Columbia’s Support of Their Motion to Dismiss

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


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


– 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”) . This affirmation is submitted in further support of defendant’s motion for an order pursuant to CPLR 3211(a) (4) & (5) dismissing this action and granting defendant such other and further relief as the Court deems proper and in response to the Affidavit of Ralph H. Speken, M.D. and Stephanie Z. Speken, denominated “Reply to Notice of Motion, “sworn to September 10, 2001 (“Pltf. Aff.”) . The facts set forth below are taken from the record in this action. 

2. Plaintiffs concede, and indeed affirmatively assert the position that the alleged criminality of defendant’s medical treatment and the alleged illegality of the confidentiality provision in the Settlement Agreement and General Release were in fact raised in the previous action (Pltf. Aff. ¶¶ 2, 6) . Plaintiffs also concede, in the very first paragraph of their affidavit, that the principle of res judicata applies not just to claims actually raised but also to relevant issues that could have been litigated (Pltf. Aff. i) . It thus is clear that defendant’s motion must be granted.

3. Plaintiffs attempt to wriggle out of the situation by arguing that this Court did not expressly refer to their claim of criminality in its decision and order denying their motion to vacate the general release (Pltf. Aff. ¶¶ 12; Affirmation in Support of Motion for Dismissal of Action of Laura R. Shapiro: dated August 10, 2001 (“Shapiro Aff.”), ex. I). First, the Court was not obligated to reiterate every argument plaintiffs made. Second, if plaintiffs believed that the Court overlooked an important argument the remedy at that point would have been a motion for reargument, not a new lawsuit. CPLR 2221(d).

4. It is important to note that plaintiffs’ underlying lawsuit alleged medical negligence and sought money damages. They claim that the same acts that were negligent also rose to the level of criminality. Giving the same acts different labels doesn’t make them different acts. This misguided effort is nothing more than a transparent attempt to collect the settlement funds despite plaintiffs clear breach of the terms of the settlement agreement, i.e., the confidentiality provisions. This Court already reviewed and rejected the argument that plaintiffs’ could not be “silenced” about defendant’s conduct (Shapiro Aff. ex. I at 25)

          Plaintiffs also contend that they never would
          have agreed to refrain from “talking about
          what the hospital had done” had their will not
          been “overcome” (11/27/99 Speken Aff., at 9).
          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 ….

It is quite clear that plaintiffs already argued, and lost the argument, that they could not have agreed to confidentiality. They did make the agreement to do just that and it was upheld as valid, not just in this court but on appeal, as well. Plaintiffs can try to disguise the real issues but such an attempt must be rejected.

All issues about the validity and legality of the settlement agreement, including its confidentiality provisions, were already argued and adjudicated with finality.

5. Much of plaintiffs’ papers is devoted to their argument that the doctrine of collateral estoppel, or issue preclusion, does not attach here. But res judicata, or claim preclusion, does attach and bars this action. Thus, any question of collateral estoppel is irrelevant. However, we note that the doctrine of collateral estoppel also applies because the specific issue of whether the confidentiality provision in the General Release was valid was addressed and resolved against plaintiff’s claim that it was illegal. This Court and the Appellate Division upheld the general release in toto. In other words, the issue of whether the confidentiality provision should be held invalid for any reason, including plaintiff’s claim that defendant’s actions were criminal, necessarily was determined in the prior action.

See Schwartz v. Public Administrator of the Bronx, 24 NY2d 65, 71, 298 NYS2d 955 (1969). Plaintiffs’ citation to the Restatement of Judgments is to a section concerning collateral estoppel, not res judicata (Pltf. Aff. ¶36)

6. Reilly v. Reid, 45 NY2d 24, 407 NYS2d 645 (1978) claimed by plaintiffs to speak to the exact situation here, in fact demonstrates that this complaint must be dismissed (Pltf. Aff. ¶23). There, a civil servant whose position had been abolished brought an article 78 proceeding in which he argued that his position in fact had not been abolished but that its functions had been transferred to an exempt position. The Court of Appeals held that res judicata barred the civil servant from bringing a second article 78 proceeding in which he claimed that the abolition of his position was illegal. The Court held that the appropriate formulation of the test for claim preclusion was whether the two actions have “such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first.” 45 NY2d at 28, 407 NYS2d 645 (quoting Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 NY 304, 306-07).

That certainly is the case here: the judgment that plaintiffs seek would excise from the general release a provision that was crucial to the settlement, was bargained for by defendant and was enforced by this Court and the Appellate Division.

7. The Reilly Court also stated that res judicata “is designed to provide finality in the resolution of disputes to assure that parties may not be vexed by further litigation.” Id. (citation omitted). The Court also stated that in that case, to conclude that res judicata did not bar the second action “would be to afford petitioner a second opportunity to obtain substantially the same relief he was denied in the prior proceeding, based on the same actions of the respondents. This is precisely the type of repetitive litigation the doctrine of claim preclusion is designed to avoid.” Id. at 31, 47 NYS2d 645. Application of the doctrine certainly is needed here for this reason, as it appears that plaintiffs intend to continue to misuse the legal system to attempt to get out from under the very confidentiality provisions they agreed to under oath and which has already been upheld.

8. Finally, the quotation from Reilly offered by plaintiffs is taken out of context. That case states:

       [C]laim preclusion is tempered by recognition
        that two or more different and distinct claims
        or causes of action may often arise out of a
        course of dealing between the same parties
    even thought it is not, except in refined
        legal analysis, easy to say that a different
        gravamen is factually involved. A party’s
        choice to litigate two such claims or causes
        of action separately does not bar his
        assertion of the second claim or cause of

Id. at 28-29, 407 NYS2d 645 (citations omitted)

9. First and foremost, plaintiffs have conceded that their claim of criminality was actually litigated in the prior

action, and thus this quotation is irrelevant. 

10. Moreover, plaintiffs argue, inconsistently, that there are two gravamen here, one being that they were cornered into signing the general release and the other being defendant’s criminality (Pltf. Aff. ¶24) . But plaintiffs argued in the prior action that the general release should be set aside because of the interplay between the coercion they allegedly suffered at the hands of their attorneys and the Court and the alleged overall illegality of the confidentiality provision based on their characterization of the hospital’s treatment as criminal. (Shapiro Aff. ex. J at 38, 40, 41, ex. L at 3, 4). These are not separate claims arising from a “course of dealing,” as referred to in Reilly, such as repeated contracts between businesses, as evidence by the Court’s citation of Secor v. Sturgis, 16 NY 548, 554 (1858), a commercial case in which the plaintiff brought 2 actions on 2 separate accounts at 2 of its branches.

11. The crime of compounding a crime is not relevant here, even assuming, which we by no means concede, that defendant’s treatment constituted reckless endangerment in the second degree (Pltf. Aff. ex. A). Penal Law ¶215.45. Subsection 2 of the statute provides that it is an affirmative defense that the consideration given was believed by the defendant not to exceed the amount owed as restitution for the crime (Pltf. Aff. ex. A). That certainly is the case here. And the statute of limitations for reckless endangerment in the second degree is 2 years. Criminal Procedure Law ¶30.10(1) & (2) (c); Penal Law ¶120.20. Because Seth Speken expired in 1993, plaintiffs are no longer able to initiate a prosecution and thus did not accept a benefit on the understanding that they would refrain from doing that. 

13. Finally, this second lawsuit only pretends to be about regaining the ability to speak out after plaintiffs previously agreed to forfeit it. Although they initially shutdown the website after agreeing to do so, they subsequently resurrected it. 

Plaintiffs constantly add to and update the website including comments about their new legal maneuvers and these very motion papers! Thus, it is clear, despite what they say, that plaintiffs are not suing in order to regain the ability to speak, because they have been doing that ever since they reestablished their website.

The hospital cannot physically prevent plaintiffs from speaking nor has it in any way tried to do so; plaintiffs’ choice is to speak and forfeit the settlement money or maintain confidentiality and get the money. By this lawsuit plaintiffs are trying to both violate the confidentiality provision they agreed to under oath and get the money, money that defendant agreed to pay only if plaintiffs would abide by the confidentiality provision.

WHEREFORE, plaintiffs’ complaint should be dismissed in its entirety and defendant should be granted such other and further relief as the Court deems proper.

Dated: New York, New York
October 3, 2001