HENRY PULLEN, as Executor of the ESTATE OF JEANNE PULLEN, deceased, and individually, Plaintiffs-Appellants,
DR. AUBREY C. GALLOWAY, LOUIS STEIN, ROBERT M. APPLEBAUM, EDWIN BLUMBERG, MARK S. LIFSHITZ, and NEW YORK UNIVERSITY MEDICAL CENTER, Defendants-Respondents.
October 16, 2019
appeal from the Superior Court of New Jersey, Law Division,
Middlesex County, Docket No. L-1768-18.
Kenneth Wesley Thomas argued the cause for appellants (Lanza
Law Firm, LLP, attorneys; Kenneth Wesley Thomas, of counsel
and on the briefs).
F. Kawalec, III argued the cause for respondents Dr. Aubrey
C. Galloway, Louis Stein, Robert M. Applebaum, Mark S.
Lifshitz, and New York University Medical Center (Marshall
Dennehey Warner Coleman & Goggin, attorneys; Walter F.
Kawalec, III, and Julia A. Klubenspies, on the brief).
Judges Fisher, Accurso and Gilson.
medical malpractice action, plaintiff appeals from an order
dismissing with prejudice his complaint for lack of personal
jurisdiction over a New York licensed doctor who provided
medical treatment at a New York hospital. We affirm the
dismissal of the complaint for lack of personal jurisdiction,
but remand with instructions that the complaint be dismissed
the facts from the record developed on the motion to dismiss
and view those facts in the light most favorable to
plaintiff. On March 29, 2016, Jeanne Pullen (the deceased)
underwent surgery to replace her aortic valve. The surgery
was performed by Dr. Aubrey Galloway at New York University
Langone Medical Center (NYU Medical Center). Dr. Robert
Applebaum also provided care to the decedent while she was at
NYU Medical Center.
Galloway and Dr. Applebaum are physicians licensed to
practice medicine in New York. They also both live in New
York. Decedent was a New Jersey resident who was referred to
Dr. Galloway by her New Jersey licensed doctor, Dr. Edwin
Blumberg. It is undisputed that Dr. Galloway and Dr.
Appelbaum treated decedent only in New York and did not
provide any care to her in New Jersey.
was discharged from NYU Medical Center on April 5, 2016. She
died nine days later on April 14, 2016, after she developed
March 23, 2018, plaintiff Henry Pullen filed a complaint in
the Law Division alleging malpractice against Dr. Galloway,
Dr. Applebaum, Dr. Louis Stein, Dr. Mark Lifshitz, Dr. Edwin
Blumberg, and NYU Medical Center. Plaintiff, who is the
widower of the decedent and the executor of her estate,
asserted claims of wrongful death and survivor claims of pain
and suffering. Thereafter, plaintiff dismissed with prejudice
his complaints against Dr. Stein, Dr. Lifshitz, and Dr.
Galloway filed an answer on May 1, 2018, and asserted, as an
affirmative defense, that he was not subject to personal
jurisdiction in New Jersey. Dr. Applebaum served his answer
on July 27, 2018. Like Dr. Galloway, Dr. Applebaum asserted
that he was not subject to personal jurisdiction in New
meantime, in May 2018, plaintiff served an affidavit of merit
concerning the treatment provided by Dr. Galloway. Dr.
Galloway challenged the credentials of the physician who
prepared the affidavit of merit, contending that he did not
have the appropriate qualifications. In response, plaintiff
filed a motion seeking a court order that the original
affidavit of merit was valid and appropriate. In June 2018,
the trial court denied plaintiff's motion finding that
the physician who ...