The post New Mexico Trial Court Upholds Admissibility of Diffusion Tensor Imaging (DTI) appeared first on Stark & Stark, PC.
]]>In a recent judicial ruling that adds to the growing body of case law affirming the legal acceptance of advanced medical imaging techniques, the court once again endorsed the admissibility of Diffusion Tensor Imaging (DTI) as a credible method for diagnosing traumatic brain injuries. This particular verdict was rendered in the context of the litigation Herrera v. Prestige Equipment Rentals, case number No. D-504-CV-2021-00538, adjudicated by the 5th Judicial District Court of New Mexico on February 29, 2024.
In this case, the defendant sought to challenge the credibility of expert testimony provided by Dr. William Hwang, who had employed DTI to ascertain the plaintiff’s condition. Dr. Hwang’s examination revealed that the plaintiff had suffered a traumatic brain injury, attributing 30% to 40% of his diagnostic conclusion to the DTI findings that were considered abnormal. The defense’s motion aimed to exclude Dr. Hwang’s testimony and the DTI evidence on grounds questioning the reliability of this imaging technique.
However, the court decisively rejected the defendant’s motion to exclude this expert testimony. In its ruling, the court explicitly recognized MRI-DTI as a “sufficiently reliable means to diagnose traumatic brain injury.” This judgment aligns with the precedent established by numerous other courts, which the plaintiffs referenced to support their argument. The court’s decision not only underscored the credibility of DTI in the medical diagnostic arena but also reinforced its legal admissibility as evidence in cases involving claims of traumatic brain injury.
This ruling from the Herrera v. Prestige Equipment Rentals case stands as a significant testament to the evolving acceptance of DTI in the judicial system. It further confirms the technique’s role in enhancing the accuracy of diagnoses concerning traumatic brain injuries, thereby offering substantial support for the presentation and substantiation of related legal claims.
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]]>The post Capacity to Execute a Last Will and Testament appeared first on Stark & Stark, PC.
]]>In general, for an individual to have sufficient capacity to execute a Will, they must demonstrate that he/she understands the nature of the property that they possessed, and further, which they intended to convey. In other words, it must be shown that the decedent had an accurate understanding as to the totality of their assets and how they wished to distribute them. Further, it must also be demonstrated that the testator was aware of who the potential heirs of his/her estate were at the time they were drafting their Will. Finally, it must be proven that the decedent understood the legal effect of their Will and how it would distribute their estate.
Should there be a challenge to a decedent’s capacity during a Will contest, the testimony of both medical experts and fact witnesses may be presented to either prove or disprove a decedent’s capacity. Further, medical records may often become relevant in making such an assessment, especially those which are near the time the Will was executed. Finally, testimony from the witness who were present when the decedent executed his/her Will, as well as the attorney who was present, will be crucial to deciding as to testamentary capacity. Aside from witness testimony, should a Will contain non-sensical provisions, or ones that are drastically different from the decedent’s previously expressed desires, these provisions may likewise support a finding that the decedent lacked capacity on the date the Will was signed. Like all matters which require the presentation of complex evidence, it is strongly suggested that competent counsel be retained to guide you through the litigation process.
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]]>The post JOANN’s Chapter 11 Bankruptcy Filing: Stitching Together a Reorganization appeared first on Stark & Stark, PC.
]]>According to The New York Times, the retailer has a deal with its lenders for a $132 million cash injection to reduce its debt by $505 million, a process that will result in the retailer, which is listed on the Nasdaq stock exchange, being taken into private ownership. The court filings show liabilities of $1 billion to $10 billion and assets of $500 million to $1 billion. With about 800 stores nationwide, it appears the retailer will continue to operate as it closes the deal with lenders.
As noted by our recent blog 10 Retailers to Watch for a Possible Bankruptcy Filing in 2024, JOANN has continued declining sales, comps, margins, and increasing costs, creating an uphill battle for the crafts retailer. Further, as The New York Times reported, the retailer has been coming down from a short-lived sales boom during the pandemic lockdowns when there was a frenzy in consumers spending on at-home projects.
If you are a landlord or trade creditor of JOANN, it is important to know your rights now. Stark & Stark’s Shopping Center and Retail Development Group can help. Our bankruptcy attorneys regularly represent landlords throughout the country, including recently in the Eastern District of Missouri, District of New Jersey, Southern District of New York, District of Delaware, District of Minnesota and the Western and Eastern Districts of Pennsylvania regarding a variety of issues. Most recently, our Group has represented landlords and trade creditors in the Rite Aid, Party City, David’s Bridal, Christmas Tree, Buyk, Tuesday Morning, Mattress Firm, Toys R Us, EMS, Golfsmith, RadioShack, and Sports Authority chapter 11 bankruptcy cases.
For more information on how Stark & Stark can assist you, please contact shareholders Thomas Onder at (609) 219-7458 (tonder@stark-stark.com) or Joseph Lemkin at (609) 791-7022 (jlemkin@stark-stark.com).
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]]>The post Stark & Stark Shareholder Joseph Lemkin, Esq. Announced as President of the Newly Formed Jewish Bar Association of New Jersey (JBAR-NJ) appeared first on Stark & Stark, PC.
]]>JBAR-NJ is a full-service bar association dedicated to providing continuing legal education, mentorship, support to Jewish law students, advocacy, networking, resources, and profile-raising initiatives that promote both its young attorneys and established leaders of the bar. Members will represent a wide range of demographics, practice areas, firm sizes, and areas of New Jersey, and come from the private, public, corporate, higher education, nonprofit sectors, as well as legal professional services.
“It is important to have a seat at the table and a voice in the conversation. The formation of JBAR-NJ ensures the Jewish legal community will have just that,” said Joseph. “It’s time now to put a spotlight on our history and advocate for our Jewish legal community.”
Joseph is a member of the firm’s Bankruptcy & Creditors’ Rights Group. His practice primarily focuses on the areas of bankruptcy law, commercial litigation, business reorganization, and related matters, with a particular emphasis on creditors’ rights.
Congratulations!
For additional information concerning the Jewish Bar Association of New Jersey, contact Susan Wernick, Executive Director, Public Affairs 862-212-2067 or visit jbarnj.org.
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]]>The post What is Undue Influence in the Context of a Will Contest? appeared first on Stark & Stark, PC.
]]>Appellate courts have explained that for influence over the decedent to rise to the level of undue influence, it must be demonstrated that such influence destroyed the free agency and will of the person over whom it was exerted upon. This type of coercion may be mental, moral, or physical, or a combination of all three. The influence must rise to a level to preempt the testator from following the dictates of his or her own mind and will, and instead, accepting the domination and influence of another. Typically, to establish the existence of undue influence, there must be shown a weakness of mind, and that the desire of the testator was distorted by the imposition of a stronger dominating influence. The mere fact that a party may give care and assistance to the testator does not in itself indicate evidence of undue influence so as to destroy the free will of a testator. Instead, it must be demonstrated that the influence destroyed the free agency and will of the person over whom it is exerted, and instead, the Will reflected the desires of the person who exerted the influence.
Typically, undue influence is demonstrated through witness testimony, and perhaps relevant documents, which evidence that another individual exercised mental, moral, or physical exertion, or all three, over the decedent. Also, if there are drastic changes in the decedent’s estate documents which directly benefit the alleged wrongdoer this may be additional proof that undue influence was exercised over the decedent. Typically, however, the proof of undue influence during a Will contest is comprised of both witness testimony, as well as documentary evidence which demonstrates the exercise of this unlawful influence. The presentation of this testimony can be complex and must be carefully planned. As such, if you are seeking to challenge a Will based upon an allegation of undue influence it is strongly suggested that competent counsel be retained in order to properly present this complex evidence to the court.
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]]>The post Stark & Stark Shareholder Evan Lide, Esq., Secures $1.975 Million Settlement for Shopper Hit by a Vehicle appeared first on Stark & Stark, PC.
]]>“I am proud we were able to get justice for our client here,” said Evan. “While his injuries will never go away, and they will limit him from working as long as he would have wanted to, he will be compensated for what he went through, which was no fault of his own.”
Evan is a member of Stark & Stark’s Accident & Personal Injury Group. He is an expert Civil Trial Attorney as certified by the Supreme Court of New Jersey, focusing his practice on representing people who have suffered traumatic brain injuries, spinal cord injuries, and other catastrophic injuries, including death resulting from automobile crashes, product liability, and premises liability.
*Results may vary depending on your particular facts and legal circumstances*
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]]>The post Remembering Our Friend & Colleague, Cory Rand, Esq. appeared first on Stark & Stark, PC.
]]>Since he joined Stark & Stark in 2013, Cory’s genuine concern for the well-being of his clients earned him the respect and admiration of peers, clients, and adversaries. His strong work ethic, intellect, and kindness made him a beloved colleague and friend.
“Cory was a cherished member of the Stark & Stark family. He was caring, creative, and passionate in all that he did, and he will be a part of us forever.”
– Michael Donahue, Managing Shareholder
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]]>The post Changes to Foreclosure Sales Under New Jersey’s Community Wealth Preservation Program appeared first on Stark & Stark, PC.
]]>The CWPP solely applies to “residential properties,” which are defined as real property within the State that is “…utilized as a primary residence or dwelling”. The CWPP expressly excludes real property that is acquired for “investment, commercial, or business purposes or real property containing more than four residential units.” Lenders should be aware that although the CWPP does not apply to commercial loans and non-residential properties, the CWPP applies to foreclosures of residential properties owned by business entities.
The CWPP made key changes to the contents of the notice of sheriff sale provided by the foreclosing plaintiff:
The CWPP also expanded the rights of certain classes of persons and entities at and before the sheriff sale who seek to occupy the foreclosed premises as their primary residence:
If you have any questions about the CWPP, developing a bidding strategy, the required contents of the notice of sale, or the new requirement that lenders disclose their “upset price,” please feel free to contact Joe McCarthy via email at jmccarthy@stark-stark.com or by telephone at (609) 895-7296.
This article is intended only to summarize the CWPP and does not constitute legal advice. Moreover, this article is not intended to create an attorney-client relationship between the sender and recipient.
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]]>The post Stark & Stark Welcomes New Attorney Courtney Martin, Esq. appeared first on Stark & Stark, PC.
]]>Prior to joining Stark & Stark, Courtney was an attorney for various law firms where she handled foreclosure and real estate litigation matters, including landlord/tenant claims, municipal code violations, jury and bench trials and arbitrations, and post-sheriff sale title issues.
Stark & Stark is excited to have Courtney join our team. Welcome to the firm!
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]]>The post 10 Retailers to Watch for a Possible Bankruptcy Filing in 2024 appeared first on Stark & Stark, PC.
]]>Following are our top 10 retailers to watch for a possible Chapter 11 filing in the year ahead.
Stark & Stark’s Shopping Center and Retail Development Group regularly represent owners, developers, and/or landlords throughout the country in leasing, buying/selling, 1031 Exchanges, refinancing, and enforcement activities.
One of our Group’s specialties is bankruptcy representation/protection for owners, developers, and/or landlords nationally. Currently, our team is providing value-added services in several national Chapter 11 cases, including Rite Aid, Party City, WeWork, Buyk, Regis, Stage Stores, Modell’s, 24 Hour Fitness, Sears, Art Van, Ascena, NPC, Toys R Us, Charming Charlie Part 2, and A&P.
For more information on how Stark & Stark’s Shopping Center Group can assist you, don’t hesitate to contact Thomas Onder, Shareholder, at (609) 219-7458 or tonder@stark-stark.com, as well as Joseph Lemkin at (609) 791-7022 or jlemkin@stark-stark.com. Tom and Joe write regularly on commercial real estate issues and are both active members of ICSC. Tom is Marketplace Director for ICSC’s Philadelphia region and a member of the ICSC Legal Advisory Council.
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