SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
RALPH H. SPEKEN, M.D., and
STEPHANIE Z. SPEKEN, M.S.,
SUMMONS
Plaintiffs,
Index No. 114722/02
Date Filed: July 5, 2002
–against-
THOMAS R. MOORE, ESQ.,
Defendant.
To the above named Defendant:
YOU ARE HEREBY SUMMONED to answer the verified complaint in this action and to serve a copy of your answer on the pro ~ plaintiffs within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the verified complaint.
Plaintiff designates New York County as the place of trial. The basis of the venue is defendant’s place of employment at 730 Fifth Avenue, Suite 900, New York, New York 10019.
Dated: Bronxville, New York
June 28, 2002
__________________________
Ralph H. Speken, M.D.
___________________________
Stephanie Z. Speken, M.S.
Plaintiffs Pro Se
Defendant’s Address:
THOMAS R. MOORE, ESQ.
730 Fifth Avenue, Suite 900
New York, New York 10019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
RALPH H. SPEKEN, M.D., and
STEPHANIE Z. SPEKEN, M.S
Plaintiffs,
– against-
VERIFIED COMPLAINT
THOMAS R. MOORE, ESQ.,
Index No. 114722/02
Defendant
Date Filed: July 5, 2002
Plaintiff, Ralph H. Speken, M.D. and Stephanie Z. Speken, M.S., as and for their verified complaint against defendant, respectfully allege as follows:
1. Plaintiffs reside at 81 Pondfield Road, Suite 179, Bronxville, New York.
2. Upon information and belief, at all times relevant hereto, defendant Thomas R. Moore, Esq., was and still is an attorney at law duly admitted to practice law in the State of New York.
3. Upon information and belief, and at all times relevant hereto, defendant conducted and maintained an office for the practice of law at 730 Fifth Avenue, Suite 900, New York, New York 10019.
4. On or about June 22, 1994, plaintiffs consulted with and retained defendant to represent them in a medical malpractice action against Columbia Presbyterian Medical Center in the Supreme Court, New York County, entitled RALPH H. SPEKEN and STEPHANIE Z. SPEKEN. as Co-Administrators of the Estate of SETH B. SPEKEN, deceased, and RALPH H. SPEKEN and STEPHANIE Z. SPEKEN. Individually v. COLUMBIA PRESBYTERIAN MEDICAL CENTER, et al, Index No. 128682/94 to recover damages for medical malpractice arising out of the death of their son, Seth (the “Medical Malpractice Action”).
5. On or about June 22, 1994, plaintiffs signed a written retainer agreement with defendant to prosecute the aforesaid Medical Malpractice Action.
6. In order to induce plaintiffs to retain him in the Medical Malpractice Action, defendant represented to plaintiffs that he was fully competent and capable to handle the Medical Malpractice Action in a proper, skillful and diligent manner through jury selection and trial.
7. Thereafter, defendant commenced the Medical Malpractice Action on behalf of plaintiffs.
8. When the Medical Malpractice Action came up for trial, defendant informed plaintiffs that he was not able to handle the trial.
9. However, defendant had previously informed plaintiffs that he would “come in at the end and do the trial himself”.
10. On or aboutJune 14,1999, defendant informed plaintiffs by telephone that he and Richard Frank, Esq., were going to pick a jury.
11. Thereafter, defendant informed plaintiffs that the trial had been postponed to June 21, 1999.
12. On or about June 21, 1999, defendant informed plaintiffs that Mr. Frank had a “bad back” and that jury selection had to be postponed.
13. On or about June 24, 1999, defendant informed plaintiffs by telephone that Mr. Frank is “out of the case, and it’s a good thing”.
14. Shortly thereafter, plaintiffs received a letter from Mr. Frank in which he stated that he was withdrawing and/or resigning from the Medical Malpractice Action.
15. On or about June 28, 1999, defendant informed plaintiffs that the Trial Court in the Medical Malpractice Action directed that plaintiffs appear in court to swear under oath that they requested that Mr. Frank be relieved from the Medical Malpractice Action.
16. Plaintiffs informed defendant that they did not want to make such a representation to the Court, but defendant threatened plaintiffs that Mr. Frank would “ruin the case” if he was not “discharged” by plaintiffs.
17. Plaintiffs had no choice but to follow defendant’s direction, and to appear before the Trial Court to request that Mr. Frank be discharged.
18. After the Trial Court approved the discharge of Mr. Frank, defendant informed plaintiffs that he had already retained another lawyer to try the Medical Malpractice Action.
19. On or about June 29, 1999, defendant and plaintiffs met with the law firm of Assail and Yoelli.
20. However, Assail and Yoelli refused to try the Medical Malpractice Action.
21. Thereafter, on or about July 8, 1999, defendant telephoned plaintiff Stephanie Speken and stated that he had settled the Medical Malpractice Action and that plaintiffs were required to sign general releases and appear before the Trial Court immediately.
22. In response, plaintiffs met with defendant on July 8, 1999 at his office to discuss the settlement.
23. During this July 8,1999 meeting at defendant’s office, defendant stated that plaintiffs had no choice but to accept the settlement and to sign general releases because, inter alia:
(a) If plaintiffs did not sign releases, the Trial Judge would immediately “close down” the case.
(b) The Trial Judge was “corrupt” and therefore it was no use talking to the Judge and trying to do so would only “make matters worse” for plaintiffs;
(c) Columbia Presbyterian Medical Center intended to commence a “multi-million dollar” defamation suit against plaintiffs with respect to their website related to the events alleged in the Medical Malpractice Action;
(d) Defendant would not represent plaintiffs in the defense of the defamation action;
(e) Defendant would have no choice but to resign from the Medical Malpractice Action if plaintiffs did not accept the settlement and sign general releases;
(f) For the first time, defendant stated that he did not have the skills and was not prepared to try the case, and that Laura Shapiro [Columbian Presbyterian’s attorney] would “crush me”; and
(g) Defendant had negotiated the settlement in such a way that plaintiffs would be able to keep their website up and running with only “minor” changes (such as changing the names of the doctors).
24. Plaintiffs informed defendant that they would not accept the settlement, and that they wished to proceed to trial.
25. During the taxicab ride to the Court on July 8, 1999, defendant repeated the above “reasons” and again threatened to withdraw from the case if plaintiffs did not accept the settlement.
26. Prior to meeting with the Trial Judge in chambers, defendant told plaintiffs that they would have to state to the Court that they consented to the settlement (even though he knew they did not).
27. Feeling helpless and betrayed, plaintiffs ultimately succumbed to defendant’s duress, threats, intimidation, lies, false representations and coercion and informed the Trial Court in the Medical Malpractice Action that they accepted the settlement negotiated by defendant and had voluntarily executed general releases.
28. Approximately one week later, defendant telephoned plaintiffs and told them that Columbia Presbyterian Medical Center was demanding that the website be taken down “immediately” and “completely”.
29. When plaintiffs responded that defendant had told them that they only had to make “minor” changes to their website, defendant replied that he would “work on it” later and inform them of the needed changes so that they keep their website up and running.
30. Despite repeated calls to defendant’s office, none of plaintiffs’ calls were returned, and, to this day, defendant has never got back to plaintiffs with respect to the website.
31. On or about August 24, 1999, plaintiffs were advised by another law firm that the terms of the settlement required plaintiffs to take down their website immediately and completely, that defendant’s representations that plaintiffs had only to make”” changes, was erroneous and indeed false, and that continuing with the website running would expose plaintiffs to a defamation lawsuit.
32. At all times relevant hereto, plaintiffs relied in good faith on defendant’s aforesaid advice, promises, statements and representations, and did not know that defendant had lied to them in a fraudulent and deceitful attempt to induce them to accept the settlement of the Medical Malpractice Action.
33. Upon information and belief, defendant fraudulently made the aforesaid promises, statements and representations knowing that they were false and untrue and in an attempt to deceive and coerce plaintiffs into settling the Medical Malpractice Action.
34. But for defendant’s fraudulent and false promises, statements and representations, on which plaintiffs relied in good faith, plaintiffs would not have entered into the settlement of the Medical Malpractice Action.
FIRST CAUSE OF ACTION
35. Plaintiffs repeat each and every allegation contained in paragraphs “1” through and including “34”, supra, as if fully set forth at length herein.
36. Defendants’ aforesaid advice, promises, statements and representations were deliberately false and untrue, and were gross, wanton and willful.
37. By reason of defendant’s fraud and deceit, plaintiffs have been damaged in the sum of $500,000, which is the amount of the monetary settlement of the Medical Malpractice Action which plaintiffs cannot receive because they refuse to take down their aforesaid website.
SECOND CAUSE OF ACTION
38. Plaintiffs repeat each and every allegation contained in paragraphs “1” through and including “37”, supra, as if fully set forth at length herein.
39. By reason of defendant’s breach of fiduciary duties owed to plaintiffs,. plaintiffs have been damaged in the sum of $500,000, which is the amount of the monetary settlement of the Medical Malpractice Action which plaintiffs cannot receive because they refuse to take down their aforesaid website.
THIRD CAUSE OF ACTION
40. Plaintiff repeats each and every allegation contained in paragraphs ‘1″ through “39”, supra, as if fully set forth at length herein.
41. In support of defendant’s obligation to represent plaintiffs as their attorney in the Medical Malpractice Action, defendant represented, by virtue of being an attorney-at-law duly admitted to practice law in the State of New York, that he would fully and faithfully perform all the services in conjunction with his representation of plaintiffs in such Action.
42. Defendant had a duty to be possessed with ordinary and reasonable skill, diligence and knowledge in fully attending to plaintiff’s interests.
43. Defendant failed to exercise ordinary and reasonable care, skill, diligence and knowledge which he possessed so as to prevent prejudice and damage to plaintiffs.
44. Upon information and belief, as a direct result of defendants’ failure to perform his professional duties and fiduciary obligations properly on behalf of plaintiffs, to honor his commitment as an attorney for plaintiffs pursuant to the aforesaid retainer, to perform and exercise reasonable care and diligence on behalf of plaintiffs, plaintiffs have sustained and continues to sustain financial loss and anguish, aggravation, and mental suffering and have been caused expense and monetary loss therefor.
45. Defendant failed to faithfully and properly perform his legal services on behalf of plaintiffs, for which he had been retained.
46. By reason of the foregoing, defendant breached his contract with plaintiffs to fully and faithfully perform legal services on behalf of plaintiffs and caused plaintiffs to suffer damages.
47. By reason of defendant’s breach of contract, plaintiffs have been damaged in the sum of $500,000, which is the amount of the monetary settlement of the Medical Malpractice Action which plaintiffs cannot receive because they refuse to take down their aforesaid website.
FOURTH CAUSE OF ACTION
48 Plaintiffs repeat each and every allegation contained in paragraphs “1”
through and including “47’, supra, as if fully set forth at length herein.
49. By reason of defendant’s negligence and legal malpractice, plaintiffs have been damaged in the sum of $500,000, which is the amount of the monetary settlement of the Medical Malpractice Action which plaintiffs cannot receive because they refuse to take down their aforesaid website.
WHEREFORE, plaintiffs demand judgment against defendant as follows:
(1) On the first cause of action, awarding plaintiffs damages in the sum of $500,000, together with an award of punitive damages in the sum of no less than $5,000,000;
(2) On the second cause of action, awarding plaintiffs damages in the sum of $500,000 together with an award of punitive damages in the sum of no less than $5,000,000;
(3) On the fourth cause of action, awarding plaintiffs damages in the sum of $500,000; and
(4) awarding such other and further relief as the Court deems just and proper
together with appropriate interest and the costs and disbursements of this action.
Dated: Bronxville, New York
June 28, 2002
________________________
Ralph H. Speken, M.D.
________________________
Stephanie Z. Speken, M.S.