SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: IAS PART 15
RALPH H. SPEKEN, M.D. and
STEPHANIE Z. SPEKEN, M.S.,
Index No.
114722/2002
Plaintiffs,
-against-
THOMAS R. MOORE, ESQ.,
Defendant.
WALTER B. TOLUB, J.:
By this motion, defendant seeks dismissal of plaintiffs’ complaint pursuant to CPLR 3211 (a) (1), (a) (5), and (a) (7)
Plaintiffs’ instant complaint contains four causes of action alleging fraud, breach of fiduciary duty, breach of contract, negligence and legal malpractice.
Facts
In August 1993, plaintiffs’ son died while under the care of Columbia Presbyterian Medical Center (the Hospital). Thereafter, plaintiffs engaged defendant to commence a wrongful death action against the Hospital. On October 11, 1994 plaintiffs, individually and as co-administrators of their son’s estate, commenced an action against the Hospital in the action, Speken v. Columbia Presbyterian Medical Center, et al., (Index No. 128682/1994). Defendant engaged Richard Frank, Esq. as trial counsel to prosecute the action, and Clare Pare, Esq. to appear for and defend plaintiff Dr. Speken on the Hospital’s counterclaim. Ms. Pare was later discharged as counsel for Dr. Speken, and was substituted by defendant.
In June 1999, approximately two weeks prior to the rescheduled trial date, Mr. Frank withdrew as plaintiffs’ trial counsel. Although it appears new trial counsel was retained, their services were unused as the matter settled on July 8, 1999 for $500,0001.
The stipulation of settlement at issue was entered into in open court and was further supported by plaintiffs’ testimony that they both agreed to the settlement of their own free will. Plaintiffs’ subsequent motion to vacate the stipulation of settlement on the grounds of duress, coercion and fraud was denied by Justice Heitler.
In July 2001, plaintiffs commenced a second action as coadministrators of their son’s estate and individually under the caption Speken v. Columbia Presbyterian Medical Center, et al., (Index No. 113895/2001) . By this action, plaintiffs sought to vacate the provisions of the settlement agreement requiring plaintiffs to expunge their website and further barring plaintiffs from publicizing or discussing the lawsuit, their son’s care and treatment at the Hospital, and the names or description of any individuals involved in their son’s hospitalization. This action was dismissed as barred by the doctrine of res judicata by Justice
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1To date, plaintiffs have not been able to collect the $500,000 because they have notcomplied with the terms of the settlement agreement, namely, they have failed to shut down their website discussing the subject litigation and allegations against the Hospital and its medical staff.
Bransten in March, 2002.
Plaintiffs then commenced the instant action.
Discussion
It is well accepted law in this State that where a claim has been litigated and brought to a final conclusion, subsequent claims that are “coterminous with the transaction or series of transactions from which the earlier claims arose,” are barred under the doctrine of res judicata (Couri v. Westchester Country Club, Inc.,186 A.D.2d 715, 716 [2nd Dept. 1992]; Smith v. Russell Sage College, 54 N.Y.2d 185 [1981]; Boronow v. Boronow 71 N.Y.2d 284 [1988]). A claim will be similarly barred where the cause of action states a separate claim on the same facts, but for different relief or under different legal theory (O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357 (1981); Matter of Reilly v. Reid, 45 N.Y.2d 24 [1978]).
The gravamen of Plaintiffs’ Complaint involves claims of fraud, breach of fiduciary duty, breach of contract, negligence and legal malpractice. Although plaintiffs contend that the instant complaint is not barred by the doctrine of res judicata, the allegations contained within the Complaint, most notably within the first and second causes of action, admittedly arise directly from the settlement of the original malpractice action. Consequently, all of plaintiffs’ claims made in the instant matter have either already been litigated or could have been litigated in the actions brought before Justice Heitler and Justice Bransten. Accordingly, the doctrine of res judicata bars further claims on these issues.
It should be noted that even if res judicata did not bar plaintiffs’ claims of breach of contract and legal malpractice, these claims would be similarly dismissed under CPLR 3211 (a) (7).
As a general rule, a motion to dismiss pursuant to CPLR 3211 requires the court to (1) accept all allegations in the Complaint as true; (2) afford plaintiff all favorable instances to be drawn form the allegations contained within the Complaint; and (3) determine whether, on any reasonable view of the facts, plaintiff can succeed (Campaign for Fiscal Equity. Inc. et. al v. State of New York, 86 N.Y.2d 307 at 318 [1995]; People v. New York City Transit Authority, 59 N.Y.2d 343 at 318 [1983]). Accordingly, plaintiff must support each allegation or cause of action with facts, and where plaintiff fails to do so, dismissal of the cause of action is not only appropriate, but warranted. (DiPalma v. Phelan, 81 N.Y.2d 754 [1992]; Creed v. United Hospital et al.. 190 A.D.2d 489 [2fld Dept. 1993]).
Legal Malpractice/Breach of Contract
At the outset, the court notes that plaintiffs’ fourth cause of action alleging negligence and legal malpractice is contained within plaintiff’s third cause of action alleging breach of contract. Accordingly, plaintiff’s fourth cause of action fornegligence and legal malpractice is dismissed as duplicative (DiPlacidi v. Walsh, 243 A.D.2d 335[lst Dept. 1997]; Feldman v. Jasne, 294 A.D.2d 307 [l~ Dept. 2002]).
A prima facie cause of action for legal malpractice requires plaintiff to prove(l)that the attorney was negligent, (2) that the attorney’s negligence was the proximate cause of plaintiff’s damages, and (3) evidence of actual damages (Pellegrino v. Eile, 291 A.D.2d 60,63 fist Dept. 2002]; Schwartz v. 1462 Olshan Grundman Frome & Rosenzweig, 2003 WL 131652 1st Dept. 2003]; Between the Bread Realty Corp v. Salans Hertzfeld Heilbronn Christy & Viener, 290 A.D.2d 380 fist Dept. 2002], lv. denied 98 N.Y.2d 603 [2002]). Therefore, to survive dismissal of a legal malpractice claim, plaintiff must show that “but for counsel’s alleged malpractice, plaintiff would not have sustained some actual, ascertainable damages” (Pellegrino v. File, 291 A.D.2d 60, 63 [1st Dept.]; Strook Strook and Lavan v. Beltramini, 157 A.D.2d 590, 591 1stDept. 1990]).
In the instant action, the source of the legal malpractice claim against the defendant was defendant’s representation of plaintiffs in the underlying medical malpractice case. However, plaintiffs have not presented evidence supporting the contention that defendant’s negligent representation caused actual ascertainab1e damages.
Plaintiffs hired defendant to represent them in connection
with the original malpractice action against the Hospital. Defendant prepared the case for trial, obtained additional trial counsel, and when trial counsel withdrew, obtained new trial counsel. Defendant then facilitated settlement negotiations and succeeded in obtaining a $500,000 settlement in favor of the plaintiffs conditioned on the dismantling of plaintiffs’ website. The primary goal of defendant’s engagement was to represent plaintiffs’ action and in a best case scenario, obtain a judgment in favor of the plaintiffs. This, in fact, was accomplished when a settlement agreement was reached. That plaintiffs have not been able to collect the settlement amount due to their own failure to comply with the terms of the settlement agreement is not evidence of either legal malpractice or breach of contract on the part of defendant. Accordingly, as plaintiffs have not made the requisite showing indicating either negligence or breach of contract, plaintiffs’ third cause of action is dismissed.
Lastly, this Court is cognizant of the tragic nature of plaintiffs’ loss. However, as frustrating as it may seem, future claims made on a matter that has been fully litigated, no matter how unique the theory, will be barred under the doctrine of res judicata, and may result in sanctions for costs.
Accordingly, it is
ORDERED that defendant’s motion to dismiss plaintiff’s complaint in the instant action is granted; and it is further
ORDERED that the clerk of court enter judgment in favor of defendant.
This memorandum opinion constitutes the decision and order of the Court.
Dated:
HON. WALTER B. TOLUB, J.S.C.