Reply Affirmation

A Death in the Hospital /Reply Affirmation



Index No. 114722/02



– against –



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

1.    I am a member of Rivkin Radler LLP, attorneys for defendant, Thomas R. Moore, Esq. (“defendant”).  I am fully familiar with the facts and proceedings heretofore had herein. I submit this reply affirmation in response to plaintiffs’ opposition and in further support of defendant’s motion for dismissal of the complaint pursuant to CPLR §321 1(a)(7).


2.    Defendant’s motion presented incontrovertible evidence that plaintiffs’ complaint was barred by the doctrine of collateral estoppel and that the subject settlement was a purely voluntary act not compelled by either coercion or duress. Plaintiffs’ opposition ignores most of the authority and arguments made, misstates others and relies upon the joint affidavits of both plaintiffs, which directly rebut their own statements on the record and the incontrovertible documentary evidence. In the final analysis, the opposition is a concoction of misstated legal principles and flawed legal and factual conclusions. Plaintiffs have neither rebutted the collateral estoppel bar to pursuit of this action, nor controverted the documentary evidence presented, including their statements in open court on the record.


Plaintiffs’ Opposition Fails To Overcome The Collateral Estoppel Bar To Pursuit Of This Action The Actual Legal Standard On This Motion

3.    At the outset, it is significant to recognize that plaintiffs rely on the wrong standard of review for the instant motion by asserting “the sole criteria on a §321 1(a)(7) motion to dismiss is whether the complaint states a cause of action.” See Plaintiffs’ Joint Affidavits in Opposition at ¶42. However, where, as here, plaintiffs have submitted evidentiary material for consideration, including their own affidavits as part of their opposition, the appropriate inquiry in determining a motion to dismiss is whether plaintiffs, in fact, have a cause of action not whether they have merely stated one. Steiner v. Lazzaro & Gregory, P.C., 271 A.D.2d 596, 706, N.Y.S.2d 157 (2d Dep’t 2000).

4.    Moreover, although generally on a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR §321 1(a)(7), the facts pled are presumed to be true and are accorded every favorable inference, “where, as here, the allegations consist of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, they are not entitled to such consideration.” Beattie v. Brown & Wood, 243 A.D.2d 395, 663 N.Y.S.2d 199 (1st Dep’t 1997). Accordingly, contrary to plaintiffs’ contention (see Plaintiffs’ Joint Affidavit in Opposition, ¶ 41), plaintiffs’ allegations and conclusions do not enjoy a favorable inference. Rather, the Court may properly assess their veracity where, as here, they are rebutted by documentary evidence, including their own sworn statements on the record.

Plaintiffs Have Failed In Their Burden Of Establishing That They Did Not Have A Full And Fair Opportunity To Litigate The Issue Of The Voluntariness Of Their Consent To The Subject Settlement

5.    Plaintiffs suggest that the collateral estoppel bar should not apply to the instant malpractice/fraud/breach of fiduciary duty claim because Judge Heitler’s 28-page decision was purportedly “summary” in nature as it was rendered without holding an “evidentiary hearing” and was wrong. See Plaintiffs’ Joint Affidavit in Opposition at ¶¶ 49, 53, 57, 60 and 62.

6.    The “burden rests upon the opponent [of collateral estoppel] to establish the absence of a full and fair opportunity to litigate the issue in [the] prior action or proceeding.” See Parker v. Blauvelt Volunteer Fire Company, 93 N.Y.2d 343, 690 N.Y.S.2d 478 (1999); see also Ryan v. N.Y. Telephone Co., 62 N.Y.2d 494, 467 N.E.2d 487, 478 N.Y.S.2d 823 (1984).

7.    Plaintiffs herein have completely failed to meet their burden of establishing that they did not receive a full and fair opportunity in the prior proceedings to litigate the issues of the voluntariness of their consent to settlement and absence of duress or coercion.

8.    Plaintiffs’ assertion that in the absence of a full-blown evidentiary hearing, they did not receive the full and fair opportunity to be heard necessary for application of the collateral estoppel bar is legally erroneous. There is absolutely no doubt that the decisions rendered by courts upon motion and on appeal have been applied to provide the collateral estoppel bar to subsequent claims based upon discrete issues necessarilydecided in such motions or appeals. See Valvolizza v. Krieger, 33 N.Y.2d 351, 308 N.E.2d 439, 352 N.Y.S.2d 919 (1974) (decision on motion to vacate guilty plea given collateral estoppel effect); Parker v. Blauvelt Volunteer Fire Co., supra (full and fair opportunity to contest issue given in brief to the Appellate Division on Article 78 proceeding); Bank v. Brooklyn Law School, 2002 N.Y. App. Div. LEXIS 8936 (2d Dep’t Sept. 30, 2002) (plaintiff had–full and fair opportunity to contest decision in his opposition to defendant’s motion to dismiss); Sutton v. Ezra, 224 A.D.2d 517, 638 N.Y.S.2d 148 (2d Dep’t 1996) (motion to renew gave plaintiff full and fair opportunity to contest issue); Rastelli v. Sutter, Moffatt, Yannelli & Zerin, P.c., 87 A.D.2d 865, 449 N.Y.S.2d 305 (2d Dep’t 1982) (client had full and fair opportunity to contest issue in his criminal appeal); Jung v. Gemmette, 249 A.D.2d 827, 671 N.Y.S.2d 862 (3d Dep’t 1998) (full and fair opportunity to dispute issue in prior motion to construe stipulations in matrimonial action). Simply put, an evidentiary hearing is not a condition precedent to application of collateral estoppel.

9.    The Court of Appeals’ decision in Valvolizzo, supra, unequivocally makes this point under completely analogous facts. There, the plaintiff, a former client, alleged that he was pressured/coerced by his attorney to enter a guilty plea in a criminal matter despite an allocution on the record. Plaintiff moved unsuccessfully to vacate the guilty plea in the criminal action and thereafter initiated a malpractice claim against his former criminal lawyer based on the same theories of coercion and duress. The Court granted the motion to dismiss on collateral estoppel grounds and rejected the plaintiffs assertions that a “hearing” was required before collateral estoppel could be applied. The Valvolizzo Court stated affirmatively that:

” there is, moreover, cogent precedent for the proposition that an order made upon a motion provides such a “judgment” as will bar relitigation under the doctrine of res judicata or collateral estoppel so long as the requisites of identity of issue and opportunity to contest are present..”.

The Court recognized therein that there was no way plaintiff through a hearing could overcome what was already in the record establishing the absence of duress or coercion, including plaintiffs own admissions. See Valvolizza, supra, note 2.

10.    The same analysis and conclusion is compelled herein as plaintiffs’ statements on the record before the Court in the underlying action and signatures on the General Release itself made evident that they knowingly and voluntarily accepted the subject settlement inclusive of the confidentiality provision, and duty to dismantle their website. See ¶¶ 24, 29 and 30, infra.

11.    Moreover, there was nothing “summary” about Judge Heitler’s decision. It spanned 28 pages and covered every issue raised by plaintiffs both in support of the motion to vacate the settlement and also in support of plaintiff s motion to vacate the defendant attorney’s charging lien on the settlement proceeds. Thus, the Supreme Court discussed, considered and rejected plaintiffs’ claims (supported by their own affidavits) of defendant’s coercion, duress and fraud in the context of both motions. In fact, as noted in defendant’s moving papers, the identical issues and factual claims made as the predicate for plaintiffs’ motion to vacate the settlement and charging liens are made in the instant malpractice complaint. The cases relied upon by plaintiffs are completely distinguishable. For example, in Bennardo v. Equitable Land Services, Inc., 244 A.D.2d 304, 663 N.Y.S.2d 892 (2d Dep’t 1997), the Court refused to bar a fraud claim against an attorney based upon a finding in a summary grievance proceeding that the attorney did not violate the Code of Professional Responsibility, as the proceeding was completely summary in nature and the client had no opportunity to be heard. Here, the prior proceedings were in the Supreme Court on complete papers, including plaintiffs’ affidavits. Similarly, in Gilberg v. Barbieri, 53 N.Y.2d 285, 423 N.E.2d 807, 441 N.Y.S.2d 49 (1981), the Court rejected collateral estoppel application to a petty offense of harassment in Civil Court to a claim for hundreds of thousands of dollars in damages for civil assault as the parties did not have sufficient incentive to defend the petty harassment claim in Civil Court. The Court noted the decision was summary in nature without testimony from the plaintiff. Such is not the case here, as plaintiffs were not only trying to extricate themselves from the subject settlement, but also prevent their lawyers from being compensated. They had a full opportunity to contest their lawyers’ entitlement to a fee and voluntariness of the settlement.

12.    Moreover, in the case at bar, the prior determination was in the Supreme Court on extensive motion papers, in which plaintiffs were seeking to undo the settlement with every incentive to litigate to the fullest, which they did. The present case is completely distinguishable from a Civil Court harassment finding.

13.    Where, as here, plaintiffs previously raised by motion the very same legal and factual issues in the context of a prior proceeding that now form the basis of his current action, plaintiff “not only had the opportunity to litigate all of the.., issues he is now raising, but he also availed himself of that opportunity.. .”. Parker v. Blauvelt Volunteer Fire Co., supra, collateral estoppel will bar the claim. In short, there was nothing which prevented plaintiffs from fully litigating all issues relevant to the motion to vacate the settlement and attorney’s liens. Plaintiffs simply have not met their burden of establishing that they were deprived of the requisite full and fair opportunity to contest the decision.

14.    Nor do they satisfy their burden by belittling and attacking the merits of Judge Heitler’s decision. In this regard, the vast majority of plaintiffs’ opposition seeks to tell this Court why Judge Heitler was wrong procedurally or substantively. See, e.g., ¶49 noting that “Judge Heitler did not hold a hearing on this matter as required;” “Judge Heitler’s reasoning is circular and most important, totally incorrect” (¶53(a)); “Justice Heitler’s conclusion that Moore did not coerce[d] us since we were under an obligation to tell her, is misplaced” (¶53(c)); “the Judge’s opinion on this matter is without merit” (¶53(c)); “Judge Heitler makes the incorrect statement that ‘Finally, nothing revealed in the fee dispute between plaintiffs’ various counsel suggests that plaintiffs’ agreement to settle the case was procured by fraud’ … “(¶57); and that “the determination was made on grounds that have no merit.”

15.    The appropriate forum to challenge the procedural and substantive merits of Judge Heitler’s decision was on appeal of that decision. Plaintiffs did that and lost! The law does not provide them with a third bite at the apple under the guise of the instant malpractice action, as it is an impermissible collateral attack upon a prior judgment and is the precise result the collateral estoppel doctrine is designed to prevent. See Schuylkill Fuel Corp. v. B&C Neiberg Realty Corp., 250 N.Y. 304, 306-307, 165 N.E. 456 (1929).

16.    Finally, plaintiffs complain that it would be unfair to apply collateral estoppel to the underlying decision here. To the contrary, there is nothing unfair about enforcement of an order of the Supreme Court of the State rendered after due deliberation and careful consideration of all parties’ arguments which was thereafter affirmed on appeal. Rather, it would be fundamentally unfair to allow plaintiffs to circumvent the fair import of that prior judgment and its bar to re-litigate issues previously decided against them.

Judge Heitler’s Findings That The Settlement Was Knowing
And Voluntarily Consented To By Plaintiffs And Not The
Product Of Defendant’s Fraud Or Coercion Was Not
“Gratuitous” But Central To The Decision On Both Motions

17.    Plaintiffs do not deny in their opposition the complete identity of issues raised in their motion to vacate the settlement and liens1 or that Judge Heitler found affirmatively that plaintiffs’ 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 Mr. Moore’s.. .”. Id. at p. 23. Rather, they assert that a collateral estoppel bar should not be applied to this matter because Judge Heitler’ s findings with regard to the absence of fraud by Mr. Moore was “gratuitous” and thus not appropriate for application of collateral estoppel, as only the fraud of Columbia Presbyterian was sufficient to vacate the settlement.

18.    Plaintiffs’ contention is grossly simplistic and ignores whole portions of the decision. To be entitled to an estoppel, a fact must be shown to be material and relevant to the resolution of the legal issues involved in the first action. Zabriskie v. Zoloto, 22 A.D.2d 620, 257 N.Y.S.2d 965 (1st Dep’t 1965). In the motion to vacate both the settlement and the attorney’s charging lien, the propriety of the attorney’s conduct and the voluntariness of plaintiffs consent to the settlement was placed directly in issue

1 It is axiomatic that facts appearing in moving papers, which the opposing party does not controvert, are deemed amended. Kuehne & Hagel, Inc. v. Baiden, 36 N.Y.2d 539, 330 N.E.2d 364, 369 N.Y.S.2d 667 (1975). by plaintiffs. That is, a settlement procured without a client’s consent is not valid and binding. See Stein v. Mostoff, 34 A.D.2d 655, 309 N.Y.S.2d 978 (2d Dep’t 1970).

19.    Moreover, the propriety of an attorney’s conduct vis-à-vis his client is placed directly in issue when assessing his entitlement to a fee in the motion to vacate his charging lien. That is, an attorney who commits malpractice or breaches his fiduciary duty is not entitled to his lien or to be compensated. See Campagnola v. Mu/holland, Minion & Roe, 76 N.Y.2d 38, 555 N.E.2d 611, 556 N.Y.S.2d 239 (1990). Moreover, by raising the attorney’s alleged fraud or other wrongful conduct as a ground to vacate the attorney’s lien, plaintiffs placed the propriety of Moore’s conduct directly in issue even if such alleged fraud was not itself sufficient to warrant vacatur of the settlement. See John Grace & Co., Inc. v. Tunstead, Schechter & Torre, 186 A.D.2d 15, 588 N.Y.S.2d 262 (1st Dep’t 1992) (noting that raising defendant attorney’s malpractice as a defense to the fee claim placed it directly in issue).

20.    Thus, the detailed analysis and finding by the Court in the underlying action that defendant did not defraud or coerce the plaintiffs and that plaintiffs voluntarily consented to settle were findings essential to the judgment which denied the motion to vacate the settlement and attorney’s lien. Any finding essential to the judgment constitutes a component of that judgment and lends itself to an estoppel. Hinchey v. Sellers, 7 N.Y.2d 287, 165 N.E.2d 156, 197 N.Y.S.2d 129 (1959); Chisholm-Ryder Co. v. Sommer & Sommer, 78 A.D.2d 143, 434 N.Y.S.2d 70 (4 Dep’t 1980). In fact, the rule barring re-litigation of malpractice claims after a prior determination that an attorney is entitled to his or her fee has been applied regardless of whether the issue of the adequacy of the representation was specifically raised and decided on the merits. See Chisholm Ryder, supra (holding malpractice action brought after rendition of judgment in attorney’s favor on an account stated was estopped by the prior judgment even though the adequacy of representation was not expressly adjudicated). The Chisholm-Ryder Court held “….. to hold otherwise would permit destruction of rights adjudicated in the first judgment by a different judgment in a subsequent action…”.

21.    This conclusion is not altered by the fact that Judge Heitler commented that since only fraud by the defendant hospital itself was sufficient to vitiate the settlement, the plaintiffs “are relegated to relief against him [the lawyer] for any damages which his conduct may have caused them.” This statement was gratuitous dicta because the determination upholding Moore’s lien2 implicitly decided the absence of malpractice and similar wrongdoing as a lawyer who commits such acts is not entitled to be compensated. Thus, Judge Heitler’ s suggestion that plaintiffs were “relegated to other remedies” was irrelevant, as once the Court upheld the attorney’s lien, a subsequent malpractice claim was barred as a matter of law. See John Grace & Co., Inc., supra.

22.    The precise result occurred in John Grace & Co., Inc., supra. The Court therein expressly rejected plaintiffs contention that the malpractice claim was not barred because it was stated on the record at the fee claim hearing that it would not affect the merits of the legal malpractice action. The Court held that since the fee claim and legal malpractice claim arose from the same transaction, the decision to award fees necessarily included a finding of no malpractice. See also Sausa v. Cherofsky (N.Y. Sup. Ct. Nassau County Nov. 22, 1994) annexed hereto as Exhibit “A.”

2 It is not significant for this analysis that a portion of the retainer regarding representation in defense of the counterclaim was voided as the primary retainer for prosecution of the wrongful death action was upheld and the motion seeking to vacate the lien was denied.

23.    Similarly, in Sausa, supra, the Court in a fee dispute to determine the validity of a retainer in a prior action expressed no opinion about the merits of plaintiffs claims of malpractice and breach of contract against her lawyer which it stated should be addressed in a plenary action, and thereafter, proceeded to acknowledge that the attorney was entitled to his fees out of settlement proceeds. The subsequent malpractice claim, based upon the allegedly negligent representation in the prior action was dismissed because the prior judicial determination fixing the lawyer’s fee barred the claim as a matter of law as such decision “necessarily concluded the absence of malpractice. . .”. It was neither significant nor dispositive that the trial court expressed “no opinion with respect to the merits of plaintiffs [malpractice] claims.” So too, in the case at bar, the determination that Mr. Moore’s lien was viable necessarily concluded the absence of malpractice or other wrongdoing as a matter of law.

Plaintiffs’ Opposition Fails To Rebut The Fact That They Voluntarily Settled With Full Knowledge Of All Terms In Any Event

24.    Separate and apart from the collateral estoppel bar to pursuit of this action, defendant argued that plaintiffs are estopped to deny their knowing, voluntary settlement and waiver of their right to maintain the website against the hospital by virtue of their own statements on the record and the plain language of the release they signed. Plaintiffs have completely failed to rebut this argument.

25.    In this regard, plaintiffs suggest that defendant misled them, defrauded them and coerced them into signing a release when they did not understand its terms. Particularly, plaintiffs continue to insist in opposition that they believed the hospital would both pay them a half million dollars and permit them to continue to operate their defamatory website (in which they accuse the hospital of murder). Not only does such an argument defy logic and common sense, particularly given Dr. & Mrs. Speken’s obvious sophistication and education, but also it is belied by the very document they signed, the General Release.

26.    All of plaintiffs’ claims of fraud and their assertion that they never would have signed the release if they knew that they would have to take down their website is flatly contradicted by the express language of the release itself which provided that plaintiffs:

“…shall immediately and permanently expunge their website.. . and shall not reissue, open or create another Internet accessible site or website concerning the allegations in the 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…”

See Exhibit “D” to Moving Affirmation.

27.    A claim of fraud cannot be based upon alleged misrepresentations in a release when the plaintiffs signed the release which contained the true facts. That is, in order for defendant to have committed fraud so as to induce the settlement, plaintiffs must establish that they justifiably and detrimentally relied upon the alleged misrepresentations made by Mr. Moore. See Century 21, Inc. v. F. W Woolworth Co., 181 A.D.2d 620, 582 N.Y.S.2d 101 (1st Dep’t 1992).

28.    Under New York law, where, as here, the plaintiffs “ha[ve] the means available to [them] of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation…, [they] must make use of those means or [they] will not be heard to complain that [they were] induced to enter the transaction by misrepresentation.” See Schumaker v. Mather, 133 N.Y. 590, 30 N.E. 755 (1892); see also Abrahami v. UPC Construction Co., Inc., 224 A.D.2d 231, 638 N.Y.S.2d 11(1st Dep’t 1996). Here, all plaintiffs needed to do was read the plain language of the General Release they signed and they would have known that any contrary verbal representation allegedly made by Mr. Moore regarding continued maintenance of the website was false. Under such circumstances, any claim of reasonable reliance must fail.

29.    In Marine Midland Bank v. Palm Beach Moorings, Inc., 61 A.D.2d 927, 403 N.Y.S.2d 15 (1st Dep’t 1978), the defendant bought a controlling interest in a corporation and personally guaranteed a corporate obligation. The defendant attempted to avoid the guarantee by claiming he received certain false verbal assurances as to the nature of the loans. The Appellate Division affirmed summary judgment for the plaintiff on the guarantee noting that the defendant was an experienced businessman who had unlimited access to the relevant books and records and therefore could not complain he was induced into the transaction by misrepresentations.

30.    Where, as here, plaintiffs claim their lawyer committed malpractice by misrepresenting material terms of a settlement and such a claim is “flatly contradicted by the [“settlement”] agreement itself,” it simply fails to state a cause of action under CPLR §321 1(a)(7). See Beattie v. Brown & Wood, 243 A.D.2d 395, 663 N.Y.S.2d 199 (1st Dep’t 1997) (malpractice claim dismissed where predicated upon alleged failure to advise client that he withdrew his counterclaims with prejudice in settlement agreement as flatly contradicted by agreement itself); see also Lunney & Cirocco v. Wolfe, 243 A.D.2d 348, 663 N.Y.S.2d 164 (1st Dep’t 1997) (malpractice claim based on theory lawyer failed to detect unauthorized changes to settlement rebutted by language in the agreement which stated that client was apprised of her rights and all provisions were fully and satisfactorily explained).

31.    If the express language of the release did not make clear that they were settling their case knowingly and voluntarily that day, that Court engaged both plaintiffs in 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.

See Exhibit “E” to Moving Affirmation 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.

32. 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. atp. 6.

Under Broad v. Conway, 675 F. Supp. 768 (N.D.N.Y. 1987), aff’d without opp., 849 F.2d 1467 (2d Cir.), cert. denied, 488 U.S. 927 (1988), relied upon by defendant in his moving papers and not distinguished by plaintiffs herein, to the extent plaintiffs’ malpractice claim is based on a theory of a coerced settlement, they are estopped by their prior acknowledgements of knowing and voluntary settlement from contending they either did not understand the material terms or did not want to settle their case on the terms agreed to. Thus, defendant never argued, as plaintiffs suggest, that the mere settlement itself bars the malpractice claim. Rather, only that where, as here, the record unequivocally establishes the voluntary nature of the plaintiffs’ decision to settle and the absence of any threats or coercion, the malpractice theory based upon a theory of coerced or compelled settlement is not viable.

Plaintiffs Have Not Supported
Any Entitlement To Punitive Damages

33.    Finally, plaintiffs continue to insist that punitive damages are appropriately awarded herein due to repetition of the same allegations of purported coercion and misrepresentation pertaining to the confidentiality provision of the settlement and dismantling their website. Nevertheless, plaintiffs have completely failed to demonstrate either how their claims against Mr. Moore seek to vindicate a “public” right or how Mr. Moore’s purported conduct amounts to “criminal indifference” to civil obligations as required. See Rocan ova v. Equitable Life Assur. Society, 83 N.Y.2d 603, 634 N.E.2d 940, 612 N.Y.S.2d 339 (1994).

34.    The law is clear that the only type of fraud and deceit sufficient to impose punitive damages would be that which is “aimed at the public generally.” See Mosseri v. Zimmerman & Zimmerman, 114 A.D.2d 338, 494 N.Y.S.2d 327 (1st Dep’t 1985).

35.    In fact, courts have expressly rejected punitive damage claims based, as here, upon alleged false representation by the attorney to the client. See Walker v. Stroh, 192 A.D.2d 775, 596 N.Y.S.2d 213 (3d Dep’t 1993). The cases relied upon by plaintiffs do not warrant a different result as they are factually inopposite. The case of D ‘Antoni v. Ansell, 184 A.D.2d 678, 585 N.Y.S.2d 459 (2d Dep’t 1992) relied upon by plaintiffs actually supports defendant’s argument. In D ‘Antoni, the appellant retained respondent attorney to represent her in a matrimonial action which was resolved by agreement pursuant to which the husband would pay the “reasonable counsel fees” for his former wife. This sum was paid but the attorney also billed and collected legal fees for some work directly from the wife. The wife sued to recover the fees. While the Court concluded that the attorney was not entitled to collect both fees, it also declined to award punitive damages as the conduct alleged in attempting to recover double fees “failed to demonstrate that respondents engaged in morally culpable conduct which would support a punitive damage award.” Thus, Judge Heitler’s rejection of the separate retainer regarding defense of the counterclaim does not establish the type of morally reprehensible conduct necessary to support the claim for punitive damages based upon plaintiffs’ own authority.


36.    The record herein unequivocally establishes that plaintiffs had a full and fair opportunity to adjudicate the propriety of Mr. Moore’s conduct in connection with the subject settlement and the existence or absence of duress, coercion or fraud. It is also incontrovertible that these issues were adjudicated adverse to plaintiffs herein and that in any event the plaintiffs’ decision to settle was voluntary. By reason of all of the foregoing, the instant complaint should be dismissed as it is barred by collateral estoppel, the documentary evidence and as it fails to state a cause of action. The plaintiffs should not be permitted to repeatedly re-litigate the same issues raised and rejected in the underlying action and thereby collaterally attack the previous orders of the Court.

WHEREFORE, for the reasons set forth herein and in defendant’s moving papers, 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
November 8, 2002

Janice J. DiGennaro

TO: Ralph Speken, M.D.
Stephanie Z. Speken. M.S.
Plaintiffs Pro Se

Exhibit A







 Plaintiff (s)
INDEX No. 30765/92

– against-                                                 



The following papers read on this motion:
                      Notice of Motion/ Order to Show Cause X
                      Answering Affidavits X
                      Replying Affidavits X
                      Briefs: Plaintiff’s/Petitioner’s
                      Defendant’s/Respondent’s X

Upon the foregoing papers, it is ordered that this motion by defendant Robert Cherofsky for an order pursuant to CPLR §3211(a) (5) and/or pursuant to CPLR §3212 dismissing the complaint against him or in the alternative pursuant to CPLR §3124 compelling further deposition of plaintiff, is granted only to the extent of granting summary judgment dismissing the action against defendant Cherofsky. The second cause of action is severed and continued.

The first cause of action of the complaint against defendant Cherof sky is deficient on its face in that it improperly joined into a single cause of action involving elements of causes of action in negligence and for breach of contract. (See: CPLR 3014 and 3013; Payrolls & Tabu1ating v Sperry Rand, 22 AD2d 595, 596; North Shore Bott1ing v Schmidt & Sons, 22 NY2d 171 (footnote 1). At the outset, the court also notes that plaintiff’s complaint is virtually identical to the claims raised in the prior action. Further, the evidence shows that plaintiff freely executed the general release, endorsed the settlement draft upon the advice of independent counsel and accepted the benefits of the settlement agreement; and indeed plaintiff has unequivocally declined an opportunity to undo the settlement, while being represented by independent counsel. In light of the foregoing, this court can


INDEX NO. 30765/92

only conclude that plaintiff ratified the settlement agreement and is thereby estopped from maintaining the instant action. (See; Johnson v Johnson, 191 AD2d 257, 257-258 (1st Dept. 1993); Stacom V Wunsch, 162 AD2d 170, 171 app. dsmd. 77 NY2d 873; Sheindlin v Sheindlin, 88 AD2d 930 (2nd Dept. 1982; Nadal V Childs Sacurities Corp., 18 AD2d 375 aff’d 14 NY2d 672 (1964). As stated in Sheindlin v Sheindlin, supra, at p. 931:

“The law is well settled that a party seeking to repudiate a contract procured by duress must act promptly lest he be deemed to have elected to affirm it (Bethlehem Steel Corp. v Solow, 63 AD2d 611 app dsmd 45 NY2d 837; Fowler v Fowler 197 App. Div. 572). Such a belated attempt as defendant is here making to nullify a separation agreement which was confirmed, ratified and approved, and at least partially complied with for almost a three-year period is insufficient. A party who executes a contract under duress and then acquiesces in the contract for any considerable length of time, ratifies the contract (Smith v Jones 76 Misc.2d 656). Defendant is barred from suddenly raising issues of coercion, duress, inexperience and incapacity after her prior course of conduct.”

A party cannot accept the benefits under an arrangement to which he assented and at the same time questions its validity. (See: 57 NY Jur2d Estoppel, Sec. 34, p. 52 et seq. Svenska T.F. Aktiebolaciet v Bankers Trust Co., 268 N.Y. 73, 81 (1935); Re Grade Crossincr Commissioners, 65 Misc. 73 (1909) affd 136 A.D. 906; Royal Court Realty Co. v Thomas, 259 A.D. 313 (1940); Savasta v 470 Newnort Assoc., 180 AD2d 624, 626 (2nd Dept. 1992); Reape V New York News. Inc., 122 AD2d 29, 31 (2nd Dept. 1986).) This alone is a sufficient basis for dismissing this action against defendant Robert Cherofsky on the ground of estoppel.

Moreover, the instant action is precluded by the prior judicial determination dated July 13, 1992 of Mr. Justice Altman in the case of “Sausa v Reed” (Supreme Court, N.Y. Co. Index 3493/90) holding that Cherof sky was entitled to is legal fees. (See: Altamore V Friedman, 193 AD2d 240 (2nd Dept. 1993); Nat Kacran Meat & Poultry Inc. v Kalter, 70 AD2d 632 (2nd Dept. 1979). This is so even though Mr. Justice Altman expressed “no opinion with respect to the merits of plaintiff’s claims.” (See: Harris v Stein, ___AD2d___, App. Div. 2nd Dept. 1994, 615 NYS2d 703; Perog v


INDEX NO. 30765/92

Ingller, ___AD2d___, App. Div. 2nd Dept. 1994, 609 NYS2d 675; Tantillo V Gigllio, 156 AD2d 664 (2nd Dept. 1989)). In view of the fact that an attorney is not entitled to compensation either pursuant to an express contract where he has not performed his contract or where he is guilty of actual fraud, bad faith or negligence, (7 NY Jur2d Attorneys at Law, Secs. 142 and 144), Judge Altman’s prior decision, in directing the payment of Mr. Cherofsky’s legal fee, necessarily concluded the absence of malpractice and that said fee was earned. (See: Blair V Bartlett, 75 N.Y. 150, 154-155 (1978); John Grace & Co. V Tunstead, Schechter & Torre, 186 AD2d 15, 19 (1st Dept. 1992); Chisholm-Ryder Co. v Sommer, 78 AD2d 143, 145-146 (4th Dept. 1980)). The plaintiff has failed to submit evidentiary facts raising an issue which would require a trial.

Accordingly, summary judgment is granted in favor of the defendant, Robert Cherofsky dismissing the first cause of action of the complaint against him.

Dated:   Nov 22, 1994                                           

Angelo D. Roncallo