ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] II.  THE CHANCERY DIVISION’S MARCH 4, 2024 ORDER SHOULD BE AFFIRMED AS PLAINTIFF’S COUNSEL VIOLATED THE COURT RULES NUMEROUS TIMES AND THEIR FAILURE TO OPPOSE DEFENDANTS’ SUMMARY  JUDGMENT CROSS-MOTION AND THEIR DEFECTIVE STATEMENT OF MATERIAL FACTS SHOULD NOT BE EXCUSED  (Pa27-Pa28)  In this case, the Plaintiffs counsel filed three motions for summary judgment.  The Plaintiffs’ Statements of Material Facts violated Rule 4:46-2 multiple times.  In response to the Plaintiff’s second motion for summary judgment, the Defendants’ counsel, in the Defendants’ response to the Plaintiff’s Statement of Material Facts stated in a footnote that the Plaintiff’s Statement of Material Facts had violated Rule 4:46-2.  (Da14).  Thus, by the time the Plaintiff filed its third (and last) motion for summary judgment in January of 2024, the Plaintiff’s counsel was already on notice that Plaintiff’s prior Statement of Material Facts was deficient.  Plaintiff’s third Statement of Material Facts includes the same violations of Rule 4:46-2 as Plaintiff’s counsel previously made.  As the trial judge explained, Rule 4:46-2, exists for a reason.  The Court Rules each have their own purpose.  Thus, Plaintiff’s violation of Rule 4:46-2 in its third motion for summary judgment should not be excused.  The violation of Rule 4:46-2 in Plaintiff’s third motion for summary judgment was not the first violation of Rule 4:46-2.  Plaintiff’s counsel somehow violated the same requirements of the same rule, Rule 4:46-2, multiple times.  Unfortunately, the violations of the Court Rules by the Plaintiff’s counsel were not limited to Rule 4:46-2.  Plaintiff’s counsel repeatedly violated other Court Rules as well.  Plaintiff’s counsel filed an improper sur-reply and submitted additional documents to the trial court in support of their third summary judgment motion, without leave, after Defendants had already filed their opposition and cross-motion.  (Da17-Da18; Pa327).  Plaintiff’s counsel also repeatedly failed to select a proper return date in their notices of motion.  (Pa135; Da2).  The blatant and repeated violations of the Court Rules cannot be condoned.  The Plaintiff’s most recent violation of Rule 4:46-2 was one in a long line of many flagrant violations of our Court Rules.  It was a pattern of inexcusable behavior; not an isolated incident that would justify a reversal of the Chancery Division’s March 4, 2024 Order.  That Order should be affirmed in all respects.
[brief] 7T74-75, 93-97.  Among the providers called upon to assess [...] was [...], a general surgeon.  “Urgent/Stat” consults were sent to [...].  [...] spoke only with a physician assistant ([...]), however, not the admitting Doctor ([...]) or with any other doctor (despite the Hospital’s internal policies so requiring).  [...] did not travel to the Hospital to examine [...] either.  He told physician assistant [...], during their phone call, to start [...] on pain medication and that he ([...]) would see her the following day.  A237-41.  Overnight, meanwhile, [...]’s condition worsened considerably.
[brief] . . .  With respect to waiver – I’ll – I’ll try to go point-by-point for the sake of our position. ” (T2 15:12-18)  (Emphasis added).  Noticeably, [...] did not describe “how” or “why” the deficiency prejudiced this matter, and instead dedicated the remainder of the oral argument to discussing the merits of the case.  (Id.)  [...] never again mentioned nor sought a ruling on the “fatal defects. ”  (Id.)  Since [...] failed to demonstrate any prejudice, the Trial Court appropriately ruled on the Motion and opted to overlook a trivial deficiency in furtherance of judicial efficiency.
[brief] Plaintiff is estopped from avoiding arbitration for her claims against Defendant [...].  A non-signatory to an arbitration agreement may compel a signatory to arbitrate when issues to be litigated are intertwined with the agreement containing the arbitration.  It is clear that the merits of Plaintiff’s dispute with Defendant [...] and [sic] bound up/intertwined with Plaintiff’s contract with Defendant [...].  Rider to Order Dated December 12, 2023 p. 5 (Pa70) (internal citations omitted) (emphasis added).  Importantly, the New Jersey Supreme Court has held that intertwinement is insufficient to compel arbitration under a theory of equitable estoppel.  Stated simply, we reject intertwinement as a theory for compelling arbitration when its application is untethered to any written arbitration clause between the parties, evidence of detrimental reliance, or at a minimum an oral agreement to submit to arbitration.  As explained earlier, equitable estoppel “is invoked in the interests of justice, morality and common fairness. ”  Knorr, supra, 178 N.J. at 178, 952 A.2d 836 (internal quotation marks omitted).  Estoppel cannot be applied solely because the parties and claims are 3 T1 15:21-22.  intertwined, and, to the extent that *EPIX Holdings* suggests otherwise in its rationale, it extends equitable estoppel beyond its proper scope.  *Hirsch*, 215 N.J. at 192-93.  The trial court’s rationale in granting [...]’s Motion to Dismiss pursuant to R. 4:6-2(a) is the same sort of reasoning that *Hirsch* sought to foreclose on in determining that intertwinement is insufficient to weaponize an equitable doctrine to force a plaintiff to arbitrate her claims.
[brief] **[...]’s expert should have been precluded from testifying as not disclosed in discovery** (not raised below)  In addition to the above argument that [...]’s expert suffered from the exact same “deficiency” that [...]’s expert suffered from, namely that he did not review the 21 boxes of the file, [...]’s expert suffered from an additional deficiency as well.  He was not disclosed during discovery as the expert to be testifying.  As pages Pa51-Pa52 show, the Expert that was expected to testify was named [...].  That is not the expert who testified at trial.  At trial, the name of the expert who testified for [...] was named [...].  (6T, Pg. 70, line 24).  [...] should not have permitted this expert to testify.
[brief] According to [...], [...] should be prohibited from arbitrating its Indemnity Claim because [...] participated in partial summary judgment motions to determine the proper allocation of [...]’s defense costs.  However, the defense allocation dispute is precisely why arbitration was futile.  [...] could only achieve an actual resolution of its defense obligations if it participated with the other parties in those motions.  Moreover, [...] benefited from [...]’s participation in the DJ Action; it allowed [...] to obtain complete relief on its defense claims.  This Court should not deprive [...] of its right to arbitrate [...]’s Indemnity Claim – which was not the subject of any [...] motion or submission below – when [...] benefited by [...] staying in the DJ Action to achieve finality on the defense issues.  C.
[brief] ”  Segal v. Lynch, 211 N.J. 261, quoting Gruber & Colabella, P.A. v. Erickson, 345 N.J.Super 248 (Law.Div. 2011).  Mirroring the analysis of Segal v. Lynch, in the earlier case of Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super 510 (App.Div. 2009), the Appellate Division held that “counsel proceeding pro se cannot recover attorney’s fees for frivolous litigation because R. 1:4-8 specifically permits only the reimbursement of attorneys’ fee and expenses incurred by a party.
[brief] The Arbitration Clause Is Not Mandatory for Disputes Concerning [...]’s Non-Payment of [...]’s Insurance Claim | 39 | | A.  The Policy’s Arbitration Clause is Permissive | 39 | | B.  The Narrow Mandatory Umbrella Policy Clause Does Not Apply | 44 | | CONCLUSION | 47 | ### TABLE OF AUTHORITIES | Case | Page(s) | |----------------------------------------------------------------------|---------| | **STATE CASES** | | | *Atalese v. U.S. Legal Servs. Grp., LP,* | 34, 42, 44 | | 219 N.J. 430 (2014) | | | *Chavis v. Norwood Terrace Health Ctr.*, | 22, 27, 29 | | No. A-1442-19, 2021 N.J. Super. Unpub. LEXIS 785 (App. Div. May 4, 2021) | | | *Cole v. Jersey City Med. Ctr.*, | passim | | 215 N.J. 265 (2013) | | | *Del. River Partners, LLC v. R.R. Constr.*, | 43 | | A-2613-20, 2022 N.J. Super. Unpub. LEXIS 1134 (App. Div. June 24, 2022) | | | *EPIX Holdings Corp. v. Marsh & McLennan Cos., Inc.*, | 19, 23, 37, 38 | | 410 N.J. Super 453 (App. Div. 2009) | | | *Herrera v. Paramount Freight Sys., Inc.*, | passim | | No. A-0424-23, 2024 N.J. Super Unpub. LEXIS 951 (App. Div. May 24, 2024) | | | *Kernahan v. Home Warranty Adm’r. of Fla., Inc.*, | 40, 42 | | 236 N.J. 301 (2019) | | | *Marmo & Sons Gen. Contr., LLC v. Biagi Farms, LLC*, | 25, 30, 32 | | 478 N.J. Super. 593 (App. Div. 2024) | | | *Medford Twp. Sch. Dist. v. Schneider Elec. Bldgs. Ams., Inc.*, | 43 | | 459 N.J. Super. 1 (App. Div. 2019) | | | *Potomac Ins. Co. of Illinois ex. Rel OneBeacon Ins. Co. v. Penn. Mfrs. Ass’n Ins. Co.*, | 19 | | 215 N.J. 409 (2013) | | | *Schor v. FMS Fin. Corp.*, | 40 | | 357 N.J. Super. 185 (App. Div. 2002) | | | **FEDERAL CASES** | | | *Brownstone Inv. Grp. LLC v. Levey*, | 25 | | 514 F. Supp. 2d 536 (S.D.N.Y. 2007) | | | *Century Indem. Co. v. Viacom Inter., Inc.*, | 28 | | 2003 WL 402792 (S.D.N.Y. 2003) | | | *Chassen v. Fid. Nat’l Fin., Inc.*, | 15, 17, 18, 19 | | 836 F.3d 291 (3d Cir. 2016) | | Fasano v. Li, No. 16 CIV. 8759 (KPF), 2023 WL 6292579 (S.D.N.Y. Sept. 27, 2023).................................12
[brief] The Court ruled that “the language of APDRA unmistakably informs parties that by utilizing its procedures they are waiving [their] right” to appeal beyond the trial court, and that such a waiver generally must be enforced.  Id. at 148.  In this case, the trial judge exercised his jurisdiction to confirm the arbitration award.  [...] correctly applied the proper standard of judicial review to all of the issues of this case and reached a proper determination.  (1T3:2-12:6; Pa37)  Furthermore, a review of the brief filed by Plaintiff indicates that Plaintiff is not raising any of the “rare circumstances” or this Court’s “special supervisory function. ”  Rather, Plaintiff is simply seeking a *de novo* appellate review of the arbitration award because he believed it to be erroneous.  Furthermore, Plaintiff’s argument that the case involves a failure to apply the PIP Schedule is false.  This case is about Plaintiff’s failure to fulfill his burden and provide sufficient evidence of what was paid, in order to support the claim for reimbursement.  The evidence merely showed a total amount for the date of service, without breaking down how much, if any, was paid for each of the CPT codes.  Thus, Plaintiff did not fulfill his burden of proof.  Nor is there any basis to review the decision of [...] under this Court’s supervisory function, as discussed in Mt. Hope, 154 N.J. at 152 or in Morel v. State Farm Insurance Company, 396 N.J. Super. 472 (App. Div. 2007).
[brief] H1a  Appellate Division Order issued May 24, 2023, extending the briefing schedule to June 13, 2023, for appellant’s brief in Docket [...] ...........................................  H3a  Amended Statement of Items Comprising the Record on Appeal, filed by the [...] for the [...], in Docket [...], March 29, 2023 ...............  H5a Case Information Statement filed by the [...] for the [...], in Docket [...], February 23, 2023  ...........................................  H20a Case Information Statement filed by the [...] (“[...]”), in Docket [...], February 15, 2023 ..........  H23a Case Information Statement filed by the [...] (“[...]”), in Docket [...], February 10, 2023 ......  H27a Notice of Appeal filed by the appellant, [...] (“[...]”), January 30, 2023, docketed as [...], with .........
[brief] Once again, [...]’s counsel disputed the management fees on the grounds that [...] did not provide a detailed breakdown of these fees.  *Id.* at 41:22-26.  Additionally, for the first time, [...]’s counsel argued that the condominium fees should not be passed along to [...] because he is a protected tenant under the TPA.  The TPA sets forth in pertinent part:  In the case of a municipality subject to the provisions of this act that has a rent control ordinance in effect, a rent increase for a qualified tenant with a protected tenancy status . . . shall not exceed the increase authorized by the ordinance for rent-controlled units.  Increased costs that are solely the result of a conversion, including but not limited to any increase in financing or carrying costs, and do not add services or amenities not previously provided shall not be used as a basis for an increase in a fair-return or hardship hearing before a municipal rent board or on any appeal from such determination.  N.J.S.A. 2A:18-61.52(b) (emphasis added).  In reply, [...]’s counsel noted that condominium fees were costs that were passed onto all unit owners for common building items such as water and sewerage, building insurance, maintenance to the building and snow removal.  [...]’s counsel explained that these fees are not costs that result from a condo conversion but instead are necessary building operating expenses.  Id. at 16:1-12.  The Board accepted this argument.  Without making any final determinations, the Board adjourned the meeting until December 13, 2017.
[brief] 44 N.J. Super. at 557-559.  Specifically, the Court held: “[w]e are satisfied that defendant has deliberately waited for years to apply for relief against a long-known void judgment simply because it was not convenient for him to do so earlier, and that only the pinch of the need for a driving license has at last brought him to court.  These are not circumstances of the kind which the rule of court envisages as an equitable basis for relief ‘within a reasonable time. ’”  Id.  Moreover, where the defendant challenges service, the right to attack a judgment on jurisdictional issues may be waived if not brought within a reasonable time.  Bascom Corp. v. Chase Manhattan Bank, 363 N.J. Super. 334 (2003) (denying the motion to vacate pursuant to Rule 4:50-1 because the motion was not made within a reasonable time and did not establish excusable neglect, even where the challenge was based on jurisdiction); Wohlegmuth v. 560 Ocean Club, 302 N.J. Super. 306, 312 (1997); Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, 204 (1990).
[brief] In the Alternative to the Trial Court’s Grounds for Dismissal, Appellant’s Claims Are Barred by Res Judicata and the Entire Controversy Doctrine  Appellant’s claims are also barred by res judicata and the entire controversy doctrine because they were not brought in the Collection Action.  For a claim to be barred by res judicata, “(1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one. ”  *Watkins v. Resorts Int’l Hotel & Casino, Inc.*, 124 N.J. 398, 412 (1991).  Similarly, “[t]he entire controversy doctrine requires that a party ‘litigate all aspects of a controversy in a single legal proceeding. ’”  *J-M Mfg. Co. v. Phillips & Cohen, LLP*, 443 N.J. Super. 447, 454 (App. Div. 2015) (citation omitted).  The elements of the entire controversy doctrine are identical to those of res judicata.  *See Kaul v. Christie*, 372 F. Supp. 3d 206, 239 (D.N.J. 2019).  Here, the Collection Action resulted in a judgment on the merits that was valid and final.
[brief] Accordingly, the Third Circuit held that arbitration could proceed two-and-a-half years later because of a subsequent change of law.  See id. at 293-294.  By contrast here, [...] does not argue that a motion to arbitrate was almost certain to fail because the law was different six years ago, as in Chassen.  Instead, [...]’s argument is that there were other defendant insurers who made it less efficient for them to do so.  See, e.g., Db25.  This is not the legal definition of “futility. ”  Indeed, there is no case cited by [...] that the involvement of other parties makes an arbitration motion futile or “almost certain to fail. ”  The Cole case makes that clear.  Cole, 215 N.J. at 283 (“Our analysis is not affected by the fact that non-arbitrable claims initially were present in the lawsuit as [plaintiff] asserted claims against [another defendant], who was not a party to the arbitration agreement. ”)  Given that there has been no intervening change in the law six years into this litigation, *Chassen* does not apply to [...]’s “totality of circumstances” here.
[brief] R. 1:13-4(a) provides as follows:  "Subject to the right to be prosecuted by indictment, if any court is without jurisdiction of the subject matter of an action or issue therein or if there has been an inability to serve a party without whom the action cannot proceed as provided by R. 4:28-1, it shall, on motion or on its own initiative, order the action, with the record and all papers on file, transferred to the proper court, or administrative agency, if any, in the State.  The action shall then be proceeded upon as if it had been originally commenced in that court or agency.  This rule did not provide for transfers from a court to an administrative agency when the Law Division action was started, but was amended, effective September 11, 1978, to allow such transfers.  See Kaczmarek v. New Jersey Turnpike Auth., 77 N.J. 329, 344 (1978).  The rule as amended is applicable here because when [...] obtained summary judgment the amendment had been adopted.  See Feuchtbaum v. Constantini, 59 N.J. 167, 172 (1971).  The rule thus requires that the court on its own initiative transfer the action to an appropriate administrative agency if the court is without subject matter jurisdiction of the action.
[brief] [...]’s opinion was properly admitted.  [...] had the right to tell the jury that what appeared in the videos and the photographs “resembled” a NJSP wallet ID, with which he was obviously far more familiar than they were.  See State v. Singh, 245 N.J. 1, 4-5 (2021); id. at 19-20 (distinguishing McLean and rejecting arguments that availability of video and objects about which officer opined rendered lay opinion “unhelpful,” and that officer’s testimony “usurped the jury’s role” in making necessary comparison).  After Singh, the Court held in State v. Sanchez, 247 N.J. 450 (2021), that when video evidence is of “relatively low quality,” and a witness rationally is “more likely to correctly identify” the disputed item than is the jury, the witness’s lay opinion may be deemed helpful to the jury, and admissible.  Id. at 473; accord, United States v. Henderson, 68 F.3d 323, 325-27 (9th Cir. 1995) (ruling officer who testified he had seen defendant wearing particular type of coat could offer lay opinion on identity of person appearing in photograph, because he had “specialized knowledge”).  That happened here, as [...] was far more familiar with NJSP IDs than were the jurors, and so admission of his opinion was not erroneous.
[brief] (Da102.)  [...] essentially expressed two concerns in objecting to the protocol.  (Da103-04.)  First, the court’s order would result in the production of a large number of irrelevant but potentially sensitive documents, which [...] might publicize.  (Da103.)  Second, the court’s --- 8 TAR is machine-learning A.I. utilized to determine which documents returned by the electronic search terms are relevant and responsive, without the need for human review of all documents.  (See T9-24 to 10-8.) directive would require it to review all of the ESI search hits for privilege, which would be overly burdensome.  (Da104.)  The next day, in an email response, the trial court stated its reasons for compelling discovery of non-privileged search hits, based on the parties’ agreed to search terms, without the parties performing a pre-production relevance review.
[directive] Rule 3:26-1 (indictable offenses) and Rule 7:4-1 (non-indictable offenses) delineate factors to be considered when setting bail and provide for the option of R.O.R. bail where appropriate.  Bail  Ranges for attempts or conspiracies should generally be the same as the actual substantive crime.  Statute Charge Description  Degree Bail Range 10%  Cash Bail Option  Possession of Goods (Including Actor knowingly possesses goods, including cigarettes, which are required to be taxed and Disorderly Persons  N.J.S. 54:52-18  Cigarettes)  $500 to $1,000  10% permissible on which tax has not been paid.  Offense Without Paying Tax  91  Updated December 2, 2013  SUMMARY OF RULES AND STATUTES REGARDING BAIL FOR INDICTABLE OFFENSES
[brief] Comprehensively reviewing the law, §11 determined that such liability has never been recognized outside of two limited situations: (1) noncompliance after a government recall was already declared, or (2) negligently conducting a recall that the defendant voluntarily undertook:  One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller's failure to recall a product after the time of sale or distribution if: (a)(1) a governmental directive issued pursuant to a statute or administrative regulation specifically requires the seller or distributor to recall the product; or (a)(2) the seller or distributor, in the absence of a recall requirement under Subsection (a)(1), undertakes to recall the product; and (b) the seller or distributor fails to act as a reasonable person in recalling the product.  Restatement (Third) of Torts, Products Liability §11 (1998) (emphasis added).  Thus, the Third Restatement’s black letter law rejects the purported common-law obligation that plaintiff asserts here: demanding the anticipatory removal of products from the market before any recall was ordered or undertaken.
[brief] [...] cites *Young v. Dillon Cos.*, 468 F.3d 1243, 1250 (10th Cir. 2006), and *Rivera v. City and County of Denver*, 365 F.3d 912, 924-25 (10th Cir. 2004).  Accordingly, [...]’s motion to compel is granted as to RFP No. 4.
[brief] On May 15, 2017, [...] reiterated that defendant was advised of his right to counsel and the seriousness of this offense on three separate occasions:  THE COURT:  As I indicated back in September, you have the right to be represented by an attorney.  You indicated back in March of 17 that you intended to retain private counsel, and then when we rescheduled it for the 27th you failed to appear.  I take it you wish to waive both the private counsel and the public defender and wish to plead guilty today, is that correct?  [...]: Yes.  Yeah – (1T:4-16 to 4:24).  THE COURT: And did you get a chance to talk with private counsel?  [...]: No, -- I was homeless and I messed up and take the penalties and -- stand up.  THE COURT: All right.  And again, you wish now to waive that right to appointment of the public defender and plead guilty today, is that correct?  [...]: Yes.  (1T:5-10 to 5-17).  THE COURT:  Do you understand that these are serious penalties, even today you have the right to apply for the appointment of public defender.  Knowing all this you want to waive your right to proceed, is that correct?  [...]: Yes.  (1T:7-12 to 7-17)(emphasis added).  As demonstrated by the record in this case and as properly held by [...] on de novo review, throughout the entire hearing on May 15, 2017, [...] continuously advised defendant of the seriousness of the charges and his right to counsel.  Indeed, [...] specifically held, “This court can state with confidence that there is nothing more [...] could have done to fully apprise defendant of his right to counsel, being mindful of defendant’s Sixth Amendment right to represent himself. ” (Da 18 citing to Faretta c. Cal. 422 U.S. 806, 821 [1975] (“The Sixth Amendment, when naturally read, thus implies a right of self-representation. ”))  Despite the clear record in this case, defendant argues that he is entitled to relief pursuant to *State v. Laurick*.