NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1373-18T2

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 – Decided

Before Judges Fisher, Accurso and Gilson.

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 

APPROVED FOR PUBLICATION

December 9, 2019

APPELLATE DIVISION

December 9, 2019
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Coleman & Goggin, attorneys; Walter F. Kawalec, III, 

and Julia A. Klubenspies, on the brief).

The opinion of the court was delivered by

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 
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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 
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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 served the original affidavit of merit was not qualified. 

Thereafter, on August 24, 2018, plaintiff served a second affidavit of merit.

On September 24, 2018, Dr. Galloway, Dr. Applebaum, and NYU Medical 

Center filed a motion to dismiss plaintiff's complaints against them for lack of 

personal jurisdiction. Both doctors certified that they lived in New York, they 

were licensed to practice medicine in New York, and that they never lived or 

practiced medicine in New Jersey. Both doctors also certified that they never 

treated decedent in New Jersey, they were not affiliated with any hospitals in 

New Jersey in 2016, and they did not solicit or otherwise contact decedent, 

plaintiff, or any other New Jersey residents for the purpose of rendering medical 

treatment. 

Dr. Galloway also explained that he had been licensed to practice 

medicine in New Jersey between June 2004 and June 2009. He certified that he 

had obtained that New Jersey license because NYU Medical School had an 

arrangement with AtlanticCare Regional Medical Center in Atlantic City, New 
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Jersey, but he never examined patients in New Jersey and he did not travel to 

New Jersey to care for any patients. 

In opposition to defendants' motion, plaintiff argued that Dr. Galloway 

waived his personal jurisdiction defense by failing to file a timely motion to 

dismiss. Plaintiff also argued that Dr. Galloway had sufficient contacts with 

New Jersey to establish personal jurisdiction. In that regard, plaintiff filed a 

certification claiming that Dr. Blumberg, the New Jersey cardiologist who had 

treated decedent, had a "personal relationship/friendship" with Dr. Galloway. 

Plaintiff also asserted that Dr. Galloway advertised his services to solicit 

business through commercials on local television stations. Finally, plaintiff 

certified that Dr. Galloway advertised his services via the internet to solicit 

business. To support that claim, plaintiff attached copies of an NYU internet 

posting and a print-out of a YouTube video uploaded by NYU Medical Center 

on August 31, 2017. 

On October 26, 2018, the trial court heard oral argument and, on that same 

day, it entered an order granting the motion to dismiss plaintiff's complaint with 

prejudice. The court also issued a written statement of reasons.

The trial court rejected plaintiff's waiver argument, pointing out that it had 

the authority to extend the deadline for filing a motion to dismiss. The court 
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then ruled that there was insufficient evidence to establish personal jurisdiction 

over the defendants. With regard to plaintiff's contentions about Dr. Galloway's 

advertising, the trial court found that those general contentions, which did not 

establish any direct contact with decedent, were too vague to establish personal 

jurisdiction over Dr. Galloway.

II.

On appeal, plaintiff makes two arguments. First, he contends that Dr. 

Galloway waived his personal jurisdiction defense by failing to file a timely 

motion within ninety days of filing his answer. Second, plaintiff argues that 

New Jersey courts have personal jurisdiction over Dr. Galloway. We are not 

persuaded by either argument. 

Initially, we note that on this appeal plaintiff has focused all of his 

arguments on the dismissal of his claims against Dr. Galloway. Plaintiff 

concedes that Dr. Applebaum filed his motion to dismiss within ninety days of 

filing an answer. Moreover, plaintiff made no arguments concerning personal 

jurisdiction over Dr. Applebaum or NYU Medical Center. Indeed, at oral 

argument before us, plaintiff's counsel conceded that NYU Medical Center 

would only be vicariously liable for the alleged malpractice of Dr. Galloway. 

Thus, we deem plaintiff to have abandoned any appeal of the order dismissing 
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Dr. Applebaum or NYU Medical Center. See N.J. Dep't of Envtl. Prot. v. 

Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div. 2015) (holding that an 

issue that is not briefed is deemed waived upon appeal); Fantis Foods, Inc. v. N. 

River Ins. Co., 332 N.J. Super. 250, 266-67 (App. Div. 2000).

A. The Waiver Issue

Rule 4:6-2(b) requires the defense of lack of personal jurisdiction to be 

asserted in a defendant's answer. Rule 4:6-3 then requires that a motion to 

dismiss based on the lack of personal jurisdiction "shall be raised by motion 

within 90 days after service of the answer . . . ." Rule 4:6-7 goes on to state that 

the defense of personal jurisdiction is "waived if not raised by motion pursuant 

to R. 4:6-3 . . . ." Nevertheless, all those rules are subject to Rule 1:1-2, which 

states that the trial court can relax or dispense with any rule "if adherence to it 

would result in an injustice." See also R. 1:3-4(a) (allowing a court to enlarge 

the time for taking an action). 

Dr. Galloway expressly asserted the defense of lack of personal 

jurisdiction in his answer filed on May 1, 2018. Thereafter, the parties disputed 

the validity of plaintiff's first affidavit of merit as it related to Dr. Galloway. 

That issue was not resolved until plaintiff filed a new affidavit of merit on 

August 24, 2018. Dr. Galloway, together with Dr. Applebaum and NYU 
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Medical Center, then moved to dismiss for lack of personal jurisdiction on 

September 24, 2018. 

Between May 1, 2018, and September 24, 2018, Dr. Galloway took no 

action that would constitute a waiver of his defense of personal jurisdiction. To 

the contrary, he disputed plaintiff's first affidavit of merit, which went to the 

very question of whether plaintiff had a valid claim against Dr. Galloway. 

Consequently, we discern no error or abuse of discretion in the trial court's 

decision to address Dr. Galloway's motion to dismiss for lack of personal 

jurisdiction. See Byrnes v. Landrau, 326 N.J. Super. 187, 193 (App. Div. 1999)

(explaining that when dealing with a constitutionally-based defense, such as 

personal jurisdiction, waiver of that defense should be clear and any contention 

that the defense has been waived should be strictly scrutinized).

B. Whether There Is Personal Jurisdiction

"A court's jurisdiction is 'a mixed question of law and fact' that must be 

resolved at the outset, 'before the matter may proceed . . . .'" Rippon v. Smigel, 

449 N.J. Super. 344, 359 (App. Div. 2017) (quoting Citibank, N.A. v. Estate of 

Simpson, 290 N.J. Super. 519, 532 (App. Div. 1996)). We review de novo the 

legal aspects of personal jurisdiction. Id. at 358 (citing Mastondrea v. 

Occidental Hotels Mgmt. S.A., 391 N.J. Super. 261, 268 (App. Div. 2007)). We 
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will not disturb a trial court's factual findings concerning jurisdiction if they are 

supported by substantial credible evidence. Ibid. Moreover, "[a] trial court's 

interpretation of the law and the legal consequences that flow from established 

facts are not entitled to any special deference [on appeal]." Manalapan Realty, 

L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). 

New Jersey courts "may exercise in personam jurisdiction over a nonresident defendant 'consistent with due process of law.'" Bayway Refining Co. 

v. State Utils., Inc., 333 N.J. Super. 420, 428 (App. Div. 2000) (alterations in 

original omitted) (quoting R. 4:4-4(b)(1)). A two-part test governs that analysis:

[D]ue process requires only that in order to subject a 

defendant to a judgment in personam, if he [or she] be 

not present within the territory of the forum, [(1)] he [or 

she] have certain minimum contacts with [the forum 

(2)] such that the maintenance of the suit does not 

offend "traditional notions of fair play and substantial 

justice." 

[International Shoe Co. v. Washington, 326 U.S. 310, 

316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 

463 (1940)).]

"[T]he requisite quality and quantum of contacts is dependent on whether 

general or specific jurisdiction is asserted . . . ." Citibank, N.A., 290 N.J. Super. 

at 526.
10 A-1373-18T2

General jurisdiction exists when the plaintiff's claims arise out of the 

defendant's "continuous and systematic" contacts with the forum state. 

Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 (1984); 

Baanyan Software Servs., Inc. v. Kuncha, 433 N.J. Super. 466, 474 (App. Div. 

2013). For general jurisdiction to attach, a defendant's activities must be "so 

continuous and systematic as to render [it] essentially at home in the forum

State." FDASmart, Inc. v. Dishman Pharm. & Chems., Ltd., 448 N.J. Super. 

195, 202 (App. Div. 2016) (alteration in original) (citation omitted) (quoting 

Daimler AG v. Bauman, 571 U.S. 117, 128 (2014)).

Specific jurisdiction is available when the "cause of action arises directly 

out of defendant's contacts with the forum state . . . ." Waste Mgmt., Inc. v. 

Admiral Ins. Co., 138 N.J. 106, 119 (1994), cert. denied, 513 U.S. 1183 (1995). 

In examining specific jurisdiction, the "minimum contacts inquiry must focus 

on 'the relationship among the defendant, the forum, and the litigation.'" Lebel 

v. Everglades Marina, Inc., 115 N.J. 317, 323 (1989) (quoting Shaffer v. Heitner, 

433 U.S. 186, 204 (1977)). The minimum contacts requirement is satisfied if 

"the contacts expressly resulted from the defendant's purposeful conduct and not 

the unilateral activities of the plaintiff." Ibid. (citing World-Wide Volkswagen 

Corp. v. Woodson, 444 U.S. 286, 297-98 (1980)). "In determining whether the 
11 A-1373-18T2

defendant's contacts are purposeful, a court must examine the defendant's 

'conduct and connection' with the forum state and determine whether the 

defendant should 'reasonably anticipate being haled into court [in the forum 

state].'" Bayway Refining Co., 333 N.J. Super. at 429 (alteration in original) 

(quoting World-Wide Volkswagen Corp., 444 U.S. at 297).

Applying these well-established standards, Dr. Galloway is not subject to 

personal jurisdiction in New Jersey. Dr. Galloway does not have the continuous 

and substantial contacts that would subject him to general jurisdiction in New 

Jersey. Dr. Galloway lives and practices medicine in New York. He certified 

he held a New Jersey medical license only between 2004 and 2009, and never 

actually practiced medicine in New Jersey.

Plaintiff contends that Dr. Galloway advertised on local television stations 

and published information on the internet. Those general contentions, however, 

are insufficient to establish general jurisdiction. Plaintiff did not identify any 

actual advertising on local television stations. Instead, plaintiff merely asserted 

that Dr. Galloway had engaged in such advertisement. That contention is not 

supported by any specific facts such as the nature of the advertising, when and 

where the advertising was actually aired, and whether the advertisement was 

directed at New Jersey residents.
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Plaintiff's certification also included a screen shot of a YouTube video 

entitled, "Meet Cardiothoracic Surgeon Dr. Aubrey Galloway." The video was 

uploaded by NYU Medical Center in August 2017, more than a year after 

decedent's surgery. Plaintiff also references Dr. Galloway's listing on NYU 

Medical Center's website. We have adopted the federal courts' view that "the 

mere accessibility of a foreign business' website through which customers may 

obtain information . . . is insufficient contact by itself to support general 

jurisdiction." Wilson v. Paradise Village Beach Resort & Spa, 395 N.J. Super. 

520, 532-33 (App. Div. 2007) (collecting cases). In short, plaintiff's general 

allegations do not satisfy the rigorous standard for establishing general 

jurisdiction through substantial and sustained contacts. 

Dr. Galloway is also not subject to specific jurisdiction based on his 

treatment of decedent. It is undisputed that Dr. Galloway treated and operated 

on decedent in New York. He had no contact with decedent in New Jersey. We 

have previously held that a doctor's out-of-state treatment of a New Jersey 

resident does not, in and of itself, establish personal jurisdiction. Bovino v. 

Brumbaugh, 221 N.J. Super. 432, 437 (App. Div. 1987). In Bovino, we 

explained that when a patient seeks personal services from an out-of-state 

physician, those services are not directed towards a particular place; rather, they 
13 A-1373-18T2

are directed at the needs of the patient. In that regard, we noted that it is

fundamentally unfair to subject an out-of-state physician to jurisdiction in New 

Jersey when treatment is provided exclusively in another state. Ibid. 

Plaintiff contends that the decedent's New Jersey doctor was a friend of 

Dr. Galloway. In that regard, plaintiff suggests that the decedent's New Jersey 

doctor referred decedent to Dr. Galloway for treatment. Such a referral does not 

establish specific personal jurisdiction. See id. at 436-37. Dr. Galloway did not 

initiate or seek the referral. Instead, a New Jersey doctor, who apparently knew 

Dr. Galloway, referred decedent to Dr. Galloway. Such a referral is not 

purposeful conduct by Dr. Galloway with New Jersey.

While we affirm the order dismissing defendants for lack of personal 

jurisdiction, the dismissal should not have been with prejudice. The dismissal 

of the complaint was not an adjudication on the merits. R. 4:37-2(d) ("any 

dismissal not specifically provided for by R. 4:37, other than a dismissal for lack 

of jurisdiction, operates as an adjudication on the merits."); Exxon Research and 

Eng'g Co. v. Indus. Risk Ins'rs, 341 N.J. Super. 489, 519 (App. Div. 2001) 

(finding that a dismissal for lack of jurisdiction should be without prejudice 

because such a dismissal is not an adjudication on the merits). Accordingly, we 
14 A-1373-18T2

remand for the limited purpose of entering an amended order dismissing the 

complaint without prejudice. 

Affirmed and remanded. We do not retain jurisdiction.