ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Bonczek v. Carter-Wallace, Inc., 304 N.J. Super. 593, 602 (App. Div. 1997), certif. denied, 153 N.J. 51 (1998).  See also, Fisher v. Yates, 270 N.J. Super. 458, 467 (App. Div. 1994):  "[W]hile motions for leave to amend pleadings are to be liberally granted, they nonetheless are best left to the sound discretion of the trial court in light of the factual situation existing at the time each motion is made."  An amended pleading should not be allowed where it lacks legal merit:  "[C]ourts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law.  In other words, there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted."  Mustilli v. Mustilli, 287 N.J. Super. 605, 607 (Ch. Div. 1995).  The proposed first supplemental complaint alleges that the Trustee breached her fiduciary duty (Da242), which the Defendants had been asserting from the onset in Count Three of their counterclaim (Da633-634).  [...] asserted during the first court appearance on June 10, 2022 that the Trustee was acting in “bad faith” (for reasons including merely filing suit against them).  (1T15:8-11).  The proposed supplemental complaints are more of the same.  The claims are unsustainable as a matter of law.  A cause of action cannot be maintained against the Trust or the Trustee simply because [...], having outbid [...] for the right to purchase the Boonton Property, later sold it to [...]; that cause of action is both factually and legally deficient.
[brief] Defendant’s argument relies heavily on State v. O’Neal, 190 N.J. 601 (2007), but that case is distinguishable.  In O’Neal, two officers approached defendant immediately after they witnessed a person hand money to defendant in exchange for a vial that defendant pulled out of his own sock.  The purchaser retreated into a doorway, locked the door behind him, and prevented the police from pursuing him.  The police then confronted defendant, asking him, “[W]hat’s going on?”  Defendant replied that he did nothing wrong.  One officer directed a second officer to check the bulge in defendant’s sock.  The second officer patted-down the area with the bulge, and asked defendant what was inside his sock.
[brief] In some instances, this is done expressly by the Legislature.  In other instances, the judicial branch has exempted attorneys from statutes.  See, e.g., Vort v. Hollander, 257 N.J. Super. 56 (App. Div. 1992), certif. denied 130 N.J. 599 (1992). ¹  In Vort v. Hollander, the Appellate Division affirmed dismissal of a consumer fraud claim brought against an attorney on the basis that “attorney's services do not fall within the intendment of the Consumer Fraud Act. ”  Vort, 257 N.J. at 62.  The Appellate Division further ¹  This is not a minority view.
[brief] Pb33-34 (quoting N.J.S.A. 17:33A-7(a)).  [...] also points to similar generic forum language in the RICO statute.  Pb35 (citing N.J.S.A. 2C:41-4(c)).  But this is boilerplate forum language found in innumerable remedial state statutes.  See N.J.S.A. 34:19-5 (stating in CEPA stating that an aggrieved employee “may . . . institute a civil action in a court of competent jurisdiction”); N.J.S.A. 56:8-19 (stating in CFA that a consumer “may bring an action . . . in any court of competent jurisdiction”); N.J.S.A. 10:5-13(a)(2) (stating in the LAD that a plaintiff “may initiate suit in Superior Court”); N.J.S.A. 34:11-56a25 (stating in the WHL that a plaintiff “may bring [an] action” to recover wages and obtain relief “in the Superior Court”).  And it is well-settled that CEPA, CFA, LAD, and WHL claims are all subject to arbitration.
[brief] IT IS IN THE INTERESTS OF JUSTICE FOR THIS COURT TO GRANT THE INSTANT MOTION FOR LEAVE TO APPEAL  This Court may grant interlocutory appeal when the interests of justice require it.  “[T]he Appellate Division may grant leave to appeal, in the interest of justice, from an interlocutory order of a court or of a judge sitting as a statutory agent, or from an interlocutory decision…”  See R. 2:2-4.  The power to grant leave to appeal from an interlocutory order is discretionary.  State v. Reldan, 100 N.J. 187, 205 (1985); see also State v. Alfano, 305 N.J. Super. 178, 190 (App. Div. 1997).  The New Jersey Supreme Court has recognized that this Court has broad discretion in formulating when the applicable standard is met:  The Appellate Division enjoys considerable discretion in determining whether the “interest of justice” standard has been satisfied and, as a result, whether to grant a motion for leave to file an interlocutory appeal…The Appellate Division has, for example, granted review of interlocutory orders that actually or effectively dismiss a party’s claims or defenses.  It has also granted leave to review orders concerning novel questions of law, [and] matters relating to questions of privilege[…]  Brundage v. Estate of Carambio, 195 N.J. 575, 599-600 (2008) (internal citations omitted).  This Court’s immediate review is appropriate in order to determine whether it was permissible for [...] to find the Plaintiffs’ Affidavits of Merit to be statutorily insufficient based upon factual and legal principles of vicarious liability without any discovery, and to outright dismiss the Defendant, with prejudice.
[brief] Kaur v. Assured Lending Corp., 405 N.J. Super. 468, 474 (App. Div. 2009).  In contractual disputes, “the language of the agreement typically governs,” GMAC Mortgage, LLC v. Willoughby, 230 N.J. 172, 183 (2017), and “courts should enforce contracts as the parties intended,” Pacifico v. Pacifico, 190 N.J. 258, 266 (2008).  As such, “it is a basic rule of contractual interpretation that a court must discern and implement the common intention of the parties. ”  Id. at 266.  The court determines whether the contract is clear or ambiguous.  Schor v. FMS Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002).  “An ambiguity in a contract exists if the terms of the contract are susceptible to at least two reasonable alternative interpretations[.]”  Ibid. (alteration in original) (quoting Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997)).  Additionally, when determining the meaning of the agreement's terms “by the objective manifestations of the parties' intent, the terms of the contract must be given their ‘plain and ordinary meaning. ’”  Ibid. (quoting Nester, 301 N.J. Super. at 210).  Courts should examine the document as a whole and “‘not torture the language [of a contract] to create ambiguity. ’”  Ibid. (alteration in original) (quoting Nester, 301 N.J. Super. at 210).  When a contract's terms are “clear and unambiguous[,] there is no room for interpretation or construction,” and, therefore, courts “must enforce the terms as written. ”  Karl's Sales & Serv., Inc. v. Gimbel Bros., 249 N.J. Super. 487, 493 (App. Div. 1991).  Courts may not rewrite the contract, remake a better contract for the parties, or alter the contract to benefit one party.  Schor, 357 N.J. Super. at 192.  “The general rule is that an employee seeking to bring a contract grievance ‘must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress. ’”  Thompson v. Joseph Cory Warehouses, Inc., 215 N.J. Super. 217, 220 (App. Div. 1987) (quoting Republic Steel Corp. v. Maddox, 379 U.S. 650, 652-53 (1965)).  The Agreement between the Defendants and the Union is clear and unambiguous.  It requires that complaints regarding items covered by the terms of the Agreement are to be pursued through the grievance process.  The method by which promotions are made is set forth in the Agreement.  As a result, complaints concerning promotions must be made by utilizing the grievance process.  [...] concluded as much during his oral decision when he stated that “[c]learly, the grievance procedure is the way this gentleman should have gone.  He does not have the right to file an independent lawsuit because the rules under which he is directed require this to go through the grievance process. ”  [1T14-14 to 18.]  [...]’s decision was legally correct and was amply supported by the record below.  Therefore, the Plaintiffs’ complaint was properly dismissed and the trial court’s decision should be affirmed.
[brief] See Kaselaan & D'Angelo Assocs., Inc. v. Soffian, 290 N.J. Super. 293, 299, 675 A.2d 705 (App. Div. 1996).  As the Appellate Division squarely held in Kaselaan:  . . . the entire controversy doctrine only precludes successive suits involving related claims.  It does not require dismissal when multiple actions involving the same or related claims are pending simultaneously.  As we noted in American Home Prods. Corp. v. Adriatic Ins. Co., 286 N.J. Super. 24, 33, 668 A.2d 67 (App. Div. 1995), "[t]he fact that an action pending in another State involves the same parties and the same or substantially similar claims does not bar prosecution of a subsequent action here in New Jersey."  Although multiple pending actions arising out of the same or related operative facts pose some of the same dangers of fragmented and duplicative litigation that the entire controversy doctrine seeks to address, those dangers do not require the dismissal of the second filed action prior to the conclusion of the first action.  Instead, the court rules provide other appropriate means to prevent unfairness to affected parties or an undue burden on the court system.
[brief] Nor did it analyze the governing Cole factors at issue here. that [...] would seek to divert the substantial time and resources invested in litigation to an arbitration.  *Ibid.*  In *Cole*, the Supreme Court found the failure to identify arbitration as an affirmative defense to be a significant indicator of waiver:  Applying those factors to this case, we conclude that [defendant] engaged in litigation conduct that was inconsistent with its right to arbitrate the dispute with its former employee.  [Defendant] was a party to the lawsuit for twenty-one months before seeking to invoke the arbitration provision.  A twenty-one month delay is substantial, particularly in light of the fact that [defendant] otherwise failed to provide notice of its intent to seek arbitration.  [Defendant] advanced thirty-five affirmative defenses in its answer, but it did not include arbitration as one of them.
[brief] See, e.g., complaint at Count Three.  It is also undisputed that Plaintiffs’ claim for an award of attorneys’ fees seeks an equitable remedy.  \(^1\)  The characterization of this matter as “a reverse PIP suit” obviously apply only to the Counts of the Complaint that seek declaratory relief in which Plaintiffs seek a ruling that they do not have to pay Defendants’ outstanding bills such as Count One.
[brief] This matter arises from a [...] internal affairs investigation into the on-duty location and activities of the Appellant, [...], relating to multiple property checks that were intentionally misrepresented by [...].  Pa260.  This internal investigation of the [...] resulted in a Notice of Charges and Hearing Form dated March 27, 2019, issued to Plaintiff/Appellant [...] (hereinafter referred to as "[...]" or "Appellant"), an officer for the [...] (hereinafter referred to as "Township" or "Respondent"), seeking termination.  Pa5.  The disciplinary charges of Conduct  Unbecoming a Police Officer, Truthfulness, and Neglect of Duty and Repeated  Violations thereof and of established rules and regulations, policies, procedures, and/or directives/orders were conferred upon [...] for his repeated misrepresentation of his location and failure to conduct numerous property checks that he called in to dispatch.  Id.  His failure to properly conduct these property checks and also fabricating an explanation for some of the incomplete property checks by claiming to have conducted them via foot patrol.  Pa260.  In failing to properly perform his duties, he compromised the statistical data, which is the by-product of the property checks and is used for state reporting, federal reporting, and grant applications.  Pa260.  While the above incidents alone provided proper cause for termination, [...]'s disciplinary record demonstrated gross negligence and failure to follow established rules and regulations, policies, procedures, and/or directives/orders, including multiple incidents of "pattern sickness", "lateness", “failure to investigate”, and “failure to meet evaluation standards”.
[brief] PLAINTIFF DID NOT ESTABLISH THAT KEARNY HAD CONSTRUCTIVE NOTICE OF A DANGEROUS CONDITION AND THEREFORE FAILED TO MEET HIS BURDEN UNDER N.J.S.A. 59:4-2  The [...], as a public entity, is entitled to all the defenses and immunities set forth in our New Jersey Tort Claims Act, N.J.S. 59:1-1, et seq.  N.J.S. 59:1-2 (the “Tort Claims Act”) declares:  [I]t is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein.  All of the provisions of this act should be construed with a view to carry out the above legislative declaration.  N.J.S. 59:2-1 furthermore, provides that:  a.  Except as otherwise provided by this act, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.  b.  Any liability of a public entity established by this is subject to any immunity of the public entity and is subject to any defenses that would be available to the public entity and is subject to any defenses that would be available to the public entity if it were a private person.  According to N.J.S.A. 59:1-2 and N.J.S. 59:2-1, “public entities are only liable for negligence within the limitations of the New Jersey Tort Claims Act; there is no liability except as provided by the Act. ”
[brief] State v. Prall, 231 N.J. 567, 580 (2018) (quoting Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)).  “Under [the] deferential standard, [the Court] review[s] a trial court’s evidentiary ruling only for a ‘clear error in judgment. ’”  State v. Medina, 242 N.J. 397, 412 (2020) (quoting State v. Scott, 229 N.J. 469, 479 (2017)).  A reviewing court will not substitute its “judgment for the trial court’s unless,” the trial court’s determination “was so wide of the mark that a manifest denial of justice resulted. ”  Ibid. (quoting Brown, 170 N.J. at 147).
[brief] (1T84-15 to 19; 1T85-15 to 17; 1T85-24 to 25; 1T87-3 to 20; 1T88-1 to 2; 1T88-6 to 9).  Defendant’s father explained that he had picked up defendant in the vicinity of a townhome development off [...] in [...], which was close to the border with [...], and he feared defendant had hypothermia.
[brief] It is a well-established principle that a police officer may order a driver out of a vehicle during a traffic stop.  *Pennsylvania v. Mimms*, 434 U.S. 106, 98 (1977).  In *Mimms*, the United States Supreme Court held that no Fourth Amendment violation occurs when an officer orders a driver out of his vehicle following a lawful traffic stop, even where the officer has no reason to suspect foul play at the time of the stop.
[brief] ”  State v. Feal, 194 N.J. 293, 308-09 (2008); see State v. Czachor, 82 N.J. 392, 409 (1980) (suggesting that complete retroactivity is largely reserved for new rules which “rest on constitutional grounds”).  In addition, in terms of the “degree of reliance” factor, good-faith reliance was required as courts were bound to follow the then-prevailing model jury charge.  Courts and, more importantly, victims should not be penalized with the retroactive application of a new rule in this area.  Finally, while specific data regarding the kind of impact retroactive application of the new rule will have upon the administration of justice is not readily available, the existing jury charge had a long, unbroken history.
[brief] In the instant case, Defendants have never been provided a fair appraisal of the causes of action Plaintiff was asserting.  Moreover, it is Plaintiff’s conduct which is responsible for the endless postponements, extensions and delays while this case was in District Court and below in the Trial Court.  Thus, the Trial Court correctly found that the Defendants would be unduly prejudiced if Plaintiff were given a sixth (or possibly seventh) opportunity to amend the pleading regarding a subject incident that occurred over ten years ago in April of 2014.
[brief] For these reasons, the Court should REVERSE the Trial Court’s orders: (1) granting [...]’s Motion for Summary Judgment; (2) denying as “moot”, rather than with prejudice, of [...]’s Motion to Bar, and (3) denying [...]’s Motion to Amend pursuant to R. 4:49-2.  Respectfully submitted, By: s/ [...]  MARISA RAUCHWAY SVERDLOV [...]  Attorneys for Appellant  [...] Furnishings a.k.a. [...] [...], Assignee of [...], Plaintiff, vs. EASTERN OUTDOOR FURNISHINGS a.k.a. JC PARTNERS LLC Defendant/Third-Party Plaintiff, vs. [...] DIRECT, INC.  D/B/A [...]  Third-Party Defendant.  SUPERIOR COURT OF NEW JERSEY APPELLATE  DIVISION  DOCKET NO. [...]  Sat below: Hon. [...], J.S.C.  DOCKET NO.: [...]  THIRD-PARTY  DEFENDANT-RESPONDENT’S AMENDED  BRIEF AND APPENDIX  IN OPPOSITION TO THIRD-PARTY  PLAINTIFF-APPELLANT’S APPEAL
[directive] REQUIREMENT TO REPORT ALL ACCUSATIONS AND INDICTMENTS ALLEGING BIAS INTIMIDATION  It shall be the responsibility of every County Prosecutor to promptly notify [...] of his or her office’s intention to file an accusation or seek an indictment alleging Bias Intimidation under N.J.S.A. 2C:16-1.  Such notification shall be made to [...] in a manner prescribed by the Director of [...].  6.
[brief] Appendix Volume III (332a – 502a)  Plaintiff’s Brief in Support of Cross-Motion for Summary Judgment on Counterclaim Only & Statement of Material Facts  332a – 395a (Submitted as per clarification of brief deficiency notice, and under R. 2:6-1(a)(2) because the matter is referenced in the Appellate Brief as to where it was argued below, and the document is required for a full understanding of the issues presented)  Plaintiff’s Brief in Opposition to Summary Judgment Motion 396a – 451a (Submitted as per clarification of brief deficiency notice, and under R. 2:6-1(a)(2) because the matter is referenced in the Appellate Brief as to where it was argued below, and the document is required for a full understanding of the issues presented)  Court Order/Opinion dated February 17, 2023, Denying [...]’s Motion for Summary Judgment 452a – 458a  Order/Opinion Granting X-Motion for Partial Summary Judgment on the Counterclaim  Only February 17, 2023 459a – 465a (Inadvertently repeated item, previously submitted as Pa169 – Pa175.  To avoid referencing and citation confusion and mistakes, this inadvertent repeat is left in, pending court’s permission)
[brief] ’”) (citation omitted).}  Compare Seven Caesars, Inc. v. House, 2014 WL 4450441, at **7–10 (N.J. Super. Ct. App.  Div. Sept. 11, 2014) (holding that trial court lacked subject matter jurisdiction and foreign corporation was barred from bringing action because it did not have valid certificate at time of filing and did not “retroactively cure[]” the “jurisdictional bar to suit” when it restored its registration status during pending litigation) with Radiac Research Corp. v. Pasqua, 2023 WL 8177052, at *3 (N.J. Super. Ct. App. Div. Nov. 27, 2023) (rejecting argument that final judgment was void because plaintiff’s certificate was revoked before it filed complaint where foreign corporation plaintiff “was not deficient in maintaining their certificate of authority for years before the litigation” and “was compliant with statutory requirements for more than five years while th[e] litigation took place”) and Basement Store Franchise Corp. v. Natali, 2014 WL 4328218 (N.J. Super. Ct. App. Div. Sept. 3, 2014) (finding that trial court exercised “mistaken use of discretion” in dismissing complaint with prejudice where foreign corporation “plaintiff acted within days of entry” of order requiring it to obtain certificate of authority).  In sum, Defendants submit that the circumstances here—including Plaintiff’s failure to obtain a certificate of authority to transact business in New Jersey at any time prior to its commencement of this action in September 2022 through the first eleven-plus months that it prosecuted the case—together with the plain language of N.J.S.A. 42:2C-65(a) itself, render the admitted jurisdictional defect in this case fatal.
[brief] [...] cited the arbitration language of the Account Agreement arguing it was all encompassing because (1) it covered disputes between [...] and you, (2) a dispute was defined as any unresolved disagreement between [...] and you, and (3) [...] and you agree to submit to binding arbitration all claims, disputes and controversies between [...] and you whether in tort, contract or otherwise arising out of or relating to your account.  (Pa 74).  The Bank did not cite and ignored the arbitration language in the account application.  The application and deposit agreement conflict and are ambiguous.  While the application states arbitration applies to any dispute between the customers and the Bank in relation to the customer’s use (emphasis added) of any Bank deposit account, (Pa 35) the deposit agreement states that arbitration “applied to all the claims, disputes and controversies between or among [...] and you … whether in tort or in contract or otherwise arising out of or relating in any way to your accounts ... (Pa 74).  Since the dispute in this case arises from the hacking of Plaintiff’s account by another and not through consumer’s use of the account, a consumer reading the application separately or in conjunction with the deposit agreement may easily interpret this language as limiting arbitration to his or her use of the account and not under the circumstances presented by this case, the hacking of the account by another.  This would be a reasonable interpretation by one in Plaintiff’s position.  The ambiguity should be construed in favor of the consumer.
[brief] Attorneys for Respondent, [...]  By: [...] /s/ ROBIN LA BUE  For the Firm  [...]  January 26, 2024  VIA eCOURTS Superior Court, Appellate Division  P.O. Box 006 Trenton, New Jersey 08625  Re: [...], Plaintiff-Respondent v. [...], Defendant-Appellant and [...], Defendant-Respondent Superior Court – Appellate Division Civil Action, On Appeal from a Final Judgment of the Law Division  Sat Below: Hon. [...], J.S.C.  Docket No. Below: [...]  Our File No. 40845-3  Docket No. [...]  Dear Honorable Judges of the Appellate Division:
[brief] Respondents’ effort to distinguish *SB Bldg. Assoc., L.P. v. Planning Board*, Docket No. A-0200-14, 2017 N.J. Super. Unpub. LEXIS 36, (App. Div., Jan. 6, 2017), certif. den. 230 N.J. 424 (2017) is also unavailing.  Respondents read this case to hold that, when a planning board requires a contribution from a redeveloper for an off-site improvement, it must adhere to the requirements of *N.J.S.A. 40:55d-42*, but that a redevelopment agency need not.  However, *SB Bldg.* discusses how “municipalities” in connection with redevelopment projects are to make financial assessments, and it makes no sense to argue, as Respondents seem to assert, that there need be no nexus between a project and an offsite improvement, but the planning board must nonetheless undertake a nexus analysis.  While *Nunziato* did, as Respondents note, arise in a different context, the evils which the Court addressed - concerns about the sale of land used permits and public integrity in the permitting process - are present here.
[brief] Even an immediate relative may misidentify a loved one.  In more than 15 percent of misidentification cases, there was a confirmed prior familiarity between the witness and the person eventually exonerated.  [...] and [...], Innocence Project: DNA Exonerations, 1989-2014: Review of Data and Findings From the First 25 Years, 718 Albany L. Rev. 717, 737 (2015).