [...] explained, many of these transactions were part of a broader series of step transactions that [...] used to move money from [...] and [...] into various conduit accounts, and then (sometimes after P-48 and P-50 were exchanged) into accounts that he, his wife, and the other defendants controlled.  (13T30:15 to 34:7).  In the end, the trial court had before it not just [...]’s testimony, but also his considered analysis of the businesses’ financial records (the only accounting expert to do so).  His analysis was corroborated in each instance by bank statements showing misappropriations to accounts the [...]s owned and/or controlled.  The lower court also evaluated the testimony of [...] and [...] against that of [...] and [...] and found the Plaintiffs’ to be credible.  By corollary, the trial court concluded that [...] was not credible, as confirmed by its statement that [...]’s explanations for the diversions that Plaintiffs identified were lacking.  (26T33:6-13).  The trial court’s decision must, therefore, be affirmed.
[brief] (21T 20 lines 22-25 and 21T 21, lines 1-3).  [...] then began to question [...] about the transmission or email that he sent to the insurance company requesting information.  [...] said he emailed [...] and was confused by the question asking for his communication to the insurance company.  [...] intervened and stated:  THE COURT: I guess that's what she's asking for.  Well, she had asked that from before, any and all faxes, emails, correspondence, et cetera between the insurance company and you.  And so, that -- we didn't see any of those and I know, you know, you probably don't think they're important because it's just- (21T 21 and 22).
[brief] For example, the Attorney General submitted the certification of [...], the chief administrative officer of the General Assembly.  The certification explains that second and third readings are “recorded in the Minutes of the General Assembly. ”  (Pa227-28 at ¶ 7.)  The certification then provided the Minutes of the General Assembly.  (Pa230-45.)  The Minutes show that upon substitution of A.6260 for S.49 in the Assembly, all three readings of S. were done on January 10, 2022 without the required twenty-four hours between second and third reading.
[directive] First, disorderly persons and petty disorderly persons offenses are predominantly prosecuted in municipal court where the State is mainly represented by a prosecutor3. municipal  However, discretion to waive forfeiture is reserved by the statute exclusively to the county prosecutor and the Attorney General.  Additionally, there is rarely any time delay between the date of conviction and sentencing date in municipal court as the municipal court judge generally sentences a defendant on the same day as the conviction is rendered.  It is anticipated in the statute that the forfeiture of office order and permanent bar to future government employment, if applicable, would be entered at the time of sentencing upon motion of the prosecutor.
[brief] Conversely, the Plaintiff contends that the PSA permits only one Estoppel Certificate, not multiple.  Plaintiff contends that its view is supported by the PSA’s explicit language, the timing provisions regarding the estoppel certificate in relation to other time periods specified in the PSA, as well as the overall circumstances.  Consequently, once the errors in Defendant’s construction are exposed it becomes evident that the arguments miss the mark.  Moreover, the same process makes patently clear that Plaintiff’s PSA interpretation is reasonable as the trial court concluded and thus the decision below should be affirmed.
[brief] Further, Respondent Township had no expert that contradicted the report and findings of [...].  Appellant testified that she had a very sharp pain in her ankle and it locks up, that in the morning when she wakes up she has to do exercises she was taught but her ankle is stiff anyway, that it doesn’t matter what time of day it is she still has that same issue.  (Pa153)  Appellant testified that she can’t go up and down the stairs without holding the railing because she would have pain in her ankle or her ankle would lock up.  (Pa153)  Appellant testified that her ankle regularly has a sharp pain and locks up and she is unable to put weight on it.  (Pa154)  The trial Court did reference that “the Supreme Court of New Jersey has found that injuries causing the loss of sight, smell, taste and muscle control satisfy the verbal threshold as well as injuries “that permanently would render a bodily organ or limb substantially useless but for the ability of modern medicine [to] supply replacement parts to mimic the nature function. ”  (Pa12-13)  However, the trial Court then erroneously found that the record did not demonstrate that Appellant suffered a permanent loss of bodily function that is substantial and only states that Appellant has “a lessened ability to perform certain tasks” and that “such “lingering pain” does not entitle Appellant to recover under the act.
[brief] To combat the "avalanche of litigation" generated by the AOM statute, the Supreme Court "declared in Ferreira that an accelerated case management conference should be conducted within ninety days of the filing of an answer to identify and address any and all issues concerning the [AOM] served or not served by the plaintiff."  Meehan, 226 N.J. at 229.  In Meehan, the Supreme Court pointed out that "[a]n effective Ferreira conference would probably have prevented [the] appeal" because "[t]he trial court pointedly declined to resolve the issues presented by [the] plaintiff."  Id. at 240, 141.  The Supreme Court reiterated "the need for a timely and effective Ferreira conference in all professional negligence actions" because "[t]he conference is designed to identify and resolve issues regarding the [AOM] that has been served or is to be served."  Id. at 241, 141.  In this case, a Ferreira Conference was held on August 5, 2024 – 52 days after the Defendant filed an Answer.
[brief] (Pa021)  [...] was also one of two shareholders in [...]  Plaintiff [...] was the other shareholder Id.  Plaintiff, [...] was admitted to the bar in 2006 and his current firm’s website advertises that his practice focuses on environmental litigation and general civil litigation.  [...] had always expected any disputes with Plaintiff [...] to be resolved through mediation, and failing that, arbitration (Pa022).  Plaintiff has always asserted that any dispute between Plaintiff and herself belonged in arbitration and not in Superior Court (Pa023).  The October 18, 2019, Law Firm Shareholders agreement was largely drafted by Plaintiff (Pa021).
[brief] 1.  Whether the trial court erred in holding that a) the arbitration provision in the [...] Pollution Policy does not require that [...] arbitrate this dispute; and b) the arbitration clause in the [...] Umbrella Policy does not mandate arbitration of this dispute.  2.  Whether the trial court erred in holding that [...] established by clear and convincing evidence that [...] intentionally waived its right to arbitration based upon its conduct in the case.  ARGUMENT
[brief] Respectfully submitted, [...]  ATTORNEY GENERAL OF NEW JERSEY  By: s/[...]______________  [...]  Deputy Attorney General NJ Attorney ID #34551989  [...]  Dated: July 3, 2024  [...]  [...]  Telephone: [...]  Of Counsel and On the Brief: [...], Esq. (ID #015051990)  [...]  Date of Submission: July 24, 2024  Reply Letter Brief on behalf of Petitioner-Appellant [...] IN THE MATTER OF FABIO COLOGNA
[brief] The Petitioner cites testimony by his long-time friend, [...], to the effect that he visited “every few weeks for dinner” and that the Court found [...]’s testimony was “credible. ” (Pb 10).  Ignored by the Petitioner is that the Court found such testimony “not persuasive. ” (Pa 25).  The Petitioner testified that he lived in other places “to improve his education” (Pb 11) and because it made his commute shorter for continuing his education in Delaware, even though it only saved him thirty minutes one-way out of an alleged four-hour commute.  (1T211-16 to 213-7).  The Petitioner acknowledged that he moved to [...] as a result of “marital problems. ” (1T220-5 to 17).  He also fails to note that he had a ten-year lease at an apartment in [...] between 2009 and 2019.  (1T224-3 to 18).  Utterly ignored by the Petitioner is his letter to the Decedent requesting to dissolve the marriage.
[directive] In such cases, if the prosecutor determines in accordance with the other provisions of Section 7 of this Directive to seek pretrial detention, the prosecutor shall argue at the pretrial detention hearing that, for practical and legal purposes, no condition or combination of conditions would reasonably assure the defendant’s appearance in court when required, the protection of the safety of any other person or the community, and that defendant will not obstruct or attempt to obstruct the criminal justice process.  In other words, the prosecutor shall argue that pretrial detention is authorized under the Bail Reform Law if the risk(s) posed by defendant’s release will remain serious and unabated due to the practical unavailability of a release condition that otherwise might have mitigated the risk(s).
[brief] [L. 2019, c. 157 (codified at N.J.S.A. 53:5A-10(e)(4)).]  Thus, under the plain language of the statute [...] is ineligible for the presumption or recalculation provided under the Ricci Act because he failed to file by July 8, 2021.  Further, while New Jersey pension statutes are construed liberally because of their remedial character, *Geller v. Dep’t of Treasury*, 53 N.J. 591, 597-98 (1969), “an employee has only such rights and benefits as are based upon and within the scope of the provisions of the statute. ”  *Francois v. Bd. of Trs., Pub. Emps.’ Ret. Sys.*, 415 N.J. Super. 335, 349 (App. Div. 2010) (citation omitted).  Here, the statute provides for the benefit if a retiree files for it within two years of the effective date of the Ricci Act, i.e., by July 8, 2021.  [...] did not file for the benefit within the time permitted by the statute, so even under a liberal construction, the statute expressly states he is ineligible for the benefit he now seeks.  Nevertheless, [...] argues that the limitation period in the statute should not be strictly applied because it “fails to advance the legislative purpose of the Ricci Act.
[brief] Geist Incident Data Type/Offense as of 3/6/2020 involving [...] Officer Report by [...] 2/20/2020 (Attached at Pa303)  Kohut Incident Data Type/Offense as of 3/6/2020 involving [...] (Attached at Pa302)  Officer Report by [...] 2/20/2020 (Attached at Pa022)  CAD Incident Report with Police Statuses [...]  2/20/2020  Use of Force Report by Officer Geist 2/20/2020 (Attached at Pa030)  Use of Force Report by Officer Kohut 2/20/2020 (Attached at Pa031)  Exhibit D to [...]’s Certification Image of CD with “[...] - BWC IMAGING  February 20th, 2020”
[brief] Thus, it is clear that Plaintiffs approached the claim with a reasonable belief in its validity, which should exempt them from punitive financial penalties designed for clearly baseless litigation.  A trial court’s decision awarding sanctions should be overturned when it “was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment. ”  McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 498 (App. Div. 2011) (quoting Masone, 382 N.J. Super. at 193).  See also Bove, 460 N.J. Super. at 146 (citing same standard).  In this case, the decision to sanction Plaintiffs and their counsel hinged solely on the absence of a subsequent transaction, which is an inappropriate factor for determining the frivolousness of a tortious interference claim because a subsequent transaction is not a requirement of the claim.
[brief] Id.  [...]’s first set of bylaws also created seven different “committees,” including a “Grounds Committee” with specified responsibilities: It shall be the duty of the Grounds Committee to pass on all building permits; to see that all properties in the community are kept neat, well painted and in good repair; and to make all arrangements for garbage collection, street repairs, grading and other matters incident to the management of the property.  (Da484).  As early as July 25, 1948 (the first regular meeting after establishment of the [...]), the Chairman of the Grounds Committee explained to the “members” in attendance that “any alterations made to buildings must be 1st approved by [...] and the [G]rounds Committee.  Then permission is granted to go ahead with the alteration .  . . .” (Da527) (emphasis added).  This is consistent with the Genesis Deed’s intent that the “property owners’ association” implement and enforce “rules” in conjunction with [...] having authority to approve or disapprove “any alterations made to buildings[.]” (Da53).
[brief] (ECF 65-1, at 2; ECF 66, Hr’g Tr. at 8:20-9:25.)  Indeed, [...] acknowledged early on that, because [...] wiped [...]’s company-issued laptop and cell phone upon her termination, [...]’s Salesforce data was being preserved—thus insinuating that Salesforce may be the main, if not the only, source of documents evidencing [...]’s activities with the [...] and [...].  (ECF 63, at 9-10.)  Knowing the importance of the Salesforce data, [...] indicated in both meet-and-confer correspondence and at the July 7 discovery conference that [...] was working with a Salesforce representative to track down the requested information and would be supplementing its initial production of six documents.  (ECF 73-6; ECF 66, Hr’g Tr. at 5-9.)  Despite agreeing during the July 7 discovery conference that (1) RFP No. 4 called for [...] to produce Salesforce documents for the [...] and Derby school district accounts, and (2) [...] would work with its Salesforce representative to supplement its production, [...] has not produced any additional documents.
[brief] After filing the complaint, I had a clearly legitimate fear of serving it as I had no written proof of an oral ~08/15/16 PTI agreement for [...].  I don’t think you can blame a plaintiff for waiting until the Statute Date to file.  They have a right to do so.  Prosecutors do it all the time.  Further, given all the past retaliation, there was a legitimate fear in filing early.  Even if the Judiciary did nothing (doubtful), what might the [...] have done – I do live there.  As it was, they “staked out” our house for a least three months after the arrest.
[brief] Further that argument is undermined by plaintiff’s engineer who testified the building was a part of the cap on the contamination and the balance of the cap would typically be clay or some other material.  As noted by the Borough the cost of remediation is not a factor to be considered in granting a (d) variance.  The possible remediation of neighboring properties while beneficial to those private interests are also not factors which are required to be weighed by the Board in evaluating the positive and negative criteria.
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[brief] Ocean Fireproofing, LLC v. 23rd St. Urb. Renewal JOF AAI III, LLC, No. A-0388-23, 2024 WL 2683968 (App. Div. May 24, 2024)  ..............................38  Potomac Ins. Co. of Illinois ex. Rel. OneBeacon Ins. Co. v. Pennsylvania Mfrs. Ass’n Ins. Co., 215 N.J. 409 (2013)  ............................................................................................24, 25 Owens-Illinois Inc. v. United Insurance Co., 138 N.J. 437 (1994)  .............................................................................................7, 24, 27  PPT Research, Inc. v. Solvay USA, Inc., 2021 U.S.Dist. LEXIS 127031 (E.D.Pa. July 7, 2021) ........................................17, 18  Shubert v. Wellspring Media, Inc (In re Winstar Communs., Inc.), 335 B.R. 556 (Bkrtcy. D. Del. 2005) ..................................................................17  Skuse v. Pfizer, Inc., 244 N.J. 30 (2020)  .............................................................................................12  PRELIMINARY STATEMENT  This appeal is from the order of the trial court, dated September 13, 2024 (the “Order”), denying Defendant [...]’s (“[...]”) motion to compel arbitration of Plaintiffs’ [...] and [...]’s (collectively “[...]”) claim for indemnity (“[...]’s Indemnity Claim”) arising out of the underlying litigation with [...]
[brief] Newburgh v. Arrigo, 88 N.J. 529, 544 (1982); see N.J.S.A. 2A:34-23(a).  In deciding the amount of a parent’s college contribution, “a trial court should balance the statutory criteria of N.J.S.A. 2A:34-23(a) and the Newburgh factors, as well as any other relevant circumstances, to reach a fair and just decision whether and, if so, in what amount, a parent or parents must contribute to a child’s educational expenses.
[brief] The Trial Court’s use of N.J.S.A. 55:19-81 to define abandonment in instead of another statutory definition was purposeful.  N.J.S.A. 40:48-2.12s3(b)(8) also provides criteria for vacant and abandoned properties, but had that definition been used, the Property would have satisfied N.J.S.A. 40:48-2.12s3(b)(8)(d), (f) & (g).  (See Da39 & Da44).  The Trial Court focused on “abandonment” as used in N.J.S.A. 55:19-81 because the Property was obviously not abandoned under that definition.  By claiming discontinuance of use is equivalent to abandonment, the Trial Court avoided application of criterion (b).  (T3, 51:15-21).  Plaintiff admits that that Trial Court “considered the policy implications” of designating a contaminated property as a redevelopment area.  (Pb14).  Policy considerations are for the Borough and not the Trial Court to decide.  A court is not permitted to substitute its judgment for that of the local officials.