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Pullen v. Galloway

Superior Court of New Jersey, Appellate Division

December 9, 2019

HENRY PULLEN, as Executor of the ESTATE OF JEANNE PULLEN, deceased, and individually, Plaintiffs-Appellants,
v.
DR. AUBREY C. GALLOWAY, LOUIS STEIN, ROBERT M. APPLEBAUM, EDWIN BLUMBERG, MARK S. LIFSHITZ, and NEW YORK UNIVERSITY MEDICAL CENTER, Defendants-Respondents.

          Argued October 16, 2019

          On 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).

          Walter 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).

          Before Judges Fisher, Accurso and Gilson.

          OPINION

          GILSON, J.A.D.

         In this 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 without prejudice.

         I.

         We take 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.

         Dr. 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.

         Decedent was discharged from NYU Medical Center on April 5, 2016. She died nine days later on April 14, 2016, after she developed blood clots.

         On 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. Blumberg.

         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 Jersey.

         In the 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 ...


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