Motion to Dismiss Legal Malpractice Lawsuit

A Death in the Hospital /Motion to Dismiss Legal Malpractice Lawsuit


RALPH H. SPEKEN, M.D. and STEPHANIE Z. SPEKEN,     Index No. 114722/02



-against –



Janice J. DiGennaro, Esq., an attorney duly admitted to practice law within the Courts of the State of New York, affirms the following under the penalties of perjury:

1. I am a member of the firm of Rivkin Radler LLP, attorneys for defendant, Thomas R. Moore, Esq. (“Moore”) and as such I am fully familiar with the facts relative hereto. I submit this affirmation and the accompanying memorandum of law in support of defendant’s motion to dismiss pursuant to CPLR §~321 1(a)(1), (5) and (7) on the grounds that the complaint is barred by the doctrines of collateral estoppel, waiver is barred by documentary evidence and fails to state a cause of action. See Plain ifs’ Summons and Complaint annexed hereto collectively as Exhibit “A.”


2. The plaintiffs herein previously settled a wrongful death/medical malpractice action on behalf of the estate of their deceased son for $500,000 with Columbia Presbyterian Hospital (“Columbia”), after a full allocution on the record under oath relative to its voluntariness and the absence of any fraud, duress or coercion. Plaintiffs nevertheless sought to vacate the settlement thereafter in the underlying proceedings claiming that their former lawyer, defendant Moore herein, coerced and misled them. Plaintiffs’ primary grievance was the provision of the settlement requiring confidentiality and the dismantling of their website in which they condemn the treatment their son received by Columbia. In this regard, despite the express language of the agreement entered and their acknowledgement of their understanding of it on the record, plaintiffs contended below that they did not understand that they would be required to dismantle their website because of defendant Moore’s fraud and duress. The Court below, nevertheless, concluded that the plaintiffs’ decision to settle was their own and not the product of duress, fraud or coercion of their former counsel. This decision was affirmed on appeal. After having two complete bites at the apple, they again raise the issue of defendant’s alleged fraud, duress or coercion as a predicate for the instant legal malpractice action. The plaintiffs had a full and fair opportunity to litigate the issues relevant hereto in the prior proceedings and the doctrine of collateral estoppel bars the instant attempt to have yet a third bite at the apple.

3. Plaintiffs also sought in the underlying action to vacate defendant Moore’s attorney’s fee lien on the subject settlement, which motion was also denied. This prior adjudication acknowledging Moore’s lien and entitlement to his fee is also a bar to the instant claims of malpractice.

4. The doctrines of waiver and estoppel also foreclose the instant complaint to the extent plaintiffs base their claim upon the loss of rights that plaintiffs knowingly and voluntarily relinquished, both in open court and in the plain language of the General Release that they acknowledged they read, understood and signed.



5. The fraud, malpractice, breach of contract and breach of fiduciary duty claims pled are all based upon identical allegations that the defendant misled plaintiffs and exerted duress and coercion upon them to compel them to settle their underlying claim for wrongful death/medical malpractice. They are each subject to dismissal insofar as they are barred by:

(a) the doctrine of collateral estoppel; and

(b) the doctrine of waiver.

6. Moreover, plaintiffs seek recovery of both punitive damages and damages for their psychological and emotional suffering. Neither categories of damages are compensable herein.


The Underlying Lawsuit With Columbia

7. In August 1993, plaintiffs’ son, Seth Speken, was admitted to Columbia following a seizure. He apparently suffered from Crohn’s disease, panic attacks and depression. He was receiving medication from an outside psychiatrist as well as his father, Dr. Speken, one of the plaintiffs herein who is also a psychiatrist. During his stay at the hospital, he became delirious, was placed in ankle and wrist restraints and developed an embolism that caused his death

8. Plaintiffs engaged the defendant herein thereafter to prosecute a civil wrongful death action against Columbia and the action was commenced in October 1994

by plaintiffs herein, individually and as administrators of Seth Speken’s estate.

9. Plaintiffs created and operated a website located at called “A Death in the Hospital” in which they recounted their version of the facts and allegations of malpractice against the personnel, physicians, nurses and hospital personnel involved in their son’s care and treatment.

The Settlement With Columbia

10. The action was litigated for five years until July 8, 1999, at which time a settlement was agreed to by and between the plaintiffs and Columbia while represented by the defendant herein. The terms of the settlement were incorporated into a General Release and were read into the record. The settlement included the payment of $500,000 by Columbia and complete confidentiality and exchange of mutual releases.

11. The General Release executed by each of the Spekens expressly provided that they:

                “shall immediately and permanently expunge their website
                …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.”

1Plaintiffs have also now added a defamatory attack against defendant Moore to their website

12. On the record in the Spekens’ presence, Mr. Moore stated that they each
agreed of [their] own free will, having read and understood the document, that this is a general release and settlement that [they] wish to enter into.”

13. The Court thereafter swore both plaintiffs in and allocuted each of them regarding both their understanding of the terms of the agreement, its voluntariness and the absence of any duress or coercion regarding their decision to settle.

14. Specifically, the Court and Dr. Speken exchanged the following colloquy:

      Q. Dr. Speken, do you understand the terms of the settlement?

      A. Yes.

      Q. And do you agree to these terms, Sir?

      A. Yes.

Id. at p. 3.

      Q. And, sir, are you doing this of your own free will?

      A. Yes.

      Q. Has anybody forced you into this?

      A. No.

Id. at p. 3.

      Q. Have you read what is referred to as the General Release, Sir, and

           is that your signature on page 3?

          A. Yes, it is.

          Q. And do you have any questions with regard to this release, Sir?

          A. No.

Id. at p. 4.

The virtually identical series of questions and answers were exchanged with Mrs. Speken.

Id. at pp. 4-5.

15. The Court concluded the settlement allocution by stating to both plaintiffs:

      Q.  And you understand there is a confidentiality agreement here with

            regard to this incident in this hospital?

       Mrs. Speken:   A.     Yes

       Q.  Do you understand that, Sir?

       Dr. Speken:     A.      Yes

Id. at p. 6.

Plaintiffs’ Unsuccessful Attempts To Vacate The Settlement

16. Despite the foregoing, on October 24, 1999, plaintiffs had second thoughts about agreeing to confidentiality and the shutting down of their website and moved to vacate the settlement and defendant Moore’s attorney’s fee lien on the grounds that the defendant, Moore, coerced them into agreeing to it and as such the settlement was procured by fraud, duress and coercion.

17. Specifically, plaintiffs contended, as they allege in this action, that they had “no choice” but to accept the agreement Moore and the hospital worked out because Moore told them that if they refused to sign the agreement, he would immediately resign from the case and Columbia’s attorney would get the Court’s approval to immediately go to trial whether or not they had a lawyer; and that if they refused to sign the agreement, the hospital intended to begin a defamation suit immediately. 

18. The Spekens further objected to both confidentiality and the dismantling of their website and claimed that they never would have agreed to not talk about what the hospital had done had their will not been overcome. Id. at p. 25. They contended that Moore lied to them regarding dismantling their website, rendering the settlement fraudulent and coercive. Id. at p. 25.

19. The Court, after going through the aforementioned allocution on the record and the express language of the General Release, rejected entirely plaintiffs’ contention that the settlement resulted from Mr. Moore’s fraud, duress or coercion. The Court also explicitly rejected plaintiffs’ claim that they never would have agreed to refrain from talking about what the hospital had done had their will not been overcome. Id. at p. 25.

20. On the issue of voluntariness and the absence of fraud, duress or coercion, the Court made the following factual findings:

“….. 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 their judgment was not impaired that day. .”

Id. at p. 20.

21. The Court expressly found that:

“….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 Moore’s. ..”

Id. at p. 23 (emphasis added).

The Court continued that:

                     “Plaintiffs have not established that their agreement to
                     settle this case was procured by fraud or coercion. If
                     Moore had threatened to resign if they did not accept this
                     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. The Spekens 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…”

Id. at pp.24-25.

22. As to the claim that they never would agree to take down their website, the

Court held that:

                      “…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…”

23. Plaintiffs also sought to vacate attorney Moore’s fee lien because of his

actions in the case. Id.

24. Ultimately, the motion to vacate the settlement and defendant Moore’s lien was denied. Id. at p. 29. The court held that:

                      “…the amount of attorney’s fees in this action is limited
                      to the percentages contained in the statutory fee schedule,
                      thus yielding a maximum attorney fee of $137,500…”

Id. at p. 17.

25. The decision denying the motion to vacate the settlement and attorney’s lien was appealed and affirmed by the Appellate Division by Order dated December 21, 2000.

The Second Action Against Columbia

26. Undeterred by all of the foregoing, plaintiffs nevertheless commenced a second action against Columbia, individually and on behalf of their son’s estate, alleging the following causes of action: that the confidentiality provisions of the settlement, particularly the discontinuance of the website, was void as illegal because it required plaintiff to remain silent about a crime (i.e., reckless endangerment of their son); the confidentiality provision was void as against public policy because the right of the public to know about medical malpractice supersedes the right to enforcement of the confidentiality provision.

27. Columbia moved to dismiss, arguing that the action was barred by res judicata because the validity of the settlement was addressed in the prior action. The Court, by Judge Eileen Bransten, granted the motion and held that res judicata precluded the Spekens from maintaining this cause of action and the clerk was directed to enter judgment by decision dated March 8, 2002.

The Instant Complaint

28. Despite the foregoing unsuccessful attacks on the subject settlement, plaintiffs have brought the instant malpractice action in which they allege the precise grounds to support their claims of fraud, breach of fiduciary duty, breach of contract and malpractice as repeatedly rejected in these prior actions. Thus, just as the Spekens

alleged in their motion to vacate the settlement, they allege herein that the defendant misled them and coerced them to settle and such conduct constituted malpractice, fraud, breach of fiduciary duty and breach of contract. As in the earlier action, plaintiffs claim they had no choice but to accept the settlement and sign the General Releases because: the defendant told them the trial judge would immediately close down the case; Columbia intended to commence a multimillion dollar defamation action relative to their website; defendant would not represent them regarding the defense of defamation; defendant would have no choice but to resign if plaintiffs did not accept the settlement; defendant did not have the skills to try the case and was not prepared to do so; and defendant had negotiated the settlement so that plaintiffs would be able to keep the website up with only minor changes.

29. Plaintiffs claim they initially refused to settle but ultimately succumbed tothe duress and coercion, while also and incongruously conceding that they “accepted thesettlement negotiated by defendant and had voluntarily executed general releases. Id. at ¶27,p. 5.

30. As discussed hereinafter and in greater detail in the accompanying Memorandum of Law, the claims pled must be dismissed as barred by the doctrines of collateral estoppel and waiver.

Collateral Estoppel

The Prior Adjudication Established The Settlement Was Voluntarily Entered

31. The issue of whether a pleading sufficiently states a cause of action for legal malpractice poses a question of law which can be determined on a motion to

dismiss. The plaintiffs’ assertion of the same essential factual claim under different theories, including malpractice, fraud, breach of contract and breach of fiduciary duty, justifies dismissal of the latter claims for that reason alone, as they are merely redundant of the malpractice claimed. Furthermore, each claim, inclusive of the malpractice claim, is itself barred by the doctrine of collateral estoppel and waiver, which can be resolved as a matter of law on this motion.

32. The instant complaint contains redundant claims of malpractice, fraud, breach of fiduciary duty and breach of contract, all premised upon the defendant Moore’s alleged fraud, duress and coercion of the plaintiffs who were allegedly forced to enter the subject settlement of the medical malpractice action with Columbia.. These precise factual claims of fraud, duress and coercion were previously raised and rejected in the prior proceedings with Columbia and the doctrine of collateral estoppel prevents their re-litigation here under the guise of a legal malpractice action. The doctrine of collateral estoppel is based on the general principle that a party should not be permitted to re-litigate an issue decided against it. The doctrine is applied in situations where the identical issue was necessarily decided in the prior action and is decisive in the present action. The doctrine of collateral estoppel will permit any discrete factual issue that was necessarily decided in the prior action to be given preclusive effect regardless of the overall legal context in which the issue was raised.

33. The plaintiffs herein already unsuccessfully litigated the issue of whether the settlement in issue was voluntarily entered into or was the by-product of fraud, duress or coercion of their former attorney in the prior proceedings against Columbia. In this action, plaintiffs make the identical claim of fraud, coercion and

duress. This rejection of the issues of coercion, duress and fraudulent inducement into the settlement (ultimately affirmed on appeal) cannot be re-litigated in this action against Moore under the guise of the instant malpractice action, as the doctrine of collateral estoppel bars the claim. It is important to note that it is not significant that the issue of voluntariness and absence of fraud were decided in a different context or different type of action (i.e., motion to vacate settlement in wrongful death action and motion to dismiss malpractice action); the doctrine of collateral estoppel will permit any discrete factual issue necessarily decided in the prior action to be given preclusive effect regardless of the overall legal context.

34. The prior adjudication in the underlying matter affirmed on appeal, found no duress, coercion or fraud in plaintiffs’ entry into the subject settlement and forecloses the re-litigation of these identical issues here under the guise of the malpractice, breach of fiduciary duty, fraud and breach of contract claims pled.

The Prior Adjudication Acknowledged Defendant’s
Attorney’s Lien And Entitlement To A Fee

35. Moreover, the prior denial of plaintiffs’ motion to vacate Moore’s attorney’s fee lien bars the claim as well. In this regard, the plaintiffs’ motion to vacate the settlement below was also accompanied by a motion to vacate the attorney’s lien on the settlement achieved. That motion to vacate the lien was also unequivocally denied. While the issue of the division of fees by and between plaintiffs’ other lawyers and defendant Moore was referred to a referee, defendant Moore’s entitlement to a fee as the estate’s counsel and the maximum fee recoverable, was plainly quantified and recognized. It is well established that a claim of malpractice or breach of fiduciary duty is precluded by a judicial

determination fixing the value of a professional’s services. This rule has been analyzed under familiar principles of res judicata or claim preclusion under the related doctrine of collateral estoppel or issue preclusion or the doctrine barring collateral attacks upon judgments. The rule barring litigation of malpractice claims after a prior determination that an attorney is entitled to his fee has been applied regardless of whether the issue of the adequacy of representation was specifically raised and decided on the merits as it is implicit in the entitlement to fees, as an attorney who commits malpractice is not entitled to his fee. The foregoing rule has been expressly applied where an attorney seeks a charging lien for services rendered by him in an action.

36. Here, Moore’s entitlement to his attorney’s lien was expressly raised by plaintiffs in the motion to vacate the lien, at which time they also challenged the propriety of his representation. In denying both the motion to vacate his lien and the motion to vacate the settlement, the Court in the underlying action acknowledged Moore’s entitlement to a fee flowing from that settlement. This adjudication operates as an additional collateral estoppel bar to the instant action.


37. As noted, the plaintiffs were expressly questioned about the voluntariness of their decision to settle on the record. Moreover, they were expressly questioned about their acceptance of the confidentiality provision and the acceptance of the General Release. Such colloquy, demonstrating both the clients’ voluntary acceptance of the settlement between the court and a client, has been held sufficient to estop a client from predicating a claim of malpractice on a theory of coerced settlement.

38.  Moreover, in the case at bar, the General Release itself expressly incorporated the confidentiality provision and mandated in explicit terms the dismantling of the website. Thus, plaintiffs’ contention that defendant committed malpractice because he misled them into believing that the hospital would pay them $500,000 but still allow them to operate their website, in which they accuse the hospital of essentially murdering their son, is rebutted by the terms of the settlement agreement itself and cannot for that reason be sustained. This is particularly so where, as here, they acknowledged on the record that they read and understood the written agreement entered into.

39.  As a matter of law, plaintiffs waived their right to speak freely about the events leading to their son’s death when they signed the General Release and incorporated confidentiality provision. Plaintiffs cannot predicate the instant claims against the defendant for the alleged failure to protect interests which plaintiffs voluntarily surrendered in the context of the subject settlement. A waiver is the voluntary and intentional abandonment of a known right. The foregoing record clearly establishes that plaintiffs voluntarily waived any purported right they had to continue to hurl accusations against the hospital and its staff. Where the client voluntarily waives a right, that client cannot later sue for legal malpractice/breach of contract complaining that the attorney did not protect the interest the client knowingly surrendered. In the case at bar, plaintiffs knowingly surrendered their right to publicly condemn the hospital regarding its treatment of their son and cannot base a claim of malpractice against their former lawyer on loss of rights they freely relinquished. Plaintiffs’ claim is both legally and logically meritless.2

2Of course, it is simply not credible that plaintiffs believed the hospital would pay them $500,000 and at the same time allow them to maintain their defamatory website.

Punitive Damages Are Not Recoverable

40. Plaintiffs’ Verified Complaint includes a demand for unspecified punitive damages. However, punitive damages are only available where plaintiff has a valid cause of action for compensatory damages which is not stated here.

41. Furthermore, a private party seeking to recover punitive damages must not only demonstrate egregious tortious conduct by which he or she was aggrieved, but also that such conduct was part of a pattern of similar conduct directed at the public generally. The conduct must evince a high degree of moral turpitude and demonstrate such a wanton dishonesty as to imply a criminal indifference to civil obligations. Plaintiffs have alleged no facts that can sustain such damages. There are no facts alleged, for example, that defendants’ alleged malfeasance was part of a pattern of similar conduct directed at the public generally. Nor are any facts alleged that evince the requisite high degree of moral turpitude or wanton dishonesty to imply criminal indifference to his civil obligations. Plaintiffs allege a garden-variety malpractice suit arising over their after-the-fact dissatisfaction with the terms of the underlying settlement. Such a claim does not form the basis for the imposition of punitive damages.

Emotional/Psychological Damages Are Not Compensable

42. The Complaint in addition to seeking undefined “financial loss” also seeks recovery for plaintiffs’ “anguish, aggravation, and mental suffering.” Significantly, in a legal malpractice action, there can be no recovery for such emotional distress or other injuries of a physical manifestation. A plaintiff suing in legal malpractice can recover only pecuniary loss and not for mental or psychological

suffering. Plaintiffs may not recover either punitive damages or for their alleged anguish, aggravation and mental suffering.

WHEREFORE, for the reasons set forth herein and in the accompanying Affirmation, the defendant, Thomas Moore, requests that the instant motion be granted in its entirety, together with such other and further relief as to the Court seems just and proper.

Dated: Uniondale, New York
August 2, 2002

Janice J. DiGennaro