ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (Ja36)  Accordingly, this is all not the same type of clear delegation\(^4\) provision (and corresponding individuals paragraph concerning arbitrability) as set forth in *Blueprint*, 2023 U.S. App. LEXIS 34032, *4, 7.  (Ja64-Ja66)  Accordingly, a New Jersey Judge, and not an arbitrator, should determine whether the injunctive relief set forth in Plaintiff’s Complaint alleging CFA, --- \(^4\)  Such as the clear (unlike [...]’s here) provision at issue in *Rent-A-Center, W., Inc. v. Jackson*, 561 U.S. 63,66 (2010), which will be relied on by [...]:  “[t]he Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable. ”  HCSA, TCCWNA, and RISA violations against [...] is covered by [...]’s form, New Jersey, health club Membership Agreement C.  The Trial Court’s July 29, 2024 Decision Should Be Reversed Because The Injunctive Relief Set Forth in Plaintiff’s Class Action Complaint
[brief] In our judicial system, "justice is the polestar and our procedures must ever be molded and applied with that in mind."  New Jersey Highway Auth. v. Renner, 18 N.J. 485, 495 (1955) (citing X-L Liquors v. Taylor, 17 N.J. 444, 454 (1955)).  "There is an absolute need to remember that the primary mission of the judiciary is to see justice done in individual cases.
[brief] (7T 46-4 to 6, 67-5 to 12)  [...] was treated for a single gunshot wound to the face.  (9T 38- --- 9  [...] explained that when the police questioned him a couple of days after the offense, he was not frank about the two men he saw with guns “[b]ecause … [he] found out where they was from, found out what they was into,” and heard that “some guys from Newark … were driving around looking for [him], asking questions about [him].”  (22T 286-24 to 281-1)  10  Security cameras recorded activity at the entrance to the restaurant, but no video was offered from inside the banquet hall.  Cameras were also stationed around the parking lot but they did not cover the entire lot and failed to capture, among other things, [...] firing the warning shot.  [...]’s encounter with the armed man and [...]’s encounter with [...] were recorded and played by both parties.
[brief] (Da13-18; Da166-169; Da948; 7T; 8T)  Given the significant improvements undertaken by the [...] in reliance on the terms of the 1963 Agreement, Defendant is also equitably estopped from revoking the license.  In addition to a license becoming irrevocable where the licensee expends substantial sums of monies pursuing the privilege, a license is also irrevocable if permitting revocation would allow the licensor to practice a fraud on the licensee, such as revoking a license to cut timber after the licensee has already cut the timber and prepared it for removal.
[brief] Id.  [...] had a clear conflict of interest with respect to acting as [...]’s guardian because he witnessed his family get murdered two hours before the interrogation, he called 9-1-1 on his brother Scott and owned the gun that was used in the shooting.  (1T:33-1 to 13);(1T:24-1 to 25-8).  Accordingly, the Court should’ve suppressed [...]’s January 1, 2018, statement to detectives.  B.  THE TRIAL ERRED IN FINDING THAT AFTER ASSESSING THE TOTALITY OF THE CIRCUMSTANCES THAT SCOTT KOLOGI GAVE A KNOWING, INTELLIGENT AND VOLUNTARY WAIVER.
[brief] On retributive grounds, two offenses deserve a more severe sanction than one offense.  The offender who commits two armed robberies should, all other things being equal, serve more time than the offender who commits one robbery.  Concurrent sentences frustrate this objective, and consecutive sentences thus should be the rule in a just deserts model.  Yarbough, supra at 637-38 quoting from Periman and Stebbins, "Implementing an Equitable Sentencing System: The Uniform Law Commissioners' Model Sentencing and Corrections Act," 65 Va.L.Rev. 1175, 1220 (1979).  See also State v. Torres, 246 N.J. 246, 251 (2021) ("A sentencing court's decision between imposing consecutive or concurrent sentences on a defendant for multiple offenses has the potential to drastically alter aggregate sentence length.")  Thus, in the present matter, because: 1) the purpose of consecutive sentencing is purely punitive; 2) the illegal sentence was not the result of anything devious attributable to defendant or his counsel; 3) defendant has already completed service of his original sentence; and 4) the time for direct appeal has been exhausted, defendant maintains a legitimate expectation of finality in that sentence.
[brief] A planning board cannot remedy defects in the ordinance by resorting to a requirement that impact fees be paid through a developer’s agreement between the applicant and the municipal authority, even if the applicant consents.  A planning board lacks authority under *N.J.S.A.* 40:55D-42 not only to require pro-rata contributions for off-tract improvements outside the scope of MLUL or based upon a defective ordinance, but also to accept a developer’s voluntary contribution to such off-tract improvements.  *Id.* at 24.
[brief] With regard to establishing hardship special reasons, the Grasso Court said the following:  In keeping with the Legislative intent, applicants for (d)(6) variances based on hardship must show that the property for which the variance is sought cannot reasonably accommodate a structure that conforms to, or only slightly exceeds, the height permitted by the ordinance.  Stated differently, the applicant for a (d)(6) variance on grounds of hardship must show that the height restriction in effect prohibits utilization of the property for a conforming structure.  It is relatively clear that plaintiffs failed to demonstrate hardship as a special reason.
[brief] 200 N.J. at 56.  Some of the same factors that led to the finding of cumulative error in Pellicer also exist here.  First, the trial court’s errors here pervaded the trial.  Second, the trial court’s discretionary decisions and the overall conduct of the trial prevented plaintiff from making his case.  Third, the treatment of the parties was not even-handed, with plaintiff’s counsel being relentlessly interrogated and corrected by the judge.  Finally, a review of the complete record engenders the distinct impression that plaintiff was not accorded justice.  Taken alone, the admission of the contents of the DOH investigation and its conclusions by improper cross examination is sufficient to warrant a new trial.
[brief] ---  1  Combined for brevity.  2  1T = 3/20/23 transcript; 2T = 4/17/23; 3T = 4/12/24.  3  The transcript includes an unrelated hearing, so it starts after page 1 for the proposed billboard.  (4)  Billboards or off-premises advertising signs shall not be located:  (a)  Within 50 feet of a structure on the same lot.  (b) Within 500 feet of any residential district.  (c)  Within 1,000 feet of an interchange or intersection.  (d)  Within 1,000 feet of any other such sign on the same side of the highway.  The measurement of 1,000 feet shall be along the nearest edge of the pavement between points directly opposite the edge of the sign face nearest the pavement edge and shall apply only to signs on the same side of the highway.  The point of measurement for back-to-back signs shall be the midpoint between the nearest edge of the back-to-back sign faces.  (Pa148-149.)  I.  [...]’s application  On July 26, 2022, [...] filed an application with the Board for bulk variance relief to construct the proposed billboard.  (Pa46.)  The Board held two hearings on the application: March 20, 2023 and April 17, 2023.  Ultimately, the Board granted all necessary bulk variances except the bulk variance for the Distance Regulation (and therefore denied site plan approval).
[brief] The FAA Requires Enforcement of Arbitration Clauses Involving Interstate Commerce and Preempts Conflicting State Law  The FAA generally requires enforcement of written arbitration provisions in contracts that – like the Wholesaler Agreement – involve interstate commerce.  Specifically, when a contract involving interstate commerce contains a valid arbitration clause, it “shall be” enforced under section 2 of the FAA, which states:  A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable.  9 U.S.C.A. § 2 (emphasis added).  The FAA further provides in Section 4 that the court “shall” direct the parties to arbitration:
[brief] [Appeal of Counterclaim as untimely]  (Argued at Pa381 – Pa383)  [...]’s Counterclaim is based on April 2020 and July 2020 invoices, which [...] alleges were not paid in full in violation of N.J.S.A. 18A:7F-9(e)(3).  [...]’s suit against the Board was filed September 16, 2022, more than two years after the accrual of the action.  The applicable statute of limitations, the doctrine of accord and satisfaction, and the equitable doctrine of laches, bars [...]’s Counterclaim as out of time.  The court therefore committed legal error in granting the Counterclaim.  (Argued at Pa362 – Pa368)
[brief] ”); [...], A Matter of Interpretation 24 (1997) (noting “the good textualist is not a literalist”); Perez v. Rent-A-Ctr., Inc., 186 N.J. 188, 208 (2006).  Instead, “[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.
[brief] Ibid.  [...], [...], [...], and their employees—[...], CEO, [...]; [...], Director of HR, [...]; and [...], Director of HR, [...]—are the named defendants.  Ibid.  All of the alleged conduct giving rise to this matter occurred within [...] and [...] and concerns their respective employees.  Ibid.  As such, representatives from [...] and the individual defendants employed by [...] and [...] have been the main point of contact for [...] throughout the entirety of the defense of this matter.
[brief] Moreover, as contemplated by the WQPA and the WQMP rules, DEP’s regulatory programs, especially the NJPDES program, separately address stormwater and any applicable TMDL requirements.  The WQPA and its companion statute, the Water Pollution Control Act (WPCA), N.J.S.A. 58:10A-1 to -60, “constitute the Legislature’s response to the Federal Water Pollution Control Act, 33 U.S.C. 1251 to 1376, which established an integrated federal system to address water pollution” nationally.  In re Adoption of N.J.A.C. 7:15-5.24(b), 420 N.J. Super. 552, 558 (App. Div. 2006).  Both statutes are intended to restore and maintain the quality of waters of the State.  N.J.S.A. 58:11A-1; N.J. Builders Ass’n v. Fenske, 249 N.J. Super. 60, 64 (App. Div. 1991).
[brief] (Ra10). ²  The Original Policy broadly followed the New Jersey Department of Education’s Transgender Guidance for School Districts (“State Guidance”) (Da255-61), which DOE had issued in 2018 pursuant to the Legislature’s direction to “assist schools in establishing policies and procedures that ensure a supportive and nondiscriminatory environment for transgender students. ”  N.J.S.A. 18A:36-41.  The Original Policy thus generally required the district to “keep confidential a current, new, or prospective student’s transgender status. ” (Ra8).  The Original Policy also stated that there was “no affirmative duty” on school personnel to notify parents regarding a student’s gender identity or expression, (Ra8), and recognized that students might wish to keep this information private.  But the Original Policy and State Guidance acknowledge that even when a student requests privacy, there will be times when the “school district may be obligated to disclose a student’s status” because it has “a specific --- ² “Ra” refers to Respondents’ appendix to this brief.
[brief] The Chancery and Law Division litigations revolved around whether there was any obligation by [...] and the [...] to remediate alleged contamination of the Property (*see* 42a), and whether there was any liability on the party of Brian and [...] for having allegedly negligently contaminated the Property.  *See* 49a.  A final decision was entered in the Chancery Division when [...] entered her April 8, 2016 Order.
[brief] They simply do not want this analysis to occur because they know and even agree that there is no evidence of a conflict of interest leading to a finding of improper influence.  Pb40.  For these reasons and those set forth in the Appellants original filings, it is respectfully requested that the trial’s orders of October 14, 2020, October 15, 2020, June 16, 2021, September 14, 2021, and August 9, 2022 be reversed by this Court.
[brief] PRELIMINARY STATEMENT ........................................................................................................1  STATEMENT OF FACTS ..................................................................................................................3 PROCEDURAL HISTORY ..................................................................................................................3 LEGAL ARGUMENT ..........................................................................................................................3  POINT I - THE TRIAL COURT MISAPPLIED THE GOVERNING LAW IN THE MARCH 15, 2024 ORDER .................................................................3 POINT II - THE TRIAL COURT IMPROPERLY EXERCISED ITS EQUITABLE DISCRETION IN REFORMING THE REDEVELOPMENT AGREEMENT AND OPERATING AGREEMENT .................................................................6 POINT III - THE TRIAL COURT IMPROPERLY ORDERED REFORMATION OF THE REDEVELOPMENT AGREEMENT AND OPERATING AGREEMENT ..................................................................................................................8  POINT IV - THERE IS NO BASIS TO COMPEL SPECIFIC PERFORMANCE PURSUANT TO THE MARCH 15, 2024 ORDER OR THE JUNE 30, 2022 ORDER ..................................................................................................................10 CONCLUSION .....................................................................................................................................15
[brief] 1.  Appellant Did Not Knowingly and Voluntarily Waive Her Right to a Trial by Jury on Claims She May Have Against Respondents Related to Her Employment…………………………………………………………13  IV.  Argument…………………………………………………………………………………..18  A.  The Standard of Review on This Appeal Is De Novo.  (Not Raised Below).................................................................18  B.  The Arbitration Agreement Is Unenforceable as a Matter of Law (Pa000204) (Pa000207) (Pa000213)..............................................19  1.  Any Purported Arbitration Agreement Is Still Subject to Ordinary Principles of Contract Law (Pa000204) (Pa000207)..................19  2.  The NJLAD and Its Remedies, Including The Right To A Jury Trial, Are Fundamental Rights That Cannot Be Waived by Involuntary and Ambiguous Arbitration Agreements...........................................22  3.  Appellant Did Not Knowingly and Voluntarily Waive Her Right to a Jury Trial for Future Discrimination or Retaliation Claims.
[brief] Shortly after that conversation with [...], [...] told the Plaintiff, “I can’t talk to you, you have to talk to [...]” (1T; 26:6).  [...] was the person who assigned work and was in charge of scheduling (1T; 25:26).  Eventually, Plaintiff spoke to [...] on the telephone.  The conversation with [...] has to be seen through the entire deposition.  Part of the conversation was:  Well, Mr. [...] started out with, the administration feels you are a problem for us.  We can’t trust you to work with certain individuals and that I didn’t want to stay in the school anymore.  I wanted to quit.  And I said, that’s not true.  I said [...], she was the go-between coordinator for, at that time, the substitutes.  She was a substitute coordinator so she was in charge of me if I had problem or something.  I said I feel like I asked her to please check my absent management system because…I thought there was a problem.  I said, that’s not true.  I still want to work at -- for the [...] and he said you weren’t happy that we filed a female.
[brief] In response to this supplemental interrogatory, plaintiff-appellant [...] stated as follows:  The defendants had constructive knowledge of the snow because it had snowed and ice stormed earlier in February 2021, and failed attempts were made to clear the snow.  (Pa62 – Pa63, answer to Supplemental Interrogatory No. 6.)  Defendants-respondents Christopher and [...] served their answers to Form C Interrogatories in this case.
[brief] In the within matter, the Plaintiff served the Defendant and [...] with 2 frivolous litigation letters.  First, they were served with a frivolous litigation letter on March 12, 2024 upon Plaintiff’s receipt of the belated and second motion for reconsideration.  Then, the Plaintiff served the Defendant and his counsel with a second frivolous litigation letter on June 10, 2024 after the institution of the second appeal, and based on the suggestion of the trial court that the Appellate Division review Plaintiff’s request for the imposition of sanctions.
[brief] The Legislature went so far as to state:  It is therefore fitting and proper to regulate the business relationship between brewers and wholesalers of malt alcoholic beverages and set forth their respective responsibilities to further the public policy of this State and protect beer wholesalers from unreasonable demands and requirements by brewers, while devoting sufficient efforts and resources to the distribution and sale of malt alcoholic beverages.  [N.J.S.A. 33:1-93.13(c) (emphasis added). ]  With respect to the interplay of brewers and wholesalers, the Legislature clearly intended that any dispute arising under the MBPA be adjudicated by a New Jersey State Court, pursuant to the New Jersey State law and the terms of the MBPA.
[brief] The weight of each factor varies “depending on the occupation and the factual context in which the services are performed. ”  Rev. Rul. 87-41, 1987-1 C.B. 296, at *10-11.  Further, IRS Revenue Ruling 87-41 states that “individuals, such as physicians, lawyers, dentists . . . who follow an independent . . . profession, in which they offer their services to the public, generally, are not employees. ”  Ibid.  The use of the twenty-factor test has been historically approved by this court.  Hemsey v. Bd. of Trs., Police & Firemen’s Ret. Sys., 393 N.J. Super. 524, 542, 544 (App. Div. 2007) (permitting twenty-factor test in classifying member as employee or independent contractor), overruled in part on other grounds, 198 N.J. 215 (2009); Stevens v. Bd. of Trs., Pub. Emps.’ Ret. Sys., 309 N.J. Super. 300, 303 (App. Div. 1998) (endorsing twenty-factor test); see also Francois v. Bd. of Trs., Pub. Emps.’ Ret. Sys., 415 N.J. Super. 335, 351 (App. Div. 2010) (approving Board’s use of twenty-factor test “to determine whether a public sector employer had sufficient ‘control’ over a person to so that the person was an employee whose service and salary was creditable in PERS .
[brief] As noted in Zielinski v. Professional Appraisal Associates, 326 N.J. Super 219 (App. Div. 1999) our Supreme Court has imposed a duty of care upon a professional in favor of persons who did not engage the professional for the purposes of establishing a duty.  Id. citing Carvalho v. Toll Bros. and Developers, 143 N.J. 565, 573-74, 675 A.2d 209 (1996)  In Carvalho v. Toll Bros. and Developers, the Supreme Court imposed a duty of care upon an engineering professional in favor of persons who did not engage the professional.
[brief] Under the relevant provision of N.J.R.E. 607(b), "A prior consistent statement shall not be admitted to support the credibility of a witness except: (1) to rebut an express or implied charge against the witness of recent fabrication or of improper influence or motive."  "The admission of a prior consistent statement under N.J.R.E. 607 is not precluded under the rule against hearsay because “N.J.R.E. 803(a)(2) . . . allows admission of statements offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive. ”  Neno v. Clinton, 167 N.J. 573, 580 (2001).  (citation and internal quotation marks omitted).  “The scope of the exception encompasses prior consistent statements made by the witness before the alleged ‘improper influence or motive’ to demonstrate that the witness did not change his or her story. ”  Ibid. (citation omitted).  This temporal factor does not constitute “a rigid admissibility requirement” and is not “absolutely controlling,” but “whether the statement was made before the asserted motive or influence to fabricate is a substantial factor in determining relevance. ”  State v. Muhammad, 359 N.J. Super. 361, 386, 388 (App. Div. 2003).  A "post-motive" statement ordinarily should be excluded when the only basis for admission is the alleged improper influence or motive.  Ibid.  The trial court's view of [...]'s statement as having been provided prior to his motive to fabricate is contrary to the indisputable fact that he provided it contemporaneously with his guilty plea, in the presence of the attorney who was in the process of negotiating that plea offer, which [...] accepted that day (Da61-Da66;24T145-5 to 24T150-25).
[brief] A charge of driving while intoxicated can be proven either by a defendant's physical condition or by a defendant's blood alcohol level.  See State v. Kashi, 360 N.J. Super. 538, 545 (App. Div. 2003), aff’d, o.b., 180 N.J. 45 (2004).  Therefore, testimony of an officer who observes signs of a defendant's intoxication is sufficient to prove guilt of DWI beyond a reasonable doubt.  See State v. Johnson, 42 N.J. 146, 166 (1964).  Although the various factors an officer observes may be insufficient on their own to convict under N.J.S.A. 39:4-50, the factors should be considered in their totality to determine if there was sufficient evidence of intoxication.  See State v. Kent, 391 N.J. Super. 352, 384 (App. Div. 2007).  In Kent, defendant’s conviction was affirmed where the officer observed the defendant’s slurred speech, disheveled appearance, red and bloodshot eyes, and strong odor of alcoholic beverage on his breath.  Additionally, a conviction for DWI was upheld upon evidence of slurred speech, disheveled appearance, odor of alcohol on the defendant’s breath, loud behavior, and red, bloodshot eyes.  State v. Morris, 262 N.J. Super. 413, 421 (App. Div. 1993).  Here, the record reflects overwhelming sufficient credible evidence to support Defendant’s DWI conviction on the observation prong.
[brief] The parties executed the NDA on September 28, 2015.  (Id.).  When [...] refused the offer made by Respondents, the discussions ended.  [...], in turn, confirmed during his deposition that the NDA’s term had long expired by the time his company entered into a lease with [...] for the subject property.  (Pa002204).  (“The NDA was signed in December of 2015.  It had already expired [in 2017]”).  Indeed, Respondents waited until “[a]fter the expiration of the NDA” to speak with [...] representatives.  (Pa2205).  Thus, by its own terms, the confidentiality provisions of the NDA expired well before June of 2017, the earliest date on which the conduct Appellants now complain of occurred.
[brief] On March 15, 2024, the Court issued the order which, relevant to the present application, (i) granted reformation of a Redevelopment Agreement and the Operating Agreement to remove the $1,600,000 threshold in Section 8.6 of the Redevelopment Agreement to allow [...] to receive 66.66% of all revenue of the Project Garage after expenses, and (ii) awarded [...] $499,007.77 in fees as a result of said reformation, which was made retroactive to August 2019 when the initial Complaint was filed.