Newark, N.J. (August 13, 2020) - Following a recent panel hearing comprised of Judges Fisher, Accurso, and Rose, the Appellate Division of the Superior Court of New Jersey issued a published opinion in Eileen McNellis-Wallace, et al. v. Joseph Hoffman, Jr., Esq., et al., 2020 N.J. Super. LEXIS 195 (App. Div. 2020), regarding successor liability in a legal malpractice action. In the underlying facts of the case, plaintiff Eileen McNellis-Wallace underwent a laparoscopic hysterectomy in August 2013 at Kennedy University Hospital. As noted in the court's opinion, 'The doctor who performed the surgery, Anthony Salerno, advised plaintiff immediately afterward that he had nicked her bowel.' Id. The plaintiff retained attorney Joseph Hoffman, Jr. for representation in a malpractice claim against Dr. Salerno.
Mr. Hoffman wrote a memo to the file indicating a Tort Claims Notice would possibly be required. While notice was served, it was served improperly on Kennedy University Hospital, not Dr. Salerno or Rowan University, Dr. Salerno's employer. Thereafter, the plaintiff retained new counsel, Gary D. Ginsberg, Esq., who filed a complaint against Dr. Salerno, among others. Dr. Salerno answered and filed a motion to dismiss, asserting the lack of compliance with the Tort Claims Act. The motion judge granted Dr. Salerno's motion to dismiss, finding that the plaintiff, at minimum, knew of Dr. Salerno's status at the time he filed his answer, and no tort claim notice was properly served in that period.
Following the dismissal, Mr...
