Hirsch v. Kairey

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ELLIOT M. HIRSCH, Plaintiff, v. ELIZABETH M. KAIREY and JAY R. BUTTERMAN, Defendants.

ELLIOT M. HIRSCH, Plaintiff, v. JAY R. BUTTERMAN and ELIZABETH M. KAIREY, Defendants.

ELLIOT M. HIRSCH, Plaintiff, v. JAY R. BUTTERMAN, Defendant.

ELLIOT M. HIRSCH, Plaintiff, v. JAY R. BUTTERMAN, Defendant.

Nos. 22-CV-5064(EK)(VMS), 22-CV-5925(EK)(VMS), 22-CV-5815(EK)(VMS), 22-CV-7167(EK)(VMS)

United States District Court, E.D. New York

August 28, 2023

MEMORANDUM & ORDER

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 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.

I. 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 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, 77374 (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. ¶¶ 3765. 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...