Preview
BER-L-002337-22 07/17/2023 10:19:02 AM Pglof2 Trans ID: LCV20232097382
JOEL & JOEL, LLP
Lawrence A. Joel, Esq.
Attorney ID #: 011301991
700 Kinderkamack Road, Suite 203
Oradell, NJ. 07649
(201) 599-0588
ljoel@joelandjoel.com
Attorneys for Defendant, Anna Marie Brody
Gerard Schlemm, Individually and as SUPERIOR COURT OF NEW JERSEY
Executor of the Estate of Gregory Schlemm LAW DIVISION - BERGEN COUNTY
Plaintiff(s), DOCKET NO.: BER-L-2337-22
vs. Civil Action
Nicholas Donato, Jr., Donato Financial NOTICE OF MOTION FOR
Group LLC, Royal Alliance Associates, SUMMARY JUDGMENT
Inc., Gary Schlemm, Judith Schlemm,
Heather Schlemm, Anna Marie Brody,
Prudential Insurance Company, Blackrock,
Merrill Lynch, Met Life Insurance, Jackson
National 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).
TO Edmund V. McCann, Esq.
Mark Matri, Esq.
McCann & Matti, Esqs.
238 Main Street
P.O. Box 399
Ridgefield Park, NJ 07660
Attorneys for Plaintiff, Gerard Schlemm
COUNSEL:
PLEASE TAKE NOTICE that the undersigned attorney for Defendant Anna Marie
Brody will apply to the Superior Court of New Jersey, Law Division, Bergen County, on August
18, 2023, at 9:00 a.m., or as soon thereafter as the matter can be heard, for an order granting
BER-L-002337-22 07/17/2023 10:19:02 AM Pg2of2 Trans ID: LCV20232097382
summary judgment in favor of Anna Marie Brody and against Plaintiff and his counsel together
with costs, attorney fees, compensatory and punitive damages
PLEASE TAKE FURTHER NOTICE that in support of this motion, Anna Marie Brody
will rely upon the accompanying Undisputed Facts, Certification of Counsel and Brief. This
motion is being made under R. 1:6-2 for ruling by the Court. A proposed form of Order is submitted
herewith.
JOEL & JOEL, LLP
Attorneys for Defendant,
Anna Marie Brody
BY.
DATED: July 14, 2023 LAWRENCEA. JORL, E
BER-L-002337-22 07/17/2023 10:19:02 AM Pglof2 Trans ID: LCV20232097382
JOEL & JOEL, LLP
Lawrence A. Joel, Esq.
Attorney ID #: 011301991
700 Kinderkamack Road, Suite 203
Oradell, NJ 07649
(201) 599-0588
ljoel@joelandjoel.com
Attorneys for Defendant, Anna Marie Brody
Gerard Schlemm, Individually and as SUPERIOR COURT OF NEW JERSEY
Executor of the Estate of Gregory Schlemm LAW DIVISION - BERGEN COUNTY
Plaintiff(s), DOCKET NO.: BER-L-2337-22
vs. Civil Action
Nicholas Donato, Jr., Donato Financial ORDER
Group LLC, Royal Alliance Associates,
Inc., Gary Schlemm, Judith Schlemm,
Heather Schlemm, Anna Marie Brody,
Prudential Insurance Company, Blackrock,
Merrill Lynch, Met Life Insurance, Jackson
National 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).
THIS MATTER, having been brought before the Court by the Law Offices of Joel & Joel,
LLP, attorneys for Defendant Anna Marie Brody on motion returnable August 18, 2023 for an
Order granting Summary Judgment in favor of Anna Marie Brody and against Plaintiff, and for
good cause shown;
IT IS on this day of , 2023, ORDERED that Anna Marie Brody’s
Motion for Summary Judgment is GRANTED.
IT IS FURTHER ORDERED that Summary Judgment is entered in favor of Anna Marie
Brody dismissing the case against her with prejudice and against Plaintiff Gerard Schlemm
BER-L-002337-22 07/17/2023 10:19:02 AM Pg2of2 Trans ID: LCV20232097382
individually and as Executor of the Estate of Gregory Schlemm.
IT IS FURTHER ORDERED that BlackRock IRA annuity and Prudential in the name of
Decedent Gerard Schlemm shall be immediately distributed to Anna Marie Brody in accordance
with the percentage entitled to Anna Marie Brody under said contract.
IT IS FURTHER ORDERED that Defendant Anna Marie Brody shall be awarded
attorney fees, costs, compensatory and punitive damages in connection with this matter and that
counsel for Anna Marie Brody shall submit certification in connection with this fee and cost award;
IT IS FURTHER ORDERED that a copy of this Order shall be served upon all counsel
of record via eCourts.
[ ] Opposed TSC.
[ ] Unopposed
BER-L-002337-22 07/17/2023 10:19:02 AM Pglof4 Trans ID: LCV20232097382
JOEL & JOEL, LLP
Lawrence A. Joel, Esq.
Attorney ID #: 011301991
700 Kinderkamack Road, Suite 203
Oradell, NJ 07649
(201) 599-0588
ljoel@joelandjoel.com
Attorneys for Defendant, Anna Marie Brody
Gerard Schlemm, Individually and as SUPERIOR COURT OF NEW JERSEY
Executor of the Estate of Gregory Schlemm LAW DIVISION - BERGEN COUNTY
Plaintiff(s), DOCKET NO.: BER-L-2337-22
vs. Civil Action
Nicholas Donato, Jr., Donato Financial UNDISPUTED FACTS
Group LLC, Royal Alliance Associates,
Inc., Gary Schlemm, Judith Schlemm,
Heather Schlemm, Anna Marie Brody,
Prudential Insurance Company, Blackrock,
Merrill Lynch, Met Life Insurance, Jackson
National 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).
Defendant Anna Marie Brody by and through her counsel, Lawrence A. Joel, Esq. of Joel
& Joel, LLP submits the following undisputed facts in support of her Motion for Summary
Judgment.
1 Gregory Schlemm, the Decedent, was diagnosed with cancer (Exhibit 1, Pl. Am.
Compl. § 20) and wished to get his affairs in order in late 2021. (Exhibit 2, Pl. Dep.
48:9-15).
2. Heather Schlemm, at Gregory’s behest, contacted the Schlemm family’s long-time
financial advisor Nicholas Donato Jr., Gregory’s brothers Gerard Schlemm and Gary
BER-L-002337-22 07/17/2023 10:19:02 AM Pg2of4 Trans ID: LCV20232097382
10. Gerard Schlemm was present at the meeting and heard Gregory’s intent to designate
Anna Marie Brody as a sixty percent beneficiary of the BlackRock IRA annuity.
(Exhibit 2, Pl. Dep. 41:6-7).
11 The previous beneficiaries on the BlackRock IRA annuity were Decedent’s parents —
Gerard never had an interest in the annuity. (Exhibit 2, Pl. Dep. 45:8-13).
12 Anna Marie Brody provided Prudential with the necessary paperwork to obtain the
proceeds of the BlackRock JRA annuity but was blocked by Gerard Schlemm who
initiated this litigation. (Exhibit 3, BlackRock IRA Beneficiary Claim Form).
13 Anna Marie Brody is listed as a defendant in the Complaint but there are no allegations
against her. (Exhibit 1, Pl. Am. Compl.).
14. Anna Marie Brody counterclaimed alleging a frivolous action, attorney fees and costs,
and demanded the return of her personal possessions which were on the properties
inherited by Gerard. (Exhibit 4, Def. Ans. and Countercl.).
15 Plaintiff's response to Defendant Brody’s Counterclaim was barely coherent and non-
responsive and counsel requested an appropriate response. (Exhibit 5, Pl. Ans. to
Countercl.).
16 Plaintiff Gerard Schlemm testified at his deposition that he asked his attorney to stop
this lawsuit “Plenty of times, yes. Why it keeps going on, I have no clue.” (Exhibit 2,
Pl. Dep. 23:2-3).
17. Plaintiff Gerard Schlemm also testified that the lawsuit should never have been started.
(Exhibit 2, Pl. Dep. 23:17-18).
18 Plaintiff Gerard Schlemm testified that he doesn’t know why Anna Marie Brody was
named as a defendant in the lawsuit. (Exhibit 2, Pl. Dep. 68:6-20).
BER-L-002337-22 07/17/2023 10:19:02 AM Pg3o0f4 Trans ID: LCV20232097382
Schlemm and Gary’s wife Judith Schlemm to arrange a family meeting at the home of
Gerard and Gregory at 9 Elizabeth Court, Little Ferry, New Jersey. (Exhibit 2, Pl. Dep.
48:9-15). Heather Schlemm is the daughter of Gary and Judith Schlemm.
The family meeting took place on October 26, 2021 at 9 Elizabeth Court, Little Ferry,
New Jersey. (Exhibit 2, Pl. Dep. 40:16-20).
Plaintiff Gerard Schlemm was present and participated in the meeting and
acknowledged that he had the opportunity to ask questions. (Exhibit 2, Pl. Dep. 41:22-
24).
Anna Marie Brody, Decedent Gregory’s long-time girlfriend was not present and did
not participate in the meeting. (Exhibit 2, Pl. Dep. 60:14-19).
Anna Marie Brody cared for Gregory during his illness including feeding him,
providing medications and bathing, etc. (Exhibit 2, Pl. Dep. 59:12-25, 60:1-4).
Gregory died on November 9, 2020. (Exhibit 1, Pl. Am, Compl. § 32).
Anna Marie Brody was notified for the first time by Nicholas Donato Jr. after Gregory’s
death that she was to receive a sixty percent interest in a BlackRock IRA annuity worth
approximately $190,000.00 at that time. (Exhibit 11, Def. Nicholas Donato Jr. Dep.
62:9-19)
Gary Schlemm, Judy Schlemm, Heather Schlemm and Nicholas Donato Jr. who were
present at the October 26, 2021 meeting testified at their depositions that Decedent
Gregory Schlemm stated that he wanted to provide for his long-time girlfriend Anna
Marie Brody in the disposition of his estate assets. (Exhibit 11, Def. Nicholas Donato
Jr. Dep. 34:25, 35:19) (Exhibit 12, Def. Heather Schlemm Dep. 48:3-10) (Exhibit 13,
Def. Gary Schlemm Dep. 47:11-15) (Exhibit 14, Def. Judith Schlemm Dep. 38:8-16).
BER-L-002337-22 07/17/2023 10:19:02 AM Pg4of4 Trans ID: LCV20232097382
19. Four other witnesses present at the October 26, 2021 meeting stated that Ms. Brody
had no involvement in the change of beneficiaries on the BlackRock IRA annuity.
(Exhibit 11, Def. Nicholas Donato Jr. Dep. 40:2-3) (Exhibit 12, Def. Heather Schlemm
Dep. 48:11-12) (Exhibit 13, Def. Gary Schlemm Dep. 58:19-25) (Exhibit 14, Def.
Judith Schlemm Dep. 53:14-16).
20 The BlackRock IRA annuity has decreased in value over the course of this litigation.
(Exhibit 6, BlackRock Account Statements).
21 Plaintiff Gerard Schlemm has refused to return Ms. Brody’s possessions which are on
the list attached as Exhibit 7.
22 Plaintiff Gerard Schlemm’s attorneys were served with frivolous action letters on June
8, 2022 and June 8, 2023 but Defendant received no response. (Exhibit 8, Frivolous
Action Letters).
23 A reminder was sent to Plaintiffs counsel on June 21, 2023 regarding the letters in
Paragraph 22. (Exhibit 9, Follow-up Letter).
24 This lawsuit has seventeen defendants including Heather Schlemm, Esq., her law firm
Peter N. Davis and Associates LLC and Nicholas Donato Jr. and his employer Donato
Financial LLC as well as Royal Alliance Associates Inc. (Exhibit 1, Pl. Am. Compl.).
25 The Plaintiff admitted that Defendant Brody was to receive a sixty percent share of the
BlackRock IRA annuity in his Estate Tax filing. (Exhibit 10, Notice of Assessment).
JOEL & JOEL, LLP
Attorneys for Defendant,
Anna Marie Brody
DATED: July | 4 , 2023
BY Al
LAWRENCE A. JOEL, RSQ.
BER-L-002337-22 07/17/2023 10:19:02 AM Pglof78 Trans ID: LCV20232097382
JOEL & JOEL, LLP
Lawrence A. Joel, Esq.
Attorney ID #: 011301991
700 Kinderkamack Road, Suite 203
Oradell, NJ 07649
(201) 599-0588
ljoel@joelandjoel.com
Attorneys for Defendant, Anna Marie Brody
Gerard Schlemm, Individually and as SUPERIOR COURT OF NEW JERSEY
Executor of the Estate of Gregory Schlemm LAW DIVISION - BERGEN COUNTY
Plaintiff(s), DOCKET NO.: BER-L-2337-22
vs. Civil Action
Nicholas Donato, Jr., Donato Financial BRIEF IN SUPPORT OF DEFENDANT
Group LLC, Royal Alliance Associates, ANNA MARIE BRODY’S MOTION
Inc., Gary Schlemm, Judith Schlemm, FOR SUMMARY JUDGMENT
Heather Schlemm, Anna Marie Brody,
Prudential Insurance Company, Blackrock,
Merrill Lynch, Met Life Insurance, Jackson
National 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).
STATEMENT OF FACTS
Anna Marie Brody is seeking Summary Judgment dismissing the Complaint of Gerard
Schlemm against her because she is entitled to judgment as a matter of law. New Jersey Court
Rule 4:46-2(c) provides that a judgment or an order shall be rendered forthwith if the pleadings
together with affidavits show that there is no genuine issue of material fact challenged and that the
moving party is entitled to judgment as a matter of law.
Decedent Gregory Schlemm was diagnosed with cancer and wished to get his affairs in
BER-L-002337-22 07/17/2023 10:19:02 AM Pg2of78 Trans ID: LCV20232097382
order. A meeting was arranged with the Schlemm family’s long-time financial advisor, as well as
his brother, Plaintiff Gerard Schlemm, and his brother Gary Schlemm, sister-in-law Judith
Schlemm and their daughter Heather Schlemm. The meeting was held October 26, 2021 at the
house shared by Gregory and Gerard Schlemm located at 9 Elizabeth Court, Little Ferry, New
Jersey. Brother Gary and his family lived at 1 Elizabeth Court, Little Ferry, New Jersey.
Anna Marie Brody did not attend and was not invited to attend the Schlemm family
meeting. At the meeting, Gregory stated, to all present including Plaintiff, that he wished to provide
for his long-time girlfriend whom everyone acknowledged had helped greatly during his illness
and was his constant companion for eight and a half years. Gregory instructed that Ms. Brody was
to receive a sixty percent interest in a BlackRock IRA annuity on which his deceased parents were
the beneficiaries. Gerard never had an interest in the annuity.
Ms. Brody was not aware of the testamentary gift until after Gregory’s death. She was
notified by Gregory Schlemm’s investment advisor Nicholas Donato Jr. When Ms. Brody
attempted to claim the annuity proceeds, she was blocked by this litigation. The BlackRock IRA
annuity has since decreased in value and Ms. Brody has incurred substantial legal fees as a result
of this litigation.
There are no allegations in the Complaint against Ms. Brody and Plaintiff testified in his
deposition that he didn’t know why Anna Marie Brody was named in the lawsuit. Defendant Brody
sent frivolous action letters to Plaintiff's counsel on June 8, 2022 and June 8, 2023 which were
never answered. She also sent a letter on January 16, 2023 to Gerard’s attorney to stop stalking her
and threatening a restraining order. (Exhibit 1). Ms. Brody also counterclaimed for the return of
her possessions which were mainly at the beach house she shared with Decedent in Toms River
and for costs and fees. Apparently, Gerard disposed of her personal possessions.
BER-L-002337-22 07/17/2023 10:19:02 AM Pg3o0f78 Trans ID: LCV20232097382
Plaintiff Gerard Schlemm acknowledged the worthlessness of his claims by stating that
this lawsuit never should have been started and he doesn’t know why Ms. Brody was named as
Defendant. Gerard Schlemm further testified that he had asked his attorney to stop the litigation
“Plenty of times, yes. Why it keeps going on. I have no clue”. (Exhibit 2, Pl. Dep. 23:2-3). Is this
Gerard’s lawsuit or his attorney’s?
LEGAL ARGUMENT
Point!
WHERE THERE IS NO GENUINE DISPUTE AS TO MATERIAL FACT,
THE MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED
A Motion for Summary Judgment should be granted where there is no genuine issue as to
any material fact in dispute, and the moving party is entitled to judgment as a matter of Jaw. R.
4:46-2. The purpose of summary judgment practice is to provide a prompt, business-like and
inexpensive means of disposing of a case. Judson v. Peoples Bank and Trust Corp. of Westfield,
17 N.J. Super. 67, 74 (1954). In Burton v. Sills, 99 N.J. Super. 459, aff'd. 53 NJ 86, appeal
dismissed, 394 U.S. 812, the Court stated: “it is well settled that summary judgment may be granted
where there are no palpable issues of fact so that final determination of the case is a matter of Jaw.”
99 N.J. Super. at $27-528.
The standard which the Courts must rely on was enunciated in Brill vs. The Guardian Life
Insurance Company of America, 142 N.J. 520, 523 (1995), wherein the Court stated:
That when deciding a Motion for Summary Judgment under Rule
4:46-2 the determination whether there exists a genuine Issue with
respect to a material fact challenged requires the motion judge to
consider whether the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party in
consideration of the applicable evidentiary standard, are sufficient
to permit a rational factfinder to resolve the alleged disputed issue
in favor of the non-moving party.
BER-L-002337-22 07/17/2023 10:19:02 AM Pg4of78 Trans ID: LCV20232097382
The Brill Court went on to say:
The judge’s function is not himself (or herself) to weigh the
evidence and determine the truth of the matter, but to determine
whether there is a genuine issue for trial...If there exists a single,
unavoidable resolution of the alleged disputed issue of fact, that
issue should be considered insufficient to constitute a “genuine”
issue of material fact for purposes of Rule 4:46-2, The import of
our holding is that when the evidence is so one-sided that one
party must prevail as a matter of law, the trial court should not
hesitate to grant summary judgment. [Id., at 540. (emphasis
added)]
While motions for Summary Judgment should, of course, be granted “sparingly”, United
Stations of New Jersey v. Kingsley, 99 N.J. Super. 574, 581 (Chan. Div. 1968), aff'd. 54 N.J. 150
(1969), and with “extreme caution”, Ruvolo v. American Casualty Co., 39 N.J. 490, 499 (1963),
nevertheless, where the facts as presented by the moving party establish an entitlement to
judgment, the motion should be granted. The judgment or order sought should be rendered
forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together
with affidavits, if any, show that there is no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment or order as a matter of law. R. 4:46-2. The summary
judgment procedure pierces the allegations of the pleadings to show that the facts are otherwise
than as they are claimed by the non-moving party. Rankin v. Sowinski, 119 N.J. Super. 393, 400
(App. Div. 1972); Sokolay v. Edlin, 65 N.J. Super. 112, 121 (App. Div. 1961).
The Brill Court further indicated that where the party opposing the summary judgment
points only to disputed issues of fact that are “of an insubstantial nature, proper disposition is
summary judgment.” Brill at 529. Therefore, bare conclusions and pleading, without substantial
factual support and tendered affidavits will not and should not defeat a meritorious application for
summary judgment. This standard is akin to the standard necessary to rule ona Motion for Directed
Verdict. Id. At 536.
BER-L-002337-22 07/17/2023 10:19:02 AM Pg5of78 Trans ID: LCV20232097382
The Brill ruling encourages Courts not to refrain from granting summary judgment when
the proper circumstances present themselves. Id. at 541.
Point II
THERE ARE NO CLAIMS AGAINST DEFENDANT BRODY
AND PLAINTIFF ADMITS SHE WAS NOT INVOLVED
Answer to Interrogatory No. 18 by Plaintiff Gerard Schlemm states:
“The Plaintiff has no information regarding Defendant Anna Marie
Brody’s involvement in the subject matter”
(Exhibit 3)
Plaintiff also testified at his deposition that he didn’t file a lawsuit against Anna Marie
Brody and that she had no involvement in Gregory’s Change of Beneficiary Forms. (Exhibit 2. PI.
Dep. 69:4-6, 70:5-8) Gerard also stated that he didn’t know why Defendant Brody was involved
in this lawsuit. Indeed, Plaintiff admits in his Estate Tax filing that Ms. Brody was to receive sixty
percent of a BlackRock IRA annuity. (Exhibit 4, Inheritance Tax Return). Plaintiff also sued
BlackRock to make sure Ms. Brody did not receive the annuity.
Plaintiff Gerard Schlemm testified that he asked his attorney “plenty of times” to stop the
lawsuit and “Why it keeps going on, I have no idea”.
Here we have a “scatter shot” Complaint against seventeen defendants with no claims
against Anna Marie Brody. The Plaintiff admits she had no involvement and the Plaintiff states he
attempted to drop the case to no avail. Ms. Brody is backed by the testimony of the other
defendants, Nicholas Donato Jr, Gary Schlemm, Judith Schlemm and Heather Schlemm.
Apparently. His attorney has not gotten the message.
The facts are not in dispute and the moving party is entitled to judgment as a matter of law
R. 4:16-2. As noted previously, the Brill ruling encourages Courts not to refrain from granting
BER-L-002337-22 07/17/2023 10:19:02 AM Pg6of78 Trans ID: LCV20232097382
summary judgment when the proper circumstances present themselves. Id at 541. Those
circumstances are present here and Plaintiff admits it.
Point LI
PUNITIVE DAMAGES AND ATTORNEY FEES AND COSTS
SHOULD BE AWARDED
Defendant Anna Marie Brody served Plaintiffs counsel with two frivolous action letters
on June 8, 2022 and June 8, 2023 (Exhibit 5) requesting inter alia that the litigation be dropped
and compensatory damages be paid. No response was ever received to either letter despite a
reminder on June 22, 2023. Further it was necessary for counsel to demand that Plaintiff stop
stalking Ms. Brody which eventually forced her to relocate. (Exhibit 1).
The Defendant, Ms. Brody has been forced to incur considerable legal expense
unnecessarily particularly when the Plaintiff admits there was no case against her from the start.
There has also been a diminution in the value of the BlackRock [RA annuity as this litigation
dragged on and hardship on Ms. Brody as she attempted to relocate out-of-state with her employer
to avoid Gerard Schlemm. Compensatory damages for these wrongs is a condition precedential to
the award of punitive damages. N.J.S.A, 2A:15-5.13(c), Donelson v. Dupont Chambers Works
412 NJ. Super. 17, 46 (App. Div. 2010). Defendant is requesting punitive damages in this
egregious case.
The only motive for including Ms. Brody in the litigation appears to be spite and spite is
not grounds for a lawsuit. Gerard and his deceased brother Gregory lived together as bachelors in
their deceased parent’s home for years. Then Anna Marie Brody came along and began dating
Gregory. The relationship which lasted years angered Gerard and in his deposition he called her a
“bitch”. Ms. Brody was a witness to Gregory’s Healthcare Proxy and listed to receive a copy
(Exhibit 6). She cared for Gregory in his illness and was the one bright spot in his life. Gregory
BER-L-002337-22 07/17/2023 10:19:02 AM Pg7of78 Trans ID: LCV20232097382
had intended to remake his 2005 Will which left substantial assets to Gerard but never got around
to it. Gerard ended up extremely wealthy in assets and income including retirement benefits from
Pepsi Cola and the Little Ferry DPW. The gross estate was worth $2,015,072.00. (Exhibit 4).
Notably. Ms. Brody is listed on the Estate Tax return filed by Plaintiff as receiving a sixty percent
interest in the BlackRock IRA annuity.
The Punitive Damages Act N.J.S.A. 2A:15-5.9 to 2A-5.17 requires that a party acted
maliciously or with willful and wanton disregard of the rights of others. Pavlova _v. Mint Mgmt.
Corp., 375 N.J. Super. 397, 403-407 (App. Div.) cert. den. 184 N.J. 211 (2005). Here, Plaintiff
Gerard Schlemm, who owns two homes and a rental property, and has seven figures in assets,
egregiously sued his deceased brother’s girlfriend when he knew she had nothing to do with the
case. He admitted it in his testimony. The only thing he had against her is that she took his brother
away and that made her a “bitch” but certainly not a defendant. Furthermore, in estate contests
Court rule also allows for fee awards R. 4:42-9.
Plaintiff brought a frivolous suit with no basis which cost the Defendant substantial legal
fees. The Defendant should be awarded damages for the losses in the annuity and loss of her
possessions, plus attorney fees, costs and punitive damages against the Plaintiff individually and
as Executor and his attorney. The suit against her should be dismissed with prejudice.
JOEL & JOEL, LLP
Attorneys for Defendant,
Anna Marie Brody
BY. Niet YerN
DATED: July 4 , 2023 WRENCE A
tO . ESQ
BER-L-002337-22 07/17/2023 10:19:02 AM Pg 8of78 Trans ID: LCV20232097382
EXHIBIT 1
BER-L-002337-22 07/17/2023 10:19:02 AM Pg9of78 Trans ID: LCV20232097382
Joel & Joel, LLP
Counsellors at Law
700 Kinderkamack Road, Suite 203
Oradell, New Jersey 07649
(201) 599-0588
Facsimile (201) 599-0179
RICHARD A. JOELO www joelandjoel. com NEW YORK OFFICE
LAWRENCE A. JOELOO 301 HIGHMOUNT TERRACE
RICHARDA. JOEL, JR. 0 UPPER NYACK, NY 10960.
ONJ,NY & DC BARS PLEASE MAIL ALL CORRESPOND! 0 OUR NJ ADDRESS:
ONJ, NY & PA BARS
CELA - Cenitied as an.
Elder Law Attomey by
the A.B.A, approved
National Elder Law
Foundation
January 16, 2023
Via Email
Edmund V. McCann, Esq.
McCann & McCann, Esqs.
238 Main Street
Ridgefield Park, NJ 07660
RE: Schlemm, et seq. vy. Donato Jr., et seq.
Docket No. BER-L-002337-22
Dear Mr. McCann:
As discussed, it has been brought to our attention that Gerard Schlemm has been harassing
our client Anna Brody with continual phone calls and texts as well as showing up
unexpectedly at her residence. He has even spoken with her landlord in efforts to contact
her. This harassment is improper under any circumstances and is definitely inappropriate
in the context of the present litigation.
This letter shall serve as a demand to your client to cease such activity. If necessary, we
shall apply for a restraining order against your client if this conduct persists. Please have
Gerard Schlemm cease and desist his threatening behavior. Thank you.
Very truly yours,
Lawrence A. Joel
LAJ/mna
ce: Michael P. Luongo, Esq. (via email)
Christy Ramunno, Esq. (via email)
Jenee K. Cicearelli, Esq. (via email)
Samuel E. Cohen, Esq. (via email)
Edward A. Zipf, Esq. (via email)
Client (via email)
BER-L-002337-22 07/17/2023 10:19:02 AM Pg10of78 Trans ID: LCV20232097382
EXHIBIT 2
BER-L-002337-22 07/17/2023 10:19:02 AM Pg1lof78 Trans ID: LCV20232097382
GERARD SCHLEMM May 15, 2023
SCHLEMM vs DONATO 14
oe — a env
Gav? Page 3
SUPERIOR COURT OF NEW JERSEY ba APPEARANCES:
LAW DIVISION: BERGEN COUNTY | 2 McCANN & MATRI, ESOS,
CKET NO. BER-L-2397-22 238 Man Strest
GERARD SCHLEMM, INDIVIDUALLY, Riggaliold Park, Now Jersey 07660
ANO AS EXECUTOR OF THE ESTATE 207 440 4680,
OF GREGORY SCHLEMM. BY. MARICMATRL ESQ.
Piainttf(6) Attarnoys for Paint
NICHOLAS CONAI sR. GONATO.
PMANEIA. GROUP. LLC ROYAL
ALLIANCE ASSOCIATES, se MARSHALL, DENREHEY. WARNER COLEMAN
15002 Wi i¢ Drive, Suite 209
Mount Laurel, New Jersey 08054
& GOGGIN, ESOS
Expy Sone ehaM Torn SecLeMM, 7 856,773
HEATHER SCKLEMM, ANNA MARIE BY. SAMUEL E COHEN, ESO
BRODY, PRUDENTIAL INSURANCE
10 CIVIL ACTION COMPANY, BLACKROCK, AY: JERBIY J, ZACHARIAS, ESQ.
MERRILL LYNCH, MET LIFE INSURANCE, Atom: for Beferdants Nicholas Sonata,
"4 JACKSON NATIONAL LIFE INS. JANUS Donate Financiat Group, LLC. Rayal Atiance
AND HENDERSON, MORGAN STANLEY, 10 ‘Associates. Inc.
42 STANDARD INSURANCE, AND PETER 4 ‘OEL & JOEL. LLP
N, DAVIS ANO ASSOCIATES. LLC, 790 Kinderkamack Road - Suite 209
a GOMPANY {A through L) THESE NAMES: 120 New Jersey 0764
BEING FICTITIOUS, I 201.598,
Detendants) 58 BY: LAWRENCEA, JOEL, E52
8 14 BY: RICHARD JOEL, SR, ESA
16 Abomeys for Duferdart Arna Marie Brody
OOM VIDEOCONFEREN GOLDBERG SEGALLA, LLP
7 DEPOSITION UNDER ORAL EXAMINATION OF
GERARD SCHLEMM ie 1750 Market Stragt » Suits 1448
Ridgehetd Perk, New Jersey hdecsptis, Permayvara 19103
May 18, 202: Ey WIGHREL >. LUONGO, ESO
19
‘a Atornoys
a ICCAREL.for Deiendant Peter N. Davis & Associates
19 LAW, PC
REPORTED BY; KERRY ANN GIGAS, CGR 230 New Road
a 20 Building A OOM
a ‘atsippany. nw dersey O7054
a ia 975.737 4366
FAQUIRE DEPOSITION SOLUTIONS ay; JENEEK. CICCARELL|, ES
a 20 COURT REPORTERS [22 ‘Afiorneys for Celendant Gary Schiemm, sucith Schlemm
3 Won Aven South. Suite 446 ‘ang Heather Schism
ae elm, New wey OB8GD it
{732} 283-1 660 24
28 8
Page 2 Page 4
TRANSCRIPT of na Zeom deposition of thes i APPEARANCES: (Continued)
WWi98. called for Ora! Examinationin Phe C’ARCAMBAL, OUSLEY & CUYLER BURK, LLO
above-captloned matter, saig cegesition deing taken Four Contury Drive - Sute 250
pursued ty Superior Court Rules of Practice and 3 Parsippany, New Jersey 07054
973.734.9200
Proceduze by and before KERRY ANN CIGAS, a Notary
BY. CHRISTY RAMUNNO, EQ,
Puplc and Certified Cour Reporter of the State ot Attorneys fer idant Standard Insucanee Company
New Jersey, at ihe Sifces of Met NH & WATRI ESOS, . 3 and Pr.dentias Insurance Gompany
238 Male tree, Ridgefield Para, New Jersey,
Mor fay, May 15, 2023, cominencing at agproximalety
40 49:08 in the forenoon, 18
"
” 40
4
13
1“ 2
15 4
56 16
” 6
18
1S 8
2 9
a
22 im
22
23 1B
24 24
228
a ae L|:
800.211.DEPO (3376)
EsquireSolutions.com
BER-L-002337-22 07/17/2023 10:19:02 AM Pg12o0f78 Trans ID: LCV20232097382
GERARD SCHLEMM May 15, 2023
SCHLEMM vs DONATO
enn
Page 5-8
Bage 7
NDEX DEPOSITION SUPPORT 'NDEX
WITNESSSS NAM PAGE NG. Direction to Witness Ne! 0 Answer
GERARD SCHLEMM
Direct by Cohen Page Line Page Lins Page Line
Grossby Mr. L. Joe
Cross by Ms Cicearall R . NONE
Cruse by Mi. Luonge: wy
Request for Production of Documents
EXHIBITS Page Line Page Line Page Ling
10 EXHIBIT NO, DESCRIPTION PAGE NO 10 . NONE
“4 Seiemm Medica! Records ar
12 Senterm-2 Healthcare Power of 4
Attesney 38 # ‘Stipulations
19
Schtomm-a Emails, 10/2227 ar a Page Line Page tire Page Line
“4 we
Senlemaré BlackRock Change of 15 + NONE .
5 Beneficiary Fosre na
6 Schlamoi Letier, 11/28/25, trom, 16
Ne MeCann 5! a Question Markes!
7
Schlemn-& Latter, 1/5022, fo 6 Pege Line Page Lire Page Line
18 hay. MeCana 8Z 8
49 piemme PruSecire Annuity 633 .
20 fenime& FlaxCuard Indexed 2 NONE
Variabie Annuity 85 24
a 22
Schlemn-§ Loner, £4022,
from Dr Pecort 5? 24
2 Schlemmid Compisint 06 26
2 25
a
Page 8
HIBITS Continued) GERARD SCHLEMM,
9 Elizabeth Court, Little Ferry, New Jersey,
EXHIBIT NO, IPTION Pag
calied as a witness, having been first duly
Seblemnt+ Last Wit and Testainent 36 sworn according to law, testifies as follows:
DIRECT EXAMINATION BY MR. COHEN:
Schlemin12 Plaintif's Answers and Q — Good morning,Mr. Schlamm. My nama is
Onjactions to Ds fendant
Peter N. Davis and Associates, Sam Cohen. We haven't formally met, put lam
LLC's First Set of representing defendants in a lawsuit that you
interrogatories: 129 brought, Nicholas Donato, Jr., Donato Finenciai, LLC
Schlomm-14 Fax Cover Sheet, 191022, 10 and Royal Alliance Associates, Inc. I wantto give
ith Attaches 133 1 you a few instructions before we stan. We've
Senisenme1d Fen Document 1.6. 42 convened today electronically to take your
Emails anc Atachment 137 13 deposition in this case. We hope this goes
w
" 14 smoothly.
1B 16 The court reporter is going to take
1 16 down, you know, my questions and your answers. We:
“
48 7 ask thal you keep your voice up duritg the
6 16 deposition. If you listen to my question and than
19 answer the question. Wait until 'm finished asking
18 20 the question before you start. Let's not talk over
49
B 24 each other so we have a clean record.
24 22 I want you to answer the questions that
2223 23 you know. if you want me to repeat e question,
2 24 please feei free to ask me. Feel free to aiso ask
a4
28 25 if + there are many attorneys asking questions
a a
800.211.DEPO (3376)
EsquireSolutions.com
BER-L-002337-22 07/17/2023 10:19:02 AM Pg13o0f78 Trans ID: LCV20232097382
GERARD SCHLEMM May 15, 2023
SCHLEMM vs DONATO 9-12
- ae
ofage S|) page TT
today, if you need a break al any time, just leit us id Q A mechanic where?
that you need a break and you can take one. 2 A | don't remember. So many years ago.
If ycu don't remember the answer to a 3 Q ~~ Whatis the first job that you remember
question, tell us that you don't remember. We're 4 after high school?
not here to ask you to guess or speculate 5 A Auto mechanic.
And, finally, | like lo ask, are you on 16 Q = Auto mechanic. Okay. When did you
any medication that would prevent you from answering 7 begin working for Pepsi?
our questions here today? i 38
Um, maybe five years after that.
A No, 19 So approximately 19907
10 What did you do in preparation for your 10 Around there.
41 testimony today? mn How long did you werk for Pepsi?
12 A Just get up and came here. 12 Thirty-four years.
13 Q Did you review any cecuments in advance | 13 Are you still working fer Pepsi?
14 of the deposition today in preparation? 14 No,
18 Some, yeah 15 When did you slop working?
16 What documents did you review? 116 Ten years ago.
17 Juts went over things. 17 Have you been employed in the last ten
18 What things in particular? 118 years?
19 Like what happened that night. 19 A Yes.
20 What did you review in documents in £20 Q So what have you been doing for the las|
21 preparation for today? a ten years?
22 A No. 22 A | work for with the town.
23 a No documents? 23 Qa Whal town?
24 A No. 24 Little Ferry.
25 Q Okay. Mr. Schiemm, have you ever 25 What do you de for the town?
Page 16 : Page 12
testified before? Maintenance.
A No. What kind of maintenance?
Q Have you ever been the plaintiff or a Like cleaning, driving seniors around
lefendant in a civil lawsuit before?
Preview
BER-L-002337-22 07/17/2023 10:19:02 AM Pglof2 Trans ID: LCV20232097382 JOEL & JOEL, LLP Lawrence A. Joel, Esq. Attorney ID #: 011301991 700 Kinderkamack Road, Suite 203 Oradell, NJ. 07649 (201) 599-0588 ljoel@joelandjoel.com Attorneys for Defendant, Anna Marie Brody Gerard Schlemm, Individually and as SUPERIOR COURT OF NEW JERSEY Executor of the Estate of Gregory Schlemm LAW DIVISION - BERGEN COUNTY Plaintiff(s), DOCKET NO.: BER-L-2337-22 vs. Civil Action Nicholas Donato, Jr., Donato Financial NOTICE OF MOTION FOR Group LLC, Royal Alliance Associates, SUMMARY JUDGMENT Inc., Gary Schlemm, Judith Schlemm, Heather Schlemm, Anna Marie Brody, Prudential Insurance Company, Blackrock, Merrill Lynch, Met Life Insurance, Jackson National 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). TO Edmund V. McCann, Esq. Mark Matri, Esq. McCann & Matti, Esqs. 238 Main Street P.O. Box 399 Ridgefield Park, NJ 07660 Attorneys for Plaintiff, Gerard Schlemm COUNSEL: PLEASE TAKE NOTICE that the undersigned attorney for Defendant Anna Marie Brody will apply to the Superior Court of New Jersey, Law Division, Bergen County, on August 18, 2023, at 9:00 a.m., or as soon thereafter as the matter can be heard, for an order granting BER-L-002337-22 07/17/2023 10:19:02 AM Pg2of2 Trans ID: LCV20232097382 summary judgment in favor of Anna Marie Brody and against Plaintiff and his counsel together with costs, attorney fees, compensatory and punitive damages PLEASE TAKE FURTHER NOTICE that in support of this motion, Anna Marie Brody will rely upon the accompanying Undisputed Facts, Certification of Counsel and Brief. This motion is being made under R. 1:6-2 for ruling by the Court. A proposed form of Order is submitted herewith. JOEL & JOEL, LLP Attorneys for Defendant, Anna Marie Brody BY. DATED: July 14, 2023 LAWRENCEA. JORL, E BER-L-002337-22 07/17/2023 10:19:02 AM Pglof2 Trans ID: LCV20232097382 JOEL & JOEL, LLP Lawrence A. Joel, Esq. Attorney ID #: 011301991 700 Kinderkamack Road, Suite 203 Oradell, NJ 07649 (201) 599-0588 ljoel@joelandjoel.com Attorneys for Defendant, Anna Marie Brody Gerard Schlemm, Individually and as SUPERIOR COURT OF NEW JERSEY Executor of the Estate of Gregory Schlemm LAW DIVISION - BERGEN COUNTY Plaintiff(s), DOCKET NO.: BER-L-2337-22 vs. Civil Action Nicholas Donato, Jr., Donato Financial ORDER Group LLC, Royal Alliance Associates, Inc., Gary Schlemm, Judith Schlemm, Heather Schlemm, Anna Marie Brody, Prudential Insurance Company, Blackrock, Merrill Lynch, Met Life Insurance, Jackson National 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). THIS MATTER, having been brought before the Court by the Law Offices of Joel & Joel, LLP, attorneys for Defendant Anna Marie Brody on motion returnable August 18, 2023 for an Order granting Summary Judgment in favor of Anna Marie Brody and against Plaintiff, and for good cause shown; IT IS on this day of , 2023, ORDERED that Anna Marie Brody’s Motion for Summary Judgment is GRANTED. IT IS FURTHER ORDERED that Summary Judgment is entered in favor of Anna Marie Brody dismissing the case against her with prejudice and against Plaintiff Gerard Schlemm BER-L-002337-22 07/17/2023 10:19:02 AM Pg2of2 Trans ID: LCV20232097382 individually and as Executor of the Estate of Gregory Schlemm. IT IS FURTHER ORDERED that BlackRock IRA annuity and Prudential in the name of Decedent Gerard Schlemm shall be immediately distributed to Anna Marie Brody in accordance with the percentage entitled to Anna Marie Brody under said contract. IT IS FURTHER ORDERED that Defendant Anna Marie Brody shall be awarded attorney fees, costs, compensatory and punitive damages in connection with this matter and that counsel for Anna Marie Brody shall submit certification in connection with this fee and cost award; IT IS FURTHER ORDERED that a copy of this Order shall be served upon all counsel of record via eCourts. [ ] Opposed TSC. [ ] Unopposed BER-L-002337-22 07/17/2023 10:19:02 AM Pglof4 Trans ID: LCV20232097382 JOEL & JOEL, LLP Lawrence A. Joel, Esq. Attorney ID #: 011301991 700 Kinderkamack Road, Suite 203 Oradell, NJ 07649 (201) 599-0588 ljoel@joelandjoel.com Attorneys for Defendant, Anna Marie Brody Gerard Schlemm, Individually and as SUPERIOR COURT OF NEW JERSEY Executor of the Estate of Gregory Schlemm LAW DIVISION - BERGEN COUNTY Plaintiff(s), DOCKET NO.: BER-L-2337-22 vs. Civil Action Nicholas Donato, Jr., Donato Financial UNDISPUTED FACTS Group LLC, Royal Alliance Associates, Inc., Gary Schlemm, Judith Schlemm, Heather Schlemm, Anna Marie Brody, Prudential Insurance Company, Blackrock, Merrill Lynch, Met Life Insurance, Jackson National 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). Defendant Anna Marie Brody by and through her counsel, Lawrence A. Joel, Esq. of Joel & Joel, LLP submits the following undisputed facts in support of her Motion for Summary Judgment. 1 Gregory Schlemm, the Decedent, was diagnosed with cancer (Exhibit 1, Pl. Am. Compl. § 20) and wished to get his affairs in order in late 2021. (Exhibit 2, Pl. Dep. 48:9-15). 2. Heather Schlemm, at Gregory’s behest, contacted the Schlemm family’s long-time financial advisor Nicholas Donato Jr., Gregory’s brothers Gerard Schlemm and Gary BER-L-002337-22 07/17/2023 10:19:02 AM Pg2of4 Trans ID: LCV20232097382 10. Gerard Schlemm was present at the meeting and heard Gregory’s intent to designate Anna Marie Brody as a sixty percent beneficiary of the BlackRock IRA annuity. (Exhibit 2, Pl. Dep. 41:6-7). 11 The previous beneficiaries on the BlackRock IRA annuity were Decedent’s parents — Gerard never had an interest in the annuity. (Exhibit 2, Pl. Dep. 45:8-13). 12 Anna Marie Brody provided Prudential with the necessary paperwork to obtain the proceeds of the BlackRock JRA annuity but was blocked by Gerard Schlemm who initiated this litigation. (Exhibit 3, BlackRock IRA Beneficiary Claim Form). 13 Anna Marie Brody is listed as a defendant in the Complaint but there are no allegations against her. (Exhibit 1, Pl. Am. Compl.). 14. Anna Marie Brody counterclaimed alleging a frivolous action, attorney fees and costs, and demanded the return of her personal possessions which were on the properties inherited by Gerard. (Exhibit 4, Def. Ans. and Countercl.). 15 Plaintiff's response to Defendant Brody’s Counterclaim was barely coherent and non- responsive and counsel requested an appropriate response. (Exhibit 5, Pl. Ans. to Countercl.). 16 Plaintiff Gerard Schlemm testified at his deposition that he asked his attorney to stop this lawsuit “Plenty of times, yes. Why it keeps going on, I have no clue.” (Exhibit 2, Pl. Dep. 23:2-3). 17. Plaintiff Gerard Schlemm also testified that the lawsuit should never have been started. (Exhibit 2, Pl. Dep. 23:17-18). 18 Plaintiff Gerard Schlemm testified that he doesn’t know why Anna Marie Brody was named as a defendant in the lawsuit. (Exhibit 2, Pl. Dep. 68:6-20). BER-L-002337-22 07/17/2023 10:19:02 AM Pg3o0f4 Trans ID: LCV20232097382 Schlemm and Gary’s wife Judith Schlemm to arrange a family meeting at the home of Gerard and Gregory at 9 Elizabeth Court, Little Ferry, New Jersey. (Exhibit 2, Pl. Dep. 48:9-15). Heather Schlemm is the daughter of Gary and Judith Schlemm. The family meeting took place on October 26, 2021 at 9 Elizabeth Court, Little Ferry, New Jersey. (Exhibit 2, Pl. Dep. 40:16-20). Plaintiff Gerard Schlemm was present and participated in the meeting and acknowledged that he had the opportunity to ask questions. (Exhibit 2, Pl. Dep. 41:22- 24). Anna Marie Brody, Decedent Gregory’s long-time girlfriend was not present and did not participate in the meeting. (Exhibit 2, Pl. Dep. 60:14-19). Anna Marie Brody cared for Gregory during his illness including feeding him, providing medications and bathing, etc. (Exhibit 2, Pl. Dep. 59:12-25, 60:1-4). Gregory died on November 9, 2020. (Exhibit 1, Pl. Am, Compl. § 32). Anna Marie Brody was notified for the first time by Nicholas Donato Jr. after Gregory’s death that she was to receive a sixty percent interest in a BlackRock IRA annuity worth approximately $190,000.00 at that time. (Exhibit 11, Def. Nicholas Donato Jr. Dep. 62:9-19) Gary Schlemm, Judy Schlemm, Heather Schlemm and Nicholas Donato Jr. who were present at the October 26, 2021 meeting testified at their depositions that Decedent Gregory Schlemm stated that he wanted to provide for his long-time girlfriend Anna Marie Brody in the disposition of his estate assets. (Exhibit 11, Def. Nicholas Donato Jr. Dep. 34:25, 35:19) (Exhibit 12, Def. Heather Schlemm Dep. 48:3-10) (Exhibit 13, Def. Gary Schlemm Dep. 47:11-15) (Exhibit 14, Def. Judith Schlemm Dep. 38:8-16). BER-L-002337-22 07/17/2023 10:19:02 AM Pg4of4 Trans ID: LCV20232097382 19. Four other witnesses present at the October 26, 2021 meeting stated that Ms. Brody had no involvement in the change of beneficiaries on the BlackRock IRA annuity. (Exhibit 11, Def. Nicholas Donato Jr. Dep. 40:2-3) (Exhibit 12, Def. Heather Schlemm Dep. 48:11-12) (Exhibit 13, Def. Gary Schlemm Dep. 58:19-25) (Exhibit 14, Def. Judith Schlemm Dep. 53:14-16). 20 The BlackRock IRA annuity has decreased in value over the course of this litigation. (Exhibit 6, BlackRock Account Statements). 21 Plaintiff Gerard Schlemm has refused to return Ms. Brody’s possessions which are on the list attached as Exhibit 7. 22 Plaintiff Gerard Schlemm’s attorneys were served with frivolous action letters on June 8, 2022 and June 8, 2023 but Defendant received no response. (Exhibit 8, Frivolous Action Letters). 23 A reminder was sent to Plaintiffs counsel on June 21, 2023 regarding the letters in Paragraph 22. (Exhibit 9, Follow-up Letter). 24 This lawsuit has seventeen defendants including Heather Schlemm, Esq., her law firm Peter N. Davis and Associates LLC and Nicholas Donato Jr. and his employer Donato Financial LLC as well as Royal Alliance Associates Inc. (Exhibit 1, Pl. Am. Compl.). 25 The Plaintiff admitted that Defendant Brody was to receive a sixty percent share of the BlackRock IRA annuity in his Estate Tax filing. (Exhibit 10, Notice of Assessment). JOEL & JOEL, LLP Attorneys for Defendant, Anna Marie Brody DATED: July | 4 , 2023 BY Al LAWRENCE A. JOEL, RSQ. BER-L-002337-22 07/17/2023 10:19:02 AM Pglof78 Trans ID: LCV20232097382 JOEL & JOEL, LLP Lawrence A. Joel, Esq. Attorney ID #: 011301991 700 Kinderkamack Road, Suite 203 Oradell, NJ 07649 (201) 599-0588 ljoel@joelandjoel.com Attorneys for Defendant, Anna Marie Brody Gerard Schlemm, Individually and as SUPERIOR COURT OF NEW JERSEY Executor of the Estate of Gregory Schlemm LAW DIVISION - BERGEN COUNTY Plaintiff(s), DOCKET NO.: BER-L-2337-22 vs. Civil Action Nicholas Donato, Jr., Donato Financial BRIEF IN SUPPORT OF DEFENDANT Group LLC, Royal Alliance Associates, ANNA MARIE BRODY’S MOTION Inc., Gary Schlemm, Judith Schlemm, FOR SUMMARY JUDGMENT Heather Schlemm, Anna Marie Brody, Prudential Insurance Company, Blackrock, Merrill Lynch, Met Life Insurance, Jackson National 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). STATEMENT OF FACTS Anna Marie Brody is seeking Summary Judgment dismissing the Complaint of Gerard Schlemm against her because she is entitled to judgment as a matter of law. New Jersey Court Rule 4:46-2(c) provides that a judgment or an order shall be rendered forthwith if the pleadings together with affidavits show that there is no genuine issue of material fact challenged and that the moving party is entitled to judgment as a matter of law. Decedent Gregory Schlemm was diagnosed with cancer and wished to get his affairs in BER-L-002337-22 07/17/2023 10:19:02 AM Pg2of78 Trans ID: LCV20232097382 order. A meeting was arranged with the Schlemm family’s long-time financial advisor, as well as his brother, Plaintiff Gerard Schlemm, and his brother Gary Schlemm, sister-in-law Judith Schlemm and their daughter Heather Schlemm. The meeting was held October 26, 2021 at the house shared by Gregory and Gerard Schlemm located at 9 Elizabeth Court, Little Ferry, New Jersey. Brother Gary and his family lived at 1 Elizabeth Court, Little Ferry, New Jersey. Anna Marie Brody did not attend and was not invited to attend the Schlemm family meeting. At the meeting, Gregory stated, to all present including Plaintiff, that he wished to provide for his long-time girlfriend whom everyone acknowledged had helped greatly during his illness and was his constant companion for eight and a half years. Gregory instructed that Ms. Brody was to receive a sixty percent interest in a BlackRock IRA annuity on which his deceased parents were the beneficiaries. Gerard never had an interest in the annuity. Ms. Brody was not aware of the testamentary gift until after Gregory’s death. She was notified by Gregory Schlemm’s investment advisor Nicholas Donato Jr. When Ms. Brody attempted to claim the annuity proceeds, she was blocked by this litigation. The BlackRock IRA annuity has since decreased in value and Ms. Brody has incurred substantial legal fees as a result of this litigation. There are no allegations in the Complaint against Ms. Brody and Plaintiff testified in his deposition that he didn’t know why Anna Marie Brody was named in the lawsuit. Defendant Brody sent frivolous action letters to Plaintiff's counsel on June 8, 2022 and June 8, 2023 which were never answered. She also sent a letter on January 16, 2023 to Gerard’s attorney to stop stalking her and threatening a restraining order. (Exhibit 1). Ms. Brody also counterclaimed for the return of her possessions which were mainly at the beach house she shared with Decedent in Toms River and for costs and fees. Apparently, Gerard disposed of her personal possessions. BER-L-002337-22 07/17/2023 10:19:02 AM Pg3o0f78 Trans ID: LCV20232097382 Plaintiff Gerard Schlemm acknowledged the worthlessness of his claims by stating that this lawsuit never should have been started and he doesn’t know why Ms. Brody was named as Defendant. Gerard Schlemm further testified that he had asked his attorney to stop the litigation “Plenty of times, yes. Why it keeps going on. I have no clue”. (Exhibit 2, Pl. Dep. 23:2-3). Is this Gerard’s lawsuit or his attorney’s? LEGAL ARGUMENT Point! WHERE THERE IS NO GENUINE DISPUTE AS TO MATERIAL FACT, THE MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED A Motion for Summary Judgment should be granted where there is no genuine issue as to any material fact in dispute, and the moving party is entitled to judgment as a matter of Jaw. R. 4:46-2. The purpose of summary judgment practice is to provide a prompt, business-like and inexpensive means of disposing of a case. Judson v. Peoples Bank and Trust Corp. of Westfield, 17 N.J. Super. 67, 74 (1954). In Burton v. Sills, 99 N.J. Super. 459, aff'd. 53 NJ 86, appeal dismissed, 394 U.S. 812, the Court stated: “it is well settled that summary judgment may be granted where there are no palpable issues of fact so that final determination of the case is a matter of Jaw.” 99 N.J. Super. at $27-528. The standard which the Courts must rely on was enunciated in Brill vs. The Guardian Life Insurance Company of America, 142 N.J. 520, 523 (1995), wherein the Court stated: That when deciding a Motion for Summary Judgment under Rule 4:46-2 the determination whether there exists a genuine Issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. BER-L-002337-22 07/17/2023 10:19:02 AM Pg4of78 Trans ID: LCV20232097382 The Brill Court went on to say: The judge’s function is not himself (or herself) to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial...If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a “genuine” issue of material fact for purposes of Rule 4:46-2, The import of our holding is that when the evidence is so one-sided that one party must prevail as a matter of law, the trial court should not hesitate to grant summary judgment. [Id., at 540. (emphasis added)] While motions for Summary Judgment should, of course, be granted “sparingly”, United Stations of New Jersey v. Kingsley, 99 N.J. Super. 574, 581 (Chan. Div. 1968), aff'd. 54 N.J. 150 (1969), and with “extreme caution”, Ruvolo v. American Casualty Co., 39 N.J. 490, 499 (1963), nevertheless, where the facts as presented by the moving party establish an entitlement to judgment, the motion should be granted. The judgment or order sought should be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. R. 4:46-2. The summary judgment procedure pierces the allegations of the pleadings to show that the facts are otherwise than as they are claimed by the non-moving party. Rankin v. Sowinski, 119 N.J. Super. 393, 400 (App. Div. 1972); Sokolay v. Edlin, 65 N.J. Super. 112, 121 (App. Div. 1961). The Brill Court further indicated that where the party opposing the summary judgment points only to disputed issues of fact that are “of an insubstantial nature, proper disposition is summary judgment.” Brill at 529. Therefore, bare conclusions and pleading, without substantial factual support and tendered affidavits will not and should not defeat a meritorious application for summary judgment. This standard is akin to the standard necessary to rule ona Motion for Directed Verdict. Id. At 536. BER-L-002337-22 07/17/2023 10:19:02 AM Pg5of78 Trans ID: LCV20232097382 The Brill ruling encourages Courts not to refrain from granting summary judgment when the proper circumstances present themselves. Id. at 541. Point II THERE ARE NO CLAIMS AGAINST DEFENDANT BRODY AND PLAINTIFF ADMITS SHE WAS NOT INVOLVED Answer to Interrogatory No. 18 by Plaintiff Gerard Schlemm states: “The Plaintiff has no information regarding Defendant Anna Marie Brody’s involvement in the subject matter” (Exhibit 3) Plaintiff also testified at his deposition that he didn’t file a lawsuit against Anna Marie Brody and that she had no involvement in Gregory’s Change of Beneficiary Forms. (Exhibit 2. PI. Dep. 69:4-6, 70:5-8) Gerard also stated that he didn’t know why Defendant Brody was involved in this lawsuit. Indeed, Plaintiff admits in his Estate Tax filing that Ms. Brody was to receive sixty percent of a BlackRock IRA annuity. (Exhibit 4, Inheritance Tax Return). Plaintiff also sued BlackRock to make sure Ms. Brody did not receive the annuity. Plaintiff Gerard Schlemm testified that he asked his attorney “plenty of times” to stop the lawsuit and “Why it keeps going on, I have no idea”. Here we have a “scatter shot” Complaint against seventeen defendants with no claims against Anna Marie Brody. The Plaintiff admits she had no involvement and the Plaintiff states he attempted to drop the case to no avail. Ms. Brody is backed by the testimony of the other defendants, Nicholas Donato Jr, Gary Schlemm, Judith Schlemm and Heather Schlemm. Apparently. His attorney has not gotten the message. The facts are not in dispute and the moving party is entitled to judgment as a matter of law R. 4:16-2. As noted previously, the Brill ruling encourages Courts not to refrain from granting BER-L-002337-22 07/17/2023 10:19:02 AM Pg6of78 Trans ID: LCV20232097382 summary judgment when the proper circumstances present themselves. Id at 541. Those circumstances are present here and Plaintiff admits it. Point LI PUNITIVE DAMAGES AND ATTORNEY FEES AND COSTS SHOULD BE AWARDED Defendant Anna Marie Brody served Plaintiffs counsel with two frivolous action letters on June 8, 2022 and June 8, 2023 (Exhibit 5) requesting inter alia that the litigation be dropped and compensatory damages be paid. No response was ever received to either letter despite a reminder on June 22, 2023. Further it was necessary for counsel to demand that Plaintiff stop stalking Ms. Brody which eventually forced her to relocate. (Exhibit 1). The Defendant, Ms. Brody has been forced to incur considerable legal expense unnecessarily particularly when the Plaintiff admits there was no case against her from the start. There has also been a diminution in the value of the BlackRock [RA annuity as this litigation dragged on and hardship on Ms. Brody as she attempted to relocate out-of-state with her employer to avoid Gerard Schlemm. Compensatory damages for these wrongs is a condition precedential to the award of punitive damages. N.J.S.A, 2A:15-5.13(c), Donelson v. Dupont Chambers Works 412 NJ. Super. 17, 46 (App. Div. 2010). Defendant is requesting punitive damages in this egregious case. The only motive for including Ms. Brody in the litigation appears to be spite and spite is not grounds for a lawsuit. Gerard and his deceased brother Gregory lived together as bachelors in their deceased parent’s home for years. Then Anna Marie Brody came along and began dating Gregory. The relationship which lasted years angered Gerard and in his deposition he called her a “bitch”. Ms. Brody was a witness to Gregory’s Healthcare Proxy and listed to receive a copy (Exhibit 6). She cared for Gregory in his illness and was the one bright spot in his life. Gregory BER-L-002337-22 07/17/2023 10:19:02 AM Pg7of78 Trans ID: LCV20232097382 had intended to remake his 2005 Will which left substantial assets to Gerard but never got around to it. Gerard ended up extremely wealthy in assets and income including retirement benefits from Pepsi Cola and the Little Ferry DPW. The gross estate was worth $2,015,072.00. (Exhibit 4). Notably. Ms. Brody is listed on the Estate Tax return filed by Plaintiff as receiving a sixty percent interest in the BlackRock IRA annuity. The Punitive Damages Act N.J.S.A. 2A:15-5.9 to 2A-5.17 requires that a party acted maliciously or with willful and wanton disregard of the rights of others. Pavlova _v. Mint Mgmt. Corp., 375 N.J. Super. 397, 403-407 (App. Div.) cert. den. 184 N.J. 211 (2005). Here, Plaintiff Gerard Schlemm, who owns two homes and a rental property, and has seven figures in assets, egregiously sued his deceased brother’s girlfriend when he knew she had nothing to do with the case. He admitted it in his testimony. The only thing he had against her is that she took his brother away and that made her a “bitch” but certainly not a defendant. Furthermore, in estate contests Court rule also allows for fee awards R. 4:42-9. Plaintiff brought a frivolous suit with no basis which cost the Defendant substantial legal fees. The Defendant should be awarded damages for the losses in the annuity and loss of her possessions, plus attorney fees, costs and punitive damages against the Plaintiff individually and as Executor and his attorney. The suit against her should be dismissed with prejudice. JOEL & JOEL, LLP Attorneys for Defendant, Anna Marie Brody BY. Niet YerN DATED: July 4 , 2023 WRENCE A tO . ESQ BER-L-002337-22 07/17/2023 10:19:02 AM Pg 8of78 Trans ID: LCV20232097382 EXHIBIT 1 BER-L-002337-22 07/17/2023 10:19:02 AM Pg9of78 Trans ID: LCV20232097382 Joel & Joel, LLP Counsellors at Law 700 Kinderkamack Road, Suite 203 Oradell, New Jersey 07649 (201) 599-0588 Facsimile (201) 599-0179 RICHARD A. JOELO www joelandjoel. com NEW YORK OFFICE LAWRENCE A. JOELOO 301 HIGHMOUNT TERRACE RICHARDA. JOEL, JR. 0 UPPER NYACK, NY 10960. ONJ,NY & DC BARS PLEASE MAIL ALL CORRESPOND! 0 OUR NJ ADDRESS: ONJ, NY & PA BARS CELA - Cenitied as an. Elder Law Attomey by the A.B.A, approved National Elder Law Foundation January 16, 2023 Via Email Edmund V. McCann, Esq. McCann & McCann, Esqs. 238 Main Street Ridgefield Park, NJ 07660 RE: Schlemm, et seq. vy. Donato Jr., et seq. Docket No. BER-L-002337-22 Dear Mr. McCann: As discussed, it has been brought to our attention that Gerard Schlemm has been harassing our client Anna Brody with continual phone calls and texts as well as showing up unexpectedly at her residence. He has even spoken with her landlord in efforts to contact her. This harassment is improper under any circumstances and is definitely inappropriate in the context of the present litigation. This letter shall serve as a demand to your client to cease such activity. If necessary, we shall apply for a restraining order against your client if this conduct persists. Please have Gerard Schlemm cease and desist his threatening behavior. Thank you. Very truly yours, Lawrence A. Joel LAJ/mna ce: Michael P. Luongo, Esq. (via email) Christy Ramunno, Esq. (via email) Jenee K. Cicearelli, Esq. (via email) Samuel E. Cohen, Esq. (via email) Edward A. Zipf, Esq. (via email) Client (via email) BER-L-002337-22 07/17/2023 10:19:02 AM Pg10of78 Trans ID: LCV20232097382 EXHIBIT 2 BER-L-002337-22 07/17/2023 10:19:02 AM Pg1lof78 Trans ID: LCV20232097382 GERARD SCHLEMM May 15, 2023 SCHLEMM vs DONATO 14 oe — a env Gav? Page 3 SUPERIOR COURT OF NEW JERSEY ba APPEARANCES: LAW DIVISION: BERGEN COUNTY | 2 McCANN & MATRI, ESOS, CKET NO. BER-L-2397-22 238 Man Strest GERARD SCHLEMM, INDIVIDUALLY, Riggaliold Park, Now Jersey 07660 ANO AS EXECUTOR OF THE ESTATE 207 440 4680, OF GREGORY SCHLEMM. BY. MARICMATRL ESQ. Piainttf(6) Attarnoys for Paint NICHOLAS CONAI sR. GONATO. PMANEIA. GROUP. LLC ROYAL ALLIANCE ASSOCIATES, se MARSHALL, DENREHEY. WARNER COLEMAN 15002 Wi i¢ Drive, Suite 209 Mount Laurel, New Jersey 08054 & GOGGIN, ESOS Expy Sone ehaM Torn SecLeMM, 7 856,773 HEATHER SCKLEMM, ANNA MARIE BY. SAMUEL E COHEN, ESO BRODY, PRUDENTIAL INSURANCE 10 CIVIL ACTION COMPANY, BLACKROCK, AY: JERBIY J, ZACHARIAS, ESQ. MERRILL LYNCH, MET LIFE INSURANCE, Atom: for Beferdants Nicholas Sonata, "4 JACKSON NATIONAL LIFE INS. JANUS Donate Financiat Group, LLC. Rayal Atiance AND HENDERSON, MORGAN STANLEY, 10 ‘Associates. Inc. 42 STANDARD INSURANCE, AND PETER 4 ‘OEL & JOEL. LLP N, DAVIS ANO ASSOCIATES. LLC, 790 Kinderkamack Road - Suite 209 a GOMPANY {A through L) THESE NAMES: 120 New Jersey 0764 BEING FICTITIOUS, I 201.598, Detendants) 58 BY: LAWRENCEA, JOEL, E52 8 14 BY: RICHARD JOEL, SR, ESA 16 Abomeys for Duferdart Arna Marie Brody OOM VIDEOCONFEREN GOLDBERG SEGALLA, LLP 7 DEPOSITION UNDER ORAL EXAMINATION OF GERARD SCHLEMM ie 1750 Market Stragt » Suits 1448 Ridgehetd Perk, New Jersey hdecsptis, Permayvara 19103 May 18, 202: Ey WIGHREL >. LUONGO, ESO 19 ‘a Atornoys a ICCAREL.for Deiendant Peter N. Davis & Associates 19 LAW, PC REPORTED BY; KERRY ANN GIGAS, CGR 230 New Road a 20 Building A OOM a ‘atsippany. nw dersey O7054 a ia 975.737 4366 FAQUIRE DEPOSITION SOLUTIONS ay; JENEEK. CICCARELL|, ES a 20 COURT REPORTERS [22 ‘Afiorneys for Celendant Gary Schiemm, sucith Schlemm 3 Won Aven South. Suite 446 ‘ang Heather Schism ae elm, New wey OB8GD it {732} 283-1 660 24 28 8 Page 2 Page 4 TRANSCRIPT of na Zeom deposition of thes i APPEARANCES: (Continued) WWi98. called for Ora! Examinationin Phe C’ARCAMBAL, OUSLEY & CUYLER BURK, LLO above-captloned matter, saig cegesition deing taken Four Contury Drive - Sute 250 pursued ty Superior Court Rules of Practice and 3 Parsippany, New Jersey 07054 973.734.9200 Proceduze by and before KERRY ANN CIGAS, a Notary BY. CHRISTY RAMUNNO, EQ, Puplc and Certified Cour Reporter of the State ot Attorneys fer idant Standard Insucanee Company New Jersey, at ihe Sifces of Met NH & WATRI ESOS, . 3 and Pr.dentias Insurance Gompany 238 Male tree, Ridgefield Para, New Jersey, Mor fay, May 15, 2023, cominencing at agproximalety 40 49:08 in the forenoon, 18 " ” 40 4 13 1“ 2 15 4 56 16 ” 6 18 1S 8 2 9 a 22 im 22 23 1B 24 24 228 a ae L|: 800.211.DEPO (3376) EsquireSolutions.com BER-L-002337-22 07/17/2023 10:19:02 AM Pg12o0f78 Trans ID: LCV20232097382 GERARD SCHLEMM May 15, 2023 SCHLEMM vs DONATO enn Page 5-8 Bage 7 NDEX DEPOSITION SUPPORT 'NDEX WITNESSSS NAM PAGE NG. Direction to Witness Ne! 0 Answer GERARD SCHLEMM Direct by Cohen Page Line Page Lins Page Line Grossby Mr. L. Joe Cross by Ms Cicearall R . NONE Cruse by Mi. Luonge: wy Request for Production of Documents EXHIBITS Page Line Page Line Page Ling 10 EXHIBIT NO, DESCRIPTION PAGE NO 10 . NONE “4 Seiemm Medica! Records ar 12 Senterm-2 Healthcare Power of 4 Attesney 38 # ‘Stipulations 19 Schtomm-a Emails, 10/2227 ar a Page Line Page tire Page Line “4 we Senlemaré BlackRock Change of 15 + NONE . 5 Beneficiary Fosre na 6 Schlamoi Letier, 11/28/25, trom, 16 Ne MeCann 5! a Question Markes! 7 Schlemn-& Latter, 1/5022, fo 6 Pege Line Page Lire Page Line 18 hay. MeCana 8Z 8 49 piemme PruSecire Annuity 633 . 20 fenime& FlaxCuard Indexed 2 NONE Variabie Annuity 85 24 a 22 Schlemn-§ Loner, £4022, from Dr Pecort 5? 24 2 Schlemmid Compisint 06 26 2 25 a Page 8 HIBITS Continued) GERARD SCHLEMM, 9 Elizabeth Court, Little Ferry, New Jersey, EXHIBIT NO, IPTION Pag calied as a witness, having been first duly Seblemnt+ Last Wit and Testainent 36 sworn according to law, testifies as follows: DIRECT EXAMINATION BY MR. COHEN: Schlemin12 Plaintif's Answers and Q — Good morning,Mr. Schlamm. My nama is Onjactions to Ds fendant Peter N. Davis and Associates, Sam Cohen. We haven't formally met, put lam LLC's First Set of representing defendants in a lawsuit that you interrogatories: 129 brought, Nicholas Donato, Jr., Donato Finenciai, LLC Schlomm-14 Fax Cover Sheet, 191022, 10 and Royal Alliance Associates, Inc. I wantto give ith Attaches 133 1 you a few instructions before we stan. We've Senisenme1d Fen Document 1.6. 42 convened today electronically to take your Emails anc Atachment 137 13 deposition in this case. We hope this goes w " 14 smoothly. 1B 16 The court reporter is going to take 1 16 down, you know, my questions and your answers. We: “ 48 7 ask thal you keep your voice up duritg the 6 16 deposition. If you listen to my question and than 19 answer the question. Wait until 'm finished asking 18 20 the question before you start. Let's not talk over 49 B 24 each other so we have a clean record. 24 22 I want you to answer the questions that 2223 23 you know. if you want me to repeat e question, 2 24 please feei free to ask me. Feel free to aiso ask a4 28 25 if + there are many attorneys asking questions a a 800.211.DEPO (3376) EsquireSolutions.com BER-L-002337-22 07/17/2023 10:19:02 AM Pg13o0f78 Trans ID: LCV20232097382 GERARD SCHLEMM May 15, 2023 SCHLEMM vs DONATO 9-12 - ae ofage S|) page TT today, if you need a break al any time, just leit us id Q A mechanic where? that you need a break and you can take one. 2 A | don't remember. So many years ago. If ycu don't remember the answer to a 3 Q ~~ Whatis the first job that you remember question, tell us that you don't remember. We're 4 after high school? not here to ask you to guess or speculate 5 A Auto mechanic. And, finally, | like lo ask, are you on 16 Q = Auto mechanic. Okay. When did you any medication that would prevent you from answering 7 begin working for Pepsi? our questions here today? i 38 Um, maybe five years after that. A No, 19 So approximately 19907 10 What did you do in preparation for your 10 Around there. 41 testimony today? mn How long did you werk for Pepsi? 12 A Just get up and came here. 12 Thirty-four years. 13 Q Did you review any cecuments in advance | 13 Are you still working fer Pepsi? 14 of the deposition today in preparation? 14 No, 18 Some, yeah 15 When did you slop working? 16 What documents did you review? 116 Ten years ago. 17 Juts went over things. 17 Have you been employed in the last ten 18 What things in particular? 118 years? 19 Like what happened that night. 19 A Yes. 20 What did you review in documents in £20 Q So what have you been doing for the las| 21 preparation for today? a ten years? 22 A No. 22 A | work for with the town. 23 a No documents? 23 Qa Whal town? 24 A No. 24 Little Ferry. 25 Q Okay. Mr. Schiemm, have you ever 25 What do you de for the town? Page 16 : Page 12 testified before? Maintenance. A No. What kind of maintenance? Q Have you ever been the plaintiff or a Like cleaning, driving seniors around lefendant in a civil lawsuit before?