Speken’s Final Reply (“Surreply”)

A Death in the Hospital /Speken’s Final Reply (“Surreply”)

Note:  This reply was not accepted by the Court but will be displayed for completeness.


As Co-Administrators of the Estate of Seth B.
SPEKEN, deceased, and RALPH H. SPEKEN and
STEPHANIE Z. SPEKEN, Individually,



– against-

“JOHN DOE”, and “JANE DOE”, (true identities
unknown, being doctors, nurses, residents, interns, and
other medical or technical personnel who rendered
services to the decedent at the COLUMBIA


RALPH H. SPEKEN, M.D. and STEPHANIE Z. SPEKEN, depose and say the following under penalty of perjury:

1. Item 2 of Defendant’s Reply Affirmation In Support of Motion for Dismissal of Action seeks to blunt the significance of the Hospital’s actions in our son’s death. It is not an “allegation” or a “position” that criminality was causal in Seth’s death, but rather fact. He died due to restraining that is specifically barred by State law. Breaking a law is defined as crime (Pltf. Reply to Notice of Motion, Item 27).

2. In Item 3, Defendant then asserts that “the Court was not obligated to reiterate every argument plaintiffs made.” 

This position is wrong. Given the fact that crime had been committed, it certainly was the duty of the Court to thoroughly investigate, adjudicate, and document its findings. The current action arises from the failure of the Court to address this crucial issue. It was simply not litigated even though timely raised.

Restatement of the Law (Second) Judgments 2d, Section 26, Item f states, (in describing where there is a possible basis for a second action) “It is, clearly and convincingly shown that the policies favoring preclusion of a second, action are overcome for an extraordinary reason, such as…the failure of the prior litigation to yield a coherent disposition of the controversy.” 

The Restatement in Section 27, Item d , in discussing when an issue is actually litigated states, “When an issue is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined, the issue is actually litigated within the meaning of this Section.”

The Plaintiff’s raised the issue of crime properly. It was never commented upon or determined. Given that crime is the issue, the Court is very much obligated to address the issue. The Plaintiff’s raised this issue several times in chambers with the Judge and it was ignored. The current lawsuit was in response to this failure to address the issue.

3. Defendant’s Item 4 claims that “All issue about the validity and legality of the settlement, including its confidentiality provisions, were already argued and adjudicated with finality.

This it not true. “All issues” were most definitely not adjudicated. Only the issue of the plaintiff’s position that the contract should have been vacated due to the fact that it was signed only under coercion was decided. The Court did not mention the issue of the crime.

4. In Defendant’s Item 5, reliance is placed on Schwartz v. Public Administrator of the Bronx, 24 NY2d 65, 71, 298 NYS2d 955 (1969) for the position that the General Release was upheld “in toto” and therefore the confidentiality provision could not be held invalid for any reason. 

But Plaintiff’s have shown convincingly that no such inference can be made concerning issues that were not litigated (Pltf. Reply To Notice Of Motion, Items 13, 14,15, 19.)

In Schwartz, Item 6 of the majority opinion states, “A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as…the extent of the litigation…” In the case of Speken v. Columbia, there was no litigation as defined by the Restatement of the Law (Judgments) 2d.

5. Defendant misapplies the opinion in Reilly v. Reid, 45 NY2d 24, 407 NYS2d 645 (1978). As pointed out in Pltf. Reply to Notice of Motion Item 24, the Court clearly comments that Reilly raises the issue of criminality “for the first time” in his second action after the first had been thoroughly litigated. As pointed out in Pltf. Reply to Notice of Motion Item 2, the instant action attempts to litigate the issue of criminality present from the inception but never adjudicated.

6. The relief sought in the Plaintiff’s instant action differs from that sought in their first. In the first, they sought vacateur of the entire General Release. The instant action seeks only vacateur of the confidentiality component.

7. The Defendant should have no right to silence. In giving it’s opinion regarding vacateur of the Plaintiff’s first action, the Appellate Court stated, “There is no basis shown to set aside the stipulation entered in open court after full allocution by the Court.” (Defendant Notice of Motion Ex. M). But, as shown in the instant action, there is absolutely no mention whatsoever of the issue of criminality raised by the Plaintiffs. It was never allocated in the sense of the word that there be a formal inquiry. No such inquiry ever took place. The issue of criminality was simply ignored by the Court. The Plaintiffs never had their “day in Court” on this issue.

8. The instant action preserves the Defendant’s right not to suffer further monetary damage beyond the compensation they already agreed to pay the Plaintiffs. But, they have no right to confidentiality over their criminal behavior towards Plaintiff’s son.

9. Contrary to Defendant’s assertion in item 7 that the Plaintiffs are misusing the legal system, the current action is a justifiable exercise of their right to obtain compensation for their son’s death without giving the consideration of silence for the criminal acts that killed him.

10. Defendant asserts in Item 9 that “plaintiff’s have conceded that their claim of criminality was actually litigated in the prior action…” 

This is totally fallacious. What was litigated in the Appellate Division was the Court’s (incorrect) decision that there was no coercion involved in signing the General Release. That the statutes of limitation for prosecution of the crime has long since expired is irrelevant for the purposes of the current action. The fact is that the death was due to crime should overrule silence as a form of consideration.

11. The case of In the Matter of New York State Correctional Officers and Police Benevolent Association, INC., et. al., Respondents, 704 N.Y.S.2d 910 94 N.Y.2d 321 presents important guidance concerning the role of the Courts and public policy. In this case, the New York State Court of Appeals refused to vacate the decision of an arbitrator who held that a correction officer could not be fired for flying the Nazi flag.

The Court did provide a three-pronged test for conditions that would require intervention. The Court stated, “Courts shed their cloak of noninterference where specific terms of an arbitration agreement violate a defined and discernible public policy, where an arbitrator exceeds his or her legal authority, or where the final result creates an explicit conflict with other laws and their attendant policy concerns.

In the case of Speken v. Columbia, two of these situations are met exactly. The Plaintiff’s have shown that there is now a new public policy from the highest accrediting body in medicine that no longer finds silence over medical malpractice acceptable.

And most significantly, there is a specific conflict between the silence the Hospital did obtain in the General Release and the law that forbids the Plaintiffs from offering silence about a crime.

Ethically, the Hospital should be required to compensate the Plaintiffs for what was done to their son. His death was not due to some simple mistake. Rather, it was due to the breaking of a State law as well as multiple acts that constitute criminally negligent homicide. It is repugnant to require the Plaintiffs be silent about the crime in order to obtain compensation.

WHEREFORE, plaintiffs respectfully urge that the instant motion be denied.

Dated: New York, New York
November 6, 2001