ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] While the trial court may be critical of the manner in which counsel for Plaintiff presented that evidence, the required statement of facts with citation to the record was incorporated into the brief.  The trial court had an obligation to consider all the facts presented to it and view those facts in a light favorable to Plaintiff.  POINT V THE OVERWHELMING WEIGHT OF EVIDENCE DEMONSTRATES THAT TERMINATION WAS PRETEXTUAL (T33:5-13 & T34:1-8)
[brief] Defendants also unsuccessfully attempt to distinguish *Cineas v. Mammone*, 270 N.J. Super. 200, 207-08 (App. Div. 1994), where this Court held that “judges should not vacate orders of judges of co-ordinate jurisdiction unless there are exceptional circumstances” or “there has been a material change in the facts or available evidence. ”  Defendants mistakenly argue that this holding of *Cineas* been overruled, but this Court has continued to apply the relevant holdings from *Cineas*: judges of coordinate jurisdiction may not conduct appellate review, relitigation of interlocutory orders before successive judges is disfavored, and a second judge should not vacate the order of a prior judge absent exceptional circumstances.
[brief] When evaluating whether an employer should be granted such a safe haven, relevant factors for a motion court to consider include (but are not limited to): the existence of a formal policy prohibiting harassment; the existence of both formal and informal complaint structures; and anti-harassment training.  *Gaines v. Bellino*, 173 N.J. 301, 313 (2002).  However, “the absence of such mechanisms [does not] automatically constitute negligence, nor [does] the presence of such mechanisms demonstrate[] the absence of negligence. ”  *Lehmann v. Toys ‘R’ Us*, 132 N.J. 587, 603 (1993).  Here, [...] failed to marshal any evidence at summary judgment to dispute that State Respondents’ response to her EEO complaint was anything but prompt and remedial.  It was undisputed at summary judgement that [...] has a robust anti-discrimination, retaliation, and harassment policy that [...] availed herself of.  (Da50-Da62; Da735-Da741).  [...] took prompt and remedial action after [...] filed her EEO complaint on or around November 20, 2018.  (Pa672 at T67:13-T68:7; Da50-Da62; Da120; Da666-668; Da787-Da788).  Specifically, her complaint was thoroughly investigated, [...] was found to have violated the EEO policy as to [...], [...] was disciplined, and [...]’s voluntary transfer request was approved shortly thereafter.  (Da61-Da62; Da514-Da516; Da520-Da525).  Further, [...] failed to identify a single legitimate example of sexual harassment after her EEO complaint was resolved and her Superior Court Complaint was filed in this matter.  (Pa366 at T170:11-171:6; T172:3-7; Pa367 at T174:23-25; Pa369 at T178:16-T179:5; Da123).  ---
[brief] On 12/20/2010 [...] ordered that the mortgage assignment of 2/27/2009 was fraudulent.  On 2/28/14 made an assignment to assign the servicing right to [...], so the assignment of 2014 was based on the assignment of 2009.  Therefore the assignment of 2/28/14 is fraudulent.  By NJSA 12:2-203(b) the assignment of 2/28/14 is void.  [...] pleaded that it was never in possession of the alleged Note, [...] was.
[brief] Finally, Plaintiff attempts to demonstrate pretext due to the [...] allegedly “responding to her sexual harassment allegations during the November 29, 2018 meeting”, by blaming her for wearing inappropriate clothing.  This claim is contradicted by the record.  Specifically, Defendant [...] certified that a DCPP employee advised her during a telephone call on November 23, 2018 that “Plaintiff [...] was dressing inappropriately at work and spending too much time with DCPP workers”.  (Da4 ¶8).  Moreover, Defendant [...] spoke with Plaintiff on November 27, 2018 at which time Plaintiff advised that she was having “issues with Defendant [...], but never reported that she was being sexually harassed.  (Id., ¶10).  Prior to this, on November 10, 2018, Plaintiff was given a counseling notice indicating that the DCPP Supervisors had contacted CFS to complain about Plaintiff’s attire and her socialization with DCPP workers, a fact that was confirmed by DCPP Representative [...].  (Da7)  Thus, while the topic of DCPP’s reports of issues of Plaintiff’s attire and socialization with DCPP employees was discussed during the November 29, 2018 meeting, it was not raised in response to her sexual harassment allegations, but rather prior to that meeting and by DCPP employees.  Under the circumstances, Plaintiff’s facts do not support any claim that the [...] decision to remove Plaintiff from the [...] was anything other than reasonable, legitimate and non-discriminatory/retaliatory.
[brief] The two contracts were independent of each other, and the contract at issue in this appeal was not tainted with any illegality, or contrary to public policy.  Rather, it was nothing more than a standard contract for title insurance and settlement service between a home buyer and title insurance company.  Moreover, the Trial Court’s application of the doctrine of *in pari delicto* was clear reversible error.  There was not a single piece of evidence submitted in support of summary judgment showing that Plaintiff and Defendants together entered into their Commitment for Title Insurance contract in furtherance of a mutual illegal purpose -- this doctrine simply has no place here.  II.
[brief] Ibid.  Indeed, in accordance with N.J.S.A. 40A:12A-7(f), the Planning Board evaluated whether the proposed amendments were consistent with the City’s Master Plan.  The Planning Board held a public hearing on October 20, 2020, at which it reviewed and determined whether the proposed amendments were “substantially consistent with the Master Plan. ” (Pa625 to Pa626; 4T36:10-37:21).  At the October 20, 2020 hearing, [...], planning director for the City, described the proposed amendment redevelopment plan, highlighting modifications to the bulk standards in the proposed amendment.  (Pa625 to Pa626; [...] explained that one of the more substantive changes was that the amended plan increased the building’s maximum height to 100 feet “which is in keeping with the established building height of the South Beach project as well as the (indiscernible) project and other high-rise multi-family buildings in the redevelopment areas” and that the height was “consistent with the established development pattern. ” (Pa626; 4T39:12-22).  In deposition testimony, [...] further explained how a change in height could be in keeping with the established building heights, noting that deviations can still be appropriate and harmonize as growth occurs over time:  A.  …  [D]ensity numbers are variable.  You know, it changes in context.  It changes as the time progresses.  As I said, in 2009, the City Council and Planning Board felt that 30 units an acre was appropriate.  Q.  What changes have occurred in the – this redevelopment area that would warrant a greater maximum density than 30 dwelling units per acre?  A.  The redevelopment area was developed with multistory buildings in the stretch of redevelopment area.  (Pa536; 2T44:4-17).
[brief] [...] has been especially victimized by the State’s failure to meet either of those explicit constitutional conditions, and particularly the second, because of its concededly unique demographic circumstances and the drain that imposes on its budget.  Had the State seriously evaluated the extent to which SFRA’s statewide formula, let alone a persistently underfunded version of SFRA, was meeting the needs of [...] public school students for T&E, it would long ago have engaged in substantial retooling of SFRA. \(^7\)
[brief] The OPRA issue before the Court is subject to a *de novo* standard of review.  It is well accepted that a “trial court's determinations with respect to the applicability of OPRA are legal conclusions subject to de novo review."  *O'Shea v. Twp. of W. Milford*, 410 N.J. Super. 371, 379 (App.Div. 2009).  In this case, the undisputed facts matter, as they are of legal significance to the applicability of OPRA requirements here.  For the following reasons, the trial court’s order on remand must be reversed and the trial court’s original order dismissing the Plaintiff’s complaint must be reinstated.
[brief] See *Conlon v. Bd. of Pub. Works*, 11 N.J. 363, 370 (1953).  See also, *Griepenburg v. Twp. of Ocean*, 220 N.J. 239, 263 (2015); *Brunetti v. New Milford*, 68 N.J. 576 (1975); *AMG Assocs. v. Springfield*, 65 N.J. 101, 109 n.3 (1974).  As stated in *Harvard Enters., Inc. v. Bd. of Adjustment*, 56 N.J. 362, 368-69 (1970):  An ordinance that may operate reasonably in some circumstances and unreasonably in others is not void *in toto*, but is enforceable except where in the particular circumstances its operation would be unreasonable and oppressive.  *Isola v. Borough of Belmar*, 34 N.J. Super. 544, 552 (App. Div. 1955); *Independent, etc., Oil Co. v. Mayor, etc., of Gloucester*, 102 N.J.L. 502, 504 (Sup. Ct. 1926); 5 *McQuillin, Municipal Corporations* (3d ed. 1969), § 18.05, p. 344.  The determination of such an issue depends upon an evaluation of the proven facts within the context of applicable legal principles.  The total factual setting must be evaluated in each case, and if the issue be in doubt, the ordinance must be upheld.  Thus, in addition to the plaintiff being required to first seek and be denied relief that is available under the ordinance, a determination of whether the application of the ordinance is valid is also dependent upon the particular facts and circumstances.  As set forth in the Statement of Facts and in Point II herein, the particular facts that the court below relied upon to invalidate the Ordinance (i.e., that the routing of 69kV lines through [...] was essential to assure adequate service) was hotly disputed and incapable of being decided on summary judgment (as the court below wrongly did).
[brief] (Pa476).  [...] also informed [...] that she would have documented any approval.  (Pa106-07 at 89:6-90:6).  Following [...]’s investigation into the unauthorized entry of charge pay, [...] determined that there was sufficient evidence to conclude that the charge pay taken by Plaintiffs was entered by them without proper authorization.  (Pa115-16 at 125:24-126:6).  XII.
[brief] On November 9, 2023, the trial judge finally convened oral argument on the remaining issues.  At the outset, the trial judge mischaracterized Tenant’s motion to fix the amount owed under Tenant’s Allowance as a “motion for reconsideration” (3T3-11 to 3-14).  The trial judge then apologized for the delay in issuing a ruling, while casting at least some of the blame on the parties themselves for the length of their submissions, comparing them to the novel “War and Peace,” a copy of which the trial judge then brandished to illustrate the voluminousness of the parties’ submissions (3T3-15 to 3T3-23).  The trial judge held that “the order that tenant’s counsel would like me to make adopt [sic] is something I really don’t have jurisdiction to adopt,” finding that Tenant’s claim to the Tenant’s Allowance offset would be “the equivalent of a judgment for damages,” which he could not rule upon as a landlord-tenant judge (3T14-3 to 3T14-8).  The trial judge added his view that there were only “two results to an eviction complaint.  Either a judgment for possession or . . . dismiss[al],” in which case Tenant would “maybe . . . get the 192,000 [sic],” but he believed he lacked “jurisdiction” to order that (3T14-9 to 3T14-14).  The trial judge added that his decision only had “limited res judicata value,” and Tenant remained “free to do something in the Law Division” (3T14-15 to 3T14-18).  Confusingly, however, the trial judge then went on to hold that “while the tenant was in default or breach, he’s not entitled to fit up costs,” that the trial judge had already ruled on that issue, and that “[n]othing changes my mind about that” (3T15-2 to 3T15-4).
[brief] This action was the final matter to be adjudicated.  Perhaps owing to the multiple judges assigned to the matter now on appeal ([...] 2018-2019; [...] 2019-2022; and [...] 2022-present), the trial court erred in its application of the law, in differentiating between fact and rhetoric, and in failing to distinguish between parties and non-parties.  [...] in particular, appeared all too willing to substitute the ipse dixit statements of Plaintiffs’ counsel not only for the facts on record, but also for the procedural history of the case before her arrival in the Chancery Division.  The court also fashioned what it termed equitable remedies that lie in direct conflict with the law.  Examples of this can be seen in [...]’s multiple references in multiple orders to an early order issued by [...] removing [...] from [...] (the order, in fact, removed [...] as manager of the [...] and directed he was to otherwise continue his involvement with the [...] and [...]); acceptance of an unproven and unsupported damages calculation set forth for the first time in Plaintiffs’ post-trial brief and not ascertainable from the trial transcript or the record, yet incorporated into the final judgment; and failure to distinguish between the [...] (referred to as “[...]” in the action below) and non-party [...] (referred to “[...]” in the action below).
[brief] Appeals of Law Division Trials  *De Novo* to the Appellate Division**  On appeal of the Law Division’s decision in a trial *de novo* from the municipal court, this Court’s review “focuses on whether there is ‘sufficient credible evidence . . . in the record’ to support the trial court’s findings. ”  *Robertson*, 228 *N.J.* at 148 (quoting *Johnson*, 42 *N.J.* at 162).  While “appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts,” the trial court’s legal rulings are nonetheless considered by this Court *de novo*.  *Id.*  **C. Appeals of Sentencing**
[brief] *Id.* at 1; *State v. Baker*, 214 N.J. 116 (2013).  Defendant then filed a third PCR, which was denied by the Honorable [...].  (Pa156).  Defendant appealed from the denial, and in an order filed on April 11, 2017, the Appellate Division summarily remanded the matter for resentencing pursuant to *State v. Zuber*, 227 N.J. 422 (2017).  (Pa181).  On September 4, 2018, [...] held a resentencing hearing in which he entertained both defendant’s and [...]’s application.  (3T).  On January 29, 2019, the judge ordered that defendant’s life sentences run concurrently, with a 30-year parole bar.  (Da14-17).  Defendant once again appealed.  On February 4, 2022, the Appellate Division remanded the matter for resentencing pursuant to *State v. Comer*, 249 N.J. 359 (2022).  *State v. Baker*, [...] (App. Div. Feb. 4, 2022) (slip op. at 12-14).  On March 31, 2023, [...] resentenced defendant to two concurrent life terms with a parole bar of 29 years.  (Da18).  This appeal follows.
[brief] The only reference to such an injury is contained in [...]’s report.  However, it appears probable, even presumable, that [...] made a typographical error when interviewing [...], and then transferred that error when completing his report.  --- \(^2\)  [...]’s report specifically stated that [...] had a “previous history” of workers’ compensation in 2009.  (Pa163).  \(^3\)  [...] specifically testified that he could “not . . . recall” a 2009 injury.  (1T54:18-55:20).  In its brief, Respondent asserts that the above statement does not constitute a formal denial of the injury.  (Respondent’s Brief at 10, 35).  It is difficult to understand what kind of semantical argument Respondent is trying to make.  [...] stated that he did not remember a 2009 injury.  [...] made this statement because a 2009 injury did not occur.  The record supports this conclusion.
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[brief] The instant case involves the simple enforcement of a labor arbitration award in favor of Defendant-Appellee [...] (“[...]”), resolving its dispute with Plaintiff-Appellant [...] (“[...]”) concerning the [...]’s termination of the [...]’s member, [...], in New Jersey Public Employment Relations Commission Docket Number [...].  Arbitrator [...] ruled that the [...] had terminated [...] without just cause in violation of the parties’ Collective Negotiations Agreement (“CNA”).  (Appendix page (“Pa.”) 19-40; 57-61; CNA at Pa 69-86).  [...] was injured on the job in 2019, and was terminated when she returned from her injury leave with a doctor’s note imposing limited work restrictions in January 2020.  [...] provided a revised note rescinding those restrictions, only to be told that she still would not be reinstated, now due to Pandemic-related budget cuts.  The sole issue before the arbitrator, which the parties stipulated and agreed to at the outset of the arbitration hearing, was whether the [...] had just cause to terminate [...].  As explained in his award, [...] ruled that the [...] lacked just cause to terminate [...]’ employment and directed the [...] to make [...] whole for the period of her wrongful termination and provide make-whole relief in the form of back pay and fringe benefit fund contributions.  The [...] refused to comply with [...]’s Award and filed the underlying Complaint to Vacate [...]’s Awards before the Essex County Chancery Court.  The [...], in return, moved before the for an order confirming the Award.  The Court dismissed the [...]’s Complaint and granted the [...]’s Motion to Confirm.  This appeal followed.
[brief] However, Defendants’ arguments as to standing and jurisdiction are misplaced.  Similarly, Defendants’ arguments as to arbitrability fail to analyze recent case law from the United States Supreme Court which determines that challenges to the validity of a contract as a whole (as was done here) includes a challenge to the arbitration provision and delegation clause contained therein.  A court must decide such challenge, not the arbitrator.  Lastly, Defendants’ arguments as to waiver fail to analyze the majority of relevant factors informing the analysis.  Defendants focus only on the lack of a trial date, but largely ignore their default of their discovery obligations in the trial court, their unsuccessful dispositive motion obtaining a partial dismissal on the merits, and the more than a year and a half of litigation in the trial court.  When considering the totality of circumstances, Defendants repeated affirmative litigation conduct was inconsistent with their purported desire to arbitration  Plaintiff’s claims and illustrated their intent to submit to the jurisdiction of the trial court.  Thus, Defendants waived arbitration.  REPLY ARGUMENT POINT
[brief] Again, this is fatal to [...]’s appeal.  Rather, this clause serves an entirely different purpose.  This clause exists to satisfy the common law requirement\(^8\) that indemnitees be free from fault.  See Englert v. The Home Depot, 389 N.J. Super. 44, 56 (App. Div. 2006)(the “regardless of” language can be read simply to eliminate that common law condition from the parties’ indemnification agreement).
[brief] Namerow v. Pediatricare Assocs., LLC, 461 N.J. Super. 133, 146 (Ch. Div. 2018).  Two of these elements of the cause of action were already satisfied by the Trial Court’s finding that the TPDs had an affirmative duty of loyalty to [...] and that they breached said duty.  The trial Court further accepted the fact that “[...] outbid [...] and the purchase price is $1,500,055.50.  That’s the basis between the $250,000 paid a few years earlier and this amount, that’s the basis of the claim for the plaintiff breach of...fiduciary duty. ” (5T 9: 19-24).  The remaining two elements of the breach of fiduciary duty cause of action are on appeal herein.  These are the Trial Court’s refusal to acknowledge [...] was (1) damaged by TPDs’ breach and (2) that the TPDs’ breach of their fiduciary duty to [...] was the proximate cause of said damage.
[brief] The defendant didn’t become aware of [...] as a potential witness until the day of trial  November  \textsuperscript{15}  Municipal Court Transcript [1T25:11-17 -11/29/2022]  \textsuperscript{16}  Municipal Court transcript [1T27:11-16 -11/29/2022], “…your stepmother knocked on my door and apologized for your behavior, because what she said to me, and I’m going to quote her, “That is not my daughter, that’s my husband’s daughter.  My children do not act like that, you know my children,” which I do. ”  \textsuperscript{17}  Municipal Court transcript [1T36:10-16 -11/29/2022], defendant asks, “..You indicated and accusing me, identified me, you indicated that I approached you on November 2\textsuperscript{nd}, again November 7, presume my stepmother on November 9\textsuperscript{th} and then again in regards to your signed complaint, you indicated in your signed complaint it was me for sure, correct?”  [...] replied, “Correct” 29, 2021.  Specifically, [...] was never mentioned during the preliminary hearings, by the plaintiff and/or [...], and testimony was not captured providing she purports to have come to believe that defendant did what she is accused of doing\textsuperscript{18}.  **DE NOVO APPEAL PREPARATION**
[brief] When a party challenges the admission of evidence, the question is not whether the challenged testimony will be prejudicial to the objecting party, “but whether it will be unfairly so. ”  Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 317 (1995).  Evidence claimed to be unduly prejudicial is excluded only when its probative value is so significantly outweighed by its inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case.  Griffin v. City of E. Orange, 225 N.J. 400, 421 (2016).  The appellate court should uphold the trial court’s evidence rulings if they are supported by adequate, substantial and credible evidence on the record.  Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383–84 (2010).  However, no deference is accorded when the court fails to properly analyze the admissibility of the proffered evidence.