ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] STANDARD OF REVIEW.  In New Jersey, the Appellate Court's review applies to the validity and enforceability of arbitration agreements, as well as the applicability and scope of such agreements.  Hirsch v. Amper Financial Services, LLC, 215 N.J. 174 (2013).  Essentially, the Appellate Court reviews the trial court's legal determinations with no special deference to the trial court's conclusions.  Ibid.  The New Jersey Arbitration Act mandates this Court, not an arbitrator, decide whether an agreement to arbitrate exists and that the controversy is subject to an agreement to arbitrate.  N.J.S.A. 2A:23B-6(b).  If those questions are to be answered summarily, like here by way of motion practice, the Court must view all facts and inferences in the light most favorable to the non-movants, Plaintiffs.  Kleine v. Emeritus at Emerson, 445 N.J. Super. 545, 548 (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).  Under that standard of review, [...] have not met their burden for the court to grant summary judgment to compel arbitration.  See id. at 551 (“[A]rbitrability was decided summarily.  At that stage, the judge was required to assume the truth of [the alleged contracting party’s] sworn statements and consider the language of the agreement in the light most favorable to plaintiff. ”).  Critically in this case, and as recognized by Kleine, the standard requires any factual dispute about arbitrability to be resolved by way of evidentiary hearing.  Ibid. (citing Muhammad v. Cnty. Bank of Rehoboth Beach, 189 N.J. 1, 15 (2006)).  Given the differences between Plaintiffs’ deposition testimony and [...]’s assumptions, any determination in favor of arbitrability must come after a hearing, not summary motion practice.  II.
[brief] THE JUDGMENT INCLUDES ATTORNEYS FEES, THOUGH THAT RELIEF WAS DENIED BY THE MARCH 18, 2022 ORDER FOR ENTRY OF JUDGMENT  There is, additionally, an error in the amount of the award entered by way of the Judgment, as the court expressly rejected [...]’s bid for attorney’s fees.  [...] sought a 20% enhancement to the compensatory portion of the Judgment, relying upon a provision of its By-Laws that states:  In the event that the Board shall effectuate collection of said charges by resort to Counsel, the Board may add to the aforesaid charge or charges a sum or sums equal to twenty (20%) percent of the gross amount due as counsel fees, in addition to such costs allowable by law.  [Da29, [...] Cert., ¶13]  Although the provision for an award of legal fees was struck out of the Order entered on March 18, 2022 (Da5), attorneys’ fees of $15,501.23 are included in both of the liens previously filed against Unit No. 1 and Unit No. 4 (Da33 & Da34, 2017 Liens).  That amount is roughly twenty percent (20%) of the sum of the Past Due Maintenance Fee, Late Fees, Interest, and Special Assessments listed on both liens.  Regardless, $31,002.46 is a patently unreasonable legal fee to charge for preparing and recording a pair of association fee liens.  Even $15,501.23 appears unreasonable unless the charges represent billing for other work.  But in that case, one would not expect identical fees listed on both lien documents.  It seems very likely that the total charges amounted to $15,501.23 and that [...] has been double-charged.  These lien documents garner additional import because [...]’s accounting of the association dues only go back as far as December 1, 2019 (Da36 & Da37, Statements of Account).
[brief] In conclusion, it is abundantly clear that [...] was accused by [...] of bias, harassment, and corruption.  [...] was aware that allegations of such had been made to the FBI.  Nevertheless, [...] did not recuse herself and ended up making not just one or two, but several prejudicial rulings against [...].  Specifically, [...] permitted, even precipitated an altercation between [...] and sheriff’s officers within earshot of the jury; and [...] even commented that everyone heard [...]’s voice shouting.  Also, [...] permitted 21 bankers boxes and piles and piles of documents to sit in front of the jury even though they should never have been admitted into evidence because they were never exchanged in discovery, and indeed could not have been because [...] had them sealed away in storage first opened at trial.  With regards to [...]’s expert, [...] made multiple errors.  She precluded his testimony because he did not review the 21 bankers boxes of material (which could not have been reviewed since they had not been provided in discovery); yet he permitted [...]’s expert who likewise did not review the very same 21 bankers boxes of documents.  Then that error was compounded when [...] permitted [...]’s attorney to draw conclusions in summation from the fact that [...]’s expert did not testify that the billing was not reasonable.  Finally, [...] permitted insults to fly against [...], while admonishing him, in front of the jury (rather than outside of its presence) against similar activity, and she permitted highly prejudicial evidence regarding third-party judgments to be admitted as evidence against [...].  For all these reasons, [...] was unable to have a fair trial, or at least the appearance of impartiality is reasonably in question.
[brief] That case was voluntarily dismissed immediately prior to trial.  The Complaint names [...] (Lot 19) as well as the seven tenants remaining in possession on lot 19 as of the date of taking, May 4, 2018.  Pursuant to the Order of [...], J.S.C. [...]  ([...]) submitted a new appraisal designating January 27, 1994 as the date of valuation, but while his report valued lot 18 as a fee simple estate as he had done for both lots 18 and 19 initially, his new appraisal for lot 19 was an opinion of only the leased fee estate, and he rendered no opinion as to the value of the fee simple estate.  [...] was very careful in his transmittal.  ---
[brief] Under the Federal Employer’s Liability Act (FELA) questions of foreseeability and causation are for the jury to decide.  Therefore, the trial court erred in granting defendant’s motion for summary judgment on these questions.  (T16 – T19)  As set forth by the United States Supreme Court in *CSX Transportation v. McBride*, foreseeability in FELA cases does not import case law originating in common-law actions.  Foreseeability under the FELA is based upon the statute, as explained in *McBride*:  "[R]easonable foreseeability of harm," we clarified in *Gallick v. Baltimore & Ohio R. Co.*, 372 U.S. 108 (1963), is indeed "an essential ingredient of [FELA] negligence."  372 U.S. at 117, 83 S. Ct. 659, 9 L. Ed. 2d 618 (emphasis added).  The jury, therefore, must be asked, initially:  Did the carrier "fai[1] to observe that degree of care which people of ordinary prudence and sagacity would use under the same or similar circumstances" *Id.*, at 118, 83 S. Ct. 659, 9 L. Ed. 2d 618.  In that regard, the jury may be told that "[the railroad's] duties are measured by what is reasonably foreseeable under like circumstances."  *Ibid.* (internal quotation marks omitted).  Thus, "[i]f a person has no reasonable ground to anticipate that a particular condition . . . would or might result in a mishap and injury, then the party is not required to do anything to correct [the] condition."  *Id.*, at 118, n. 7, 83 S. Ct. 659, 9 L. Ed. 2d 618 (internal quotation marks omitted).  If negligence is proved, however, and is shown to have "played any part, even the slightest, in producing the injury," *Rogers*, 352 U.S. at 506, 77 S. Ct. 443, 1 L. Ed. 2d 493 (emphasis added), then the carrier is answerable in damages even if the extent of the [injury] [***34] or the manner in which it occurred" was not "[p]robable" or "foreseeable."  *Gallick*, 372 U.S. at 120-121, 83 S. Ct. 659, 9 L. Ed. 2d 618 (internal quotation marks omitted); see 4 F. Harper, F. James, & O. Gray, Law of Torts § 20.5(6), p. 203 (3d ed. 2007); 5 Sand 89-21 McBride, 131 S.Ct. at 2643.  Under the FELA, a plaintiff is not required to establish that the railroad’s negligence was an immediate cause for the injury sustained.  Under the FELA, this argument of immediacy is irrelevant.
[brief] ”  (*Smith*, 167 N.J. at 181).  Before playing any surveillance footage for the jury, the prosecutor emphatically stated that “My perception, [defense counsel’s] perception, respectfully [the trial court’s] perception, the evidence doesn’t matter.  It’s your perception that controls both individually and as a group. ” (5T:87-12 to 15).  The prosecutor reminded the jurors of their position as the sole arbiter of the facts eleven times thereafter.  (5T:89-16 to 17, 96-5 to 8, 97-24 to 25, 99-13 to 15, 101-2 to 13, 103-1 to 2 and 20-21, and 104-10 to 11.).  In light of these reminders, as well as defense counsel’s arguments in summation concerning the differences between the shooter’s and defendants clothes on the available surveillance footage, the impact of the prosecutor’s allegedly improper statements was minimal and defendant’s right to “have a jury fairly evaluate the merits of his defense” was not substantially prejudiced.  (Smith, 167 N.J. at 181-82 (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)).
[brief] In this action against [...], plaintiff appeals from the order of the Law Division, Somerset County (Honorable [...], P.J.Cv.), entered August 7, 2023, that granted [...]’s motion to dismiss plaintiff’s complaint for failure to state a claim, pursuant to Rule 4:6-2(e) (Pa378\(^1\)-Pa379).  Plaintiff further appeals from [...]’s October 11, 2023 order that denied his motion for reconsideration of the order granting [...]’s motion to dismiss (Pa520-Pa521).  The complaint, seeking coverage for the underlying lawsuit against plaintiff
[brief] Social science has demonstrated the link between prison infractions and recidivism.  See, e.g., Beth M. Huebner and Mark T. Berg, Examining the Sources of Variation in Risk for Recidivism, 28 Just. Q. 146, 156, 158-60 (2011).  Additionally, the [...] heavily weighs prison infractions and participation in prison programming in predicting the likelihood that inmates will recidivate or comply with parole rules upon release.  The State Parole Board is charged with predicting whether inmates are likely to recidivate.  See In re Application of Trantino (Trantino II), 89 N.J. 347, 355 (1982) (for inmates whose offense was committed before 1997, the Board must determine whether “‘there is a substantial likelihood that the inmate will commit a crime under the Laws of this State if released. ’” (quoting N.J.S.A. 30:4-123.53(a) (1979)); N.J.S.A. 30:4-123.53(a) (2023) (for inmates who offense occurred after August 18, 1997, the Board must determine whether “there is a reasonable expectation that the inmate will violate conditions of parole”).  The Board has promulgated a rule setting forth the factors relevant to predicting an inmate’s likelihood of committing another offense upon release; five of the first eight factors relate to inmate behavior in prison, including infractions.  N.J.A.C. 10A:71-3.11(b)(1) (“Commission of an offense while incarcerated”); (b)(2) (“Commission of serious disciplinary infractions”); (b)(4) (“Adjustment to previous probation, parole and incarceration”); (b)(7) (“Pattern of less serious disciplinary infractions”); (b)(8) (“Participation in institutional programs . . . include[ing], but . . . not limited to, . . . academic or vocational education programs, work assignments that provide on-the-job training and individual or group counseling”).
[brief] It is telling that the Amici failed to cite any caselaw, decision, opinion or other determination that supports the position that parental notification violates the LAD.  As the [...] and [...] never had an issue with parental notification in the past, despite being in place since at least 2014, deference would not be appropriate.  It is of further importance that this matter stems from guidelines, which are not mandatory.  Instead, the [...] is making allegations based upon those guidelines, which is not akin to an agency interpreting a statute or regulation.  There was no formal process to adopt these guidelines, such as a public hearing, nor does the legislature require these guidelines be adopted.  Therefore, deference should not even be considered in the context of this matter.
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[brief] Plaintiff retained [...], P.E., as his design expert.  Pa136-58.  Mr. Leiss was retained to determine (1) “if [...]’s Honda was defective in a manner that caused the collision” and (2) “if a safer alternative design or designs existed that would have prevented the collision. ”  Pa137.  Mr. Leiss investigated defendant [...] research and proposals, National Highway Transportation Safety Agency reports, Insurance Institute for Highway Safety reports, including test reports of the performance of defendant [...]’s system in a 2017 Accord, and Consumer Reports Auto Safety reports, among other sources.  Pa155-57.  He reviewed and relied on the testimony of defendant [...]’s own engineer, [...].  Pa145-46; Pa156.  [...] testified to the availability of the LDW and LKAS systems on the 2016 model year CR-V – but only with the most expensive trim package.  Pa145-46.  [...] testified that both LDW and LKAS were made available on defendant’s vehicles sold in Japan as early as 2003 and vehicles marketed in Europe as early as 2006.  Pa145.  Based on the testimony of defendant’s engineer, his own investigation and [...]’s testing, Mr. Leiss concluded, to a reasonable degree of certainty, that equipping the subject CR-V with LDW and LKAS was a technologically and economically feasible alternative that when omitted made the vehicle unsafe.  Pa146-50.  The addition of a LDW and LKA system would have prevented [...]’s Honda from entering the oncoming traffic and the collision with [...]’s Ford.  These systems, as demonstrated in the study’s cited previously in this report, have the ability to reliably prevent lane departures, such as occurred in this case, by alerting the driver to an impending lane departure and autonomously redirecting the vehicle into its lane of travel.  These systems, as demonstrated in the references cited previously in this report, were technologically and economically feasible for several years prior to [...]’s Honda being produced.  Pa145.  Defendant [...] conceded that had the subject vehicle been equipped with LDW/LKAS/RDM and on, those systems would have provided some alerts.  However, the controversy vis-à-vis the LKAS boiled down (in expert analyses) to whether the system would have been activated and how [...] would have responded to it—fact questions.  The LKAS system as designed by defendant [...] defaults to “off” whenever the vehicle is turned off and, therefore, must be manually turned on by the driver every time the driver decides to use the system.  Rather than absolving defendant [...] of responsibility because it designed the safety systems to be disabled unless manually enabled, plaintiff’s experts have identified that default as an additional defect in the product such that it is not fit, suitable or safe.
[brief] [...] did not move to certify either order as a final judgment, and the trial court did not certify that there was “no just reason for delay,” after having heard from the parties and considered the issues; rather, it merely signed the proposed form of order filed with [...]’s moving papers, which was captioned as a “final judgment. ”  See *Leonardis v. Bunnell*, 164 N.J. Super. 338, 340 (App. Div. 1978) (“At the outset we deem it essential to point out that when a judgment does not dispose of all the issues between all the parties, the trial judge should not designate it as a final judgment under R. 4:42-2 unless he determines there is no just cause for delay.  His conclusory statement that it is a final judgment, when in fact it is interlocutory, will not turn an otherwise partial summary judgment into a final judgment”).  Failing such analysis, on notice to the parties, such “final judgment” is just an interlocutory order.  See id. (it is “essential for purposes of review by this court that the trial judge spell out his reasons for utilizing R. 4:42-2”).  This was also reversible error.  C.  The MCS-90 Endorsement Obligates an Insurer Only to Pay a “Final Judgment,” which the April 6, 2023 Order Granting Summary Judgment against [...] Was Not.
[brief] ’”  *State v. Wakefield*, 190 N.J. 397, 457 (2007) (quoting *State v. R.B.*, 183 N.J. 308, 330 (2005)), cert. denied, 552 U.S. 1146; 128 S.Ct. 1074; 169 L. Ed.2d 817 (2008).  Accordingly, a conviction will not be overturned for prosecutorial misconduct “‘unless the conduct was so egregious as to deprive defendant of a fair trial.
[brief] Significantly, the Fraud Act vests the determination as to whether a carrier is entitled to treble damages in the court.  It states, “a successful claimant under subsection a. shall recover treble damages if the court determines that the defendant has engaged in a pattern of violating this act. ”  N.J.S.A. 17:33A-7(b) (emphasis added).  Thus, a DRP does not have the authority to award treble damages thereby depriving carriers of a substantial remedy that the Legislature created to help them combat insurance fraud aggressively.
[brief] This observation regarding the Act does not answer any relevant question.  While the term “excessive” certainly appeared in the statute, it, among other things, (i) was undefined, (ii) the Department and other agencies have concluded that it is necessary to promulgate regulations to define the same term when used in other statutes, and (iii) even by the ALJ’s own admission, “excessive” carried with it no “standard” in advance of the adjudication but instead was filled-in after the fact, see Pa84 (“[s]ignificantly, the regulations and the Act do not define what constitutes excessive.
[brief] See State v. Laganelia, 144 N.J. Super 268 (App. Div. 1976) (bad faith can be found by willful deprivation of evidence or “egregious carelessness”); State v. Lewis, 137 N.J. Super. 167 (Law Div. 1976) (dismissing counts of indictment where State lost originals of documents); State v. Hunt, 184 N.J. Super. 304, 306-09 (Law. Div. 1981) (dismissing indictment where officer destroyed tape it determined “was of no value,” explaining that “it is not the prerogative of the State to determine what is or is not valuable evidence.  They may not select exhibits for and on behalf of defendant. ”)  This also constitutes a Brady violation, and further misconduct vis-à-vis the court itself.  Had trial counsel obtained these publicly available policies, they would have impacted the outcome of the evidentiary hearing.  His failure to do so deprived the court of the key information it needed to rule in [...]’s favor.  It also deprived the defense of the essential ingredient to effectively cross-examining [...] personnel at the hearing, as well at trial had the court not dismissed the indictment learning that [...] flagrantly violated its policies.  PCR, or at a minimum an evidentiary hearing, should be granted.
[brief] So far as [...] is able to understand it, [...]’s position is that this appeal should be decided as if the COVID Statute did not exist, and that [...] should instead petition the [...] if it believes that the COVID Statute requires [...] to have made the payments it made to [...] for May and June 2020, and the payments it seeks for April and July 1-6, 2020, which represent the judgment entered by the lower court in favor of [...].  And if the [...] agrees with [...], he could withhold some undefined amount of state aid from [...] should it fail to comply with his decision.  And even then, if the [...] agreed with [...], there would not be a basis upon which he could disturb the judgment that [...] contends it is entitled to for its claw back.