ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The Raritan Court, however, held that “the preclusionary principles of the entire controversy doctrine [which] would bar the second arbitration proceeding . . . is fundamentally a question of arbitrability .  . . .”  Id. at 71 (emphasis added).  See also Morgan Stanley & Co. v. Druz, No. A-0076-10T1, 2013 WL 68712, at *5 (N.J. Super. Ct. App. Div. Jan. 8, 2013) [Da571-Da578] (“Our courts have held that . . . issues [concerning the application of res judicata or the entire controversy doctrine] are threshold arbitrability matters for resolution by a court in the first instance. ” (emphasis added)).  Here, as explained supra and unlike in Raritan, the parties agreed the arbitrator would decide questions of arbitrability.  Raritan Court’s further explanation that arbitrability was, in that case, “within the province of the court,” 273 N.J. Super. at 71, does not undermine the fact that here, that question is within the province of the arbitrator by virtue of the parties’ express agreement in the [...] to submit to Rule 9, among other applicable AAA Rules.  The arbitration at issue in Raritan was commenced on May 21, 1993 and the Appellate Division issued the Raritan decision in May 1994.  Id. at 68.  The parties’ dispute concerned the payment of real estate commissions, id., making it a commercial dispute.  Id.  The AAA commercial rules in effect in 1992 when the Raritan arbitration was commenced and in 1994 when the Raritan court issued its decision did not include a rule that delegated to the arbitrator the power to determine the arbitrability of a dispute.  See Da467-Da481 (1992 Commercial Rules for arbitrations filed on or after May 1, 1992); Da483-Da543 (1993 Commercial Rules amended and effective November 1, 1993), Da405-Da465 (1996 Commercial Rules amended and effective July 1, 1996 which amended the 1993 Commercial Rules).
[brief] This is because the police had probable cause to search the vehicle before the custodial interrogation and would have discovered the firearm and other physical evidence irrespective of defendant’s admission that the drugs belonged to him.  Even if that were not the case, the exclusionary rule does not apply to the physical fruits of unwarned custodial statements.  As to probable cause arising before the search of the vehicle, the analysis here is not materially distinguishable from aforementioned decision in O’Neal, 190 N.J. at 616, where the Supreme Court addressed the remedy for a Miranda violation.
[brief] In 1977, the Legislature enacted N.J.S.A. 40:49-2.1, which only applied to ordinances adopted pursuant to the MLUL.  N.J.S.A. 40:49-2.1 permitted the publishing of a summary of an ordinance in lieu of its entire content where the length of the ordinance exceeded six (6) pages.  See P.L. 1977, c.395, §1; see also Rockaway Shoprite Assocs., supra, 424 N.J. Super. at 345.  In 1995, in response to pleas from municipalities for relief from “inexorable increases in burdensome mandates from Trenton,” the Legislature amended N.J.S.A. 40:49-2, the statute applicable to the adoption of general municipal ordinances.
[brief] 14 Lynn v. Lynn, 165 N.J. Super. 328 (App. Div. 1979), certif. denied, 81 N.J. 52 (1979)  14  MacKinnon v. MacKinnon, 191 N.J. 240 (2007)  9  Martinetti v. Hickman, 261 N.J. Super. 508 (App. Div. 1993)  14  Mayer v. Mayer, DOCKET No. [...] (App. Div. Jan. 25, 2013) (P-840)
[brief] 43 State v. Harmon, 104 N.J. 189 (1986) ............................... 35 State v. Hollander, 207 N.J. Super. 453 (App. Div.), certif. denied, 101 N.J. 335 (1985) .............................................. 24, 25 State v. Jenkins, 182 N.J. 112 (2004) ............................... 43 State v. Josephs, 174 N.J. 44 (2002) ................................. 16 State v. Jumpp, 262 N.J. Super. 514 (App. Div.), certif. denied, 134 N.J. 474 (1993) .............................................. 25 State v. LaBrutto, 114 N.J. 187 (1989) ............................. 43 State v. Lawless, 214 N.J. 594 (2013) ............................... 50 State v. Mauricio, 117 N.J. 402 (1990) ............................. 17 State v. Pridgen, 245 N.J. Super. 239 (App. Div.), certif. denied, 126 N.J. 327 (1991) .............................................. 19, 26 State v. Hollander, 207 N.J. Super. 453 (App. Div.), certif. denied, 101 N.J. 335 (1985) ..............................................
[brief] (Aa330; Ra13).  The Council identified [...]’s efforts to minimize Project impacts, beginning with siting the Project in a historically disturbed former quarry with invasive vegetation and “disconnected” and “non-functional” resources.  (Aa64; Aa79; Aa200-205; Aa330).  For example, the former industrial site has “small, isolated patches of forested areas,” (Aa197-211; Aa330), and only one area of trees of approximately two acres is considered a “forest” by DEP’s rules.  The Project will only remove twenty-three trees, (Aa206-208; Aa329-330), which [...] will mitigate by replacing an equivalent area of trees.  (Aa71; Aa195-196; Aa206; Aa330).  Similarly, because of the former quarry operations, open waters, riparian areas, and critical wildlife areas are disconnected and cut off from respective resource areas outside the Property.  (Aa64-66; Aa330).  The only intrusion within Highlands open water buffers or riparian zones is 285 feet of a preexisting gravel access road which has been regularly used since the 1960s.  (Aa69; Aa329-330).  And the Project also minimally affects steep slopes, rare, threatened, and endangered plant and animal species habitat, and historic and archaeological areas.  (Aa69-72; Aa74-77).  Based on this information, although DEP is not bound to defer to the Council’s findings, *Conditional Highlands Applicability Determination*, Program Interest No. 435434, 433 N.J. Super. 223, 238 (App. Div. 2013), DEP found “no valid countervailing reason” to disagree that the Project is consistent with the goals and purposes of the Highlands Act.
[brief] (1T, P. 28, 18-P. 29, 16).  Additionally, the Court made a formal ruling that the monthly rent was $1,500.00 based on the lease that the Landlord had produced during the trail.  However, in the end, the Court accepted the Appellant’s claim that if the rent was only $1200 a month, the rental arrears owed up to March, 2024 was only $8,000.00.  As such, to benefit the Appellant/tenant, the Court entered a Judgment of possession for the Respondent listing the arrears at only $8000.00 rather than $22,400.00.  (1T, P. 31, line 5- line 25).  Again, the Court actually also assessed the arrears were potentially $9600.00 but again listed the arrears as $8,000.00 giving the Appellant a chance to potentially pay the arrears.  (1T, P. 33, line 5- line. 24).  (Db, Da25-Da27).
[brief] In September 2023, Defendants filed a Motion to dissolve or modify the restraints, as well as an Order to Show Cause to disqualify Plaintiff’s counsel.  (Da110-12; 1T41:19-23; 1T42:24-25; 1T45:9).  In October 2023, new counsel substituted in for Plaintiff.  (Da218).  Defendants then filed their Answer with Counterclaims on October 19, 2023.  (Da220-48).  Thereafter the parties agreed to mediate, which occurred in December 2023, but was unsuccessful.
[brief] WHEN SHE RULED THAT SIX PRIOR CONVICTIONS OF DEFENDANT’S -- THAT WERE ALL MORE THAN 18 YEARS OLD AND FOR WHICH THE SENTENCES HAD ALL BEEN SERVED FOR MORE THAN TEN YEARS -- WOULD BE ADMISSIBLE TO AFFECT DEFENDANT’S CREDIBILITY IF HE TESTIFIED.  (RULING AT 14T 10-6 TO 11-24).  Defendant has nine prior indictable convictions. \(^2\)  When the issue arose at trial regarding which of those convictions would be admissible under N.J.R.E. 609(b) to affect his credibility if he testified, the parties agreed on two things: (1) that three first-degree robbery convictions from 2002 would be admissible to affect credibility because the 17- and 18-year sentences imposed on those expired within the ten-year period from trial in this case in which such convictions are more likely to be admissible under Rule 609 (13T 49-14 to 19), and (2) that the sentences on the other six convictions, also from 2002, had all been fully served outside of that ten-year period.  (13T 49-14 to 19; 13T 56-22 \(^2\)  As listed in the presentence report, those convictions are, in chronological order: second degree conspiracy to commit carjacking (5/24/02); fourth-degree possession of CDS with the intent to distribute (9/20/02); third-degree possession of CDS with the intent to distribute (9/20/02); second-degree possession of a weapon for an unlawful purpose (9/20/02); third-degree unlawful possession of a BB gun (9/20/02); third-degree resisting arrest (9/20/02); and three first-degree robberies (two from 9/20/02 and one from 6/13/03).
[directive] The use of the term “final” in these Guidelines with respect to the timing of a plea offer in the graduated plea system should not be construed to mean that the offer is fixed and immutable.  Prosecutors are permitted and in some cases may be required to modify the “final” offer to account for changed circumstances.  See Section 3.7.  For example, a final post-indictment plea offer may be reduced in accordance with these Guidelines where new circumstances make it appropriate to make a Downward Departure for Trial Proof Issues or to make a greater downward departure than previously calculated (e.g., a prosecution witness becomes uncooperative or unavailable).  So too, the final offer may be withdrawn and replaced with a higher offer when new circumstances suggest, for example, that the defendant belongs in a higher Criminal History Category than previously believed, that a previously unaccounted-for Aggravating Factor or Special Application and Enhancement Feature applies, or where the strength of Page 31  [...] Guidelines 2 (2004 Revisions) the State’s case and the likelihood of conviction has improved, requiring a reconsideration of a previously accounted-for trial proof downward departure (e.g., where a co-defendant pleads guilty and agrees to cooperate, or a guilty verdict is obtained in a related case involving the same witnesses, or a pre-trial motion to dismiss the case or suppress evidence is denied, etc.).
[brief] 2.  [...] Could And Would Have Performed The Jennings C-Section In A Timely Fashion – Except the C-Section Was Not Timely Called  As an initial matter, Plaintiff reminds this Court that she had no obligation to prove a doctor *would have been* available assuming “even if the Defendants had called for the surgery 10, 15, or 30 minutes earlier. ”  [Pa19].  The record establishes with ultimate finality that the C-section was not called at 9:48 p.m.; and that it was, in fact, called at about 10:12 p.m.
[brief] THE AWARD OF LEGAL FEES AND COSTS WAS PROPER.  (27T79:4 to 93:23).  The trial court correctly awarded Plaintiffs their attorneys’ fees, expert fees, and costs of suit totaling $1,181,874.51.  Fee-shifting is allowed if expressly provided for by statute, court rule, or contract.  *Packard-Bamberger & Co. v. Collier*, 167 N.J. 427, 440 (2001).  Fee determinations by trial courts “will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion. ”
[brief] It is improper for the court to make that prejudicial and unwarranted accusation to avoid its duties of enforcing R 1:20A-3 that directs a Rule 4:67-1 filing.  Moreover, there is no evasion of service in a civil case as the law provides substituted service upon a plaintiff requesting such with proof that a plaintiff tried reasonable attempts and cannot serve a defendant.  That did not happen in this case because the plaintiff did not want the defendant to have notice of his filings.
[brief] 195 N.J. at 65.  The Trial Division mistakenly relied on Finegold v. General Motors Co., 2021 WL 2810091 (D.N.J. June 30, 2021).  See Op. Br. at 24 (quoting opinion).  But unlike this case, and similarly to the Third Restatement, Finegold involved a recall that preceded a plaintiff’s alleged injuries.  2021 WL 2810091, at *1, 4 (“pointing to a recall for the same defect in … model years 2015-2017” whereas the vehicle at suit was a “2019” model).  Finegold thus in no way supports the claim here, which would impose state common-law liability for failure to recall a drug in advance of any FDA action to that effect.
[brief] The overly broad interpretation of N.J.S.A. 48:12-152 is against public policy and dangerous for the citizens of New Jersey.  Pa4.  The Motion Judge who decided the Summary Judgement Motion that gives rise to the instant appeal, applied N.J.S.A. 48:12-152, the Railroad Immunity statute in a way it has never been applied.  He ruled that a person crossing a railroad right of way, in a crossing established by a railroad to be a trespasser and thus barred from seeking damages for the negligence of railroad defendants.  The reason for this error was that instead of interpreting this statute in a narrow manner, by analyzing the plain meaning of the statute, the Judge used inference to conclude that one section of the statute was written to clarify the preceding section.  This led the Judge to a decision that applied a very broad interpretation of the statute and led to a result that the legislators who passed the statute never anticipated or intended.  The Courts in the State of New Jersey have consistently held that immunity statutes should be narrowly construed and interpreted based on the plain meaning of the language of the statute.  Velazquez ex rel Velazquez v Jiminez, 172 N.J. 240 (2002); Cohen v W.B. Associates, Inc. 380 N.J. Super. 436 (App. Div. 2005); Coleman v Martinez 247 N.J. 319 (2021)
[brief] “[T]he Act specifically provides that acts of omission must be ‘knowing’ and committed with ‘intent’ to induce reliance. ”  Vagias v. Woodmont Properties, LLC, 384 N.J. Super. 129, 134 (App. Div. 2006).  There was no evidence that the Defendants intended to mislead the Plaintiff.  At the bench trial, the Plaintiff testified.
[directive] 9.7.1  Internal investigation case files generally are not releasable to Civilian Review Boards, but the “good cause” standard may be satisfied when a Civilian Review Board requests records from a completed or closed investigation file and the Civilian Review Board has in place certain minimum procedural safeguards, as described in Section 9.7.2, to preserve the confidentiality of the requested records and the integrity of the internal affairs function, in addition to complying with all other applicable legal requirements.  A violation of any of these requirements may result in the revocation of a Civilian Review Board’s access to confidential law enforcement information, including internal affairs records, and potentially may result in other adverse or remedial actions under federal, state, or local law.  9.7.2
[brief] STANDARD AND SCOPE OF REVIEW  Appellants seek reversal of the trial court’s orders interpreting and enforcing a binding contract; therefore, this Court may review the decisions de novo.  Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cantone Research, Inc., 427 N.J. Super.  45 (App. Div. 2012) (citing Hutnick v. ARI Mut. Ins. Co., 391 N.J. Super. 524, 528 (App. Div. 2007), certif. denied, 192 N.J. 70 (2007)).  The core issue on appeal is the enforceability of the MOU.  Appellants seek to set aside the unambiguous contract language for three reasons, each of which is factually and legally incorrect: (1) it allegedly lacks essential terms, (2) its promises are somehow illusory, and (3) it allegedly creates an absurd result.  On its face, and as the trial court found, the contract contains all the terms and prerequisites necessary to create a binding contract, including offer, acceptance, and mutual consideration.  The consideration exchanged is clear and definite, with no ambiguities.  Finally, the result Appellants complain of is what was clearly bargained for when they entered into the agreement and is neither unfair nor absurd.  II.
[brief] COUNTER PRELIMINARY STATEMENT .................................................................1  COUNTER STATEMENT OF FACTS ..................................................................3  A.  Appellant’s Account ....................................................................................3  B.  Transfer and Assignment of the Account ......................................................3  C.  The Consolidated Settlement Agreement ....................................................4  D.  The Collection Action ..................................................................................7  COUNTER PROCEDURAL HISTORY ...................................................................7  COUNTER STANDARD OF REVIEW ................................................................9  COUNTER ARGUMENT .....................................................................................10  I.  The Lower Court Correctly Granted Respondent’s Motion because Appellant Lacks Standing .........................................................................................10  A.  There is No Private Right of Action Under the NJCFLA ...............................10  B.  Appellant Cannot Bootstrap its Lack of Private Right of Action in a NJCFLA Claim to a NJCFA Claim .................................................................16  II.  The Lower Court Correctly Granted Respondents’ Motion because Appellant Fails to State a NJCFA Claim .................................................................18  A.  The NJCFA Does Not Apply to Defendants ..................................................18  B.  Appellant Fails to Plead the Elements of a NJCFA Claim .............................29  III.  Appellant’s Complaint Must be Dismissed because the Court Lacks Subject Matter Jurisdiction  .................................................................34  A.  Appellant’s Claims are Barred by the Settlement Agreement and Settlement Order .................................................................34  B.  Appellant’s Claims are Barred by the Doctrine of *Res Judicata* ..........39  C.  Appellant’s Claims are Barred by the Entire Controversy Doctrine ..42  IV.  Appellant Misinterprets the Lower Court’s Orders when it Denied Appellant’s Motion.........................................................................................46  CONCLUSION ..............................................................................................................49
[brief] The decision in that case rested on whether or not a medical examiner could testify that the defendant had committed reckless homicide based on the facts of an automobile accident as he understood them.  In Jamerson, the medical examiner testified as to whether he believed the victim had stopped at a stop sign and whether the defendant had the necessary state of mind (recklessness) to be found guilty of the crime charged.  The Court found that “his testimony should have been limited to describing the physical properties of the implement that caused the [victim’s] deaths, narrating the physiological status of the bodies at the time of death, and ruling out the possibility that the injuries were self-inflicted or sustained as a result of mere inadvertence.
[brief] The GRC has no legal authority to hold anyone in “contempt. ”  Neither OPRA nor the GRC’s regulations give the GRC the power to hold any person in “contempt. ”  The sole punitive power that the GRC has is to issue civil penalties under OPRA.  N.J.S.A. 47:1A-7.  Even if it has the authority to find someone in “contempt,” it certainly cannot do so without providing the person with notice and an opportunity to be heard.
[brief] (1T).  The genuine disputes required the Court to convert the matter to a plenary action with the opportunity for assertion of counterclaims and for discovery.  (Da383).  Review of the oral argument record demonstrates that the Court failed to consider and/or overlooked the numerous disputed facts relating to the sale of this property and the applicability of the threshold provisions of the Consent Judgment.  (1T).  [...] submitted a Certification in opposition to the Order to Show Cause which set forth numerous issues of fact, objections and lack of consent relating to the marketing and sale of the Subject Property.  (Da383).
[brief] **III.  The Trial Court erroneously applied a “first manifestation” trigger to coverage for [...]’s continuous injuries and damage.  (Da42-43.)**  From the outset of the underlying case, [...] alleged that his injuries and damage resulted from his continuous (but unknown) exposure to mold in his condominium.  Da76 (First Amended Complaint ¶14(e)).  *See, e.g., Owens-Illinois, Inc, v. United Ins. Co.*, 138 N.J. 437 (1994) (continuous exposure to asbestos); *Carter-Wallace v. Admiral Ins. Co.*, 154 N.J. 312 (1998) (exposure to progressive environmental damage).  In this case, however, instead of applying the settled law --- 8  In *Carter-Wallace*, the Supreme Court ruled that all of the insurance policies in effect during the continuous injury period should participate in sharing the of New Jersey on the trigger of coverage, the Trial Court relied on an unpublished decision and a ruling from Pennsylvania that applied a “first manifestation” trigger, *Pa. Nat’l Mut. Cas. Co. v. St. John*, 106 A.3d 1 (Pa.  2014).  *St. John* refused to extend the “multiple trigger,” continuing injury analysis of *J.H. France Refractories Co. v. Allstate Ins. Co.*, 625 A.2d 502 (Pa. 1993) to a claim for continuing, progressive property damage.  The *St. John* ruling is inconsistent with controlling New Jersey law, including *Carter-Wallace* and the decision in *Air Master & Cooling, Inc. v. Selective Ins. Co. of America*, 452 N.J. Super. 35 (App. Div. 2017).  In *Air Master*, this Court applied a continuous trigger analysis in a case involving progressive property damage.  The “first manifestation” ruling in *St. John* is inconsistent with *Air Master* and with the rulings in *Owens-Illinois* and *Carter-Wallace*.
[brief] Can the proposed amended development be approved and required to be constructed with a traffic signal – without an approved waiver, but rather, as a condition of approval – in accordance with Section K-(10).(b) of the VC-2 Overlay Zone?  IF required, then (1)  Is the installation of a traffic light essential for the protection of public welfare since there are other methods to address any negative impacts to the public welfare from the development should a traffic light not be installed; and (2) Would strict adherence to Section K-(10).(b)'s requirement for a traffic signal – and imposition of same as a condition of approval – constitute a "cost-generative" feature within the meaning and intendment, and thus a violation, of N.J.S.A. 52:27D-314.b of the New Jersey Fair Housing Act and N.J.A.C. 5:93-10, 10.1 (Purpose) and 10.2 (Standards) of COAH's Second Round Rules such that it presents a detriment to the financial feasibility of this inclusionary development project?  M475-476.  The characterization of the Route 33 Signal requirement as a waiver ignores the determination of the Board Planner concerning the issue.  Ba39; Ba53-54.  Further, the framework announced by the Trial Court is clearly contrary to the established standards for the elimination of a condition of approval in a board resolution.  Finally, the Trial Court's decision completely ignores that the condition for the Route 33 Signal was a voluntary condition agreed to by the Respondents; not a condition imposed by the Board.  POINT IV