Hirsch v. Kairey

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ELLIOT M. HIRSCH,

Plaintiff, MEMORANDUM & ORDER

22-CV-5064(EK)(VMS)

-against-

ELIZABETH M. KAIREY and JAY R.

BUTTERMAN,

Defendants.

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ELLIOT M. HIRSCH,

Plaintiff,

22-CV-5925(EK)(VMS)

-against-

JAY R. BUTTERMAN and ELIZABETH M.

KAIREY,

Defendants.

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ELLIOT M. HIRSCH,

Plaintiff,

22-CV-5815(EK)(VMS)

-against-

JAY R. BUTTERMAN,

Defendant.

------------------------------------x

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ELLIOT M. HIRSCH,

Plaintiff,

22-CV-7167(EK)(VMS)

-against-

JAY R. BUTTERMAN,

Defendant.

------------------------------------x

ERIC KOMITEE, United States District Judge:

Plaintiff Elliot Hirsch brings these four actions pro

se and in forma pauperis. He invokes the Court’s diversity

jurisdiction pursuant to 28 U.S.C. § 1332 for all four actions,

which are defined in the margin as Hirsch I through Hirsch IV.1

Taken together, he asserts various state-law claims, including

intentional infliction of emotional distress (“IIED”),

defamation, abuse of process, and civil conspiracy, against

defendants Elizabeth Kairey (his estranged wife) and Jay

Butterman (her divorce attorney). As with numerous other

actions Hirsch has filed in federal court, his claims arise out

1 Hirsch’s request to proceed in forma pauperis pursuant to 28 U.S.C. §

1915 in Hirsch v. Butterman, No. 22-CV-5064 (“Hirsch I”), ECF No. 2, is

granted. Hirsch v. Butterman, No. 22-CV-5925 (“Hirsch II”); Hirsch v.

Butterman, No. 22-CV-5815 (“Hirsch III”); and Hirsch v. Butterman, No. 22-CV-

7167 (“Hirsch IV”) were transferred to this Court from the United States

District Court for the Southern District of New York. The Southern District

granted Hirsch’s request for in forma pauperis status in Hirsch II and Hirsch

IV, but not Hirsch III, before transfer. The Court likewise grants the

request, ECF No. 1, in Hirsch III.

of matters he is litigating in New York State Supreme Court,

Kings County.

The Court consolidates these four actions solely for

purposes of this Order. For the reasons that follow, the

complaints in Hirsch II, Hirsch III, and Hirsch IV are dismissed

for failure to state a claim pursuant to 28 U.S.C. § 1915. The

IIED and civil conspiracy claims in Hirsch I are likewise

dismissed, but that case will proceed as to the abuse of process

claim against defendant Butterman.

Background

In each case, Hirsch seeks relief for alleged harms

arising from Kairey and Butterman’s actions in relation to

matters proceeding in the Kings County Supreme Court. Two of

these cases relate directly to the divorce proceedings between

Hirsch and Kairey in that court. See Hirsch v. Kairey, Index

No. 53206/2018 (the “Divorce Action”). The other two relate to

a separate suit brought by Hirsch in the Kings County Supreme

Court against Kairey and another defendant. See Hirsch v.

Wahba, Index No. 514979/2021 (the “Wahba Action”).2 The four

federal complaints conform to a general pattern: one or both

2 Hirsch asserts that the Wahba Action, in which Kairey is also a

defendant, “has absolutely nothing to do with [the] divorce action.” Hirsch

IV Compl. ¶ 10, ECF No. 2.

defendants do or say something in connection with a state court

proceeding, and Hirsch files a federal lawsuit in response.

The following allegations, which are assumed to be

true, are taken from the operative complaint in each case and

any exhibits attached thereto. The Court also considers certain

documents incorporated in the complaints by reference and takes

judicial notice of certain filings in the relevant state court

proceedings. See Kramer v. Time Warner Inc., 937 F.2d 767, 773–

74 (2d Cir. 1991).

A. Hirsch I

In his amended complaint in Hirsch I, Hirsch alleges

that Butterman is refusing to permit Kairey to settle the

Divorce Action despite her stated desire to do so. Hirsch I Am.

Compl. ¶¶ 9–24, ECF No. 6. Hirsch claims knowledge of

Butterman’s actions based on Hirsch’s personal interactions with

Kairey over a three-day period in late August 2022. Id.

Specifically, Hirsch alleges that Kairey offered to

settle the Divorce Action, including custody issues, if Hirsch

withdrew certain (unspecified) claims he had filed against her

in other lawsuits (among other conditions). Id. ¶ 9. When

Hirsch agreed, Kairey emailed Butterman to convey her desire to

settle. Id. Several hours later, Butterman called Kairey — who

permitted Hirsch to listen in on their phone conversation — and

“started screaming at” her, calling her a “horrible person and a

sell-out.” Id. ¶¶ 10–12. Butterman told her that he

“absolutely refuse[d] to settle the matter,” and that Kairey

would have to find another attorney to help her do so. Id.

¶¶ 12, 14. If she did settle the matter, however, Butterman

would bill her for his past legal services, which he had been

performing on a pro bono basis for over a year. Id. ¶¶ 13, 16.

After the call ended, Kairey confessed to Hirsch that Butterman

“forc[es] her to sign affidavits and motion papers” against

Hirsch and “that she doesn’t even look at the papers when she

signs them.” Id. ¶ 15.

According to Hirsch, Butterman refuses to settle the

Divorce Action, against Kairey’s wishes, for two reasons: First,

Butterman seeks to “extort” Hirsch to settle a separate federal

lawsuit in which Hirsch is the plaintiff. Id. ¶¶ 33, 36.

(Hirsch alleges that the defendants in that lawsuit — Hirsch v.

Beda, No. 22-CV-5011, currently pending before this Court — have

paid Butterman “substantial sums of money” to represent Kairey

in the Divorce Action. Id. ¶ 33.) Second, Butterman is using

the Divorce Action to inflict emotional distress and financial

harm on Hirsch as “retribution” for: (a) bringing the Hirsch v.

Beda lawsuit in the first instance; and (b) “filing a grievance

against” Butterman. Id.

Hirsch I alleges claims for abuse of process and IIED

against Butterman, and for civil conspiracy against Butterman

and Kairey. Id. ¶¶ 30–50. Among other relief, Hirsch seeks a

permanent injunction prohibiting Butterman’s continued

prosecution of the Divorce Action; compensatory and punitive

damages of at least $5 million; and a declaration that Butterman

had violated various New York Rules of Professional Conduct.

Id. at 10–11.

B. Hirsch II

In his second action, Hirsch alleges that Butterman

disseminated a series of false accusations against him in

response to Hirsch’s attempts to disqualify Butterman as

Kairey’s attorney. Hirsch II Compl. ¶¶ 7–15, ECF No. 2.

On September 14, 2022, Butterman emailed an affidavit,

signed by Kairey, to various persons associated with New York’s

state judiciary, as well as the New York Attorney General’s

office and the New York State Commission on Judicial Conduct.

Id. ¶¶ 6–8. Butterman’s cover email, which Hirsch attaches to

the complaint, indicates that he sent the affidavit in response

to a proposed order to show cause filed by Hirsch, which sought

to disqualify Butterman from representing Kairey in the Wahba

Action. See id. ¶ 7; see also id. at 16 (Sept. 14, 2022 J.

Butterman email). The affidavit, which Butterman allegedly

“coerced” Kairey to sign, “falsely accuses” Hirsch of, among

other things: sending her abusive communications; harassing and

attempting to intimidate Dr. Mark Rand, the court-appointed

forensic psychologist; and making misrepresentations to Judge

Quinones, the judge presiding over the Divorce Action. See id.

¶¶ 10–15; id. at 13–15 (Sept. 13, 2022 Kairey Aff.).

Hirsch alleges claims for defamation, IIED, and civil

conspiracy against Kairey and Butterman. Id. ¶¶ 16–42. He

seeks, among other relief, another $5 million in compensatory

and punitive damages and a permanent injunction enjoining the

Defendants, without any specified limitations, “from using

pleadings from civil actions where Elliot Hirsch and Elizabeth

Kairey are parties” and “from speaking about the Plaintiff in

any forum.” Id. at 9–10.

C. Hirsch III

The Hirsch III complaint appears to relate to

Butterman’s response to another disqualification motion —

similar to the one giving rise to the Hirsch II complaint, but

filed in the Divorce Action rather than the Wahba Action. Much

like the Hirsch II complaint, Hirsch III involves claims of

defamation and IIED for false accusations that Hirsch alleges

Butterman made against him in his sworn submission. Hirsch III

Compl. ¶¶ 7–36, ECF No. 2.

Specifically, on September 19, 2022, Butterman filed

an affirmation with the Kings County Supreme Court in response

to Hirsch’s motion to disqualify him for continuing the Divorce

Action “against his client[’]s will.” Id. ¶¶ 7, 34; see also

id. at 16–24. That affirmation, Hirsch alleges, accuses Hirsch

of behaving abusively towards Kairey, Hirsch and Kairey’s child,

Butterman himself, and others including court personnel. Id.

¶ 8. Butterman also affirms that Hirsch attempted to intimidate

Dr. Rand by, among other things, accusing him of criminal

harassment. Id. ¶¶ 9–10; see id. at 19. According to Hirsch,

Butterman repeated these allegations of abuse and witness

intimidation during the oral argument over Hirsch’s

disqualification motion in the presence of Kairey, court

personnel, and others. Id. ¶ 11.

In addition to defamation and IIED, Hirsch III asserts

a claim against Butterman under the attorney-misconduct

provisions of the New York Judiciary Law for allegedly deceiving

the court and delaying litigation for his own gain. Id. ¶¶ 37–

65. The allegations in support of this claim broadly repeat

those alleged in Hirsch I. Hirsch again claims that Butterman

is refusing to settle the Divorce Action despite Kairey’s wish

to do so. Id. ¶¶ 41, 45–46. Moreover, Butterman has “engaged

in deceitful behavior” by representing to the New York state

court that “his client authorizes him to prosecute the action.”

Id. ¶ 50. In reality, Hirsch alleges, Butterman “coerced”

Kairey to attest that he is acting in accordance with her wishes

to proceed. Id. ¶ 49.3 In refusing to settle, Butterman is

prolonging the Divorce Action to burnish his own reputation,

attract new clients, and continue collecting money from the

Hirsch v. Beda defendants, who Hirsch alleges are paying

Butterman “as a form of revenge and extortion” after Hirsch sued

them. Id. ¶¶ 42–45, 62.

In relief, Hirsch seeks “not less than” $5 million in

compensatory and punitive damages; an injunction prohibiting

Butterman’s continued service as attorney of record in the

Divorce Action; and a declaratory judgment that Butterman

violated various New York Rules of Professional Conduct. Id. at

12–13.

D. Hirsch IV

Finally, much like Hirsch II and Hirsch III, Hirsch

brings claims for defamation and false light against Butterman

for submitting a false affirmation. Hirsch IV Compl. ¶¶ 7–10.

Hirsch alleges that Butterman’s October 28, 2022 affirmation in

the Wahba Action “intentionally falsely accused [him] of

committing domestic abuse” and “harassment” against Kairey. Id.

¶¶ 7–8.4 In relief, he seeks a familiar set of remedies: at

3 This allegation appears to refer to the affidavit at issue in Hirsch

II. See Hirsch II Compl. ¶ 9; see also id. at 13–15.

least $5 million in compensatory, punitive, and treble damages;

an order requiring Butterman to rescind the affirmation and to

cease defaming Hirsch; and a declaratory judgment that Butterman

had violated various New York Rules of Professional Conduct.

Id. at 6.

* * *

In an April 1, 2023 letter filed in Hirsch III, Hirsch

indicated that Justice Quinones had issued a final judgment in

the Divorce Action. Hirsch III, ECF No. 12 at 1. He has not

indicated whether he has appealed that judgment or whether any

appellate proceedings are ongoing.

4 Butterman’s affirmation, which responds to a motion for sanctions

filed by Hirsch, states in relevant part:

As detailed in the cross-motion to dismiss, plaintiff has

engaged in a concerted campaign of harassment against Ms.

Kairey, of which this is only one of numerous lawsuits brought

by plaintiff seeking to intimidate and harass Ms. Kairey, her

family and her counsel, all arising from or related to the

parties divorce proceedings. Allowing this harassment to

continue in the absence of a meritorious cause of action as well

as such deep prejudice to defendant in defending yet another

frivolous suit brought against her by plaintiff is plainly the

antithesis of the interests of justice. Indeed, plaintiff’s

actions in this matter and the related lawsuits constitute

nothing less than domestic abuse and harassment through

litigation, which deeply parallels the very recent case decided

by the Hon. Kathleen Waterman-Marshall, J.N. v. T.N., New York

Law Journal, October 14, 2022. (New York Sup. Ct., New York

Country 2022).

Affirmation in Opposition at 1, 5, Hirsch v. Wahba, Index No.

514979/2021 (N.Y. Sup. Ct. Oct. 28, 2022), Doc. No. 100 (emphasis

added).

Legal Standard for Pro Se Plaintiffs

Under 28 U.S.C. § 1915(e)(2)(B), a district court must

dismiss an in forma pauperis action that “(i) is frivolous or

malicious; (ii) fails to state a claim on which relief may be

granted; or (iii) seeks monetary relief against a defendant who

is immune from such relief.” At the pleading stage, “all well-

pleaded, nonconclusory factual allegations” in the complaint are

assumed to be true. Kiobel v. Royal Dutch Petroleum Co., 621

F.3d 111, 124 (2d Cir. 2010).5 Pro se complaints are generally

held to less stringent standards than pleadings drafted by

attorneys, and the Court will read a pro se complaint liberally

and interpret it as raising the strongest arguments it suggests.

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v.

Sealed Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008).

Still, a pro se plaintiff is not exempt from

“compliance with relevant rules of procedural and substantive

law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Thus, a

pro se complaint must plead sufficient facts to “state a claim

to relief that is plausible on its face.” Williams v. Bronx

Cnty. Child Support Customer Serv. Unit, 741 F. App’x 854, 855

(2d Cir. 2018) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

5 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

544, 570 (2007)). “A claim is plausible when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63

(2d Cir. 2011). Although factual allegations in the complaint

are assumed to be true, this tenet is “inapplicable to legal

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Discussion

Almost all of Hirsch’s claims allege a state-law tort.

“A federal court sitting in diversity applies the choice-of-law

rules of the forum state.” See Kinsey v. N.Y. Times Co., 991

F.3d 171, 176 (2d Cir. 2021). Thus, New York’s choice-of-law

rules govern, as applied to each tort as set out below.

A. Defamation, IIED, and False Light

Hirsch’s claims for defamation, IIED, and false light

all fail for the same reason: The only factual content Hirsch

alleges in support of each claim is protected by the “litigation

privilege” — the privilege that attaches to statements made in

the course of judicial proceedings. Without unprivileged

factual content to sustain any of these claims, they must be

dismissed.

As a threshold issue, the Court must determine which

state’s rules — New York or New Jersey — apply.6 Under New

York’s choice-of-law rules, a court looks first to whether there

is an actual conflict between the laws of the two states at

issue. Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998).

Laws are in conflict “where the applicable law from each

jurisdiction provides different substantive rules.” Int’l Bus.

Machs. Corp. v. Liberty Mut. Ins. Co., 363 F.3d 137, 143 (2d

Cir. 2004).

In this case, it is unnecessary to decide any choice-

of-law questions on Hirsch’s defamation, IIED, and false light

claims because the litigation privilege — under either state’s

law — provides an independently sufficient ground to dismiss

each one. See, e.g., GeigTech E. Bay LLC v. Lutron Elecs. Co.,

No. 18-CV-5290, 2019 WL 1768965, at *4–5 (S.D.N.Y. Apr. 4,

2019).

There is no actual conflict between New York’s and New

Jersey’s litigation privileges. See Koch v. Pechota, 744 F.

App’x 105, 114 (3d Cir. 2018). In both states, the privilege is

absolute: “[A]bsolute immunity from liability for defamation

exists for oral or written statements made . . . in connection

6 The complaints’ allegations implicate these two states: Hirsch is a

resident of New Jersey, but almost all of the incidents giving rise to his

claims occurred in New York (Manhattan and Brooklyn).

with a proceeding before a court.” Front, Inc. v. Khalil, 28

N.E.3d 15, 18 (N.Y. 2015); accord Hawkins v. Harris, 661 A.2d

284, 289 (N.J. 1995); Peterson v. Ballard, 679 A.2d 657, 659

(N.J. Super. Ct. App. Div. 1996) (“Statements by attorneys,

parties and their representatives made in the course of judicial

or quasi-judicial proceedings are absolutely privileged and

immune from liability.”). The speaker’s motive in making such

statements has no bearing on whether the privilege applies. See

Park Knoll Assocs. v. Schmidt, 451 N.E.2d 182, 184 (N.Y. 1983);

Loigman v. Twp. Comm. of Twp. of Middletown, 889 A.2d 426, 437

(N.J. 2006). And in each state, the privilege is read

expansively to protect oral and written statements made “in

connection with” a judicial proceeding, regardless of whether

the contested statements were given under oath or made in a

courtroom. See Front, 28 N.E.3d at 18; Hawkins, 661 A.2d at

289.

Absent any actual conflict, the Court is “free to

apply” New York law and does so here. Int’l Bus. Machs. Corp.,

363 F.3d at 143. In New York, courts apply the privilege to

statements regarding “any matter which, by any possibility,

under any circumstances, at any stage of the proceeding, may be

or may become material or pertinent.” Kelly v. Albarino, 485

F.3d 664, 666 (2d Cir. 2007).7 The inquiry into a statement’s

materiality or pertinence examines its relation “to the issue[s]

to be resolved in the proceeding.” See Bisogno v. Borsa, 954

N.Y.S.2d 896 (App. Div. 2d Dep’t 2012). The threshold here is

extremely low: any statement “that may possibly or plausibly be

relevant or pertinent, with the barest rationality, divorced

from any palpable or pragmatic degree of probability” is

protected by the privilege. See O’Brien v. Alexander, 898 F.

Supp. 162, 171 (S.D.N.Y. 1995), aff’d, 101 F.3d 1479 (2d Cir.

1996) (quoting Grasso v. Mathew, 564 N.Y.S.2d 576, 578 (App.

Div. 3d Dep’t 1991)). “Pertinenc[e] is a question of law for

the court to decide.” Mosesson v. Jacob D. Fuchsberg L. Firm,

683 N.Y.S.2d 88, 89 (App. Div. 1st Dep’t 1999).

This expansive scope of the privilege, and the

absolute immunity it confers, advance “the public interest in

the freedom of participants in litigation to ‘speak with that

free and open mind which the administration of justice

demands.’” D’Annunzio v. Ayken, Inc., 876 F. Supp. 2d 211, 217

7 New Jersey law is consistent on this principle as well. See Koch, 744

F. App’x at 114. To be privileged, a statement must only “have some relation

to the course of the proceedings.” Hawkins, 661 A.2d at 290. “The

pertinency thus required is not a technical legal relevancy . . . but rather

a general frame of reference and relationship to the subject matter of the

action.” Id.

(E.D.N.Y. 2012) (quoting Youmans v. Smith, 47 N.E. 265, 268

(N.Y. 1897)). As the New York Court of Appeals has emphasized:

[T]o allow such statements to be a basis for a

defamation action would be an impediment to justice,

because it would hamper the search for truth and

prevent making inquiries with that freedom and

boldness which the welfare of society requires . . . .

[R]elevant statements made in judicial or quasi-

judicial proceedings are afforded absolute protection

so that those discharging a public function may speak

freely to zealously represent their clients without

fear of reprisal or financial hazard.

Front, 28 N.E.3d at 18.

Here, all of Kairey and Butterman’s allegedly

defamatory statements fall squarely within the privilege’s

absolute protection. First, they all relate to matters that are

or might be at issue in the Divorce Action and Wahba Action.

Specifically, assertions that Hirsch behaved abusively towards

Kairey and their child; intimidated a court-appointed forensic

psychologist; and made misrepresentations to the court could all

be (or become) relevant in the course of those litigations.

Indeed, the affidavit and affirmations at issue all respond to

sanction and disqualification papers filed against Butterman by

Hirsch in each case. These statements are plainly protected.

See Ruchinsky v. Devack, No. 14-CV-2219, 2014 WL 2157533, at *11

(E.D.N.Y. May 23, 2014) (extending privilege to affidavit

statements regarding custody arrangement and dismissing perjury

claims); see also Grasso, 564 N.Y.S.2d at 578 (extending

privilege to parties’ correspondence and settlement offers in

divorce action, which “pertain[ed] to child support and

defendant’s ability to pay”).

Moreover, the communications alleged in the complaints

— sworn submissions submitted to a court and statements made

during oral argument — all garner the protection of the

litigation privilege. See Kelly, 485 F.3d at 665–66 (affidavits

submitted to court); O’Brien, 898 F. Supp. at 170–71 (statements

made in opening statement at trial, in affidavit supporting

claims, and in communications by attorneys to the court). In

Hirsch III and Hirsch IV, the statements upon which Hirsch

asserts his claims appeared in affirmations that Butterman filed

on the docket. See Hirsch III Compl. ¶ 7; Hirsch IV Compl. ¶ 7.

In Hirsch III, Hirsch also bases his claims in statements

Butterman made during oral argument. See Hirsch III Compl.

¶ 11.

The privilege also extends to the affidavit at issue

in Hirsch II, despite the allegation that Butterman distributed

it more broadly than just to the state court. Butterman’s cover

email is addressed to the “Honorable Justice Rothenberg” and

refers to disqualification papers Hirsch had filed in the Wahba

Action earlier that day. See Hirsch II Compl. ¶ 7; id. at 16.

Among others, Butterman copied employees of the New York

Attorney General’s office and the New York State Commission on

Judicial Conduct. The email attaches, “[i]n response,” an

“affidavit of Ms. Kairey prepared for” a “concurrent”

disqualification motion in the Divorce Action. See id. ¶ 7; id.

at 13–15. Thus, for the reasons already noted above, the

statements in that affidavit were clearly made in connection

with, and were relevant to, issues being litigated in both the

Divorce Action and the Wahba Action. That some recipients of

the affidavit were not parties to either proceeding does not

preclude the privilege’s application. See, e.g., Tacopina v.

O’Keeffe, 645 F. App’x 7, 8 (2d Cir. 2016) (statements in

affidavit, shared by attorney with press before filing it in

court, protected by litigation privilege); Feist v. Paxfire,

Inc., No. 11-CV-5436, 2017 WL 177652, at *5 (S.D.N.Y. Jan. 17,

2017) (draft complaint sent to reporter protected).

Finally, while it is more frequently asserted as a

defense to defamation claims, the litigation privilege likewise

warrants the dismissal of Hirsch’s claims for IIED and false

light. See, e.g., HC2, Inc. v. Delaney, 510 F. Supp. 3d 86,

105–06 (S.D.N.Y. 2020) (dismissing IIED claim because statements

at issue were protected by litigation privilege); Peterson v.

HVM LLC, No. 14-CV-1137, 2016 WL 845144, at *12–13 (D.N.J. Mar.

3, 2016) (dismissing false light claim).8 Those claims too are

dismissed.9

In short, all of the statements and conduct upon which

Hirsch brings his claims for defamation, IIED, and false light

are protected by the litigation privilege. Such claims must

therefore be dismissed.

8 Under New Jersey law, false light is recognized as a variant of the

tort for invasion of privacy, and “involves publicity that unreasonably

places the other in a false light before the public.” Leang v. Jersey City

Bd. of Educ., 969 A.2d 1097, 1115 (N.J. 2009). The tort “has two elements:

(1) the false light in which the other was placed would be highly offensive

to a reasonable person; and (2) the actor had knowledge of or acted in

reckless disregard as to the falsity of the publicized matter and the false

light in which the other would be placed.” Id. at 1116.

False light overlaps with, but is distinct from, defamation. A

plaintiff does not need to prove that he was defamed to succeed on a false

light claim — only that he had been subjected to “unreasonable and highly

objectionable publicity” such that he was “placed before the public in a

false position.” See Savely v. MTV Music Television, No. 11-CV-1021, 2011 WL

2923691, at *5 (D.N.J. July 18, 2011). Notably, New York does not recognize

a cause of action for false light. Howell v. N.Y. Post Co., 612 N.E.2d 699,

703 (N.Y. 1993). The Court declines to perform a full choice-of-law analysis

on Hirsch’s false-light claim since that it finds that no unprivileged

allegations can sustain Hirsch’s false-light claim, even if New Jersey law

were to apply.

9 Even if litigation privilege did not apply to Hirsch’s IIED claims,

the complaints fail to allege “extreme and outrageous conduct” by Butterman

and Kairey to support those claims. See Howell, 612 N.E.2d at 702; Buckley

v. Trenton Saving Fund Society, 544 A.2d 857, 863 (N.J. 1988). To be

“extreme and outrageous,” such conduct must be “so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of decency, and

to be regarded as atrocious, and utterly intolerable in a civilized

community.” Howell, 612 N.E.2d at 702; accord Buckley, 544 A.2d at 863.

Hirsch’s claims, which are “based upon allegations involving statements and

actions in the context of adversarial litigation,” fall short of that bar.

See, e.g., Yalkowsky v. Century Apartments Assocs., 626 N.Y.S.2d 181, 183

(App. Div. 1st Dep’t 1995) (affirming dismissal of IIED claims); Lazich v.

Vittoria & Parker, 592 N.Y.S.2d 418, 419 (App. Div. 2d Dep’t 1993) (same).

B. Abuse of Process

For purposes of Hirsch’s claim and this Order, there

is likewise no actual conflict in New York and New Jersey law

defining the tort of abuse of process. Under New York law, a

plaintiff must allege that a defendant has “(1) employ[ed]

regularly issued legal process to compel performance or

forbearance of some act (2) with intent to do harm without

excuse or justification, and (3) in order to obtain a collateral

objective that is outside the legitimate ends of the process.”

Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994). Similarly, New

Jersey law requires the complaint to allege that a defendant has

(1) “set legal process in motion for an improper ulterior

purpose,” and (2) has “committed a willful act in the use of

process which perverts the regular conduct of the proceeding to

accomplish the improper purpose.” Voytko v. Ramada Inn of Atl.

City, 445 F. Supp. 315, 325 (D.N.J. 1978). Again, absent any

actual conflict, New York’s choice-of-law rules permit the Court

to apply New York law in analyzing a claim. Int’l Bus. Machs.

Corp., 363 F.3d at 143.10

Thus, to state an abuse of process claim, Hirsch must

plausibly allege that Butterman’s purposes in litigating the

Divorce Action differed from the purposes for which that legal

10 The Hirsch I complaint itself sets out the elements of abuse of

process under New York law. See Hirsch I Am. Compl. ¶ 31.

process was created. Savino v. City of New York, 331 F.3d 63,

77–78 (2d Cir. 2003). Given Hirsch’s allegations of improper

purposes, as set out in the Hirsch I background section above,

the abuse of process claim may proceed beyond the Court’s

limited review at the Section 1915 stage.

C. Judiciary Law § 487

Next, Hirsch brings a claim against Butterman under

the attorney-misconduct provisions of New York’s Judiciary Law,

which allows for a private right of action.11 An attorney may be

held civilly liable if he: (1) “[i]s guilty of any deceit or

collusion, or consents to any deceit or collusion, with intent

to deceive the court or any party,” N.Y. Judiciary Law § 487(1),

or (2) “[w]ilfully delays his client’s suit with a view to his

own gain.” Id. § 487(2). Hirsch’s claim, however, is not

properly before this Court.

“[I]t is well-settled that if an allegedly injured

party is aware that a lawyer is violating § 487 at the time the

violation occurs, the victim’s exclusive remedy is to bring an

action in the course of that same proceeding.” Sanchez v.

Abderrahman, No. 10-CV-3641, 2012 WL 1077842, at *12 (E.D.N.Y.

11 Section 487 “permits a civil action to be maintained by any party who

is injured by an attorney's intentional deceit or collusion in New York on a

court or on any party to litigation, and it provides for treble damages.”

Amalfitano v. Rosenberg, 533 F.3d 117, 123 (2d Cir. 2008).

Mar. 30, 2012) (citing cases). In other words, a party’s

“remedy for a violation of Section 487 stemming from an

attorney’s actions in a litigation lies exclusively in that

lawsuit itself, not a second plenary action.” All. Network, LLC

v. Sidley Austin LLP, 987 N.Y.S.2d 794, 802 (Sup. Ct. 2014)

(citing Yalkowsky, 626 N.Y.S.2d at 182); see, e.g., Chibcha

Rest., Inc. v. David A. Kaminsky & Assocs., P.C., 958 N.Y.S.2d

135, 137 (App. Div. 1st Dep’t 2013); Urias v. Daniel P.

Buttafuoco & Assocs., PLLC, 104 N.Y.S.3d 712, 714–15 (App. Div.

2d Dep’t 2019).

Courts have recognized an exception to this rule,

allowing a separate lawsuit to proceed where the alleged

misconduct “in the underlying action was merely a means to the

accomplishment of a larger fraudulent scheme which was greater

in scope than the issues determined in the prior proceeding.”

See Specialized Indus. Servs. Corp. v. Carter, 890 N.Y.S.2d 90,

92 (App. Div. 2d Dep’t 2009). The New York Court of Appeals

case to which Specialized Industrial cites for this exception,

Newin Corp. v. Hartford Acc. & Indem. Co., 333 N.E.2d 163 (N.Y.

1975), sheds light on what a “larger fraudulent scheme” entails.

There, the Court held that, while plaintiffs could not sue for

the subornation of perjury in a prior civil proceeding, an

exception existed “where the perjury is merely a means to the

accomplishment of a larger fraudulent scheme.” Newin, 333

N.E.2d at 166. Holding that the exception applied in that case,

the Court of Appeals reasoned:

Plaintiffs have alleged that the fraud committed in

the bankruptcy proceedings is extrinsic and part of a

larger scheme which goes beyond the scope of the

trustee’s law suit, which involved only [certain]

bonds. They do not charge fraud in the inducement to

settlement. . . . . Rather, they accept the fact of

settlement but seek damages because [the defendant’s]

fraud was intended to extend beyond those bonds, so as

to defeat or make more difficult any recovery under

the excess coverage as well. Moreover, unlike the

cases in which recovery has been precluded, plaintiffs

had no effective remedy in the prior action; an appeal

could not have vindicated the independent rights

pressed here.

Id. at 167.

Here, the complaint’s allegations make clear that

Hirsch was aware of Butterman’s actions at the time that they

occurred. Indeed, he filed this federal suit while the alleged

misconduct in the Divorce Action was still ongoing. Hirsch III

Compl. ¶¶ 37–53. Nor does the complaint come close to

adequately alleging that Butterman’s actions — namely,

misrepresenting Kairey’s position in the Divorce Action — were

part of some larger fraudulent scheme extending beyond the

issues of that case, such that this claim would fall within the

exception set out in Specialized Industrial and Newin. On the

contrary, Hirsch’s allegations uniformly challenge Butterman’s

litigation conduct in the Divorce Action. See Heriveaux v.

Lopez-Reyes, 779 F. App’x 758, 760 (2d Cir. 2019) (“[Plaintiff]

has alleged only fraudulent acts that took place in the

underlying litigation, and the exception therefore does not

apply.”); cf. Michelo v. Nat’l Collegiate Student Loan Tr. 2007-

2, 419 F. Supp. 3d 668, 711 (S.D.N.Y. 2019) (“Plaintiffs’

allegations that Defendants operated a widespread scheme to

fraudulently obtain default judgments in debt collection

proceedings fits squarely within this exception.”). For that

reason, Hirsch was required to bring (and could well have

brought) this claim in that state court proceeding. See

Sanchez, 2012 WL 1077842, at *12; Appel v. Schoeman Updike

Kaufman Stern & Ascher L.L.P., No. 14-CV-2065, 2015 WL 13654007,

at *10 (S.D.N.Y. Mar. 26, 2015). Hirsch’s Section 487 claim is

therefore dismissed.12

D. Civil Conspiracy

Finally, Hirsch asserts two claims for civil

conspiracy against both Kairey and Butterman in Hirsch I and

Hirsch II. New York and New Jersey both recognize the tort of

civil conspiracy, and their state-specific elements present no

actual conflict here. In New York, to state a claim of civil

conspiracy, a “plaintiff must demonstrate [an] underlying tort,

12 While numerous courts have dismissed a Section 487 for failure to

state a claim, at least one court has considered this ground to be

jurisdictional. Compare Sanchez, 2012 WL 1077842, at *12 (dismissing on Rule

12(b)(6) grounds), with Seldon v. Bernstein, 503 F. App’x 32, 33 (2d Cir.

2012) (affirming sua sponte dismissal of Section 487 claim for lack of

subject-matter jurisdiction).

plus the following four elements: (1) an agreement between two

or more parties; (2) an overt act in furtherance of the

agreement; (3) the parties’ intentional participation in the

furtherance of a plan or purpose; and, (4) resulting damage or

injury.” Meisel v. Grunberg, 651 F. Supp. 2d 98, 119 (S.D.N.Y.

2009). Similarly, in New Jersey, a civil conspiracy is “a

combination of two or more persons acting in concert to commit

an unlawful act, or to commit a lawful act by unlawful means,

the principal element of which is an agreement between the

parties to inflict a wrong against or injury upon another, and

an overt act that results in damage.” Morgan v. Union Cnty. Bd.

of Chosen Freeholders, 633 A.2d 985, 998 (N.J. Super. Ct. App.

Div. 1993).

Hirsch’s claims would, once again, fail under either

state’s standard. First, a plaintiff must first adequately

state a claim for an underlying tort. See Kirch v. Liberty

Media Corp., 449 F.3d 388, 401 (2d Cir. 2006) (“New York does

not recognize an independent tort of conspiracy.”); Filler v.

Hanvit Bank, 156 F. App’x 413, 418 (2d Cir. 2005) (“A claim of

conspiracy cannot stand alone and must be dismissed if the

underlying independent tort has not been adequately pleaded.”);

accord Banco Popular No. America v. Gandi, 876 A.2d 253, 263

(N.J. 2005) (“[T]he gist of the claim is not the unlawful

agreement, but the underlying wrong which, absent the

conspiracy, would give a right of action.”); G.D. v. Kenny, 15

A.3d 300, 321 (N.J. 2011) (dismissing civil conspiracy claim

where the plaintiff could not “establish that defendants

committed an unlawful act or a wrong against him that

constitutes a tort entitling him to a recovery”). As set forth

above, with respect to Hirsch II, Hirsch has not plausibly

stated a claim for defamation or IIED, upon which that

complaint’s civil conspiracy claim is predicated. Because he

does not adequately allege an underlying tort in that case, the

civil conspiracy claim must also fail.

Second, with respect to Hirsch I, Hirsch fails to

adequately plead the existence of an agreement between Kairey

and Butterman, in connection with the underlying torts of abuse

of process and IIED. In fact, the complaint suggests the

opposite: it alleges that Kairey “is being abused by” Butterman,

see Hirsch I Am. Compl. ¶ 27, and that Butterman “is going

against his client’s direct instruction to settle the custody

matter” and instead continuing to act in the Divorce Action

“without the permission and against the will of his client,” see

id. ¶¶ 29, 34. The allegation that “Kairey is ipso facto in

agreement with Butterman,” id. ¶ 50, is thus the type of

conclusory statement — a legal conclusion masquerading as a

factual assertion — that a Court need not credit when assessing

a complaint’s plausibility. Iqbal, 556 U.S. at 678. This civil

conspiracy claim too must be dismissed.

Leave to Amend

The Second Circuit has held that leave to replead

should be liberally granted to pro se litigants. See Grullon v.

City of New Haven, 720 F.3d 133, 140 (2d Cir. 2013) (“[A] pro se

complaint generally should not be dismissed without granting the

plaintiff leave to amend at least once.”); see also Chavis v.

Chappius, 618 F.3d 162, 170 (2d Cir. 2010). “[B]ut amendment

should be denied where the complaint gives no ‘indication that a

valid claim might be stated.’” McKie v. Kornegay, No. 21-1943,

2022 WL 4241355, at *3 (2d Cir. Sept. 15, 2022) (quoting Cuoco

v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). The Court

concludes that granting leave to amend would be futile and

declines to do so, in light of the litigation privilege’s

absolute bar to Hirsch’s defamation, IIED, and false light

claims, and the insolvable infirmities identified with respect

to the Section 487 and civil conspiracy claims.

Conclusion

For the reasons stated above, the requests to proceed

in forma pauperis in Hirsch v. Butterman, No. 22-CV-5064 and

Hirsch v. Butterman, No. 22-CV-5815 are granted. The complaints

in Hirsch v. Butterman, No. 22-CV-5925; Hirsch v. Butterman, No.

22-CV-5815; and Hirsch v. Butterman, No. 22-CV-7167 are

dismissed in their entirety. All pending motions in those three

cases are disposed of via this Order.

Hirsch’s claims for IIED and civil conspiracy in

Hirsch v. Butterman, No. 22-CV-5064 are likewise dismissed.

That case will proceed as to the abuse of process claim against

defendant Butterman. The Clerk of Court is respectfully

directed to prepare and issue a summons for defendant Butterman.

The U.S. Marshals are directed to serve the summons, the amended

complaint, and this Order on this defendant without pre-payment

of fees. The case is referred to Magistrate Judge Scanlon for

pretrial supervision.

Finally, the Court notes that Hirsch has filed

numerous actions in this district and the Southern District of

New York — almost all of which relate to events that occurred in

New York state court proceedings.13 “If a litigant has a history

of filing vexatious, harassing or duplicative lawsuits, courts

may impose sanctions, including restrictions on future access to

the judicial system.” Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d

Cir. 2005). Indeed, in an August 23, 2021 order dismissing one

such state court-related case, Chief Judge Swain of the Southern

District warned Plaintiff against filing frivolous actions in

13 See, e.g., Hirsch v. Miles, No. 21-CV-3846 (E.D.N.Y.); Hirsch v.

Shammah, No. 21-CV-3938 (E.D.N.Y); Hirsch v. Mastro, No. 21-CV-4142

(E.D.N.Y.); Hirsch v. Wade, No. 21-CV-4147 (E.D.N.Y); Hirsch v. Kairey, No.

22-CV-6716 (E.D.N.Y.); Hirsch v. Quinones, No. 21-CV-6311 (S.D.N.Y.).

that court. See Hirsch v. Quinones, No. 21-CV-6311, 2021 WL

3773640, at *4 (S.D.N.Y. Aug. 23, 2021).14

While one claim from these four cases will survive,

this Court nevertheless warns Plaintiff that it will not

tolerate vexatious or frivolous litigation. Here, for example,

the bulk of defamation and IIED claims — which are predicated on

statements made by Hirsch’s wife and her attorney in state court

proceedings — are plainly frivolous. Any further frivolous or

vexatious filings will result in the issuance of an order to

show cause why Plaintiff should not be barred from filing future

lawsuits in this Court without first obtaining leave of the

Court.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)

that any in forma pauperis appeal from this order would not be

taken in good faith. Coppedge v. United States, 369 U.S. 438,

444–45 (1962).

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: August 28, 2023

Brooklyn, New York

14 Plaintiff is a law school graduate who has passed the New Jersey bar

examination. See Hirsch IV Compl. ¶ 18.