Hirsch v. Kairey

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ELLIOT HIRSCH,

Plaintiff, MEMORANDUM & ORDER

22-CV-5064(EK)(VMS)

-against-

JAY BUTTERMAN,

Defendant.

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ERIC KOMITEE, United States District Judge:

Elliot Hirsch’s now-ex wife, Elizabeth Kairey, sued

for divorce. In the wake of his divorce, Hirsch, proceeding pro

se, brought this action against Jay Butterman, Kairey’s divorce

attorney. Hirsch argues that Butterman improperly prevented

Kairey from settling the divorce proceedings so that Butterman

could use the ongoing litigation as leverage to obtain

concessions from Hirsch that were unrelated to the divorce

itself.

Invoking this Court’s diversity jurisdiction, Hirsch

asserts a single cause of action for abuse of process.1

1 Hirsch initially alleged several claims against both Kairey and

Butterman. Reviewing under Section 1915, this Court dismissed all causes of

action against Kairey and allowed only one claim, for abuse of process, to

proceed against Butterman. ECF No. 20. Though Hirsch is proceeding pro se,

he has passed the New Jersey bar examination and (as far as the record

reveals) is pending admission there. ECF No. 36. While “a court is

ordinarily obligated to afford a special solicitude to pro se litigants,”

when such a litigant has legal experience, as Hirsch does, “it falls well

Butterman has now moved to dismiss for failure to state a claim.

For the following reasons, that motion is granted.

I. Background

The following facts are drawn from the operative

complaint and assumed true for purposes of the motion to

dismiss. Holmes v. Grubman, 568 F.3d 329, 332 (2d Cir. 2009).

Ms. Kairey commenced the divorce action in 2018. Mem. of Law in

Supp. of Def.’s Mot. to Dismiss (“Def.’s Br.”) at 10, ECF No.

30-9. Nearly three years later, with the divorce proceedings

still ongoing, Hirsch brought a separate action — filed in the

District of New Jersey, then transferred to this Court — against

Kairey’s aunt and cousins, later adding Kairey herself and

numerous others in her circle. Hirsch v. Beda et. al, No.

1:22-cv-5011 (hereinafter “Beda”). The defendants, Hirsch

alleged, had organized a campaign of defamation and harassment

against him for purportedly refusing to grant Kairey a religious

divorce under Jewish law. Beda, Amended Complaint ¶ 1, ECF No.

168. Hirsch brought claims under RICO, characterizing the

campaign as a racketeering enterprise, and under state tort law.

Id. ¶ 209–97.

within a district court’s discretion to lessen the solicitude that would

normally be afforded,” and “a lawyer representing himself ordinarily receives

no such solicitude at all.” Tracy v. Freshwater, 623 F.3d 90, 101–02 (2d

Cir. 2010); United States v. Pierce, 649 F. App’x 117, 117 n.1 (2d Cir. 2016)

(disbarred lawyers also receive no special solicitude).

While both cases — the divorce action and the Beda

action — were pending, Hirsch and Kairey met at a hospital where

their daughter was being treated. Second Am. Compl. (“Compl.”)

¶ 9, ECF No. 25. Hirsch alleges that, during this meeting,

Kairey offered to settle their divorce on his terms in exchange

for Hirsch dropping her (but not her co-defendants) from the

Beda action. Id. ¶ 16. Hirsch agreed, and Kairey delivered the

news to Butterman by email. Id. ¶ 17.

As overheard by Hirsch, Butterman then called Kairey

and berated her for “leaving the community to the wolves” — that

is, for deserting the other Beda defendants, who belonged to

Kairey’s Syrian Jewish community. Id. ¶ 2l. According to

Hirsch, Butterman threatened to retroactively bill Kairey for

his pro bono legal services if she did not abandon her agreement

with Hirsch and instead insist that any divorce settlement would

be contingent on Hirsch dropping the Beda case in its entirety.

Id. ¶¶ 21, 24, 35, 37. Butterman’s coercion proved successful,

allowing the attorney to “maintain control over the legal

proceedings” and litigate the divorce to its conclusion. Id.

¶ 37. Throughout the process, Butterman “repeatedly” advised

Hirsch’s attorney that “he would not allow the case to settle

unless [Hirsch] dismissed [Beda] in totality.” Id. ¶ 45.

In Hirsch’s view, Butterman is liable for abuse of

process because he prevented the divorce case from settling,

against his own client’s wishes, to “extort, torment, harass,

and intimidate” Hirsch in pursuit of a collateral objective:

namely, obtaining a favorable outcome for the other Beda

defendants. Id. ¶ 21, 40, 49. Some of those defendants

allegedly paid Butterman “tens of thousands of dollars, if not

more.” Id. ¶¶ 41, 49. Butterman’s collateral objectives

included (1) inducing Hirsch to drop the Beda case, and (2)

“compelling” Hirsch through the ongoing divorce proceedings to

provide testimony and “other evidentiary documents” that

Butterman could then pass along to the Beda defendants. Id.

¶¶ 42, 52, 55, 61. Hirsch alleges that Butterman was further

motivated by a personal vendetta against him. Id. ¶¶ 24, 63.

Hirsch seeks compensatory damages for the “unjustified

legal fees” he incurred and “enduring emotional distress” he

suffered. Id. ¶ 66. He also seeks a declaratory judgment and

punitive damages totaling, together with the compensatory

damages, “not less than $5,000,000.” Id. at 12.

II. Discussion

Hirsch fails to state a claim of abuse of process. As

the Court earlier held and both parties agree, New York law

applies. ECF No. 20 at 12. As further described below, to

state an abuse of process claim under New York law, a plaintiff

must plausibly allege that the defendant (1) employed regularly

issued legal process to compel performance or forbearance of

some act (2) with intent to do harm without excuse or

justification (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).2 In addition, the plaintiff must

(4) allege special damages.3 Bd. of Ed. of Farmingdale Union

Free Sch. Dist. v. Farmingdale Classroom Tchrs. Ass'n, Loc.

1889, 343 N.E.2d 278, 284 (N.Y. 1975). Hirsch does not satisfy

prongs (1) or (4).

A. Hirsch Does Not Identify A Legally Recognized

“Process”

Hirsch identifies “the matrimonial action” as the

legal process that Butterman ostensibly abused. Compl. ¶ 61.

He does not allege that Kairey initiated the divorce in bad

faith, or that the divorce action was itself abusive. Rather,

he sees abuse in Butterman’s improper continuation of Kairey’s

civil action, after the parties had purportedly reached an

agreement to settle it. The threshold question is whether such

2 Unless otherwise noted, when quoting judicial decisions this order

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

quotation marks.

3 Although New York law requires actual “or” special damages, these

terms denote the same standard of heightened particularity for a tort claim.

See Bohm v. Holzberg, 365 N.Y.S.2d 262, 264 (N.Y. App. Div. 2d Dep’t 1975)

(“[A] cause of action for prima facie tort must contain a statement of

reasonably identifiable losses sustained by the plaintiff, i.e., only actual

or special damages can be recovered”). The operative distinction is instead

between “special damages” and “general damages.” See Lee S. Kreindler et

al., New York Law of Torts §§ 1:91, 21:5, 21:140 (2023). Therefore, this

Court follows the lead of others in referring to these only as “special

damages.” See, e.g., Stevens & Co. v. Espat, No. 24-CV-5223, 2025 WL 950989,

at *11 (S.D.N.Y. Mar. 28, 2025); Brown v. Bethlehem Terrace Assoc., 525

N.Y.S.2d 978, 979 (N.Y. App. Div. 3d Dep’t 1988).

continuation did, in fact, entail the employment of a legally

recognized “process.”

New York courts have narrowly defined “process” as a

“direction or demand” causing some “interference with one’s

person or property.” Williams v. Williams, 246 N.E.2d 333, 335

(N.Y. 1969); see also HC2, Inc. v. Delaney, 510 F. Supp. 3d 86,

106 (S.D.N.Y. 2020). Examples include “attachment, execution,

garnishment, or sequestration proceedings, or arrest of the

person, or criminal prosecution, or even such infrequent cases

as the use of a subpoena for the collection of a debt.”

Williams, 246 N.E.2d at 335 n.1 (quoting William Prosser, Torts

877–8 (3d ed. 1964)). The initiation of criminal prosecution,

including arrest or arraignment, can entail process. See, e.g.,

Cook, 41 F.3d at 80. This makes intuitive sense: whether a

defendant is detained pretrial, released on bond, or subjected

to supervised release, there is an interference with his person

or property. By contrast, the initiation of a civil lawsuit

does not necessarily entail interference with personal liberty

or property, and the New York courts have accordingly held that

it does not constitute “process” capable of being abused.

Curiano v. Suozzi, 469 N.E.2d 1324, 1326 (N.Y. 1984); Muro-

Light v. Farley, 944 N.Y.S.2d 571, 572 (N.Y. App. Div. 2d Dep’t

2012); Stevens & Co. v. Espat, No. 24-CV-5223, 2025 WL 950989,

at *11 (S.D.N.Y. Mar. 28, 2025), reconsideration denied, No. 24-

CV-5223, 2025 WL 1425324 (S.D.N.Y. May 16, 2025).4

In the course of a civil suit, interference with

person or property could arise upon the court’s issuance of a

provisional remedy, such as a temporary restraining order. See

Anderson v. Pegalis, 540 N.Y.S.2d 843, 845 (N.Y. App. Div. 2d

Dep’t 1989). A subpoena issued by a party can also cause the

requisite interference, at least in extreme cases. See, e.g.,

Bd. of Ed. of Farmingdale, 343 N.E.2d at 278 (school board

stated valid claim where defendant had subpoenaed 87 of the

school board’s teachers to appear on a single day, with the aim

of disrupting its operations and forcing it to hire costly

substitutes); Ginsberg v. Ginsberg, 443 N.Y.S.2d 439, 441 (N.Y.

App. Div. 2d Dep’t 1981) (defendant stated abuse of process

counterclaim against her estranged husband, who used subpoenas

to compel her attendance at more than sixty days of hearings,

with the aim of keeping her from working and exhausting her

4 Some federal courts have assumed, without deciding, that the

initiation of a civil action can be “process.” See, e.g., Demirovic v.

Ortega, No. 15-cv-327, 2016 WL 11472745, at *13 (E.D.N.Y. Sept. 15,

2016), aff'd, 771 F. App’x 111 (2d Cir. 2019) (no abuse of process where a

civil action to recover unpaid wages did not have a collateral objective);

BBF Partners LLC v. Mon Ethos Pro Consulting LLC, 20-cv-5544, 2022 WL 612974,

at *4 (E.D.N.Y. Mar. 2, 2022) (finding that it was not an abuse of process to

initiate a lawsuit with the aim of obtaining a settlement designed to relieve

the plaintiff of liability to the defendant for breach of contract). These

opinions do not explicitly identify the initiation of a civil suit as

process. Rather, they bypass this prong of the tort and proceed directly to

explaining why the third prong, the existence of a collateral objective, was

not met.

financial resources). But absent one of these or similar

devices, the continuation of civil litigation cannot constitute

“process” for the same reason that the initiation thereof

cannot: the burden of defending a suit, no matter how frivolous,

does not necessarily interfere with person or property. See

Teddy Volkswagen of the Bronx, LLC v. Demersky, No. 19-CV-2337,

2020 WL 6424115, at *2 (S.D.N.Y. Nov. 1, 2020) (allegations of

“frivolous claims, extensive discovery, unnecessary motion

practice, and other bad-faith perversions of legitimate legal

process” fail to specify process capable of abuse). Neither

party surfaced, nor has this Court found, a single court in this

circuit or New York state that has held — or even assumed — that

the mere continuation of a civil suit is “process.”

Hirsch does not allege that any qualifying device

(such as a subpoena) was improperly used here. He does argue in

his brief that he was “[c]ompell[ed] . . . to attend court

proceedings under threat of contempt.” Pl.’s Decl. in Opp’n to

Mot. to Dismiss (“Opp’n.”) ¶ 12, ECF No. 33. In his complaint,

he alleges he was “compel[led] . . . to testify and provide

[Butterman] with other forms of material evidence for purposes

of providing said material to the [d]efendants in [the Beda]

action.” Compl. ¶ 61. But he cites no case for the proposition

that a deposition can qualify as abusive process, and he

references no subpoena actually issued or contempt proceeding

actually held.

Because Butterman’s alleged prevention of settlement

did not directly result in interference with Hirsch’s person or

property beyond prolonging the ordinary burdens of defending a

civil suit, it does not constitute “process.”

B. Hirsch Does Not Allege Special Damages

Hirsch’s claim falters for a second, independent

reason. To state a claim for abuse of process, a plaintiff must

allege special damages. See, e.g., Stevens & Co., 2025 WL

950989, at *11; Mitchell v. Cnty. of Nassau, No. 05-cv-4957,

2007 WL 1580068, at *12 (E.D.N.Y. May 24, 2007), adhered to on

reconsideration, No. CV-05-4957, 2008 WL 1803644 (E.D.N.Y. Apr.

17, 2008) (holding that plaintiff’s abuse of process claim fails

as a matter of law because of failure to plead special damages).

Special damages are “specific and measurable losses,

. . . which must be alleged with sufficient particularity to

identify actual losses and be related causally to the alleged

tortious acts.” Morea v. Saywitz, No. 09-CV-3935, 2010 WL

475302, at *3 (E.D.N.Y. Feb. 8, 2010). Round numbers and

general allegations are insufficient. Kanciper v. Lato, 989 F.

Supp. 2d 216, 237 (E.D.N.Y. 2013).

Hirsch refers only to “unjustified legal fees” (the

nature of which he does not specify) and “emotional distress”

before arriving at a requested award of “not less than

$5,000,000.” Compl. ¶ 66. Hirsch’s sole allegations of damages

thus consist only of general allegations and round numbers. He

therefore has failed to allege special damages.

III. Conclusion

For the reasons set forth above, the motion to dismiss

for failure to state a claim is granted with prejudice.5 A pro

se litigant should generally be given at least one chance to

replead. See Ganley v. City of New York, 734 F. App’x 784, 786

(2d Cir. 2018). Hirsch has had two such chances, including

following a pre-motion conference on Butterman’s motion to

dismiss. See ECF No. 6; Docket Order, Oct. 25, 2023. Moreover,

Butterman moved to dismiss the case with prejudice and Hirsch

did not request leave to amend in his response. See Solomon v.

Flipps Media, Inc., 136 F.4th 41,55-56 (2d Cir. 2025) (dismissal

without leave to amend appropriate when leave to amend requested

only in a conclusory footnote and without identifying what

changes would be made). The Court declines to grant leave to

amend sua sponte. Gallop v. Cheney, 642 F.3d 364, 370 (2d Cir.

5 Butterman additionally raises the affirmative defense of collateral

estoppel, arguing this issue was decided during the divorce proceeding, but

this defense is flawed. In the divorce suit, Hirsch’s cross-motion

containing his allegations against Butterman was denied without prejudice

“due to his default for failing to appear” in court. Ex. D at 2, ECF No. 30-

5. Thus, the issue was never “actually litigated” for purposes of

determining issue preclusion. Kaufman v. Eli Lilly & Co., 482 N.E.2d 63, 68

(N.Y. 1985).

2011) (“[N]o court can be said to have erred in failing to grant

a request that was not made.”).

This case shall be dismissed with prejudice and the

Clerk of Court is respectfully directed to terminate the case.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United State

s District Judge

D ated: July 29, 2025

Brooklyn, New

York