OCN L 002695-18 11/19/2021 Pg 1 of 12 Trans ID: LCV20212732047

_________________________________
YECHESKEL “CHARLIE” SCHWAB SUPERIOR COURT OF NEW JERSEY
and DATAMAP INTELLIGENCE, LLC OCEAN COUNTY
Plaintiffs

v. DOCKET NO. OCN-L-2695-18

JOYCE BLAY, HERSHEL HERSKOWITZ ORDER

a/k/a HAROLD HERSKOWITZ,
SHLOMIE KLEIN a/k/a SHLOMO KLEIN,
ABRAHAM SHARABY, JOHN DOES 1-
10 and ABC CORPS. A-J
Defendants
_________________________________

THIS MATTER having come before the Court on motion of Defendant, Abraham
Sharaby, for summary judgment and cross motion of Plaintiffs, “Charlie” Schwab and
DataMap Intelligence, LLC for leave to file and serve a second amended complaint and
for reasons that follow:

IT IS ON THIS 22ND DAY OF NOVEMBER 2021 ORDERED:

The motion of Defendant Abraham Sharaby for Summary Judgment is granted

IT IS FURTHER ORDERED the complaint against him is dismissed with prejudice

IT IS FURTHER ORDERED Plaintiffs’ motion for leave to file and serve a second
amended complaint is denied

IT IS FURTHER ORDERED a copy of this Order shall be served on all parties

within 7 days

/s/ James Den Uyl

___________________
JAMES DEN UYL J.S.C.

STATEMENT OF REASONS

This complaint was filed in November of 2018 by

Plaintiff Yecheskel “Charlie” Schwab against Defendants

Joyce Blay,1 Hershel “Harold” Herskowitz, Shlomie Klein, and

1 Blay was dismissed from this case before any of motions for summary judgment were brought.
 OCN L 002695-18 11/19/2021 Pg 2 of 12 Trans ID: LCV20212732047

Abraham Sharaby. Plaintiff accused all four defendants of

defamation, false light, conspiracy, and aiding-and-abetting

following a series of internet posts that, according to

Plaintiff, falsely accused him of illicit business dealings

with Lakewood Township and some of its politicians.

Plaintiff’s claims for defamation and false light with

respect to Sharaby were dismissed without prejudice pursuant

to an Order issued by this Court on March 22nd, 2019, leaving

only the claims of conspiracy and aiding-and-abetting.

Plaintiffs Yecheskel “Charlie” Schwab and DataMap

Intelligence, LLC (“DMI”) sued Defendants Joyce Blay,

Hershel Herskowitz, Shlomie Klein, and Abraham Sharaby

alleging defamation (Count One), false light (Count Two),

conspiracy (Count Three), and aiding and abetting (Count

Four) arising out of allegedly false statements regarding

Schwab’s business dealings with Lakewood Township published

by local online bloggers and press.

Plaintiff DMI is a data provider that creates,

collects, and provides proprietary, detailed mapping and

demographic information. Plaintiff Schwab is the founder of

DMI and is the sole member of the limited liability company

(“LLC”). Plaintiffs allege that Plaintiff DMI has been in

the business of providing mapping and data services to

Lakewood Township, the Lakewood Police Department, the

Lakewood Inspection Department, and other Township

Departments for over ten years.

 OCN L 002695-18 11/19/2021 Pg 3 of 12 Trans ID: LCV20212732047

Plaintiffs allege that Defendants have conspired to

make numerous defamatory statements to the detriment of

Plaintiffs on public websites, blogs, and in meetings.

Plaintiffs allege that these statements are demonstrably

false, made with reckless disregard for the truth, and

without any evidentiary support. Plaintiffs allege that

these statements are intentional fabrications which assert

that hidden and illicit business relationships exist between

Plaintiff Schwab, the current Lakewood Township Deputy Mayor

Menashe Miller, and others, when no such relationships

exist, either formal or informal. Plaintiffs allege that

Defendants wrongfully accuse Plaintiff Schwab and Deputy

Mayor Miller of engaging in illegal schemes to the detriment

of Lakewood Township and its taxpayers.

On October 5th, 2021, this Court granted summary

judgment to Defendants Herskowitz and Klein on all four

counts of Plaintiff’s Complaint. This Court found that

Plaintiff was required to show actual malice to prevail on

his defamation claim, as the accusations against him were a

matter of public interest. Plaintiff not only failed to show

actual malice, but he also failed to put forth any competent

evidence linking Defendants to the allegedly defamatory

posts. He also failed to provide competent evidence of

compensatory or actual damages, as required in a March 3,

2020, Case Management Order. Because the other three counts

 OCN L 002695-18 11/19/2021 Pg 4 of 12 Trans ID: LCV20212732047

of Plaintiff’s Complaint rested on his defamation claim, all

four claims against Herskowitz and Klein were dismissed.

Defendant Sharaby, in light of his co-defendants’

dismissal, now files the present Motion for Summary Judgment

in his favor on the remaining counts against him. Plaintiff

filed both an Opposition as well as a Cross-Motion to Amend

the Complaint, allowing him to reassert his defamation claim

against Sharaby. This matter is scheduled for trial on

January 24, 2022

Defendant Sharaby argues that he cannot be held liable

for conspiracy or aiding-and-abetting if, pursuant to the

October 5 Order, there was no underlying tort, i.e.,

defamation. As this Court explained in that decision,

Plaintiff failed to offer competent evidence that the posts

made about him online were defamatory. Even assuming they

were, Plaintiff has failed to show evidence linking

Defendants to the internet posts, that they were made with

actual malice, and that he sustained damages that could be

verified by an expert report.

Plaintiff first argues that Defendant Sharaby, a pro se

litigant, failed to include a Statement of Material Facts

pursuant to Rule 4:46-2(a). Based on this procedural mishap,

Plaintiff seeks a denial of the Motion for Summary Judgment.

Plaintiff then argues that Sharaby can be found liable for

conspiracy since, “[r]egardless of whether Klein or

Herskowitz remain in the action, it is inescapable that

 OCN L 002695-18 11/19/2021 Pg 5 of 12 Trans ID: LCV20212732047

Plaintiffs were defamed.” An accused co-conspirator may

still be held liable, even if all his co-defendants were

removed from the case, provided there is no question as to

the harm suffered by the victim. See Louis Kamm, Inc. v.

Flink, 113 N.J.L. 582, 592 (1934). Next, Plaintiff makes the

same accusations of spoliation of evidence that he made

against Herskowitz and Klein. He seeks a spoliation

inference against Sharaby that would deny him the Motion for

Summary Judgment, arguing that “[t]he only reason even more

proofs are not available against Sharaby is because he

spoliated evidence in an attempt to stymie the prosecution

of this case.” Finally, Plaintiff counters Sharaby’s

argument that he failed to prove damages by citing to the

report Plaintiff drafted himself detailing his own damages.

Plaintiff moves to amend the complaint asserting he has

acquired new evidence that would allow him to reassert his

defamation claim against Sharaby, previously dismissed

without prejudice. The crux of his argument lies in the

broad discretion granted to courts in deciding whether to

grant a motion to amend a complaint. According to Plaintiff,

reinstating the defamation claim against Sharaby would not

prejudice any parties to the litigation, as this claim has

already been brought against Sharaby previously. Morton

Int’l, Inc. v. A.E. Stanley Mfg. Co., 106 F. Supp. 2d 737,

745 (D.N.J. 2000).

HOLDING
 OCN L 002695-18 11/19/2021 Pg 6 of 12 Trans ID: LCV20212732047

A summary judgment motion should be granted only when

the moving party shows that there is no genuine issue of

material fact in the case and the party is entitled to

judgement as a matter of law. Judson v. Peoples Bank and

Trust Company of Westfield, 17 N.J. 67, 73 (1954); R. 4:46-

2. A genuine issue of material fact exists when a disputed

fact is of a substantial nature. Brill v. Guardian Life Ins.

Co. of America, 142 N.J. 520, 523, 529 (1995). Notably, the

New Jersey Supreme Court has held that a non-moving party

cannot defeat a motion for summary judgment “merely by

pointing to any fact in dispute.” Id. at 529. A moving party

is entitled to judgment as a matter of law when the evidence

presented is so one-sided that it does not require

submission to a jury. Id. at 533. Accordingly, the court

must consider whether the evidence presented, when viewed in

the light most favorable to the non-moving party, would

permit a rational fact finder to resolve the dispute in

favor of the non-moving party. Id. at 523. Additionally,

the New Jersey Supreme Court has held that a non-moving

party cannot defeat a motion for summary judgment “merely by

pointing to any fact in dispute.” Brill, 142 N.J. at 529.

Plaintiff’s assertion that Sharaby may be liable for

conspiracy, despite the dismissal of his co-defendants, is a

misapplication of the Supreme Court’s holding in Louis Kamm.

As clarified by the Supreme Court nearly thirty years after

Louis Kamm, “a conspiracy cannot be made the subject of a

 OCN L 002695-18 11/19/2021 Pg 7 of 12 Trans ID: LCV20212732047

civil action unless something has been done which, absent

the conspiracy, would give a right of action.” Middlesex

Concrete Products & Excavating Corp. v. Carteret Indus.

Assoc., 37 N.J. 507, 516 (1962) (emphasis added); see also

Earl v. Winne, 14 N.J. 119 (1953). It is true that, if

Plaintiff were able to prove he was defamed, Sharaby could

theoretically be held liable, even in the event his alleged

co-conspirators are dismissed from the case. That said,

Plaintiff would still need to prove defamation; there can be

no conspiracy absent an underlying tort.

Potential corrupt dealings between elected officials of

a municipality and its vendors are matters of legitimate

public interest. As stated by the New Jersey Supreme Court

in Senna v. Florimont,196 N.J. 469, 474 (2007):

In a general defamation case, a plaintiff claiming to

be damaged by a false statement will succeed if he
shows that the speaker acted negligently in failing to
ascertain the truth of the statement. However, we give
greater protection to speech involving public
officials, public figures, and the public interest
because of the important role that uninhibited and
robust debate plays in our democratic society. In those
cases, the plaintiff must prove actual malice, showing
that the speaker made a false and defamatory statement
either knowing it was false or in reckless disregard of
the truth. The actual-malice standard tolerates more
falsehood and harm to reputation than the negligence
standard in order to shield highly valued speech from
ruinous lawsuits.

In Rocci v Ecole Secondarie MacDonald-Cartier, 165 N.J.

149,159 (2002), citing to Costello v. Ocean County

 OCN L 002695-18 11/19/2021 Pg 8 of 12 Trans ID: LCV20212732047

Observer,136 N.J. 594,615 (1994), the New Jersey Supreme

Court reaffirmed the heightened actual-malice standard in

this context:

[p]laintiffs . . . must produce substantial evidence to

survive a motion for summary judgment. Although courts
construe the evidence in the light most favorable to
the non-moving party in a summary judgment motion, the
"clear and convincing" standard in defamation action
adds an additional weight to the plaintiffs' usual
"preponderance of the evidence" burden.

Our courts have defined "clear and convincing evidence"

as that which "produce[s] in the mind of the trier of fact a

firm belief or conviction as to the truth of the allegations

sought to be established," evidence "so clear, direct and

weighty and convincing as to enable [the factfinder] to come

to a clear conviction, without hesitancy, of the truth of

the precise facts in issue." State v. Hodge 95 N.J. 369,376

(1984).

Here, under the lens of this heightened standard,

Plaintiff has not presented competent evidence from which a

jury could reasonably infer Plaintiff established all of the

elements of defamation required by clear and convincing

evidence, that: defendant made a statement of fact;

concerning the plaintiff; that was false; was communicated

to at least one other person than the plaintiff and the

defamatory statement was made with actual malice. Actual

malice is defined as the defendant’s actual knowledge that

 OCN L 002695-18 11/19/2021 Pg 9 of 12 Trans ID: LCV20212732047

the statement was false, or his reckless disregard as to the

statement’s truth or falsity.

Plaintiff’s claims against Defendants Herskowitz and

Klein were dismissed on October 5th because Plaintiff could

not show, by clear and convincing evidence, that either

defendant was the publisher of the allegedly defamatory

statements. The same is true regarding Sharaby: Plaintiff

has not presented competent evidence of a clear and

convincing connection between the websites hosting the posts

and Sharaby.

Plaintiff failed to provide competent evidence that

Defendants published these statements with actual malice,

i.e., any knowledge of falsity. As this Court already

discussed in its last Order granting summary judgment,

Plaintiff was required to show actual malice because the

accusations against him were matters of public concern.

Moreover, Plaintiff did not present competent evidence

of damages. The March 3, 2020 Case Management Order

provided that “Plaintiffs shall serve on all defendants all

expert reports, including but not limited to accounting and

economic experts, to establish and quantify all compensatory

and actual damages sustained by Plaintiffs as a result of

the defamation by May 15, 2020”.

The discovery end date in this matter was September 1,

2020. Plaintiff did not serve any expert reports to

establish and quantify compensatory and actual damages

 OCN L 002695-18 11/19/2021 Pg 10 of 12 Trans ID: LCV20212732047

sustained as a result of the alleged defamation. Plaintiff

asserts that he plans to call various members of the

Lakewood Township community to testify as to Plaintiff's

damages, including Defendants and members of the Lakewood

municipal government. However, there were no affidavit

presented from any members of the Lakewood Township

community or municipal government to establish a claim for

compensatory and actual damages.

Reliance on the bare conclusions in the complaint

without support in affidavits are insufficient to defeat a

defendant's summary judgment motion. Sullivan v. Port Auth.

Of NY and NJ, 449 N.J. Super. 276. 279 (App. Div. 2017)

citing U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67

N.J. Super. 384,399-400. Self-serving assertions are

clearly insufficient to create a question of material fact

for purposes of a summary judgment motion. Martin v. Rutgers

Cas. Co. 346 N.J. Super. 320, 323 (App. Div. 2002) citing

Brill v. Guardian Life Ins. Co. 142 N.J. 520 (1995).

Absent an underlying tort, a defendant cannot be liable

for conspiracy. Because this Court decided on October 5th

that Plaintiff failed to show he was defamed, none of the

defendants, including Sharaby, may be liable for conspiracy

to defame Plaintiff. This same logic applies to Plaintiff’s

claim that Sharaby aided and abetted in defaming Plaintiff.

Without an underlying tort, both inchoate claims fail as a

matter of law.
 OCN L 002695-18 11/19/2021 Pg 11 of 12 Trans ID: LCV20212732047

Although Sharaby failed to provide a statement of

material facts as required by Rule 4:46-2(a), this Court

does take note of the fact that Sharaby is a pro se

plaintiff and has been throughout this entire litigation.

Furthermore, in this specific matter, the Court has been

able to sufficiently focus its attention on the areas of

actual dispute, thanks to this Court having issued a

separate summary judgment Order in this case very recently.

Moreover, Mr. Sharaby argument is, essentially, Plaintiff

has no facts that support a cause of action against him.

The Court, in its discretion, is willing to excuse Sharaby’s

failure to comply with Rule 4:46-2(a).

In New Jersey, any proposed amendment to a party’s

pleading is subject to R. 4:9-1 and leave to amend is

generally required by the rule to be liberally granted . . .

unless undue prejudice would result.” Kernan v. One Wash.

Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998)

(citation omitted). Ultimately, the “granting of a motion to

file an amended complaint always rests in the court’s sound

discretion.” Id. (citation omitted). Notwithstanding the

well-settled liberal amendment standards, when an amendment

is meritless, or “fails to state a cause of action on which

relief can be granted,” denial of the motion is appropriate.

Id

Trial is now set for January 24th, 2022. The timing of

Plaintiff’s request to amend his Complaint is curious, as it

 OCN L 002695-18 11/19/2021 Pg 12 of 12 Trans ID: LCV20212732047

comes in response to the last remaining defendant’s Motion

for Summary Judgment on the eve of trial. To amend the

pleadings and throw allegations at the wall in response to

Mr. Sharaby’ motion for summary judgment is an unfair and

unduly prejudicial tactical maneuver. As Mr. Sharby

suggests, it is an attempt to get a second bite of the

apple. Maybe a reset. Plaintiff had three years to perfect

his proofs. Discovery ended over one year ago on September

1, 2020. In the interest of justice and fairness,

Plaintiffs’ motion for leave to file and serve a second

amended Complaint this late in the litigation is denied.