ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] There can be no dispute, in reading what there is of the partial verbatim record in the instant matter, that Appellants, *inter alia*, objected to the modern aesthetic of the proposed Addition within the historic district in which they purchased their homes.  It is also well-documented that the ZBA refused Appellants any opportunity to be heard on this issue based on the unequivocal claim that the ZBA lacked the authority challenge the “approval” of the Landmarks Commission.  There is no dispute that the ZBA and ZBA Counsel, [...], Esquire, prevented Appellants from making any arguments or placing on the record any evidence to support an objection to the Addition’s appearance being incongruent with all the other homes in [...] and thereby destroying the historical aesthetic Appellants, as owners of the only two neighboring properties now enjoy.  Mr. Vella’s prohibition came before Appellants even had the opportunity to call their first witness.  We ask the Court to critically read the excerpt from the transcript of the ZBA meeting of August 22, 2022 beginning at Page 83, Line 24 and ending at Page 85, Line 9.  (Pa578-Pa581)  That exchange occurred between Mr. Vella and Counsel for Appellants, [...], Esquire, and Counsel for Applicants, [...], Esquire, as Mr. James cross-examined the Applicants’ architect [...].  The motion judge erred in reaching her determination that Mr. Vella made no assertion as to the independent authority of the Landmarks Commission.  We ask the Court to note that months after that colloquy, when it came time to craft a Resolution, the ZBA purports, within one sentence, to have given consideration to the impact of this regulated activity to the aesthetics of the historic district.  This is one of the manifold examples of the ZBA articulating in its Resolution findings that are either supported nowhere within any verbatim record or are contradicted by the available record.  Specifically, and after having denied Appellants the opportunity to be heard or present evidence around their concerns as to the impact the Addition will have on the historic district, the ZBA purports to have determined that “any stylistic criticisms of the proposed structure are unfounded. ”  (Pa110)  This moving of goalposts by the ZBA is only one example as to how the determinations found in the Resolution are arbitrary and capricious, which Appellants would address in full on remand to the trial court.  Appellants were denied the opportunity to be heard around the ZBA’s failure to maintain and develop an appropriate and harmonious setting for the historic districts within [...] as required by Section A(2)(d) of the Historic District Ordinances.
[brief] Either party can request an interpreter or stenographer to record the proceedings.  (R.45&46).  Within 45 days of the closing of the hearing, the Arbitrator must issue a detailed decision in accordance with the standards set forth at N.J.A.C.11:3-5.6(d).  (R.20&21).  Thereafter, all decisions can be vacated upon the filing of an Order to Show Cause by either party pursuant to N.J.S.A.§2A:23A-13 within forty-five days of the decision.
[brief] See *Rotondi v Dibre Auto Group*, L.L.C., 2014 N.J. Super. Unpub. LEXIS 1662, *11- 12 (App. Div. July 9, 2014) (cert denied 220 N.J. 31 [2014]) citing Foulke, 421 N.J. Super at 425.  (Ja88-Ja92)  "[A] party's waiver of statutory rights 'must be clearly and unmistakably established, and contractual language alleged to constitute a waiver will not be read expansively.' (quoting Red Bank Reg'l Educ. Ass'n v. Red Bank Reg'l High Sch. Bd. of Educ., 78 N.J. 122, 140, 393 A.2d 267 (1978))(Ja91); Moore v. Woman to Woman Obstetrics & Gynecology, L.L.C., 416 N.J. Super. 30, 37, 3 A.3d 535 (App. Div. 2010) ('Courts decline to enforce an arbitration agreement that is not sufficiently clear as to the rights the party is waiving.')”.  Id. at *11.  Here, while [...] may be able to establish the first prong for a motion to compel arbitration (i.e. that a valid arbitration agreement exists), the trial court’s July 29, 2024 decision (Ja5-Ja12) should be reversed because [...] cannot establish the second prong (i.e. that Plaintiff’s injunctive relief [amongst others] damages for her CFA, HCSA, RISA, and TCCWNA claims)(Ja27-Ja28) fall within the scope of the arbitration provision in [...]’s Membership Agreement.  See Saunders, 2021 U.S. Dist. LEXIS 143237, *4 (Ja94); infra Section I(C)  Moreover, and as to the issue of arbitrability, a New Jersey judge should decide whether the arbitration agreement applies as opposed to an arbitrator.
[brief] .................................................  10  ICC v. Louisville & N.R. Co., 227 U.S. 88, 93-94 (1913)  ....  26  In re Lead Paint Litig., 191 N.J. 405, 430, 924 A.2d 484 (2007)  ...........................................  9  Kaufman v. Samuelson, 134 N.J.L. 573, 576, 49 A.2d 479 (Sup.Ct.1946) ...............................  13  Lozano v. Frank DeLuca Const., 178 N.J. 513, 522 (2004)  .....................................................  10  Merin v. Maglaki, 126 N.J. 430, 436 (1992)  ............... 11, 12, 22 Metromedia, Inc. v. Director, Div. of Taxation, 97 N.J. 313, 327, 478 A.2d 742 (1984)  ....................  11  N.J. Healthcare Coalition v. New Jersey Department of Banking and Insurance, 440 N.J. Super. 129, 144 (App Div 2014)  ...........................................  17  New Jersey Coalition of Health Care Professionals, Inc. v. NJ Department of Banking and Insurance, 323 N.J. Super. 207, 260 (App. Div. 1999) ..............  7, 8 O'Connell v. State, 171 N.J. 484, 488, 795 A.2d 857 (2002)  ...............................................  9  Ruckman v. Ranson, 35 N.J.L. 565 (E.&A.1871)  ..........  13 Selective Ins. Co. of America v. Hudson East Pain Management, 416 N.J. Super. 418, 429-430 (App. Div. 2010)  ..............................................  25 State Board of Medical Examiners v. Coleman, 132 N.J.L. 64, 67, 38 A.2d 689 (Sup.Ct.1944) ..............  13 State v. McAllister, 184 N.J. 17 (2005 ....................... 27 Swede v. City of Clifton, 22 N.J. 303, 317 (1956) .......... 13 Westinghouse Electric Corp. V. Liberty Mutual Insurance Company, 233 N.J. Super 463, 470-471 (App. Div. 1989) .........................
[brief] “[N]ot ‘any’ possibility can be enough for a rerun of the trial.  The possibility must be real. ”  Ibid.  The burden rests on defendant to prove “that the error was clear and obvious and that it affected his substantial rights. ”  State v. Koskovich, 168 N.J. 448, 529 (2001).  As our Court has noted, “inadmissible evidence frequently, often unavoidably, comes to the attention of the jury. ”  State v. Winter, 96 N.J. 640, 646 (1984); State v. Vallejo, 198 N.J. 122, 132 (2009).  It is, therefore, “axiomatic that ‘[n]ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error ...; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. ”  Winter, 96 N.J. at 646 (quoting Bruton v. United States, 391 U.S. 123, 135 (1968)); Vallejo, 198 N.J. at 132.  “Only those trial errors that are deemed to be of such a nature as to have been clearly capable of producing an unjust result require reversal. ”  State v. Alston, 312 N.J. Super. 102, 114 (App. Div. 1998); Macon, 57 N.J. at 335; see also R. 2:10-2.
[brief] [...] now argues whether the arbitration clause is unconscionable is a question for the arbitrator to decide under the delegation provision within [...]’s arbitration agreement.  (Db7, 12).  This argument was never made in [...]’s motion to compel arbitration and should not be considered by this Court.  The lower court’s Order did not address this issue as well because [...] never raised it.  However, if this Court is inclined to consider the delegation provision language, this argument fails because the language is contradictory to New Jersey law, which Appellants did argue in their opposition to the motion to compel arbitration to dispute the delegation provision.
[brief] As a result of the trial court not following the proper procedures for determining reasonable counsel fees, and as was further explained in Defendant’s position document presented to the trial court on the remand (see Point II, infra), the trial court erroneously awarded fees in full through January 5, 2017 for every item of work listed in the invoices submitted, most, if not all, of which should not have been reimbursed. \(^4\)  E.  The Benefit Resulting from the Administrator’s Lengthy and Comprehensive Search for Additional Assets and Malfeasance Did Not Benefit the Beneficiaries.  Plaintiff was the only beneficiary who benefited from the Administrator’s efforts.  The Plaintiff obtained confidential business and personal information that he then, in violation of court orders, turned over to Korean prosecutors as “evidence” --- \(^4\)  The trial court did make a finding, however, that nothing should be awarded to Plaintiff for work subsequent to January 7, 2017 because of Plaintiff’s wasteful efforts in challenging the approval of the Administrator’s Report and for filing a cross-motion in an attempt to perpetuate his search.
[brief] As noted above, “[w]hen two actions are open to a municipal body, municipal action is not arbitrary and capricious if exercised honestly and upon due consideration, even if an erroneous conclusion is reached. ”  Id.  In other words, even if Appellants were able to show that the Governing Body made an “erroneous” decision in approving the Ordinance, they still must show that the Governing Body’s actions were “arbitrary and capricious.
[brief] [...]’s odyssey against [...]’s Property is misguided, unsupported and must be rejected.  1.  The trial court Order dismissing [...]’s First Count of its Counterclaim for Trespass must be upheld because [...] is not the record owner of the Property.  The first three counts of [...]’s Counterclaim fail for the simple reason that [...] is the deeded owner – and not [...].  [...]’s First Count for trespass fails because [...] does not own the Property.  As stated above, “[a] defendant is liable in trespass for an intentional entry onto another’s land, regardless of harm. ”  Ross, supra, 222 N.J. at 510.  [...] cannot possibly sustain this claim because it does not own the Property.  Worse, [...]’s claims fly in the face of the evidentiary record, including the relevant deeds, the Meccia Report and the Pronesti Survey.  It is again extremely telling that [...] does not even discuss any of these evidentiary materials, nor does [...] even mention its own Allstate Survey, which it commissioned in secret, but now intentionally ignores.  _____________________
[brief] [...] did not “pay for any approvals” through the payment of the $2 million redevelopment fee to the City.  [...] was still required to submit a site plan application to the Planning Board (it did) and satisfy the City’s ordinances in order to obtain site plan approval (it did).  The $2 million fee had nothing whatsoever to do with the site plan approval process, and in no way constituted a “payment for approval” which would justify application of the rationale described in the distinguishable decisions above.  POINT II
[brief] Pursuant to NJSA 2C 29:1a  A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act  Based on the statue, in order to “Obstruct” the defendant must engage in “flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act. ”
[brief] B.  In the alternative, even if Landlord could decline the Allowance Offset doing so was an unreasonable failure to mitigate damages  For the reasons discussed above, there is no provision in the Lease permitting forfeiture or waiver of Landlord’s obligation to make payments towards Tenant’s Allowance.  Nor does the Lease have any mechanism allowing Landlord to refuse the contractual deduction against Tenant’s Allowance that happens automatically when Tenant owes Landlord less than Landlord owes Tenant when a Tenant’s Allowance installment payment is due.  Even assuming arguendo that Landlord had discretion to somehow refuse or decline the deduction against the Tenant’s Allowance installment payment expressly granted in the Lease, such declination was an unnecessary, unreasonable refusal to mitigate damages that the trial court should have held precluded Landlord from recovering the amount of claimed rent.  “There is no dispute that a commercial landlord must make ‘reasonable’ efforts to mitigate its damages after a tenant breaches the lease.
[directive] 1.  The Division of Criminal Justice shall create and publish the Disclosure Statement and Separation Statement forms no later than February 1, 2020.  At the Division’s discretion, Disclosure Statements and Separation Statements may be completed online using electronic forms.  The Division also shall issue such clarifying instructions as are necessary to enable municipal prosecutors to make the required disclosures.  2.  The Disclosure Statement form shall require disclosure of at least the following information: a. The filer’s name and contact information; b. The filer’s New Jersey attorney ID; c. The first date of the filer’s first consecutive term of service as municipal prosecutor; d. The term of the filer’s current appointment (or, if applicable, the date on which the filer assumed holdover status); and e.  Such other information as the filer is required to disclose on the Local Government Ethics Law Financial Disclosure Statement.  3.  The Division of Criminal Justice shall establish the reporting periods to be covered by Page 5 filers’ initial and subsequent Disclosure Statements and for Separation Statements.  4.  The Division of Criminal Justice shall develop policies and practices for securing the information that municipal prosecutors are required to disclose on their Disclosure Statements and Separation Statements, in the event that a municipal prosecutor or former municipal prosecutor fails to comply with this Directive.  5.  The Division of Criminal Justice shall designate one or more Deputy Attorney(s) General to serve as Municipal Prosecution Supervisor(s) within the Division’s Prosecutors Supervision & Training Bureau.  6.  In addition to the other duties of the Municipal Prosecution Supervisor(s), the Municipal Prosecution Supervisor(s) shall be responsible for ensuring that the Division has completed and up-to-date registrations and disclosures for each municipal prosecutor in the State.  The Municipal Prosecution Supervisor(s) shall carry out this duty with the assistance of the County Municipal Prosecutor Liaisons, and shall ensure that each County Municipal Prosecutor Liaison has copies of the completed and up-to-date registrations and disclosures for each municipal prosecutor in the relevant County.  7.  In carrying out the duties described in this Section, the Division shall seek to accomplish its objectives while minimizing the filing burden for municipal prosecutors.  D.
[brief] As noted above, the Trustee unquestionably had the authority to file suit on behalf of the Trust and to seek relief under the Ejectment Statute, and the trial court ordered the Defendants to leave the property under that statute.  (Da51, Da56).  The Trial Order specifically found that the Plaintiff “met her burden of proof by a --- \(^6\)  It is noted that both Defendants, [...] and [...], are real estate agents.  (8T62:4-7).  preponderance of the evidence with respect to her claims against Defendants with respect to the award of rental payments for the Boonton Property” (Da91) and the Defendants have not appealed the portions of the Trial Order pertaining to the Boonton Property.
[brief] His corollary illegitimate “standard” was that “if there is dissatisfaction with rulings of this Court, it should be appealed”.  Judge should know Appellate guidelines state Appeals must NEVER be based on dissatisfaction w/rulings.  It NEVER mattered I had proved 1) significant, substantiated contradictions to [...]’s Accounting (114a-119a, par. 8); 2) identified key info/docs (to verify accuracy/validity of figures) he NEVER provided (128a); 3) [...]’s FAILURE to issue Final Accounting, as per Oct. ‘22, par. 2 (190a, par. 6 & last par.) (196a, par. 6g) (250a, par. 7h) (p. 32 to p. 33, par. 27 above) (439a-440a); & 4) unwarranted Court approved payments for legal, accounting, & commission fees that contradicted substantiated facts (Sect. “C”, p. 26-29; p. 33 to p. 41, par. 38) (441a-442a).  By approving unwarranted legal fees for $15,022 & $93,277; accounting fees for $31,259 for 2019-2022, overpayments for commission & Intermediate Accounting fees, & overlooking required repayment of unwarranted $74,248 Trust payments to [...] related to an Estate Case, the Court’s rulings decimated Trust assets.
[brief] In the case at hand, the Court ruled that the Plaintiff sustained no actual damages other than incurring legal fees to re-open the case for a different amended judgment of divorce because of the alleged Defendants’ breach of duties during the representation, thereby Defendants are liable for the legal fees incurred by the Plaintiff.  This ruling is the result of misapplying the law and introducing “new law” into our jurisprudence that may well come back to haunt the citizen of the State of New Jersey.  This ruling is unsupported by existing case law in the State of New Jersey or perhaps across the entire nation and the result is also fundamentally unfair.
[brief] Despite defendant’s rejection of an instruction on any lesser-included offenses, [...] nonetheless placed on the record her rejection of a manslaughter instruction.  She found no rational basis to instruct the jury on aggravated manslaughter and stated, “[i]f I were to order it over the objection of the defense, it would be based entirely on speculation[.]” (8T4-16 to 5-7).  Then, at sentencing in response to defendant’s belated claim, [...] also noted that the evidence did not clearly indicate a need to instruct the jury of manslaughter.  She recognized that “the evidence showed that there were at least two blood-shedding events, . . . multiple skull fractures[that] went so far beyond the force needed to kill the victim[.]”  As a result, she found “there could be no doubt that the crime here causing death goes well beyond even the highest degree of recklessness. ” (9T32-3 to 12).  As [...] properly noted, no rational basis, let alone a clear indication, existed for manslaughter instructions.
[brief] THE TRIAL COURT ERRED BY GRANTING THE STATE’S MOTION TO COMPEL BUCCAL SWABS BECAUSE THE SIGNIFICANT DELAY IN SEEKING FORENSIC TESTING WAS UNREASONABLE.  (Da60-68)  The court erred by granting the State’s untimely and unfair motion to compel buccal swabs.  The State’s motion, filed over two years after defendants were indicted on December 19, 2020, was unnecessarily delayed and deprived [...] of his right to due process.
[brief] The Court stated that the doctrine of avoidable damages is "[w]here the defendant has already committed an actionable wrong, whether tort or breach of contract, then this doctrine [avoidable consequences] limits the plaintiff's recovery by disallowing only those items of damages which could reasonably have been averted * * *[.]"  "Contributory negligence is to be asserted as a complete defense, whereas the doctrine of avoidable consequences is not considered a defense at all, but merely a rule of damages by which certain particular items of loss may be excluded from consideration
[brief] Statutes Consumer Fraud Act, NJSA 56:8-19.................................................................1, 6 Federal Arbitration Act (Title 9 of the United States Code) .........................13  Health Club Services Act, N.J.S.A. 56:8-42 et seq.  ........................................1  New Jersey’s Consumer Fraud Act, N.J.S.A. 56:8-1, et seq.  .........................1  Retail Installment Sales Act, N.J.S.A. 17:16C-1 et seq.................................1  Truth-in-Consumer Contract Warranty and Notice Act, N.J.S.A. 56:12-14 et seq ..............................................................................1  PRELIMINARY STATEMENT
[brief] Obviously, at that point, that meant that the jury had one day at most for deliberation: May 10.  That next day, May 10, defense counsel asked the judge early on, before deliberations had begun, to check with the jurors to see if their vacation plans \(^7\) May 5 is actually seven days after April 28, not five.  The prosecutor actually undersold what was a good idea. had changed, but the judge refused, ruling that she was “not going to preemptively anticipate that for some reason they are going to be rushed. ”  (21T 11-22 to 17)  The jury then retired to deliberate at 9:28 a.m.
[brief] Defendant has alleged in its answer and counterclaim defenses of laches and equitable estoppel.  See ECF No. 13 at 1, 7-8.  In support of its equitable estoppel defense, Defendant alleges that “[t]hrough their affirmative statements, conduct and/or silence in the course of dismissing [the initially filed] complaints, Plaintiffs misled [Defendant] to reasonably infer that Plaintiffs did not intend to enforce the [Asserted Patents] or allege that any of [Defendant’s] actions to date have infringed those patents. ”  Id. at 7-8.  In support of its laches defense, Defendant alleges that Plaintiffs knew or reasonably should have known of its alleged acts of infringement of the Asserted Patents since at least May 1, 2014, when they initially sued Defendant, and that Plaintiffs’ delay in re-filing suit was unreasonable and prejudicial because Plaintiffs gave no indication that they intended to re-file suit and Defendant continued to market and sell the allegedly infringing products in the interim.  Id. at 7.
[brief] T8:4-9:1; Compare Pa163, ¶73 with Pa765, ¶73; Pa361 at ¶9; Pa582:20-23.  No rational jury could disagree.  Likewise, a rational jury could only find that [...] used the crossing and right of way in a manner in which it was not intended to \(^{12}\) Plaintiff disputed this fact (Pa764, ¶61) in her opposition papers without providing any basis for the dispute, and the video indisputably shows that [...] never attempted to move from the path of the oncoming train prior to the impact.  be used in violation of N.J.S.A. 48:12-152 based on the undisputed facts.  Therefore, the trial court was correct when it granted summary judgment and dismissed Plaintiff’s claims with prejudice because N.J.S.A. 48:12-152 bars the claims as a matter of law.
[brief] Appellant then sought to exploit those dismissals by obtaining an order designating [...] and [...] as so-called “Burt defendants,” with the same benefit of seeking potential fault against these physicians but without them being represented by counsel.  It should be noted that Appellant did not even have the burden and expense of filing and serving Affidavits of Merit had he pursued his third-party claims because the Courts of New Jersey since Burt have made clear that when defendants file third-party claims for contribution in professional negligence claims, they are not required to file and serve Affidavits of Merit.  See Diocese of Metuchen v. Prisco & Edwards, AIA, 374 N.J. Super. 409, 418 (App. Div. 2005) (holding that “where a defendant subject to the Affidavit of Merit statute asserts a third-party claim in the nature of contribution or joint tortfeasor liability as against another professional also subject to the statute, no Affidavit of Merit is required”).