ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Defendants [...], [...], [...], [...], and [...]’s Certification of Counsel in Support of Motion to Compel Arbitration, filed August 10, 2023……………………………………………………………………Pa0501  Allstate Decision Point Review Plan Inclusive of Pre-Certification Requirement, Undated…………………………………………………..Pa0504  Revised Allstate Decision Point Review Plan Inclusive of Pre-Certification Requirement…………………………………………………………Pa0522  PRELIMINARY STATEMENT  The Insurance Fraud Prevention Act (IFPA) of 1983 protects the public from fraudulent acts that drive up insurance premiums.  The statute arms insurers with the means to claw back fraudulently obtained insurance benefits via a private cause of action and strong remedies, including treble damages and attorneys’ fees.  For forty years, insurers have employed the statute to recoup losses and deter future fraud, which ultimately benefits the public.  The Supreme Court has held that there is a constitutional right to a jury trial on IFPA claims.  The Automobile Insurance Cost Reduction Act (AICRA) of 1998 amended the State’s no-fault insurance law to reduce the cost of automobile insurance.  AICRA revised the dispute-resolution process relating to personal-injury-protection (or PIP) benefits, which cover medical expenses for those involved in auto accidents.  AICRA and its implementing regulations provide that “dispute[s] regarding the recovery of medical expense benefits or other benefits provided under personal injury protection coverage” may be submitted to dispute resolution at the election of an insured, an insurer, or a medical provider to which the insured assigned PIP benefits.  The statutory process for PIP dispute resolution is sometimes referred to as arbitration, but it is much more limited than traditional arbitration.  This case presents an important question for the insurance industry and the public: whether AICRA’s dispute-resolution provision deprives insurers of the right to sue healthcare providers that allegedly obtained PIP benefits through fraud.
[brief] ”).  While the [...] do assert that they sent [...] a “preservation letter” regarding their personal injury claim (before a receiver was appointed), this does not satisfy the statute.  See Ca406.  See also [...]’ Brief at 9.  The [...] were required to present their claim—in writing—to [...], not to [...].  Moreover, the contents of the notice of claim was required to be something more than a demand to preserve evidence.  The lack of any written proof of the [...]’ claim is dispositive and bars the [...] from attempting to enforce it through this appeal.  B.
[brief] For these reasons, the Board’s final administrative determination denying [...]’s request to file his Eligibility Registration Form for amended benefits approximately one year and seven months past the statutory deadline of the Ricci Act should be affirmed.  Respectfully submitted, [...]  ATTORNEY GENERAL OF NEW JERSEY  By: /s/ [...] [...] (ID 276482018)  Deputy Attorney General  [...]  Dated: June 28, 2024  July 11, 2024  [...], Clerk Superior Court of New Jersey Appellate Division  [...] [...] PO Box 006 [...]  RE: [...] v. [...]  DOCKET NO.: [...]  On Appeal from [...]  Docket No.: [...]  Dear Justices of the Appellate Division:  This office represents the Appellant, Kenneth [...], in the above captioned matter.
[brief] 2T203:22-204:09.  In the end, there were no employees, no revenue stream, and ultimately no assets, as only [...] and [...], and then only [...], were left; there were no assets, or cash, of value.  2T204:18-206:15; see also, Da59\(^6\).  Plaintiff conceded that she did not believe there were significant funds in [...] as of the time of the trial.  2T89:6-8.  Plaintiff admitted that [...] is defunct with no assets.
[brief] ARGUMENT I.  The Special Master was Required to Recuse  A.  The Special Master’s appearance of impartiality is reasonably questioned in this case (39680a).  Judges must recuse themselves whenever “their impartiality or the appearance of their impartiality might reasonably be questioned. ”  Code of Judicial Conduct Rule 3.17(B).  That standard includes “any . . . reason” that might reasonably lead “the parties” to believe that they would not get “a fair and unbiased hearing and judgment” before the court.  R. 1:12-1(g)(emphasis added).  Here, as one example of perceived bias and unfairness, [...] awarded thousands of dollars in attorneys’ fees for the time that Plaintiffs’ attorneys expended on 100% unsuccessful cross-appeals to this Court and unsuccessful petitions for certification to the Supreme Court.  In doing so, he ignored this Court’s remand mandate and affirmed his own prior recommendations that previously had been vacated by this Court.  The [...] not only witnessed that unfairness, but also know that the Special Master had a relationship both with the [...] law firm - whose fees he approved - and the lead lawyer in this case at that law firm, [...].  Certainly, the [...] reasonably believe that [...] did not give them an unbiased hearing and the Trial Court, as a result, did not enter a fair judgment.  The Trial Court went further, concluding that [...], who is an extension of the Trial Court, is not subject to the same standard that would apply to the judge if the court itself had undertaken the identical task assigned to the Special Master.  Three circumstances, together, compel the conclusion that [...]’s appearance of impartiality is reasonably questioned.
[brief] The rationale for this exception, as stated by the Patino court, was “grounded in the exigent circumstances created by the inherent mobility of vehicles and the somewhat lessened expectation of privacy in one’s vehicle. ”  Id. at 9.  But mobility alone does not justify the stop or search of a vehicle, *United States v. Powers*, 439 F.2d 373, 375 (4th Cir.), cert. den., 402 U.S. 1011 (1971), and the protections of the Fourth Amendment, and the warrant clause of that Amendment, as well as Article I, para. 10 of the New Jersey constitution, still apply to automobiles.  *Marshall v. Barlow’s Inc.*, 436 U.S. 307, 315 n. 10 (1978).  See also *Coolidge v. New Hampshire*, 403 U.S. 443, 461 (1971); *State v. Patino*, supra, at 8; *State v. Slockbower*, 79 N.J. 1, 7 (1979).  Thus, even assuming probable cause to believe the vehicle and person stopped are in possession of criminal contraband, the only exigency which would serve to validate such conduct would be the temporal confluence of the officer’s probable cause and the vehicle’s mobility.
[brief] Regarding the second factor relating to the allegations, Appellants alleged that [...] “converted Plaintiffs’ property by selling the site plans and drawings to the [...]. ”  Despite Appellants’ incorrect characterization that [...] “sold the plans” to [...], [...]’s involvement in the project and transition in ownership was solely based it providing professional engineering services throughout the course of the Project from one owner to the next.\(^2\) (Pa1, Pa104).  Accordingly, Appellants aptly describe their precise grievance as to [...] within their complaint as the following: “… [...] breached their professional and ethical duties to Plaintiffs …” (Pa19).  \(^2\)  During which time, it is important to reiterate that [...] technically remained the owner of the site plans it prepared, pursuant to the terms of both of its contracts on the Project.  (Pa83; and Pa104)  Appellants went so far as to specifically reference the New Jersey Code of Ethics for Engineers noting that “Engineers shall act for each employer or client as faithful agents or trustees[]” and that “Engineers shall not accept compensation, financial or otherwise, from more than one party for services on the same project, or for services pertaining to the same project, unless the circumstances are fully disclosed and agreed to by all interested parties. ” (Pa19).  Thus, the cause of action directly relates to [...]’s practice of professional engineering regarding the Project.
[brief] In Davis v. Washington, 547 U.S. 813 (2006), the United States Supreme Court was presented with the question whether a 9-1-1 call should be considered testimonial or non-testimonial; it concluded the determination rested on whether the caller was describing a presently unfolding situation, as opposed to reporting a past event.  at. 827.  Further in *Davis*, an individual placed a call to 9-1-1, reporting an ongoing domestic disturbance and seeking emergency assistance.  *Ibid.*  The Court found this call to be non-testimonial because it was plainly a call for help against a bona fide physical threat was made while the emergency was on-going and was made with the purpose of resolve that emergency.  at 827.  Clearly, the 9-1-1 calls were non-testimonial according the case above.
[brief] (emphasis supplied) (Pa28).  Even if, arguendo, the Board did consider the Sketch, Paragraph 8 of the Amended Resolution states that the height of the building approved by the Board was 43’-6” above DFE as shown in the [...] architectural plans.  Therefore, the specified height of 43’-6” would constitute the Board’s finding and approval as opposed to the approximate height referenced in the Sketch.  If the Appellant had an issue with the approved height, he should have appealed the Amended Resolution within the statutory time limit.  He chose not to file any such appeal.  Absent filing such a timely appeal, the Appellant is now bound by the express terms of the Amended Resolution including the permissible building height of 43’-6” above DFE excluding the parapet.  Having actively participated in the April 26, 2022 hearing, the Appellant was fully aware that the approved building height was approximately 50’ above finished grade to the roof plus the 45” parapet.  Yet, the Appellant alleged in his Complaint and continues in this appeal that the Sketch showed a dimension of +/- 51’ above finished grade to the top of the parapet when he knew that the height to the top of the parapet was at least 53’-9”.  A reading of the full Amended Resolution and transcripts of the proceedings below demonstrate that the Trial Court properly and reasonably held that the Sketch was not relied upon or considered by the Board, and therefore, the Sketch lacked any relevance to the issue of whether the constructed building exceeded the height approved by the Board.  Accordingly, the Trial Courts findings of fact and conclusions of law consistent with the foregoing were reasonable.  As such, those findings should be upheld in this appeal.
[brief] ”  Ca142.  The Receiver asserted that “The landlord did nothing to stop my operation. ”  Ca142.  However, inter alia, the Landlord, on February 10, 2022, initiated a Landlord/Tenant action against the Receiver and against [...] for possession.  Such relief would quite clearly stop such “operation. ”  In addition, on March 30, 2022, the Landlord had moved to sue the Receiver (including seeking permission to proceed with an eviction action), compel an accounting and compel payment of rent pursuant to statutory priorities, but this relief was denied.  Ca299, 305.  On July 21, 2023, after the Receiver filed for discharge, and while the Receiver’s discharge application was pending, [...] filed their personal injury lawsuit.  They filed their motion and cross motion opposing the Receiver’s discharge in the Law Division Action on July 25, 2023 and July 27, 2023.  By orders dated October 6, 2023, the Receiver was discharged and the motion of [...] to intervene was denied.  Ca2, 3A.  320 Route 73 LLC purports to continue in possession of the diner, despite [...]’s efforts to pursue a judgment of possession.
[brief] ”  *Id.* at 371-72.  Moreover, the Township had demonstrated “a reasonable basis for concern that additional residential development would aggravate traffic congestion and pollution problems in the municipality and impose added stress on its school system and other municipal services. ”  *Id.* at 376.  Therefore, the Court concluded [...] did not bring the condemnation action for an illegitimate purpose such as a discriminatory reason, but for the public purpose of acquiring additional open space.
[brief] Although it was an operational error to allow [...] to enter the courtroom before defendants were seated and the restraints removed, it had no inherent capacity to inevitably deprive [...] of a fair trial.  The evidence against [...] was strong.  [...] spoke face to face with [...] the day of the crime, enhancing the strength of his identification, and he also made an in-court identification of [...], which took place prior to [...] viewing defendants in handcuffs.  Moreover, the fingerprint evidence linked [...] to the crime.  Furthermore, defense counsel was given a voluntary choice between (1) exploring the fact that his client was manacled and in custody before the jury or (2) keeping that information private.
[brief] Factors to be considered include “the reason for the late filing” and “whether the newly-asserted claim would unduly prejudice the opposing party, survive a motion to dismiss on the merits, cause undue delay of the trial, or constitute an effort to avoid another applicable rule of law. ”  Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 484-85 (App. Div. 2012).  The rationale for this freedom to deny amendments is the preservation of judicial economy and efficiency.  Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994).  As to the first step, prejudice to the non-moving party, “[i]t is well settled that an exercise of that discretion will be sustained where the trial court refuses to permit new claims … to be added late in the litigation and at the point at which the rights of other parties to a modicum of expedition will be prejudicially affected. ”  Brown v. Town of Old Bridge, 319 N.J. Super. 476, 513 (App. Div. 1999) (affirming trial court’s denial of motion to amend); see also, Globe Motor Car Co. v. First Fid., 291 N.J. Super. 428, 429 (App. Div. 1996) (affirming denial of motion to amend made almost three years after complaint was filed); MBCC v. Lotito, 328 N.J. Super. 491, 511 (App. Div. 2000) (finding trial court’s denial of motion to amend, on the basis it was made only on the eve of trial, discovery had not been conducted with regard to the proposed claims, and amendment would have necessitated further discovery and further delayed trial, was not abuse of discretion).
[brief] *(Da298–304.*)  Plaintiffs do not and cannot provide “clear and convincing evidence” of [...] “ch[ooing] to seek relief in a different forum,” as would be required to show a waiver.  *Spaeth v. Srinivasan*, 403 N.J. Super. 508, 514 (App. Div. 2008).  Instead, Plaintiffs bizarrely try to hold [...] responsible for the litigation actions of co-defendant [...], who is not seeking to compel arbitration.  *(Pb47–49.*)  But [...] has consistently asserted its right to arbitrate Plaintiffs’ claims.
[brief] N.J.S.A. 2C:3-4b(1)(a); see also N.J. CRIMINAL LAW REVISION COMMISSION, I FINAL REPORT: SECTION 2C:3-4, at 26-27 (1971).  The 1971 New Jersey Criminal Law Revision Commission Commentary (hereafter 1971 Commentary), explicitly states that a police officer does not act “in the performance of his duties” within the meaning of Mulvihill and Montague when he engages in the equivalent of a private altercation or uses excessive force, and that a defendant’s resistance in this situation may constitute self-defense.  The 1971 Commentary notes:
[brief] [Pa]  Thus, based on the foregoing reasons and facts one (1) through thirty (30), the Court should reverse the trial courts improper division adjudication was prejudicial and harassment under Rule 3.6(A) xiv.  The Trial Court Abused Its Discretion And Erred When It Failed To Liberally Grant Plaintiff’s Motion To Amend Contrary To The Interest Of Justice  Plaintiff argues that the Trial Court should have decided the motion to amend on the merits and then proceeded to defendants’ opposition.  The Trial Court also failed to consider the factual situation existing at the time [the] motion was made.  “According to the judge, because the complaint was dismissed "there's nothing left to amend."  In our view, however, the judge should have decided the motion to amend on the merits and then proceeded to defendants' "cross-motion" to dismiss the complaint.  As noted, however, the cross-motion was improperly filed.  Brooks v. Twp. of Tabernacle No. A-1132-20 (App. Div. Jul. 22, 2022)  Motions for leave to amend should be granted liberally, but the decision "always rests in the [judge's] sound discretion."  Notte, 185 N.J. at 501 (quoting Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998)).  Although motions for leave to amend should be decided "without consideration of the ultimate merits of the amendment," the judge must consider "the factual situation existing at the time [the] motion is made."  Ibid.  (quoting Interchange State Bank, 303 N.J. Super. at 256).  Prospect Rehab. v. Squitieri 392 N.J. Super. 157 (App. Div. 2007)  “Motions for leave to amend should be liberally granted.  Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006); see also R. 4:9-1 (if a motion to amend is submitted more than ninety days after a responsive pleading is filed, "a party may amend a pleading ... by leave of court which shall be freely given in the interest of justice.").  A motion to amend a pleading is addressed to the trial court's sound discretion.  N.J. Dep't of Envtl. Prot. v. Dimant, 418 N.J. Super. 530, 547 (App. Div.), certif. granted, 208 N.J. 381 (2011).  However, the judge may consider whether the amendment would be futile even if permitted.  Notte, supra, 185 N.J. at 501.  ...leave to amend under Rule 4:9-1 is to be liberally granted, Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006)  Source: [...] v. [...] DOCKET NO. [...] (App. Div. Oct. 7, 2016)  Thus, based on the foregoing reasons and facts one (1) through thirty (30), the Court should reverse because the Trial Court failed to liberally grant plaintiff’s motion to amend contrary to the interest of justice.  CONCLUSION
[brief] Pursuant to Rule 2:2-3(a), orders compelling arbitration are deemed final for purposes of appeal.  See also GMAC v. Pittella, 205 N.J. 572, 587 (2011).  Appellate courts consider de novo a trial court’s determinations regarding the enforceability of contracts, including arbitration agreements.  Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013).  Appellate courts “construe the arbitration provision with fresh eyes,” Morgan v. Sanford Brown Inst., 225 N.J. 289, 303 (2016), and are also “mindful of the strong preference to enforce arbitration agreements, both at the state and federal level. ”  Hirsch, 215 N.J. at 186 (citations omitted); see also Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 133 (2020) (explaining “the affirmative policy of this State, both legislative and judicial, favors arbitration as a mechanism of resolving disputes” (quoting Martindale v. Sandvik, Inc., 173 N.J. 76, 92 (2002))).  LEGAL ARGUMENT POINT I THIS COURT SHOULD AFFIRM THE TRIAL COURT’S ORDER COMPELLING ARBITRATION BECAUSE THE MAA IS VALID ON ITS FACE.
[brief] Table of Judgments and Orders Being Appealed  Order and Statement of Reasons of Hon. [...], filed 3/16/23…………………………………………………………………………Da809  Order and Judgment of Hon. [...], filed 6/5/23………………Da845  Order of Hon. [...] confirming express easement, filed 6/5/23…………………………………………………………………………Da846  Letter of Hon. [...], dated 6/5/23………………………………Da849  Index to Appendix Volume I (Pages Da1 – Da147)
[brief] Critically, the [...] ignored the impacts to water resources that will result from the increased use of fossil fuels associated with this project, including climate change impacts.  Therefore, the HAD is premised on an insufficient WQMP consistency determination, which is a prerequisite under the WQPA, and the HAD is fatally flawed.  The [...] asserts that it reviewed the “Project for consistency with the WQMP rules and the provisions and recommendations of the Northeast WQMP. ”  Aa0002.  However, this is misleading because there are no such things as “the provisions and recommendations of the Northeast WQMP. ”  The Northeast WQMP is not like a municipal master plan that can be reviewed as a cohesive document.  The Northeast WQMP consists only of a series of unconnected documents that designate sewer service areas and, therefore, the [...] obviously didn’t consider the impact to the water sources from the construction of this proposed project (in its totality).58  A review of the October 16, 2020 letter from [...] to the [...] reveals some but not all of the considerations the [...] was required to take into account when it made the requisite WQMP --- 58  See [...], “Water Quality Management Planning Program,” “Northeast,” available at https://www.nj.gov/dep/wqmp/wmpadopted.html#northeast. consistency determination.  Aa0328.  For example, the [...] concluded that “The efforts to avoid, minimize and mitigate for resource impacts are sufficient to find that the project is consistent with the goals of the Highlands Act. ”  Aa0330.  However, the [...] failed to make the same considerations with regard to the WQMP.  CONCLUSION  For the reasons set forth above, [...]’s June 23, 2021 Decision – which consists of both its Highlands Applicability Determination (“HAD”) and its Water Quality Management Plan Consistency Determination (“WQMP CD”) – constituted both an error of law and errors regarding the facts.  Consequently, [...]’s June 23, 2021 Decision must be invalidated.
[brief] The second *Berrie* factor, “the necessity or importance of the information --- 3  See also Aa319 (e-mail to [...], son of [...], requesting reports because “[...] just asked me, he has some clients asking him. ”). sought in relation to the main case,” likewise points to the need for [...]’s deposition.  The [...] are trying to track down the monies that [...], [...], and [...] converted (Aa326-27, 333, 337, 341-42, 346, 351, 357) and need information and answers.  [...] -- who is front and center in the scheme -- wants to hide behind mischaracterizations of his role and character attacks on [...] (a non-party to the case).  The third Berrie factor, “the ease of supplying the information requested,” also points to the need for [...]’s deposition.  [...] identifies no undue burden from his deposition -- aside from being forced to tell the truth.  The fourth Berrie factor, “the significance of the rights or interests which the nonparty seeks to protect by limiting disclosure,” weighs in favor of a deposition because [...] has not articulated any such rights or interests.  He claims that he is trying to protect confidential business information\(^4\) that would be hypothetically asked in a deposition, but doesn’t identify what it is.  We now know that the confidential business information is none other than the same exact projects into which the [...] were invested.  Aa332, 361.  --- \(^4\) Aa5 (“I am currently affiliated with [...], Inc., and believe [...] is seeking to obtain confidential business information from me, related to [...], Inc., as he is a self-proclaimed competitor. ”).  Finally, the last *Berrie* factor, “the availability of a less burdensome means of accomplishing the objective of the discovery sought,” overwhelmingly points to the need for a deposition.  [...] possesses unique knowledge about his individual communications.  The [...] (Aa396-99) and the investors themselves (Aa332) have tried to trace the assets of the [...], only to be rejected by [...] and by [...] and [...].  Each of the investor-affidavits attests that [...] and [...] have not provided documentation on the [...]’ investments.  Aa326, 332-33, 336-37, 341, 345, 351, 356.  To further conceal their theft, [...] and [...] have engaged in delay tactics in the Underlying Action to thwart discovery: (i) filing a motion to stay the case – which was denied (Aa422); (ii) filing an appeal of the denial of the motion to stay the case, which was denied; and (iii) serving a set of boilerplate objections to all discovery directed to them.  Aa429.  **POINT II**