ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Appellants were diligently moving forward towards the August 6, 2024 trial date and were hampered by [...]’s refusal to comply with discovery demands and tactical maneuver to compel arbitration.  Seventh, Appellants have and will continue to face prejudice should this matter be compelled to arbitration because Appellants already engaged in over nine months of litigation, been subjected to temporary restraints for eighteen months, engaged in mediation and motion practice, made seven Court appearances, and responded to/reviewed copious discovery.  Appellants seek to move this matter expeditiously either to trial or to summary judgment.  To force this case to arbitration would unduly delay the resolution of this case for an indefinite amount of time.  This prejudice weighs in favor of Appellants.  See Hopkins, A-1301-23 at pp. 15-16 (finding prejudice as “inherent unfairness – in terms of delay, expense, or damage to a party’s legal position” as occurring “when the party’s opponent forces it to litigate an issue and later seeks to arbitrate that same issue” (internal quotation marks and citation omitted)).  This case is squarely analogous to facts and decision in Marmo, where the Court found a waiver of the right to arbitration and the Appellate Court affirmed.
[directive] Core Principles ......................................................................................................................................  ii  Definitions ............................................................................................................................................  iii  Core Principle One ................................................................................................................................ 1  Core Principle Two ................................................................................................................................ 2  Core Principle Three .............................................................................................................................  6  Core Principle Four .............................................................................................................................  14  Core Principle Five ..............................................................................................................................  18  Core Principle Six ................................................................................................................................ 19  Core Principle Seven ...........................................................................................................................  20  Appendices Addendum  A  Conducted Energy Devices and Other Less-Lethal Devices and Ammunition  Addendum B  Vehicular Pursuit Policy i  USE OF FORCE POLICY | December 2021
[brief] The Trial Court Found that Personal Service Occurred on the Morning of 8/23/2021 at [...]  The Trial Court further found that [...] was served at her home on the morning of 8/23/2021.  T4 99:7-8.  First, Appellant’s concerns that the GPS coordinates stamp indicate that service allegedly occurred “a third of a mile away” from [...]’s residence were addressed by the record.  T4 87:4.  [...] testified that he does not immediately transmit his GPS coordinates after service but, rather, drives away and transmits the GPS coordinates at a later time.  T4 18:5-24.  In fact, the Trial Court found that the time between service and Mr.  Sanchez’s GPS coordinates transmission could occur up to five minutes after service.  T4 98:16.  The Trial Court found that [...] in fact transmitted the GPS coordinates away from [...], New Jersey when he served [...].  T4 98:10-21.  Clearly, such a delayed transmission would result in GPS coordinates that differ from the actual service location.  This is further supported by [...]’s extensive testimony on GPS coordinate “drift. ”  T3 80:13 to 85:8.  Appellant’s own expert witness testified that “drift” refers to mismatches in GPS coordinates and the actual location from which those coordinates are sent.  T3 81:17-84:19.  According to [...], drift is a “fairly normal” occurrence.  T3 81:17-84:19.  [...]’s practice of **driving away from the precise service location** coupled with the “fairly normal” phenomena of “drift” neutralizes Appellant’s assertion that the imprecise GPS coordinates nullifies service.  Thus, the record wholly supported the Trial Court’s factual finding that [...] was served at a GPS location which was a “very, very short distance” from [...], New Jersey.  T4 99:7-8.  Second, Appellant argued that personal service could not have occurred at 9:25am because an E-ZPass statement indicates Appellants went through the East Orange Toll Plaza at 9:36am, which is 9.1 miles away from 106 Falcon Road.  T4 88:5-7.  This timing argument was found to be meritless.  The Trial Court held that the “absolute uncontroverted evidence” was that [...] served [...] at the “proper time on the proper day. ”  T4 99:4-80.  Finally, after weighing the totality of evidence, the Trial Court found that personal service of [...] as stated in the Affidavit of Service was “absolutely within the realm of possibility.
[brief] [...] also testified that he did not have any real reason to report any repair/maintenance issues, except the intercom (5T:69:25-70:7), and that issues were addressed “most of the time” (5T:70:8-10), and there were no delays regarding “emergency situations and that type of thing” (5T:73:3-8).  [...] did not demonstrate that [...] was unresponsive to any of his complaints regarding the Unit or that his complaints were ignored in any problematic manner.  [...] also ignores [...]’s appraiser’s testimony that the Unit was poorly maintained by [...].
[brief] ….  Its imprecision and speculative nature of such that it cannot afford a fact finder and sufficient basis to rely upon same.  By its own admission [...] does not know when he made the call.  He is certain he made one call.  That call is corroborated by the records of [...] being made after the accident.  [(1T32:3-8, 33:7-13)]  Thus, as found by the Court, there are no witnesses, documents or any other evidence presented, including [...]’s testimony, that would create any issue of fact for a jury in considering whether the light was inoperable prior to the night of the accident and that [...] had notice of same.
[brief] This would be an *ultra vires* reading of the statute governing county counsels.  Plaintiff’s argument is also inconsistent with the Board’s action, which acknowledged and thanked Plaintiff for his services, while choosing to appoint a new individual to serve as County Counsel for a new three-year term.  (Da143).  The public record demonstrates that Board publicly parted ways with Plaintiff amicably, with the Director stating:  I want to specifically thank [...] because although the structure that we had in place and the size of [...]’s firm was not what we were looking for, we do appreciate his hard work on behalf of the County.  We hope to maintain a strong relationship with him.  Plaintiff’s complaint fails to establish any factual basis to conclude that he was discharged, suspended, demoted, or terminated.
[directive] The memo a an section of check must tie check expenditure, invoice, into a or corresponding record, if not, this must be reported in audit report.  the Statements of Inventory are to be expressed units and dollar value.  in 5.  all Vehicles are be reported separately from other property.  Units and to dollar value for vehicles and property are to be classified two in categories: first, seized property and second, property which been has forfeited the Law Enforcement Trust Account.  Records of forfeited to property should be maintained separately for the length of time required SOP than years vehicles; I year otherproperty worth more by for 3 (2 for $500).
[brief] (Pa344-345; Pa378; Pa380; Pa382).  Plaintiff claims [...] also retaliated against him by not permitting him to speak at the 2016 AWWA conference after he had submitted an abstract, but had not sought approval.  (Pa353-355).  He argues that he submitted an abstract, but planned to take vacation to attend and speak.  (Pb32).  Thus, he argues the court inappropriately made a credibility determination favoring [...]’s view that he planned to give a speech in violation of the policy.  (Pb31-32).  As noted above, the Division in which [...] was a supervisor had a protocol to be followed.
[brief] In *Ianieri v. East Brunswick Zoning Bd.*, 192 N.J. Super. 15 (Law Div. 1983), a residence began being partially used in 1955 for a second non-permitted use, an antique shop; the use being limited and did not draw objection.  In 1981, the property was sold and the new owner obtained a sign permit and erected a business sign, to expand the business.  A neighbor “appealed” the sign and use to the Zoning Board, with the new owner participating.  The Board concluded that the antique use --- although ongoing for over 25 years --- was an illegal nonconforming use.  On appeal by the owner, the Court, citing *Heagan*, held that the burden of proof to show the antique use was legal was “upon a party who claims a nonconforming use. ”  As the owner had presented no evidence, the Court found the Board determination proper that it was an illegal nonconforming use without authority to continue.  That the antique use had been in operation for over 25 years did not work an estoppel.  As stated in Hilton Acres v. Klein, 35 N.J. 570, 581 (1961), an owner can attain no rights from an illegal use because it has continued for an extended period before being challenged.
[brief] In fact, the facts demonstrated that the property was unoccupied for a long period of time before it became a residence -- from October 2020 to August 2021.  Therefore, we submitted that while the law that would typically guide the court regarding a residential sidewalk fall-down on snow and ice, here the factual basis and rationale behind the law was not applicable.  The property was more properly characterized as either a commercial property under construction or a hybrid type of property status that would have permitted the defendants/respondents to measure and protect against their potential exposure for failing to maintain the property and bear the risk of harm.  The Respondent/Defendant relies heavily on the NJ Supreme Court’s decision in Luchejko v. City of Hoboken, 207 N.J. 191, 195 (2011).  In that case, the defendant was a condominium complex in which homeowners actively resided at the property.  We submitted that those considerations regarding residential properties would not apply here because here the property was vacant and being renovated for a period of ten months.  We submit under those circumstances a property owner should be required to keep walkways safe for expected pedestrian traffic, protect them from foreseeable harm, and the burden of requiring that type duty is not extraordinary.  Therefore, as we submitted in our initial papers, the law typically guides the court regarding a residential fall-down on snow and ice is not applicable – the property wasn’t a residence.
[brief] (Aa63)  In *[...]*, the retroactive salary increases paid as part of a settlement agreement were held to be pensionable.  *[...]*, supra at 41.  Unlike his deputy chiefs, *[...]* never received annual salary increases between 2002 and 2006.  *Id.* at 29-30.  However, *N.J.S.A.* 40A:14-179 required that the police chief’s salary must exceed the highest-ranking subordinate officer.  The salary increases given to [...] were identical to the raises given to the deputy chiefs during the same period.  *Id.* at 32.  *Coyle* accordingly held that the settlement agreement in [...] was crafted to bring the employer into compliance with the above statute (Aa64-65).
[brief] Decidedly, there is no claim here that supports a Mt. Laurel cause of action.  Indeed, Respondents have offered no argument to demonstrate that the Appellants had failed to provide for the municipality’s fair share of affordable housing.  Again, the trial court acknowledged in several instances in its otherwise incorrect opinion that the Township was compliant with its obligations.  Similarly, a builder’s remedy suit is one where a builder “vindicates the constitutional obligation in Mount-Laurel type litigation,” and is granted a declaration of plaintiff’s entitlement to a “builder’s remedy” to proceed with the project.
[brief] (Pa 46-53).  State’s expert, [...], M.S., D-ABFT-FT (hereafter “[...]” or “State’s Expert”), issued a report on August 22, 2022 which opined that the blood sample(s) from Defendant yielded positive results for clonazepam and benzoylecgonine (“BZE”), an inactive metabolite indicative of prior cocaine consumption.  (Id.).  In said report, [...] explained that BZE was a primary inactive and chemical breakdown product of cocaine and conceded that the parent drug, cocaine, was not found as a result of the toxicological analysis of Defendant’s purported blood samples.  (Pa 51).  [...] would opine that the only conclusion that can be reached with regard to the positive results for BZE is that Defendant was exposed to cocaine at some point prior to blood collection.  (Id.).  At trial, [...] testified that Defendant’s cocaine exposure could have been up to forty-eight (48) hours prior to the collection of the blood samples and admitted that she could not state within a medical degree of certainty as to what point in time during said forty-eight (48) hour period that Defendant would have had exposure to cocaine.  (4T 102:8-25; 103:1-20; 104:4-25; 105:1-20).  [...] further testified that she was aware that clinical laboratories, such as [...], will not accept a blood sample that has been out for five days or more.  (DPT 53:9-16).  [...] acknowledged that her laboratory is a clinical laboratory.  (Id.)  [...] also testified that the blood drawn from the defendant was not analyzed by her lab until between fourteen (14) and twenty-four (24) days after the blood was drawn.
[brief] Zirger involved the enforceability of an arbitration clause and evading review because of a “reluctance by the industry or private litigants to press for resolution of the question. ”  Ibid.  See, also, Wisniewski v. Murphy, 454 N.J. Super. 508, 522, 186 A. 3d 321 (App. Div. 2018), a constitutional challenge to an agency’s rulemaking.  Also see, Division of Youth & Family Servs. v. J.B., 120 N.J. 112, 118- 19, 576 A.2d 261 (1990), regarding the extent to which the press may be allowed access to proceedings charging child neglect.  The paucity of case law interpreting the P.D.D. Act is evidence that it is likely to evade review.  There is but one reported decision, *State v. Smith*, 295 N.J. Super 399, 685 A 2d 73 (Law Div. 1996).  The tattoo issue is a matter of substantial importance because of the constitutional challenge and the potential for denial of due process due to serious penalties to an owner who fails to comply with a final order.  This Court is urged to excise the tattoo and find the provision unconstitutional, even if the verdict below is summarily reversed on appeal.
[brief] In this case, [...] properly reviewed and evaluated the DRP’s decision and found that the DRP properly evaluated the evidence presented by Plaintiff and found that the evidence failed to establish Plaintiff bore his burden of proof concerning the reimbursements for the claims concerning [...] and [...], and that the DRP properly rejected Plaintiff’s arguments.  In doing so, he acted within his jurisdiction and within APDRA’s bounds.  As such, this case has none of the type of issues found in cases like Desai, Specialty Surgical, Kimba, Open MRI & Imaging, Garden State Surgical, or Sabato, which justified supervisory review.
[brief] Plaintiff’s Trial Exhibit P-45, February 17, 2015  [...] letter to [...] – Notice of Final Hearing for Divorce and March 21, 2015  Certified Mail Return Receipt signed by [...] Pa33  Plaintiff’s Trial Exhibit P-24 Saleena’s Pennsylvania Department of Human Services Benefits (including updated Subpoena/Commission Response)  *Excerpted/*Abridged per R. 2:6-1(b) Pa35
[brief] The lower court’s interpretation of Section 8(e) is inconsistent with the provision’s plain language and at odds with the Condominium Act.  Section 8(e) reads, in its entirety:  The Board shall designate at least one but not more than three unsold Units for use by building personnel.  Said Unit or Units shall be considered part of the Common Areas and shall be maintained by the Association shall be part of the Common Expense.  By the affirmative vote of not less than three-fourths of the votes of Unit Owners present at a meeting duly called for that purpose, the Association may elect to purchase one or more Units or other residential quarters for building personnel.  See Pa148-149.  The final sentence of Section 8(e) authorizes the Association to purchase a Unit or other residential quarters for building personnel provided the purchase is approved by at least 75% of the owners present at a meeting called for that purpose.  By itself, this does not authorize the sale of a common element; nor does it authorize the Developer to sell a common element to the Association.
[brief] The Board Attorney [...] again repeated that he viewed the parking issue differently, as an ordinance enforcement issue for the Township or its Police Department and, if the Township declines to address the issue, the School should commence another lawsuit seeking enforcement (1T35-2 to 20; 1T36-8 to 18).  During the discussion, [...] indicated that he understood the Board Chairman’s legal point (1T37-21 to 25).  The [...] attorney continued that the Chancery Court determination that an easement for parking had been established by the agreement in 1963 (Da23) should supersede or negate the zoning legality issue, even though the parking use was “not per Township approval. ” (1T38-24 to 39-1)  The School’s avenue would be a new Complaint seeking Township enforcement of Ordinances (1T39-2 to 41-25).  The [...] attorney again acknowledged no proof could be produced that the Synagogue had ever received a Site Plan or variance approval for the off-site parking by Lot 8 attendee/staff on School Lot 5, or that such off-site parking use was legal under zoning at its inception in approximately 1964 (1T42-2 to 47-8).  The Board Attorney reiterated his opinion that the Board should defer on N.J.S.A. 40:55D-68 determination and the School should pursue enforcement by the Township and/or a new lawsuit (1T49-9 to 52-4).
[brief] Moreover, these “new facts” were not presented to the Trial Court at any of the three proceedings for dismissal, and thus are improper.  This use of such an argument violates R. 2:6-2.  See e.g., Cnty. of Essex v. First Union Nat. Bank, 891 A.2d 600 (N.J. 2006); New Jersey 4.  Plaintiff's Amended Complaint failed to disclose any of the "new facts" that were pled in the Appellant's Statement of Facts in pages 2-3 of the Appellant's Brief.  (Pa001, ¶5).  5.  Between January 7, 2020, and January 13, 2020, the Plaintiff alleges that she was not provided any "psych meds" that she had been requesting.  (Pa001, ¶7).  6.  On January 31, Plaintiff was speaking with another inmate when [...] told the two inmates they were being loud and that they would be subject to a "lock down" for being too loud.  (Pa001, pg3, ¶10).  7.  On or about January 31, 2020, plaintiff alleges that she was denied the ability to file a grievance for [...]'s lockdown.  (Pa001, pg3, ¶10b-d).  8.  On or about January 31, 2020, plaintiff alleges that she was excessively charged with refusing to go into her cell by [...] and sent to disciplinary detention.  (Pa001, pg4, ¶10g-i).  Citizens Underwriting Reciprocal Exch. v. Collins, 942 A.2d 864 (N.J. Super. App. Div. 2008); A. States Group v. Skovron, 892 A.2d 683 (N.J. Super. App. Div. 2006); Triffin v. Am. Intern. Group, Inc., 859 A.2d 751 (N.J. Super. App. Div. 2004); Monek v. Borough of S. River, 808 A.2d 114 (N.J. Super. App. Div. 2002).
[brief] This Court has already settled, per the Nadelman case in summary judgment, that the [...] has specific knowledge related to type and consistency of materials allowed for preservation purposes.  The [...] found that the materials utilized were not historically appropriate as they did not maintain the “rhythm and feel of the 1800s and were historically inconsistent with the key structure with respect to form, shape or color and were architecturally inappropriate.  (Pa134a)  This position with regard to design materials was reiterated during the appeal of the [...] decision to the [...].
[brief] Appellants claim that there is no “legal [or] factual basis” to require them to follow the Original Policy when the trial court did not find that the Original Policy is mandatory or represents the only way to comply with the LAD.  (Db37).  And it argues that the State has admitted the Original Policy is not mandatory.  See (Da269) (counsel for State agreeing at argument in other case that the Original Policy “is not necessarily a mandatory policy”); (Da281-82) (Attorney General stating in radio interview that parents have an important role to play and that it can be important for them to maintain information about their children, but that schools could not establish a “blanket affirmative requirement based on a characteristic” protected by the LAD without running afoul of New Jersey law).  But the State agrees with all of this.
[brief] As to the sixth Cole factor, the Trial Court noted that no trial date has been scheduled, [4T48:16-17], unlike in Cole, where the defendant moved to compel arbitration just three days before the scheduled trial of a substantially litigated matter.  Cole, 215 N.J. at 282.  Lastly, while non-dispositive on its own, the “resulting prejudice” to the party opposing arbitration remains an important consideration.  Id. at 281.  Presumably because there exists none, Her Honor’s initial comment that “prejudice” was the only factor that applied to Defendants’ argument, implies a finding that Plaintiff has suffered no resulting prejudice here.  [4T48:17-18].  The New Jersey Supreme Court has defined prejudice as “the inherent unfairness—in terms of delay, expense, or damage to a party's legal position—[that] occurs when the party's opponent forces it to litigate an issue and later seeks to arbitrate that same issue. ”  *Id.* at 282.  Here, the fact that Defendants filed the instant motion to compel arbitration just two months after this case’s transfer to the Law Division, as well as the lack of motion practice and discovery prior to its filing, hardly scratch the surface of prejudice.  The Appellate Division has noted “simply wasting a party-opponent's time and money... [is] insufficient to constitute prejudice. ”  *Spaeth*, 403 N.J. Super. at 515.  In any event, Plaintiff was on notice of Defendants’ intention to pursue arbitration as of early March 2023 and, thus, was afforded the ability to guide his own litigation conduct accordingly.
[brief] “Interlocutory orders ‘shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice. ’”  Lawson v. Dewar, 468 N.J. Super. 128, 134 (App. Div. 2021) (citing R. 4:42-2).  Until a final judgment has been entered, only “sound discretion” and “the interest of justice” should guide the trial court in addressing a motion for reconsideration.  Ibid.  Although the rule for reconsidering an interlocutory order is expansive, the power to reconsider should be exercised “only for good cause shown and in the service of the ultimate goal of substantial justice. ”  Lombardi v. Masso, 207 N.J. 517, 536 (2011) (quoting Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 263-64 (App. Div. 1987)).  When plaintiffs filed their motion for reconsideration\(^8\), they could not demonstrate good cause for [...] to change his prior order barring plaintiff from substituting [...] for [...].