COURT OF APPEALS
STATE OF NEW YORK
RALPH H. SPEKEN, M.D. and STEPHANIE Z. SPEKEN, M.S.,
Plaintiffs,
against
THOMAS R. MOORE, ESQ.,
Defendant.
MEMORANDUM OF LAW IN OPPOSTION TO PLAINTIFFS-APPELLANTS’
MOTION FOR LEAVE TO APPEAL TO THE COURT OF APPEALS
RIVKIN RADLER, LLP
Attorneys for Defendant-Respondant
THOMAS R. MOORE, ESQ.,
EAB Plaza
Uniondale, New York 11556-0111
(516) 357-3000
Of Counsel:
Evan H. Krinick
Janice J. DiGennaro
Cheryl. F. Korman
Harris J. Zakarin
TABLE OF CONTENTS
TABLE OF AUTHORITIES…………………………………………………………………..3
PRELIMINARY STATEMENT………………………………………………………………4
FACTUAL ANT) PROCEDURAL BACKGROUND………………………………..5
A. The Underlying Action……………………………………………………………………..5
B. The Instant Action……………………………………………………………………………9
ARGUMENT……………………………………………………………………………………….12
THE ISSUES RAISED IN THE INSTANT CASE ARE NOT
RIPE FOR COURT OF APPEALS REVIEW………………………………………12
CONCLUSION…………………………………………………………………………………….15
TABLE OF AUTHORITIES
CASES
Bartkowski v. Friedman, 213 A.D.2d 873, 623 N.Y.S.2d 946 (3d Dep’t 1995)………………………….14
Black v. White & Case, 280 A.D.2d 407, 721 N.Y.S.2d 44 (1st Dep’t), appeal denied, 96
N.Y.2d 714, 729 N.Y.S.2d 442 (2001)…………………………………………………………………………14
Jung v. Gemmette, 249 A.D.2d 827, 671 N.Y.S.2d 862 (3d Dep’t), appeal denied, 92
N.Y.2d 807, 678 N.Y.S.2d 593 (1998)…………………………………………………………………………14
Misek-Falkoff v. American Lawyer Media, Inc., 300 A.D.2d 215, 752 N.Y.S.2d 647 (1st
Dep’t 2002), appeal denied, 100 N.Y.2d 508, 764 N.Y.S.2d 385 (2003)…………………………13
Ryan v. New York Telephone Co., 62 N.Y.2d 494, 478 N.Y.S.2d 823 (1984)……………………………13
Schwarz v. Shapiro, 202 A.D.2d 187, 608 N.Y.S.2d 210 (1st Dep’t), appeal denied, 83
N.Y.2d 760, 616 N.Y.S.2d 15 (1994)………………………………………………………………………….14
Sei Young Choi v. Dworkin, 230 A.D.2d 780, 646 N.Y.S.2d 531 (2d Dep’t), appeal
denied, 89N.Y.2d 805, 658 N.Y.S.2d 918 (1996)…………………………………………………………13
Speken v. Columbia Presbyterian Medical Center, 278 A.D.2d 154, 717 N.Y.S.2d 543
(lst. Dep’t2000)……………………………………………………………………………………………………….9
Speken v. Columbia Presbyterian Medical Center, 304 A.D.2d 489, 759 N.Y.S.2d 47 (1st
Dep’t), lv denied, 100 N.Y.2d 511, 766 N.Y.S.2d 164 (2003)…………………………………………9
STATUTES
22 N.Y.C.R.R. § 500.11(d)(1)………………………………………………………………………………………………12
CPLR3211 (a) (1),(5),(7)……………………………………………………………………………………………………..9
PRELIMINARY STATEMENT
Defendant-respondent Thomas R. Moore (“defendant”) submits this memorandum of law in opposition to the motion of plaintiffs-appellants Ralph H. Speken, M.D. and Stephanie Z. Speken, M.S. (“plaintiffs”) for an order granting leave to appeal to the Court of Appeals from an order of the Appellate Division, First Department, dated April 6, 2004, which affirmed an order of the Supreme Court, New York County (Tolub, J.), which granted defendant’s motion to dismiss the complaint.
Defendant demonstrates that review by the Court of Appeals is not warranted. Specifically, in this legal malpractice action, plaintiffs alleged that defendant, who represented them in an underlying wrongful death action, coerced them into settling the underlying case. The issue of the voluntariness of the settlement agreement, however, had been already litigated twice and, the instant action, which sought to raise the same issues, was properly dismissed. On this application for leave to appeal, plaintiffs merely rehash their arguments raised at the Appellate Division and have otherwise failed to demonstrate that the issue warrants further review by this Court. The issue proposed to be raised by plaintiffs is not novel, is not of public importance and does not conflict with prior Court of Appeals’ precedent or involve a conflict among the Departments of the Appellate Division.
Accordingly, leave to appeal to the Court of Appeals is not warranted and should be denied.
FACTUAL AND PROCEDURAL BACKGROUND
This action for, inter aha, legal malpractice against defendant-respondent Thomas R. Moore (“defendant”) arises out of defendant’s representation of plaintiffs-appellants Ralph H. Speken, M.D. and Stephanie Z. Speken, M.S. (“plaintiffs”) in connection with an underlying medical malpractice/wrongful death action against Columbia Presbyterian Hospital (the “Hospital”) on behalf of their deceased son, Seth Speken. After plaintiffs agreed to settle the underlying action, they subsequently moved to vacate the settlement premised on allegations that defendant coerced them into settlement. Following the denial of that motion and the dismissal of a subsequent action against the Hospital, plaintiffs commenced the instant action against defendant.
A. The Underlying Action
As alleged in the underlying complaint, the Hospital was negligent in its care and treatment of Seth Speken, plaintiffs’ son, resulting in his death on August 27, 1993. Seth Speken was admitted to the Hospital on August 21, 1993 as a psychiatric patient following a seizure episode. He suffered from Crohn’s disease, panic attacks and depression. Plaintiff Ralph Speken, plaintiff’s father and a medical doctor, also treated his son’s panic disorders. While at the Hospital, Seth Speken allegedly became delusional and was placed in wrist and ankle restraints. He subsequently developed an embolism that caused his death.
Thereafter, plaintiffs retained defendant to commence a wrongful death action against the Hospital and, on or about October 11, 1994, an action was commenced. The Hospital counterclaimed, seeking indemnification and/or contribution, alleging that it was Ralph Speken’ s own negligence in the treatment of his son that ultimately caused his son’s death.
At some point, plaintiffs created and began operating a website located at www.med-malpractice.com, titled “A Death in the Hospital.” The website recounts plaintiffs’ version of the facts and allegations of malpractice against the Hospital, its personnel, physicians and nurses involved in Seth Speken’s treatment.
After five years of litigation, the underlying action reached settlement. On July 8, 1999, plaintiffs and the Hospital executed a settlement, the terms of which were incorporated into a General Release. In addition, the terms of the settlement were transcribed and plaintiffs, on the record in open court, advised that they understood the terms of the settlement, that the settlement was voluntary and that it was not coerced. The settlement included the payment of $500,000 by the Hospital, complete confidentiality and the exchange of mutual releases. In addition, the settlement also required plaintiffs to dismantle their website and refrain from creating any similar websites. In particular, the General Release provided that:
The Releasors agree that they shall immediately
and permanently expunge their website located at
www.med-malpractice.com and shall not reissue,
open or create another Internet accessible site or
website concerning the allegations in this lawsuit,
the personnel, physicians, nurses and hospital
involved and/or the medical care and treatment
rendered to the decedent by the defendant and its
medical staff.
In addition, in open court, plaintiffs both agreed that they voluntarily entered into the settlement.
Despite the foregoing, by notice of motion dated October 24, 1999, plaintiffs moved to vacate the settlement, maintaining that the settlement was procured by fraud. Plaintiffs
apparently had second thoughts about agreeing to confidentiality and dismantling their website and claimed that defendant coerced them into entering into the settlement.
By decision and order dated March 31, 2000, Supreme Court, New York County (Heitler, J.) fully explored plaintiffs’ allegations and denied plaintiffs’ motion to vacate the settlement. The court specifically noted that the stipulation of settlement was preceded by the in-person testimony of both plaintiffs, who each agreed to the terms of the stipulation under oath. The court also noted that both plaintiffs executed the General Release, which specifically incorporated the terms of the settlement. The court explicitly found that the stipulation was not the product of fraud, duress or coercion. Specifically, Supreme Court held that:
[A] review of the record discloses no competent
evidence of fraud, duress or other cause sufficient to
invalidate this settlement. . . . Rather, it is clear
that, at the time that the stipulation was made,
plaintiffs were represented by counsel, knowingly
and voluntarily entered into the stipulation in open
court, and indicated that they were satisfied with the
agreement and that their judgment was not impaired
that day.
Supreme Court further emphasized that plaintiffs could not prove any of their allegations of fraud. In particular, the court noted that:
Plaintiffs admit that they have no direct proof that
[defendant], or anyone else, coerced them into
signing the General Release….
Moreover, it is clear that plaintiffs were intimately
involved in the settlement process, and were
represented at all times by an attorney of their own
choosing. These circumstances do not constitute
coercion or duress. . . . Plaintiffs, who are both
educated and sophisticated individuals, personally
attended and participated in virtually all of the eight
settlement conferences held by this Court. . .
In addition, plaintiffs clearly and unequivocally
testified in open court that their decision to settle
the case was made of their own free will, and that
they were not forced to do so by anyone. It is thus
clear that plaintiffs’ decision to settle this case was
their own, and not [defendant’s]….
Although plaintiffs also contend that their fear that
trial would begin immediately spurred them to sign
the General Release, a court’s direction that the
parties proceed to trial does not constitute coercion
or duress, since courts have inherent power to
control their calendars and the disposition of court
business….
Plaintiffs further allege that the deceptive actions of
[defendant], designed for his own financial gain,
constitute fraud. Plaintiffs’ claim of fraud,
however, is insufficient for vacatur of this
settlement….
Supreme Court continued, finding that plaintiffs did not establish coercion on the part of defendant and also finding that the explicit language of the General Release refuted any claim that plaintiffs were coerced into agreeing to dismantling their website. The court found that:
Plaintiffs have not established that their agreement
to settle this case was procured by fraud or
coercion. If [defendant] had threatened to resign if
they did not accept the settlement, that would not
have trapped plaintiffs into accepting an unwanted
settlement. Said information should have been put
before the court when a record was being made re
the settlement. [Plaintiffs] were under oath and had
the opportunity and obligation to advise the court at
that time that they did not want to settle and/or that
they were under duress….
Plaintiffs also contend that they would never have
agreed to refrain from “talking about what the
[H]ospital had done” had their will not been
“overcome”. . . . However, the clear wording of the
General Release, which both plaintiffs signed, and
which both plaintiffs testified that they had no
questions about, clearly prevented them from
publishing or continuing to publish their version of
the Hospital’s deficiencies in its treatment of Seth
Speken on their website.
On appeal, the Appellate Division, First Department affirmed the denial of plaintiffs’
motion to vacate the settlement. See, Speken v. Columbia Presbyterian Medical Center, 278
A.D.2d 154, 717 N.Y.S.2d 543 (1st. Dep’t 2000).
Plaintiff thereafter commenced a second action against the Hospital, seeking to relitigate the validity of the settlement agreement. The Hospital moved to dismiss the second action and, by order dated March 8, 2002, Supreme Court, New York County (Bransten, J.), granted the Hospital’s motion to dismiss, specifically finding that plaintiffs had an opportunity to fully litigate the validity of the settlement agreement. The Appellate Division, First Department again rejected plaintiffs’ arguments and this Court denied plaintiffs’ application for leave to appeal. See, Speken v. Columbia Presbyterian Medical Center, 304 A.D.2d 489, 759 N.Y.S.2d 47 (1st. Dep’t), leave denied, 100 N.Y.2d 511, 766 N.Y.S.2d 164 (2003).
B. The Instant Action
Plaintiffs thereafter commenced the instant action against defendant and, despite the fact that the issue of the settlement had already been litigated twice, plaintiffs alleged that defendant coerced them into settling the underlying action. By notice of motion dated August 2, 2002, defendant moved, pursuant to CPLR 3211 (a) (1), (5) and (7) to dismiss the complaint, maintaining that plaintiffs, who had twice asserted similar claims regarding the settlement agreement, should be collaterally estopped from bringing an action against defendant based on the same allegations.
By decision and order dated April 15, 2003, Supreme Court, New York County (Tolub, J.), granted defendant’s motion and dismissed plaintiffs’ complaint. After reviewing the factual and procedural history of the case, Supreme Court determined that plaintiffs’ claims are barred. In particular, the court held that:
The gravamen of Plaintiffs’ Complaint involves
claims of fraud, breach of fiduciary duty, breach of
contract, negligence and legal malpractice.
Although plaintiffs contend that the instant
complaint is not barred by the doctrine of res
judicata, the allegations contained within the
Complaint, most notably within the first and second
causes of action, admittedly arise directly from the
settlement of the original malpractice action.
Consequently, all of plaintiffs’ claims made in the
instant matter have either already been litigated or
could have been litigated in the actions brought
before Justice Heitler and Justice Bransten.
Accordingly, the doctrine of res judicata bars
further claims on these issues.
A copy of Supreme Court’s order is annexed hereto as Exhibit “A.”
In addition, Supreme Court found that defendant, who was hired to represent them in connection with an action against the Hospital, performed his duties. In particular, the court held that:
Plaintiffs hired defendant to represent them in
connection with the original malpractice action
against the Hospital. Defendant prepared the case
for trial, obtained additional trial counsel, and when
trial counsel withdrew, obtained new trial counsel.
Defendant then facilitated settlement negotiations
and succeeded in obtaining a $500,000 settlement in
favor of the plaintiffs conditioned on the
dismantling of plaintiffs’ website. The primary goal
of defendant’s engagement was to represent
plaintiffs’ action and in a best case scenario, obtain
a judgment in favor of the plaintiffs. This, in fact,
was accomplished when a settlement agreement was
reached. That plaintiffs have not been able to
collect the settlement amount due to their own
failure to comply with the terms of the settlement
agreement is not evidence of either legal
malpractice or breach of contract on the part of
defendant. Accordingly, as plaintiffs have not made
the requisite showing indicating either negligence or
breach of contract, plaintiffs’ third cause of action is
dismissed Exhibit “A.”
On appeal to the Appellate Division, First Department, plaintiffs argued that the doctrine of collateral estoppel did not bar the instant action because the issues of defendant’s alleged fraud surrounding the procurement of the settlement agreement that had been earlier decided in the underlying action were “gratuitous” findings to those proceedings. Defendant argued that the issues surrounding the settlement agreement, including the issues regarding defendant’s role in procuring the settlement, were fully explored in the underlying action and, in particular, the issues surrounding the allegations that defendant coerced plaintiffs into settlement were fundamental to the court’s conclusion to not vacate the settlement in the underlying action. A copy of defendant’s brief to the Appellate Division is annexed hereto as Exhibit “B.”
By decision and order dated April 6, 2004, the Appellate Division, First Department,
unanimously rejected plaintiffs’ arguments. A copy of the First Department’s decision and
order, together with notice of its entry, is annexed hereto as Exhibit “C.”
In its order, the First Department rejected plaintiffs’ argument, specifically noting that the arguments raised by plaintiffs were the same arguments that they had raised in previous litigations. The court held that:
The underlying action was for wrongful death based
on medical malpractice, and was settled just before
trial. Two attempts by plaintiff to vacate the
settlement were denied, the second on the ground
that it was precluded by the denial of the first. .
The instant action, which claims that the settlement
was a product of plaintiffs’ attorney’s malpractice,
fraud and disloyalty, must be dismissed for the same
reason; indeed, this precise claim was made and
necessarily rejected in plaintiffs’ first attempt to
vacate the settlement. . .
Exhibit “C” (citations omitted). Plaintiffs now seek leave to appeal to this Court.
ARGUMENT
THE ISSUES RAISED IN THE INSTANT
CASE ARE NOT RIPE FOR COURT OF
APPEALS REVIEW
Leave to appeal to the Court of Appeals is appropriate where the movant raises a novel issue of statewide importance, or where the decision conflicts with a prior Court of Appeals decision or with decisions of one of the Departments of the Appellate Division. See, 22 N.Y.C.R.R. § 500.1 1(d)(1)(v). None of these criteria have been met by plaintiffs.
Indeed, a review of plaintiffs’ application for leave to appeal reveals that they do not
even address any of the above-referenced criteria. Instead, after discussing the facts and the
procedural history of the matter, plaintiffs seek leave to appeal because “the Appellate Division overlooked our principal argument that the.. . finding that there was no evidence of defendant’s fraud and coercion. . . was gratuitous.” Plaintiffs’ Motion for Leave to Appeal, at ¶ 29.
Whether the Appellate Division overlooked an argument, however, is not a basis upon
which this Court permits further appellate review. Rather, that argument is utilized in
connection with motions to reargue, a procedural step of which plaintiffs could have availed
themselves by requesting that the Appellate Division reconsider its decision on that basis. It is
simply not a basis utilized by this Court on applications for leave to appeal.
In any event, it is clear that the Appellate Division did not overlook this issue. To be
sure, plaintiffs squarely raised this issue in its appellants’ brief and defendant squarely addressed it in opposition. In particular, defendant, in his respondent’s brief to the Appellate Division, stated that:
Plaintiffs, however, maintain that collateral estoppel
does not present an obstacle for consideration of
these issues because, according to them, Justice
Heitler’s findings with respect to issues of
defendant’s alleged coercion were “gratuitous.”
Plaintiffs argue that Justice Heitler’ s findings that
there was no evidence of fraud by defendant were
extraneous to her ultimate determination to not
vacate the settlement.
Yet, plaintiffs wholly ignore the fact that the central
reason why they requested vacatur of the settlement
was based on their contention that defendant
coerced them into agreeing to it. Justice Heitler’ s
findings, therefore, were not “gratuitous.” Rather,
the findings that defendant did not coerce plaintiffs
were fundamental to Supreme Court’s denial of
plaintiffs’ motion to vacate.
Moreover, plaintiffs ignore the central tenets of
application of the collateral estoppel doctrine.
Application of the doctrine precludes a party from
relitigating in a subsequent action “an issue clearly
raised in a prior action or proceeding and decided
against that party.” Ryan v. New York Telephone
Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823 (1984);
Misek-Falkoff v. American Lawyer Media, Inc.,
300 A.D.2d 215, 752 N.Y.S.2d 647 (1st Dep’t
2002), appeal denied, 100 N.Y.2d 508, 764
N.Y.S.2d 385 (2003). As fully explored above,
plaintiffs clearly raised the issue of defendant’s
alleged coercion in the underlying action and the
issue was decided against them. Plaintiffs,
therefore, are precluded from relitigating this same
issue in the instant litigation.
It is clear that the Appellate Division fully considered plaintiffs’ argument and rejected it. In so doing, the Appellate Division relied on Sei Young Choi v. Dworkin, 230 A.D.2d 780, 646 N.Y.S.2d 531 (2d Dep’t), appeal denied, 89 N.Y.2d 805, 658 N.Y.S.2d 918 (1996). There, the plaintiff commenced an action to recover damages for fraud, breach of fiduciary duty and breach of contract against his former attorney. In the underlying divorce action, the plaintiffs attorney negotiated a settlement of certain property issues. Thereafter, the plaintiff moved to vacate the settlement, maintaining that his attorney induced him to accept the settlement. The motion to vacate was denied. Because the issues regarding the attorney’s actions were raised in the application to vacate the settlement, the court held that the instant action was barred by the doctrine of collateral estoppel. In particular, the Appellate Division held that:
We agree with the Supreme Court that this action is
barred by the doctrine of collateral estoppel.
The plaintiffs claims regarding his attorney’s
conduct were previously raised in his application to
vacate the stipulation of settlement in the
matrimonial action, and his application was denied
on the merits. . . . Here, as in the matrimonial
action, the plaintiff claimed that the defendant, inter
alia misled him as to his options, induced him
under duress to accept the settlement, and failed to
protect his interests
Id at 781 (citations omitted). See also, Black v. White & Case, 280 A.D.2d 407, 721 N.Y.S.2d
44 (1st. Dep’t), appeal denied, 96 N.Y.2d 714, 729 N.Y.S.2d 442 (2001); Jung v. Gemmette, 249
A.D.2d 827, 671 N.Y.S.2d 862 (3d Dep’t), appeal denied, 92 N.Y.2d 807, 678 N.Y.S.2d 593
(1998); Bartkowski v. Friedman, 213 A.D.2d 873, 623 N.Y.S.2d 946 (3d Dep’t 1995); Schwarz
v. Shapiro, 202 A.D.2d 187, 608 N.Y.S.2d 210 (1st Dep’t), appeal denied, 83 N.Y.2d 760, 616
N.Y.S.2d 15 (1994).
Given the foregoing, plaintiffs have not met their burden of establishing that this matter is ripe for review by the Court of Appeals. Instead, plaintiffs have merely repeated the same arguments that they raised before the Appellate Division. The instant case involves the applicability of well-settled general legal principles of law. This case will not have far-reaching impact and is important only to the litigants named in the caption. Accordingly, leave to appeal is not warranted.
CONCLUSION
Based on the foregoing, the motion of plaintiffs-appellants for an order granting leave to appeal to the Court of Appeals should be denied, along with such other and further relief as this Court deems just and proper.
Dated: Uniondale, New York
May 27, 2004
Respectfully submitted,
RIVKIN RADLER LLP
Attorneys for Defendant-Respondent
THOMAS R. MOORE, ESQ.
By: ___________________________
Harris J. Zakarin
EAB Plaza
Uniondale, New York 11556-0111
(516) 357-3000
Of Counsel: Evan H. Krinick
Janice J. DiGennaro
Cheryl F. Korman
Harris J. Zakarin