ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Defendant further contends that the Alabama Supreme Court’s decision in *Alltel Corp. v. Rosenow*, 2014 Ark. 375 (2014) differs from New Jersey law.  The *Alltel* court assessed the arbitration agreement as a separate undertaking by and between the parties for which genuine mutual assent was required.  Defendant briefs that Alabama law differs from New Jersey law on “mutuality,” but Defendant is incorrect.  In *Kernahan v. Home Warranty Administrator of Florida, Inc.*, 236 N.J. 301, 319 (2019), the New Jersey Supreme Court wrote:  In this state, when called on to enforce an arbitration agreement, a court’s initial inquiry must be -- just as it is for any other contract - - whether the agreement to arbitrate all, or any portion, of a dispute is “the product of mutual assent, as determined under customary principles of contract law. ”  *Atalese [v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430]*, 442 [(2014)] (internal quotation marks and citation omitted).  In its hurry to distinguish *Alltel* from New Jersey law, Defendant confuses the “mutual assent” -- a bedrock, unyielding principle of contract formation and enforceability -- with the common law concepts of principles of “mutuality of obligation” or “mutuality of remedy,” both which have come under fire in more modern contract law.  [*See Defendant’s Brief, pp. 16-17, citing Fleischer v. James Drug Stores*, 1 N.J. 138 (1948) (addressing mutuality of obligation) and Martindale v. Sandvik, Inc., 173 N.J. 76, 87 (2002) (addressing mutuality of remedy)].  This third great mistake infects every discussion Defendant advances over “mutuality. ”  Defendant simply collapses these distinct concepts under the general term of “mutuality. ”  Defendant then blurs these distinct concepts even further by claiming that Plaintiff cannot attack the contract on the basis of mutuality.  In truth Plaintiff has argued throughout that genuine mutual assent is lacking because the so-called arbitration provision is imposed by way of a pre-printed consumer contract of adhesion offered on a take-or-leave-it basis.  See Muhammad v. County Bank of Rehoboth Beach, Delaware, 189 N.J. 1, 16-17 (2004).  See also Appellant’s Brief, pp. 15, 21-22; Pra12 (Plaintiff’s Brief Below)]¹.  (c)  Defendant Ignores Meaningful Cases Due to Different “Facts” (Pa1-Pa16)
[brief] On June 8, 2023, the Appellate Court denied the appeal stating there was not adequate proof that [...]’s loan was approved and [...] did not properly certify and show proof to substantiate his hardships and did not certify as to why he waited 18 months.  (Da14)  However on May 25, 2023 the US Supreme Court’s decision in Tyler v. Hennepin County, 598 U.S. 631, 143 S. Ct. 1369, 215L.Ed. 2d 564 (2023) declared a taxing authority’s confiscation of a property owner’s equity violated the Fifth Amendment Takings Clause.  (Da29)  As the Court and all parties are aware, the NJ Appellate Division in light of the US Supreme Court decision in Tyler v. Hennepin County has made it clear that it is unconstitutional for a tax lien holder, who is already earning hefty interest, to also steal an owner’s equity in their homes.  Both the NJ Supreme Court and State Legislature recognized the holding in Tyler by introducing legislature amending the TSL and implementing the Notice to the Bar.  (Da35)  Application of Tyler to this matter which was pending and in the pipeline is mandated.  257-261 20th Ave. Realty LLC v. Roberto 2023 N.J. Super LEXIS 121.  (Da58)  Upon realizing same, [...] filed motion for reconsideration March 5, 2024 (Da20) and the court denied same for lack of jurisdiction on April 26, 2024 (Da59).  [...] filed this appeal on June 10, 2024.  (Da62)  New law was established July 10, 2024 to set procedures to protect homeowners surplus equity however same did not exist at the time of the foreclosure judgment in this matter.  (Da79)  **STATEMENT OF FACTS**
[brief] In Hemberger , 388 N.J.Super. at 187, the “certification of the defendant provided evidence of the fact the defendants actively sought redemption fund but, were unable to obtain them.  The property was encumbered by additional mortgages and the property owner contracted for sale with a third-party intervenor, known to the court as a tax raider – a third-party intervenor acquired an interest in the property at less than the property’s value.  ..Id at 184, 188.  Unlike in Hemberger, the Premises is unencumbered.  Its potential worth compared is almost seven times to the amount Defendant paid to redeem, and has the potential of three times the value paid by [...].  (Aa195)  The Defendant is not engaging in trivial objections to the validity of Plaintiff’s foreclosure process or its judgment.  Nor did the Defendant obtain the redemption funds by attempting to orchestrate a sale to a third party, refinance or offer a contract for sale of the Premises to obtain funds to make redemption.  The Plaintiff and [...] realized, in their respective goal, the significant gain to each, a prize to the Plaintiff in lieu of $20,000.00 in redemption and potential value to [...] in the resale of the Premises.  All this is at the significant loss to Defendant, but for, the trial court’s evaluation of the equities which is paramount, in this setting to the claim of [...]’s bona fide purchaser status.  It would be an exceptional loss to Defendant to have been denied redemption.  However, it has established “exceptional” circumstances that prevail over the standing of the Plaintiff and [...] that requires upholding the lower court decision.
[brief] But even were the Court to consider the appellants’ argument, Plaintiffs established an independent duty imposed by law sufficient to ground their right to pursue a conversion claim in addition to their contract-based claims.  *See Saltiel v. GSI Consultants, Inc.*, 170 N.J. 297, 314 (2002).  In closely held entities like [...] and [...], principals owe each other the same fiduciary duties of good faith and loyalty in the operation of the enterprise as partners owe to each other.  *See \(^{18}\) Though some question exists about whether the economic loss doctrine functions as a defense or an affirmative defense, courts that have recently considered the issue have reasoned that it operates more like an affirmative defense.  *E.g.*, *Intermed Res. TN, LLC v. Green Earth Techs., LLC*, 2022 U.S. Dist. LEXIS 174794, at *12* (M.D. Tenn. Sep. 27, 2022) (“dynamic in which the elements of a claim are technically present, but a doctrine intercedes to preclude liability certainly resembles a conventional affirmative defense. ”) (cleaned up).  Konsuvo v. Netzke, 91 N.J. Super. 353, 375 (Ch. Div. 1966); 68th Street Apts., Inc. v. Lauricella, 142 N.J. Super. 546, 560 (Law Div. 1976).  Controlling principals cannot, consistent with those duties, utilize control of the entity to obtain special advantages and disproportionate benefits, which is precisely what the trial court found that [...] and the other defendants did.
[brief] New Jersey applies the McDonnell-Douglas burden-shifting analysis to retaliation claims under CEPA.  See Massarano v. N.J. Transit, 400 N.J. Super. 474, 492 (App. Div. 2008) (quoting Zappasodi v. New Jersey, 335 N.J. Super. 83, 89 (App. Div. 2000)).  Initially, the plaintiff must establish a prima facie case of retaliation.  Lippman v. Ethicon, Inc., 222 N.J. 362, 380 (2015).  If a plaintiff is able to establish a prima facie claim, the burden shifts to the defendant-employer to “advance a legitimate, nondiscriminatory reason for the adverse conduct against the employee. ”  Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28, 38 (App. Div. 2005).  “Upon such a showing by the employer, plaintiff has the ultimate burden of proving that the employer’s proffered reasons were a pretext for the discriminatory action taken by the employer. ”  Allen, 246 N.J. at 291 (quoting Kolb v. Burns, 320 N.J. Super. 467, 478 (App. Div. 1999)).  The employer never has the burden of proving that its proffered reason was the actual reason for its action, “because the burden of proving the actual discrimination lies at all times with the plaintiff.
[brief] The February 16, 2023 opinion is a duplicate opinion.  TABLE OF CONTENT VOLUME I (Cont’d)  Appendix Page attaching Exhibit A vacating JOC and Dismissing the VOP with A brief Statement of Reasons)………………………………………Aa136-40  Exhibit C of Certified Statement (April 18, 2023 email from Appellant to Appellees providing Appellees with a copy of Exhibit A and informing them that Notice of Claims would be Filed consistent with the accrual date triggered by Exhibit A……..Aa-141-42 TABLE OF APPENDIX VOLUME II Exhibit D of Certified Statement (A copy of the Notice of Claim and Exhibits Served upon Appellees)……………………Aa143-232 Exhibit A of Notice of Claim (Duplicate - Email communication from April 10, 2023 to April 14, 2023 indicating Appellant’s Provision of courtesy copies of his motion to vacate the JOC, State’s objection to and the April 14, 2023 email from Court attaching Exhibit A vacating JOC and Dismissing the VOP with A brief Statement of Reasons)………………………………………Aa219-23 Exhibit B of the Notice of Claim (April 11, 2023, Order Vacating the JOC and Dismissing the VOP with prejudice…Aa224-25 Exhibit C of the Notice of Claim (September 5, 2018, Letter request from Appellant, taking issue with the Court’s refusal to vacate the JOC and to dismiss the VOP….Aa226-27
[brief] A vast majority of the meetings ran past midnight and were drawn out because of the Board’s obstructive conduct.  Ultimately, two remands later, and three sets of hearings later, the Court entered the Rent Increase on September 30, 2022, more than five (5) years after the hardship application was filed.  Absent the retroactivity of the Rent Increase, [...] confronts continued losses from 2017-2022.
[brief] *14  We also are mindful of the plain error analysis undertaken by the Supreme Court in Branch and Medina, which focused on the strength of the State's case.  The State argues that, even if error occurred, it did not rise to the level of plain error as there was ample evidence to connect defendant to the crimes independently of the officer's testimony regarding how they initially identified defendant as a suspect.  See Douglas, 204 N.J. Super at 275, 498 A.2d 364 (noting the State's case was “fortified by direct positive evidence”).  To ensure we fully and fairly consider the State's argument, we reproduce verbatim the synopsis of the incriminating evidence from the State's response brief:
[brief] THE PUBLIC NOTICE WAS INSUFFICIENT, THUS DEPRIVING THE PLANNING BOARD OF JURISDICTION TO CONSIDER THE APPLICATION.  (Final Order at Ia269 to Ia270; opinion at 4T37-5 to 4T37-14; 4T50-10 to 4T50-11).  In his sixth separate defense, [...] argued that the Board lacked jurisdiction because of a deficiency in its public notice.  See Ia97.  As is apparent from the colloquy at 4T49-25 to 4T50-11, plaintiffs disputed [...]'s right to raise this issue.  On October 30, 2023, [...] submitted a brief on this issue along with the unpublished opinion which appears at Ia253 to Ia268.  THE COURT:
[brief] “The MCS-90 endorsement is triggered only when the rest of the insurance policy would not otherwise provide coverage for the insured carrier[.]” (See PPCIa480-88 for a copy of this authority).  Here, despite the fact that both [...] and [...] each sought a declaration by the trial court regarding whether the [...] policy actually covered [...]’s claims, the trial court never made any such determination (See generally, PPCIa126-27; PPCIa132-49).  This missed step is significant.
[brief] Nevertheless, Plaintiff still satisfied the test applied by the trial court when it presented a representative plaintiff, [...] within its pleading.  In a direct discrimination case a Plaintiff need only establish that “an employer placed substantial reliance on a proscribed discriminatory factor in making its decision --- \(^4\) The trial court incorrectly cited the test within Victor v. State which is more accurately stated as (1) plaintiff was in a protected class; (2) plaintiff engaged in protected activity known to the employer; (3) plaintiff was thereafter subjected to an adverse employment consequence; and (4) that there is a casual link between the protected activity and the adverse employment consequence.  *Victor v State*, 203 N.J. 383, 409 (2010) to take the adverse employment action. ”, Smith v. Millville Rescue Squad, 225 N.J. 373, 394 (2016).  Moreover, in a retaliation case Plaintiff need only prove that “the employee engaged in a protected activity known to the [employer,]” the employee was subjected to an adverse employment decision[,]” and there is a causal link between the protected activity and the adverse employment action. ”  Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 547 (2013)  As noted, Plaintiff brought this claim as an incorporated association.  It is not unusual for an associational interest group to bring a discrimination claim on behalf of its members.  See Dial, Inc. v. City of Passaic, 443 N.J. Super. 492, 513 (App. Div. 2016) where a handicapped Association brought suit against the City challenging the validity of an ordinance which the Association claimed violated the New Jersey Law Against Discrimination.  See NAACP v. N. Hudson Reg'l Fire & Rescue, 665 F.3d 464, 468 (3d Cir. 2011) (Association challenged fire department's residency requirement which was permanently enjoined because it had a disparate impact on African-American applicants.)  In Pa. State Troopers Ass’n v. Miller, 621 F. Supp. 2d. 246 (2008) where the State Troopers Association challenged a sick leave policy which violated the ADA.  Under the NJLAD a labor organization or association is entitled to the statutes protections and may assert claims under the Act.  Pursuant to N.J.S.A. § 10:5-5 “Person” includes one or more individuals, partnerships, associations, organizations, [and] labor organizations....”  As stated in the NJLAD any “person” may initiate a complaint in the Superior Court.  Any complainant, including any person (including labor organizations), claiming to be aggrieved by an unlawful employment practice or an unlawful discrimination...may initiate suit in Superior Court.  N.J.S.A. § 10:5-13  In this case the Trial Court failed to apply the correct analytical test.
[brief] [Raised at Pa590-1172; Decided at Pa1-2]  The facts set out in STATEMENT OF FACTS above, [Db at 4-15] support the Law Division’s proper finding that [...] was not contractually responsible to clear snow and ice from the area where [...] was allegedly injured.  Thus, for the sake of brevity, the facts set out in STATEMENT OF FACTS above, will not be re-set out here in POINT I and are hereby adopted and incorporated herein by reference as if fully set forth herein.  The lease provided that [...] was responsible for removal of snow and ice from the parking lot, including the snow and ice removal services that [...] provided on March 16, 2017.  [...] did not expect [...] to maintain the area where [...] allegedly fell and did not expect [...] to keep the area where plaintiff allegedly fell free from snow and ice.  At no time prior to the alleged slip and fall on March 16, 2017 did [...] walk on the sidewalk in front of [...]’s leased premises.  The only reason [...] went to the premises on March 16, 2017 was to have dinner at [...].  The lease as between [...] and [...] does not contain a provision whereby [...] is obligated to notify [...] that the parking lot and/or common areas of the multi-tenant shopping center need to be maintained.  The lease as between [...] and [...] does not contain a provision whereby [...] could maintain the parking lot and/or common areas of the multi-tenant shopping center and charge [...] for the expenses associated with undertaking such maintenance.  POINT II
[brief] Rather, as noted by the Appellate Division, when it remanded the initial granting of summary judgment (in order to determine a full record) “if [...] was acting under the direction and supervision of a licensed engineer professional and that the function, he was performing was part of the practice of engineering” an affidavit of merit was required.  (Pa2318).  By way of analogy, if an attorney instructed a paralegal to serve an expert report and failed to do so, Appellant’s argument is that a claim could be made against the law firm without an affidavit of merit.  Appellant highlights for this court the fact that its expert [...] testified that “no one from [...] and/or [...] explained to Mr. [...] what his duties were” (Pb27) and that [...] and [...] had an obligation and responsibility for the enforcement of OSHA and ANSI standards.  In Shamrock, Lacrosse, Inc., v. Klehr, Harrison, Harvey, Branzburg & Eller, LLP, 416 N.J. Super. 1 (App. Div. 2010), the Appellate Division examined as to whether an Affidavit of Merit was required for vicarious liability claims against two unlicensed law firms based upon the conduct of a licensed attorney-employee.  The Shamrock Court held that an Affidavit of Merit was required because the underlying action resulted from the licensed attorney’s negligence in malpractice.  The Court in Shamrock noted that the Affidavit of Merit statute requires and contemplated such potential vicarious liability by making the affidavit requirement applicable to any action for damages “resulting from” a licensed persons’ professional malpractice or negligence.
[brief] This is established by the repetitive nature of the complaints and the plain language in the Settlement Agreement.  (Pa0001)(Pa0015)(Pa0957(Pa1273-Pa1279).  This is not a case where the Entire Controversy Doctrine is used “to bar component claims either unknown, unrisen or unaccrued at the time of the original action. ”  Pressler & Verniero, Current N.J. Court Rules, R. 4:30A, cmt. 3.3 (2023); Dimitrakopoulos, 237 N.J. at 118-21.  The Trial Court properly followed the Dimitrakopoulos Court in determining that the instant claims for legal malpractice were transactional and had accrued at the time of the Lease Litigation.
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[brief] STATUTES  N.J.S.A 56:10-1 ...........................................................................................................  31  N.J.S.A. 56:10-3 ...........................................................................................................  2, 14, 18, 34 N.J.S.A. 56:10-4 ...........................................................................................................  34, 35, 36  RULES  Rule 2:4-1(a) ...............................................................................................................  40  Rule 2:4-3(e) ...............................................................................................................  40  Rule 4:46-2 ...................................................................................................................  11, 12  Rule 4:49-2 ...................................................................................................................  3, 23  PRELIMINARY STATEMENT
[brief] [...] traveled from California and was not heard.  “Current” does not mean prior internal reported delinquency/default was not recorded previously recorded as already (falsely) determined by Comptroller of Currency and the Third Circuit.  No fees can be attached to account if it is not in default status.  Such an assignment as in 2009 against [...] is a red flag to potential lenders of default.  In 2016, [...] sent a letter to [...] stating that their first payment could not be located (A390 – bottom of page).  [...] have proof of said payment.  That payment mysteriously then showed as recorded at trial.  A spread sheet is not financial accounting for receivables.  [...] has been custodian/Collateral holder since year 2000 (A802).
[brief] He told [...]: “I said if it was blizzard I’d be there till the cows come home.  I said a nature thing I’d be there 24/7, but this pandemic with the viruses, I didn’t know how to - you know try to help with this” (T. P. 231, L19 to P. 232, L1).  [...] contends these words clearly show he did not intend to abandon his job.  Also, [...] paid for his medical insurance company through May 20, 2020.  See Leave of Absence - Prepay Schedule (EXHIBIT 7, P. 35a).  If [...] intended to abandon his job, he would not have paid for his medical insurance to May 22, 2020, more than five (5) weeks after the [...] claims he abandoned his job.  [...] testified that one must be an employee of the State to be eligible for State leave (T. P. 45, L13 to L24).  [...] also testified that he did not know of any instance where [...] was called by his supervisor and told there is an emergency, and he must report to work (T. P. 49, L17).  If, [...] continued to qualify for benefits, his health insurance, after April 13, 2020, then he was still employed.
[brief] Finally, S-39 was the second of two videos which the detective believed had the “best view” of the shooter.  (5T240-13 to 22)  It was recorded about “30 feet” away where the victim was found.  (5T238-11 to 21)  The detective pointed to a section of the screen no larger than “two inches” and explained that the shooter can be seen “walking in the top left corner. ”  (5T239-4 to 240-10)  This testimony was inadmissible for the same reasons as above: it was based upon an inference drawn from other facts in evidence; and the image was blurry and indistinguishable, and thus subject to reasonable dispute.  (5T238-11 to 21)  Considering the evidentiary gaps discussed above – where the State offered no firearm, no motive, and no eyewitness to the shooting itself – the improper admission of these video narration comments constitutes plain error.  See State v. Singh, 245 N.J. 1, 13-14 (2021) (“[Plain error] must be evaluated in light of the overall strength of the State's case. ”) (internal quotation omitted).  It was effectively undisputed that [...] was one of at least two known drivers of the Chevy.  (3T38-23 to 39-20, 65-16 to 66-18)  The only characteristic of the suspected shooter that was consistent across descriptions was that he wore some type of gray clothing.  Thus, the State needed additional evidence to link the car to the shooter, and to identify the shooter as [...].