ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ”  Rova Farms, 65 N.J. at 484.  While it is well settled that in any New Jersey case, a “trial court's interpretation of the law and the consequences that flow from established facts are not entitled to any special deference,” [...] has failed to identify or cite to any alleged misinterpretation of law by the trial court to which this court should apply the de novo review requested.  State v. Pomianik, 221 N.J. 66, 80 (2015) (quoting Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995)).  [...] asks this court “to make a ‘de novo’ review of the Trial Court’s legal determination of the ‘appropriate measure of damages’” yet fails to specifically identify or cite to any such legal error made by the trial court deserving of this court’s de novo review.  Rather, [...] misrepresents the trial court’s determinations and holdings, absent any citation to the record below.  For example, despite the following assertions in [...]’s brief, the trial court did not hold or find: - that the third-party defendants “‘egregiously’ breached their fiduciary duties to [...]” (Db1) (emphasis added); - “that [...] . . . was not damaged because the purchase of the Share was funded by a donation” (Db3); - that “[...]’s actions [to transfer the property to [...]]…somehow negated [...]’s damages and absolved the TPDs from liability” (Db3); - “that [...] denied [...]’s request to reconsider his denial of damages to [...] based on the grounds that the transfer by [...] of its Property to another New Jersey mosque somehow constituted ‘corporate waste’” (Db6); - that “the TPDs breach [] they owed [...] “cause[d] [...] to pay $1,500,050.55 for Property that [...] could have otherwise purchased for $250,000” (Db6-7); - “that [...] did not incur any damages by transferring the Property to another Muslim charitable organization after purchasing [...]’s Share” (Db7); - that the “capital improvements made to the sanctuary . . . [was] a reason why [...] was able to sell the Share it purchased for $250,000 to [...] for $1,500,050.55” (Db7); --- 3  While at the same time alleging that “the trial court ignored the law on corporate waste and damages. ” (Db21) • or “that [...]’s directors either lacked sufficient agency to know what was best for [...] and its congregation, or somehow colluded with [...] to transfer the Property to [...]. ” (Db22).  Accordingly, [...]’s request for this court’s de novo review of the above fantastic and untrue purported determinations by the trial court should be rejected outright.
[directive] 8.2.6  If the County Prosecutor grants use immunity, the agency shall advise the subject officer in writing that he or she has been granted such immunity in the event their answers implicate him or her in a criminal offense.  The officer must then answer the questions specifically and narrowly related to the performance of their official duties, but no answer given nor any evidence derived from the answer may be used against this officer in a criminal proceeding.  At this point, any officer refusing to answer is subject to disciplinary charges and possible dismissal from employment.
[brief] Pa35.  Included with the Petition were other retired Troopers who are requesting registration and amended health benefits in retirement.  Pa35.  All of those Troopers provided affidavits that they also did not receive notice of the Ricci Bill’s passage.  Pa35.  Pa85-121.  Furthermore, other Troopers who are not currently ill, but were only seeking to register for the Ricci Act also filed affidavits that they did not receive notice of the Ricci Act and were included in the Petition.
[brief] The court was simply reiterating the well-settled principle that Plaintiffs’ counsel was acting on Plaintiffs’ behalf and with their authority.  See Jennings v. Reed, 381 N.J. Super. 217, 231 (App. Div. 2005) (“[I]t is the clear policy of our courts to recognize acts by the attorneys of the court as valid and presumptively authorized[.]”). relied on counsel to determine whether their claims lacked “a reasonable basis in law or equity[.]”  N.J.S.A. 2A:15-59.1.  Rather, this case is about the absence of any factual basis to pursue claims against [...].  The absence of any factual basis to join [...] in this lawsuit evidences Plaintiffs’ bad faith.  And Plaintiffs’ decision to continue pursuing claims against [...] -- despite [...] repeatedly reminding them that no factual basis existed -- only further evidences and makes crystal clear that Plaintiffs acted in bad faith.  * * * *
[brief] SIMILARLY, THERE IS NO CONFLICT BETWEEN THE RETA STATUTE AND THE REGULATIONS PROMULGATED UNDER ITS AUTHORITY.  (Da1176-77).  [...] next argues there is a “conflict” between N.J.A.C. 11:5-9A.6(a) and N.J.S.A. 45:15-16.59.  The Regulation, N.J.A.C. 11:5-9A.6(a), requires a timeshare resort to “afford the purchaser a reasonable opportunity to read [the Public Offering Statement (“POS”)] before the purchaser signs the contract or Purchase Agreement. ” (emphasis added).  Wholly ignored by [...] in its brief, the Regulation comports with the express language of the remedies section of the RETA statute itself, which states in relevant part:  The court, in addition to the remedies provided in this act, may award any other relief appropriate under the circumstances, including, in the court’s discretion, restitution of all monies paid and, where a developer has failed to provide to a purchaser a copy of the current public offering statement approved by the commission prior to execution of the contract or agreement, rescission of the contract.  N.J.S.A. 45:15-16.80(b) (emphasis added).  --- 4  N.J.S.A. 45:15 et seq. gives the Real Estate Commission the authority to “promulgate necessary rules and regulations” “for carrying into effect the provisions of this article. ”  N.J.S.A. 45:15-6.  Under this mandate and the mandates of N.J.S.A. 45:15-10.4; N.J.S.A. 45:15-16.2g; N.J.S.A. 45:15-16.49; N.J.S.A. 45:15-16.82; N.J.S.A. 45:15-17t; N.J.S.A. 45:15-17.4; and N.J.S.A. 45:15-42, the Commission enacted the regulations in N.J.C.A. 11:5-1 et seq.  The section of the RETA cited by [...], N.J.S.A. 45:15-16.59, requires a timeshare resort to “provide the [POS] to each purchaser of a timeshare interest in any timeshare plan at the time of purchase. ”  This POS may be provided “on CD-ROM format…if the purchaser consents. ”  The statute and the regulation do not conflict.  The less specific provision of “at the time of purchase” in N.J.S.A. 45:15-16.59(a) does not conflict with the other two provisions when considering the remedial purpose of the RETA and RETA Regulations.
[brief] Ibid.; see also Wells Fargo Advisors, LLC v. Sappington, 884 F.3d 392, 399 (2d Cir. 2018) (noting where sole arbitrator named in agreement is unavailable “those claims should be litigated in district court. ”); Carideo v. Dell, Inc., 2009 WL 3485933, at *4 (W.D. Wash. 2009) (Pa129-134) (holding “‘express statement’ designating a specific arbitrator” was “integral to the arbitration clause” and court could not appoint a substitute arbitrator because it would “eviscerate the core of the parties’ agreement” and “constitute a wholesale revision of the arbitration clause. ”).  In other words, although public policy “favoring arbitration obliges us to resolve any doubts in favor of arbitration, we cannot compel a party to arbitrate a dispute before someone other than the designated arbitrator when that party had agreed to arbitrate disputes only before the arbitrator and the arbitrator” is not available.
[brief] \(^{18}\)  Although [...] disagrees that the SFRA and its amendments provide safety valves to offset what it refers to as “funding shortfalls[,]” (Ab34), as set \(^{18}\)  Notably, the payroll tax in Jersey City does not violate the T&E clause, as nothing in the Abbott line of cases suggests the T&E clause “prohibits the Legislature from providing a municipality with other revenue raising tools it may employ to supplement its share of school costs with providing its children with an adequate education. ”  Mack-Cali, 466 N.J. Super. at 426-247.  forth above, there is nothing unconstitutional about requiring a local district to contribute to the cost of educating its children — especially with the type of drastically rising income and property wealth Jersey City enjoys.  While it is the State’s obligation to establish an educational system that provides T&E, it may do that “by financing education either on a Statewide basis with funds provided by the State, or in whole or in part, by delegating the fiscal obligation to local taxation. ”  Robinson IV, 69 N.J. at 142.  And, following extensive legislative hearings, the State made necessary adjustments to the funding formula to allocate State aid on a wealth-equalized basis, as originally intended.  With the SFRA amendments, the State took firm steps to realize the promise of the SFRA by distributing the cost of financing education so that it falls more heavily on those districts with the ability to contribute more locally — an approach that our Supreme Court found to be constitutionally permissible in Abbott XX.  As a result, the District will be called upon to pay its fair share, just like other districts across the State.  While [...] may disagree with the decision as a policy matter, it does not equate to a constitutional violation.  2.
[brief] During the course of the Lease, [...] had fallen behind in its rental payments in 2019 and in April of 2019 [...] and [...] entered into a Consent Order setting forth the amount of the arrears, and a schedule to pay back those arrearages.  The 2019 Consent Order also acknowledged that the February 2015 Lease remained in place.  In June of 2020 [...] filed this action to recover unpaid arrearages under the February 2015 Lease.
[brief] The statute explicitly provides for several disclosure exemptions, but mail vendors are not included in those exemption [sic].  We are aware of at least one unpublished federal court decision addressing the same issue and it is in accord with *Hunstein I* and *II*, *Khimmat*, and *Jackin*.  We have found no contrary unpublished federal decisions, but Plaintiff does not rely on unpublished decisions.  Cf. R. 1:36-3.  --- 2  *Ali v. Credit Corp. Sols., Inc.*, No. 21-cv-5790, 2022 U.S. Dist. LEXIS 59126, 2022 WL 986166 (N.D. Ill. Mar. 30, 2022).  It was cited below and is reproduced beginning at Pa50.  And the plain meaning analysis applied in the federal decisions do not yield an absurd result.  Rather, as discussed below in Point IV.A., applying the plain language is consistent with the FDCPA’s expressed legislative purpose because it prevents disclosing private, confidential information to unregulated, unidentified third parties and thereby reduces the risk that a practice of sharing that information with others is or can lead to an invasion of individual privacy.
[brief] Pa69.  After multiple meetings and a public hearing, during which [...] revised its plans numerous times to include the multiple recommendations and suggestions of the Zoning Board, the Zoning Board (in a 4-3 vote in favor of the application) denied the First Application on March 21, 2022, and adopted a memorializing resolution on April 18, 2022.  Pa105.  In or around June 2022, [...] again applied to the Zoning Board seeking, among other relief, a d(1) use variance and a d(4) FAR variance on a greatly reduced-sized project (the “Second Application”).  Pa439.  Similarly, the Second Application requested four (4) bulk variances.  Id.  After a public hearing spanning five (5) meetings, the Zoning Board denied the Second Application on November 21, 2022, and adopted a memorializing resolution on December 19, 2022.  Pa144.  On March 15, 2023, [...] filed a complaint in lieu of prerogative writs with the Superior Court of New Jersey challenging the Zoning Board’s denial of the Second Application.  Pa41.  The case was briefed, and the trial court heard oral argument on September 22, 2023.  Concurrently on September 22, 2023, [...] issued an opinion and final Order, confirming the Zoning Board’s denial of the Second Application.  Pa1.  Thereafter, [...] filed a notice of appeal on November 6, 2023.  Pa438.  **STATEMENT OF FACTS**
[brief] BECAUSE THE SENTENCING COURT’S ANALYSIS OF THE STATE V. YARBOUGH FACTORS WAS IMPERMISSIBLY BASED ON DISMISSED CHARGES AND SPECULATION NOT SUPPORTED BY COMPETENT, CREDIBLE EVIDENCE IN THE RECORD AND BECAUSE THE COURT OFFERED NO OTHER VALID BASIS FOR THE IMPOSITION OF A CONSECUTIVE SENTENCE, THIS COURT SHOULD REVERSE AND DIRECT THE TRIAL COURT TO IMPOSE THE CERTAIN PERSONS SENTENCE CONCURRENTLY TO THE ROBBERY SENTENCE.
[brief] On November 30, 2023, the Parties attended a mandatory court-ordered arbitration before retired Judge [...], the former presiding judge of Hudson County Superior Court, Chancery Division.  Da1.  Judge Sarkisian (as Arbitrator) issued a decision ruling that he was not in a position to rule on the merits of [...]’s application for the entry of the Consent Judgment.  Ibid.  In his Addendum, Judge Sarkisian noted the allegations that [...] engaged in self-help to possession before the vacation date and that the case required a hearing or separate action for a determination on entitlement to additional damages.  Ibid.  On December 14, 2023, [...] filed a notice of rejection of the Arbitrator’s award and request for trial de novo.
[directive] In addition to restricting a defendant’s contact with the victim, the court may enter an order: a. restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members; b. restraining the defendant from making contact with the plaintiff or others, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim; c. prohibiting the defendant from stalking or following, or threatening to harm, to stalk or to follow, the complainant or any other person named in the order in a manner that, taken in the context of past actions of the defendant, would put the complainant in reasonable fear that the defendant would cause the death or injury of the complainant or any other person.  Behavior prohibited under this act includes, but is not limited to, behavior prohibited under the provisions of P.L.1992, c.209 (C.2C:12-10); d. providing for any other appropriate restraints necessary to protect the victim.
[brief] (T41:16-41:20).  C.  **Order Granting Defendants’ Motion to Dismiss.  (PA000087-PA000094). **  On January 10, 2024, the Motion Judge rendered an order granting Defendants’ Motion, and another order denying Plaintiff’s Cross Motion.  (PA000087-PA000094).  In doing so, the Motion Judge provided a Statement of Reasons for this decision.  (PA000088-PA000092).  Particularly, the Motion Judge reasoned, “Motions to dismiss are only granted in the ‘rarest of circumstances’” and “a complaint will survive a motion to dismiss if a broad reading gives rise to a mere suggestion of a cause of action. ”  (PA000088) (emphasis added).  The Statement of Reasons went on to state the elements of a CEPA violation, and a Pierce claim of retaliation, respectively.  (PA000088-PA000089).  Thereafter, the Motion Judge addressed Plaintiff’s CEPA claim, finding:  [T]here is no substantial nexus between the complained of conduct and a law or public policy identified by the plaintiff.  Plaintiff does not offer another statute/public policy or additional facts in its proposed Amended Complaint to link the complained of conduct to a law or public policy.  Therefore, this Court grants Defendant’s motion as to Count 1. (PA000091).  With respect to Count Two, the Motion Judge found, “the plaintiff has not successfully established a clear and well-grounded mandate of public policy.  Similar to her CEPA claim, she relies on regulations that are limited to her alleged complaints and do not reasonably express a distinct mandate of public policy…Therefore, this Court grants Defendant’s motion as to Count 2. ” (PA000091-PA00092).  The Motion Judge concluded, “for the foregoing reasons, the motion to dismiss is granted in its entirety. ”  (PA000092).  IV.  ARGUMENT A. Legal Standard (Not raised below).
[brief] “Counsel did not obtain an independent evaluation of the ballistic evidence or the forensic evidence in the case.  Such an investigation may have led to information useful in creating a defense to the charges, especially since two individuals were charged with the murder. ”  In Troedel, supra, 667 F. Supp. 1461, there were two defendants and the crucial issue was who fired the fatal shot.  The prosecution's expert testified that the defendant had fired the shot, but the defendant's expert at the federal habeas hearing showed that the prosecution's expert did not base his conclusion on the tests the prosecution conducted.  Because the expert's testimony was the only way that the jury could have found beyond a reasonable doubt that the defendant had fired the lethal shot, trial counsel's failure to investigate prejudiced the defendant, the court ruled, see also Caro v. Woodford, 280 F.3d 1247, 1254–56 (9th Cir. 2002) (counsel deficient for failing to consult expert and present expert testimony about physiological effect of toxic chemical exposure on defendant's brain); Driscoll v. Delo, 71 F.3d 701, 709 (8th Cir. 1995) (finding that “defense counsel's failures to prepare for the introduction of [state's scientific evidence]” and “to subject the state's theories to the rigors of adversarial testing” involving “an issue of the utmost importance” in the state's case constituted ineffective assistance).
[brief] Id. at *7-*8.  The Equipment Rental Agreement states, in part:  To the fullest extent permitted by law, I also agree to DEFEND, INDEMNIFY AND HOLD HARMLESS [...] from any and all claims, suits, costs and expenses including attorneys’ fees for personal injury, death or property damage against it by me or third parties arising or allegedly arising out of or resulting from my conduct while utilizing [...]’s facilities or the use of this equipment whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part.  The Lift Ticket Release Agreement states, in part:  INDEMNIFICATION.  To the fullest extent permitted by law, I agree to DEFEND, INDEMNIFY AND HOLD HARMLESS [...] from any and all claims, suits, costs and expenses including attorneys’ fees asserted against [...] by me or third parties arising or allegedly arising out of or resulting from my conduct while utilizing [...]’s facilities WHETHER OR NOT MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part.  Vladichak, 2022 N.J. Super. Unpub. LEXIS at *8.  The Appellate Division agreed with the motion judge that these indemnity provisions are ambiguous as to claims of [...]’s independent negligence.  Ibid.  The Appellate Division specifically held:  Although the provisions reference [...]’s negligence in bold and capitalized letters, the language “arising out of or resulting from my conduct . . . whether or not MOUNTAIN CREEK’S NEGLIGENCE contributed thereto in whole or in part” is insufficient to meet the Azurak standard.  One could reasonably interpret the provisions to require indemnification and defense of [...] for any claims of negligence against it caused by [...]’s conduct even when [...] is partially at fault or to require [...] to indemnify and defend [...] for separate claims of its own negligence.  Id. at *8-*9 (internal citation omitted)(emphasis added)  The Court ultimately concluded:  An indemnitee may expect to indemnify and defend an indemnitee for claims caused by its negligent conduct when the indemnitee may also be at fault but may not expect to be solely responsible to indemnify and defend the indemnitee when the indemnitee has committed separate acts of negligence.  That is the case here, as plaintiff’s complaint alleged [...] was separately negligent for failing to provide adequate instructions to skiers and a safe ski environment.  A better— and likely enforceable— provision would explicitly state that the indemnitee indemnifies [...] for claims arising out of indemnitee’s conduct and for claims of [...]’s independent negligence.  The provisions at issue do not meet the bright line rule requiring “unequivocal terms” that the duty to indemnify extends to the indemnitee’s own negligence.  Thus, the provisions are ambiguous and must be strictly construed against [...]…
[brief] Other cases cited by Appellants are inapposite.  In Rowen Petroleum Properties, LLC v. Hollywood Tanning Systems, Inc., 899 F. Supp. 2d 303, 307 (D.N.J. 2012), both parties agreed that the Ohio choice-of-law provision in a lease should not apply because “Ohio has no connection with the present litigation. ”  In Bailey v. Wyeth, Inc., 422 N.J. Super. 343, 347 n.5 (Law Div. 2008), the court did not perform a choice-of-law analysis.  Fourth, Appellants contend that [...]’s wholesaler licenses in New York are irrelevant because “Appellants distribute non-Sapporo products and must maintain those licenses notwithstanding its relationship with Sapporo. ” (Pb at 21.)  However, if [...] did not maintain its wholesaler licenses and separate business premises in New York, [...] would have been unable to execute the Wholesaler Agreement or distribute 90% of its Sapporo products in New York.  Moreover, the case Appellants cite to support this contention, *Diversant, LLC v. Carino*, No. 18-3155, 2018 WL 1610957 (D.N.J. Apr. 2, 2018) (Pa155-Pa159), did not address whether state wholesaler licenses constitute a “substantial relationship” with that state.  In short, there is more than a sufficient relationship between the parties, their dealings, and New York to meet the first Restatement factor.
[brief] The Prosecutor committed Prosecutorial Misconduct by insinuating that [...] was lying on Direct Examination (7T:153-19 to 155-13); (17T:75-25 to 78-21)  In Rivera, the Court found that the prosecutor expressing his personal opinion that the defendant was lying in conjunction with other instances of prosecutorial misconduct warranted the reversal of the defendant’s conviction and a remand for a new trial.  Rivera, 437 N.J. Super. at 463 (citing State v. Marshall, 123 N.J. 1, 154 (1991)).  The Appellate Division cautioned in Rivera, “[i]t is improper for a prosecutor to express his personal opinion on the veracity of any witness. ”  Here, the Prosecutor asked [...] what [...] wanted to talk to his shrink about.
[brief] Plaintiff [...] demanded an explanation from Defendant [...].  326a-328a (9:9-11:22).  In response, Defendant [...] argued that he had improved their [...] deal because the change from market units to affordable housing units would make Plaintiff [...] and [...] $6 million without having to improve the property as required in the original deal.  340a-342a (23:22-25:1).  Ultimately, in April 2007, [...] approved a Reexamination of the [...] Master Plan that rezoned [...] for 100% affordable housing.