Oral Argument – Legal Malpractice Lawsuit

A Death in the Hospital /Oral Argument – Legal Malpractice Lawsuit


INDEX: 114722/02

Ralph H. Speken, M.D.,
and Stephanie Z. Speken, M.S.,


-against –

Thomas R. Moore, Esq.,


60 Centre Street
New York, New York 10007
December 13, 2002


Honorable Walter B. Tolub, JSC


Ralph H. Speken, M.D.

Plaintiff Appearing Pro Se
1 Pondfield Road, Suite 179
Bronxville, New York 10708

Rivkin Radler
Attorneys for Defendant
EAB Plaza
Uniondale, New York, 11556
by: Janice J. Digennaro, Esq.

Delores Hilliard

Official Court Reporter


COURT CLERK:  Index Number 114722 of 2002,



Ms. Degennaro, it is your application. So, I will give you 3 minutes to explain it to me.


Your Honor, this is a motion to dismiss the

pro se complaints of Doctor and Mrs. Speken against a 

lawyer for malpractice and breach of fiduciary in the

form of a settlement before Judge Heitler.

The settlement was for half a million

 dollars. This was in connection with the death of the

plaintiffs’ son. This was done in July of ‘99. And the

settlement was entered on the record.

At which point Judge Heitler allocated the

plaintiff fully on the voluntariness of the settlement.

Both plaintiffs were present. Both indicated,

it was free, and voluntary and knowing.

They also simultaneously executed a general

release. That document also indicated, it was

voluntarily entered free and knowing.

In addition, the condition of the settlement

was confidentiality and the dismantling of a web site


that the plaintiff had erected in connection with the

claims he had against Columbia Presbyterian. And that

was expressly raised at the oral allocution of the

settlement by Judge Heitler. And plaintiff acknowledged

to Judge Heitler, both plaintiffs, that they understood

confidentiality provision, which was expressly

articulated in the release document.

Despite all of that, 3 months later they

sought to vacate the settlement in a motion made before

Judge Heitler, where they raised the issue of their

lawyer’s alleged coercion and duress.

They claimed, they did not understand that

they had to have confidentiality. They claimed, that

they did not understand that they had to dismantle the

web site. They claimed, that they believed that the

hospital would give them a half a million dollars and

allow them to continue to make out accusations of wrong

doing against the hospital in that web site. They

claimed, they didn’t really want to settle.

And Judge Heitler examined that decision.

In addition, in that motion to vacate the

settlement they also sought to vacate the attorneys

fees.  In conjunction with both of those applications

Judge Heitler denied the motion to vacate the

settlement, expressly acknowledged that the settlement


was voluntarily. She also denied the motion to vacate

the attorneys fees.

The only issue left was allocation against

several lawyers.

By the way, that decision of Judge Heitler was

appealed and affirmed.

Thereafter, The Spekens brought a second

lawsuit against Presbyterian Hospital, again challenging

the validity of the settlement. They again lost.

THE COURT: Where did they lose?

MS. DIGENNARO: Supreme Court, Judge

Bransten, I believe.

They now bring this lawsuit, making virtually

identical allegations against their former lawyer, Mr.

Moore. Claiming that he coerced them and they entered

into the settlement under duress. Didn’t understand the

terms. Didn’t agree to confidentiality. He misled

them. Despite the fact, that they had acknowledged in

open court that they did understand. They read it. And

they were sophisticated individuals.

The case law is quite clear. Where there is a

prior adjudication of a fact in a prior proceeding, they

cannot relitigate it. Collateral stopple bars this


The issue of voluntariness of the settlement


and the absence of duress, coercion or fraud by Mr.

Moore was in fact raised and decided by Judge Heitler

before. And although it was a different context,

vacating the settlement. As opposed to his malpractice,

it was expressly raised and addressed. And Judge

Heitler expressly found the plaintiffs’ decision to

 settle was their own and not their lawyers.

They cannot have multiple bites at the apple.

Their entire opposition really amounts to an attack on

Judge Heitler’s decision.

If they had a problem with The Court’s

decision, their remedy was a reargument or an appeal.

Which, by the way, was unsuccessful.

It is important to note, that the propriety of

Mr. Moore’s conduct was at issue in both motions that

plaintiffs raised.

One was the motion to vacate the settlement.

But, even more importantly, it was in connection with

the motion to vacate the attorneys fees. Because, the

accepted law in this department and in this state, it

says, when there is an adjudication indicated an

attorney is entitled to his fee. Because, intrinsic in

that finding was that there was no malpractice.

Since The Court vacated the lien, that issue

has been decided.


THE COURT:       Thank, you. I understand.

I will hear you, Dr. Speken. I will hear you,


MR. SPEKEN:      Your Honor, thank you for

letting me be heard. I am not a lawyer.

Ms. Digennaro’s presentation of the issues

here, while coherent and logical, are not correct.

It takes a bit of looking through what

actually happened to understand why it is not correct.

There are 3 issues that she is not correct

on. I am not a lawyer. It has been, I have to say, fun

working through this reading into the law. Because, as

not being a lawyer I’m not jaded by all of this. It has

been interesting, actually; I mean that sincerely, to

get into these ideas.

But, there are 3 positions which Mr. Moore has

presented through his lawyer that are not correct.

This is fundamentally a case about fraud.

Were we to have sufficient time I would be able to lay

out in great detail the multiple frauds that this

fraudulent lawyer is committing.

It is a case which hinges reasonably on one

word. It hinges on the word, gratuitous. Meaning, a

position which is unsupported and unwarranted.

Now, the reason I say that is because when you


closely read Judge Heitler’s 28 page motion decision,

when you closely read her 28 page decision it says two

things. It says, and if I could give The Court — I

have highlights.

THE COURT: I have a copy, here.

MR. SPEKEN: She gives two positions in her


She says, Dr. Speken can sue Mr. Moore. She

uses the language of the famous HALLACK (Phonetics)

case. Her position is that Dr. Speken can sue Mr.

Moore. He is relegated to– what is the phrase here?

He is relegated to relief against him. She says it very

clearly. He is relegated to relief against him. No


We are using the language of HALLACK. We are

relegated to relief against him.

Again, she turns around and says, we cannot

sue him.

THE COURT: Who, Judge Heitler?

MR. SPEKEN: Judge Heitler says,

essentially, in a very long decision. That is what I am

saying. This evidence is difficult to work through to

understand The Court’s issues.

But, she then goes on to disqualify and says,

essentially, that we cannot sue him, because we have not


established our case of fraud against him.

What Judge Heitier was very concerned about

was making sure that the contract was not vacated.

THE COURT: Well, was Judge Heitler’s opinion

was taken up on appeal.

MR. SPEKEN: I will get into that, your


THE COURT: No. You are not going to. Get

to it right now.

MR. SPEKEN: Yes, it was.

And notice in the language of the lawyers,

they didn’t reach it.

THE COURT: Well, if they didn’t reach the

particular issue, then you’re bound by the lower court’s


MR. SPEKEN: They didn’t reach that issue.

They simply said–

THE COURT: If they didn’t reach it and there

is no longer an appeal on it, then you’re bound by the

decision below, Dr. Speken.

If Judge Heitier says you cannot sue —

Well, let me explain to you directly, so you

will understand the concept.

The law holds, that when you’re involved in a

piece of litigation over an issue, you’re bound by that


result unless you appeal it and the judge below is


Another doctrine that is applicable, is that

as between the two parties arising out of one

transaction, that is the transaction you are talking

about here, you’re bound by the issues that were raised

or should have been raised in that proceeding. If it

has not been raised below or should have been raised,

then you’re still bound and if it covers that whole


So, those are the issues you should address.

One, did Judge Heitler find against you? If

she did not, then tell me about it. Although, you’re

telling me right now that she did.

MR. SPEKEN: I am telling you, she did and

she didn’t.

THE COURT: That she did and she didn’t?

MR. SPEKEN: She says two things. This is

my point.

THE COURT: How does she conclude?

MR. SPEKEN: She concludes, that it is time

to close the case now, because there has been too much


See, she found-

THE COURT: I will tell you what. You know

what, Dr. Speken, I am going to read Judge Heitler’s 28
pages and The Appellate Division’s decision and find out
what she did or did not do.
MR. SPEKEN: I would beg you to read where
it says, that a hearing–
THE COURT: If you have cited the case in
your papers I shall read it, sir.
MR. SPEKEN: Thank, you.
THE COURT: I will tell you, I don’t know what
Judge Heitler did. But, I certainly shall find out as
 soon as I can.
 Thank you, very much.
MR. SPEKEN: Thank, you.
MS. DIGENNARO: Thank you, your Honor.
THE COURT: It’s marked submitted on Speken.

Certified to be a true and accurate
transcription of said stenographic notes.
 Official Court Reporter