ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ”  Selective Ins. Co., 416 N.J. Super. at 429.  In Selective Insurance, the insurer filed an action seeking a declaratory judgment that medical providers were required to provide information relevant to whether they violated the doctrine against the corporate practice of medicine and engaged in illegal self-referrals under the Codey Act.  Id. at 423-24.  This court held that “New Jersey’s PIP statute . . . provides a limited discovery remedy, permitting disclosure only to the extent delineated in the statute. ”  Id. at 430.  The statute permits discovery relating to the “history, condition, treatment, dates and costs of such treatment of the injured person. ”  Ibid. (internal quotation marks omitted) (quoting N.J.S.A. 39:6A-13(b)).  [...] has interpreted Selective Insurance to hold “that in PIP arbitrations, N.J.S.A. 39:6A-13(g) limits the exchange of discovery to information concerning a patient’s ‘history, condition, treatment, dates and cost of such treatment’ and the scope of this cannot be expanded. ”  *In re N.J. Healthcare Coal.*, Order No. A12-114, 2012 WL 6653982, at *10 ([...] Nov. 23, 2012) (Pa0497).
[brief] THE TRIAL COURT FAILED TO PROPERLY APPLY THE FACTORS REQUIRED FOR ADVERSE POSSESSION WHEN IT AWARDED OWNERSHIP OF THE STRIP TO THE DEFENDANT (Not Raised Below).  Any entry and possession of property owned by another which is (1) exclusive, (2) continuous, (3) uninterrupted, (4) visible, (5) notorious, even though under the mistaken claim of title, and (5) for the required period of time will support a claim for adverse possession.  Manillo v. Gorski, 54 N.J. 378, 386-387 (1969).  Although the trial court properly identified the required factors for an adverse possession claim, the court engaged in a faulty analysis of those factors based on the facts presented.  Moreover, the trial court failed to place the burden of proof for adverse possession on the Defendant and require a preponderance standard for that proof.  Patton v. North Jersey Dist. Water Supply Com., 93 N.J. 180, 187 (1983).  A.
[brief] But appellant knew what [...] took, knew that he had oxycodone in his home, and was familiar with the effects of opioids, enough so that he initially requested Narcan from [...].  [Pa54].  This was a step-by-step analysis of Appellant’s “evolving theory,” not a misstatement of fact.  Appellant’s attempt to obfuscate the decision ultimately reveals the real issue, which was Appellant’s evasiveness and failure to be forthright on the night of the Incident.
[brief] 2T at 46:3-16.  Section VII paragraph 9 of the Operative Agreement contains an arbitration clause that indicates in bold and ALL CAPS language, that “ARBITRATION IS MANDATORY” (Emphasis in Original).  164a at ¶9.  So that there could be no --- 3 1T refers to the November 8, 2024 Plenary Hearing Transcript, Volume I.  doubt that all claims and all disputes must be arbitrated, the arbitration clause further provides:  Any dispute or claim arising out of or relating to Employee's employment or any provision of this Agreement, whether based on contract or tort or otherwise (except for any dispute involving application of the injunctive relief) shall be submitted to arbitration in Hudson County, New Jersey, pursuant to the Employment Dispute Resolution Rules or the Commercial Arbitration Rules, as applicable, of the [...].  This Agreement shall be governed by the United States Arbitration Act.  An arbitration award rendered pursuant to this Section shall be final and binding on the parties and may be submitted to any court of competent jurisdiction for entry of a judgment thereon.  The parties agree that punitive damages may not be awarded in an arbitration proceeding required by this Agreement.  The parties shall share equally in the cost of the Arbitrator.  Each party shall bear the cost of its own experts, evidence and counsel in such arbitration proceeding; however, the parties further agree that the successful party in any such arbitration shall be entitled to recover its reasonable attorney's fees and costs.  [Ibid].  The arbitration clause provides that arbitration would be conducted in accordance with Employment Dispute Resolution Rules or the Commercial Arbitration Rules, as applicable, of the [...] ("[...]") and that a reasoned award would be rendered by a single arbitrator.  Ibid.  In accordance with New Jersey law, the arbitration clause also confirms that Respondent is knowingly waiving the right to a jury trial and is entering into the agreement voluntarily and knowingly, free from duress or coercion.  Id. at ¶10.  II.
[brief] See Klimowich, 86 N.J. Super. at 450.  [...]’s July 19, 2024 order is limited to permitting Plaintiff to question [...] regarding his sworn statements at the time of his guilty plea during his discovery deposition, “with admissibility of the same reserved for a later date. ”  Da446.  As set forth in Point II, below, [...] correctly decided that cross-examining [...] with his prior inconsistent statements falls within the bounds of permissible discovery under R. 4:10-2.  Even assuming arguendo [...]’s ruling were erroneous, there would be no “grave damage or injustice” from allowing the deposition questioning to go forward, particularly since [...] has not ruled on admissibility.
[brief] ]  Clearly, the judge’s statements here amounted to an unfounded rejection of credible support for this mitigating factor in the record.  Although at other points in the proceedings the trial court seemed to acknowledge [...] had mental health problems, in discussing mitigating factor four the judge dismissed the possibility of a mental health issue contributing to the commission of the underlying offense without any basis.  Despite the judge’s statement that “any of us” could do what the defendant did, most people who do not suffer from a legitimate delusional disorder do not live their lives wrapped in tin foil for fear of being stalked by imaginary figures trying to beam deadly radiation into their bodies.  Although a sentencing court is entitled to give a mitigating factor less weight in its discretion for credible reasons, it is not entitled to reject a mitigating factor outright when it is supported by the record.  State v. Dalziel, 182 N.J. 494, 504-05 (2005).  To the contrary, when there is support in the record for a mitigating factor, “[it] must be part of the deliberative process. ”  Id. at 505.  Accordingly, because the trial court failed to apply mitigating factor four when it was requested and adequately supported by the record, the matter must be remanded for a resentencing where that factor is considered.
[brief] *Pawlick v. New Jersey Auto. Full Ins. Underwriting Ass’n*, 284 N.J. Super. 629 (App. Div. 1995) (cancellation of an automobile policy under N.J.S.A. 17:29C-10); *Celino v. General Acc. Ins.*, 211 N.J. Super. 538 (App. Div. 1986) (same); *Bright v. T & W Suffolk, Inc.*, 268 N.J. Super. 220 (App. Div. 1993) (cancellation of workers compensation policy under N.J.S.A. 34:15-81); *Miller v. Reis*, 189 N.J. Super. 437 (App. Div. 1983) (cancellation of automobile policy); *Munoz v. N.J. Auto. Full Ins. Underwriting Ass’n*, 145 N.J. 377 (1996) (cancellation of automobile policy); *Romanny v. Stanley Baldino Constr. Co.*, 142 N.J. 576 (1995) (analyzing renewal and pricing of workers compensation policy); *Barbara Corp. v. Bob Maneely Ins. Agency*, 197 N.J. Super. 339 (App. Div. 1984) (non-renewal of fire insurance policy issued to car wash under N.J.A.C. § 11:1-5.5); *Kende Leasing Corp. v. A.I. Credit Corp.*, 217 N.J. Super. 101 (App. Div. 1987) (cancellation under the Insurance Premium Financing Act, N.J.S.A. 17:16D-1, *et seq.*, governing the cancellation of an insurance contract when an insured defaults in his obligations under a premium financing agreement); *Scott v. Jovil Constr., Inc.*, 2009 N.J. Super. Unpub. LEXIS 2947 (App. Div. Dec. 4, 2009) (addressing cancellation of liability insurance and holding whether an insurers’ notice effectively complied with N.J.A.C. § 11:1-20.2 presents an issue of fact).  Obviously, the cases relied upon by Plaintiffs do not address a situation common with many Wrap-Up Programs: programs where contractors are constantly being added and/or removed during the course of a multi-year project with no direct communications with the insurer issuing the policies that comprise the Wrap-Up and, critically, the contractors maintain insurance through their own insurance carriers.
[brief] *Vitamin Specialties Co. v. Vita Pure, Inc.*, CIVIL ACTION NO. 91-0455, 1992 U.S. Dist. LEXIS 12040, at *6 (E.D. Pa. Aug. 10, 1992) (citing *Genty v. Resolution Trust Corp.*, 937 F.2d 899, 910 (3d Cir. 1991); *United States v. Lemm*, 680 F.2d 1193 (8th Cir. 1982)) (emphasis added).  Here, the racketeering predicates upon which Appellants based their civil RICO claim did not demonstrate “a threat of continued criminal activity” because they involved a single solar project and a single dispute over ownership of development rights.  Where “Congress enacted RICO to prevent organized crime from infiltrating businesses and other economic entities,” here, the trial court properly prevented Appellants from wielding RICO like a cudgel against the [...] and convert a commercial dispute over a solar development project into an interstate criminal enterprise.  *See Vitamin Specialties*, 1992 U.S. Dist. LEXIS 12040 at *6 (citing *Genty*, 937 F.2d at 910).
[brief] In this case, the [...] has received a $2,000,000 payment from its designated redeveloper, [...], in return for the elimination of any density limitation and the relaxation of other requirements that had been included in the original redevelopment plan, and that were and remain applicable to every other developer within the redevelopment area.  The $2,000,000 payment is to be used, all parties agree, for the construction of a new senior center, which the Court found was justified because “a rational nexus existed between the payment and the redevelopment plan. ” (Pa81).  That was not however the basis for the arguments Defendants offered below to justify the payment and for this and other reasons, the Court erred.
[brief] J.L. 370, 373 (Sup. Ct. 1933) (in evaluating a defect subsequently cured, “It is suggested that there was a ‘mere technical irregularity’ and not a substantial variance, in the failure of the trucking company to conform to the requirements of the notice.  But this is not the case.  These provisions were designed to protect the municipality against irresponsible bidders.  Their obvious purpose was to compel the bidder to establish, before the award was made, his ability to perform the contract.  To permit one bidder to ignore these requirements would give him an advantage over the others, and to permit him to supply the deficiency later, and after the bids were opened, would open the door to fraud and favoritism, and defeat the statutory purpose of protection to the taxpayer.
[brief] Defendants claim that Plaintiff waived its right to appeal the Discovery Order, but fail to provide any legal authority to support their novel theories.  Aside from their meritless legal arguments, Defendants make incoherent claims and egregious statements that are patently false.  For example, Defendants claim that the trial court concluded that Plaintiff’s transactional attorney drafted the PSA, yet that claim is flatly contradicted by the Final Judgment.  Defendants also point to the fact that Plaintiff did not call its transactional attorney to testify at trial, but Defendants ignore that this decision was necessary given the resulting prejudice to Plaintiff absent the opportunity to cross-examine Defendants’ transactional and trial attorney, [...].  With respect to Defendants’ cross-appeals, Defendants’ arguments are true head-scratchers.
[brief] Pa196.  In [...], supra, the PBA filed a grievance when the County ceased paying a night shift differential to Detectives.  In or about 2002, the parties established a practice of awarding detectives a five percent salary differential in lieu of overtime.  The County paid detectives the five percent differential for six years.  The Arbitrator found that this differential was a past practice clearly established as an unwritten benefit not contained in the contract.  The County moved to vacate the Arbitration Award on the grounds that the Arbitrator exceeded the scope of his authority when he ignored clear and unambiguous contract language concerning night differentials and overtime payment.  The Appellate Division summarized the Superior Court’s decision to vacate the Arbitration Award, noting, in pertinent part:  [T]he “award must be vacated because the arbitrator ignored the express terms of the [CBA] by substituting a past practice for the express provisions applicable to overtime pay,” in violation of N.J.S.A. 2A:24-8(a).  Specifically, “[t]he [CBA] expressly contained provisions for overtime. ”  Thus, “[t]he arbitrator did not have to look any further than the contract to resolve the parties dispute. ”  The judge noted that although it is appropriate to consider past practices to help resolve an ambiguity in the language of the agreement, consideration of past practices is not appropriate where, as here, the agreement’s language and meaning were clear.  [...], [...] v. [...], Docket No.: [...] (App. Div. June 29, 2011).
[brief] .................................................................52  Mass. Mut. Life Ins. Co. v. Manzo, 122 N.J. 104 (1991) ..................................................................53, 54  Matter of N.J.A.C., § 11:1-20, 208 N.J. Super. 182 (App. Div. 1986) ...........................................36  Maxim Crane Works, L.P. v.  Zurich Am. Ins. Co., 642 S.W.3d 551 (Tex. 2022) .......................................................33  McClellan v. Feit, 376 N.J. Super. 305 (App. Div. 2005) ...........................................42, 43  Millbrook Tax Fund, Inc. v. P.L Henry Assocs., 344 N.J. Super. 49 (App. Div. 2001) ............................................43  N. Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561 (1999)  ..................................................................46  Palisades Ins. Co. v. Horizon Blue Cross Blue Shield of New Jersey, 469 N.J. Super. 30 (App. Div. 2021) ............................................49, 50 Skeete v. Dorvius, 184 N.J. 5 (2005) .....................................................................43, 44 Team Indus. Servs. v. Zurich Am. Ins. Co., 2023 U.S. App. LEXIS 31491 (10th Cir. Nov. 29, 2023) ......................33  Valley Nat’l. Bancorporation v. American Motorists Ins. Co., 316 N.J. Super. 152 (App. Div. 1998) ............................................38, 39 Welcome v. Just Apts., LLC, 2008 N.J. Super. Unpub. LEXIS 2466 (App. Div. July 11, 2018)  ..........35  Statutes & Other Authorities: N.J.A.C. § 11:1-20 ........................................................................passim  N.J.A.C. § 11:1-20.1 ....................................................................37  N.J.A.C. § 11:1-20.2 ....................................................................43  N.J.A.C. § 11:3-15.1 to -15.7 .......................................................43
[brief] The Trial Court also could have dismissed the matter on the basis of judicial estoppel.  The Trial Court did not apply judicial estoppel as it felt Appellants were not asserting causes of action that were inconsistent with those raised in the Chancery Action.  (Pa9 (Opinion)).  While the claims in both matters are basically the same, Respondent contends judicial estoppel is applicable for another reason: Appellants represented in the Chancery Action that the right to assert refiled claims was limited to a sixty-day period whereas Appellants now assert that their right to assert refiled claims has no such limit.  Therein lies the inconsistency that triggers judicial estoppel.
[brief] Both the vehicle’s owner’s manual and Plaintiff’s experts’ testimony confirm this fact.  *See* Pa159, 163, 186, 220-21.  With or without LKAS or LDW on the subject vehicle, [...] was required—as every driver is—to safely operate it. \(^7\)  **Second**, as the trial court correctly explained, [...] did not have a duty to incorporate every possible technology on the vehicle.
[brief] The Supreme Court of New Jersey has stated, “Where the subject matter of the inquiry reaches concerns that transcend those of the individual litigants and implicate matters of general administrative policy, rule-making procedures should be invoked. ”  Metromedia, Inc. v. Dir., Div. of Tax’n, 97 N.J. 313, 330-31 (1984) (internal citations omitted).  Furthermore, “[t]he procedural requirements for the passage of rules are related to the underlying need for general fairness and decisional soundness that should surround the ultimate agency determination. ”  *Id.* at 331 (internal citations omitted).  “These procedures call for public notice of the anticipated action, broad participation of interested persons, presentation of the views of the public, the receipt of general relevant information…and the opportunity for continuing comment on the proposed agency action before a final determination. ”  *Id.* at 331 (citing N.J.S.A. 52:14B-4).  “When government action depriving a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner.  This requirement has traditionally been referred to as procedural due process. ”  *Myers v. County of Somerset*, 515 F. Supp. 2d 492, 505 (D.N.J. 2007).  By failing to adhere to the rulemaking policies set forth in the APA when it issued the Bulletin, the Department violated the procedural due process rights of reciprocal exchanges, their AIFs, and other similarly situated institutions.
[brief] (24T52:7-10)  As defendants’ brief illustrates, the errors in this case warrant a reversal of the entire judgment entered against them.  However, under any circumstances, the trial court’s reliance upon transactions that occurred clearly outside the statute of limitations requires a substantial reduction of any judgment.  The record reflects that the court was aware of the statute of limitations applicable to plaintiffs’ conversion and breach of contract claims (24T52:7-10) as well as the fact that some of plaintiffs’ claims rested upon transactions that occurred before the limitations period.  For example, during oral argument, the court stated:  I know it is argued now somehow under the breach of contract theory or that we should go back to the 2007 as opposed to just the ‘14 agreement.  But at a minimum we should look from ’14 on because it is within the statute of limitations.  I know it is raised as a standing issue with the conversion claims and so forth.  [1T57:8-15]  The trial court cited transactions totaling $5,744,717.85 that plaintiff’s expert contended were improper and awarded plaintiffs compensatory damages for one-half that amount, based upon the premise that one-half of those amounts should have been distributed to [...].  However, nearly half of that $5.7 million number is based on transactions that occurred more than six years before the initial complaint was filed in this action.  Indeed, the court included a transaction for $2 million, which occurred in 2008, nearly twelve years before the complaint was filed.  The judgment was entered on counts alleging conversion (Counts 5, 6), breach of contract (Counts 7, 8), breach of covenant of good faith and fair dealing (Count 11), and unjust enrichment (Counts 12, 13).  These claims are all governed by a six-year statute of limitations.  N.J.S.A. 2A:14-1; Dynasty Bldg. Corp. v. Ackerman, 376 N.J. Super. 280, 286-87 (App. Div. 2005) (applying a six-year statute of limitations to claims of conversion and breach of fiduciary duty); Kopin v. Orange Prods., Inc., 297 N.J. Super. 353, 373-74 (App. Div. 1997) (N.J.S.A. 2A:14-1's six-year limitations period applicable to quasi-contract claims, including unjust enrichment).
[brief] In contending that the Chancery Division applied the incorrect standard, the Petitioner makes the remarkable argument that the standard for proving undue influence is merely the preponderance of the evidence, and not clear and convincing evidence, citing *Estate of Ostlund*, 391 N.J. Super. 390, 403 (App. Div. 2007).  (Pb 18).  The Appellate Division in *Estate of Ostlund* said no such thing.  That case did not involve a claim of undue influence in making a will, but rather, the “disposition of a joint bank account on the death of one of the parties to the account and the right to certain checks payable to decedent that were deposited to the joint account after decedent’s death. ”  391 N.J. Super. at 393.  It rested upon the application of the Right of Survivorship statute (N.J.S.A. 17:16I-5) that applies to Multiple-Party Deposit Accounts.  From this irrelevant decision, the Petitioner selects the following passage in support of his bizarre standard of proof argument:  In addition to the statutory test set forth in the Multiple–Party Deposit Account Act discussed above for determining ownership on death of a joint bank account, our courts have set forth in *Pascale v. Pascale*, 113 N.J. 20, 549 A.2d 782 (1988), and in *In re Estate of Penna*, 322 N.J.Super. 417, 731 A.2d 95 (App.Div.1999), an alternative basis to challenge the ownership of a joint survivorship account on the death of one party.  Those cases provide that, if the challenger can prove by a preponderance of the evidence that the survivor had a confidential relationship with the donor who established the account, there is a presumption of undue influence which the survivor donee must rebut by clear and convincing evidence.  391 N.J. Super. at 401 (emphasis added).  However, whether a survivor had a confidential relationship with the donor of a Multiple-Party Deposit Account has nothing to do with the instant case, and of course, does not represent the burden of proof in proving undue influence in making a will.  As noted by the New Jersey Supreme Court, the burden of proof at trial to show undue influence is indeed the standard of “clear and convincing” evidence.  *In re Niles Trust*, 176 N.J. 282, 300 (2003).  This is because the act of undue influence is a type of fraud.  Id. at 299.  The Petitioner’s argument to the contrary can only be construed to have been advanced in bad faith.
[brief] If anything, the use of the indefinite article in these two sentences followed by the definite article ‘the’ in the third sentence – “upon receipt of the executed Estoppel Certificate, Seller shall promptly deliver a copy thereof” – buttresses Plaintiff’s construction only one estoppel certificate is to be provided.  Likewise, and as was recognized by the trial court, the use of the indefinite article ‘an’ in relation to Acceptable Estoppel Certificate provides no support for Defendant’s argument.  Defendant argued per paragraph 13.10  Plaintiff’s obligation to close was contingent on receiving an Acceptable Estoppel Certificate.  This meant multiple estoppel certificates could be provided, as long as the one presented at closing was an Acceptable Estoppel Certificate.  [...] properly observed “As an initial matter, the use of the article “an” was necessary as a syntactical matter, because if the certificate delivered by the tenant were not acceptable, there would be no Acceptable Estoppel Certificate.
[brief] ”  Id. at 21–22.  [...], PP, AICP, provided the planning testimony in support of the application before the Defendant Board.  He explained that the application involved “sort of unique circumstances” as a result of the tract being split by the municipal boundary line, and that “the sole reason the Applicant requires a D-1 variance is that the proposed building in this instance is located entirely within the limits of [...]. ” (2T 74:12-20).