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BER-L-002337-22 08/05/2022 4:38:02 PM Pg 1 of 14 Trans ID: LCV20222847730
42737-00102 SEC
MARSHALL DENNEHEY
BY: Samuel E. Cohen, Esquire -NJ Attorney ID Number 030921996
Jeremy J. Zacharias, Esquire – NJ Attorney ID Number 108712014
2000 Market Street, Suite 2300
Philadelphia, PA 19103
Phone: 215-576-2600 Fax: 215-575-0856
Email: secohen@mdwcg.com
Attorneys for Defendants, Nicholas Donato, Jr., Donato Financial Group, LLC and Royal
Alliance Associates, Inc.
GERARD SCHLEMM. INDIVIDUALLY : SUPERIOR COURT OF NEW JERSEY
AND AS EXECUTOR OF THE ESTATE : LAW DIVISION- BERGEN COUNTY
OF GREGORY SCHLEMM :
Plaintiff(s), : Civil Action
:
v. : Docket No. BER-L-2337-22
:
NICHOLAS DONATO, JR., DONATO :
FINANCIAL GROUP LLC, ROYAL : ANSWER OF DEFENDANTS,
ALLIANCE ASSOCIATES, INC., GARY : NICHOLAS DONATO, JR., DONATO
SCHLEMM, JUDITH SCHLEMM, : FINANCIAL GROUP, LLC AND
HEATHER SCHLEMM, ANNA MARIE : ROYAL ALLIANCE ASSOCIATES,
BRODY, PRUDENTIAL INSURANCE : INC. TO PLAINTIFF’S VERIFIED
CIVIL ACTION COMPANY, : COMPLAINT, AFFIRMATIVE
BLACKROCK, MERRILL LYNCH, MET : DEFENSES, CROSSCLAIMS AND
LIFE INSURANCE, JACKSON NATIONAL : ANSWER TO CROSSCLAIMS
LIFE INS., JANUS AND HENDERSON, :
MORGAN STANLEY, STANDARD :
INSURANCE, AND PETER N. DAVIS :
AND ASSOCIATES, LLC, COMPANY :
(A THROUGH L) THESE NAMES :
BEING FICTITIOUS, :
Defendant(s) :
Defendants, Nicholas Donato, Jr., Donato Financial Group, LLC and Royal Alliance
Associates, Inc., by way of Answer to plaintiff’s verified complaint says:
THE PARTIES
1. Admitted.
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2. Admitted that Answering Defendant, Nicholas Donato, Jr. is associated with Donato
Financial Group, LLC and Royal Alliance Associates, Inc. The remainder of the
allegations of paragraph 2 are denied.
3. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leaves plaintiff to his proofs.
4. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leaves plaintiff to his proofs.
5. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leaves plaintiff to his proofs.
6. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leaves plaintiff to his proofs.
BACKGROUND FACTS RESULTING IN THIS ACTION
7. Neither admitted nor denied as the documents referenced in this paragraph speak for
themselves. By way of further response, answering defendants leave plaintiff to his
proofs.
8. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
9. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
10. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
11. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
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12. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
13. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
DECEDENT'S LAST WILL AND TESTAMENT
14. Neither admitted nor denied as the documents referenced in this paragraph speak for
themselves. By way of further response, Answering Defendants leave plaintiff to his
proofs.
15. Neither admitted nor denied as the documents referenced in this paragraph speak for
themselves. By way of further response, Answering Defendants leave plaintiff to his
proofs.
16. Neither admitted nor denied as the documents referenced in this paragraph speak for
themselves. By way of further response, Answering Defendants leave plaintiff to his
proofs.
17. Admitted.
18. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
19. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
CHANGE OF BENEFICIARY FORMS DATED OCTOBER 28, 2021
20. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
21. The allegations of this paragraph call for a legal conclusion and the same are denied.
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22. The allegations of this paragraph call for a legal conclusion and the same are denied.
23. The allegations of this paragraph call for a legal conclusion and the same are denied.
24. The allegations of this paragraph call for a legal conclusion and the same are denied.
25. The allegations of this paragraph call for a legal conclusion and the same are denied.
26. The allegations of this paragraph call for a legal conclusion and the same are denied.
27. The allegations of this paragraph call for a legal conclusion and the same are denied.
28. The allegations of this paragraph call for a legal conclusion and the same are denied.
28.[Sic] The allegations of this paragraph call for a legal conclusion and the same are
denied.
29. The allegations of this paragraph call for a legal conclusion and the same are denied.
THE DECEDENT'S HEALTH
30. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
31. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
32. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
33. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
34. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
35. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
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36. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
37. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
38. Answering Defendants have insufficient knowledge to admit or deny the allegations
of this paragraph and leave plaintiff to his proofs.
FIRST COUNT
DEFENDANT DONATO'S ACTIONS AS FINANCIAL ADVISOR
39. Answering Defendants repeat and re-alleges each and every response to the
allegations set forth in paragraphs 1-38 hereof as if fully set forth herein.
40. The allegations of this paragraph call for legal conclusions and are therefore denied.
41. The allegations of this paragraph call for legal conclusions and are therefore denied.
WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and
fees and costs directed against plaintiff in favor of Answering Defendants.
SECOND COUNT
UNDUE INFLUENCE
42. Answering Defendants repeat and re-alleges each and every response to the
allegations set forth in paragraphs 1-41 hereof as if fully set forth herein.
43. The allegations of this paragraph call for legal conclusions and are therefore denied.
44. The allegations of this paragraph call for legal conclusions and are therefore denied.
45. The allegations of this paragraph call for legal conclusions and are therefore denied.
46. To the extent that the allegations of this paragraph pertain to Answering Defendants,
the same calls for a legal conclusion and therefore are denied.
47. The allegations of this paragraph call for legal conclusions and are therefore denied.
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48. The allegations of this paragraph call for legal conclusions and are therefore denied.
WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and
fees and costs directed against plaintiff in favor of Answering Defendants.
THIRD COUNT
UNJUST ENRICHMENT
49. Answering Defendants repeat and re-alleges each and every response to the
allegations set forth in paragraphs 1-48 hereof as if fully set forth herein.
50. The allegations of this paragraph are neither admitted nor denied as the allegations
pertain to defendants other than Answering Defendants.
51. The allegations of this paragraph are neither admitted nor denied as the allegations
pertain to defendants other than Answering Defendants.
52. The allegations of this paragraph are neither admitted nor denied as the allegations
pertain to defendants other than Answering Defendants.
53. The allegations of this paragraph are neither admitted nor denied as the allegations
pertain to defendants other than Answering Defendants.
WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and
fees and costs directed against plaintiff in favor of Answering Defendants.
FOURTH COUNT
BREACH OF FIDUCIARY DUTY-NICHOLAS DONATO, JR.
54. Answering Defendants repeat and re-alleges each and every response to the
allegations set forth in paragraphs 1-53 hereof as if fully set forth herein.
55. The allegations of this paragraph call for legal conclusions and are therefore denied.
56. The allegations of this paragraph call for legal conclusions and are therefore denied.
57. The allegations of this paragraph call for legal conclusions and are therefore denied.
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WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and
fees and costs directed against plaintiff in favor of Answering Defendants.
FIFTH COUNT
BREACH OF FIDUCIARY DUTY-HEATHER SCHLEMM
58. Answering Defendants repeat and re-alleges each and every response to the
allegations set forth in paragraphs 1-57 hereof as if fully set forth herein.
59. The allegations of this paragraph are neither admitted nor denied as the allegations
pertain to defendants other than Answering Defendants.
60. The allegations of this paragraph are neither admitted nor denied as the allegations
pertain to defendants other than Answering Defendants.
61. The allegations of this paragraph are neither admitted nor denied as the allegations
pertain to defendants other than Answering Defendants.
WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and
fees and costs directed against plaintiff in favor of Answering Defendants.
SIXTH COUNT
ACCOUNTING BY DEFENDANT, HEATHER SCHLEMM, AS THE AGENT OF
GREGORY SCHLEMM
62. Answering Defendants repeat and re-alleges each and every response to the
allegations set forth in paragraphs 1-61 hereof as if fully set forth herein.
63. The allegations of this paragraph are neither admitted nor denied as the allegations
pertain to defendants other than Answering Defendants.
WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and
fees and costs directed against plaintiff in favor of Answering Defendants.
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SEVENTH COUNT
BREACH OF DUTY AS TO DEFENDANT, HEATHER SCHLEMM
64. Answering Defendants repeat and re-alleges each and every response to the
allegations set forth in paragraphs 1-63 hereof as if fully set forth herein.
65. The allegations of this paragraph are neither admitted nor denied as the allegations
pertain to defendants other than Answering Defendants.
WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and
fees and costs directed against plaintiff in favor of Answering Defendants.
EIGHTH COUNT
BREACH OF DUTY AS TO DEFENDANT, PETER N. DAVIS & ASSOCIATES, LLC.
66. Answering Defendants repeat and re-alleges each and every response to the
allegations set forth in paragraphs 1-65 hereof as if fully set forth herein.
67. The allegations of this paragraph are neither admitted nor denied as the allegations
pertain to defendants other than Answering Defendants.
68. The allegations of this paragraph are neither admitted nor denied as the allegations
pertain to defendants other than Answering Defendants.
WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and
fees and costs directed against plaintiff in favor of Answering Defendants.
NINTH COUNT
NEGLIGENCE AS TO DEFENDANT, PETER N. DAVIS & ASSOCIATES, LLC.,
FOR FAILURE TO SUPERVISE
69. Answering Defendants repeat and re-alleges each and every response to the
allegations set forth in paragraphs 1-68 hereof as if fully set forth herein.
70. The allegations of this paragraph are neither admitted nor denied as the allegations
pertain to defendants other than Answering Defendants.
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WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and
fees and costs directed against plaintiff in favor of Answering Defendants.
TENTH COUNT
FRAUD AND DECEIT
71. Answering Defendants repeat and re-alleges each and every response to the
allegations set forth in paragraphs 1-70 hereof as if fully set forth herein.
72. Admitted.
73. The allegations of this paragraph call for legal conclusions and are therefore denied.
74. The allegations of this paragraph call for legal conclusions and are therefore denied.
75. The allegations of this paragraph call for legal conclusions and are therefore denied.
76. The allegations of this paragraph call for legal conclusions and are therefore denied.
WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and
fees and costs directed against plaintiff in favor of Answering Defendants.
ELEVENTH COUNT
CONSUMER PROTECTION ACT VIOLATION
77. Answering Defendants repeat and re-alleges each and every response to the
allegations set forth in paragraphs 1-76 hereof as if fully set forth herein.
78. The allegations of this paragraph call for legal conclusions and are therefore denied.
79. The allegations of this paragraph call for legal conclusions and are therefore denied.
80. The allegations of this paragraph call for legal conclusions and are therefore denied.
81. The allegations of this paragraph call for legal conclusions and are therefore denied.
82. The allegations of this paragraph call for legal conclusions and are therefore denied.
83. The allegations of this paragraph call for legal conclusions and are therefore denied.
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WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and
fees and costs directed against plaintiff in favor of Answering Defendants.
TWELFTH COUNT
NEGLIGENCE/MALPRACTICE/ RESPONDENT SUPERIOR/AGENCY
84. Answering Defendants repeat and re-alleges each and every response to the
allegations set forth in paragraphs 1-83 hereof as if fully set forth herein.
85. The allegations of this paragraph are neither admitted nor denied as the allegations
pertain to defendants other than Answering Defendants.
86. The allegations of this paragraph are neither admitted nor denied as the allegations
pertain to defendants other than Answering Defendants.
WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and
fees and costs directed against plaintiff in favor of Answering Defendants.
THIRTEENTH COUNT
NEGLIGENCE/BREACH OF DUTY/RESPONDENT SUPERIOR /AGENCY
87. Answering Defendants repeat and re-alleges each and every response to the
allegations set forth in paragraphs 1-86 hereof as if fully set forth herein.
88. The allegations of this paragraph call for legal conclusions and are therefore denied.
89. The allegations of this paragraph call for legal conclusions and are therefore denied.
90. The allegations of this paragraph call for legal conclusions and are therefore denied.
91. The allegations of this paragraph call for legal conclusions and are therefore denied.
92. The allegations of this paragraph call for legal conclusions and are therefore denied.
WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and
fees and costs directed against plaintiff in favor of Answering Defendants.
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AFFIRMATIVE DEFENSES
1. The Answering Defendants breached no duties allegedly owed.
2. The Answering Defendants performed each and every duty allegedly owed.
3. The Complaint fails to state a claim upon which relief may be granted, and the answering
defendants reserve the right to move to dismiss the Complaint.
4. The Answering Defendants deny that they deviated from applicable standards of care.
5. The Answering Defendants deny the negligence alleged.
6. The Answering Defendants deny the proximate cause alleged.
7. The acts, injuries, and damages alleged were caused by the actions of other persons or
entities over whom Answering Defendants exercised no right of control.
8. The Answering Defendants deny the claims for indemnity.
9. The Answering Defendants deny the claim for attorneys' fees and costs.
10. The Complaint is barred pursuant to the Statute of Limitations, and the answering
defendants reserve the right to move to dismiss the Complaint.
11. The Complaint is barred or, in the alternative, the damages to which plaintiffs are entitled
must be reduced under the Doctrine of Comparative Negligence and the Comparative
Negligence Act, N.J.S.A. 2A:15-5.1, et seq.
12. The Complaint is barred pursuant to the Doctrines of Waiver, Laches, and Estoppel.
13. Venue is improper, and the Answering Defendants reserve the right to move to change
venue.
14. Any damages sustained by the plaintiffs were not caused by any negligence, carelessness
and/or culpable conduct on the part of Answering Defendants, their servants, agents or
employees, but were caused solely or in part by the negligence, carelessness and/or
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culpable conduct of the plaintiff, and that such conduct requires diminution of any award,
verdict or judgment herein to the extent and degree of such conduct or is a complete bar
to any recovery by the plaintiff.
15. The damages allegedly sustained by the plaintiff were not caused by any negligence,
carelessness, culpable conduct or breach of duty on the part of Answering Defendants,
their servants, agents or employees, but were caused by reason of the carelessness,
negligence, culpable conduct and/or breach of duty of third parties, their servants, agents
or employees over whom these defendants had no control.
16. If the plaintiff sustained any damages as alleged in the Complaint, such damages were the
result of the culpable conduct of the plaintiff or the other defendants. Should it be found
that any of the defendants are liable to the plaintiff herein, any liability being specifically
denied, then Answering Defendants allege that if any damages are found, they are to be
apportioned among the plaintiff and defendants according to the degree of responsibility
that each will be found to have in proportion to the entire measure of responsibility.
17. The Complaint fails to name a necessary and indispensable party.
18. Plaintiff’s action is premature as the controversy herein is not ripe for adjudication.
19. Plaintiff is barred from seeking all or part of his damages sought in this lawsuit as a result
of plaintiff’s failure to mitigate the damages allegedly sustained.
20. Plaintiff’s damages, if any, were sustained as a result of superseding causes which were
out of the control of Answering Defendants and not the result of the conduct, acts or
omissions of Answering Defendants. By virtue of said superseding causes, the plaintiff’s
damages were not proximately caused by Answering Defendants and, therefore, the
claims against them should be dismissed.
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21. Plaintiff’s damages, if any, were sustained as a result of intervening causes which were
out of the control of Answering Defendants and not the result of the conduct, acts or
omissions of Answering Defendants. By virtue of said intervening causes, the plaintiff’s
damages were not proximately caused by Answering Defendants and, therefore, the
claims against them should be dismissed.
22. Plaintiff is barred from seeking recovery against Answering Defendants based upon the
doctrines of accord and satisfaction.
CROSS-CLAIMS
While denying any liability on their part, Nicholas Donato, Jr., Donato Financial Group,
LLC, and Royal Alliance Associates, Inc. assert that if they are found liable to Plaintiff, any
damages sustained by Plaintiff were caused by the conduct of other Defendants in this matter.
Nicholas Donato, Jr., Donato Financial Group, LLC, and Royal Alliance Associates, Inc.
demand contribution from all other Parties under the Joint Tortfeasors Contribution Act, N.J.S.A.
2A:53A-1 et seq. and the New Jersey Comparative Negligence Act, N.J.S.A. 2A:15-5 et seq.
ANSWER TO ANY AND ALL CROSS-CLAIMS
To the extent alleged, Answering Defendants deny the allegations of any and all cross-
claims asserted against them.
WHEREFORE, Answering Defendants demand judgment dismissing the Complaint
against them with prejudice, the expenses of defense and costs of suit, and for such other relief as
the Court may deem appropriate.
DESIGNATION OF TRIAL COUNSEL
PLEASE TAKE NOTICE that pursuant to R. 4:25-4, SAMUEL E. COHEN, is hereby
designated as trial counsel on behalf of Answering Defendants.
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CERTIFICATION PURSUANT TO R. 4:5-1
PLEASE TAKE NOTICE that pursuant to R. 4:5-1, it is hereby certified that the matter
in controversy is not the subject of any other pending action. It is not known whether other
parties should be joined at this time.
MARSHALL DENNEHEY
Attorneys for Defendants, Defendants,
Nicholas Donato, Jr., Donato Financial
Group, LLC and Royal Alliance Associates,
Inc.
/s/ Samuel E. Cohen
BY:_______________________________
SAMUEL E. COHEN
Dated: August 5, 2022
The within Answer to Plaintiff’s Complaint has been electronically filed with the Clerk
of the Bergen County Superior Court, in Hackensack, New Jersey, within the time specified in
the Court Rules, and any extensions thereto.
MARSHALL DENNEHEY
Attorneys for Defendants, Defendants,
Nicholas Donato, Jr., Donato Financial
Group, LLC and Royal Alliance Associates,
Inc.
/s/ Samuel E. Cohen
BY:_______________________________
SAMUEL E. COHEN
Dated: August 5, 2022
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BER-L-002337-22
BER-L-002337-22
08/05/2022
08/04/2022
4:38:02Pg
PM1 ofPg2 1 Trans
of 2 Trans
ID: LCV20222836624
ID: LCV20222847730
BER-L-002337-22
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08/05/2022
08/04/2022
4:38:02Pg
PM2 ofPg2 2 Trans
of 2 Trans
ID: LCV20222836624
ID: LCV20222847730
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PM Pg 1 of 1 Trans
TransID:
ID:LCV20222847730
LCV20222847730
Civil Case Information Statement
Case Details: BERGEN | Civil Part Docket# L-002337-22
Case Caption: SCHLEMM GERARD VS SCHLEMM GARY Case Type: OTHER INSURANCE CLAIM (INCLUDING
Case Initiation Date: 04/27/2022 DECLARATORY JUDGMENT ACTIONS)
Attorney Name: SAMUEL EDWARD COHEN Document Type: Answer W/CrossClaim W/Jury Demand
Firm Name: MARSHALL DENNEHEY WARNER COLEMAN Jury Demand: YES - 6 JURORS
& GOGGIN Is this a professional malpractice case? YES
Address: 15000 MIDLANTIC DR STE 200 PO BOX 5429 Related cases pending: NO
MT LAUREL NJ 08054 If yes, list docket numbers:
Phone: 8564146000 Do you anticipate adding any parties (arising out of same
Name of Party: DEFENDANT : DONATO, NICHOLAS transaction or occurrence)? NO
Name of Defendant’s Primary Insurance Company Does this case involve claims related to COVID-19? NO
(if known): Everest
Are sexual abuse claims alleged by: GERARD SCHLEMM? NO
THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE
CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION
Do parties have a current, past, or recurrent relationship? YES
If yes, is that relationship: Business
Does the statute governing this case provide for payment of fees by the losing party? NO
Use this space to alert the court to any special case characteristics that may warrant individual
management or accelerated disposition:
Do you or your client need any disability accommodations? NO
If yes, please identify the requested accommodation:
Will an interpreter be needed? NO
If yes, for what language:
Please check off each applicable category: Putative Class Action? NO Title 59? NO Consumer Fraud? NO
I certify that confidential personal identifiers have been redacted from documents now submitted to the
court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(b)
08/05/2022 /s/ SAMUEL EDWARD COHEN
Dated Signed
Preview
BER-L-002337-22 08/05/2022 4:38:02 PM Pg 1 of 14 Trans ID: LCV20222847730 42737-00102 SEC MARSHALL DENNEHEY BY: Samuel E. Cohen, Esquire -NJ Attorney ID Number 030921996 Jeremy J. Zacharias, Esquire – NJ Attorney ID Number 108712014 2000 Market Street, Suite 2300 Philadelphia, PA 19103 Phone: 215-576-2600 Fax: 215-575-0856 Email: secohen@mdwcg.com Attorneys for Defendants, Nicholas Donato, Jr., Donato Financial Group, LLC and Royal Alliance Associates, Inc. GERARD SCHLEMM. INDIVIDUALLY : SUPERIOR COURT OF NEW JERSEY AND AS EXECUTOR OF THE ESTATE : LAW DIVISION- BERGEN COUNTY OF GREGORY SCHLEMM : Plaintiff(s), : Civil Action : v. : Docket No. BER-L-2337-22 : NICHOLAS DONATO, JR., DONATO : FINANCIAL GROUP LLC, ROYAL : ANSWER OF DEFENDANTS, ALLIANCE ASSOCIATES, INC., GARY : NICHOLAS DONATO, JR., DONATO SCHLEMM, JUDITH SCHLEMM, : FINANCIAL GROUP, LLC AND HEATHER SCHLEMM, ANNA MARIE : ROYAL ALLIANCE ASSOCIATES, BRODY, PRUDENTIAL INSURANCE : INC. TO PLAINTIFF’S VERIFIED CIVIL ACTION COMPANY, : COMPLAINT, AFFIRMATIVE BLACKROCK, MERRILL LYNCH, MET : DEFENSES, CROSSCLAIMS AND LIFE INSURANCE, JACKSON NATIONAL : ANSWER TO CROSSCLAIMS LIFE INS., JANUS AND HENDERSON, : MORGAN STANLEY, STANDARD : INSURANCE, AND PETER N. DAVIS : AND ASSOCIATES, LLC, COMPANY : (A THROUGH L) THESE NAMES : BEING FICTITIOUS, : Defendant(s) : Defendants, Nicholas Donato, Jr., Donato Financial Group, LLC and Royal Alliance Associates, Inc., by way of Answer to plaintiff’s verified complaint says: THE PARTIES 1. Admitted. BER-L-002337-22 08/05/2022 4:38:02 PM Pg 2 of 14 Trans ID: LCV20222847730 2. Admitted that Answering Defendant, Nicholas Donato, Jr. is associated with Donato Financial Group, LLC and Royal Alliance Associates, Inc. The remainder of the allegations of paragraph 2 are denied. 3. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leaves plaintiff to his proofs. 4. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leaves plaintiff to his proofs. 5. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leaves plaintiff to his proofs. 6. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leaves plaintiff to his proofs. BACKGROUND FACTS RESULTING IN THIS ACTION 7. Neither admitted nor denied as the documents referenced in this paragraph speak for themselves. By way of further response, answering defendants leave plaintiff to his proofs. 8. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. 9. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. 10. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. 11. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. LEGAL/146493531.v1 2 BER-L-002337-22 08/05/2022 4:38:02 PM Pg 3 of 14 Trans ID: LCV20222847730 12. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. 13. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. DECEDENT'S LAST WILL AND TESTAMENT 14. Neither admitted nor denied as the documents referenced in this paragraph speak for themselves. By way of further response, Answering Defendants leave plaintiff to his proofs. 15. Neither admitted nor denied as the documents referenced in this paragraph speak for themselves. By way of further response, Answering Defendants leave plaintiff to his proofs. 16. Neither admitted nor denied as the documents referenced in this paragraph speak for themselves. By way of further response, Answering Defendants leave plaintiff to his proofs. 17. Admitted. 18. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. 19. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. CHANGE OF BENEFICIARY FORMS DATED OCTOBER 28, 2021 20. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. 21. The allegations of this paragraph call for a legal conclusion and the same are denied. LEGAL/146493531.v1 3 BER-L-002337-22 08/05/2022 4:38:02 PM Pg 4 of 14 Trans ID: LCV20222847730 22. The allegations of this paragraph call for a legal conclusion and the same are denied. 23. The allegations of this paragraph call for a legal conclusion and the same are denied. 24. The allegations of this paragraph call for a legal conclusion and the same are denied. 25. The allegations of this paragraph call for a legal conclusion and the same are denied. 26. The allegations of this paragraph call for a legal conclusion and the same are denied. 27. The allegations of this paragraph call for a legal conclusion and the same are denied. 28. The allegations of this paragraph call for a legal conclusion and the same are denied. 28.[Sic] The allegations of this paragraph call for a legal conclusion and the same are denied. 29. The allegations of this paragraph call for a legal conclusion and the same are denied. THE DECEDENT'S HEALTH 30. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. 31. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. 32. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. 33. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. 34. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. 35. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. LEGAL/146493531.v1 4 BER-L-002337-22 08/05/2022 4:38:02 PM Pg 5 of 14 Trans ID: LCV20222847730 36. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. 37. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. 38. Answering Defendants have insufficient knowledge to admit or deny the allegations of this paragraph and leave plaintiff to his proofs. FIRST COUNT DEFENDANT DONATO'S ACTIONS AS FINANCIAL ADVISOR 39. Answering Defendants repeat and re-alleges each and every response to the allegations set forth in paragraphs 1-38 hereof as if fully set forth herein. 40. The allegations of this paragraph call for legal conclusions and are therefore denied. 41. The allegations of this paragraph call for legal conclusions and are therefore denied. WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and fees and costs directed against plaintiff in favor of Answering Defendants. SECOND COUNT UNDUE INFLUENCE 42. Answering Defendants repeat and re-alleges each and every response to the allegations set forth in paragraphs 1-41 hereof as if fully set forth herein. 43. The allegations of this paragraph call for legal conclusions and are therefore denied. 44. The allegations of this paragraph call for legal conclusions and are therefore denied. 45. The allegations of this paragraph call for legal conclusions and are therefore denied. 46. To the extent that the allegations of this paragraph pertain to Answering Defendants, the same calls for a legal conclusion and therefore are denied. 47. The allegations of this paragraph call for legal conclusions and are therefore denied. LEGAL/146493531.v1 5 BER-L-002337-22 08/05/2022 4:38:02 PM Pg 6 of 14 Trans ID: LCV20222847730 48. The allegations of this paragraph call for legal conclusions and are therefore denied. WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and fees and costs directed against plaintiff in favor of Answering Defendants. THIRD COUNT UNJUST ENRICHMENT 49. Answering Defendants repeat and re-alleges each and every response to the allegations set forth in paragraphs 1-48 hereof as if fully set forth herein. 50. The allegations of this paragraph are neither admitted nor denied as the allegations pertain to defendants other than Answering Defendants. 51. The allegations of this paragraph are neither admitted nor denied as the allegations pertain to defendants other than Answering Defendants. 52. The allegations of this paragraph are neither admitted nor denied as the allegations pertain to defendants other than Answering Defendants. 53. The allegations of this paragraph are neither admitted nor denied as the allegations pertain to defendants other than Answering Defendants. WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and fees and costs directed against plaintiff in favor of Answering Defendants. FOURTH COUNT BREACH OF FIDUCIARY DUTY-NICHOLAS DONATO, JR. 54. Answering Defendants repeat and re-alleges each and every response to the allegations set forth in paragraphs 1-53 hereof as if fully set forth herein. 55. The allegations of this paragraph call for legal conclusions and are therefore denied. 56. The allegations of this paragraph call for legal conclusions and are therefore denied. 57. The allegations of this paragraph call for legal conclusions and are therefore denied. LEGAL/146493531.v1 6 BER-L-002337-22 08/05/2022 4:38:02 PM Pg 7 of 14 Trans ID: LCV20222847730 WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and fees and costs directed against plaintiff in favor of Answering Defendants. FIFTH COUNT BREACH OF FIDUCIARY DUTY-HEATHER SCHLEMM 58. Answering Defendants repeat and re-alleges each and every response to the allegations set forth in paragraphs 1-57 hereof as if fully set forth herein. 59. The allegations of this paragraph are neither admitted nor denied as the allegations pertain to defendants other than Answering Defendants. 60. The allegations of this paragraph are neither admitted nor denied as the allegations pertain to defendants other than Answering Defendants. 61. The allegations of this paragraph are neither admitted nor denied as the allegations pertain to defendants other than Answering Defendants. WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and fees and costs directed against plaintiff in favor of Answering Defendants. SIXTH COUNT ACCOUNTING BY DEFENDANT, HEATHER SCHLEMM, AS THE AGENT OF GREGORY SCHLEMM 62. Answering Defendants repeat and re-alleges each and every response to the allegations set forth in paragraphs 1-61 hereof as if fully set forth herein. 63. The allegations of this paragraph are neither admitted nor denied as the allegations pertain to defendants other than Answering Defendants. WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and fees and costs directed against plaintiff in favor of Answering Defendants. LEGAL/146493531.v1 7 BER-L-002337-22 08/05/2022 4:38:02 PM Pg 8 of 14 Trans ID: LCV20222847730 SEVENTH COUNT BREACH OF DUTY AS TO DEFENDANT, HEATHER SCHLEMM 64. Answering Defendants repeat and re-alleges each and every response to the allegations set forth in paragraphs 1-63 hereof as if fully set forth herein. 65. The allegations of this paragraph are neither admitted nor denied as the allegations pertain to defendants other than Answering Defendants. WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and fees and costs directed against plaintiff in favor of Answering Defendants. EIGHTH COUNT BREACH OF DUTY AS TO DEFENDANT, PETER N. DAVIS & ASSOCIATES, LLC. 66. Answering Defendants repeat and re-alleges each and every response to the allegations set forth in paragraphs 1-65 hereof as if fully set forth herein. 67. The allegations of this paragraph are neither admitted nor denied as the allegations pertain to defendants other than Answering Defendants. 68. The allegations of this paragraph are neither admitted nor denied as the allegations pertain to defendants other than Answering Defendants. WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and fees and costs directed against plaintiff in favor of Answering Defendants. NINTH COUNT NEGLIGENCE AS TO DEFENDANT, PETER N. DAVIS & ASSOCIATES, LLC., FOR FAILURE TO SUPERVISE 69. Answering Defendants repeat and re-alleges each and every response to the allegations set forth in paragraphs 1-68 hereof as if fully set forth herein. 70. The allegations of this paragraph are neither admitted nor denied as the allegations pertain to defendants other than Answering Defendants. LEGAL/146493531.v1 8 BER-L-002337-22 08/05/2022 4:38:02 PM Pg 9 of 14 Trans ID: LCV20222847730 WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and fees and costs directed against plaintiff in favor of Answering Defendants. TENTH COUNT FRAUD AND DECEIT 71. Answering Defendants repeat and re-alleges each and every response to the allegations set forth in paragraphs 1-70 hereof as if fully set forth herein. 72. Admitted. 73. The allegations of this paragraph call for legal conclusions and are therefore denied. 74. The allegations of this paragraph call for legal conclusions and are therefore denied. 75. The allegations of this paragraph call for legal conclusions and are therefore denied. 76. The allegations of this paragraph call for legal conclusions and are therefore denied. WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and fees and costs directed against plaintiff in favor of Answering Defendants. ELEVENTH COUNT CONSUMER PROTECTION ACT VIOLATION 77. Answering Defendants repeat and re-alleges each and every response to the allegations set forth in paragraphs 1-76 hereof as if fully set forth herein. 78. The allegations of this paragraph call for legal conclusions and are therefore denied. 79. The allegations of this paragraph call for legal conclusions and are therefore denied. 80. The allegations of this paragraph call for legal conclusions and are therefore denied. 81. The allegations of this paragraph call for legal conclusions and are therefore denied. 82. The allegations of this paragraph call for legal conclusions and are therefore denied. 83. The allegations of this paragraph call for legal conclusions and are therefore denied. LEGAL/146493531.v1 9 BER-L-002337-22 08/05/2022 4:38:02 PM Pg 10 of 14 Trans ID: LCV20222847730 WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and fees and costs directed against plaintiff in favor of Answering Defendants. TWELFTH COUNT NEGLIGENCE/MALPRACTICE/ RESPONDENT SUPERIOR/AGENCY 84. Answering Defendants repeat and re-alleges each and every response to the allegations set forth in paragraphs 1-83 hereof as if fully set forth herein. 85. The allegations of this paragraph are neither admitted nor denied as the allegations pertain to defendants other than Answering Defendants. 86. The allegations of this paragraph are neither admitted nor denied as the allegations pertain to defendants other than Answering Defendants. WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and fees and costs directed against plaintiff in favor of Answering Defendants. THIRTEENTH COUNT NEGLIGENCE/BREACH OF DUTY/RESPONDENT SUPERIOR /AGENCY 87. Answering Defendants repeat and re-alleges each and every response to the allegations set forth in paragraphs 1-86 hereof as if fully set forth herein. 88. The allegations of this paragraph call for legal conclusions and are therefore denied. 89. The allegations of this paragraph call for legal conclusions and are therefore denied. 90. The allegations of this paragraph call for legal conclusions and are therefore denied. 91. The allegations of this paragraph call for legal conclusions and are therefore denied. 92. The allegations of this paragraph call for legal conclusions and are therefore denied. WHEREFORE, Answering Defendants demand dismissal of plaintiff’s Complaint and fees and costs directed against plaintiff in favor of Answering Defendants. LEGAL/146493531.v1 10 BER-L-002337-22 08/05/2022 4:38:02 PM Pg 11 of 14 Trans ID: LCV20222847730 AFFIRMATIVE DEFENSES 1. The Answering Defendants breached no duties allegedly owed. 2. The Answering Defendants performed each and every duty allegedly owed. 3. The Complaint fails to state a claim upon which relief may be granted, and the answering defendants reserve the right to move to dismiss the Complaint. 4. The Answering Defendants deny that they deviated from applicable standards of care. 5. The Answering Defendants deny the negligence alleged. 6. The Answering Defendants deny the proximate cause alleged. 7. The acts, injuries, and damages alleged were caused by the actions of other persons or entities over whom Answering Defendants exercised no right of control. 8. The Answering Defendants deny the claims for indemnity. 9. The Answering Defendants deny the claim for attorneys' fees and costs. 10. The Complaint is barred pursuant to the Statute of Limitations, and the answering defendants reserve the right to move to dismiss the Complaint. 11. The Complaint is barred or, in the alternative, the damages to which plaintiffs are entitled must be reduced under the Doctrine of Comparative Negligence and the Comparative Negligence Act, N.J.S.A. 2A:15-5.1, et seq. 12. The Complaint is barred pursuant to the Doctrines of Waiver, Laches, and Estoppel. 13. Venue is improper, and the Answering Defendants reserve the right to move to change venue. 14. Any damages sustained by the plaintiffs were not caused by any negligence, carelessness and/or culpable conduct on the part of Answering Defendants, their servants, agents or employees, but were caused solely or in part by the negligence, carelessness and/or LEGAL/146493531.v1 11 BER-L-002337-22 08/05/2022 4:38:02 PM Pg 12 of 14 Trans ID: LCV20222847730 culpable conduct of the plaintiff, and that such conduct requires diminution of any award, verdict or judgment herein to the extent and degree of such conduct or is a complete bar to any recovery by the plaintiff. 15. The damages allegedly sustained by the plaintiff were not caused by any negligence, carelessness, culpable conduct or breach of duty on the part of Answering Defendants, their servants, agents or employees, but were caused by reason of the carelessness, negligence, culpable conduct and/or breach of duty of third parties, their servants, agents or employees over whom these defendants had no control. 16. If the plaintiff sustained any damages as alleged in the Complaint, such damages were the result of the culpable conduct of the plaintiff or the other defendants. Should it be found that any of the defendants are liable to the plaintiff herein, any liability being specifically denied, then Answering Defendants allege that if any damages are found, they are to be apportioned among the plaintiff and defendants according to the degree of responsibility that each will be found to have in proportion to the entire measure of responsibility. 17. The Complaint fails to name a necessary and indispensable party. 18. Plaintiff’s action is premature as the controversy herein is not ripe for adjudication. 19. Plaintiff is barred from seeking all or part of his damages sought in this lawsuit as a result of plaintiff’s failure to mitigate the damages allegedly sustained. 20. Plaintiff’s damages, if any, were sustained as a result of superseding causes which were out of the control of Answering Defendants and not the result of the conduct, acts or omissions of Answering Defendants. By virtue of said superseding causes, the plaintiff’s damages were not proximately caused by Answering Defendants and, therefore, the claims against them should be dismissed. LEGAL/146493531.v1 12 BER-L-002337-22 08/05/2022 4:38:02 PM Pg 13 of 14 Trans ID: LCV20222847730 21. Plaintiff’s damages, if any, were sustained as a result of intervening causes which were out of the control of Answering Defendants and not the result of the conduct, acts or omissions of Answering Defendants. By virtue of said intervening causes, the plaintiff’s damages were not proximately caused by Answering Defendants and, therefore, the claims against them should be dismissed. 22. Plaintiff is barred from seeking recovery against Answering Defendants based upon the doctrines of accord and satisfaction. CROSS-CLAIMS While denying any liability on their part, Nicholas Donato, Jr., Donato Financial Group, LLC, and Royal Alliance Associates, Inc. assert that if they are found liable to Plaintiff, any damages sustained by Plaintiff were caused by the conduct of other Defendants in this matter. Nicholas Donato, Jr., Donato Financial Group, LLC, and Royal Alliance Associates, Inc. demand contribution from all other Parties under the Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-1 et seq. and the New Jersey Comparative Negligence Act, N.J.S.A. 2A:15-5 et seq. ANSWER TO ANY AND ALL CROSS-CLAIMS To the extent alleged, Answering Defendants deny the allegations of any and all cross- claims asserted against them. WHEREFORE, Answering Defendants demand judgment dismissing the Complaint against them with prejudice, the expenses of defense and costs of suit, and for such other relief as the Court may deem appropriate. DESIGNATION OF TRIAL COUNSEL PLEASE TAKE NOTICE that pursuant to R. 4:25-4, SAMUEL E. COHEN, is hereby designated as trial counsel on behalf of Answering Defendants. LEGAL/146493531.v1 13 BER-L-002337-22 08/05/2022 4:38:02 PM Pg 14 of 14 Trans ID: LCV20222847730 CERTIFICATION PURSUANT TO R. 4:5-1 PLEASE TAKE NOTICE that pursuant to R. 4:5-1, it is hereby certified that the matter in controversy is not the subject of any other pending action. It is not known whether other parties should be joined at this time. MARSHALL DENNEHEY Attorneys for Defendants, Defendants, Nicholas Donato, Jr., Donato Financial Group, LLC and Royal Alliance Associates, Inc. /s/ Samuel E. Cohen BY:_______________________________ SAMUEL E. COHEN Dated: August 5, 2022 The within Answer to Plaintiff’s Complaint has been electronically filed with the Clerk of the Bergen County Superior Court, in Hackensack, New Jersey, within the time specified in the Court Rules, and any extensions thereto. MARSHALL DENNEHEY Attorneys for Defendants, Defendants, Nicholas Donato, Jr., Donato Financial Group, LLC and Royal Alliance Associates, Inc. /s/ Samuel E. Cohen BY:_______________________________ SAMUEL E. COHEN Dated: August 5, 2022 LEGAL/146493531.v1 14 BER-L-002337-22 BER-L-002337-22 08/05/2022 08/04/2022 4:38:02Pg PM1 ofPg2 1 Trans of 2 Trans ID: LCV20222836624 ID: LCV20222847730 BER-L-002337-22 BER-L-002337-22 08/05/2022 08/04/2022 4:38:02Pg PM2 ofPg2 2 Trans of 2 Trans ID: LCV20222836624 ID: LCV20222847730 BER-L-002337-22 08/05/2022 BER-L-002337-22 08/05/20224:38:02 4:36:10PM PM Pg 1 of 1 Trans TransID: ID:LCV20222847730 LCV20222847730 Civil Case Information Statement Case Details: BERGEN | Civil Part Docket# L-002337-22 Case Caption: SCHLEMM GERARD VS SCHLEMM GARY Case Type: OTHER INSURANCE CLAIM (INCLUDING Case Initiation Date: 04/27/2022 DECLARATORY JUDGMENT ACTIONS) Attorney Name: SAMUEL EDWARD COHEN Document Type: Answer W/CrossClaim W/Jury Demand Firm Name: MARSHALL DENNEHEY WARNER COLEMAN Jury Demand: YES - 6 JURORS & GOGGIN Is this a professional malpractice case? YES Address: 15000 MIDLANTIC DR STE 200 PO BOX 5429 Related cases pending: NO MT LAUREL NJ 08054 If yes, list docket numbers: Phone: 8564146000 Do you anticipate adding any parties (arising out of same Name of Party: DEFENDANT : DONATO, NICHOLAS transaction or occurrence)? NO Name of Defendant’s Primary Insurance Company Does this case involve claims related to COVID-19? NO (if known): Everest Are sexual abuse claims alleged by: GERARD SCHLEMM? NO THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION Do parties have a current, past, or recurrent relationship? YES If yes, is that relationship: Business Does the statute governing this case provide for payment of fees by the losing party? NO Use this space to alert the court to any special case characteristics that may warrant individual management or accelerated disposition: Do you or your client need any disability accommodations? NO If yes, please identify the requested accommodation: Will an interpreter be needed? NO If yes, for what language: Please check off each applicable category: Putative Class Action? NO Title 59? NO Consumer Fraud? NO I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(b) 08/05/2022 /s/ SAMUEL EDWARD COHEN Dated Signed