ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] 1  PROCEDURAL HISTORY .......................................................................................................  2 STATEMENT OF FACTS .......................................................................................................  3  LEGAL ARGUMENT ...............................................................................................................  8  I.  THE PLAIN TERMS OF PSA  DO NOT ALLOW [...] TO TERMINATE THE PSA BASED ON RECEIPT OF A NON-ACCEPTABLE CERTIFICATE (Raised Below: Da11)  ..................................................................................................................  9  i.  Invel’s Right to Terminate is Contingent on Failure to Deliver an Acceptable Estoppel Certificate at Closing, Not on Immediate Receipt of a Non-Compliant Certificate (Raised Below: Da11)  .................................................................................................................. 10  ii.  The Trial Court Misconstrued the Purpose and Meaning of the Estoppel Provision (Raised Below: Da11-13) .................................................................................................................. 13  II.  The Trial Court Misinterpreted the Estoppel Certificate and Its Role as a Condition Precedent, Not a Tool for Due Diligence (Raised Below: Da11-13) .................................................................................................................. 19 i.  The Trial Court’s Misinterpretation of the Condition Precedent and 45  William’s Obligations Regarding the Estoppel Certificate (Raised Below: Da11-13)  .................................................................................................................. 20  ii.  An Estoppel Certificate has a Distinct Purpose and is not a Due Diligence Mechanism (Raised Below: Da11)  ..................................................................................................................  22  III.  THE TRIAL COURT’S REASONING CONCERNING AN “UNFAIR ADVANTAGE” FOR 45  WILLIAM MISINTERPRETS THE CONTRACTUAL RISK ALLOCATION (Raised Below: Da14)  ........................................................................25  CONCLUSION ..................................................................................................................27
[brief] O.D.A.-C., 250 N.J. at 420 (quoting State v. Sims, 250 N.J. 189, 211 (2022)).  "A waiver may be express or implied -- '[a]ny clear manifestation of a desire to waive is sufficient.'"  Bullock, 253 N.J. at 534 (alteration in original) (quoting Tillery, 238 N.J. at 316).  "Under the totality-of-the-circumstances test, courts commonly consider a number of factors to determine if a Miranda waiver is valid."
[brief] 249 N.J. at 631.  In that case, “defendant’s first mention of counsel, ‘[b]ut what do I do about an attorney and everything?’ was an ambiguous invocation of her right to counsel that required the detective to cease all questioning and seek clarification. ”  *Ibid.*  The Court distinguished *Alston*, 204 N.J. at 626, where the suspect had asked police “should I not have a lawyer?,” explaining that the suspect in *Alston* had sought the detectives’ “opinion about whether she should have a lawyer present,” whereas [...] had “inquired about the availability of counsel. ”  *Ibid.*  Additionally, the Court explained that the detectives in *Alston* had immediately taken the proper step of seeking clarification, “by asking ‘You want a lawyer[?]’,” and explaining the questioning would stop if defendant requested counsel, whereas the detectives in *[...]* “failed to clarify what defendant meant. ”  *Ibid.*  Because [...] made “an equivocal invocation of the right to counsel and, since the detective made no further inquiry, all portions of defendant’s statement made thereafter . . . should have been excluded at trial. ”  Id. at 632.  As in [...], [...] asked detectives a series of questions about “the availability of counsel,” and police failed to clarify whether he was invoking his right to counsel.
[brief] A.  **Contract Scope of Work Description**  The Contract at issue involves rehabilitation of bridges through the limits of the NB-HCE, Zones 2 and 3 (A2).  Zone 2 of the NB-HCE extends between Interchanges 14A and 14C on the Turnpike, while Zone 3 extends from Interchange 14C to the eastern terminus of Jersey Avenue in Jersey City approaching the entrance to the Holland Tunnel\(^2\) *(Ibid.)*.  The Redecking Project includes: - Bridge deck reconstruction of one ramp bridge in Zone 2 and three adjoining bridges in the eastbound direction (towards the Holland Tunnel) in Zone 3; - Hydrodemolition and partial depth overlay of one bridge in Zone 2; - Deck repairs and resurfacing of five bridges in Zone 2; - Steel repairs and bearing replacements throughout the bridges in both zones; - Parapet and median barrier replacement; - Deck joint replacement; - Structural steel repairs; - Bearing replacements; - Drainage and lighting improvements; and - Substructure spall repairs.  *(A2)*  The primary purpose and focus of the Redecking Project is to rehabilitate the bridge decks (including structural components) within Zones 2 and 3 of the NB-HCE *(Ibid.)*.  --- \(^2\)  Zone 1 of the NB-HCE extends between the Turnpike’s primary thoroughfare at Interchange 14 in Newark to Interchange 14A.  Again, Zone 1 is not impacted by the Contract.  As to Zone 3, the Redecking Project is the third phase of repairs that commenced in 2017, when repairs were made to the westbound roadway (from the Holland Tunnel to Interchange 14).  However, no reconstruction or rehabilitation of the bridges in Zone 2 have been performed since original construction of the NB-HCE in 1956 (Ibid.).  As anyone who has commuted to work on this section of roadway knows, this infrastructure is functionally obsolete, prone to delays and in significant need of rehabilitation and, ultimately, replacement.  B.
[brief] Even though this issue had not been raised in the papers and, in fact, the movants had conceded that Plaintiff’s expert, [...], had offered opinions sufficient to create a factual issue that [...]’s injuries had not been the result of the hemorrhage.  [Pa213; 268-269].  5.  The Post-Argument Submission  Within the short period of time between the end of the oral argument on the afternoon of July 14, 2023 and the close of business, Plaintiff filed a detailed four-page, single-spaced letter brief, the point of which was to demonstrate that the defendants had properly conceded the issue upon which the court had seemed eager to rule at oral argument.  [Pa502-505].  Among other points, Plaintiff argued that the inclusion of [...]’ report as an attachment to a reply brief was improper; and that it would be improper for the court to decide the case on an issue that had been, at best, raised by way of a reply.  [Pa502-505].  6.
[brief] Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402, 551 A.2d 1006 (App.Div.1988), certif. denied, 115 N.J. 59, 556 A.2d 1206 (1989)  ---------------------------------------------  2 Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 302, 96 A.2d 652 (1953) – 2, 22 Barr v. Barr, 418 N.J. Super. 18, 32, 11 A.3d 875 (App.Div.2011)  --------------  14  Brunetti v. New Milford, 68 N.J. 576, 589  -------------------------------  45  Cardinale v. Board of Trustees, PFRS, 458 N.J. Super. 260 (App Div. 2019)- 22, 23, 24, 25, 26, 27, 28, 29, Carr v. Borough of Glen Ridge, [...], [...] (N.J. Super. Ct. App. Div. January 5, 2022)
[brief] See also Young, 385 N.J. Super. at 466 (dismissing retaliation claim where decision-maker had no knowledge of protected activity); Michaels v. [...], No. 2:11-05657, 2014 U.S. Dist. LEXIS 83980, at *11 (D.N.J. June 19, 2014) (same). whistleblowing activity,” leading to an inference “that Plaintiff’s involvement in the investigation stopped her from being called back to work at this location. ” (AB at pp. 17-18, 20; Appx 364 at ¶60).  The cited email, however, does not support Plaintiff’s arguments.  (Appx 503).  The email lacks any reference to (1) Plaintiff’s whistleblowing activities, (2) knowledge of Plaintiff’s whistleblowing activities by any employee of the Defendant involved in the issue raised by the email; or (3) any adverse action by employees at that location.  The email simply shows that Plaintiff stopped by a group home and initiated a conversation about an investigation at another group home.  (Appx 503).  In addition, the email clearly states that the employees knew nothing about Plaintiff being off the schedule.  (Appx 503).  Plaintiff cannot establish who allegedly mistreated her or whether they knew about her alleged whistleblowing activity, and therefore, she cannot establish causation.
[brief] For one thing, Plaintiffs ignore that this Court has already approved of [...] Terms of Use that are essentially the same as the December Terms.  *See Williams*, 2023 WL 5768422, at *1.  Like the January Terms held enforceable in *Williams*, the first page of the December Terms contains a disclaimer—in all caps and starting with IMPORTANT—alerting the user to the Agreement in “Section 2 below. ”  (Da80–81, 227.)  Sec- tion 2 starts on page 2, with a significantly larger heading titled “Arbitration Agreement. ”  (Da81, 228.)  The first section of both the January and December arbitration agreements, Section 2(a), is titled “Agreement to Binding Arbitration Between You and [...]” in large bold font.  (Da81–82, 228.)  It states:  Except as expressly provided below in Section 2(b), you and [...] agree that any dispute, claim, or controversy in any way arising out of or relating to … accidents resulting in personal injury to you or anyone else that you allege occurred in connection with your use of the Services … will be settled by binding individual arbitration between you and [...], and not in a court of law.
[directive] The Barricaded Individual Policy recognizes that during these encounters, responding law enforcement officers and their commanders are often forced to make difficult decisions as See Section 1.2 of the Attorney General’s Use they endeavor to mitigate risk to all persons. of Force Policy.  1.2  Experience has demonstrated that time can be a critical ally of law enforcement officers seeking to peacefully resolve barricade scenarios.  The first few minutes of an encounter are often the most volatile and unpredictable.  First responding officers are key to stabilizing the Section 2.9 of the UOF Policy situation and summoning necessary assets. instructs that, “…officers should not default to attempting to resolve an incident immediately if slowing down the pace is viable and can be accomplished without creating an immediate threat to the public or placing officers in unreasonable danger. ”  Once officers are successful in preventing death or injury during the initial stages of an encounter, the opportunity for a nonviolent resolution increases, especially when assisted by highly trained crisis negotiators.  1.3  This Addendum to the Use of Force Policy is not intended to constitute a comprehensive document addressing all of the complicated issues involved in law enforcement responses to barricaded individuals.
[brief] (11T 128-11 to 130-3; 11T 74-23 to 76-20)  Additionally, multiple spent shell casings and projectiles were recovered from the area at Hoffman and Stuyvesant where the victim was shot.  (11T 60-1 to 64-14; 11T 71-6 to 7)  The magazine and live rounds in the gun were tested for fingerprints, but none were found.  (11T 99-10 to 100-18)  [...], a ballistics expert, confirmed that 12 recovered shell casings, and nine of the 18 recovered projectiles (or projectile fragments) from the scene and the autopsy were fired from the 9-mm. Glock that was recovered, while the other nine projectiles or fragments were inconclusive.
[brief] ”  (Da515)  Assuming for argument’s sake that deed evidenced an express easement, a claim to that effect certainly could have been asserted by [...].  [...] also cited *Culver* for the relevant factors in determining if two causes of action are sufficiently similar: (1) whether the acts complained of and the demand for relief are the same; (2) whether the theory of recovery is the same; (3) whether the witnesses and documents necessary at trial are the same; and (4) whether the material facts alleged are the same.  (Da816)(citing *Culver*, 115 N.J. at 461-62).  But that was merely shorthand for a more nuanced concept explained at greater length elsewhere in that decision.
[brief] On January 23, 2023, [...] filed her Class Action Complaint alleging that Defendants’ unlicensed attempts to enforce a void debt violated the Consumer Fraud Act (“CFA”), N.J.S.A. 56:8-1, *et seq.*, and the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, *et seq.* (Pa1)  On March 27, 2023, Defendants filed their Motion to Dismiss the Complaint.  (Pa26)  On October 4, 2023, the trial court granted Defendants’ Motion to Dismiss.  (Pa31)  In so doing, the trial court incorrectly reasoned that the NJCFLA precludes a private right of action and, therefore, the NJCFLA’s standard could not provide the standard of conduct which violates the FDCPA and the CFA.  However, the trial court did not consider the legislative intent and history of the NJCFLA which establish that the NJCFLA implicitly provides for a private right of action.  On November 17, 2023, [...] timey filed her Notice of Appeal (Pa54).  **STATEMENT OF FACTS**
[brief] Q.  And as you sit here today, you have no idea whether a catalytic heater configured for this particular regulator station would cost more or less than the one you purchased from [...]?  [...]:  I don't know that for sure because we haven't discussed that.  But in our past experience we believe that a catalytic heater is compatible, if not slightly more than, the [...]-type heater.  Q.  And that experience is the five catalytic eaters that you discuss in our rebuttal testimony?  [...]: Yes.  [2T80:12-25, -81:1-25, -82:1-12.]  The witnesses then conceded that the "problems" they vaguely discussed in their lawyer curated rebuttal testimony were not so serious, after all.
[brief] The union stated that it had “historically used rank-and-file members to observe negotiations and consult with observers in private caucuses while negotiations are ongoing. ”  The employer had agreed to permit union members to attend the previous round of collective negotiations, but refused to allow them to observe during the next round of negotiations.  The union insisted on having its members attend negotiations, and the employer applied to the [...] for mediation.  The [...] established a ground rule which prohibited the member-observers from attending the sessions, which the union also objected to.  The union thus refused to either negotiate or attend mediation without their members present, and initiated an action in federal court, which the employer filed a counter-claim on.  The union “ask[ed] the Court to enjoin [the employer] from conditioning bargaining on the exclusion of observers and to order [the employer] to engage in bargaining with observers present. ”  The union argued that the “observers” were actually “representatives” because they were “an integral part of [the union’s] bargaining committee, valuable for their input and assistance during bargaining, and critical to ensure the confidence of rank-and-file in assessing any tentative agreement that might be reached. ”  The employer requested “a preliminary injunction requiring [the union] to participate in the mediation without observers. ”  The Court stated that resolution of the matter required “the Court to distinguish between observers and representatives, which goes to the heart of this case.
[brief] THE TRIAL COURT'S FINDINGS OF AGGRAVATING AND MITIGATING FACTORS ARE SUPPORTED BY THE RECORD AND SUSTAIN THE SENTENCE, THE OVERALL FAIRNESS OF WHICH THE COURT EXPLAINED  In a multipart challenge to his sentence, defendant alleges that the trial court did not adequately explain its findings of aggravating and mitigating factors, failed to consider defendant's mental health issues, double counted his prior endangering conviction, and failed to explain the overall fairness of the sentence.
[brief] ***  The Court finds that the Plaintiff's contention that the language within the agreement is ambiguous is without merit and is unsupported by the language in the agreement itself.  The fact that there—there are not provisions demonstrating the differences between an arbitration and how an arbitration functions, and how a trial or trial by jury functions, is not sufficient—is not sufficient.  The Court finds that the agreement is actually a comprehensive agreement.  And is enforceable.  And is not void as a matter of public policy.  *** T.27 L.24-T.28 L.9.  Furthermore, as a matter of substantive federal law, which applies in State Courts, arbitration clauses are severable from the remainder of a contract.
[brief] The [...]’ (defendants’) claim for quiet title proceeded to a bench trial on July 11, 2022 before [...].  [...], however, directed that plaintiff’s counsel proceed with his witnesses and evidence first -- despite that it was defendants’ claim being tried.  Plaintiff thus proceeded to present testimony from [...], who formerly worked in the “Trustee Department” of [...] ([...] Trustee Department was long acquired by [...] at the time of trial, and Mr. Fay testified that he now worked at [...]), and from [...], a Senior Loan Analyst and representative of [...].  5T4-6.  Fay acknowledged that the 2009 assignment done in the [...]’ case was done only in foreclosure cases – which the [...]’ loan was never in (and was never delinquent or in default in any manner).  The [...] charged that an “Investor Trust,” which plaintiff’s counsel said he was representing in this lawsuit, could not own a loan, since only a trustee can be the legal owner.
[brief] However, even if it were considered a motion for summary judgment, the Judge of Compensation correctly decided “the single critical and undisputed issue” relying on the applicable statutes and Executive Orders.  Respondent also argues that the Judge of Compensation “based her decision on nothing but her personal beliefs about the Presumption Statute. ” (Rb 8).  Nothing could be further from the truth.  As shown by the statutes and Executive Orders upon which the Judge based her decision, her conclusion was not based on any personal belief.  Respondent adds to its argument that the Judge granted Petitioner’s Motion “without any competent evidentiary materials. ” (Rb 10).  A Judge is required to take judicial notice of statute and executive orders and it was these laws upon which the Judge of Compensation based her decision.  There are no issues of material fact.  It is difficult to fathom how Respondent can make this assertion when the statutes and Executive Orders make it very clear that the Decedent was an essential worker.
[brief] On November 14, 2022, Defendant filed an application for Post-Conviction Relief (PCR) based upon the legal authority set forth in *State v. Laurick*, 120 N.J. 1 (1990).  Defendant appeared in the [...] on January 23, 2023 to argue both of the foregoing applications.  At the inception of the proceedings, the Municipal Court and Defense counsel briefly discussed that an off-the-record conference had taken place prior to the matter proceeding on the record.  (T2:3-1 to 3-12).  Defense counsel then set forth the procedural history of the Defendant’s two applications.  (T2:3-7 to 5-6).  Defense counsel then read into the record the entirety of the factual basis that had been obtained by the Municipal Court on May 15, 2017.  (T2:5-16 to 6-22).  Thereafter, in reference to the *Laurick* application, Defense counsel read into the record the three references to Defendant having “waived” his right to counsel in the May 15, 2017 proceeding.  (T2:7-7 to 8-9).  Defense counsel then advanced oral argument to the Municipal Court that the Defendant did not knowingly, voluntarily, and intelligently waive his right to counsel.  (T2:8-11 to 13-16).  The Municipal Prosecutor then set forth his opposition to both of the applications pending before the Municipal Court.  (T2:14-2 to 15-21).  Defense counsel then made oral argument in support of the Motion to Vacate Guilty Plea that had been filed on May 15, 2022.  (T2:16-11 to 22-13).  The Municipal Prosecutor then offered brief additional oral argument in opposition to the Motion to Vacate Guilty Plea.  (T2:22-20 to 23-17).  Thereafter, the Municipal Court denied the Defendant’s two applications.  (DA6, DA7).  (T2:24-5 to 30-3).  Defendant ultimately filed a timely Notice of Appeal to the Law Division.  (DA8).  The Honorable [...], J.A.D. presided over the de novo review of Defendant’s two applications in the [...] on July 12, 2023 (T3).
[directive] The CPA also relies on submissions from various county jails in late December 2020 that it contends point to a reduced infection rate in county jails of less than two percent.  The Judiciary, as noted earlier, will again resume criminal jury trials in person when conditions sufficiently improve.  Although there will be a considerable backlog of cases to address, we hope that recent positive developments will enable the criminal justice system to resolve many outstanding criminal charges in a timely manner.
[brief] The Massachusetts Supreme Judicial Court explicitly addressed and rejected Relator’s argument to the contrary in affirming dismissal of a parallel action brought by Relator in that state:  “Contrary to the relator’s contention, neither the need to perform analysis on the publicly available information nor the benefit of his expertise renders the true state of affairs hidden. ”  Rosenberg, 169 N.E.3d at 457–58.  Relator’s action was based upon public disclosures because “the critical elements of the purported fraudulent transactions”—the documents reflecting the remarketing agents’ obligations and the VRDO rate reset data—were publicly disclosed.  Id. at 456–58.
[brief] Order Vacating Judgment and Execution in Docket No. [...], filed October 6, 2023 .................................................................  1a Order Denying Motion to Reconsider in Docket No. [...], filed October 6, 2023 .................................................................  3a Order Denying Motion for Sanctions in Docket No. [...], filed October 6, 2023 .................................................................  5a Order To Enter Judgment in Docket No. [...], filed August 24, 2023 .................................................................................. 7a Appellant’s Notice of Appeal, filed October 27, 2023 ..............................................
[brief] Fifth, the trial court weighed [...]’s analysis against the testimony offered by the defense’s accounting expert, [...].  In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999) (reviewing courts defer to trial court determinations as to expert witness credibility).  As discussed, [...] was the only expert in the case to review the financial records; [...] did not.  (30T 27:21-23).  [...] offered no explanation with respect to some of largest transfers of [...] and [...] funds from those entities’ accounts into accounts owned or controlled by [...].  For instance, [...] testified that he was unaware of the $2 million that [...] deposited into his personal bank account.  (30T 50:24-51:3).  Nor could [...] explain the $500,000 that [...] took.  (30T 54:6-19).  Despite all of this, the trial court did accept some of [...]’ analysis and concluded that it would have been improper to adopt some of [...]’s opinions about taking certain funds and adding them to the value of the company to establish a damage figure.