litigate an issue - - i.e., the criminality of defendant’s conduct in the
death of our son and the legality of the provision in the General Release
requiring our silence about such criminal behavior - - which was present from
the beginning, in fact raised by plaintiffs in the Court below but which was
never adjudicated or even addressed by the Court. Therefore, our second action
is not barred by res judicata. We seek only to have the issue of defendant’s
criminality in the death of our son fully and finally adjudicated on the merits.
BACKGROUND
3. On October 11, 1994, plaintiffs commenced an action for the
wrongful death of their son, Seth Speken, against defendant and others, by
filing a summons and complaint with the Clerk of Supreme Court, New York County.
4. On July 8, 1999, plaintiffs entered into an open court settlement in
which, inter alia, plaintiffs were required to never again
speak about the case and to expunge their website entitled "A Death in the
Hospital" (http://www.med-malpractice.com) from the Internet. The website
deals extensively with Seth’s death.
5. In substance and effect, the General Release requires our promise
to be silent about the criminal actions on the part of the Defendant that led
to our son’s death. Yet, pursuant to New York State Penal Law §215.40 (See,
Exhibit "A" hereto), this silence on our part would constitute a class
A Misdemeanor. Further, it is well settled that it is illegal to sign an
agreement in which silence is pledged regarding a crime (See, Exhibit
"B" hereto).
6. Plaintiffs made a motion to vacate the General Release upon the