Columbia’s Motion to Dismiss

A Death in the Hospital /Columbia’s Motion to Dismiss


As Co-Administrators of the Estate of Seth B.
SPEKEN, deceased, and RALPH H. SPEKEN and
STEPHANIE Z. SPEKEN, Individually,


– against-



LAURA R. SHAPIRO, under penalty of perjury, affirms as follows:

1. I am admitted to practice before the Courts of this State and am a member of the firm of McAloon & Friedman, P.C., attorneys for Defendant New York-Presbyterian Hospital s/h/a Columbia Presbyterian Medical Center (“defendant”). I submit this affirmation in support of defendant’s motion for an order pursuant to CPLR 3211 (a)(4) & (5) dismissing this action in its entirety.


2. Plaintiff’s commenced an action against defendant in 1994 to recover for alleged medical malpractice they claim resulted in the death of their adult son Exhibits A and B hereto are copies of the summons and complaint, and answer, in that action, respectively.

3. That action was settled on July 8, 1999, on the eve of the trial which settlement is embodied in a Release executed by both plaintiffs (ex. C). The settlement was also placed on the record before Justice Heitler of this Court on that date (ex. D).

Integral to the settlement was plaintiff’s agreement that they abide by a confidentiality provision which specified, among other things, that they must shut down a website they created which criticizes the hospital, its physicians, its lawyers, their own lawyers, the court, etc. In exchange for confidentiality and the end of the website, the defendant agreed to pay $500,000 in settlement. These terms were incorporated into a Release that was specific and clear. That confidentiality “about the lawsuit, decedent’s care…”

etc., was a pivotal part of the agreement cannot be denied. (ex.C).

This Release and settlement is confidential. Neither plaintiffs,
nor any attorney, agent or individual acting on their behalf shall
publicize or disclose the existence, circumstance or terms of this
Release or settlement except as required by law or regulation.

The Releasors [plaintiffs] further agree that neither they nor
any attorney, agent or individual acting on their behalf shall be
interviewed, discuss or otherwise disseminate or publicize
information about the allegations made in the above lawsuit,
decedent’s care and treatment at defendant hospital, the names or
description of any individual involved in the decedent’s
hospitalization or the hospital itself.

The Releasors agree that they shall immediately and
permanently expunge their website located at
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 it medical staff.

* * *

The Releasors agree that if they or their agents violate the
confidentiality and non-disclosure provisions of this Release and
settlement, plaintiffs shall be liable to the defendant, hospital, for the
full amount of the consideration recited herein and defendant,
hospital, will have the right to enter judgment against plaintiffs for
said amount. Should plaintiffs contest defendant’s allegation that they

breeched [sic] these provisions, such allegations and issues shall be
submitted for arbitration to an individual arbitrator mutually agreed
upon by both sides, or, alternatively, to the American Arbitration

Plaintiffs shut down the website after agreeing to do so, but then, at some point, resurrected it.

5. On or about October 24, 1999, plaintiffs moved to vacate the settlement agreement. Exhibit E hereto is a copy of plaintiffs’ notice of motion and moving affidavit, without exhibits. Defendant’s affirmation in opposition is annexed hereto as Exhibit F. Exhibit G hereto is a copy of plaintiffs’ reply papers, without exhibits. Exhibit H hereto is defendant’s Sur Reply. Plaintiffs’ motion was denied by Justice Heitler (ex I).

6. Plaintiffs appealed and the Appellate Division, First Department affirmed. Exhibit J hereto is a copy of plaintiffs’ appellants’ brief; Exhibit K hereto is a copy of defendant-respondent’s brief; Exhibit L hereto is a copy of plaintiffs’ reply brief; and Exhibit M hereto is a copy of the Appellate Division’s decision and order.

7. Defendant served the Appellate Division with notice of entry and plaintiffs did not move for leave to appeal (ex. M). Thus the settlement agreement, with its confidentiality provisions intact, was upheld. Accordingly, that lawsuit is over as is the question of the validity of the settlement agreement.


8. Plaintiffs now brought the present action, which seeks to challenge, again, the settlement agreement and its confidentiality provision. The first cause of action asserted in the Complaint alleges that the confidentiality provisions of the settlement, especially plaintiffs’ agreement to shut down the website, are illegal because defendant’s alleged malpractice constituted reckless endangerment in the second degree and thus they require plaintiffs to remain silent about a crime (ex. N at 8). The second cause of action alleges that the confidentiality provisions are void as against public policy because the right of the public to know about medical malpractice supercedes defendant’s right to enforcement of the confidentiality provisions (ex N at 8). Under each cause of action plaintiffs seek a judgment vacating “that provision of the parties’ settlement as requires plaintiffs to keep silent about defendant’s criminal conduct and to expunge their website ” (ex N at 9).


9. Plaintiffs challenged the validity of the settlement agreement, and of the confidentiality provision, in particular, in their motion to vacate the settlement in the prior action. They argued, inter alia, that their attorneys coerced them into settling, and that they never would have agreed to confidentiality if they had not been coerced into doing so. They argued this despite the fact that both of these highly educated plaintiffs testified that they understood the confidentiality provisions, agreed to them and that they would shut down the website, etc., (ex. D). Thereafter, plaintiffs did, indeed, shut down the website but, apparently, reconsidered their previous agreement to do so and decided to reactivate it. Then, in the motion to vacate the settlement agreement they clearly challenged the legality of the confidentiality provisions (ex. J at 38-42). Point III in plaintiffs’ initial brief in the Appellate Division was entitled, “THE STIPULATION CONSTITUTES AN UNLAWFUL CONTRACT FOR SILENCE” (ex J. at 38).

The Appellate Division rejected this challenge and enforced the settlement agreement(ex M).

10. Plaintiffs now try to relitigate this issue through the vehicle of this, a new and separate lawsuit. That, plaintiffs cannot do. 

11. Whether or not the arguments plaintiffs raise herein were raised in the prior action, res judicata bars the litigation not only of claims and issues that were litigated in a previous action, but also claims and issues that could have been litigated in the previous action. Buechel v. Bain, 275 AD2d 65, 713 NYS2d 332 (1st Dept, 2000); Carella v. Collins, 272 AD2d 645, 707 NYS2d 526 (3d Dept, 2000); Newton Garment Carriers, Inc. v Consolidated Carriers Corp., 250 AD2d 482, 673 NYS2d 631 (1st Dept, 1998); Coleman v. Chaibane Properties, Inc., 188 AD2d 413, 592 NYS2d 245 (1st Dept, 1992), motion for leave to appeal dismissed, 81 NY2d 1007, 599 NYS2d 806 (1993), leave to appeal denied, 84 NY2d 803, 617 NYS2d 137 (1994): Nottenberg v. Walber 985 Co., 160 AD2d 574, 554 NYS2d 217 (1st Dept, 1990); Boorman v. Deutsch, 152 AD2d 48, 547 NYS2d 18 (1st Dept, 1989); appeal dismissed, 76 NY2d 889, 561 NYS2d 550 (1990).

12. The second action or motion is barred even if the plaintiff relies on different theories or seeks a different remedy. Kleibert v. General Electric Co., 254 AD2d 197, 679 NYS2d 566 (1st Dept, 1998), motion for leave to appeal dismissed, 93 NY2d 9576, 694 NYS2d 634 (1999); Castellano v. City of New York, 251 AD2d 194, 674 NYS 2d 364 (1st Dept), appeal dismissed, 92 NY2d 919, 680 NYS2d 458, leave to appeal denied, 92 AD2d 817, 684 NYS2d 489 (1998), cert denied, 526 US 1131, 119 S Ct 1804 (1999); Brooklyn Welding Corp., v. City of New York, 198 AD2d 189, 604 NYS2d 87  (1s Dept., 1993),motion for leave to appeal dismissed, 83 NY2d 795, 611 NYS2d 128 (1994); Colemen, 188 AD2d 413, 592 NYS2d 245; Notenberg160 AD2d 574, 554 NYS2d 217. The second attempt to litigate is barred if the claims or theories in the second attempt arise from the same facts as the first. Sud v. Sud, 227 AD2d 319, 642 NYS2d 893 (1st Dept, 1996). 

13. In short, a plaintiff is not permitted a second bit at the apple if the theory in the second litigation was available at the time of the first as it is at the time of the second. Smith v. Russell Sage College, 54 NY2d 185, 194, 445 NYS2d 68 (1981).

14. Here, plaintiffs challenge the confidentiality provisions of the settlement agreement on a basis that it is against public policy because it allegedly requires plaintiffs to keep silent about a crime and because, allegedly, the right of the public to know about medical malpractice supersedes defendant’s rights under the settlement agreement. Both of these arguments are simple, straightforward albeit meritless legal arguments that could have, should have, and were raised in the prior action when plaintiffs moved to vacate the settlement agreement. As in Smith, these arguments were available then as they are now; further, they were rejected then as they must be now.

15. The present case is controlled by the principles stated above and is similar to cases in which a plaintiff sought to challenge a contract but had previously been held in default under the contract, Newton, 250 AD2d 482, 673 NYS2d 631; Brooklyn Welding, 198 Ad2d 189, 604 NYS2d 87, and in which a party

sought, on a new theory, to overturn an order he previously had appealed from,Carella, 272 Ad2d 645, 707 NYS2d 526. Plaintiffs previously brought a challenge to the separation agreement and cannot now avoid the principle of res judicata by challenging only a part of it on theory they thought up only after their previous challenge failed.

16. The issues in this new lawsuit have already been litigated. Accordingly, the present action must be dismissed.

WHEREFORE, we respectfully request that plaintiff’s complaint be dismissed in its entirety.

Dated: New York, New York
August 10, 2001
Laura R. Shapiro, Esq.