EILEEN McNELLIS-WALLACE VS. JOSEPH HOFFMAN, JR., ESQUIRE (L-1429-18, GLOUCESTER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 31, 2020
• Docket: A-1488-19T1
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1488-19T1

EILEEN McNELLIS-WALLACE and MAURICE WALLACE, her husband, APPROVED FOR PUBLICATION

Plaintiffs, July 31, 2020

APPELLATE DIVISION v.

JOSEPH HOFFMAN, JR., ESQUIRE and LAW OFFICES OF HOFFMAN DIMUZIO, a Partnership of Professional Corporations, i/j/s/a,

Defendants/Third-Party Plaintiffs-Respondents,

v.

GARY D. GINSBERG, ESQUIRE and GINSBERG & O'CONNOR, PC,

Third-Party Defendants- Appellants. ______________________________

Argued telephonically February 4, 2020 - Decided July 31, 2020

Before Judges Fisher, Accurso and Rose. On appeal from an interlocutory of the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1429-18.

Jeffrey Grudko argued the cause for appellants.

Paul A. Carbon argued the cause for respondents (Margolis Edelstein, attorneys; Paul A. Carbon and Kyle L. Wu, of counsel and on the brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.

This case is less complicated than it appears. Plaintiff Eileen McNellis-

Wallace had a laparoscopic hysterectomy at Kennedy University Hospital in

August 2013. The doctor who performed the surgery, Anthony Salerno,

advised plaintiff immediately afterward that he had nicked her bowel when a

piece of robotic equipment failed. Two months later, plaintiff retained

defendant Joseph Hoffman, Jr., of Hoffman Dimuzio to represent her in a

malpractice action against Salerno. Two days after meeting with plaintiff,

Hoffman drafted a "memo to file" labeled "urgent," noting "we may have to

notify JFK Hospital by a Tort Claims Notice because I believe half of that

facility are doctors that are associated with the State of New Jersey."

The following day, Hoffman's office served a timely tort claim notice.

Unfortunately, Hoffman's staff read his memo literally and served the notice

A-1488-19T1 2 on Kennedy, a private entity, and not on Dr. Salerno or his employer, Rowan

University. Hoffman never followed-up to ensure the tort claim notice was

properly served.

Twenty months later, in June 2015, Hoffman's firm wrote to plaintiff

advising it would not file any complaint on her behalf as lawyers there were

convinced "we cannot be successful in any lawsuit against either the

manufacturer or the surgeon." The firm advised plaintiff of the impending end

of the two-year limitations period and recommended other counsel she might

consult for a second opinion.

On the last day of the limitations period, third-party defendant Gary D.

Ginsberg of Ginsberg and O'Connor, P.C., filed an eighteen-count complaint

against Dr. Salerno and Kennedy, among others. Dr. Salerno answered in

October, raising plaintiff's failure to comply with the Tort Claims Act as an

affirmative defense and listing the State as his insurance carrier on his

accompanying case information statement.

Several months later, in May 2016, Dr. Salerno moved to dismiss for

failure to file a timely tort claim notice. Plaintiff cross-moved for leave to file

a late claim notice based on extraordinary circumstances. The trial court

acknowledged the parties disputed when plaintiff learned that Dr. Salerno was

A-1488-19T1 3 a public employee, with Dr. Salerno averring he told plaintiff of his status

when she visited him in his office, which displayed a Rowan University logo

on the door, and that he always wore a name tag denoting his status, and

plaintiff asserting she only learned of the doctor's status when he filed his

motion to dismiss. The judge denied plaintiff's motion to permit a late claim

and dismissed the complaint.

Assuming for purposes of the motion that plaintiff didn't know Dr.

Salerno's public employee status when he treated her, the judge found plaintiff

received actual notice of his status when Dr. Salerno filed his answer in

October, which would make January 14, 2016, the last day for filing the

ninety-day tort claim notice. The judge found no extraordinary circumstances

to justify the late filing.

Ginsberg was not aware when he made the late claim motion that

Hoffman had served a tort claim notice on Kennedy in October 2016, having

not been provided a copy of it by Hoffman. When Ginsberg finally learned of

that fact in April 2018, he moved to reinstate the medical malpractice action.

That motion was unsuccessful, leading to plaintiff's filing of a complaint for

legal malpractice against Hoffman in this action. When Hoffman answered the

complaint, he included a third-party complaint against Ginsberg, plaintiff's

A-1488-19T1 4 attorney in the action, for contribution under the Joint Tortfeasors Contribution

Law and common law indemnification.

Ginsberg moved to dismiss Hoffman's third-party complaint, arguing

Supreme Court precedent bars claims by a lawyer against his successor, see

Olds v. Donnelly, 150 N.J. 424, 443-44 (1997), and that Hoffman's failure to

file a proper tort claim notice doomed plaintiff's claim against Salerno before

Ginsberg entered the picture. The judge agreed. Relying on Cherry Hill

Manor Assocs. v. Faugno, 182 N.J. 64, 72-73 (2004), in which the Court held

that for successive lawyers to be joint tortfeasors, they must share joint

liability for the same injury to the plaintiff, the judge rejected Hoffman's

argument that he and Ginsberg committed the same tortious act of failing to

file a timely tort claim notice.

The judge explained that based on Ginsberg having been retained only

several weeks before the running of the statute,

clearly he had no ability to file a tort claims [notice] within 90 days of the date of the injury, which is the August 12th, 2013 date or to file for extraordinary relief for late filing within one year of that date when he was not engaged until two weeks or so before the Statute of Limitations expired.

So, even if he had a duty, it was a different one and it's a different injury.

A-1488-19T1 5 Hoffman filed a motion for reconsideration, claiming the court

overlooked a critical finding by the judge who dismissed plaintiff's medical

malpractice action against Dr. Salerno, namely that plaintiff was not on notice

that Dr. Salerno was a public employee until he filed his answer in October

2015. Relying on Lowe v. Zarghami, 158 N.J. 606 (1999), and Eagan v.

Boyarsky, 158 N.J. 632 (1999), Hoffman argued plaintiff's lack of knowledge

tolled the accrual of her cause of action until the date of Dr. Salerno's answer,

meaning Ginsberg had until January of 2016 to file a tort claim notice on

plaintiff's behalf. Because Ginsberg did not file a tort claim notice, Hoffman

claimed Ginsberg injured plaintiff in the same way Hoffman did, making them

joint tortfeasors for purposes of the contribution law.

Ginsberg countered that Lowe and Eagan addressed extraordinary

circumstances for late filing, not tolling the accrual of a cause of action, and

that there is no support in the case law for finding extraordinary circumstances

when the plaintiff's lawyer filed a timely tort claims notice on the wrong entity

as Hoffman did here. Ginsberg also noted that the other judge did not know,

when she assumed for purposes of the motion that Dr. Salerno's answer was

plaintiff's first notice that Dr. Salerno was a public employee, that Hoffman

had already filed a timely tort claim notice, but served it on the wrong entity.

A-1488-19T1 6 The motion judge granted Hoffman's motion for reconsideration and

denied Ginsberg's motion to dismiss the third-party complaint. The judge

found her prior "presumption" that the one-year period for a late claim notice

pursuant to N.J.S.A. 59:8-9 had already expired by the time Ginsberg entered

the case "is contrary to a different judge's finding" that plaintiff was only on

notice of Dr. Salerno's status when he filed his answer in October, thus making

a tort claim notice still timely in January 2016.

The judge found she did not address whether Dr. Salerno had complied

with the dictates of Lowe and Eagan and only "presumed compliance," most

likely because Hoffman realized immediately that he needed to file a tort claim

notice to protect plaintiff's claim against Dr. Salerno. The judge concluded

reconsideration was appropriate because she had not considered whether

"plaintiff's medical malpractice claims depended in part on the extent to which

the plaintiff herself knew that Dr. Salerno was a publicly employed physician."

The judge concluded "the extent of plaintiff's notice was not previously

determined in this case and it should not be Mr. Hoffman's state of mind."

Satisfied that plaintiff's knowledge of Dr. Salerno's status was a factual issue

in dispute, the judge reversed course and denied Ginsberg's motion to dismiss

the third-party complaint. Ginsberg's motion for reconsideration was denied.

A-1488-19T1 7 We granted Ginsberg's motion for leave to appeal and now reverse,

finding the judge was right the first time when she dismissed Hoffman's third-

party complaint.

Our review of a trial judge's decision on a motion to dismiss a complaint

under Rule 4:6-2(e) for failure to state a cause of action is de novo, without

deference to the judge's legal conclusions. Dimitrakopoulos v. Borrus, Goldin,

Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019). Although it

is, of course, true that the review of the factual allegations of a complaint on a

motion to dismiss is to be "undertaken with a generous and hospitable

approach," Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746

(1989), it is equally true that "[a] pleading should be dismissed if it states no

basis for relief and discovery would not provide one." Rezem Family Assocs.,

LP v. Borough of Millstone, 423 N.J. Super. 103, 113 (App. Div. 2011).

Hoffman insists that the critical issue is the one identified by the trial

judge on the motion for reconsideration, that is whether Dr. Salerno complied

with the dictates of Lowe and Eagan, which required the University of

Medicine and Dentistry of New Jersey, Rowan's predecessor, to ensure its

clinical professors advise patients that they are public employees. Hoffman

argues that without knowing whether Dr. Salerno orally advised plaintiff that

A-1488-19T1 8 he was a public employee, it is impossible to determine whether plaintiff's

claim accrued on the "surgery [date] or at the time that Dr. Salerno filed his

answer in the underlying action, . . . the latter of which" occurred when

Ginsberg was representing plaintiff, which would make him and Ginsberg joint

tortfeasors.

We disagree that Dr. Salerno's compliance with Lowe and Eagan has

anything to do with the accrual of plaintiff's cause of action under the Tort

Claims Act. Hoffman confuses accrual of the cause of action with

extraordinary circumstances justifying a late notice of claim. As Justice Long

explained twenty years ago in Beauchamp v. Amedio, "[i]t is a common and

regrettable occurrence for accrual and extraordinary circumstances to be

treated as interchangeable," although "they are entirely distinct." 164 N.J. 111,

119 (2000).

Ascertaining the timeliness of a Tort Claims Act notice requires a

simple, three-step sequential analysis that never changes. Id. at 118. The first

step is to determine when the cause of action accrued in accordance with

N.J.S.A. 59:8-1. Beauchamp, 164 N.J. at 118. "The discovery rule is part and

parcel of such an inquiry because it can toll the date of accrual." Ibid. Once

the date of accrual is ascertained, one can proceed to the second step, which "is

A-1488-19T1 9 to determine whether a notice of claim was filed within ninety days" as

required by N.J.S.A. 59:8-8. Beauchamp, 164 N.J. at 118. "If not, the third

task is to decide whether extraordinary circumstances exist justifying a late

notice" under N.J.S.A. 59:8-9. Beauchamp, 164 N.J. at 118-19. Applying that

analysis here makes plain plaintiff's medical malpractice claim against Dr.

Salerno and Kennedy was lost before Ginsberg got into the case, that he and

Hoffman thus could not be joint tortfeasors, and Hoffman's third-party

complaint for contribution and indemnification was properly dismissed with

prejudice for failure to state a claim.

N.J.S.A. 59:8-8, the section of the Tort Claims Act addressing

presentation of claims, provides that a claim must be presented "not later than

the 90th day after accrual of the cause of action." The statute further provides

that a claimant will be "forever barred" from recovery against a public

employee or entity if she fails "to file the claim with the public entity within

90 days of accrual except as otherwise provided in N.J.S.[A.] 59:8-9."

N.J.S.A. 59:8-8(a). N.J.S.A. 59:8-9, is "the savings provision" of the Act,

which can alleviate "[t]he sometimes harsh impact of the 90-day notice of

claim requirement set forth in 59:8-8." Margolis and Novack, Claims Against

Public Entities cmt. to N.J.S.A. 59:8-9 (2020). N.J.S.A. 59:8-9 provides in

A-1488-19T1 10 pertinent part that "[a] claimant who fails to file notice of his claim within 90

days as provided in section 59:8-8" may "be permitted to file such notice at

any time within one year after the accrual of his claim" if he can show

"sufficient reasons constituting extraordinary circumstances for his failure to

file" within ninety days of the accrual of his cause of action as required by

N.J.S.A. 59:8-8, "provided that the public entity or the public employee has

not been substantially prejudiced thereby."

A claim "accrues" under section 8-1 of the Tort Claims Act "on the date

of the accident or incident that gives rise to any injury, however slight, that

would be actionable if inflicted by a private citizen." Beauchamp, 164 N.J. at

123. See also Tortorello v. Reinfeld, 6 N.J. 58, 65 (1959); Margolis and

Novack, Claims against Public Entities, 1972 Task Force Comment to N.J.S.A.

59:8-1 (2020). The discovery rule likewise applies in a Title 59 matter in the

same fashion it would were the defendant a private citizen, tolling accrual of

the claim until the plaintiff is reasonably aware that she has been injured by

the fault or neglect of an identifiable person or entity. See McDade v. Siazon,

208 N.J. 463, 475 (2011).

Here, there is no question but that plaintiff's claim accrued on the date of

her surgery. Plaintiff was advised immediately after her surgery that she had

A-1488-19T1 11 been injured and was, of course, aware her surgeon was potentially

responsible. See Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001)

(providing examples of cases in which "knowledge of fault is acquired

simultaneously with knowledge of injury," such as the extraction of the wrong

tooth or a foreign object left in the body after surgery). That she may have

been unaware that her surgeon was a public employee does not implicate the

discovery rule. See McDade, 208 N.J. at 479 (2011) ("Given plaintiffs'

awareness of the injury, and their knowledge that the entity responsible for the

pipe was a potential tortfeasor, the discovery rule does not toll the date of

accrual of plaintiffs' cause of action.").

Lowe and Eagan, on which plaintiff relies, are not to the contrary. In

each case the defendant doctor's "status as a public employee was obscured by

his apparent status as a private physician." Lowe, 158 N.J. at 629; Eagan, 158

N.J. at 640. But because both Lowe and Eagan, like plaintiff here, were aware

of their injuries and the identity of the doctors potentially responsible, the

discovery rule had no application. Instead, the Court determined that the

"unique facts" obscuring the defendant doctors' status as public employees,

"[c]oupled with the legal doubt surrounding the status of UMDNJ professors as

A-1488-19T1 12 public employees" constituted extraordinary circumstances permitting a late

notice of claim. Lowe, 158 N.J. at 630-31; Eagan, 158 N.J. at 642-43.

Applying Beauchamp's three-step sequential analysis to the undisputed

facts on the motion, we know plaintiff's claim accrued on the surgery date in

August 2013, and that no notice of claim was served on either Dr. Salerno or

Rowan within ninety days thereafter. That leaves only the question of whether

extraordinary circumstances could justify a late claim notice "within one year"

of accrual of the claim. N.J.S.A. 59:8-9. Here, however, no application for

permission to file a late claim was made within a year of accrual, or indeed at

any time before Hoffman withdrew from the representation in June 2015,

twenty-two months after plaintiff's cause of action accrued.

Hoffman's failure to serve a tort claim notice on Dr. Salerno or Rowan

within ninety days of plaintiff's surgery or to petition the court to permit a

notice of late claim within one year thereafter "forever barred" plaintiff from

any recovery against Dr. Salerno or Rowan, a year before Ginsberg took over

the file. See N.J.S.A. 59:8-8; O'Donnell v. N.J. Tpk. Auth., 236 N.J. 335, 346

(2019) (noting "N.J.S.A. 59:8-9 permits a claimant to file an application for

leave to serve a late notice of claim on a showing of extraordinary

A-1488-19T1 13 circumstances, so long as the application is filed within one year of the accrual

of the claim").

Although Hoffman's loss of plaintiff's medical malpractice claim before

Ginsberg's entry into the case makes clear that Hoffman and Ginsberg could

not be joint tortfeasors, and thus Ginsberg's motion to dismiss Hoffman's third-

party complaint should have been granted as a matter of law, we nevertheless

address, briefly, the effect of plaintiff's alleged unawareness of Dr. Salerno's

status as a public employee.

That issue, as should be clear from what we've already said, is not an

accrual issue but an argument for extraordinary circumstances justifying a

notice of late claim within the one year permitted by N.J.S.A. 59:8-9.

Considering the issue in its proper context under the unique circumstances of

this case makes plain the issue is irrelevant under established precedent, even

assuming Hoffman had filed a timely motion for late claim, which he did not.

The critical fact here is that Hoffman realized the necessity of a tort

claim notice and indeed served one within ninety days of plaintiff's surgery.

He simply served it on the wrong entity and never followed-up to ensure it was

properly served in time to save plaintiff's cause of action against Dr. Salerno or

Rowan. Hoffman cannot rely on his client's lack of knowledge of Dr.

A-1488-19T1 14 Salerno's status or the requirements of the Tort Claims Act in the face of his

own knowledge of the Act's requirements and his having filed an ineffective

notice of claim and not correcting the problem over a ten-month period. The

law is now well-settled that a lawyer's "inattention or even malpractice" in

failing to serve a tort claims notice does not constitute extraordinary

circumstances. D.D. v. Univ. of Med. & Dentistry of N.J., 213 N.J. 130, 157

(2013). Should there have been any doubt on the point, the Court's recent

opinion in O'Donnell put it to rest. See O'Donnell, 236 N.J. at 351-52 (finding

extraordinary circumstances where plaintiff's counsel served a timely notice of

claim on the wrong party, notwithstanding D.D., because of the additional

circumstances of another party injured in the same accident having served a

timely notice of claim on the correct party "listing the exact circumstances

surrounding the accident and the same theory of liability" and plaintiff having

sought permission to file a late claim notice within one year of the accident).

Because long-standing interpretation of the Tort Claims Act establishes

that plaintiff's claim was irretrievably lost by Hoffman before Ginsberg's entry

into the case, mandating dismissal of Hoffman's third-party complaint for

contribution and indemnification against Ginsberg as a matter of law, we need

not consider Ginsberg's alternative argument that the claim is also barred by

A-1488-19T1 15 our Supreme Court's holding in Olds v. Donnelly that an attorney cannot sue

her successor for indemnity and contribution for the claims of their mutual

client absent a duty owed by the successor to the prior lawyer. See Olds, 150

N.J. at 443-44.

The order denying Ginsberg's motion to dismiss Hoffman's third-party

complaint is reversed, and the case is remanded for entry of an order

dismissing the third-party complaint. We do not retain jurisdiction.

Reversed.

A-1488-19T1 16