Law Offices of Scott A. Lucas 

60 East 42nd Street, Suite 1001 

New York, New York 10165 

(212) 573-6906 

Scott A. Lucas, Esq. (SL-6316) 

Attorneys for Plaintiff Barbara Rockmore 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

---------------------------------------------------------------X 

BARBARA ROCKMORE, 07-CV-3592 (DAB) 

 Plaintiff, 

 MEMORANDUM OF 

 -against- LAW IN OPPOSITION 

TO DEFENDANTS’ 

DARRICK E. ANTELL, MOTION TO DISMISS 

DARRICK E. ANTELL, M.D., D.D.S., P.C., 

DARRICK E. ANTELL, M.D., D.D.S., P.C., F.A.C.S., 

DARRICK E. ANTELL, M.D., F.A.C.S. and 

DARRICK E. ANTELL, M.D., F.A.C.S., P.C., 

 Defendants. 

---------------------------------------------------------------X 

 Plaintiff BARBARA ROCKMORE (“Plaintiff”), by her attorneys, the Law 

Offices of Scott A. Lucas, respectfully submits this Memorandum of Law in 

Opposition to the Defendants’ Motion to Dismiss pursuant to Fed. R. Civ. P. 

12(b)(6), together with the accompanying Declaration of Scott A. Lucas dated 

May 25, 2007 (“Lucas Decl.”). As detailed below, Defendants’ motion should be 

denied. 

BACKGROUND

 This case involves a hostile work environment permeated by virulent antiSemitism, misogyny and discriminatory and hate-filled depravity, all of which was 

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practiced and perpetrated by Darrick E. Antell, the man who owns and controls the 

company that employed Plaintiff. The Complaint (which has since been amended) 

asserts claims under the New York City Human Rights Law and 42 U.S.C. § 1981. 

See Lucas Decl., Ex. “1” (Am. Comp. at ¶¶ 165-181). 

 The Summons was filed on December 19, 2006 in Supreme Court, New 

York County. The Summons and Complaint were thereafter served on or about 

April 11, 2007. 

 Defendants removed the case to federal court on or about May 4, 2007, and 

filed a motion to dismiss on or about May 11, 2007. 

 The Complaint was amended as of right on May 25, 2007. See Lucas 

Decl., Ex. “1”. 

ALLEGATIONS OF THE COMPLAINT 

RELATING TO DEFENDANTS’ MOTION

 From December 1993 through July 29, 2004, Plaintiff was employed by 

Darrick E. Antell, M.D., D.D.S., P.C., a plastic surgery practice owned and/or 

controlled by Darrick E. Antell. (Am. Comp. at ¶¶ 9-11) 

 During this time, Dr. Antell subjected Plaintiff, a Jewish female, to an 

ongoing course of anti-Semitic, racist and misogynistic behavior, creating a 

stressful, hostile working environment. (Am. Comp. at ¶¶ 21-133) 

Defendants’ Agreement 

to Pay Plaintiff’s Legal Fees 

 During the latter part of Plaintiff’s employment, Defendants became the 

target of a federal criminal investigation relating to Dr. Antell’s apparent underCase 1:07-cv-03592-DAB Document 11 Filed 05/25/2007 Page 2 of 21
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reporting and/or diversion of income received by his practice. This made an 

already-stressful working environment even more stressful for Plaintiff, especially 

because she was Defendants’ office manager at the time. (Am. Comp. ¶ 135) 

 Having been questioned by federal law enforcement agents about Dr. 

Antell’s income and income-related practices, Plaintiff feared that she could face 

increased risks by continuing to work for Dr. Antell while his business was under 

federal investigation. (Am. Comp. ¶ 136) 

 Seeking to allay Plaintiff’s serious concerns and dissuade Plaintiff from 

making a hasty departure, and to acquire ongoing knowledge about the activity 

level in the government’s criminal investigation of him, Dr. Antell, through his 

counsel, offered to directly pay for Plaintiff to have her own counsel in connection 

with the federal investigation. (Am. Comp. ¶ 137) 

 The only condition of Defendants’ offer to pay Plaintiff’s legal fees was 

that such fees be incurred on behalf of Plaintiff in connection with the federal 

investigation. It was not otherwise limited as to duration. (Am. Comp. ¶ 138) 

 Plaintiff accepted Defendants’ offer, and, in reliance on Defendants’ 

promise, chose to be represented by a prestigious law firm (Arkin Kaplan LLP) 

experienced in white collar criminal matters. (Am. Comp. ¶ 139) 

Plaintiff’s Vested Pension Benefits 

 Besides having the power (but not the right) to cut off payment of 

Plaintiff’s legal fees, Dr. Antell had “leverage” over Plaintiff by virtue of her 

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longstanding participation in a qualified profit sharing plan that he administered. 

(Am. Comp. ¶ 140) 

 While it appears that Dr. Antell systematically under-reported his practice’s 

income and diverted Plan funds to family members serving as phantom 

employees, Plaintiff’s pension still managed to accrue nearly $50,000 in vested 

benefits. Plaintiff needed this money for her retirement. (Am. Comp. ¶ 140) 

Events Leading Up to 

the Termination of Plaintiff’s Employment 

 During the latter part of Plaintiff’s employment, Dr. Antell, who was still 

angry with Plaintiff for responding truthfully to investigators’ questions, began to 

undermine Plaintiff’s authority and informed Plaintiff that she would be replaced 

as office manager, and effectively demoted to the position of billing manager. 

(Am. Comp. ¶ 141) 

 Shortly thereafter Plaintiff accepted an offer to work for a different 

employer, and, on July 12, 2004, she gave Dr. Antell 21⁄2 weeks notice and 

informed him that July 29, 2004 would be her last day of employment. (Am. 

Comp. ¶ 142) 

 In or about mid-day on Plaintiff’s last day of employment (July 29, 2004), 

an uncharacteristically friendly Dr. Antell informed Plaintiff that she would be 

receiving a parting bonus of three weeks pay “for all of [her] good work.” 

Plaintiff was not asked to sign a release at that time or at any time before then. 

(Am. Comp. ¶ 143) 

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 At or about 5:00 p.m. that day, as Plaintiff was preparing to depart the 

office, Dr. Antell approached her after she picked up her purse and said “not so 

fast.” He then held up a check in one hand and a purported release in the other. 

(Am. Comp. ¶ 144) 

 Dr. Antell told Plaintiff that the check was for fees charged by Arkin 

Kaplan, which Dr. Antell had previously promised to pay. (Am. Comp. ¶ 145) 

 Looking at the purported release he was holding in his hand, Dr. Antell told 

Plaintiff “If you don’t sign this form, this check’s getting ripped up, your 

attorney’s fees won’t get paid, and you won’t get your pay, or your pension or 

anything else.” (Am. Comp. ¶ 146) 

 Fearful of having her pension taken away, and of having Defendants breach 

their agreement to pay Plaintiff’s legal fees (which would have left her indebted, 

and without the means to pay for continued representation), Plaintiff, at Dr. 

Antell’s insistence, filled in the date (7/29/04), a dollar figure ($3,650) and signed 

her name to the document. (Am. Comp. ¶ 147) 

 Thereafter, without being asked by Plaintiff to do so, Defendants 

electronically transferred $3,371 to Plaintiffs’ bank account. According to 

Defendants, the sum represents the amount listed on the “release” (less social 

security and Medicare withholdings) rather than the parting bonus that Dr. Antell 

promised Plaintiff earlier that day.1

 (Am. Comp. ¶ 148) 

 

1

 Plaintiff notes that the parting bonus that Dr. Antell promised to Plaintiff on July 29, 2004 has 

no relation to the unspecified payment that Defendants describe on page 9 of their Memorandum 

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 In addition, Plaintiff lacked the resources to file and prosecute a lawsuit 

against Dr. Antell to receive her pension or to compel the agreed-upon payment of 

her legal fees. (Am. Comp. ¶ 149) 

 New York law does not require a Plaintiff suing for rescission to “tender 

back” anything (see N.Y. Civ. Pract. Laws & Rules, § 3004). Nonetheless, 

because the sum that Defendants electronically transferred may arguably 

constitute the purported consideration identified in the “release,” Plaintiff has 

sought to voluntarily remove any arguable claim of prejudice to Defendants by 

unconditionally “tendering back” the amount of $3,650, together with a separate 

check for $727 as interest at the rate of 9%. (Am. Comp. ¶ 161) 

 This voluntary “tender back” (made on May 23, 2007) occurred before 

service of an Answer by Defendants, and before Plaintiff’s filing of an Amended 

Complaint containing a claim for rescission. (Am. Comp. ¶ 161) (If, after the 

case is tried, the Court determines that the “tender back” was unwarranted because 

the amount that Defendants unilaterally transferred into Plaintiff’s bank account 

may be attributable to the promised parting bonus, then whatever judgment 

Plaintiff obtains should be adjusted to reimburse Plaintiff for the amount tendered 

to and accepted by Defendants.) 

 

of Law as a “bonus” from the previous pay cycle. Defendants’ reference to an unspecified 

“bonus” paid during the previous pay cycle (which Dr. Antell would have had to authorize) could 

refer to one or more of the following: (a) Plaintiff’s “bonus” pay for coming in early, (b) the 

“bonus” customarily paid for booking a certain number of facelifts in a month, (c) Plaintiff’s 

vacation pay; or (d) Plaintiff’s pay for unused personal days. 

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 As detailed below, while the “release” may be void ab initio, or ineffective 

because the sum in question was the previously promised parting bonus, it is also 

subject to rescission based on the duress caused by Defendants’ threat to take 

away Plaintiff’s pension and deprive her of the agreed-upon payment of her legal 

fees. 

ARGUMENT

POINT I

THERE IS NO MERIT TO DEFENDANTS’ CONTENTION 

THAT THE COMPLAINT FAILS TO ALLEGE DURESS

 Since a release is a contract, and contracts are governed by state law, the 

issue of whether the “release” is valid is normally governed by state law. Grabe v. 

Ziff Davis Publishing Co., 1995 WL 688912, *9, n.5 (S.D.N.Y. 1995) (cases in 

which a federal rule of decision should be crafted to displace state law are “few 

and restricted”) (quotation omitted). 

 Under New York law, allegations that a release was procured by fraud or 

duress warrant denial of a motion to dismiss grounded on a release. See

Ladenburg Thallmann & Co. v. Imaging Diagnostic Systems, Inc., 176 F.Supp.2d 

179, 205 (S.D.N.Y. 2001) (collecting cases); See also Bloss v. Va’ad Haribonim of 

Riverdale, 203 A.D.2d 36, 610 N.Y.S.2d 197, 198 (1st Dept. 1994) (“Where fraud 

or duress in the procurement of a release is alleged, a motion to dismiss should be 

denied.”) (collecting cases). 

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 While conceding that the facts alleged in the Complaint must be accepted 

as true on a 12(b)(6) Motion, Defendants contend that the Complaint’s allegations 

of duress are “conclusory” and inadequate as a matter of law. Given the detailed 

nature of the Complaint and the Amended Complaint, this contention is difficult to 

take seriously. 

 Dr. Antell told Plaintiff, as she was preparing to leave the office at the end 

of the day on her last day of work, “If you don’t sign this form, this check’s getting 

ripped up, your attorney’s fees won’t get paid, and you won’t get your pay, or 

your pension or anything else.” See Lucas Decl., Ex. “1” (Amended Complaint at 

¶ 146). 

 Unwilling to abide by the rule that the facts of the Complaint must be 

accepted as true on a 12(b)(6) motion, Defendants seek to portray Dr. Antell’s 

threat to illegally take away Plaintiff’s vested pension benefits and deprive her of 

the agreement-upon payment of her legal fees as “contractual negotiations”. (Def. 

Memo. of Law at pg. 3) Defendants’ misuse of the 12(b)(6) motion is further 

evidenced by their attempt to disprove duress through counter-factual assertions 

that are unsworn and unfounded. 

 For example, Defendants contend that: 

[T]he attorneys’ fees that Dr. Antell agreed to cover were paid by check 

issued by Plaintiff herself in her capacity as office manager, dated July 22, 

2004, a week prior to Plaintiff’s execution of the Release. Indeed, the 

invoice relating to payment of these fees (which are referenced extensively 

in the complaint) contains the notation, in Plaintiff’s own handwriting, 

indicating a payment made on July 22nd. 

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Def. Memo. of Law at pg. 9 (emphasis in original). 

 However, rather than supporting Defendants’ version of events, the actual 

check that Defendants present to this Court (Feege Decl., Ex. B) corroborates 

Plaintiff’s version of events. An examination of the back of that check reveals that 

it was not deposited until August 2, 2004 – 11 days after it was printed out, and 4 

days after Plaintiff’s last day of employment. Put simply, while the check was 

printed one week before Plaintiff’s final day of work, it was obviously 

“embargoed” by Dr. Antell (the check’s signatory) until after Plaintiff signed the 

purported release on July 29, 2004. 

 Likewise, Defendants’ counsel contends that Plaintiff was merely asked to 

sign a “standard-issue Release similar to others that [Plaintiff] had executed on 

behalf of Defendants in connection with other employee departures, so she was 

fully aware of its terms.” (Def. Memo. of Law at pg. 3) To the contrary, of the 

roughly 25 or so employees who had worked for Defendants during the time she 

was employed, Plaintiff can only recall one other employee (a woman named 

“Michelle”) who was asked to sign a document that Plaintiff believes was a 

release.2

 Further, while Plaintiff did see copies of a release in a folder of 

employment forms during the course of her employment, she denies any 

knowledge as to whether a release template was kept on her computer, as 

Defendants allege. (Def. Memo. of Law at pg. 3) 

 

2

 If Defendants had tendered an Affidavit from Dr. Antell rather than unsworn and wholly 

inadmissible statements from his counsel, then Plaintiff would have naturally furnished an 

affidavit. Moreover, if a hearing is held on this issue, Plaintiff will adduce additional evidence in 

support of her claim of duress. 

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 In addition, Defendants’ counsel simply re-writes the allegations of the 

Complaint to state that the purported release was given to Plaintiff 16 days before 

she signed it, i.e., on July 13, 2007 (Def. Memo. of Law at pg. 3), when, in fact, 

the Complaint clearly states that the purported release was not given to Plaintiff 

until about 5:00 p.m. on her last day of work, July 29, 2004, as she was preparing 

to leave. (Am. Comp. ¶ 144) On a 12(b)(6) motion there is no occasion for the 

Court to consider Defendants’ counsel’s unsworn contentions that the “release” 

was given to Plaintiff on July 13th, or that Plaintiff was asked to have it reviewed 

by counsel (which would have been impossible in any event as Plaintiff was 

required to sign it on the spot, and which would have been immaterial in any event 

because Dr. Antell was threatening to visit serious economic harm upon Plaintiff if 

she did not sign the “release”). (Am. Comp. ¶ 148) See Bloss v. Va’ad Haribonim 

of Riverdale, 203 A.D.2d 36, 610 N.Y.S.2d 197, 200 (1st Dept. 1994) (“[I]t is 

inequitable to allow a release to bar a claim where, as here, it is alleged that the 

releasor had little time for investigation or deliberation and that it was the result of 

overreaching or unfair circumstances.”) (citing Mangini v. McClurg, 24 N.Y.2d 

556, 567, 301 N.Y.S.2d 508, 249 N.E.2d 386 (1969)). 

 Nor is there any merit to Defendants’ contention that this Court should look 

no further than to the language of the purported release in order to determine 

whether it was procured by duress. See First Nat. Bank of Cincinnati v. Pepper, 

454 F.2d 626 (2d Cir. 1972) (“In our view the district court was required to give 

consideration to all of the facts relied upon by the stockholders as evidence of 

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duress rather than rely exclusively upon the terms of the compromise 

agreement...”). 

The Claim that Plaintiff’s Free Will Remained Intact 

 Having no other alternative, Defendants attempt to liken the egregious facts 

alleged in the Complaint to the facts in cases involving (A) disputes between 

business competitors, and (B) discharged employees who signed releases under 

normal circumstances, but would have preferred better severance packages than 

they received. 

 Defendants also assert that Dr. Antell’s threat did not preclude Plaintiff’s 

free will because, according to Defendants, many contingency fee lawyers would 

be eager to take up Plaintiff’s cause. (Def. Memo. of Law at pg. 9) However, 

Defendants’ glib assertion is belied by the fact that any lawyer suing Dr. Antell for 

following through on his threat would be forced (A) to pursue two different 

actions (one in state and one in federal court), or, at a minimum, (B) to bring a 

hybrid action consisting of (i) a fact-specific state law claim for breach of an oral 

contract to pay Plaintiff’s legal fees, and (ii) an ERISA claim to recover 

wrongfully withheld pension monies (a claim that would be even more 

complicated because, inter alia, it would be extremely difficult and expensive to 

determine exactly how much should be in Plaintiff’s pension because it appears 

that the profits from Defendants’ profit sharing plan were grossly under-stated by 

Dr. Antell’s systematic under-reporting of income and diversion of plan funds to 

family members acting as phantom employees). (Am. Comp. ¶ 151) Coupled 

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with the prospect having to advance substantial fees for a forensic accountant in 

such an ERISA action, and the likelihood of a comparatively small recovery in 

relation to the complexity of the action(s), it is difficult to credit Defendants’ 

hypothesis that many competent, qualified contingency fee lawyers would be 

eager to take such a case. 

 The foregoing analysis notwithstanding, we should not make the mistake of 

imputing a lawyer’s knowledge, absorbed and acquired in the calm, quiet 

environment of the law library, to a layperson, particularly while her back is 

against the wall and she is being illegally threatened by someone with a track 

record of unscrupulous behavior and the power to illegally and fatally undermine 

her financial future. 

POINT II

THERE IS NO MERIT TO DEFENDANTS’ CONTENTION 

THAT PLAINTIFF “RATIFIED” THE “RELEASE”

 Defendants contend that Plaintiff accepted and retained the consideration 

recited in the “release” ($3,650), and therefore ratified the “release” and is thus 

precluded as a matter of law from maintaining this action. Defendants’ 

“ratification” argument is flawed, both factually and legally. 

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A. The Factual Flaws in Defendants’ Argument that Plaintiff Ratified 

the “Release” by Failing to Promptly Repudiate It 

 Defendants’ “ratification argument” suffers from the following factual 

flaws (some of which, in fairness to Defendants’ counsel, are more readily 

apparent in light of the added detail set forth in the Amended Complaint): 

(i) Plaintiff undertook no affirmative act to manifest her purported 

“acceptance” of the benefit mentioned in the release. Without any 

request by Plaintiff, a payment of $3,371 (which did not match the 

amount mentioned in the release) was electronically transferred to her 

bank account, and was not accompanied by any information stating 

whether it represented the parting bonus that Dr. Antell had previously 

promised Plaintiff for all of her good work (as Plaintiff assumed it to 

be), or whether it represented purported consideration for the “release”. 

(Am. Comp. ¶ 152) Moreover, Plaintiff strenuously denies the assertion 

by Defendants’ counsel that the post-it on the “release” which states 

“only take FICA out” (Feege Decl., Ex. “A”) was placed there by 

Plaintiff, or was written by Plaintiff in connection with the “release”; 

rather, Plaintiff will testify that it was removed from another document 

and affixed to the “release,” presumably by Dr. Antell. 

(ii) Given Dr. Antell’s threat to withhold the agreed upon payment of her 

legal fees, there is no basis for Defendants’ claim that Plaintiff has been 

free from duress since leaving Defendants’ employ: By threatening to 

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rip up the check for legal fees already incurred on behalf of Plaintiff and 

to breach his agreement to continue paying such fees as they come due, 

Dr. Antell was not only threatening to deprive Plaintiff of the 

representation he agreed to provide her, he was, in essence, threatening 

to disrupt a sensitive representation involving ongoing discussions 

between Plaintiff, her lawyers, and federal officials. (Am. Comp. ¶ 155) 

Because she could not afford hire another attorney, much less pay for 

Arkin Kaplan, Plaintiff would then be forced to go unrepresented in 

dealing with federal investigators, federal prosecutors, and the federal 

grand jury. (Am. Comp. ¶ 156) Prior to the end of Plaintiff’s 

employment Dr. Antell had proceeded to lay the groundwork to be able 

to claim (in the context of a later federal criminal prosecution) that his 

staff was at fault for failing keep records, even though the investigation 

of him clearly did not occur as a result of his staff’s allegedly deficient 

record-keeping or management skills. (Am. Comp. ¶ 157) This fact, 

coupled with Dr. Antell’s previous statements to Plaintiff that his 

accountants were to blame for the investigation he was facing, caused 

Plaintiff to be concerned that Dr. Antell might try to blame her as well, 

particularly if she did not have a lawyer to continue protecting her 

interests until the criminal investigation of Dr. Antell ended (and it may 

still be ongoing). (Am. Comp. ¶ 158) 

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(iii) As noted, though she was under no legal obligation to do so under New 

York law, Plaintiff has unconditionally “tendered back” the sum that 

Defendants characterize as consideration for the “release,” together with 

interest at 9%. (see CPLR § 3004 and Lucas Decl., Ex. “1” [Am. 

Comp. ¶ 134, et seq., requesting rescission]) 

B. The Legal Flaws in Defendants’ Argument 

that Plaintiff Ratified the “Release” 

by Failing to Promptly Repudiate It

 While Defendants rely on cases applying federal common law and the law 

of other jurisdiction to support their contention that a plaintiff must “tender back” 

consideration he receives for signing a release, such cases do not apply because 

the Amended Complaint in this case, which seeks rescission of the release, is 

governed by New York law, Grabe v. Ziff Davis Publishing Co., supra, 1995 WL 

688912, *9, n.5 (S.D.N.Y. 1995), and “[i]n New York ... the tender back rule was 

abolished both for procedural and substantive law purposes by enactment of § 

112-g of the New York Civil Practice Act.1946 N.Y. Laws ch. 683, re-codified as 

N.Y. Civ. Prac. L. & R. § 3004 (McKinney 1974).” Clark v. Buffalo Wire Works, 

Inc., 3 F.Supp.2d 366, 372 (W.D.N.Y. 1998) (emphasis added; citations omitted). 

 “In particular, § 3004 provides that a party who received a benefit from a 

void or voidable transaction need not tender back such benefit before commencing 

legal action, although ‘the court may make a tender of restoration a condition of its 

judgment, and may otherwise in its judgment so adjust the equities between the 

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parties that unjust enrichment is avoided.’” Id. (citing N.Y. Civ. Prac. L. & R. § 

3004 [McKinney 1974]). 

 In spite of this rule, Plaintiff has unconditionally “tendered back” the sum 

(with interest) that Defendants unilaterally transferred into Plaintiff’s bank 

account, and which Plaintiff assumed was the parting bonus that Dr. Antell 

previously promised her, thereby obviating any arguable prejudice to Dr. Antell. 

This tender back was made prior to the filing of an Answer by Defendants, and 

prior to Plaintiff’s assertion of a claim for rescission (which is present in the 

Amended Complaint, but was not mentioned in the original Complaint). 

 CPLR § 3004 is not discussed in the cases cited by Defendants, evidently 

because: (a) many if not most of those cases were decided under federal common 

law, which does not apply to this dispute; and (b) most of the plaintiffs in those 

cases were not suing for rescission, which is necessary for CPLR § 3004 to apply. 

 Even if New York law required Plaintiff to “tender back” the consideration, 

if any, that she received for signing the release (which it does not), the “tender 

back” that Plaintiff has made in this case could not be dismissed as untimely. 

Drawing heavily on the Restatement (Second) of Contracts, the Second Circuit 

conducted a scholarly analysis of the factors governing the timeliness of a 

plaintiff’s “tender back” in Brown v. City of South Burlington, Vermont, 393 F.3d 

337 (2d Cir. 2004), a case governed by the law of a jurisdiction which, unlike New 

York, does require a plaintiff to “tender back” consideration received for signing a 

release. 

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 In Brown, the Second Circuit held that the District Court erred by 

concluding that a tender back was untimely as a matter of law merely because two 

years and five months elapsed between the time when the plaintiff learned of the 

defendant’s alleged fraudulent misrepresentations and the time when the plaintiff 

tendered back the consideration he received in exchange for the release. Before 

addressing the time factor, the Second Circuit observed that: 

a person “charged with ratification of [a voidable] contract must have acted 

voluntarily and with full knowledge of the facts.” 17A Am.Jur.2d Contracts

§ 11 (2004). Moreover, a party asserting the defense of ratification of a 

voidable contract ordinarily must demonstrate that the releasor intended to 

ratify the agreement. See M.C. Dransfield, Annotation, Ratification of 

Contract Voidable for Duress, 77 A.L.R.2d 426 § 4 (1961) (“While a 

contract voidable for duress may be ratified, either by express consent, or 

by conduct inconsistent with any other hypothesis than that of approval, 

still the intention to ratify is an essential element and is at the foundation of 

the doctrine of waiver or ratification.”); see also Kovian v. Fulton County 

Nat'l Bank & Trust Co., 857 F.Supp. 1032, 1040 (N.D.N.Y.1994) (holding 

that the issue of intent to ratify a release was a question of material fact). 

393 F.3d at 343-44. 

 As to the issue of timeliness, the Second Circuit observed that under the 

Restatement (Second) of Contracts, “the determination of what constitutes a 

reasonable time is informed by the following factors: 

(a) the extent to which the delay enabled or might have enabled the party 

with the power of avoidance to speculate at the other party’s risk; 

(b) the extent to which the delay resulted or might have resulted in 

justifiable reliance by the other party or by third persons; 

(c) the extent to which the ground for avoidance was the result of any fault 

by either party; and 

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(d) the extent to which the other party’s conduct contributed to the delay. 

Id. § 381(3). Indeed, the Restatement advises, in light of the foregoing, that 

“what time is reasonable depends on all the circumstances, including the 

extent to which the delay was or was likely to be prejudicial to the other 

party or to third persons.” Id. cmt. a (emphasis supplied). 

 *** 

According to the general rule, “[w]hether the return was timely is ordinarily 

a question of fact.” Id. § 46 & n. 2. Tenders of consideration have been held 

timely even where they were made after commencement of an action and 

even at trial on the original claim. See id. § 46 & nn. 3-6; see also H. 

Havighurst, Problems Concerning Settlement Agreements, 53 Nw. 

U.L.Rev. 283, 311-13 & n. 100 (1958) (noting that it has been the practice 

of some courts to allow plaintiffs to tender back consideration for 

settlement agreements just prior to, or even during, trial; and citing a 

“substantial number of courts” holding “that, although the release [was] 

voidable and not void, tender [was] unnecessary”). 

393 F.3d at 344-45. 

 Applying these teachings to the case at bar, it is clear that even if New York 

required plaintiffs to “tender back,” Plaintiff’s “tender back” in this case would 

nonetheless be timely under each of the above-referenced factors because: (a) the 

delay did not allow Plaintiff to speculate at Defendants’ risk; (b) Defendants did 

not change their position to their detriment as a result of Plaintiff signing the 

“release,” because the alleged consideration that they paid was returned with 

interest at 9%; (c) the ground for avoidance resulted solely from the egregious, 

unlawful and oppressive conduct of Dr. Antell; and (d) the delay was attributable 

to Defendants’ conduct because (i) Plaintiff thought that the sum that Defendants 

unilaterally transferred into her bank account was the parting bonus that had been 

previously promised to her, as Defendants failed to identify it as consideration for 

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the “release”; (ii) believing the “release” to be invalid based on the unlawful 

manner it was forced on her, Plaintiff was unaware of any alleged need to act 

quickly (Am. Comp. ¶ 153), and, to the extent that any such need might be said to 

exist generally, Defendants, as wrongdoers, bore the risk that Plaintiff would not 

be aware that she even had such a purported obligation; and (iii) the duress was 

never removed because Dr. Antell threatened to breach the agreement to cover 

Plaintiff’s legal fees, and he did so in the middle of an ongoing federal criminal 

investigation, at a time when it would untenable for Plaintiff to go unrepresented. 

(Am. Comp. ¶ 154) See Austin Instrument Inc. v. Loral Corp., 292 N.Y.2d 124, 

133, 272 N.E.2d 533, 324 N.Y.S.2d 22, 28 (Ct. App. 1971) (“Loral delayed 

making its demand for a refund until three days after Austin’s last delivery on the 

second subcontract. Loral’s reason-for waiting until that time-is that it feared 

another stoppage of deliveries which would again put it in an untenable situation. 

Considering Austin’s conduct in the past, this was perfectly reasonable, as the 

possibility of an application by Austin of further business compulsion still existed 

until all of the parts were delivered.”) 

 Moreover, given the applicability of CPLR § 3004 to the case at bar, 

Defendants’ “undue delay” is illogical, a fact clearly illustrated by comparing the 

following two patterns: 

Fact Pattern # 1: 

Plaintiff signs a release procured under duress on Jan. 1, 2000, and sues six 

months later on July 1, 2000, without tendering back anything to the defendant, 

and the case is concluded four years later on July 1, 2004 when the defendant 

Case 1:07-cv-03592-DAB Document 11 Filed 05/25/2007 Page 19 of 21
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prevails at trial. The defendant in this fact pattern must then attempt to collect the 

release money back four and one-half years later from a plaintiff who may well be 

insolvent. 

Fact Pattern # 2: 

Plaintiff signs a release procured under duress on Jan. 1, 2000, and 

unconditionally tenders back the sum he received, plus interest, two years and 

eight months later on September 1, 2002, at which point he promptly sues 

defendant. 

 While the defendant in the second fact pattern is much better off than the 

defendant in the first fact pattern, the logic advanced by the Defendants in this 

case would permit the plaintiff in the first action to sue (as he would doubtless be 

entitled to do under CPLR § 3001), but would prohibit the plaintiff in the second 

fact pattern doing so, even though his conduct (unconditional tender back, with 

interest) has eliminated the potential prejudice that the defendant in that case 

would otherwise face. The law should not embrace such an absurd result. 

 In addition, since the value of Plaintiff’s claims is vastly greater than the 

$3,650 recited as consideration in the “release,” it is clear that Dr. Antell would 

not have accepted a “tender back” even if it was made by Plaintiff the day after 

Defendants unilaterally transferred the sum of $3,371 into Plaintiff’s bank 

account. Conversely, the disparity between the value of Plaintiff’s claims and the 

$3,371 paid by Defendants as purported consideration lends support to Plaintiff’s 

claim that the “release” was not voluntarily and knowingly made. Compare 

Frumkin v. International Business Machines Corp., 801 F.Supp. 1029, 1043 

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(S.D.N.Y. 1992) (the extent of the consideration received by employee, $178,000, 

bolstered claim that release was “knowing and voluntary”). 

 Finally, given the extreme and egregious nature of Dr. Antell’s conduct, 

and the compelling public interest that he was seeking to prevent from ever being 

vindicated, the “release” is also void ab initio and void as against public policy. 

POINT III

THE NEW YORK CITY HUMAN RIGHTS LAW 

APPLIES TO THE FACTS OF THIS CASE

 Notwithstanding the unsworn statement that Defendants’ medical practice 

employed fewer than four persons, the allegations of the Complaint must be 

accepted as true on a 12(b)(6) motion. Moreover, it is settled that the NYCHRL 

also provides for individual liability. See Feingold v. New York, 366 F.3d 138, 

158 (2d Cir.2004). 

CONCLUSION 

 Based on the foregoing, Plaintiff respectfully requests that Defendants’ 

motion be denied. 

Dated: New York, New York Law Offices of Scott A. Lucas 

 May 25, 2007 The Lincoln Building, Suite 1001 

60 East 42nd Street 

New York, New York 10165 

(212) 573-6906 

Attorneys for Plaintiff 

Barbara Rockmore 

 By /s/ 

Scott A. Lucas (SL-6316) 

Case 1:07-cv-03592-DAB Document 11 Filed 05/25/2007 Page 21 of 21