Joint Affidavit In Opposition (to above Motion to Dismiss)

A Death in the Hospital /Joint Affidavit In Opposition (to above Motion to Dismiss)


STEPHANIE Z. SPEKEN, M.S.                



– against –

Index No. 114722/02


)      ss.:

RALPH H. SPEKEN, M.D. and STEPHANIE Z. SPEKEN, M.S., being duly sworn, depose and say:

1. We are the pro se plaintiffs in this action. We are personally familiar with the facts and circumstances set forth below, and submit this Joint Affidavit in Opposition to defendant’s motion to dismiss the complaint pursuant to CPLR 3211(a)(1), (5) and (7).


2. On or about June 22, 1994, we consulted with and retained defendant to represent us in a medical malpractice action against Columbia Presbyterian Medical Center to recover damages for the hospital’s medical malpractice arising out of the death of our son, Seth. We signed a standard written retainer agreement with defendant to prosecute the action in accordance with Judiciary Law §474-a(2).

3. On or about October 11, 1994, defendant commenced the malpractice action on our behalf in the Supreme Court, New York County, under Index No. 128682/94 (RALPH H. SPEKEN and STEPHANIE Z. SPEKEN, as Co-Administrators of the Estate of SETH B. SPEKEN, deceased, and RALPH H. SPEKEN and STEPHANIE Z. SPEKEN, Individually v. COLUMBIA PRESBYTERIAN MEDICAL CENTER, et al)(the “Medical Malpractice Action”).

4. In March 1996, Columbia Presbyterian obtained an order permitting it to bring a counterclaim against plaintiff Ralph Speken for indemnification and/or contribution based upon his alleged malpractice in the treatment of our son. Based upon what we later learned was defendant’s misrepresentation that he could not represent Ralph Speken on the counterclaim, defendant engaged Clare Pare, Esq., to represent Ralph Speken on the counterclaim. We signed a retainer agreement with Ms. Pare providing for a contingent fee of 25% of the net proceeds received from the wrongful death action, after payment of defendant’s attorney’s fees for prosecution of the Medical Malpractice Action.

5. On or about June 14, 1999, defendant informed us by telephone that he and Richard Frank, Esq., were going to pick a jury. Thereafter, defendant informed us that the trial had been postponed to June 21, 1999. On or about June 21, 1999, defendant informed us that Mr. Frank had a “bad back” and that jury selection had to be postponed. On or about June 24, 1999, defendant informed plaintiffs by telephone that Mr. Frank is “out of the case, and it’s a good thing” that he is.

6. Shortly thereafter, we received a letter from Mr. Frank in which he stated that he was withdrawing and/or resigning from the Medical Malpractice Action.

7. On or about June 28, 1999, defendant informed us that the TrialCourt in the Medical Malpractice Action directed that we appear in court to swear under oath that we requested that Mr. Frank be relieved from the Medical Malpractice Action.

8. We informed defendant that we did not want to make such a representation to the Court because it was not true. However, defendant threatened us that Mr. Frank would “ruin the case” if we did not “discharge” him.

9. We had no choice but to follow defendant’s direction. Thus, we appeared before the Trial Court and requested that Mr. Frank be discharged.

10. Although from the outset defendant had led us to believe that he was a
“super” lawyer and would “come in at the end and do the trial himself”, defendant informed us after the Trial Court approved the discharge of Mr. Frank that he had already retained another lawyer to try the Medical Malpractice Action.

11. On or about June 29, 1999, at defendant’s direction, we met with the law firm of Assail and Yoelli whom defendant said was going to try the underlying case. However, Assail and Yoelli decided not to take on the Medical Malpractice Action.

12. Thereafter, on or about July 8, 1999, defendant telephoned plaintiff
Stephanie Speken and stated that he had settled the Medical Malpractice Action and that we were required to sign general releases and appear before the Trial Court immediately.

13. In response, we met with defendant later that same day at his office to
discuss the settlement. During this meeting, defendant told us that we had no choice but to accept the settlement and to sign general releases because, inter alia:

(a) If we did not sign releases, the Trial Judge would immediately “close down” the case;
(b) The Trial Judge was “corrupt” and therefore it was no use talking to the Judge and trying to do so would only “make matters worse” for us;
(c) Columbia Presbyterian Medical Center intended to commence a “multi-million dollar” defamation suit against us with respect to our website related to the events alleged in the Medical Malpractice Action;
(d) Defendant would not represent us in the defense of the defamation
(e) Defendant would have no choice but to resign from the Medical
Malpractice Action if we did not accept the settlement and sign general releases;
(f) For the first time, defendant stated that he did not have the skills and was
not prepared to try the case, and that Laura Shapiro [Columbian Presbyterian’s attorney] would “crush me”; and
(g) Defendant had negotiated the settlement in such a way that we
would be able to keep their website up and running with only “minor” changes (such as changing the names of the doctors).

14. We informed defendant that we did not accept the settlement and that we
wished to proceed to trial. We were not prepared to give up our First Amendment rights to talk about death of our beloved son at the hands of Columbian Presbyterian, and we would not agree to “any” changes to our website in which we discussed our son’s death.

15. During the taxicab ride to the Courthouse on July 8, 1999, defendant
repeated the above “reasons” and again forcefully threatened to withdraw from the case if we did not accept the settlement.

16. Prior to meeting with the Trial Judge in chambers, defendant told us that we would have to state to the Court that we consented to the settlement (even though he knew we did not consent to the settlement and that we wanted to proceed to trial).

17. Since we had up to that point great confidence and trust in defendant,
we felt helpless by reason of his threats. Ultimately, we succumbed to what we later learned were defendant’s manipulations, duress, threats, intimidation, lies, false representations and coercion. Thus, we did inform the Trial Court in the Medical Malpractice Action that we accepted the settlement negotiated by defendant and had voluntarily executed general releases. But for defendant’s duress, threats, intimidation, lies and coercion, we would not have agreed to settle the underlying case, sign a general release and place the settlement on the record in open court.

18. Approximately one week later, defendant telephoned us that Columbia
Presbyterian was demanding that our website be taken down “immediately” and “completely”.

19. When we responded that defendant had told us that we only had to make
“minor” changes to our website, defendant replied that he would “work on it” and inform us of the needed changes so that we could keep our website up and running.

20. Thereafter, we made repeated phone calls to defendant’s office. However,
defendant did not return a single phone call. To this day, defendant has never got back to us with respect to our website.

21. On or about August 24, 1999, another law firm advised us that the terms
of the settlement required that we immediately and completely take down our website; that defendant’s representations to us that we merely had to make “minor” changes was erroneous and indeed appeared false; and that continuing with our website would expose us to a defamation lawsuit. Needless to say, we were shocked and angered, felt betrayed and realized that defendant in whom we had placed our trust and confidence, had defrauded and deceived us.            22. We relied in good faith on defendant’s advice, promises, explanations, statements and representations. We did not know that defendant had lied to us in a fraudulent and deceitful attempt to induce us to accept the settlement of the Medical Malpractice Action.
Plaintiffs’ Motion to Vacate the Settlement

23 Ultimately, we made a motion to vacate the settlement and defendant’s
lien for attorney’s fees upon the ground that, as shown above, our consent to the settlement had been procured by defendant’s fraud, deceit, lies, duress, coercion and breach of his fiduciary duties.

24. Richard Frank and Clare Pare made separate motions to apportion and fix
the attorney’s fees in the Medical Malpractice Action. These motions provided us with new information not previously known to us regarding defendant’s fee arrangements with Mr. Frank and Ms. Pare, as well as the real reason for Mr. Frank’s dismissal. This new information underscored defendant’s duplicity and fraud.

25. With respect to fees, defendant had entered into a written agreement with
Mr. Frank by which Mr. Frank was to receive 2/3 of the contingency fee, and that a notice of Mr. Frank’s retainer was filed with the Judicial Conference stating that Mr. Frank was to receive the standard statutory fee, and that defendant, as attorney of record, was to receive a fee “equal to the same percentage of attorneys’ fee that the attorneys’ fee bears to the total recovery”.

26. We never entered into a written agreement with Mr. Frank.

27. With respect to Ms. Pare, defendant apparently had, prior to our signing
the retainer agreement with her, asked for a 50% referral fee. He ultimately accepted Ms. Pare’s offer of a 1/3 referral fee.

28. However, in late February 1999, Ms. Pare received a letter from defendant demanding that his legal fee in the malpractice action be shared 50-50 with her. Pare told defendant he was mistaken and refused. In March 1999, Pare received a letter from defendant in which he claimed that “I intend and have always intended that Richard Frank conduct the case against Columbia Presbyterian and that I personally conduct the defense of Dr. Ralph Speken”.

29. After Pare was discharged, defendant immediately stated he would
represent Dr. Speken on the counterclaim. We agreed to pay him a contingent fee of 25% of the net proceeds.

30. The motions by Frank and Pare also revealed the true story as to how Mr.
Frank came to be discharged. On June 21, 1999, Frank contacted Pare, who advised him that she had a disagreement with defendant about the division of fees for representing Dr. Speken; that she had been discharged as attorney on the counterclaim; and that defendant had taken over such defense himself. This was apparently the first time that Frank learned that defendant was going to receive an additional 25% contingent fee for representing Speken on the counterclaim.

31. On June 23, 1999, Frank told defendant that he believed defendant’s fee
arrangement was improper, since in the event of a recovery by plaintiffs against Columbia Presbyterian, defendant would receive a much greater total attorney’s fee from his client’s share of the recovery than allowed, regardless of whether the hospital’s counterclaim was sustained.

32. As set forth above, we received a letter from Frank advising that he was
withdrawing as trial counsel. The true facts as to why he was compelled to withdraw are readily apparent to us now.

33. After the settlement, Frank contacted defendant regarding apportionment
of the attorney’s fees. However, defendant advised Frank that he retaining the entire for himself.

34. In denying our motion to vacate the settlement, the Court held in pertinent part:

. . . a review of the record discloses no competent evidence of fraud, duress or other cause sufficient to invalidate this settlement [citation omitted]. Rather, it is clear that, at the time that the stipulation was made, plaintiffs were represented by counsel, knowingly and voluntarily entered into the stipulation in open court, and indicated that they were satisfied with the agreement and that their judgment was not impaired that day

35. However, the Court went on to explain that:

…plaintiffs must bear responsibility for Moore’s alleged malfeasance in allegedly coercing them into the settlement, and are relegated to relief against him for any damages which his conduct may have caused them [emphasis added].

36. With respect to Pare’s fee dispute with defendant, the Court agreed with our contention that a separate lawyer was not needed to represent Dr. Speken on the counterclaim, and that defendant was wrongfully seeking to recover more money than permitted by the Medical Malpractice Fee Schedule set forth in Judiciary Law §474-a(2). The Court pointed out that defendant “was obligated to handle the contingency presented by the counterclaim, and was not entitled to any increased fee for doing so”. The Court found that defendant’s retainer on the counterclaim was “clearly impermissible”.

Plaintiffs’ Second Action against Columbia Presbyterian

37. In or about July 2001, we commenced an action against Columbia Presbyterian to vacate the settlement of the Medical Malpractice Action.

38. We sought to vacate that provision of the underlying settlement requiring that we expunge our website and keep silent about the death of our son at the hands of Columbia Presbyterian. In our view, this wrongfully suppressed our First Amendment rights and indeed our moral responsibility to the public as well as our late son to discuss and disseminate information regarding Columbia’s behavior which rose to the level of criminal misconduct. The hospital’s malpractice constituted the crime of reckless endangerment in the second degree since it had violated a state law in connection with Seth’s death (New York State Mental Hygiene Law § 33.04). We contended that the Settlement was illegal and against public policy, and sought to restore our First Amendment rights.

39. The hospital moved to dismiss our complaint upon the ground that the
action was barred by res judicata because the validity of the settlement was addressed in the prior action. By order dated March 8, 2002, Judge Bransten granted the hospital’s motion upon the ground that “[r]es judicata…precludes [plaintiffs] from bringing this second action on matters that the parties litigated in the prior action”.

The Instant Complaint

40. On July 1, 2002, we commenced the instant action to, inter alia, recover
damages from defendant by reason of his malpractice and fraud and deceit in his representation of us in the underlying Medical Malpractice Action. Our complaint sets forth four causes of action. The first cause of action seeks damages based upon defendant’s fraud and deceit. The second cause of action seeks damages based upon defendant’s breach of fiduciary duty. The third cause of action seeks damages based upon defendant’s breach of contract. The fourth cause of action seeks damages based upon defendant’s legal malpractice. The complaint also seeks an award for punitive damages.

The Complaint Should Not be Dismissed

41. It is well-settled that on a motion to dismiss a complaint, the complaint is
afforded a liberal construction. The court accepts the facts alleged in the complaint as true, accords plaintiffs the benefit of every possible favorable inference, and determines only whether or not the allegations fit within any cognizable legal theory. Campaign for Fiscal Equity, Inc. v. State, 86 N.Y.2d 307, 318, 631 N.Y.S.2d 565, 571 (1995)(“If we determine that plaintiffs are entitled to relief on any reasonable view of the facts stated, our inquiry is complete and we must declare the complaint legally sufficient”); Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 974 (1994); Morone v. Morone, 50 N.Y.2d 481, 484, 429 N.Y.S.2d 592, 593 (1989); see also, M.M. v. E.M., 248 A.D.2d 109, 669 N.Y.S.2d 543 (1st Dep’t 1998); Gabriel v. Therapists Unlimited, L.P., 218 A.D.2d 614, 631 N.Y.S.2d 34 (1st Dep’t 1995).

42. The sole criteria on a 3211(a)(7) motion to dismiss is whether the complaint states a cause of action. If factual allegations are discerned from the complaint’s four corners, which, taken together, manifest any cause of action cognizable at law, a 3211(a)(7) motion for dismissal will fail. Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 401 N.Y.S.2d 182 (1977)(the court should only be concerned with “whether the proponent of the pleading has a cause of action, not whether he has stated one”); Paulsen v. Paulsen, 148 A.D.2d 685, 686, 539 N.Y.S.2d 433, 434 (2d Dep’t 1989) (plaintiff has no obligation to demonstrate evidentiary facts to support the allegations contained in the complaint); Palmisano v. Modernismo Publications, Ltd., 98 A.D.2d 953, 470 N.Y.S.2d 196, 198 (4th Dep’t 1983); Siegel, Practice Commentaries, CPLR 3211:24.

43. A motion to dismiss is not concerned with the presence or absence of disputed facts. Rather, it is only directed to the sufficiency of the pleadings and whether thecomplaint states a cause of action. Sanders v.Winship, 57 N.Y.2d 391, 394, 456 N.Y.S.720 (1982)(“Whatever an ultimate trial may disclose as to the truth of the allegations, on such a motion, a court is to take them as true and to resolve all inferences which reasonably flow therefrom in favor of the pleader”). Indeed, the court’s inquiry is not addressed to whether the plaintiff may ultimately be successful on the merits. Stukuls v. State of New York, 42 N.Y.2d 272, 275, 397 N.Y.S.2d 740; Ferrandino v. Alvin J. Bart & Sons, Inc., 247 A.D.2d 428, 668 N.Y.S.2d 99 (2d Dep’t 1998); Detmer v. Acampora, 207 A.D.2d 475, 616 N.Y.S.2d 506, 507 (2d Dep’t 1994)(defendant’s motion to dismiss was properly denied since “the court is not concerned with determinations of fact or the likelihood of success on the merits”).

44. Applying the foregoing principles to the case at bar, it is unequivocally
clear that in accepting the facts alleged in the complaint as true, and according the pro se plaintiffs the benefit of every possible favorable inference, the complaint, as a matter of pleading, properly pleads the aforementioned four causes of action against defendant.
Our Complaint is Not Barred by Collateral Estoppel

45. Although the doctrine of collateral estoppel precludes a party from
relitigating an issue necessarily raised and decided against that party provided there was a full and fair opportunity to litigate the point, “[g]ratuitous findings will not support an estoppel”. Siegel, New York Practice, 3d ed., § 465 at 747.

46. Here, defendant’s reliance on the doctrine of collateral estoppel by virtue
of Justice Heitler’s decision, is misplaced. Justice Heitler denied our motion to vacate the underlying settlement based on her “essential” finding that there was no evidence of fraud on the part of Columbia Presbyterian or its attorneys. See, Nash v. Y and T Distributors, 207 A.D.2d. 779 (2d Dep’t 1994)(“the forgery which forms the basis for the plaintiff’s claim is not the type offraud which would invalidate the settlement, since it is fraud between the party to the settlement and her [attorney], and not between the parties to the contract”); Heimuller v. Amoco Oil Co., 92 A.D.2d 882 (2d Dep’t 1983)(since the record reveals no false representation by [defendant] upon which [plaintiff] relied in entering the stipulation, there has no been no showing of fraud, actual or otherwise”).

47. Once Justice Heitler found that there was no evidence of fraud on
Columbia Presbyterian’s part, it follows that the remainder of her other findings in her decision – that there was no evidence of fraud by defendant herein, were “gratuitous”, extraneous and not necessary to her penultimate decision. Justice Heitler’s findings that there was no evidence of defendant’s fraud and coercion in obtaining plaintiffs’ consent to the settlement of the Medical Malpractice Action, is “gratuitous” and does not bar us from litigating herein the issue of defendant’s malpractice and other wrongdoing in his representation of them in the malpractice action. Therefore, such gratuitous findings are not subject to the doctrine of collateral estoppel.

48. Defendant’s reliance on that part of Justice Heitler’s decision
as denied our motion to vacate defendant’s attorney lien, to support his argument that the complaint is barred by collateral estoppel, is also misplaced. To the contrary, since Justice Heitler’s vacated defendant’s retainer agreement in part, she recognized defendant’s malfeasance.

49. Moreover, Justice Heitler’s summary decision to permit Moore’s lien
against the settlement was done without the basis of a hearing. We had discharged Moore as our lawyer for cause. Justice Heitler did not hold a hearing on this matter as was required. See Teichner v. Holsteins, Inc., 489 N.Y.S.2d 36 (Ct.App. 1985) (“Hearing was required to determine if attorney was discharged for cause or, if he was discharged without cause before completion of his services, for determination of his fee on quantum meruit basis.”); Genton, et al

v. Arpeggio Restaurant, Inc., et al., 648 N.Y.S.2d 553 (A.D. 1 Dept. 1996) (“The Supreme Court, Appellate Division, held that hearing was required to determine whether attorney was discharged for cause, and if not, whether he was entitled for compensation and in what amount”).

50. Justice Heitler expressly left open a lawsuit by us against defendant to
recover for his misfeasance. She specifically explained that:

Under these circumstances, plaintiffs, not [Columbia Presbyterian], must ‘bear the responsibility for their attorneys’ misfeasance (Hallock v. State, 64 NY2d at 229). Accordingly, here, plaintiffs must bear the responsibility for Moore’s alleged malfeasance in allegedly coercing them into the settlement, and are relegated to relief against him for any damages which his conduct may have caused them.


51. Defendant’s fraud and malpractice in the Medical Malpractice Action, not
only against plaintiffs, but against Frank and Pare as well, should not be summarily dismissed at the early stage of this litigation.

52. Consequently, since the allegations set forth in the complaint sufficiently
place defendant on notice pursuant to CPLR 3013 that plaintiffs seek damages based upon defendant’s malpractice, the complaint should not be dismissed.

53. In her Decision and Order (Exhibit “B” to Defendant’s Moving Papers, at
24-26), Justice Heitler relied on four reasons to substantiate her opinion that defendant did not coerce us into signing the General Release and entering into the settlement:

(a) We were under oath and had an obligation to inform the Court that we “…did not want to settle and/or that [we] were under duress”. To paraphrase her reasoning, since we had an obligation to tell the Court that we were under duress, and we did not, it follows that we not under duress.   Judge Heitler’s reasoning is circular and most important, totally incorrect. At the time we signed the General Release in Open Court, we were each under severe duress and emotional strain by reason of Mr. Moore’s misconduct. In order to show that fraud and deceit, it must be shown (1) that the defendant made a representation, (2) as to a material fact, (3) which was false, (4) and known to be false by the defendant, (5) that the representation was made for the purpose of inducing the other party to rely upon it, (6) that the other party rightfully did so rely, (7) in ignorance of its falsity (8) to his injury. 24 N.Y. Jur., Fraud and Deceit, § 14; 37 C.J.S. Fraud § 3.

Among the deceitful representations Moore made to induce us to sign the General Release in Open Court was his statement that “The Court is corrupt. Just look at the President Clinton fiasco. This would mean the end for you”. This statement came in response to the request by Dr. Speken made to Mr. Moore that Dr. Speken be allowed to speak with Justice Heitler in order to request a delay in trial so that we could find new counsel (after Moore stated that he did not have the skills to oppose the Hospital’s lawyer).

When the Judge asked us to sign the General Release, we were in great fear of her precisely because of Moore’s misrepresentations and lies. At the time we singed the General Release, we still had great trust in Mr. Moore’s honesty and integrity. He was able to defraud and put us under duress precisely because of our trust in him. This is a measure of the extent of his skill in defrauding us . We had no inkling at that time that we were victims of multiple fraudulent acts. Indeed, the essence of successful fraud is that victims such as us are totally unaware of what is happening.

Thus, Justice Heitler’s conclusion that Moore did not coerce us since we were under an obligation to tell her, is misplaced. At that point in time, we had great fear of her due toMoore’s misrepresentations. We could not have been expected to have reacted or behaved in any other way.

(b) Justice Heitler’s second reason that we were not coerced is that our
signature appears on the General Release and we gave up our First Amendment rights voluntarily. This was not true. When we finally learned just what Moore had done, we re-published our website on the Internet. It is now Columbia’s position that we must remove our website in order to obtain compensation for their wrongful acts that led to our son’s death,.

Thus, the fact that we signed the General Release should not now be used to bar our instant lawsuit to recover for Moore’s legal malpractice. Home Ins. Co. v. Liebman, Adolf & Charme, 257 A.D.2d 424, 683 N.Y.S.2d 519 (All the plaintiff are “…required to plead, with sufficient detail, that, but for the attorney’s alleged malpractice, plaintiff would have avoided some “actual ascertainable damage”…and settlement, when compelled by an attorney’s breach of the standard of care, alleged herein, does not constitute an intervening cause barring a claim for legal malpractice”).

(c) The third reason given by Justice Heitler is that Moore’s threat that we
faced a “multi-million dollar lawsuit” from the Hospital was irrelevant. However, we believed Moore’s threat and at the time had no reason to doubt him.. We had no way of knowing that it was yet another of Moore’s fraudulent statements. The fear of a defamation suit with no lawyer to defend us weighed very heavily on us. The Judge’s opinion on this matter is without merit

(d) Judge Heitler makes the incorrect statement that “Finally, nothing revealed
in the fee dispute between plaintiffs’ various counsel suggests that plaintiffs’ agreement to settle this case was procured by fraud.

54. In fact, Moore’s acts and omissions demonstrate his malfeasance andbreach of fiduciary duties owed to us.. Moore brought on a third lawyer who was not needed, only to force us to get rid of her when it was clear to him that he was able to make some money on the case. His co-counsel eventually became aware of Moore’s deceitful manipulation and resigned. Moore, instead of retaining new co-counsel as he had promised, then threatened to abruptly resign from the case if we did not sign the General Release. We were faced with the termination of our action against Columbia as well as their defamation suit against us.

55. Moore, who had convinced us that he would handle Dr. Spekens’ defense
at trial, never had any intention at all to go to trial. He never even obtained the files from Richard Frank and Claire Pare.

56. After Moore had successfully coerced us into signing the General Release, he took this as an opportunity to claim for himself the entire contingency fee of $137,500. Had Richard Frank not submitted a Show Cause order demanding his share of the legal fee resulting from the settlement and we did not make our Motion To Vacate The General Release (Exhibit “F” to Defendant’s Moving Papers) Moore would have been able to unjustly enrich himself by $137,500 and we would have lost our First Amendment rights.

57. Judge Klein-Heitler’s Decision and Order rejected Moore’s claim to
an additional $90,625 in fees from the settlement, and restored Frank’s right to compensation for work performed. Therefore, the Judge’s conclusion that “nothing revealed in the fee dispute…suggests that plaintiff’s agreement to settle this case was procured by fraud” is simply incorrect.

58. There is an issue of fact here. We assert that a fraudulent lawyer
defrauded us as it has been documented he did to his co-counsels (as well as his illegal action toward the Medical Malpractice Contingency Fee Schedule). Moore asserts otherwise. It is amatter of whom to believe.

59. But given the fact that the Judge herself is essentially saying that Moore’s behavior in the fee dispute was indefensible, there is more than enough to “suggest” that he carried out the same behaviors towards us in obtaining our signatures on the General Release.

60. It would be unfair to deny us our right to trial against Moore on the basis
of Justice Heitler’s summary opinion that we were not defrauded by him. Bennardo v. Equitable Land Service, Inc., 244 A.D.2d 304 (Fraud action was brought against an attorney who had previously been cleared by the Grievance Committee. Collateral Estoppel was denied the defendant attorney by the New York State Supreme Court, Appellate Division, stating that the deliberations were “…summary in nature and was made without the benefit of hearing at which plaintiff could have testified.”).

61. The requirements for collateral estoppel were discussed by then Chief
Judge Wachtler in Gilberg v. Barbieri (Ct.App:, 441 N.Y.S.2d 49). There, the defendant, a lawyer, sought collateral estoppel against the civil suit of another lawyer he had assaulted. The defendant argued that he had already been convicted of harassment in another court. Justice Wachtler stated, “The question as to whether a party has had a full and fair opportunity to contest a prior determination cannot be reduced to a formula. It cannot, for instance, be resolved by a finding that the party against whom the determination is asserted was accorded due process in the prior proceeding…The point of the inquiry, of course, is not to decide whether the prior determination should be vacated but to decide whether it should be given conclusive effect beyond the case in which it was made.”.

62. The conclusion in Justice Heitler’s Decision and Order that we were
not defrauded by Moore was made without an evidentiary hearing and on grounds that have no merit. The Appellate Division’s decision did not specifically address this point. It would be fundamentally unfair to use Justice Heitler’s gratuitous comments regarding the Moore’s fraud and deceit to preclude us from this lawsuit. There is no valid reason, and Moore has not come forward with any, which would support his using Judge Heitler’s decision to benefit him when the crux of her decision was between us and the Hospital.

We State A Valid Claim for Punitive Damages

63. The purpose of punitive damages is to “vindicate public rights”. Rocanova v. Equitable Life Assur. Socy., 83 N.Y.2d 603, 613, 612 N.Y.S.2d 339 (1994).

64. Here, we are entitled to recover punitive damages because defendant’s
“egregious tortious conduct” was so outrageous as to evince a “high degree of moral turpitude” and “wanton dishonesty as to imply a criminal indifference to civil obligations”, Rocanova, supra, and recovery of punitive damages is necessary to vindicate a “public right” since defendant is an attorney. Ibid., at 613, 612 N.Y.S.2d 339.

65. Defendant’s misconduct in the medical malpractice action as alleged in
our complaint was egregious, morally culpable and warrants imposition of punitive damages. First, in clear violation of the Judiciary Law, he attempted to extort an additional $90,625 from the settlement proceeds. Justice Heitler appropriately rebuffed defendant’s attempt to do so.

66. Contrary to Moore’s claim that punitive damages are not available, courts have awarded punitive damages against lawyers for the same type of misconduct that we have alleged herein. For example, Justice Shainswit of this Court awarded a client $75,000 in compensatory damages and $25,000 in punitive damages against her attorney based on the Court’s findings that the defendant attorney “shirked his professional duties” which he compounded with a pattern of “misrepresentation” to the client, failed to behave “responsibly”and speak “truthfully”, and “deliberately concealed the true facts” and “expressly lied to [the clients] about the status of the case”. Matter of Simenowitz, 223 A.D.2d 252, 644 N.Y.S.2d 1001(2d Dep’t 1996).

67. Contrary to Moore’s self-serving claim that this is a mere breach of contract claim between private parties, in fact we have set forth in detail factual allegations showing Moore’s morally culpable and reprehensible conduct which is sufficient to state a valid claim for punitive damages. Giblin v. Murphy, 73 N.Y.2d 69, 536 N.Y.S.2d 54 (1988); D’Antoni v. Ansell, 84 A.D.2d 678, 585 N.Y.S.2d 459 (2d Dep’t 1992).

68. Second, and most importantly, Moore has sought to completely destroy our First Amendment rights to freely and publicly discuss the tragic death of our son. By entering into an agreement which completely dismantled our website (while at the same time informing us that only “minor” changes needed to be made to the site), defendant unilaterally took away our First Amendment rights. In order to obtain compensation from the Hospital for our son’s death, we must maintain the silence we promised due to defendant’s coercion. We would not have agreed to this were it not for his malpractice. We never intended to waive our First Amendment right. Therefore, we have a meritorious claim to recover financial damages in the sum of $500,000 due to Moore’s malfeasance which has prevented us from recovering the $500,000 settlement.

69. Finally, Moore now seeks to deprive us of our day in Court and thereby deprive us of our Seventh Amendment right to a trial as well as our Fourteenth Amendment right to due process.

WHEREFORE, plaintiffs respectfully request that defendant’s motion be denied in all respects.


Sworn to before me the
4th day of October, 2002