STATE OF NEW YORK
COURT OF APPEALS
RALPH H. SPEKEN and STEPHANIE Z. SPEKEN,
Plaintiffs-Appellants,
– against –
THOMAS R. MOORE, ESQ.,
Defendant-Respondent.
NOTICE OF MOTION FOR LEAVE TO APPEAL
TO THE COURT OF APPEALS AND SUPPORTING PAPERS
RALPH H. SPEKEN
STEPHANIE Z. SPEKEN
Plaintiffs-Appellants Pro Se
81 Pondfield Road, Suite 179
Bronxville, New York
New York County Clerk’s Index No. 114722/02
TABLE OF CONTENTS
Page
NOTICE OF MOTION FOR LEAVE TO APPEAL 1
Joint AFFIRMATION IN SUPPORT OF MOTION 3
Timeliness ………………………………………………………………………………………………3
Jurisdiction……………………………………………………………………………………………..4
Question of Law Presented For Review ………………………………………………………5
The Question of Law Presented Merits Review By This Court ……………………….5
Background ……………………………………………………………………………………………..5
The Appellate Division Overlooked Plaintiffs’ Principal Argument
That Their Legal Malpractice Complaint is Not Barred by the
Doctrine of Res Judicata Since Justice Heitler’s Finding That
There Was No Evidence of Fraud by Defendant, Was Gratuitous ………………..11
Conclusion ………………………………………………………………………………………………15
STATE OF NEW YORK
COURT OF APPEALS
RALPH H. SPEKEN and STEPHANIE
Z. SPEKEN, :
Plaintiffs-Appellants, : JOINT AFFIDAVIT IN SUPPORT
– against – : New York County Clerk’s
Index No. 114722/02
THOMAS R. MOORE, ESQ., :
Defendant-Respondent. :
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
RALPH H. SPEKEN, M.D. and STEPHANIE Z. SPEKEN, M.S., being duly sworn, depose and say:
1. We are the pro se plaintiffs-appellants in this action. We are personally familiar with the facts and circumstances set forth below, and submit this Joint Affidavit in support of our motion, pursuant to CPLR 5602(a)(1)(i), for leave to appeal to this Court from the Order of the Appellate Division, First Department, entered on April 6, 2004. Speken v. Moore, ___A.D.3d ___, 773 N.Y.S.2d 880 (1st Dep’t 2004). The Appellate Division’s order affirmed, on the law, the order of the Supreme Court, New York County (Tolub, J.), entered on April 23, 2003, which had granted the motion by defendant-respondent Thomas R. Moore, Esq. dismissing the complaint.
Timeliness
2. By notice of appeal dated May 1, 2003, plaintiffs timely appealed to the Appellate Division, First Department, from the Order of the Supreme Court, New York County (Tolub, J.), entered on April 23, 2003, which granted defendant Moore’s motion to dismiss the complaint on the ground that it is barred by the doctrine of res judicata.
3. By order dated April 6, 2004, a copy of which is annexed hereto as Exhibit “A” along with notice of entry, the Appellate Division, First Department affirmed Supreme Court’s order.
4. The Appellate Division’s order was served with notice of entry by mail on April 12, 2004 as reflected by the post mark on the envelope in which the Appellate Division’s Order with notice of entry was mailed.
5. Since this motion has been served on May 12, 2004, it is timely.
Jurisdiction
Finality
6. Under CPLR 5602(a)(1)(i), the Court of Appeals has jurisdiction to
entertain this motion and plaintiff’s proposed appeal. The Appellate Division’s order is a final order which finally determines this action. Siegel, New York Practice, §527 at 363 (3d Ed. 1998); see also, Karger, The Powers of the New York Court of Appeals, §11 at 48; §12 at 53-59 (3d Ed. 1997).
7. Moreover, since the Appellate Division’s order was unanimous, it is not appealable as of right under CPLR 5601(a) and leave to appeal under CPLR 5602(a)(1)(i) must first be sought and obtained.
Question of Law
Presented For Review
8. A concise statement of the question of law presented for review, is as follows:
Whether a gratuitous finding on the issues of attorney fraud
and malpractice, which are not part of, and non-essential to
determination of a plaintiff’s main case for wrongful death,
may provide a basis for dismissing, upon the ground of res
judicata, a subsequent action seeking resolution of the specific
issues of attorney fraud and malpractice?
The Question of Law Presented
Merits Review By This Court
9. This question of law merits review because it provides this Court with the opportunity to squarely address and definitely resolve an issue of law which has not been passed upon by this Court and which is important to the public at large.
Background
10. The facts are set forth in detail in the parties’ briefs in the Appellate Division.
11. Briefly, on or about June 22, 1994, plaintiffs consulted with and retained defendant Thomas R. Moore, Esq., to represent them 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 plaintiffs’ son, Seth Speken. Plaintiffs signed a standard written retainer agreement with defendant to prosecute the action in accordance with Judiciary Law §474-a(2) (R. 109).
12. On October 11, 1994, defendant commenced an action for conscious pain and suffering and wrongful death against Columbia Presbyterian Hospital (the “hospital”) and others 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”).
13. In June of 1999, the Medical Malpractice Action came on for jury selection to be tried before Justice Sherry Klein-Heitler. Jury selection was adjourned several times due in large measure to the eleventh hour discharge, at defendant’s instigation, of Richard Frank, plaintiffs’ trial counsel who had been retained by defendant.
14. On July 8, 1999, defendant advised plaintiffs that he had settled the Medical Malpractice Action and that plaintiffs were required to sign general releases and appear before the Trial Court immediately. As a result of defendant’s undue pressure, demands and coercion – including forcefully threatening to withdraw from the case on the eve of trial if plaintiffs did not accept the settlement – plaintiffs ultimately succumbed and informed the Trial Court in the Medical Malpractice Action that they accepted the settlement negotiated by defendant.
15. The record is replete defendant’s manipulations, duress, threats, intimidation, fraud, coercion and malpractice in deceiving plaintiffs to sign the stipulation of settlement. In addition, the record discloses that defendant attempted to enforce fee arrangements with Mr. Frank as well as Clare Pare (who was engaged by defendant to represent Ralph Speken on the hospital’s counterclaim and then forced to withdraw from the case by defendant’s untoward conduct) under which, in the event of recovery by plaintiffs against the hospital, he would receive a much greater total attorney’s fee from plaintiffs’ share of the recovery than allowed.
16. The record reveals that plaintiffs were unaware of defendant’s malfeasance towards them until after they had entered into the stipulation of settlement. Plaintiffs relied in good faith on defendant’s advice, promises, explanations, statements and representations. They did not know, until after the fact, that defendant had lied to them in a fraudulent and deceitful attempt to induce them to accept the settlement of the Medical Malpractice Action.
17. But for defendant’s egregious conduct, plaintiffs would not have agreed to settle the underlying case, sign a general release and place the settlement on the record in open court.
18. Consequently, plaintiffs moved to vacate the settlement upon the ground that it had been procured by fraud, deceit, lies, duress, coercion of defendant, their attorney.
19. The Trial Court did not hold an evidentiary hearing on the issue of defendant’s fraud and deceit. Rather, by Order dated March 31, 2000, Justice Klein-Heitler denied plaintiffs’ motion to vacate the settlement. After first discussing, at some length, the authorities which hold that a stipulation “may only be set aside on narrow grounds”, 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. . .Plaintiffs further allege that the deceptive actions of Moore, designed for
his own financial gain, constitute fraud. Plaintiffs’ claim of fraud,
however, is insufficient for vacatur of this settlement. It is clear that, if a
plaintiff claims fraud as the basis for vacating a settlement, it must be
shown that defendant, or defendant’s counsel, was the perpetrator. . .
[emphasis added].Here, plaintiffs do not claim that their agreement to settle this action was
procured by fraud on the part of the Hospital or its attorney. Rather,
plaintiffs contend that their own attorney made fraudulent representations
to coerce them into entering into the settlement. Hence, vacatur must be
denied. . .Accordingly, here, 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].
20. By order dated December 21, 2000, the Appellate Division, First Department affirmed Justice Heitler’s March 31, 2000 order. The Appellate Division mirrored Justice Heitler’s analysis of New York law regarding vacatur of settlements and held that “[t]here is no basis shown to set aside the stipulation of settlement entered into in open court after full allocution by the court,” citing Hallock v. State of New York, 64 N.Y.2d 224 and Washo v. Washo, 170 A.D.2d 827, 565 N.Y.S.2d 897 (3d Dep’t 1991).
21. On July 19, 2001, plaintiffs commenced a second action against the hospital to vacate the settlement of the Medical Malpractice Action. The gravamen of the complaint in the second action was that the confidentiality provisions of the settlement in which plaintiffs are required to expunge their website, are unconstitutional and illegal.
22. By order dated March 8, 2002, Justice Bransten of Supreme Court, New York County granted the hospital’s motion to dismiss the complaint upon the ground that “[r]es judicata. . . precludes [plaintiffs] from bringing this second action on matters that the parties litigated in the prior action.”
23. The Appellate Division, First Department, in an Order dated April 29, 2003 affirmed Justice Bransten’s order. Speken v. Columbia Presbyterian Medical Center, 304 A.D.2d 489, 759 N.Y.S.2d 47 (1st Dep’t 2003). In pertinent part, the Appellate Division explained:
This is plaintiff’s second attempt to vacate the settlement
agreement. The first attempt was a motion in the underlying
action that raised, among other arguments, the very argument
made herein, to wit, that the confidentiality provisions of the
settlement agreement are void as against public policy. In
affirming the denial of the motion, this Court stated that no basis
was shown for setting aside the stipulation of settlement. . .
24. On July 1, 2002, plaintiffs commenced the instant action to, inter alia, recover damages from defendant by reason of his malpractice and fraud and deceit in his representation of plaintiffs in the underlying Medical Malpractice Action. The 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.
25. Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a)(1),
(a)(5) and (a)(7) (R. 11-28). In support of the motion, defendant argued that the prior orders of Justice Klein-Heitler and Justice Bransten, barred plaintiffs’ malpractice and other claims under the doctrines of res judicata and collateral estoppel.
26. In opposition to the motion, plaintiffs demonstrated that Justice Klein- Heitler’s finding that there was no evidence of fraud by defendant were gratuitous, extraneous and not necessary to her penultimate decision – – namely, that the settlement was valid and enforceable from the standpoint of the defendant hospital since it itself committed no fraud in entering into the settlement. Therefore, the specific issue as to defendant’s fraud, deceit and malpractice was not fully litigated such that plaintiffs’ claims are barred on res judicata and collateral estoppel grounds.
27. By order dated April 15, 2003 and entered on April 23, 2003, Supreme Court (Tolub, J.) granted defendant’s motion and dismissed the complaint upon the ground that the doctrine of res judicata bars plaintiffs’ malpractice and related claims. The Court concluded that “. . . 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.”
28. In affirming Supreme Court’s order, the Appellate Division, First Department, in its April 6, 2004 order, explained:
. . . The instant action, which claims that settlement was a product
of plaintiffs’ attorney’s malpractice, fraud and disloyalty, must be
dismissed for the same reason; indeed, this precise claim was made
and necessarily rejected in plaintiffs first attempt to vacate the
settlement.
The Appellate Division Overlooked
Plaintiffs’ Principal Argument that
Their Legal Malpractice Complaint
Is Not Barred by the Doctrine of Res
Judicata Since Justice Heitler’s Finding
That There Was No Evidence of Fraud
By Defendant, Was Gratuitous
29. We respectfully submit that the Appellate Division overlooked our principal argument that the doctrine of res judicata does not bar the instant malpractice complaint in that Justice Heitler’s finding that there was no evidence of defendant’s fraud and coercion in obtaining plaintiff’s consent to settle the Medical Malpractice Action, was gratuitous.
30. Although the doctrines of collateral estoppel and res judicata preclude aparty from relitigating an issue necessarily raised and decided against that party provided there was a full and fair opportunity to litigate the point, at least one well known commentator has written that “[g]ratuitous findings will not support an estoppel”. Siegel, New York Practice, 3d ed., § 465 at 747.
31. As recognized by Justice Heitler in her decision, under New York law, the analysis on plaintiffs’ motion to vacate the settlement was focused on whether the stipulation was procured by fraud, duress or coercion by the hospital or its counsel. Hallock v. State of New York, 64 N.Y.2d 224. Thus, once Justice Heitler found that there was no evidence of fraud on the hospital’s part, it follows that the remainder of her other findings in her decision – that there was no evidence of fraud by defendant – were gratuitous and not necessary to her penultimate decision. Indeed, Justice Heitler specifically explained that “[p]laintiffs’ claim of fraud [against defendant], however, is insufficient for vacatur of this settlement [emphasis added].”
32. In affirming Justice Klein-Heitler’s decision, the Appellate Division mirrored Justice Heitler’s analysis when, in citing Hallock v. State of New York, 64 N.Y.2d 224, it explained “[t]here is no basis shown to set aside the stipulation of settlement entered into in open court after full allocution by the court.” In other words, the hospital and its counsel were free from fraud, deceit and coercion.
33. Far from passing upon the ultimate merit of a malpractice action against defendant, Justice Heitler expressly left open the issue of defendant’s culpable and negligent conduct in his representation of plaintiffs, and ostensibly ruled that a separate malpractice action against defendant would lie. She specifically stated that plaintiffs “are relegated to relief against him for any damages which his conduct may have caused them.”
34. Plaintiffs’ claims of fraud, deceit and malpractice against defendant involve sharp issues of fact requiring resolution by a jury or, at the very least, an evidentiary hearing. Thus, Justice Heitler’s summary findings on these issues provide is not conclusive and does not support dismissal of the instant malpractice complaint. See generally, Bennardo v. Equitable Land Service, Inc., 244 A.D.2d 304, 663 N.Y.S.2d 892, 893 (2d Dep’t 1997)(noting that Disciplinary Committee’s determination which was summary in nature and made without the benefit of a hearing at which the plaintiff could have testified, was not entitled to res judicata or collateral estoppel effect on the issues raised in a subsequent civil action commenced by the plaintiff against his former attorney to recover damages for fraud).
35. Equally important, plaintiffs’ claims arising out of defendant’s malfeasance in the Medical Malpractice Action were not part of their essential case against the hospital which sought to recover for the wrongful death of Seth. Thus, Justice Heitler could not resolve plaintiffs’ malpractice claim against defendant herein on their motion to vacate, because it was not before the Court.
36. The Appellate Division’s reliance on Sei Young Choi v. Dworkin, 230 A.D.2d 780, 646 N.Y.S.2d 531 (2d Dep’t 1996), app. denied, 89 N.Y.2d 805, 658 N.Y.S.2d 918 (1996) was misplaced. In Sei Young Choi, the plaintiff was barred by collateral estoppel from bringing a malpractice action (years later) against his former attorney. The plaintiff’s charges against his attorney were part of his initial case in which he sought to vacate a marital separation agreement signed years earlier, and were dismissed by Justice Gangel-Jacob (Bo Young Choi v. Sei Young Choi, 167A.D. 2d 217, 567 N.Y.S.2d 724 (1st Dep’t 1990)). Here, as demonstrated in the Reply Brief for Plaintiffs-Appellants (at 9) in the instant case:
“However, Choi is not on point since the findings therein
as against the attorney were not gratuitous, but instead
went to the very heart of the case. While there was no
evidentiary hearing, there was ample evidence
demonstrating that defendant Dworkin did nothing wrong,
and that Choi himself had been engaged in substantial
wrongful conduct…”
37. In the instant case, all the available evidence (even without an evidentiary hearing) points to the fact that Thomas R. Moore, Esq. was engaged in “substantial wrongful conduct.” It is shocking that the New York State Supreme Court, Appellate Division, First Department, has chosen to shelter him.
38. Finally, plaintiffs’ execution on the general release should not bar their claims to recover for defendant Moore’s legal malpractice and fraud. Home Ins. Co. v. Liebman, Adolf &Charme, 257 A.D.2d 424, 683 N.Y.S.2d 519 (all the plaintiffs 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 causebarring a claim for legal malpractice”).
39. In view of the foregoing, the Appellate Division’s finding that plaintiffs’ claim “was made and necessarily rejected in [their] first attempt to vacate the settlement,” was incorrect. Plaintiffs’ fraud and malpractice claims against defendant were not part of their essential case against the hospital and were never fully litigated. Thus, Justice Heitler’s opinions on these issues cannot provide a basis for dismissal of the instant malpractice complaint. As explained by then Chief Justice Wachtler in Gilberg v. Barbieri, 53 N.Y.2d 285, 441 N.Y.S.2d 49 (1985):
[t]he 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.
40. Furthermore, the Appellate Division’s reliance on Justice Bransten’s order in the second action was misplaced. The second action dealt only with the issue of whether the settlement agreement unconstitutionally prohibits plaintiffs speaking about the crime committed by the hospital. It did not address plaintiffs’ instant fraud and malpractice claims.
Conclusion
41. Plaintiffs have not been afforded a full and fair opportunity to litigate their claims of fraud and malpractice against defendant. Justice Heitler’s findings that there was no evidence of fraud, duress and coercion on the part of defendant, were gratuitous and not essential to her penultimate finding that there was no evidence of fraud, duress and coercion on the part of the hospital sufficient to vacate the settlement. Therefore, Justice Heitler’s findings as to defendant’s conduct towards plaintiffs are not conclusive as to whether plaintiffs may maintain the instant legal malpractice action. It would be fundamentally unfair to use Justice Heitler’s gratuitous comments regarding defendant’s fraud and deceit to bar plaintiffs’ malpractice claims without a determination on the merits.
42. In our Joint Affidavit In Opposition to Defendant’s Motion To Dismiss
(the Legal Malpractice Lawsuit), we stated:
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.
43. As we further argued in our Joint Affidavit In Opposition in the Supreme Court as well as in our briefs in the Appellate Division, we have been unconstitutionally deprived of our day in Court in violation of our Seventh Amendment right to a trial and our Fourteenth Amendment right to due process.
44. The Constitutional issue was again raised at Oral Argument when Dr. Speken stated that the lack of so much as an evidentiary hearing over Defendant’s legal malpractice was arbitrary, unjust, and in violation of Due Process and Seventh Amendment rights. Indeed, the Disciplinary Committee of the First Department has recently informed us that it is currently conducting an active investigation of the defendant with respect to his representation of us in the Medical Malpractice Action and is also investigating a related disciplinary complaint filed by Richard Frank, Esq., the trial attorney retained by the defendant to try the underlying case on our behalf.
45. The Court’s claim that res judicata bars Plaintiffs from a malpractice action against Defendant relies on purely gratuitous comments that were in fact made counter to the available evidence. The New York State Court Of Appeals established the fundamental right of Plaintiffs to seek relief against Defendant (see, Hallock v. State of New York N.Y.2d 224.) The act of the Court in removing both the Plaintiffs’ New York State right and the Seventh Amendment right is unconscionable and represents an intentional and arbitrary exercise of power that directly violates the Due Process Clause of the 14th Amendment of the Constitution of the United States of America.
46. It is shocking that the New York State Courts would permit State and Federal rights to be taken by summary and gratuitous Judicial comments that thereby deprive grieving parents of justifiable compensation for their son’s death.
47. This issue of law presented by this motion is compelling and merits review by the highest court of this State. Without direction from this Court, gratuitous findings on claims of attorney fraud and malpractice without the benefit of a hearing on the merits, in cases which do not seek resolution of those claims, will provide res judicata effect and forever bar a plaintiff from recovering for the malfeasance of his attorney.
WHEREFORE, as well as for the reasons set forth in plaintiffs’ main and reply
brief in the Appellate Division, plaintiffs respectfully request that the Court of Appeals grant leave to appeal as requested herein.
RALPH H. SPEKEN
STEPHANIE Z. SPEKEN