ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Simply, “[w]aiver is a voluntary and intentional relinquishment of a known right. ”  *Knorr v. Smeal*, 178 N.J. 169, 177 (2003).  Waiver need not be stated expressly but may be implied, “provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference. ”  *Id.*  In analyzing waiver of arbitration, the United States Supreme Court has determined that courts must treat arbitration agreements like any other contract and may not create novel rules or employ practices “fostering arbitration. ”  *Morgan v. Sundance, Inc.*, 142 S. Ct. 1708, 1710 (2022).  When a party knows of its ostensible right to compel arbitration and acts inconsistently with it, that party waives its right to compel arbitration.  *Id.* at 1709-10.  As explained here, Defendants affirmative litigation conduct over the course of approximately eighteen months is sufficient to manifest waiver of any claimed right to compel arbitration of [...]’s claims.  Lastly, if the pleadings and supporting documents are unclear regarding the agreement to arbitrate at issue, or if the non-moving party has responded to a motion to compel arbitration with facts to contest the arbitration agreement, the parties should be entitled to discovery on the issue of arbitrability before the motion to compel is granted.  *See Goffe v. Foulke Mgmt. Corp.*, 238 N.J. 191, 214 (2019).  Here, where the agreement at issue was made void by statutory mechanism and where Defendants have failed to show that their purported ability to compel arbitration was not limited by the terms of the assignment from the contracting party, the Motion to Compel Arbitration should not have been granted without discovery into the issue of arbitrability.  POINT II.
[brief] **  In ruling on reconsideration, the Trial Court deliberatively went through a fact-sensitive balancing of the Cole factors, which conclusively demonstrated that Defendants satisfied the criteria considered to compel arbitration of Plaintiff’s partnership claims.  Plaintiff’s numerous attempts to persuade this Court that the valid arbitration agreement here should not be enforced are unpersuasive, and above all, offer no compelling basis to find that an express waiver, as opposed to a waiver implicated from a party’s litigation conduct, negates the relevance and import of the Cole criteria.  Initially, Plaintiff’s argument that Defendants made an express waiver of arbitration through the March 17, 2023 Chancery action ([...]) is another effort to misdirect the Court into conflating this matter with Defendants’ now-dismissed action related to the solicitation of client matters, which were outside the scope of the arbitration agreement.  Again, Defendants’ complaint and jury demand sought injunctive relief and temporary restraints against a separate party, and alleged claims distinct from the Plaintiff’s claims here arising from his partner and shareholder status.  Simply put, Defendants’ resort to the judicial forum on independent claims against a non-party to the subject arbitration agreement does not manifest an express waiver of arbitration in this matter.
[brief] ”  Pa424.  [...] employee [...] testified that, while demolition work could be “incidental” to saw cutting, [...] specifically performed concrete cutting.  Pa991.  While [...] employee [...] referred to “cutting with an electric wire saw to demo concrete north face – wall north face” in relation to the Hood litigation, it was not for [...] to determine whether his saw cutting work fell into the incidental category of structural demolition for the purposes of [...]’s liability coverage.  Rather, it was for higher contractors to designate whether [...]’s saw cutting constituted demolition work or another category of work for insurance purposes.
[brief] (Da9-Da29).  The Counterclaim was brought on behalf of a purported Class and purported Subclass.  (Da21 at ¶ 38).  The Class was broadly defined to include all persons who had entered into a residential lease with [...] and a Lease Rider at any of [...]’s properties.  (Ibid.).  The Subclass was somewhat more limited and included all individuals against whom [...] sought to enforce the Concession Recovery Provision.  (Ibid.).  On behalf of these putative classes, Appellants alleged that [...]’s enforcement of the Concession Recovery Provision violates the CFA.  (Da24-Da26).  Specifically, Appellants alleged that (i) the Rent Concession Provision is a liquidated damages clause; (ii) the amount sought under the Rent Concession Provision is so large that it constituted an unreasonable penalty; and (iii) seeking to recover the Concessions, in addition to past due rent and 5% late charges, is --- 3 “2T” refers to the transcript of the trial court’s November 8, 2023 oral decision granting [...]’s Motion to Dismiss. an abusive and/or unconscionable commercial practice in violation of the CFA.  (Ibid.).  After Appellants vacated the Apartment on July 13, 2023, [...] offered to voluntarily dismiss its Complaint in this matter as to all defendants.
[brief] (PPCIa364-65).  The court then erred by entering the April 6, 2023 “final judgment” against [...] as “unopposed,” despite 1) the request of former counsel for [...] in his motion to withdraw to, “[i]n the interest of fairness, it is respectfully requested that the return date of [[...]’s] Motion for Partial Summary Judgment be adjourned until [[...] and its principals] have an adequate opportunity to retain succeeding counsel and respond” (PPCIa361); and 2) not having set a new return date, on notice to [...] and [...], for [...]’s summary judgment motion: rather, it accepted the misrepresentation of [...] that its motion for summary judgment “went unopposed” (PPCIa368) and, the next day (April 6, 2023), before [...] had an opportunity to correct [...]’s counsel’s misstatement, entered an order granting [...] summary judgment against [...] and entered “final judgment” against [...] in the amount of $1,426,871.61 (PPCIa369-71).
[brief] Indeed, any recovery by [...] in this case would accrue solely to the benefit of [...] and its shareholders and not to the State of New Jersey or its consumers, unless, of course, the [...] intervenes in the action, a right that the Commissioner continues to have to this day despite the trial court’s decision compelling [...] to arbitrate its claims.  Unlike [...], [...]’s mission here is not to protect the New Jersey consumer.  Indeed, [...] is a publicly traded company worth more than $50 billion, which, like all publicly traded companies, has a mission to generate profits for its shareholders.  Although [...] invokes public policy in its amicus brief, [...] does not explain the actual harm to the public if a private litigant—to which [...] has not delegated any of its authority under the IFPA—is forced to prosecute their insurance fraud claims in arbitration instead of in court.  The question before the Court is one of statutory interpretation.
[directive] The Internal Affairs Unit of this department has completed its investigation of your complaint concerning the conduct of [name of subject officer].  The investigation and a review of all information failed to disclose sufficient evidence to clearly prove or disprove the allegation.  More specifically,… a. (witness could not be located) b. (document could not be located)  c. (physical or forensic evidence could not be located)  d. (witness did not support your complaint)  e. (physical or forensic evidence did not support your complaint)  f. (the investigation failed to yield enough evidence to support your complaint)  g. (while some evidence supported your complaint there was not enough evidence to support your complaint)  If you have additional information which you believe should be considered, please contact the Internal Affairs Unit at [telephone number].  If no additional information is received within ten days, this case will be considered closed.
[brief] Their block contains three lots, beachfront Lot 1, not a party to this case; middle Lot 2, owned by [...], and; corner Lot 3, owned by [...].  Prior to 2015, [...] (“[...]”) owned Lots 2 and 3.  In September 2015, [...] sold middle Lot 2 to [...] and applied to subdivide corner Lot 3 into two lots.  The subdivision plans and application showed proposed Lots 2 and 3 as having a combined 186.3’ of frontage.  [...] objected to [...]’s application, as [...] did not want a fourth house built on the block.  The objection was settled by a private, unrecorded agreement whereby [...] transferred a portion of Lot 3 to [...].  This was accomplished through an approved subdivision with a recorded subdivision map and confirming deeds, each of which show the new, smaller Lot 3 as 66.3’ wide.  [...] purchased new Lot 3 from [...] in March 2017.  There is NO deed or map anywhere in the record which shows Lot 3 to be 65’ wide at any time.  Every document of record related to the subdivision shows Lot 3 as 66.3’ wide.  Unbeknownst to [...], the [...]-[...] agreement intended for [...] to transfer enough land to [...] so that [...] could subdivide Lot 2 by-right, which would require 120’, but [...]’s new lot was actually only 118.7’ wide.  [...] wants to cure his error by taking 1.3’ of frontage from [...].  The parties agree on the determinative issue in this case.  In order to take [...]’s land, [...] must prove [...] knew or should have known of the 2015 [...]-[...] error.  [...]’s problem, of course, is he is completely unable to prove [...] had notice, constructive or otherwise, that his lot was different from the recorded subdivision map, the confirmatory deeds for the subdivision, his deed from [...] and the survey he obtained for closing.  The fact that notice (actual, constructive or otherwise) does not exist in the record is self-proving.  The Court need only look at the very long list of people and professionals, including the [...]s and [...] themselves, to see it is unreasonable and inappropriate to conclude, as a matter of law, that [...] had “inquiry” or “record” notice that his lot was not 66.3’ wide.
[directive] This "consensual intercept" can only be made after the Attorney General or a County Prosecutor, or their designee, approves it.  7.9.4  Pursuant to N.J.S.A. 2A:156A-4b, a law enforcement officer may intercept and record a wire or oral communication using a body transmitter if that officer is a party to the communication or where another officer who is a party requests or requires that such interception be made.  Individual departmental or agency policy dictates procedures for such recordings.  This kind of law enforcement non-third party intercept can be used during internal affairs investigations.
[brief] Money was “being moved [by the defendants] all over the place” and “we don’t even know where it is now. ” (27T72:13-15; 73:3-18).  The trial court found that this was all being done without the Plaintiffs’ knowledge.  (27T75:7-21).  In view of these facts, trial court made clear that it had the power to adopt remedies flexible to the circumstances of every case and the complex relations of all the parties.  (26T6:21 to 7:5).  *Matejek v. Watson*, 449 N.J. Super. 179, 183 (App. Div. 2017).  Against this backdrop the evidence was more than sufficient to establish that the defendants were liable for breach of contract, breach of the covenant of good faith, and unjust enrichment.
[brief] TABLE OF CONTENTS  Page: Table of Judgments, Orders and Rulings .................................................. iii  Table of Citations ........................................................................ iv  Table of Contents to Appendix ..........................................................  viii  Preliminary Statement .....................................................................  1  Procedural History ......................................................................... 2 Statement of Facts ..........................................................................  3  Legal Argument: I.  Appellate Standard of Review of Motion to Compel Arbitration.  ...........................................  11  II.  Plaintiff did not Sign the Bank’s Application, Deposit Agreement or Agree to Arbitrate Disputes with Bank.  (Raised below in Brief-Trial Judge’s Opinion Pa 7-8)  .......................  13  A.  Plaintiff did not Agree to Arbitration with Bank ........................................ 13  B.  Notice of the Arbitration Clause ............................................................  22  C. Inquiry Notice .................................................................................. 29  D.  Conspicuousness ..............................................................................  32  III.  The Application Limited the Arbitration Clause to any Dispute between the Customer and Bank Relating to the Customer’s Use of the Account.  The Unauthorized Use of the Account by a Third Party Hacker or the Bank itself is not within the Scope of the Issues Subject to Arbitration.  (Raised below in Brief - Not Decided by Trial Judge)  ........................................ 35  IV.  The Bank’s Deposit Account Agreement was not Properly Incorporated by Reference into the Application.  (Raised below in Brief - Not Decided by Trial Judge)  .................. 40  V.  Neither the Application nor Deposit Agreement Presented by the Bank were Properly Authenticated.  (Raised below in Brief - Not Decided by Trial Judge)  ...........................................  41  VI.  A Fiduciary Relationship Existed between the Bank and the Plaintiff under the Circumstances Surrounding the Opening of Plaintiff’s Replacement Accounts.  (Raised below in Brief - Trial Judge’s Opinion Pa 8-9)  .................................................. 43  Conclusion .............................................................................................................
[brief] [...]’s final argument of this section suggests that [...] was not on notice of the condition.  This argument has no merit.  As stated in more detail in Plaintiffs’ original brief and above, the [...] memo established that [...] was on actual notice of the condition and was aware that it was recommended to undergo “immediate repairs”.  (Pa1193).  Although [...] argues that the settlement location as identified in the memo was “corrected” by a subsequent email, that is a disputed fact and, for the reasons stated above, the accuracy of that email that allegedly corrects the location of the settlement is for the trier of fact to decide.  If anything, that email saved Defendants from having summary judgement entered against them.  Without the subsequent email, the [...] memo would provide undisputed evidence that the defendants were aware of the dangerous condition that caused Plaintiff’s crash and were told to repair it immediately.  Nevertheless, in the summary judgement setting, this must be resolved in Plaintiffs favor.  Additionally, the paving records are evidence of the fact that the location of the settlement as described in the memo was accurate.  These paving records specifically identify that emergency paving was performed in the southbound left lane at the north approach to the bridge in order to correct settlement issue and return it to proper grade.  (Pa1396); (Pa1397).  Although the paving records post-date the accident and are inadmissible as proof of Defendants negligence, the records are admissible to prove, among other things, that a dangerous condition existed at the particular location.  Perry v. Levy, 87 N.J.L. 670, (E. & A. 1915).  Afterall, as the resident engineer on the project conceded that if the settlement was not causing a problem for the traveling public then it would not have needed to be corrected.  (Pa0698 at 100:5-13).  Finally, with respect to constructive notice, [...] admitted that it had a duty to inspect and identify conditions such as the one that caused Plaintiff’s crash.  (Pa0678 at 20:25 to Pa0679 at 21:1-7).  When viewing the facts in the light most favorable to the Plaintiffs, the condition existed and was identified during two different inspections.  (Pa1343);(Pa1191).  Had [...] been doing its’ job, [...] should have also identified the defect.  (2)
[brief] [...] instructed [...] to “start locking everybody up. ”  (Da74 04:30:25 to 04:30:32; 1T24-22 to 24-24)  No other contraband was found in the vehicle or on the persons of any of the occupants.  (1T24-14 to 24-18)  [...] testified that after they searched the car, they received confirmation that the information provided by the NCIC database was inaccurate and there was in fact no warrant for [...], but rather for someone with a similar name.
[brief] Significantly, here, the Board did, in fact, correct the error in [...]’s service and salary credit pursuant to N.J.S.A. 43:15A-54.  (Pa72).  In addition, [...] argues equitable considerations in general should apply, anchoring her argument by citing *Geller v. Treasury Department of N.J.*, 53 N.J. 591, 600 (1969) (allowing a teacher to receive full credit for prior teaching service where the Board failed to comply with the teacher’s vague authorization for making appropriate deduction and failed to seek clarification from the teacher); *Indursky v. Board of Trustees, PERS*, 137 N.J. Super. 335, 343-44 (App. Div. 1975) (reversing the Board’s decision asking the member to repay a six-year pension benefit upon finding the Board failed to exercise reasonable diligence during that time period); *Fasolo v. Division of Pensions*, 190 N.J. Super. 573, 587-89 (App. Div. 1983) (awarding prejudgment interest to the member for his improperly retained pension contributions when the pension system had seven-year delay in returning the improperly retained contributions in light of the relative equities); *In re Frank*, No. A-5261-05 (App. Div. July 12, 2007) (slip op. at 6) (finding that because pensioner was misinformed by an employee of the Division about the criteria for loss of her retirement allowance following acceptance of a part-time job, the Division could not require her to repay the full portion of her earnings from her part-time work); *Chiappini v. Board of Trustees*, No. A-3983-09 (App. Div. July 29, 2011) (slip op. at 22-23) (finding that the member’s repayment obligation to PERS should be reduced for equitable reasons as he had a genuine misunderstanding of applicable regulations concerning bona fide retirement which led to severe economic consequences).
[brief] State v. Rowland, 183 N.J. Super. 558, 568, (Law Div. 1982) (citing Garford Trucking, Inc. v. Hoffman, 114 N.J.L. 522, 530, (Sup. Ct. 1935) Black's Law Dictionary (5 ed. 1979), overruled on other grounds, State v. Hancock, 210 N.J. Super. 568, 569, 510 A.2d 278 (App. Div. 1985).  In the present case, the ROFR clause in paragraph 39 of the MFSA is simple and straightforward.
[brief] Plaintiffs rely on their liability experts’ reports in support of their construction of the lease agreement and their argument that the lease agreement imposed a duty on [...] to have removed the snow and ice from the area where plaintiff fell.  (Pall, Pb14)  Their reliance on their experts’ reports is misplaced.  Expert testimony is admissible only where it will assist the trier of fact.  N.J.R.E. 702.  An expert cannot render an opinion on matters which involve a question of law.  Healy v. Fairleigh Dickinson University, 287 N.J. Super. 407, 413 (App. Div. 1996), citing Marx & Co. v. Diners’ Club, Inc., 550 F. 2d. 505 (2d. Cir.), cert. denied 434 U.S. 861 (1977); State v. Grimes, 235 N.J. Super. 75, 79 (App.  Div.) certif. denied, 118 N.J. 222 (1989)  An expert’s opinion as to the interpretation of terms in a contract is of no legal effect.  Healy, supra., at 413; Boddy v. Cigna Property and Cas. Companies, 334 N.J. Super. 649, 659 (App. Div. 2000)  A fortiori, an expert cannot create (or opine as to the existence/breach of) a legal duty to do anything or to refrain from doing anything.  Id.  Therefore, plaintiffs’ experts’ distortion of the terms of the lease between [...] and [...] was properly ignored by the trial court.  This court should do the same.
[brief] Submitted June 25, 2024  [...] [...] (201)  488-8200  [...]  [...] (732)  419-9000  Attorneys for Plaintiffs-Appellants  [...] et al.  Of Counsel: [...], Esq. (#037351989)  [...], Esq. (#023091991)  On the Brief: [...], Esq. (#040702006)  [...], Esq. (#269542018)  TABLE OF CONTENTS
[directive] Since its inception, has placed strict confidentiality IAPP requirements on records obtained and created during Internal Affairs investigations, to preserve the integrity of the investigative process.  These records may only be released Page 5 under a narrow range of circumstances, including when a police department’s law enforcement executive has “good cause. ”  The revised makes clear that good cause IAPP may exist (a) when another law enforcement agency requests records related to a current or former officer that the agency is considering whether to hire; or (b) if a Civilian Review Board that meets certain minimum procedural safeguards has requested access to a completed investigation file.  §§ 9.6.3, 9.7, 9.8.  In addition, the strongly IAPP discourages municipalities from entering into non-disclosure agreements that may inhibit the sharing of Internal Affairs information between law enforcement agencies.  § 9.8.4.  Enhances role of County Prosecutors in overseeing police departments’ Internal • Affairs functions.
[brief] On June 8, 2023, State Defendants filed their own motion to dismiss, which was identified on the electronic docket and in an email notification to all counsel as, “MOTION TO DISMISS COMPLAINT, FAILURE TO STATE CLAIM,” (SDa111; SDa116-18), and which was made returnable on July 7, 2023 (the applicable return time for a motion to dismiss, which requires twenty-eight days’ notice after motion filing) (SDa111).  The filing included a form of order, brief, and certificate of service that all described the motion as seeking to dismiss Plaintiff’s amended complaint with prejudice.  (SDa4; SDa8; SDa37).  However, the notice of motion contained a clerical error indicating that State Defendants motion sought “an Order to extend time to answer or file a responsive pleading.
[brief] Brown v. Brown, 86 N.J. 565 (1981) (relevant to showing whether a project delay in scheduling was palpably unreasonable and whether the work was essentially design rather than maintenance); Perry v. Levy, 87 N.J.L. 670 (E&A. 1915) (all parties knew of the dangerous condition at all relevant times, relevant to establish possession of property). directed [...] to utilize the paving subcontractor [...] to perform the paving that the process certainly involved significant mobilization costs.
[brief] First, a manufacturer has a duty “to provide a reasonably fit, suitable and safe” product.  2T at 20-21.  Second, a manufacturer does not have a duty to install every technology on a vehicle or to produce an accident-proof vehicle.  Id. at 26.  Third, even if a proposed alternative design “is, on balance, better than the chosen design,” that does not mean the product is “per se defective” because “[t]here can be multiple reasonably safe designs. ”  Id. at 20.  In other words, the fact that there is an alternative design does not establish a defect (or breach). ¹