ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Next, the PCR court denied defendant’s claim that counsel was ineffective for failing to call [...] as a defense witness at trial.  (21T15-3 to 17-20).  It found that under Rule 3:22-10(c), any factual assertion that provided the predicate for a claim of relief must be made by an affidavit or certification pursuant to Rule 1:4-4, and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing.  (21T15-3 to 10).  It found that the factual assertion was that [...] would testify that [...] told him that [...] was willing to lie at trial and implicate defendant to help [...]’s case.  (21T15-10 to 13).  It noted there were no affidavit or certification from [...] about what he would testify to if he were called, and only a report of an interview conducted by the defense investigator.  (21T15-14 to 19).  The court concluded there was no affidavit or certification from [...] and, while he promised to tell the truth, there was no criminal exposure or penalty if [...] was not telling the truth when he gave the statement to the investigator.  (21T16-4 to 25).  Without factual support or rule compliance, the court ruled that defendant’s claim failed.
[brief] See *Tsetsekas*, 411 N.J. Super. at 12 (“*Barker*’s second prong examines the length of a delay in light of the culpability of the parties. ”).  The burden is on the State to demonstrate the reason for the delay.  *Battis*, 589 F.3d at 680 (citation omitted); see also Cahill (“In the end, however, the State offers no explanation for the delay.  This factor also weighs heavily against the State. ”).  The trial court found that the State had satisfied its burden because [...] was in federal custody and because the court believed there was no evidence that the State knew of [...]’s whereabouts.
[brief] 94 N.J. at 301.  The problem again, as here, was the lack of established standards.  The Court held that the agency was still required to promulgate regulations before exercising that power because “due process requires some standards, both substantive and procedural, to control agency discretion. ”  Id. at 301 (“the ‘function of filling in the interstices of the [statutory legislation] should be performed . . . through th[e] quasi-legislative promulgation of rules to be applied in the future.  . . .’”).  The absence of regulations establishing the criteria upon which the agency would base its decision was thus “fatal to the agency actions” and the agency’s decision was “invalid. ”
[brief] By doing so, the trial court completely ignored the plain language of the Genesis Deed requiring all property owners to “faithfully abide” by the property owner’s associations rules and requiring separate approval from [...] prior to any “building, alternation, or addition” on properties within the [...] community.  The facts present herein are similar to those in *Alloco v. [...]*, 456 N.J. Super. 124 (2018).  In *Alloco*, this Court interpreted a very similar deed vesting the [...] (the “[...]”) with authority to adopt rules and regulations.  *Id.* at 132.  Like [...], the [...]’s 1950 Certificate of Incorporation gave it a broad mandate “[t]o promote and protect the general welfare and property rights of the property owner members in the use and enjoyment of their property at” the [...].  *Id.*  The deed and the [...]’s bylaws, like [...]’s, required all property owners to be a member of the [...] and follow its rules.  *Id.*  The [...], like [...], adopted rules restricting building heights and enforced them against a member who sought to exceed the height limitation.  *Id.* at 133.  The Appellate Division affirmed the grant of summary judgment to the [...], finding that the deed expressly permitted the implementation and enforcement of “rules and regulations,” and that the business judgment rule insulated the [...] from liability arising out of its implementation and enforcement of those “rules and regulations. ”  Id. at 134-35.  Here, [...] operated in much the same way and under a similar grant of authority as the [...] did in Alloco.  The trial court’s decision of both overlooking the relevant authority of [...] in conjunction with stripping [...] of its authority is inconsistent with this Court’s holding in Alloco, in contravention of the Genesis Deed’s broad grant of authority, and ignores the 75 years of past practice further demonstrating the [...]’ intent to vest [...] with the authority that the trial court has summarily stripped away.
[brief] Sanctions should never have been imposed.  (1T, 2T, 3T, Pa1 – Pa186)  Obviously, if even just one of the claims was valid, then the complaint as a whole was not frivolous.  \textit{United Hearts, LLC v. Zahabian}, 407 NJ Super. 379, 394 (App. Div. 2009) (holding that a pleading will not be considered frivolous for purposes of imposing sanctions under \textit{Rule 1:4-8} unless the pleading as a whole is frivolous).  Moreover, even assuming arguendo if there was some fatal flaw with each and every claim asserted, even still sanctions should not have been imposed.
[brief] …  [A]pplicant failed to prove that the disturbance of steep slopes as presented could not be lessened by design changes to the project.  Applicant failed to provide adequate proofs to establish that compliance with this ordinance provision (or, at least to achieve some level of compliance as each slope category has disturbance at 100%) would be impractical or would exact undue hardship because of specific conditions pertaining to this property.  Da140-143.  In the face of the Board’s findings of the substantial negative effects of the proposed development, both as to the zone plan and zoning ordinance, as well as the excessive bulk and density without adequate justification, the Board’s determinations on these variances and design exceptions were neither arbitrary, capricious nor unreasonable.
[brief] On September 12, 2012, [...] rendered the decision.  “Now what we have in this case are really not one agreement, but a series of agreements.  Again, only one of which was presented to the Court at the time of the divorce, which is very troubling.  Because there are some inconsistencies between the agreements.  The agreement that -- agreements that were in Chinese, quite frankly, were the ones I would expect [...] to understand better than anything else because that’s her native language. ”  (See Da130-131 and Da412-425)  [...] had so much concerns why only 12 days after the Chinese Agreements were signed, the English PSA was so much different from the Chinese Agreement.  “Now only 12 days later they come to court—or only in May, but only 12 days later, they come—they sign an agreement, which by their own agreement doesn’t even mention the company. ”  “Also these agreements, I don’t know if they’re superseding agreements, if they’re read — intended to be read together.  Certainly the Chinese agreements are not consistent, taken as a whole, with the English agreement.  And I think the English agreement, quite frankly in the way it was presented to the Court, unfortunately rises to the level of a fraud upon the Court.
[brief] (Sb 3)  The State reasons that because there was sufficient evidence to convict of manslaughter, the inconsistent verdict provides no grounds to vacate the conviction.  (Sb 3-4)  The State’s assertions should be rejected for several reasons.  First, as explained in [...]’s initial brief, the problem here is not any inconsistency between the verdicts on different counts; it is that the very first unanimous decision the jury reached was that the State failed to disprove self-defense.
[brief] \(^8\)  **Third**, under New Jersey law, “[t]he occurrence of an accident and the fact that someone was injured are not sufficient to demonstrate a defect. ”  *See Lauder v. Teaneck Volunteer Ambulance Corps*, 368 N.J. Super. 320, 332 (App. Div. 2004).  Manufacturers are not subject to “absolute liability. ”  *Myrlak v. Port Auth. of N.Y & N.J.*, 157 N.J. 84, 98 (1999).
[brief] THE TRIAL COURT ERRED BY FAILING TO HEAR ORAL ARGUMENT ON TWO SEPARATE SUMMARY JUDGMENT MOTIONS.  (Da310)  On June 10, 2020, the Court granted Plaintiffs’ request for partial summary judgment as to Count VI and summary judgment as to Counts II and III of Plaintiffs’ Amended Verified Complaint. \(^{81}\)  The Court’s Order was issued without hearing oral argument by either side, despite a request for oral argument having been included in the moving papers, and despite very little factual support submitted by the Plaintiffs. \(^{82}\) Rule 1:6-2(d), which governs oral \(^{81}\) Da310.  \(^{82}\)  The supporting documentation submitted by Plaintiffs with their two (2) summary judgment motions is largely circumstantial and falls far short of the standard necessary to prevail on a motion for summary judgment.  The letter briefs submitted by Plaintiffs’ counsel have been included in the appendix for this reason, as they make apparent the fact that the trial court relied primarily on counsel’s arguments and characterizations of certain documents, rather than on the contents of the documents themselves.  Counsel also attempts to present “testimony” akin to that of an expert in his briefs – e.g. he characterizes a signature by [...] ([...]’s former chief operating officer) as a possible forgery based upon his own “hand-writing analysis” which he discusses at length in his brief.  These types of arguments by counsel had the desired effect – they caused the trial court to look beyond the facts and to rule based on the picture of [...] painted by [...]’s false narrative.  argument on motions in the civil division, provides in relevant part, “…no motion shall be listed for oral argument unless a party requests oral argument in the moving papers or in timely-filed answering or reply papers, or unless the court directs.  A party requesting oral argument may, however, condition the request on the motion being contested.  If the motion involves pretrial discovery or is directly addressed to the calendar, the request shall be considered only if accompanied by a statement of reasons and shall be deemed denied unless the court otherwise advises counsel prior to the return day.  As to all other motions, the request shall be granted as of right. ” (Emphasis added).  Thus, the Court erred in not granting oral argument on Plaintiffs’ motion.
[brief] While [...] correctly points out that “intertwinement [by itself] is insufficient to compel arbitration under a theory of equitable estoppel[,]” [...] fails to point out that [...] nonetheless satisfies New Jersey’s heightened estoppel standard. \(^1\)  The equitable estoppel path requires, in addition to \(^1\)  In 2013, the New Jersey Supreme Court ‘reject[ed] intertwinement as a theory for compelling arbitration when its application is untethered to . . . evidence of detrimental reliance . . . .
[brief] As the trial court recognized, [...] simply tried to dress its PIP benefits dispute as sounding in fraud that is purportedly not arbitrable.  Pa7.  As to the IFPA claim, the trial court harmonized the IFPA and the No-Fault Law, which are at odds because the former referred to a court while the latter referred to arbitration.  Pa6.  The court concluded that “[...]’s IFPA claims can potentially be resolved in court, but it is not mandatory” to do so, while all PIP benefits disputes are required to be arbitrated.
[brief] (38974a-38975a).  Importantly, neither [...] nor the Appellate Division made any findings or ruling that compound interest was warranted.  Equally as important, in its remand direction, this Court did not direct that interest be compounded with respect to the recalculation of damages for either [...] or [...].  [...] in her December 20, 2013 decision did not make any finding on the merits as to whether compound interest was justified and appropriate.  Absent a finding and/or appellate ruling, only simple interest should be applied to Plaintiffs’ damage awards.
[brief] [...] is not hindered in advancing defenses as to [...] and his practices or [...].  Certainly, [...] has no basis to determine otherwise at the outset of a case as it did here—and coincidentally only after the [...] jointly moved to compel arbitration of [...]’s claims as part of their defense.  To this end, the Supreme Court was clear that this evaluation is left to the Mandelbaum Firm (and [...] as to the other defendants); it is not left to [...]’s and [...]’s adversary, [...].
[brief] 21, 27 State v. Moffa, 42 N.J. 258 (1964) ...............................................................  15 State v. O’Carroll, 385 N.J. Super. 211 (App. Div. 2006) ............................  28 State v. Peterson, 181 N.J. Super. 261 (App. Div. 1981) .............................  20 State v. Pierce, 188 N.J. 155 (2006) ...........................................................  58, 60 State v. Ramirez, 246 N.J. 61 (2021) ...........................................................  29 State v. Ramsey, 415 N.J. Super. 257 (App. Div. 2010), certif. denied, 205 N.J. 77 (2011) ......................................................................  27 State v. Reyes, 50 N.J. 454 (1967) ...............................................................  21 State v. Rivera, 249 N.J. 285 (2021) ...........................................................  57 State v. Roth, 95 N.J. 334 (1984) ...............................................................  57 State v. Sanchez, 224 N.J. Super. 231 (App. Div.), certif.  denied, 111 N.J. 653 (1988) ................................................................. 22, 27 State v. Savage, 172 N.J. 374 (2002) .................................................. 53 State v. Schmidt, 110 N.J. 258 (1988) .................................................. 19 State v. Simon, 421 N.J. Super. 547 (App. Div. 2011) .............................. 62, 63 State v. Smith, 262 N.J. Super. 487 (App. Div.), certif. denied, 134 N.J. 476 (1993) ........................................................................... 42 State v. Spivey, 179 N.J. 229 (2004) .................................................. 19 State v. Spruell, 121 N.J. 32 (1990) ..................................................... 51, 52 State v. Sugar, 240 N.J. Super. 148 (App. Div. 1990) ............................... 15 State v. Thomas, 187 N.J. 119 (2006) .................................................. 26 State v. Tillery, 238 N.J. 293 (2019) ..................................................... 60 State v. Timley, 469 P.3d 54 (Kan. 2020) ............................................. 41 State v. Townsend, 186 N.J. 473 (2006) ................................................ 40
[brief] “[W]here the Legislature uses the same language more than once in a statute, the same _____________________  2  Not relevant to this case, the Ancrum Court faced the additional question of whether the disqualification for the present offense of second-degree aggravated assault survived the merger of that crime into second-degree robbery (as second-degree robbery is not a disqualifying offense under subsection (b)(2), and this Court held that the disqualification for a present conviction second-degree aggravated assault does survive the merge.
[brief] **IMMEDIATE APPELLATE REVIEW IN THIS CASE IS NOT APPROPRIATE BECAUSE GRANTING THE STATE’S MOTION TO ADMIT WAS PROPER.**  Defendant contends he has demonstrated it is in the interests of justice for the Appellate Division to grant leave to appeal from the trial court’s interlocutory order. (Db7-9).  “Interlocutory review is ‘highly discretionary’ and is to be ‘exercised only sparingly. ’”  *Grow Co., Inc. v. Chokshi*, 403 N.J. Super. 443, 461 (App. Div. 2008) (quoting *State v. Reldan*, 100 N.J. 187, 205 (1985)).  This is so because judicial policy “favors an ‘uninterrupted proceeding at the trial level with a single and complete review. ’”  *Reldan*, 100 N.J. at 205 (citation omitted).  An appellate court will only exercise its discretion if the moving party not only “establish[es], at a minimum, that the desired appeal has merit,” *Brundage v. Est. of Carambio*, 195 N.J. 575, 599 (2008), but also demonstrates that “justice calls for [an appellate court’s] interference in the cause,” *ibid.* (alteration in original) (quoting *Romano v. Maglio*, 41 N.J. Super. 561, 568 (App. Div. 1956)).  An appellate court will not grant a party leave to appeal “to correct minor --- 4 Point II of the State’s brief addresses Point I of defendant’s brief. injustices. ”  Grow Co., Inc., 403 N.J. Super. at 461 (quoting Brundage, 195 N.J. at 599).  For the reasons set forth above, the trial court properly granted the State’s motion to admit defendant’s statement.  Given that the grant was proper, defendant has not demonstrated his appeal has merit or that justice calls for the Appellate Division’s interference.  Accordingly, this Court should not grant defendant leave to appeal from the court’s order granting the State’s motion to admit.
[brief] (Pa128-141)  In its written decision, the trial court neither analyzed the award nor the CBA.  Rather, the trial court merely rejected [...]’s arguments that the award established a new work rule precluding [...] from terminating employees on temporary disability, no matter the period of their absence, and usurped the [...]’s right under the law and the CBA to establish the qualifications for continued employment.  Moreover, the trial court’s decision did not analyze whether the Arbitrator’s decision adhered to the CBA’s terms and conditions.
[brief] . . . . . . . . . . . . . . . . . . . . . 2 CONCLUSION ............................................................ 5 | CASE LAW | | --- | | *Branch v. Cream-O-Land Dairy*, 244 N.J. 567 (2021) . . . . . . . . . 2 | | *Lahue v. Pio Costa*, 263 N.J. Super. 575 (App. Div. 1993) . . . . . 4 | | *Morey v. Borough of Wildwood Crest*, 18 N.J. Tax 335 (App. Div. (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 | | *Wilson v. Grant*, 297 N.J. Super. 128 (App. Div. 1996) . . . . . . . . . 4 | | COURT RULES | | --- | | R. 2:6-1(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 | | R. 4:49-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 |  PRELIMINARY STATEMENT  Appellant appeals from a 10/27/23 order denying its cross-motion for reconsideration.  This order should easily be affirmed as the issue raised on appeal was never initially raised by Appellant below.  PROCEDURAL HISTORY
[brief] Johnson v. Roselle EZ Quick, LLC, 143 226 N.J. 370, 382-83 (2016); N.J.S.A. 39:6A-1 et seq.; N.J.S.A. 39:6B-1 to -3.  Pursuant to the No-Fault Law, patients treated for injuries sustained in automobile accidents assign their rights to PIP Benefits to the medical provider who provides the treatment.  Under the assignment, the provider seeks reimbursement from the insurer for the treatment.  In 1983, the Legislature revised the No-Fault Law to require PIP Benefits disputes to be resolved through arbitration rather than through the courts.
[brief] POINT TWO  In light of the conflict between the [...] policy and state law, the reasonable expectation of the insured that a 6-year limitation period applies should control.  The foregoing conflict creates an ambiguity between the contract provision and statutory law.  In such circumstances, the reasonable expectation of the insured to a 6-year limitation period controls.  "[I]nsurance policies are contracts of adhesion and as such, are subject to special rules of interpretation."  Gibson v. Callaghan, 158 N.J. 662, 669 (1999) (citing Longobardi v. Chubb Ins. Co., 121 N.J. 530, 537 (1990); Meier v. N.J. Life Ins. Co., 101 N.J. 597, 611-12 (1986)).  "When there is ambiguity in an insurance contract, courts interpret the contract to comport with the reasonable expectations of the insured, even if a close reading of the written text reveals a contrary meaning."  Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (1999) (citing Gibson v. Callaghan, 158 N.J. at 671).  "'The objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations.'"  Sparks v. St. Paul Ins. Co., 100 N.J. 325, 338-39 (1985) (quotations omitted).
[brief] ”  Aa0052 (emphasis added).  As established above, however, [...]’s proposed activity regarding Compressor Station 327 must be a “routine upgrade” to qualify for Exemption #11 and the relevant standard is whether its purpose is serving the reliability needs of [...]’s existing customer base.  32  [...]’s failure to articulate a rationale on this issue renders its decision regarding the first component of Exemption #11 arbitrary and capricious even if the related question of law were decided in the state agency’s favor.  In addition, Environmental Appellants note that – even if we assume that [...] accepted [...]’s proposed activity as an “upgrade” – the agency failed to establish why the construction of an entirely “new” compressor station and appurtenant structures to serve "new" customers in New York constituted an "upgrade" of an existing system.  Here, [...] asserts in its HAD Request that there are two reasons why the overall East 300 Upgrade Project is needed: “Tennessee’s Project is necessary [1] to meet the market needs of its Project Shipper [i.e. [...]] and [2] to enhance the reliability and capacity of natural gas to its customers in the northeastern United States.
[brief] "Commonality does not require an identity of claims or facts among class members; instead, 'the commonality requirement will be satisfied if the named --- 120 *W. Morris Pediatrics, P.A. v. Henry Schein, Inc.*, 385 N.J. Super. 581, 595 (Law. Div. 2004), aff’d, No. A-3595-04 (App. Div. Mar. 30, 2006)(citations omitted).  121  *Liberty Lincoln Mercury, Inc. v. Ford Mktg. Corp.*, 149 F.R.D. 65, 73 (D.N.J. 1993)(“precise enumeration of the members of a class is not necessary. ”); see also *Zinberg v. Washington Bancorp, Inc.*, 138 F.R.D. 397, 405 (D.N.J. 1990)(“It is proper for the court to accept common sense assumptions in order to support a finding of numerosity. ”)  122  See *Kronisch v. Howard Savings Institution*, 133 N.J. Super.124, 132 (Law Div. 1975)(“It is not necessary that the exact numbers comprising the class be specified or that the members be identified. ”); *Gallano v. Running*, 139 N.J. Super. 239, 245 (Law Div. 1976) (“This court makes no effort to determine the exact number of members nor their identity, since such an exercise goes well beyond the court’s duties so long as the class itself is well defined. ”).  123  See e.g. *Daniels v. Hollister Co.*, 440 N.J. Super. 359, 369-70 (App. Div. 2015).  124  *Baby Neal v. Casey*, 43 F.3d 48 (3d Cir. 1994).
[brief] Applying these principles, we agree with the Law Division that the indemnification and defense clause applied to the *Vitty* claim.  In reaching this conclusion, we acknowledge that *Vitty*'s death resulted from a freak accident that perhaps could not have been envisioned by the parties.  However, clearly an automobile accident involving a tow truck was a reasonably foreseeable event within the contemplation of the parties when they entered the towing agreement.  *Vitty*, supra, at 453.  The Supreme Court held in *Azurak* that for an indemnification clause to be enforceable in indemnifying an indemnitee's own negligence, it must be clear and explicit.