Memorandum of Law in Opposition to Plaintiffs-Appellants

A Death in the Hospital /Memorandum of Law in Opposition to Plaintiffs-Appellants

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