ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Below, [...] argued that the trial court should accept this Court’s conclusion that its arbitration agreement was “clear and unambiguous,” without mention it removed the language [...] actually relied upon.  The January 2021 agreement there had explicitly included the proviso “[y]ou acknowledge and agree that you and [...] are each waiving the right to a trial by jury. ”  Id. (slip op., at 10) (Da179).  This language was obviously crucial to the Court’s finding the agreement was “sufficiently clear to place a consumer on notice that he or she is waiving a constitutional or statutory right” as it was the only constitutional or statutory right mentioned in the agreement at all.  Ibid. (quoting Atalese, 219 N.J. at 443; citing Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 137-38 (2020)) (Da179-80).  [...] never replaced that protective language with any other identification that an [...] user’s right to jury trial were at stake.  This is despite leaving in the acknowledgment that other rights are implicated by the arbitration agreement and Terms, such as the right to participate in class or mass actions, magnifying the importance of those provisions as compared to the waiver.  (Da82).  Again, while the mere absence of any one word or phrase is not in and of itself reason to condemn the agreement, the trial court correctly noted no published New Jersey opinion has “upheld a consumer arbitration clause where neither the words waiver, jury, trial, statutory, constitutional, and rights were not included” and “clarity is required. ”  (Da303) (quoting Moore v. Woman to Woman Obstetrics & Gynecology, L.L.C., 416 N.J. Super. 30, 37 (App. Div. 2010)).  That clarity is not provided by the unclear and ambiguous language of [...]’s agreement, a flaw only deepened by the agreement’s failure to distinguish between arbitration and a judicial forum.  3.
[brief] [...] was represented by counsel throughout the process.  When [...] repeatedly informed [...] that it had to disclose the ROFR to [...], [...] failed to do so for over four months.  These facts do not constitute duress.  Furthermore, [...]’s principals testified that they did not feel comfortable moving forward in the sale to [...] without an affirmative waiver from [...]—a waiver that would not come unless and until [...] fully complied with the ROFR.
[brief] Plaintiff filed its complaint in this matter on June 18, 2020 (Pa160 and an amended complaint on July 7, 2020.  Pa25.)  Count One of the amended complaint states a claim for unpaid rent against Defendant [...] ("[...]") under a month to month lease between Plaintiff and [...] dated February 20, 2015 (the "Lease").  Count Two of the amended complaint states a claim against Defendants [...], [...] and [...] in their individual capacities based upon the assertion that these Defendants personally guaranteed the obligations of [...] under the Lease.
[brief] ”)  (Da008)  The Trial Court went on to say that, in order to prove a violation of the TCCWNA, Plaintiff must prove four elements: (1) defendant was a seller, lessor, creditor, lender or bailee or assignee; (2) defendant offered, displayed, or entered into a written consumer contract; (3) at the time it was signed or displayed, “that writing contain[ed] a provision that violate[d] any clearly established legal right of a consumer or responsibility of a seller”, and (4) plaintiff is an aggrieved consumer.  *Spade v. Select Comfort Corp.*, 232 N.J. 504 516 (2018) (Da009)  After reviewing the multiple statutes, the appropriate case law and the Contracts, the Trial Court properly determined that the Contracts did not violate the TCCWNA.
[brief] This Court’s prior ruling that the responding officers’ lay opinions as to how the incident occurred were inadmissible pursuant to N.J.R.E. 701, does not preclude admissibility for another purpose.  Evidence may be admissible for one purpose, but inadmissible for another.  N.J.R.E. 105 provides that “[w]hen evidence is admitted . . . for one purpose but is not admissible . . . for another purpose, the judge, upon request shall restrict the evidence to its proper scope and shall instruct the jury accordingly .  . . .”  Relying on N.J.R.E. 105, as well as the Appellate Division’s recent decisions in Hassan v. Williams, 467 N.J. Super. 190, 207-08 (App. Div. 2021) and Parker v. Poole, 440 N.J. Super. 7, 18-20 (App. Div. 2015), [...] successfully argued this point to the trial judge, who agreed the officers’ opinions were admissible to show bias on the part of Plaintiffs’ liability expert [...], provided there was a limiting instruction.
[brief] 25  Loredo v. Solvay America, Inc., 212 P.3d 614 (Wyo. 2009)  ...... 11  Lovick v. Wil-Rich, 588 N.W.2d 688 (Iowa 1999)  ............... 12  Lynch v. McStome & Lincoln Plaza Associates, 548 A.2d 1276 (Pa. Super. 1988) ......................... 13  Mahnke v. Bayer Corp., 2019 WL 8621437 (C.D. Cal. Dec. 10, 2019)
[directive] Promulgated by Directive #21-06 (December 11, 2006)  Page 13 of 29  20  Would you have any difficulty following the principle that the defendant on trial is presumed to be innocent and must be found not guilty of that charge unless each and every essential element of an offense charged is proved beyond a reasonable doubt?  21  The indictment is not evidence of guilt.  It is simply a charging document.  Would the fact that the defendant has been arrested and indicted, and is here in court facing these charges, cause you to have preconceived opinions on the defendant’s guilt or innocence?  22  I have already given you the definition of reasonable doubt, and will explain it again at the end of the trial.  Would any of you have any difficulty in voting not guilty if the State fails to prove the charge beyond a reasonable doubt?  23  If the State proves each element of the alleged offense(s) beyond a reasonable doubt, would you have any difficulty in returning a verdict of guilty?  24  The burden of proving each element of a crime beyond a reasonable doubt rests upon the prosecution and that burden never shifts to the defendant.  The defendant in a criminal case has no obligation or duty to prove his / her innocence or offer any proof relating to his / her innocence.  Would any of you have any difficulty in following these principles?  25, A defendant in a criminal case has the absolute right to remain silent and has the absolute right not to testify.  If a defendant Standards for Jury Selection Promulgated by Directive #21-06 (December 11, 2006)
[directive] Criminal interviews should be conducted only with the prior approval, or at the direction, of the County Prosecutor.  Once an investigation becomes criminal in nature, the subject officer shall be advised that he or she is not required to answer questions as a condition of INTERNAL AFFAIRS POLICY & PROCEDURES | November 2022 48 employment.  Of course, an officer who is the subject of a criminal investigation may elect to voluntarily answer questions with or without an attorney so that the facts known to him and his perspective are available to the investigators.  8.2.2
[brief] A.  The jury understood its obligation to apply the standard of beyond a reasonable doubt.  The judge omitted from the jury charge the obligation of the State to prove the ID was a public record, writing or instrument beyond a reasonable doubt, as the Model Jury Charge requires.  (Compare 20T197-15 to 198-12 with Model Jury Charge (Criminal), “Theft of Movable Property (N.J.S.A. 2C:20-3a)” at 3 (rev. Feb. 11, 2008)).  However, that omission did not create plain error.  Plain error in this context means “legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result. ”  State v. Montalvo, 229 N.J. 300, 321 (2017).
[brief] Myska v. New Jersey Mfrs. Ins. Co., 440 N.J. Super. 458, 480 (App. Div. 2015) (dismissing class action claims and explaining that “the individualized nature of the parties’ automobile insurance contracts and the circumstances giving rise to their respective claims for reimbursement predominates over possible common questions among class members”).  With respect to questions of fact, the trial court correctly pointed out that Appellants’ Counterclaim “does not even allege whether . . . [...] utilizes the same or a similar rent [C]oncession [Recovery] [P]rovision at other New Jersey properties, whether [...] owns other properties or even with respect to other tenants residing at [the Property].” (2T13:13-18).  The trial court also noted that it “would have to engage in individual inquiries relative to each tenant’s unique circumstances, including whether they breached their own respective lease provision in a similar way to [Appellants].” (2T14:18-22).  As to questions of law, the trial court found that “whether [...]’s enforcement of the [Concession Recovery P]rovision violates the CFA would also require individual assessments of the particular facts and circumstances of each class member.
[brief] From outside the 99-cent store, [...] recovered two .40-caliber Smith and Wesson shell casings, and two bullet fragments.  (2T152-2 to 160-19; 3T23-19 to 24-5).  Inside the store, [...] recovered the following: (1) a fanny pack containing $280 ([...] claimed it was between $600-$700) from the rear of the store; (2) a wallet with Lloyd [...]’s driver’s license in it; (3) a small cup with baggies of marijuana inside from near the cash register; (4) from the floor, an extended magazine capable of holding 31 rounds, but it contained 17, that fit the Glock weapon, but was not the magazine that came with the gun; and (5) a projectile.  (2T171-14 to 176-23; 3T6-7 to 17-12; 3T20-12 to 22-16; 3T149-11 to 24).  Lloyd [...] denied selling marijuana from his store, and [...], who has three prior convictions, was unsure if marijuana sales took place at the store.  (3T99-10 to 101-10; 3T152-16 to 154-3).
[directive] It should also be noted that the county prosecutor or the Attorney General can, in their exercise of discretion, prosecute a matter in municipal court under the provisions of N.J.S.A. 2B:25-7 and 2B-107; R. 7:8-8(b).  2 often the municipal prosecutor may not be aware that the defendant is a public employee or that his offense may have touched the defendant’s public employment.  And in some cases, because of turnover in the part-time positions of municipal prosecutor, the new municipal prosecutor may not be aware that the forfeiture of office should be applied for immediately at the time of conviction.  James Flagg v. Essex County Prosecutor
[brief] Castro, 370 N.J.Super. 282, 851 A.2d 88, 94–95; see also 2B Sutherland Statutory Construction § 55:3 (7th ed.) (stating that “[s]tatutes are not extended by implication when language is specific and not subject to reasonable doubt [, and] [c]ourts will not indulge implications which in effect are necessarily contrary to or incompatible with the spirit and purpose of an enactment. ”).  Veras v. [...], No. CIV. 13-1745 RBK/JS, 2014 WL 1050512, at *9 (D.N.J. Mar. 17, 2014)  Defendant relies only on one unpublished Chancery Division case, New Century Fin. v. Trewin 2018 N.J. Super. Unpub. LEXIS 1688 (Ch. Div. May 24, 2018) (Da71) for the proposition that there can be defensive application of the statute.  Reliance on this case is misplaced.  In the first instance, the decision and opinion in Trewin was vacated by order dated July 23, 2018, ([...])), meaning there is effectively no opinion to rely upon.
[brief] THE LAW DIVISION DID NOT ERR BY DENYING PLAINTIFF’S MOTION FOR CORRECTION OF A CLERICAL ERROR AS THERE WAS NO ERROR TO CORRECT.  (RESPONDING TO PLAINTIFF’S POINT VI).  The Law Division made no clerical error as it pertains to its July 10, 2023, order dismissing [...]’s claims against State Defendants, and therefore it did not err in denying [...]’s request to revise the order to reflect that the motion to dismiss was opposed, when in fact it was not.  As the trial court accurately noted, “[I]t’s not what happened,” and, “That’s a fiction.
[brief] The trial court weighed the competing policies involved and reached a decision that the judgment should be vacated.  The Appellate Court stated:  Despite the problematic conduct and motivation of both parties, the judge ultimately viewed the decision as turning not on which of the parties acted worse but on the weight of the competing public policies.  On defendant's side was plaintiff's commencement of a time-barred claim in violation of federal policy, which strongly favors the curbing of "abusive debt collection practices."  15 U.S.C. § 1692(a).  The countervailing state policy urged by plaintiff is what the Supreme Court referred to as "the strong interests in finality of judgments and judicial efficiency."  Baumann, 95 N.J. at 392, 471 A.2d 395; see also Mancini, 132 N.J. at 334, 625 A.2d 484.  Both these policies cannot be served here; one must give way to the other.  The judge determined that the interest in curbing abusive collection practices outweighed the interest in the finality of judgments.  In the final analysis, we cannot conclude that the choice the judge made constitutes an abuse of the discretion provided by Rule 4:50-1(f).
[brief] [...], counsel to [...], Co-Trustee, & I, as sole vested Remainder Beneficiary of her Trust, repeatedly told them we were ready to agree to, & ultimately issued final draft Settlement for their approval, in order for [...] to issue to [...] & me for our acceptance an “informal” IA with details based on R.4:87, which his formal IA was also based on, but without any allowed Exceptions, & to allow [...]’s resignation, as Co-Trustee, without any liabilities for him.  [...] irrationally chose to dismiss my overwhelming substantiated evidence that verified how [...]’s legal work fees would have been closer to ~$5K, if he and [...] had instead chosen to work on a 3-Way Settlement (prior Brief, p. 9, last par, to p. 10, 1st 2 lines; p. 36, par. 31; p. 50 last. par.), as I had addressed in my Nov. 28, 2022 Reply Opposition regarding the legal fees, and May 25, 2023 Cross-Motion & May 31, 2024 Brief refuting the Judge’s false claims and invalid Feb. 17 & Aug. 4, 2023 Rulings regarding my opposition to the legal fees.  Based on my Nov. 4&28, 2022 & May 25, 2023 Lower Court filings, my prior Brief extensively substantiated how they repeatedly refused to work on a 100% guaranteed, achievable Settlement based on repeated requests by [...] & me.  Unfortunately, the Judge abused his discretion by irrationally deciding that he would not believe the probative competent evidence that was presented to him.
[brief] You know she had the fall with the cane on Christmas in December 2017 while she was using the cane.  She had another fall in March 17 when she was in her bedroom trying to put on her socks, and then she had the fall in the [...].  And it’s related to the balance issues.  It’s related to the fact that she doesn’t walk well.  It’s related to the fact that she has neuropathy, she has numbness, she has a pain level of 8 out of 10, and she has shuffling feet.  These are just simply facts of the case.
[brief] STATE of New Jersey, Plaintiff–Respondent, v. [...], a/k/a [...], Defendant–Appellant.  State of New Jersey, Plaintiff–Respondent, v. [...], Defendant–Appellant.  Submitted Sept. 30, 2009.  Decided April 9, 2010.  On appeal from Superior Court of New Jersey, Law Division, Hudson County, [...].  Attorneys and Law Firms  [...], Public Defender, attorney for appellant Lee Johnson A–5330–06 ([...], Assistant Deputy Public Defender, of counsel and on the brief).  [...], Public Defender, attorney for appellant [...] A–6330–06 ([...], Designated Counsel, of counsel and on the brief).  [...], Hudson County Prosecutor, attorney for respondent ([...], Assistant Prosecutor, on the briefs).  Appellants Lee Johnson and [...] filed pro se supplemental briefs.  Before Judges [...], [...] and [...].  Opinion PER CURIAM.
[brief] Nor is there any evidence that the [...] later approved the City’s retroactive application of September and October 2022 vacancies to the July 2022 promotions.  While failing to enforce N.J.A.C. 4A:4-4.8(b) as to the July 2022 promotions, the [...] enforces the very same regulation to deny Appellant’s promotion to the rank of Captain even though, unlike the July 2022 promotions, there were actual vacancies in the rank.  Appellant, who is a disabled veteran as per Civil Service, occupied the number one spot of ten eligibles certified by the [...] in December 2022.
[brief] For example, in DePetro, four shareholders in a self-storage facility business challenged the planning board’s decision to grant site plan approval for a self-storage development in an area that was zoned for business uses.  367 N.J. Super. at 164.  In that matter, this Court -- relying upon the New Jersey Supreme Court decisions in Al Walker, Inc. v. Borough of Stanhope, 23 N.J. 657 (1957) and Home Builders League of S. Jersey, Inc. v. Twp. of Berlin, 81 N.J. 127 (1979) -- found that the plaintiffs satisfied the “interested party” standard specifically because the proposed development had a potential economic impact upon them.  Id. at 273.  To that end, this Court found:  As in *Walker* and *Home Builders* and the cases upon which those decisions rely, in the present case, plaintiffs are not simply interlopers, the potential impact upon them of [defendant’s] proposed development is not fanciful, and plaintiffs’ proceeding effectively serves the public interest . . .  We thus find the requirement of standing to have been met in this case . . .  [Id. at 172-73 (emphasis added). ]
[brief] Here, the trial court failed to view the evidence in the light most favorable to the Plaintiff and disregarded the fact-sensitive, “case-by-case” analysis required by the case law for analyzing whether a substantial certainty of injury was created by Defendant [...]’s acts and omissions.  Preliminarily, the trial court fundamentally misconstrued the summary judgment standard when it found that “there is no evidence that unequivocally leads to the conclusion that [...]’s actions were ‘substantially certain to result in injury or death of its employees. ’”  Pa11 (emphasis added).  In so ruling, the trial court misapplied the summary judgment standard set forth in *Brill*.  It is not the burden of Plaintiff, the non-moving party, to “unequivocally” prove his or her case to withstand summary judgment.  Rather, Plaintiff need only demonstrate that there is a genuine dispute such that a reasonable jury could rule in his or her favor.  Thus, “equivocal” evidence, meaning evidence that could be construed either in support of or against the Plaintiff, must be construed in Plaintiff’s favor and its existence requires the denial of a defendant’s summary judgment motion.  Brill, 142 N.J. at 524.  The trial court clearly erred in construing what it viewed as equivocal evidence against Plaintiff and in favor of the moving party, [...].  The trial court also erred in its analysis of whether a jury could find that [...]’s conduct created a substantial certainty that one of its employees would be injured.  The trial court focused largely on the facts of distinguishable cases rather than conducting a case-specific analysis based on the totality of the facts in the instant matter, which appears to present an issue of first impression.  In its written decision, the trial court emphasized that “[t]he numerous cases dealing with intentional wrong primarily involve industrial settings, particularly situations where employers have either removed or modified safety features on machinery, which lead to employee injuries. ”  Pa9.  However, the fact that many cases involving intentional wrongs involve industrial settings and removing safety features from machines is irrelevant to whether the circumstances of the instant matter give rise to a jury question, which must be determined on a totality of the facts, case-by-case analysis.  See Laidlow, 170 N.J. at 622-623.  See also Fisher, 363 N.J. Super. at 469 (holding that “no one fact is dispositive” in determining whether a substantial certainty of injury has been created by an employer’s conduct).  As a result of its erroneous focus on whether the facts of the instant matter fit the fact patterns of other cases, the trial court primarily relied on the facts of two distinguishable cases to support its granting of summary judgment to Defendant [...]: McGovern v. Resorts Int’l Hotel, Inc., 306 N.J. Super. 174 (App. Div. 1997) and Fisher v. Sears, Roebuck & Co., 363 N.J. Super 457, 466 (App. Div. 2003).
[brief] 18  Lippmann v. Hydro-Space Tech., Inc., 77 N.J. Super. 497, 505 (App. Div. 1962)  ....................................................  23 Loigman v. Twp. Comm. of Middletown, 297 N.J. Super. 287, 297-99 (App. Div. 1999)  ...........................................  16  Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)  .................................................................  14 N.J. State Chamber of Commerce v. N.J. Election Law Enforcement Comm'n, 82 N.J. 57, 67 (1980)
[brief] (2T17-4 to 7).  Defendant, pro se, later moved for reconsideration of his motion to suppress under Rule 4:49-2 and Rule 1:7-4.  To support his motion, defendant claimed that [...] incorrectly testified that police stopped him in Toms River, when, in fact, they had arrested him in Lakewood.  (Da96 to 97).  Defendant also stated, for this first time in his motion for reconsideration, that [...] had allegedly threatened him into consenting to a search of his residence.  (Da97).  [...] heard the reconsideration motion on March 28, 2023, and issued a detailed written opinion denying it that same day.
[brief] (1T66-2 to 5)  A tenancy from month to month is a tenancy which continues indefinitely from one month to another until terminated by a proper notice to quit, or other appropriate action.  It is a particular type of periodical tenancy, and similar to a tenancy from year to year in many respects.  The chief difference consists of the notice required to terminate it.  It is a continuing tenancy and not a new relationship each month.  22 N.J. Prac., Landlord and Tenant Law § 8.51 (5th ed.), citing Harry’s Village, Inc. vs. Egg Harbor Township, 89 N.J.  576 (1982).  The Trial Court turns the concept of a holdover tenant on its head.  A holdover tenant is a tenant that remains after the landlord has terminated its Lease.  A holdover tenant remains in possession until such time as the landlord can, through legal process, remove him.  The purpose of the Holdover Statute, N.J.S.A. 2A:42-5, is to encourage the tenant to move from the premises on the specified date or as close to that date as possible.
[directive] ASSISTANCE TO SURVIVORS  Survivors, especially survivors of homicide and sudden death, experience a period of intense grief as a result of the death of a loved one.  In order to enable the surviving family members to successfully resolve their grieving process, it is necessary for those having contact with them to provide assistance and attempt to meet their needs.  A compassionate notification procedure and access to information pertaining to the death do much to facilitate the resolution of the grieving process.  The survivors, however, may require other types of assistance to successfully overcome the trauma associated with the death of a loved one.  Inasmuch as survivors will be notified of the death by law enforcement personnel, will arrange for burial, and frequently will have contact with hospital personnel, it is suggested that law enforcement, funeral service and hospital personnel be familiar with the various types of other assistance which may be required by survivors of homicide and sudden death.