ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Table of Authorities  Page(s)  Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499 (1995) ...........................................2, 3 Fik-Rymarkiewicz v. Univ. of Med. & Dentistry of New Jersey, 430 N.J. Super. 469 (App. Div. 2013) ..................................................................................................................1, 2, 3 Georgis v. Scarpa, 226 N.J. Super. 244 (App. Div. 1988) .........................................................14 Lipsky v. New Jersey Ass'n of Health Plans, Inc., 474 N.J. Super. 447 (App. Div. 2023) ..............................................................................................................................................................................1 St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480 (App. Div. 2008) ..................................................................................................................................................................................14 ARGUMENT THE COURT SHOULD VACATE THE DEFAULTS WITH PREJUDICE AND SUPPRESSION OF THE ANSWERS AND COUNTERCLAIMS OF DEFENDANTS [...] AND [...], AS ENTERED IN THE LAW DIVISION’S JUNE 12 ORDERS, AND REMAND THIS MATTER WITH DIRECTION THAT DEFENDANTS’ ANSWERS AND COUNTERCLAIMS BE REINSTATED FOR TRIAL ON THE PARTIES’ RESPECTIVE CLAIMS (A3; 3T15-19).
[brief] *O’Loughlin v. Nat’l Cmty. Bank*, 338 N.J. Super. 592, 606-607 (App. Div. 2001) (internal quotation marks omitted).  “Mere assertions in the pleadings” are not sufficient to defeat a motion for summary judgment.  *Ocean Cape Hotel Corp. v. Masefield Corp.*, 63 N.J. Super. 369, 383 (App. Div. 1960).  “Bare conclusions in the pleadings, without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment. ”  *Petersen v. Twp. of Raritan*, 418 N.J. Super. 125, 132 (App. Div. 2011).  One party’s self-serving assertions are “clearly insufficient to create a question of material fact for purposes of a summary judgment motion. ”  *Martin v. Rutgers Cas. Ins. Co.*, 346 N.J. Super. 320, 323 (App. Div. 2002).  Furthermore, mere speculation and disputes as to irrelevant facts are insufficient to bar entry of summary judgment.  *Merchants Express Money Order Co. v. Sun National Bank*, 374 N.J. Super. 556, 563 (App. Div. 2005).  In response to a summary judgment motion, “the nonmovant cannot sit on his or her hands and still prevail. ”  *Housel v. Theodoridis*, 314 N.J. Super. 597, 604 (App. Div. 1998).  Rule 4:46-2(a) states as follows:
[brief] Notice is hereby given that [...] appeals to the Appellate Division from a ☐ Judgment or ☑ Order entered on 06/19/2023 in the ☑ Civil ☐ Criminal or ☐ Family Part of the Superior Court ☐ Tax Court or from a ☐ State Agency decision entered on ____________________________  If not appealing the entire judgment, order or agency decision, specify what parts or paragraphs are being appealed.  Granting Administrator to Conclude its duties; denial of payment for attorney fees from Escrow account; and denial of request to appoint another administrator or designee
[brief] Pa56, page 120.  [...] does not remember and apparently did not record what items of her personal property [...] removed.  Significantly, she has no idea if [...] removed any of the items on the contents list submitted to [...] at issue in this litigation.  Pa56, page 121.  [...] simply has not offered any credible evidence that the damages and losses she alleges to have sustained were the natural and probable consequences of anything [...] did or failed to do.  She is not able to specifically identify which items were not returned to her and, as such, is unable to prove that [...] is responsible for any alleged missing items.  [...] is unable to prove [...] is responsible for any alleged missing items, as both [...] and [...] were in her home and removed items following the incident months before the commencement of [...]’s activities there.  [...] has not and under the fact of this case cannot produce any credible evidence establishing that [...] is responsible for any alleged damage to her personal property.  Her own testimony establishes that those items were damaged by the water leak and the activities of [...].  Moreover, [...] is unable to differentiate between any damage allegedly caused by [...] and that damage that was already done by the water leak and the activities of [...].  Based on the foregoing, the Trial Court properly granted granting summary judgment in favor of [...] on [...]’s negligence claims.
[brief] On appeal, the Board repeats its argument that the Act’s “plain language” requires that the “entire Association cannot be a representative of itself. ”  (Board’s Br., Point I(A).)  The Commission comprehensively addressed that argument.  First, it recognized the applicable constitutional and statutory framework governing the parties’ dispute:  The New Jersey Constitution at Article 1, Para. 19 guarantees public employees the right to present proposals to their employers and make known their grievances “through representatives of their own choosing. ”  Section 5.3 of the Act implemented this constitutional provision “through the use of majority representatives selected by the employees in an appropriate unit. ”
[brief] N.J.A.C. 11:1-20.2 ........................................................................... passim N.J.A.C. 11:17A-4.10 ........................................................................  43  N.J.S.A. 17:29C-1 ............................................................................  33 Rule 4:42-9 ...................................................................................... 14, 48, 50 Rule 4:42-11 ....................................................................................  49 Rule 4:46-2 ......................................................................................  14  OTHER AUTHORITIES
[brief] A.  The Parties’ Arbitration  [...] and [...] were parties to an arbitration pending before the [...] (“AAA”) captioned [...] v. [...] New Jersey, LLC, [...] (the “Arbitration”).  Da132-144.  The Arbitration concerned the parties’ rights and obligations under the parties’ Project Transfer Agreement (“PTA”), pursuant to which [...] was to transfer to [...] rights in certain projects in exchange for [...]’s payment to [...] of 65% of the estimated gross profit (“EGP”) for those projects, but only if the projects achieved the status of a “Backlog Project” under a procedure expressly set forth in the PTA.  Da53-55; Da60-61.  The evidentiary hearing in this Arbitration took place over eight days: June 19, 20, 21, and 22 and August 21, 22, 23, and 24, 2023.  Da132.  Following post-hearing briefing and oral argument, and the Arbitrator entered a Final Award for the Arbitration on January 19, 2024 (the “Final Award”).  Da132-144.  The Final Award contained several computational and technical errors.  Pursuant to Rule 51(a) of the AAA Construction Industry Arbitration --- 1  These two sections are intertwined and combined here for the Court’s convenience.  Rules, [...] submitted its Motion to Modify the Final Award to Correct Computational and Technical Errors to the AAA on February 1, 2024 (the “Motion to Modify”).  Da160-182.  The Arbitrator granted in part [...]’s Motion to Modify, issuing a Disposition of Application for Modification of Award on February 22, 2024 (the “First Disposition”) that acknowledge the technical errors in the Final Award and directed the parties to calculate the interest that accrued on certain ongoing projects.  Da235-36.  Following further briefing by the parties on their competing interest calculation methodologies, the Arbitrator issued a Final Disposition of Application for Modification of Award on March 25, 2024 (the “Second Disposition”), accepting some of the modifications to the Final Award that were sought by [...].  Da255-262.  The Arbitrator then issued a Final Disposition of Application for Modification of the Parties’ Proposed Corrected Final Award on April 12, 2024 (the “Corrected Final Award”), which included as Exhibit A the parties’ jointly submitted Proposed Corrected Final Award to capture the Arbitrator’s rulings without prejudice to [...]’s rights to further challenge the Arbitrator’s erroneous calculations as allowed by law.  Da242-248.  The Corrected Final Award revises the interest calculations in the Final Award and provides that [...] shall pay [...] a net amount of $3,889,835.14.  Da242-248  Aside from the modification of the interest calculation, the Corrected Final Award reaffirms the Final Award issued on January 19, 2024, the First Disposition, and the Second Disposition. \(^2\)  Id.  The Final Award, the First Disposition, the Second Disposition, and the Corrected Final Award will be referred to collectively as the “Award” for purposes of this Brief.
[directive] The below ammunition may be used in conjunction with the launcher approved by the manufacturer.  Shotguns must be clearly marked with brightly colored paint or other means to make the weapon readily identifiable.  Shotguns marked for less-lethal ammunition may only be used for that purpose and may not be loaded with lethal rounds.  The use of lethal ammunition in less- lethal weapons is prohibited except in an extreme emergency.  In accordance with Addendum A, only those law enforcement officers trained in the deployment of CED/less-lethal devices may be armed with the device and may only use those devices in which they are trained.  Ammunition from other manufacturers can be submitted for approval.  Approval shall be granted if the ammunition has the same general characteristics as that of the approved ammunition.  November 15, 2024
[brief] ” (Pa57).  The Plaintiffs-Appellants had the opportunity to present substantive issues with the conclusions and findings presented within the Commissioners’ Report during the trial conducted on November 14, 2023.  More specifically, the Plaintiff-Appellant had the opportunity to both cross-examine the Boundary Commission Surveyor, [...], as well as present evidence and testimony through their own witness and surveyor, [...].  Plaintiff-Appellants were unable to establish any deficiency within the Boundary Commission’s Report, or any specific failure upon the Commission to issue a fair and impartial determination of the boundary line as gleaned from the nine-month investigation.
[brief] The subject appeal followed.  Notably, Defendants’ appeal does not seek review of the Trial Court’s findings with respect to [...]’s longstanding ownership and control of the Property, the Court’s conclusion that their claims of ownership and control were “not worthy of belief”, or their counterclaims against [...].  Rather, Defendants’ appeal is limited to arguments that [...] erred and/or failed to fully address a limited number of their affirmative defenses.  As outlined herein and as found by [...], the Defendants’ arguments are without merits, as undisputedly, [...] is and has always been the owner of the Property, who has and has always had complete control of the Property.  It is further respectfully submitted that the Court’s opinion denying [...]’s claims of fraud, conspiracy to commit fraud and fraudulent conveyance against the Defendants was in error.  As noted above, the Court specifically concluded that the Defendants’ claim of ownership was wholly without merits.  Notwithstanding, and despite finding no reasonable basis for the transfer of the Property by [...] to [...] in 2019, the court declined to find that the Defendants committed fraud, conspired to commit fraud, and made fraudulent conveyance in their act of essentially stealing [...]’s property.
[brief] ”  See Manalapan Realty, supra, 140 N.J. at 383-84.  Given the Master Plan’s --- \(^3\)  It is worth noting that even if Plaintiffs succeed in this appeal, such an outcome would not prevent the use of Plaintiffs’ Property for open space.  That determination became binding when the Borough entered into the 2021 County Agreement, the validity of which is not challenged in this appeal.  acknowledgement that vacant land is a scarce resource in the Borough, it is evident that the Master Plan would welcome an opportunity to provide parks and open space.
[brief] In their brief, Plaintiff argues several contradictory positions.  On the one hand, Plaintiff argues that the trial court’s decision was so devoid of substance that it should be reversed as improper.  Specifically, Plaintiff argues that the trial court failed to articulate a sufficient “statement of reasons” in reaching its decision and instead, merely recited the parties’ arguments leaving this court to guess how the trial court reached its decision.  On the other hand, Plaintiff argues that based the reading of the same trial court decision, the trial court’s reasoning was materially flawed because, according to Plaintiff, the trial court was influenced by Defendant’s arguments in limiting the recovery of attorneys’ fees in this matter.  Plaintiff cannot have it both ways -- either the trial court failed to set forth its reasons in its decision or, the trial court’s stated reasoning was flawed.  Plaintiff is, however, wrong on both counts.  Specifically, as set forth more fully below, the trial court conducted a sufficiently thorough analysis of the parties’ positions, carefully reviewed the record and then issued a detailed “Statement of Reasons” in which it set forth its analysis.  In addition, the trial court specifically articulated its conclusion in terms of the reasonable hourly rate, the reasonable hours incurred and in consideration of the appropriate relevant factors.  In sum, the trial court’s decision should not be disturbed.
[brief] c.  The Trial Court Found that [...] had No Conflict of Interest  Appellant maintains that the Trial Court “held that [there is] ‘potentially.. a conflict’” between the process server and Co-Respondents [...]/[...].  Appellant’s Brief p. 45.  This is a gross and intentionally misleading characterization of the Trial Court’s findings.  The Trial Court mentioned this alleged conflict as a necessary introduction to its recital of Appellant’s unfounded argument that the process server had an interest in the litigation.  T4 98:1-5.  The record fully supports the Trial Court’s finding that no potential or actual conflict exists between the process server and the Co-Respondents.  T4 98:4-5.  The only fact that Appellant put forth to support this baseless argument is that [...] had a mere “office sharing” arrangement with Co-Respondents.  T4 98:3.  Appellant failed to establish any other nexus between [...] and Co-Respondents.  Accordingly, the Trial Court correctly found that no conflict of interest existed between the process server and Co-Respondents [...] and [...].
[brief] An expert witness's conclusions can be based on his or her qualifications and personal experience, without citation to academic literature.  State v. Townsend, 186 N.J. 473, 495 (2006) (allowing opinion testimony based on the expert's "education, training, and most importantly, her experience"); Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002) ("Evidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience.").  "The requirements for expert qualifications are in the disjunctive.  The requisite knowledge can be based on either knowledge, training or experience."  Bellardini v. Krikorian, 222 N.J. Super. 457, 463 (App. Div. 1988).  Licensed or even unlicensed individuals involved in another profession can testify as an expert depending on "the claim involved, the specific allegations made, and the opinions that the expert proposes to offer at trial."  Garden Howe Urban Renewal Assocs., L.L.C. v. HACBM Architects Eng’rs Planners, L.L.C., 439 N.J. Super. 446, 456 (App. Div. 2015) (Garden Howe).  There may be an overlap between practices or disciplines.  Any practitioner who is familiar with the situation in dispute and possesses "the requisite training and knowledge [can] express an opinion as an expert."  Rosenberg v. Cahill, 99 N.J. 318, 331-32 (1985).  New Jersey courts have recognized that "a doctor in one field would be qualified to render an opinion as to the performance of a doctor in another with respect to their common areas of practice."  Wacht v. Farooqui, 312 N.J. Super. 184, 187-88 (App. Div. 1998); see Cahill, supra, 99 N.J. at 331-34; Sanzari v. Rosenfeld, 34 N.J. 128, 136 (1961).
[brief] 1  A. Standard of Review (Pa1-Pa16) .................................................................................................  1  B.  Defendant’s Analysis of Majority Case Law is Flawed (Pa1-Pa16) ..................................................  1  1.  No New Jersey Precedent Establishes The Legality of This Provision (Pa1-Pa16) ...........................................  3  2.  Defendant’s Effort to Distinguish The Majority Case Law is Flawed (Pa1-Pa16).............................................  5  (a)  [...] Didn’t “Reject” Taylor or Wisc. Auto; The Court Distinguished Them (Pa1-Pa16) ...........................................  5  (b)  Defendant Errs In Its Discussion on “Mutuality” (Pa1-Pa16) .......................................................  6  (c)  Defendant Ignores Meaningful Cases Due to Different “Facts” (Pa1-Pa16) ...........................................  7  C.  The Court’s Effort To Avoid “Issue Splitting” Created Issues (Pa1-Pa16) .............................................  8  D.  The Law Division Erred By Rewriting The Clause (Pa1-Pa16) ............................................................  9  1.  Plaintiff Didn’t Concede That The Arbitration Clause “Clearly Advised That His Claims Would Be Arbitrated” (Pa1-Pa16) ......................................................... 9  2.  Case Law Cited by Defendant Is Inapposite (Pa1-Pa16) ...........................................................................................................10  E.  Applying Unconscionability Principles Does Not Violate The FAA (Pa1-Pa16) .................................................................13  F.  Plaintiff Set Forth The Basis For Procedural Unconscionability (Pa1-Pa16) .................................................................13  G. The Only Remedy Is To Sever The Provision in Full (Pa1-Pa16) ..........................................................................................14  CONCLUSION ........................................................................................................................................................................15
[brief] See, eg. Rendine, 141 N.J. at 335 (“[T]he question whether and to what extent in awarding counsel fees under state fee-shifting statutes a trial court should take into account the relationship between the damages recovered and the hours expended. ”); Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 244 (App. Div. 2014) (“Because we have reversed the judgment . . . she is not a prevailing party, and therefore is not entitled to an award of fees”); Furst, 182 N.J. at 23 (“[A] trial court should decrease the lodestar if the prevailing party achieved limited success in relation to the relief he had sought. ”).  Relatedly, it was simply not reasonable for Landlord to expend 117 hours seeking unpaid rent that the Landlord could have extracted from Tenant in one minute by making an arithmetically simple accounting adjustment ten days after, and in lieu of, filing the complaint.
[brief] The result would be the same even if Plaintiff had pled a post-sale failure-to-warn claim.  That claim would still be preempted because a post-sale warning about \(^1\)  Simply stated, federal law governs the entire field of prescription drug recalls, impliedly preempting state-law claims seeking to impose liability for not recalling a recall issue \textit{constitutes a recall action}, and drug recalls \textit{and related communications} are governed exclusively by federal law.  (OB 6, 20-22)  Plaintiff does not and cannot deny that federal law occupies the entire field of drug recalls; state law has no place and cannot interfere.  (OB 19-21)
[brief] See N.J.S.A. 13:1D-15la. of Justinian, a sixth century codification of Roman civil law, which declares, “By the law of nature these things are common to all mankind: the air, running water, the sea, and consequently the shores of the sea. ”\(^8\)  The Doctrine has, throughout its history, consistently been interpreted as imposing upon a sovereign the obligation to create and preserve public rights of access and use of tidalways, such as oceans, bays, and tidal rivers, as well as their respective shores, for purposes of navigation, fishing and commerce.
[brief] THE LAW  DIVISION’S SENTENCING OF APPELLANT UNDER THE INCORRECT VERSION OF N.J.S.A. 39:4-50 IS SUFFICIENT FOR THIS COURT TO REMAND THIS MATTER FOR RE-SENTENCING.  Regarding [...]’s decision to sentence Appellant to an ignition interlock suspension period under N.J.S.A. 39:4-50, Respondent’s argument relies on the fact that, under the version of the statute in effect at the time of Appellant’s arrest on November 5, 2019, [...] had the discretion to assess an ignition interlock device as part of Appellant’s sentence.  (Resp. Brief at 30).  Regardless of what discretion [...] may have had, the fact remains that [...] clearly sentenced Appellant under the wrong version of the statute, as evidenced by [...]’s own words at the sentencing hearing on April 17, 2023, when he referred to assessment of the ignition interlock period as a “mandatory” part of Appellant’s sentence.  (App. Brief at 29; 7T17:11-19).  However, Administrative Directive #25-19, “Implementation of New DWI Law (L. 2019, c. 248) – Includes Expanded Use of Ignition Interlock Devices for First-Time Offenders” (Dec. 4, 2019), as cited in Appellant’s brief, makes clear that the new version of the statute, which makes assessment of the ignition interlock device mandatory, applies “only to defendants charged with a DWI . . . on or after December 1, 2019. ” (App. Brief at 30).  Because Appellant was charged with DWI on November 5, 2019, (Aa010), [...] was required to sentence him under the version of N.J.S.A. 39:4-50 in effect as of that date.  Indeed, Respondent admits that [...] erred in sentencing Appellant under the current version of N.J.S.A. 39:4-50, (see Resp. Brief at 30 (“[T]he record suggests that [...] was mistaken that imposition of an ignition interlock suspension period was in fact mandatory[.]”)), and further defers to the Court on the issue of whether remand for re-sentencing is necessary, (id.).  Appellant posits that because he was impermissibly sentenced under the wrong version of the statute, both as a matter of fact and a matter of law, remand is absolutely necessary in the event his conviction under the statute is not reversed.  **CONCLUSION**
[brief] Even in cases in which a consumer contracts online, there must be some method by which the consumer has reasonable notice of and access to the arbitration agreement for purposes of review, before checking a box or otherwise affirmatively indicating agreement to the terms of the arbitration clause and the balance of the contract.  Santana v. Smile Direct Club, L.L.C., 475 NJ Super 279 (App. Div. 2023).  In Santana, the court noted in the context of computer click wrap agreements, where there is no evidence that the offeree had actual notice of the terms and conditions of the agreement, the offeree could still be bound by the agreement if a reasonable prudent user would be on inquiry notice of the terms.  Id. at 288 citing Meyer v. Uber Techs, 868 F3d. 66, 74-75 (2nd Cir. 2017).
[brief] 35  OTHER Am. Arb. Ass’n, Commercial Arbitration Rules and Mediation Procedures 28 (2013) (Rule 47), https://perma.cc/4Y74-WZM8....  31  Current N.J. Rules of Court, R. 4:6-2 ...........................................  26 Governor's Reconsideration and Recommendation Statement to A. 296, at 1 (Jan. 7, 1987)) ...........................................  25  PRELIMINARY STATEMENT