ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [...] Always Has The Burden Of Proof And Persuasion  No party disputes that the governing statute is silent on the burden of proof.  *N.J.S.A. 40:55D-19*.  The issue is, therefore, committed to the courts.  Our initial brief set out our Supreme Court's elaboration of how courts are to allocate burdens of proof.  Hb9-10.  [...] relies on unreported and older decisions to dispute that it has the burden of proof in this proceeding.  To the extent that it relies upon reported opinions of this court, this panel is not bound by a decision of another panel.  See, e.g., *Compressor Station*, slip op. at 23, fn 15; Hra23.  The older cases relied upon by [...] do not accurately reflect the more developed law in New Jersey on burden of proof.  *Compressor Station* also effectively placed the burden of proof in that case on the applicant.  Slip op. at 7; Hra7; see also *N.J.S.A. 13:20-28; -31.*  3.
[brief] Da150, Da204.  Indeed, courts have ruled that other affirmative defenses encapsulating the right to arbitration – without explicitly using the word “arbitration” – are enough to preserve the right, regardless of the Rule 4:5-1(B)(2) certification.  See Century Indem. v. Viacom Inter., Inc, 2003 WL 402792, at *6 (S.D.N.Y. 2003) (holding that insurer’s failure to include arbitration provision as an affirmative defense and failure to assert arbitration in its certification to the New Jersey state court were not barriers to granting its motion to compel arbitration).
[brief] The legislature’s conscious decision to not include exceptions leads to the inescapable conclusion that the Legislature did not intend to permit NJIFPA/NJRICO civil fraud actions to continue following AICRA, unless the carrier opted out of the arbitration process.  [...] did the exact opposite and opted into the arbitration process by creating and obtaining NJDOBI approval for both their DPR Plan as well as AOB which both include mandatory arbitration of disputes.  The Coalition court held that there could not be a piecemeal case-by-case opt-out by any party and the implementation of the blanket arbitration mandate by [...] in its DPR and AOB are an express opt-in to the arbitration for all disputes.  Coalition, supra, at 310-13.  Unless and until [...] amends its DPR and AOB to remove mandatory arbitration and obtain DOBI approval of the modification, they cannot bypass the AICRA arbitration process by couching coverage disputes as “fraud” and filing civil fraud litigation in Superior Court under the NJIFPA and NJRICO statutes.
[brief] THE DOCTRINE OF LACHES GENERALLY.  This Court has long recognized that a family court is a court of equity, where judges employ a “full range” of equitable doctrines to deal with matrimonial controversies.  Divorce agreements are necessarily infused with equitable considerations and are construed in light of salient legal and policy concerns.  The interpretation, application, and enforceability of divorce agreements are not governed solely by contract law.  Contract principles have little place in the law of domestic relations ….  Thus, settlement agreements, if found to be fair and just, are specifically enforceable in equity. ”  Steele v. Steele, 467 N.J. Super. 414, 441 (App. Div. 2021).  The Plaintiff has never argued that ¶25 of the JOD is unfair and / or unjust… or the product of fraud or overreaching… or was vague or ambiguous.
[directive] INTERNAL AFFAIRS POLICY & PROCEDURES | August 2020  7.8.3  The law is somewhat less restrictive as to searches conducted during an administrative investigation.  While it appears that an employing agency does not need a warrant to conduct a search during an administrative investigation, the investigator should exercise great care when searching property or items in which the subject officer has a high expectation of privacy.  Internal affairs investigators should document their reasons for conducting the search and limit its intrusiveness.  If any doubts or concerns exist about the propriety or legality of a search, the investigator should seek advice from legal counsel before proceeding with the search.  7.8.4
[brief] 239a (702:2–703:17).  At a third meeting, [...] and [...] represented to Plaintiffs that [...] should be rezoned for affordable housing to create coverage for the affordable housing obligation of the intended [...] development, thus pushing said obligation onto the [...] offsite.  239a (703:18–704:20).  [...] and [...] assured Plaintiffs that they would ultimately convey [...] to an affordable housing developer.  239a (704:21–705:9).  Based on [...]’s and [...]’s representations that [...] would purchase the [...] from Plaintiffs approved and improved at a certain price, eventually set forth in a Letter of Intent and Memorandum of Understanding, Plaintiffs decided to pursue the proposed real estate opportunities.  561a–563a; 617a–620a.
[brief] (“Knowing presence as spectator”); C.R.S. 18-9-204(1)(b)(I) (“Animal fighting – penalty”); Conn. Gen. Stat. §53-247(c)(4); 11 Del. C. § 1326(b) (“Animals; fighting and baiting prohibited; class E felony”); D.C. Code § 22-1006.01(a)(6) (“Penalty for engaging in animal fighting”); Fla. Stat. § 828.122(3)(h) (“Fighting or baiting animals; offenses; penalties”); O.C.G.A. § 16-12-37 (“Dogfighting”); 9 G.C.A. § 70.35 (“Animal Fighting”); H.R.S. § 711-1109.3 (“Cruelty to animals by fighting dogs in the first degree”); H.R.S. § 711-1109.35 (“Cruelty to animals by fighting dogs in the second degree”); Idaho Code § 25-3506 (“Exhibition of cockfights”); 510 I.L.C.S. 70/4.01(g) (“Animals in entertainment”); Ind. Code Ann. § 35-46-3-10 (“Attending animal fighting contest prohibited”); Iowa Code § 717D.2(10) (“Prohibitions – contest events”); K.S.A. § 21.6417(c) (“Unlawful conduct of cockfighting; unlawful attendance of cockfighting; unlawful possession of cockfighting paraphernalia”); K.R.S. § 525.125 (“Cruelty to animals in the first degree”); La. R.S. § 14:102.24A.  (“Participation in cockfighting”); 17 M.R.S. § 1033(2) (“Animal fighting”); Md. Criminal Law Code Ann. § 10-605(b) (“Attending dogfights or cockfights”); A.L.M. G.L ch. 272, § 95 (“Dog, Bird, Animal Fights – Penalty for Being Present”); M.C.L.S. § 750.49(2)(f) (“Animal . . . fighting, baiting, or shooting . . .”); Minn. Stat. § 343.31(b) (“Animal Fights and Possession of Fighting Animals”); Miss. Code Ann. § 97-41-11 (“Fighting animals or cocks”); R.S.Mo. § 578.173(1.),(6) (“Baiting or fighting animals – penalty”); M.C.A. 45-8-210(d) (“Causing animals to fight – owners, trainers, and spectators – penalties – exception – definition”); R.R.S. Neb. § 28-1005(3) (“Dogfighting, cockfighting, bearbaiting, or pitting an animal against another; prohibited acts; penalty”); Nev. Rev. Stat. Ann. § 574.070(3)(a) (“Instigating or attending fights between birds or other animals unlawful . . .”); N.H. R.S.A. 644:8-aII (“Exhibitions of Fighting For example, in *People v. Cumper*, 268 N.W. 2d. 696, 697 (Mich. App. 1978), the Michigan Court of Appeals addressed whether “the portion of [M.C.L.S. § 750.49] which imposes criminal sanction on persons who were spectators was impermissibly vague and unconstitutionally overbroad.
[brief] The motions contained arguments previously denied by the Court on multiple occasions.  Further, Plaintiff provided Defendants with a frivolous lawsuit letter pursuant to Rule 1:4-8 with respect to these applications.  Thus, the court finds it appropriate to award reasonable attorneys’ fees and costs with respect to costs incurred by Plaintiff to address Defendants’ frivolous motions.  (Da110-111).  As discussed at Points II and V of this brief, there was no legal merit to either of the motions and both concerned matters that had previously been unsuccessfully raised by the Defendants.  They were both filed during a period when the Defendants seemed particularly determined to bankrupt the Trust through litigation.  During 2003 alone, they filed five motions and a motion for leave to appeal (none of which were successful).  (8T103:22-104:4).  The trial court observed that even in cases where litigation is instituted in good faith, it can become frivolous and sanctionable by the “continued prosecution of a meritless claim…” (Da110, citing DeBrango v. Summit Bancorp., 328 N.J. Super. 219, 227-228, 230 (App. Div. 2000)).  Given the already vexatious approach that the Defendants had taken to the case, including their staggeringly inconsistent litigation positions, their filing of multiple motions in an unsuccessful effort to prevent the sale to the high bidder, and their failure to vacate until after the trial court ordered their ejectment and they faced removal by the Sheriff (Da51), the trial court’s finding was certainly justified.  VII.
[brief] [A357]  As defendants’ counsel explained in her Certification, during the Oral Argument that took place on December 20, 2023, counsel was instructed to reach out to the banks that could have been associated with Defendants to inquire about bank statements.  Counsel affirmed that she sent the letters to the Banks, and provided proof of this, affirming that defendants would amend their answers to discovery if any responses from the bank were received.  Defendants provided all OPRA requests associated with repairs on the property as well.  Defendants’ counsel affirmed to the court that there were no other documents that defendants could produce; defendants had produced all they had.
[brief] To reiterate this, [...]’s Corporate Designee testified “If you’re enrolled under the Work Comp, you’re enrolled under the GL … So if you cancel under the Work Comp, you cancel under the GL. ” ([...] Tr. 98:9-99:3 at TRVa854).  payroll/OCIP for our contract with [...]” but the “contract is excluded from our enrolled contracts so I am unable to submit” (TRVa2900); [...] then advised [...] on Sept. 8, 2015 that “our contract is excluded from being able to upload payroll for some reason” (TRVa2903); [...] advised [...] there was no CCIP reporting needed because on the [...] portal the [...] “contract comes up as ‘excluded’” and because, according to communications from [...], “no payroll is required for excluded contracts” (TRVa2911); see also [...] internal email on September 23, 2015 confirming “I had found out that this isn’t an OCIP reporting job either” (TRVa2914).
[brief] ...........................................  16  Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 347 (App. Div 1997) ......................................................................................  19 McDonnell Douglas Corp. v. Green, 411 U.S. 792, (1973) ).....................  18  Nuness v. Simon and Schuster, Inc., 221 F.Supp.3d 596, 604 (D.N.J.2016) .. 25, 27 Prager v. Joyce Honda, 447 N.J.Super. 124, 136-136 ...............................  28 Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021).  ....................................  15  Romano v. Brown & Williamson Tobacco Corp., 284 N.J.Super. 543, 548 (App.Div.1995) .................................................................  20 Sellers v. Schonfeld, 270 N.J. Super. 424, 427-29 (App. Div. 1993) ..............  27 Shepard v. Hunterdon Developmental Center, 174 N.J. 1, 28 (2002) ............ 28 Tarr v. Ciasulli, 181 N.J. 70 (2004) .................................................................  30  Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)  ....  18 Viscik v. Fowler Equip. Co. 173 N.J. 1, 13 (2002).  ...........................................  18  Young v. Hobart West Group, 385 N.J.Super. 448, 467 (App.Div.2005) ...... 20 Zhubrycky v. ASA Apple, Inc., 381 N.J.Super. 162 (App.Div. 2005)  .............  28  Statutes N.J.S.A. 10:5-1 et seq..................................................................................  18 N.J.S.A. 10:5–12(d) ....................................................................................  20, 29, 30 N.J.S.A. 10:5–12(e) ....................................................................................  29  N.J.S.A. 10:5-12(f)(1) ...............................................................................  19 Rules N.J.Ct.R. 4:42-2............................................................................................  16 N.J.Ct.R. 4:46-2............................................................................................  15 N.J.Ct.R. 4:49-2............................................................................................... N.J.Ct.R. 4:50-1............................................................................................  16  INTRODUCTION
[brief] October 14, 2024  TABLE OF CONTENTS  Page TABLE OF CONTENTS  ...........................................................................................................i  TRANSCRIPT KEY ............................................................................................................... iii TABLE OF AUTHORITIES ................................................................................................. iii PRELIMINARY STATEMENT ...............................................................................................1 PROCEDURAL HISTORY ....................................................................................................4 STATEMENT OF MATERIAL FACTS ..............................................................................15 LEGAL ARGUMENTS .......................................................................................................23 POINT I THE TRIAL COURT DID NOT DENY [...] DISCOVERY ........................................23 POINT II [...] PRESENTED NO EVIDENCE TO COUNTER [...]’S VERIFIED COMPLAINT..................................................................................................................25 POINT III [...]’S FAILURE TO HIRE SUBSTITUTION COUNSEL DID NOT DENY THE TRIAL COURT AUTHORITY TO RENDER FINAL JUDGMENT AGAINST [...] ......................................................................................... 26 POINT IV THE MCS-90 SURETY IS NOT TRIGGERED BY AN ADJUDICATION OF THE UNDERLYING INSURANCE COVERAGE.........................................................................................................................29 POINT V [...] ACTED NEGLIGENTLY IN SPLICING OPEN THE TRUCK TRAILER FILLED WITH OIL .........................................................31 POINT VI [...] HAD STANDING AS A NAMED “INTERESTED PARTY” TO SUE [...] ON THE MSC-90 SURETY .......................32  POINT VII  THE MCS-90 SURETY DOES NOT EXCLUDE TREBLE DAMAGES IF PART OF A FINAL JUDGMENT ........................................34  POINT VIII  THE COURT’S FINAL JUDGMENTS WERE “FINAL JUDGMENTS”..36  CONCLUSION  ...........................................................................................................................................................................41
[brief] **PLAINTIFF'S COMPLAINT PROVIDED ADEQUATE DUE PROCESS NOTICE OF THE CLAIMS MADE AGAINST DEFENDANT  [NOT RAISED BELOW]**  Due process requires “adequate notice, opportunity for a fair hearing and availability of appropriate review. ”  *Schneider v. E. Orange*, 196 N.J. Super. 587, 595 (App. Div. 1984)(citation omitted).  New Jersey is a fact-pleading State; in other words, a Complaint must plead sufficient facts to suggest a cause of action.  *Printing Mart-Morristown v. Sharp Electronics Corp.*, 116 N.J. 739, 768 (1989) (“[A] plaintiff must plead the facts and give some detail of the case of action. ”)(citation omitted).  Prior to its analysis, Plaintiff notes that Defendant did not make a motion to dismiss pursuant to R. 4:6-2(e) for failure to state a claim upon which relief may be granted before the trial court based on any alleged deficiency with Plaintiff’s Complaint.  Defendant argues that the Summons did not set forth a sum certain as required by R. 6:3-2(a).  Defendant is incorrect.  Part 6 of the New Jersey Court Rules applies to actions that are filed in the Special Civil Part, which have a monetary jurisdiction of $20,000. 00.  R. 6:1-1 and -2.  This action was in excess of $20,000.00 and was filed in Law Division.  PA – 6 to 9.  R. 6:2-3 does not apply.  Additionally, a party is not required to set forth a demand amount in Law Division, either in the Complaint or Summons.  R. 4:4-2; R. 4:5-2.  Defendant asserts that Plaintiff failed to set forth the correct principal place of business in the Complaint, which was a fatal defect to the Complaint.  Defendant is incorrect.  As a legal matter, and even assuming that the address was incorrect, a point not conceded, such an error is not jurisdictional and may be corrected in an amended pleading.  Carolina Casualty Ins. Co. v. Belford Trucking Co., 116 N.J. Super. 39, 42 (Ch. Div. 1971).  As a factual matter, Defendant is incorrect.  Plaintiff has set forth its address in this suit.  Defendant is unable to demonstrate any prejudice and his argument must fail for the reasons stated.  Moreover, Plaintiff’s Complaint set forth sufficient facts.  It provided: the name of the Plaintiff (the original creditor), the last four (4) digits of the account number at issue, a statement that the account was in default, and the amount sought.  PA – 6.  Plaintiff respectfully submits that those facts were sufficient to give Defendant adequate notice to understand the claims raised and to file a responsive pleading.  Printing Mart-Morristown, 116 N.J. at 768; Schneider, 196 N.J. Super. at 595.  Defendant filed an Answer on or about March 29, 2022, which expressly stated “My ex-wife had access to my [...]. ”  PA – 10.  By his own words, Defendant certainly knew of the account at issue by virtue of Plaintiff’s Complaint and any argument to the contrary is baseless, bordering frivolous.  Thus, Defendant’s arguments claiming inadequacy of Plaintiff’s Complaint fail.  B)
[brief] See, e.g., Moses H. Cone Mem’l Hosp., 460 U.S. at 24-25 (“[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. ”); Hojnowski v. Vans Skate Park, 187 N.J. 323, 342 (2006) (“[The New Jersey] Legislature codified its endorsement of arbitration agreements in the Arbitration Act, N.J.S.A. 2A:24-1 to -11, which . . . provides that agreements to arbitrate shall be valid save for ‘such grounds as exist at law or in equity for the revocation of a contract’”.) (quoting N.J.S.A. 2A:24-1); Wilson v. PBM, LLC, 140 N.Y.S.3d 276, 282 (2d Dep’t 2021) (“Arbitration is a matter of contract, and arbitration clauses, which are subject to ordinary principles of contract interpretation, must be enforced according to their terms. ”) (citation omitted).  Indeed, the FAA, the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 to 32 (“NJAA”), and the New York Arbitration Act, C.P.L.R. § 7501 et seq.  (“NYAA”), each support enforcing written arbitration provisions.  See, e.g., Martindale v. Sandvik, Inc., 173 N.J. 76, 84-85 (2002) (explaining that arbitration is a favored mechanism for resolving disputes as a matter of federal and New Jersey state policy); Stark v. Mold Spitz DeSantis & Stark, P.C., 845 N.Y.S.2d 217, 221 (2007) (recognizing New York’s “long and strong public policy favoring arbitration”) (internal quotations and citation omitted).  As discussed in greater detail below, no exception to the FAA applies.  Thus, this case must be submitted to arbitration.
[brief] The on-site activity will be drastically lower than unrestricted housing, since the testimony confirmed residents are in their mid-80s or older, and are neither exceptionally mobile nor the type to generate a lot of noise or other impacts.  The Board ignored the actual attributes of a multi-level senior housing unit when comparing the number of units per acre is a significant mistake.  The Board could have just as easily compared [...]’s proposed community to a hotel, with which it shares many characteristics (small rooms, restaurant, meeting rooms, etc.), though the proposed use would generate much less traffic than a hotel.  See §230-247(B) of the LUDO.  [Pa340].  And in this regard, it is noteworthy that [...] requires a minimum of 120 hotel rooms on 5 acres (i.e., 24 rooms per acre).  [Pa341].  If density was really an issue, the Board should have been able to articulate how the number of units proposed created problems, rather than simply claiming that there were too many units, since that is how density is supposed to be evaluated.  See Grubbs v. Slothower, 389 N.J. Super. 377 (App. Div. 2007).
[brief] J. Super. 288, 299 (App. Div. 1992) | 15 | | Murray v. Newark Housing Authority, 311 N.J. Super. 163, 173 (N.J. Super. 1998) | 14 | | Okakpu v. Irvington Bd. of Educ., No. A-1967-20 (N.J. Super. App. Div. Jul 18, 2022) (slip op. at 10) | 14 | | Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) | 12 | | Rendine v. Pantzer, 141 N.J. 292, 312 (1995) | 15 | | Taylor v. Metzger, 152 N.J. 490, 499 (N.J. 1998) | passim| | Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, P.A., 224 N.J. 189, 199(N.J. 2016) | 10 | | University of Medicine & Dentistry of New Jersey v. Fuchilla, 488 U.S. 826, 109 S. Ct. 75, 102 L.Ed 2d 51 (1988) | 11 | | Victor v. State, 203 N.J. 383, 408-10 (2010) | 13, 14| | Zive v. Stanley Roberts, Inc., 182 N.J. 436, 458 (N.J. 2005) | 14 | ### Statutes and Rules | Statute | Page | |----------------------------------------------|------| | N.J.A.C. 17:1-1.13(a)(4) | 22 | | N.J.S.A. 10:5-12 | 12 | | Date/Event | Page | |---------------------------------------------------------------------------|------| | July 23, 2020, Complaint | Pa1 | | November 17, 2020, Answer of Defendant [...] | Pa8 | | Defendants’ February 3, 2023, Defendant [...]’s Notice of Motion for Summary Judgment | Pa13 | | Statement of Material Facts in Support of Motion For Summary Judgment on Behalf of Defendant [...] | Pa15 | | Certification of [...], Esq. | Pa29 | | Exhibit A, Plaintiff’s Complaint.
[brief] (Pa190-208)  [...] initially granted attorney’s fees to both [...] and [...], as well as the [...], but on reconsideration, [...] vacated the award to the [...] by order dated June 30, 2022. (Pa209-232)  The remaining parties in the present action stipulated to a dismissal of the remaining claims on December 20, 2022.  This appeal followed.  (Pa233-257)  IV)  Legal Argument ISSUE I: STANDARD AND SCOPE OF REVIEW
[brief] **D.  Individually And Cumulatively, The Instructional Errors Require Reversal Of Defendant’s Convictions.**  An improperly instructed jury cannot reach a valid verdict.  Two of the instructional errors in this case went straight to the heart of an essential element of the offense: [...]’s mental state.  The deadly weapon inference should not have been given; its issuance put a thumb on the scale of finding the mental state for murder.  Further, failure to give any lesser-included instruction also pushed the jury into convicting [...] of murder if it found she was the killer, despite clear reason to believe she acted under a strong provocation or without intending to cause death or serious bodily injury that was practically certain to cause death.  Last, the lessening of the meaning of reasonable doubt infected the jury’s deliberations as to all charges.  [...]’s convictions must be reversed.