ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Plaintiffs mainly argue that [...] lacked bargaining power relative to [...], both because [...] is a sophisticated company and because [...] claims she does not understand English.  As explained below, neither point suffices to show that [...]’s terms are procedurally unconscionable.  a.  [...]’s purported lack of bargaining power does not make [...]’s terms procedurally unconscionable.  Parties do not lack bargaining power if they can take their business elsewhere and easily find another means of engaging in the same conduct.  In Stelluti, a new fitness club member tried to avoid the exculpatory provision in her membership agreement with a fitness club by arguing that the agreement was an unconscionable contract of adhesion.  See 203 N.J. at 300.  The Supreme Court of New Jersey ruled that the membership agreement was a contract of adhesion because it was presented on a “take-it-or-leave-it basis,” but it was not unconscionable and unenforceable under New Jersey law.  *Id.* at 301 (internal quotation marks omitted).  The *Stelluti* Court concluded that the agreement was not procedurally unconscionable because the parties were not in a “position of unequal bargaining power,” as the member “could have taken her business to another fitness club, could have found another means of exercise aside from joining a private gym, or could have thought about it and even sought advice before signing up and using the facility’s equipment. ”  *Id.* at 302.  *Stelluti* is not an outlier.  Time and again, the Supreme Court of New Jersey has held that a party’s ability to take its business elsewhere foreclosed the argument that even a contract of adhesion would qualify as procedurally unconscionable.  See *Pace*, 258 N.J. at 107–08 (rejecting tenants’ claim that standard-form lease agreements were procedurally unconscionable where the tenants “were free to seek out alternative housing arrangements if they did not agree with the lease’s terms” and thus did not lack bargaining power); *Rudbart*, 127 N.J. at 356 (rejecting investors’ claim that notes were procedurally unconscionable where the investors “were not driven to accept the … notes because of a monopolistic market or any other economic constraint”).
[brief] Guartan v. Ortani Place Condo. Ass’n, 2024 N.J. Super. Unpub. LEXIS 465, *5 (App. Div. Mar. 21, 2024) (quoting R. 4:46-2(c)).  Therefore, the Court must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the ² Appellant does not argue that the trial court erred in dismissing his common law wrongful termination claim.
[brief] Indeed, it is well-settled in New Jersey that if the terms of a commercial lease are clear and unambiguous, the function of the Court is to enforce the agreement as written.  Han Yang Plaza, LLC v.  Optical Ctr., 2006 WL 74130, *2 (N.J. Super. Ct. App. Div. Jan. 13, 2006) (unpublished).  With respect to commercial leases, this Court has stated the following:  The function of the court is to enforce the lease as written.  The parties' intention, as disclosed by the language used in the document, taken in its entirety, controls the meaning of their contract.  If that intention is clear from the contract itself, we may not alter the terms, or write a different or better contract for the parties.  Id. (internal citations omitted); see also Mury, 151 N.J. Super. at 44 (“Courts are required to enforce contracts, including leases, according to their terms in the absence of some superior contravening policy. ”).  It is further axiomatic that attorneys’ fee shifting provisions in leases are enforceable.  See Mury, 151 N.J. Super at 44.  Here, the Lease clearly and unambiguously provides that Landlord is entitled to recover from Tenant its reasonable attorneys’ fees in connection with enforcing its rights and remedies under the Lease, including pursuing eviction proceedings against the Tenant.  (Da56, Lease at § 17.06).  Section 17.06 of the Lease provides the following:  In the event suit shall be brought by Landlord for recovery of possession of the Premises, for the recovery or rent or any other amount due under the provisions of this Lease, or because of the breach of any other covenant contained herein on the part of Tenant to be performed, and a breach shall be established, Tenant shall pay to Landlord all legal costs and other reasonable attorneys’ fees and expenses incurred by Landlord in connection therewith.  In the event suit shall be brought by Tenant because of the breach of any covenant contained herein on the part of Landlord to be performed, and a breach shall be established, Landlord shall pay to Tenant all legal costs and other reasonable attorneys’ fees and expenses incurred by Tenant in connection therewith.  (Da56, Lease at § 17.06).  The Lease further provides that such fees are recoverable by Landlord as Additional Rent.  (Da13-14, Lease at § 2.01(d)).  For the reasons detailed above, Landlord is entitled to a fee award because it commenced the Underlying Action to recover possession of the Premises due to Tenant’s admitted Events of Default under the Lease\(^{16}\).  Conversely, Tenant is not entitled to any fee award because it did not commence suit against Landlord and further failed to establish that Landlord, in any way, breached the Lease.  **POINT VI**
[brief] *Id.* (discussing “pipeline retroactivity *to pending tax sale foreclosures*.”) (emphasis added).  Thus, even if this takings case had not been filed until *after Tyler* was decided, *Tyler* would still apply.  But as it happens, this case was filed *before Tyler* was decided, and therefore it was in the pipeline anyway.  The City incorrectly claims that “providing a cause of action to plaintiff [here would] mean[] that *Tyler* is given fully retroactive effect. ” (Resp. Br. 8).  But the only distinction between full retroactivity and pipeline retroactivity is whether an action was filed before or after the relevant decision.  If an action was filed before the relevant decision, it needs only pipeline retroactivity.  If it was filed after the relevant decision, it would require full retroactivity.  The only way this case would require full retroactivity is if it had been filed after *Tyler* was decided.  It was not.  The City sidesteps this plain reality by casting this case as a “collateral” matter which seeks to place the “already-finalized” foreclosure action “back in the pipeline.
[brief] See Spolitback, 295 N.J. Super. at 270 (holding that “plaintiffs cannot be held to have made a preclusive choice to arbitrate issues of which they were unaware at the time they submitted known claims for resolution by that procedure”).  In its quest to prove that [...]’s claim was ripe at the time of the PTA Arbitration, [...] fabricates a timeline of irrelevant dates.  For example, [...] incorrectly asserts that the [...] concluded on September 15, 2023, citing the date on the last page of the “Reasoned Award of the Panel of Arbitrators.
[directive] I.  Sexual Assault Forensic Evidence (SAFE) Kits and Drug Facilitated Sexual Assault (DFSA) Kits (hereinafter referred to collectively as “SAFE kit” unless individually specified)  SAFE kits and DFSA kits are specifically designed to aid in collection and preservation of specimens and other physical evidence yielded from the Sexual Assault Medical Forensic Exam (the Exam), which can be used in a criminal sexual assault investigation.  Under the Attorney General Guidelines for the Retention of Evidence4 and the New Jersey Sexual Assault Victim Bill of Rights,5 victims of sexual violence have the right to decide whether to report the crime and release the forensic evidence to law enforcement.  Specimens collected during a forensic medical exam and preserved in SAFE kits are only provided to law enforcement at the time of the examination if the victim consents to release the kit(s) and decides to report the incident to police.  When the victim does not consent to release to law enforcement, the SAFE kits are unreported and often referred to as “Hold” kits.  See report on the audit of the Department of Law and Public Safety, Office of the Attorney General, Sexual Assault 2 Examination Process for the period of July 1, 2017 to August 31, 2018.
[brief] *Hunstein I*, 994 F.3d at 1352.  However, we have greater concerns about the privacy implications of sending confidential and protected data to unregulated, third-party mail vendors.  (We note that *Hunstein I* did not have a data breach case before them they did not address these concerns.)  In the wake of numerous data breaches,\(^1\) disseminating confidential and sensitive financial information to unregulated third parties, which is prohibited by the FDCPA, increases the risk of the invasion consumer’s privacy since there are more copies of the consumers’ data without their knowledge.  Indeed, data brokers, who are unregulated like mail vendors, have been subject to massive data breaches.  *See, e.g.*, [...], *National Public Data Breach Shows Urgent Need for CFPB to Regulate Data Brokers* (Aug. 19, 2024) (available at nclc.org/national-public-data-breach-shows-urgent-need-for-cfpb-to-regulate-data-brokers/ (accessed Aug. 26, 2024)) [reproduced at Pa191].
[brief] The main post, from which she made her numerous comments, states: “Do you know what you[r] children are being taught in NJ?  Educate yourself and make changes in your district. ”  Beneath that comment, [...] added a series of screenshots she claimed represented official guidance for New Jersey schools with regard to gender identity.  See Exhibit 17 to Amended Complaint (Ca294-297).  The documents Respondent shared were not reflective of the New Jersey Department of Education’s (NJDOE) actual guidelines on the issue.  That NJDOE Guidance was attached as Exhibit 21 to the Amended Complaint.  (Ca306-371)  17.  On April 9, 2022  Respondent posted to her public Facebook account a video which contained the banner “NJ TO TEACH 2ND GRADERS ON GENDER IDENTITY”
[brief] Plaintiff’s discovery responses allege he was injured on January 5, 2022, at approximately 7:30 A.M., as he was exiting his apartment and slipped on ice immediately upon stepping out onto the landing of the exterior stairs.  The landing and the stairs were painted a few weeks before the Incident.  (Pa315).  Plaintiff testified that the description of the incident in his answers to interrogatories was accurate and that he was caused to slip and fall because his left foot landed on ice.  (Pa339, plaintiff deposition P55, L22 – P56, L16).  Plaintiff testified he slipped and fell at 7:30 a.m. (Pa328, plaintiff deposition P11, L8-10).  The defendants’ weather expert issued reports confirming the following:
[brief] The Jury Was Improperly Instructed That They Could NOT Find that [...] was Both Vicariously Liable and Directly Liable for Negligent Training or Supervision.  (11T179:3-8)  The jury in this case was asked to determine whether [...] was vicariously liable for the negligence of [...] or, if not, whether [...] was liable for direct negligence in its training or supervision of [...].  In both the instructions (11T179:3-8) and in the verdict sheets (Pa71-75), and in opening and closing argument from Lowe's, they were erroneously informed that it cannot be both; that it's either or.  This was erroneous and constitutes reversible error.  A new trial should be ordered before a different trial judge in which this instruction and argument are prohibited.
[brief] (Doc. 186-1 at 4 (the objection is quoted in full in this document)).  It is from this March 3, 2023, objection that the Court has summarized the objections discussed below.  As stated above, Defendants claim either all or some of Plaintiffs’ objections are untimely.  The parties agreed-to ESI protocols (which the Court did not adopt or reject (see Doc. 145)) state the following regarding objections to ESI requests, “[the requesting party will] ... provide the Disclosing Party with a reasonable opportunity (no less than 14 days) to object to the scope of the request. ” (Doc. 186-1 at 3).  If the Court were asked to rule on these protocols back in July 2022, the Court would have found that the parties’ protocols are unmanageable because they do not set a specific timeframe for objections.  The Court would have also found that objecting in March of 2023 to search terms that were exchanged in July of 2022 is not “reasonable”.  But the protocols do not say an objection will be made “in a reasonable time”.  They say that the responding party will get at least a reasonable time.  The parties’ poorly crafted protocols defeat Defendants’ argument that the objections are untimely.  Moreover, Plaintiffs objected in March of 2023.  Defendants responded in March of 2023.  If Plaintiffs’ objections are sanctionably late, Defendants responses are equally, sanctionably late.  Clearly both parties seemed to believe March 2023 “responses” to the outstanding discovery were “reasonable”.  Accordingly, the Court will not find Plaintiffs’ objections to be waived on the basis of timeliness.
[brief] ” (1T 6:21-22).  Furthermore, [...] argued that the standard the municipality must be held to is the high burden of actual notice and failed to acknowledge that the standard is actual or constructive notice.  (1T 8:1-2).  Counsel for plaintiff [...], argued that the tree was a dangerous condition, “This is an enormous tree.  Had the sidewalk repair -- that had the sidewalk repaired and its roots cut.  This created a condition which would remain for years. ” (1T 10:14-16).  [...] further argued “There's no question that the Plaintiff was exercising due care, and it was foreseeable that this matter could happen the way it did.  And in no way did the Plaintiff contribute to this -- the occurrence of this incident.  There's no question that the dangerous condition is the proximate cause which is also one of the prongs that has been satisfied, and that the City had at the very least constructive notice and possibly actual notice” (1T 13:15-23).
[brief] To Defendants’ statement of facts and procedural history, we add the following.  Defendant [...] initially filed a cross-appeal in this case, but Plaintiffs and Defendant [...] settled that cross-appeal, which was withdrawn on December 15, 2023.  Defendant [...] has, so far, not participated in this appeal, although --- 1  Because the facts and procedural history are intertwined, those sections have been combined.  they have not filed a letter of non-participation, either.  Defendant [...] has not appealed or cross-appealed the Trial Court’s holding that it is subject to OPRA.  Defendant [...]’s brief was due January 15, 2024, but as of the filing of this brief, Defendant [...] has not filed its own brief or filed a request or motion for an extension of time to file its brief.  Finally, we add that both the Trial Court and Defendants sometimes refer to the email service provided by [...] by its trade name, [...].  We do the same.  Although Defendant [...] is asking this Court to reverse the Trial Court’s holding that Defendant [...] is subject to OPRA, Hoboken did not identify this issue in its notice of appeal, and therefore that issue has been waived.  (Da015 to Da016).  LEGAL ARGUMENT POINT I EMAIL ADDRESSES COLLECTED BY A PUBLIC ENTITY’S CONTRACTED PARTY AT TAXPAYER’S EXPENSE ARE PUBLIC RECORDS  First, we discuss the standards applicable to OPRA cases and this appeal.  Second, we discuss access to email records.  Third, we briefly discuss prevailing party counsel fees.
[brief] On December 20, 2020, Plaintiff, [...], filed a personal injury action stemming from a motor vehicle accident which occurred on January 4, 2019.  (Pa1-Pa14).  The lawsuit was filed against defendants [...], [...], [...], [...], and [...], as well as fictitious defendants.  (Pa1-Pa14).  Defendants subsequently answered the complaint.  (Pa15-Pa69).  After a settlement was reached between the plaintiff and defendant, [...], as described below, defendant [...] filed a motion to enforce settlement on November 29, 2023, when plaintiff did not return the settlement documents.
[brief] THE RESPONSE MISSTATES THE LEGAL POWERS HELD AND DISCRETIONS EXECUTED THEREOF BY APPELLANT.  Via its pp. 6-7, the Response misstates how the appellant rejected the respondents’ terms and offers, while he was the Attorney in Fact for the Mother.  You see__ the Mother at all-times has been in a sound mind and the appellant has NEVER been her guardian and the Power of Attorney granted to him by her does NOT allow him to act contrary to her wishes or will.  The Application (Pa6) was by and for the Mother based on her needs and qualification as a disable driver (Pa1, Pa12, Pa14), who rejected the respondents’ terms through HUD “Voluntary Conciliation,” because in lieu of a reserved parking space their offer was to place a handicapped parking space for the general public “NEAR” her house, which would have served the disabled tenants of about 70-units apartment complex two doors away from her house (raised via §III, pp. 6-7, of Appellate Brief.).  C.
[directive] Administrative Office of the Courts  [...], J.A.D. Acting Administrative Director of the Courts Richard J. Hughes Justice Complex • P.O. Box 037 • Trenton, NJ 08625-0037 njcourts.gov • Tel: 609-376-3000 • Fax: 609-376-3002  Directive #02-02 Directive #02-02 has been rescinded.  Questions or comments may be directed to the Administrative Director’s Office at 609-376-3000.
[brief] [...]  [...] --- \(^3\)  Allstate’s reliance on *Allstate Insurance Co. v. Mun.*, 751 F.3d 94 (2d Cir. 2014) is irrelevant.  That case involves New York’s No-Fault Law, an entirely different statutory scheme which does not include the same arbitration mandate as New Jersey’s No-Fault Law.  This is especially so where the Third Circuit, reviewing the New Jersey No-Fault Law, held that IFPA claims challenging eligibility to receive PIP benefits are subject to the mandatory arbitration regime established by the Legislature.  See *Mount Prospect Chiropractic Ctr.*, __F.4th at __, 2024 WL 1819645, at *2-3.  [...]; [...]; [...]; [...]; and [...], Plaintiffs, v. CARTERET  COMPREHENSIVE MEDICAL CARE P.C. D/B/A MONROES  COMPREHENSIVE MEDICAL CARE D/B/A [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...] D/B/A [...]  D/B/A [...]; [...]; [...] D/B/A [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; JOHN AND JANE DOES 1 THROUGH 10; XYZ CORPORATIONS 1 THROUGH 10, Defendants.
[brief] Under the liberal construction required of pension statutes, his eligibility for the benefit is not in question.  In other words, [...] suffers from a 9/11 illness and is disabled as a result.  He qualifies for accidental disability benefits under the Ricci Act standard.  [...] was denied the ability to register his presence at the September 11th terrorist attacks and therefore also denied accidental disability benefits based on an unsupported finding that Division mailed a post card notifying him of his requirement to register.  This finding is arbitrary, capricious, and against the substantial weight of the evidence.  The Division alleges that the two-year time frame for registration requires strict implementation to “verify applicants’ dates and locations of service as witnesses and memories inevitably continue to become unavailable and fade. ”  Rb9.\footnote{Rb references the Respondent’s Brief.}  Under the Ricci Act, members who seek to amend benefits thereunder are not required to produce witness verification statements.  Additionally, there has been no suggestion that the dates that [...] was at ground zero (or other similarly situated members) need verification by the Division.  Neither is required under the Ricci Act.  Furthermore, almost two decades had passed since the September 11\textsuperscript{th} terrorist attacks when the Ricci Act was signed into law.  The assertion by Respondent that the two-year registration window was to rectify a fleeting memory is erroneous.  Respondent’s argument lacks merit.  The determination below was arbitrary, capricious, unreasonable and against the substantial weight of the evidence.  It should therefore be reversed, and retired Trooper [...] should be permitted to register his presence at 9/11 and granted accidental disability benefits.
[brief] State v. Rosario, 229 N.J. 263, 277 (2017).  Nor is it reasonable to suspect criminal activity based on [...]’s attire, which the officer subjectively felt was unsuitable for a private country club, or his apparent lack of golf clubs, because [...] did not claim they were members of the club or that they had been golfing; both he and [...] were clear that they had been to “check out” the country club.  The motion court also put stock in the fact that “[...] indicated that he was coming from the ‘country club down in New Jersey’ while being present in New Jersey,” and that “[...] indicated that she believed she was in New Jersey.
[brief] Id. at 104-105 (quoting Restatement (First) of Contracts § 184 (1932) (emphasis added).  The Court noted that “[t]he identical formulation of the rule appears in the Restatement (First) of Security § 93 (1941). ”  Id. at 105.  In Schoor, the plaintiffs (engineering and surveying firms) alleged that a non-party individual ([...]), who owned approximately one-fifth of the defendant's stock, orally undertook to pay all of plaintiffs’ outstanding bills as well as future obligations.  Id. at 99.  The defendant was developing a tract of land, and plaintiffs’ engineering work was necessary for the project to advance.  Id.  [...]'s own pecuniary interest in guaranteeing the payment of the plaintiffs’ expenses led the Court to enforce [...]’s oral promise pursuant to the “leading object” exception to the statute of frauds.  The Schoor Court explained that [...]’s “substantial pecuniary and business interest [was] furthered” by his oral promise, making it “abundantly clear” that the “leading object” of the promise was [...]'s own financial interest.  Id. at 106.  Therefore, the Court enforced the oral undertaking, and held that it was excepted from the statute of frauds’ writing requirement.
[brief] (Id.); Clinton Cap. Corp. v. Straeb, 248 N.J. Super. 19, 28 (Ch. Div. 1990) (“[A]cceleration, by definition, advances the maturity date of the debt so that payment thereafter is not prepayment but instead is payment made after maturity. ”), abrogated on other grounds by Westmark Com. Mortg. Fund IV v. Teenform Assocs., L.P., 362 N.J. Super. 336 (App. Div. 2003).  Again, at oral argument, the trial court concluded that the record did not establish whether the lender was mandated by Section 9(b) of the Mortgage to reject a short payoff from a non-borrower.  (1T54:2-6.)  The trial court acknowledged that Appellant was relying on Section 9 (1T9:21-22), but questioned whether the introductory requirements of Section 9(b) had been met.  (1T11-14.)  In particular, the Court questioned, “[w]here is all of that in the record that says all of that has been met?  That the law applies even to this loan ... that there’s the prior approval of the secretary ... of some division of department of the government. ”  (1T12:13-18.)  In response, Appellant expressly acknowledged that the record did not establish that the introductory requirements of Section 9(b) were met.  (1T13:2-3.)  The trial court refused to consider Appellant’s argument under Section 9(b) despite acknowledging that Section 9(b) was “a pretty important part of this,” since that was the provision Appellant was “going to rely upon to support almost the entirety of their argument. ”  (1T14:1-5.)  Again, despite identifying and appreciating the genuine issue of material fact, the trial court nevertheless proceeded with a summary judgment determination, without affording Appellant the opportunity to supplement the record.3