STATE OF NEW YORK
COURT OF APPEALS
RALPH H. SPEKEN and STEPHANIE Z. SPEKEN, Co-
Administrators of the Estate of SETH B.
SPEKEN, deceased, and RALPH H. SPEKEN and
STEPHANIE Z. SPEKEN, individually,
Plaintiffs-Appellants,
-against-
COLUMBIA PRESBYTERIAN MEDICAL CENTER,
Defendant-Respondent
OPPOSITION TO PLAINTIFFS’ MOTION
FOR LEAVE TO APPEAL
PRELIMINARY STATEMENT
Defendant New York-Presbyterian Hospital s/h/a Columbia Presbyterian Medical Center respectfully submits these papers in opposition to plaintiffs’ motion for leave to appeal from the order of the Appellate Division, First Department entered April 29, 2003 that affirmed the dismissal of this action on res iudicata or collateral estoppel grounds
FACTS
The procedural history set forth in plaintiffs’ moving papers is accurate for present purposes. We note, however, that although plaintiffs shut down their website shortly after the July 8, 1999 settlement of the first action, they brought it back up within a few months and it has been in operation continuously ever since.
We note also that plaintiffs have sued their attorney in the first action for legal malpractice (see www . med-malpractice.com/mooreintro.htm)
Finally, we must note that plaintiffs did not move for leave to appeal from the Appellate Division’s order in the first action.
THIS MOTION SHOULD BE DENIED.
In their moving papers, plaintiffs barely mention the issues of res iudicata and collateral estoppel. As to res iudicata, after the settlement in the first action, plaintiffs had time to, and did, move to vacate the settlement. Thus, plaintiffs at that time had the opportunity to raise every ground for vacatur of the settlement in whole or in part and this action challenging the settlement in part is barred by res iudicata.
As to collateral estoppel, it is clear that in the first action plaintiffs had a full and fair opportunity to litigate every conceivable ground for vacatur, in whole or in part, of the settlement. It is equally clear that the arguments made in this, second action necessarily were rejected in the first action, because if they had not been rejected, the Supreme Court and Appellate Division could not have ruled as they did.
Plaintiffs do not attempt to argue that any novel or important issue concerning res iudicata or collateral estoppel would be presented by the appeal they seek leave to take. We can conceive of none. Once again, it is plain that the remedy for plaintiffs’ complaint that their arguments were not addressed by the Supreme Court and Appellate Division in the first action was to move for reargument, as the Appellate Division stated in the order sought to be appealed from.
CONCLUSION
Plaintiffs’ motion should be denied.
Respectfully submitted,
McALOON & FRIEDMAN
by: TIMOTHY J. O’SHAUGHNESSY
Attorneys for Defendants
LAURA R. SHAPIRO,
TIMOTHY J. O’SHAUGHNESSY
of Counsel.
June 24, 2003