SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: CIVIL TERM: Part – 15
Ralph H. Speken, M.D.,
and Stephanie Z. Speken, M.S.,
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
Attorneys for Defendant
Uniondale, New York, 11556
by: Janice J. Digennaro, Esq.
Official Court Reporter
COURT CLERK: Index Number 114722 of 2002,
RALPH H. SPEKEN, M.D. And STEPHANIE Z. SPEKEN, M.S.
THOMAS R. MOORE, ESQ..
Ms. Degennaro, it is your application. So, I will give you 3 minutes to explain it to me.
MS. DIGENNARO: Okay.
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
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
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
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
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
THE COURT: That she did and she didn’t?
MR. SPEKEN: She says two things. This is
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