Roelcke v. Zip Aviation, LLC

• Decision Date: 23 November 2021
• Docket Number: 15-cv-6284 (JGK)
• Citation: 571 F.Supp.3d 214
• Parties: Katharina ROELCKE, Plaintiff/Counterclaim Defendant, v. ZIP AVIATION, LLC, et al., Defendants/Counterclaim Plaintiffs.
• Court: U.S. District Court — Southern District of New York

571 F.Supp.3d 214

Katharina ROELCKE, Plaintiff/Counterclaim Defendant,

v.ZIP AVIATION, LLC, et al., Defendants/Counterclaim Plaintiffs.

15-cv-6284 (JGK)

United States District Court, S.D. New York.

Signed November 23, 2021

Zachary Ian Holzberg, Derek Smith Law Group, PLLC, Derek Todd Smith, Akin & Smith, LLC, New York, NY, for Plaintiff/Counterclaim Defendant.

Shawn Patrick Naunton, Devon Wayne Galloway, Nell Peyser, Zuckerman Spaeder LLP, New York, NY, for Defendants/Counterclaim Plaintiffs ZiP Aviation, LLC, Itai Shoshani, Manhattan Helicopters LLC.

Shawn Patrick Naunton, Zuckerman Spaeder LLP, New York, NY, for Defendant/Counterclaim Plaintiff Manhattan Helicopter Services LLC.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiff/counterclaim defendant, Katharina Roelcke (the "plaintiff"), brought this action against the defendants/counterclaim plaintiffs Zip Aviation, LLC ("Zip"), Manhattan Helicopters LLC ("MH," together with Zip, "Zip/MH"), and Itai Shoshani (collectively, the "defendants"), advancing claims for violations of federal, state, and local employment statutes, breach of contract, quantum meruit, unjust enrichment, and claims arising from alleged physical and sexual assaults. The defendants brought several counterclaims against the plaintiff, including counterclaims for abuse of process, intentional infliction of emotional distress ("IIED"), and conversion.

The defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56 dismissing all the of plaintiff's claims. The plaintiff moves for summary judgment dismissing all of the defendants’ counterclaims. For the following reasons, the defendants’ motion for summary judgment is granted in part and denied in part and the plaintiff's motion for summary judgment is denied .

I. Background

The following facts are based on the parties’ Local Civil Rule 56.1 statements and supporting papers and are undisputed unless otherwise noted. The Court assumes familiarity with Judge Batts’ prior opinions in this case. See Roelcke v. Zip Aviation LLC, No. 15-cv-6284, 2018 WL 1792374 (S.D.N.Y. Mar. 26, 2018) (" Roelcke I"); Roelcke v. Zip Aviation LLC, No. 15-cv-6284, 2019 WL 10856680 (S.D.N.Y. Jan. 8, 2019) (" Roelcke II").¹

A. The Plaintiff's Employment, Contract, and Quasi-Contract Claims

Zip and MH both operate a New York City helicopter and charter tour company located at 6 East River Piers in Manhattan. Plaintiff's 56.1 Statement ¶¶ 1-2, 4-5 ("Pl.’s 56.1"). Shoshani is the President and owner of Zip and the Chief Operating Officer, Chief Pilot, and owner of MH. Id. ¶¶ 3, 6-7. The plaintiff, a Canadian national, met Shoshani in 2007 when the plaintiff was visiting New York City. Defendants’ 56.1 Statement ¶ 27 ("Def.’s 56.1"). The plaintiff contends that after she initially met Shoshani in June 2007, she had phone conversations with Shoshani in which they agreed to terms that resulted in the plaintiff's moving to New York and starting work for Zip in October 2007. Pl.’s Response to Def.’s 56.1 ¶ 7. The defendants maintain that Shoshani never offered any employment position to the plaintiff and that Shoshani rejected the plaintiff's request for employment. Def.’s 56.1 ¶¶ 7, 15.

The parties dispute whether the plaintiff was ever employed by Zip/MH, but generally agree that after the plaintiff moved to New York in 2007, until sometime in 2014, the plaintiff performed certain tasks for Zip/MH, including those related to payroll, staff interviews, and scheduling. Id. ¶ 13. The plaintiff maintains that she performed these tasks in her capacity as Chief Operating Officer of Zip/MH; the defendants argue that any work done by the plaintiff on behalf of Zip/MH or Shoshani was performed on a voluntary basis. Id. ¶¶ 13, 18-19; Pl.’s Response to Def.’s 56.1 ¶¶ 13, 18-19. For most of this time period, Shoshani and the plaintiff were involved in a romantic relationship, which ultimately ended in 2014. Def.’s 56.1 ¶¶ 28, 32.

The plaintiff was not placed on Zip/MH's payroll and never had a Zip/MH personnel file. Id. ¶¶ 1-3. The plaintiff also never submitted a W-4 withholding form to Zip/MH and never received a W-2 wage form from Zip/MH. Id. ¶¶ 4-5. The parties dispute the frequency with which the plaintiff worked out of the Zip/MH offices and the extent to which the plaintiff had a fixed work schedule. Id. ¶¶ 11-12; Pl.’s Response to Def.’s 56.1 ¶¶ 11-12.

The defendants maintain that the plaintiff never received a paycheck from Zip/MH. Def.’s 56.1 ¶¶ 1-2. While the plaintiff concedes that she did not receive "regular paychecks" from Zip/MH, she argues that she received periodic wire transfers from Zip in exchange for her work, as well as non-cash fringe benefits in the form of lodging, transportation, and phone service. Pl.’s Response to Def.’s 56.1 ¶¶ 1-2; see also ECF No. 124-16 (bank records listing wire transfers from Zip to the plaintiff). For example, in 2008 or 2009, the plaintiff moved into the Zip/MH corporate apartment and lived there until 2014. Def.’s 56.1 ¶ 29; Pl.’s Response to Def.’s 56.1 ¶ 29. The parties do not dispute that while the plaintiff was residing in the corporate apartment, her living expenses were paid for. However, the defendants contend that Shoshani paid for these expenses, while the plaintiff maintains that Zip/MH primarily covered these costs. Id.

On September 10, 2010, Shoshani wrote a letter of recommendation on behalf of the plaintiff in which he reported that the plaintiff had "worked at Zip Aviation as Vice President of Operations for the past 3 years." ECF No. 124-7 at P01946 ("Letter of Recommendation"). Shoshani also wrote in the Letter of Recommendation that the plaintiff's responsibilities at Zip included "operations, scheduling of daily flights, marketing, HR, payroll, and general management." Id. Additionally, the plaintiff was provided with an @zipaviation.com email address and Zip business cards that listed her as COO. Shoshani Dep. 47:22-48:11.

On May 16, 2013, 1168839 Ontario Limited ("Ontario"), a company owned by the plaintiff, entered into a consulting agreement with MH. ECF No. 104-11 ("Consulting Agreement"); Def.’s 56.1 ¶ 20. In the Consulting Agreement, MH retained the plaintiff as an "Aviation Engineering Consultant" for a one-year period. Under the Consulting Agreement, MH contracted to pay Ontario $650 per day for the plaintiff's services.

It is undisputed that Ontario was dissolved and had its certificate of incorporation canceled prior to the execution of the Consulting Agreement. Def.’s 56.1 ¶¶ 22-23. The plaintiff believed that the Consulting Agreement would be used to compensate her for services that she had previously rendered for Zip/MH, while the defendants argue that the agreement was executed solely to have the plaintiff, a Canadian citizen, achieve legal working status in the United States. Id. ¶¶ 24-25; Pl.’s Response to Def.’s 56.1 ¶¶ 24-25.

B. The Plaintiff's Assault Claims

The plaintiff and Shoshani were involved in a romantic relationship between approximately 2007 to 2014. The plaintiff contends that during this period, Shoshani verbally and physically abused the plaintiff, and forcibly raped her on multiple occasions. Pl.’s Response to Def.’s 56.1 ¶¶ 28, 30. Shoshani disputes these allegations, arguing that Shoshani and the plaintiff's sexual relationship was always consensual and that Shoshani was never physically or emotionally abusive towards the plaintiff. Def.’s 56.1 ¶ 28.

C. The Defendants’ Abuse of Process and IIED Claims

Following the 2014 breakup of the relationship between Shoshani and the plaintiff, the plaintiff initiated several court and administrative proceedings involving the defendants. The plaintiff also had communications with certain third parties regarding the defendants.

i. Judicial Proceedings

On February 10, 2015, the plaintiff sought an ex parte order of protection against Shoshani in the New York State Family Court, claiming that on or around February 5, 2015, Shoshani threatened the plaintiff with a firearm in Greenwich, Connecticut. Def.’s 56.1 ¶ 33; ECF No. 100-10. The defendants contend that these allegations were false and that Shoshani was not in Greenwich during the relevant time period. Def.’s 56.1 ¶ 33. On June 24, 2015, the New York State Family Court issued an order of protection that included a provision requiring Shoshani to surrender his handguns. Id.; ECF No. 100-10 at DEF-0011346-47. The order of protection was ultimately resolved by stipulation in December 2015 in which the parties agreed, among other things, to dismiss the proceedings if no further violation was reported to the court by the end of December 2015. ECF No. 100-10 at DEF-0011350.

In February 2016, after the June 24, 2015 order of protection expired, the plaintiff sought to hold Shoshani in contempt for violating that order, claiming that Shoshani followed her into a police station, vandalized her car, and threatened her. Defendants’ Additional Statement of Material Facts ¶ 22 ("Def.’s Add'l Statement"); Pl.’s Reply to Def.’s Add'l Statement ¶ 22. The defendants maintain that these allegations were false. Def.’s Add'l Statement ¶ 22. The New York Family Court ultimately denied the plaintiff's request to hold Shoshani in contempt. Id. ¶ 31.

In January 2017, the plaintiff sought an ex parte order of protection against Shoshani in the Connecticut Superior Court, claiming that Shoshani had stalked and physically abused her. Def.’s Add'l Statement ¶¶ 32-33; see also ECF No. 100-11 at DEF-0011516. The defendants contend that these allegations were false. Def.’s Add'l Statement ¶ 32. The Connecticut Superior Court issued an ex parte order of protection against Shoshani, which, among other things, required Shoshani to surrender or transfer all of his firearms and ammunition. Id. ¶¶ 34-35. The order of protection ultimately expired on January 31, 2017. Pl.’s Reply to Def.’s Add'l Statement ¶ 34.

Finally, the plaintiff filed an action against Shoshani in White Plains, New York small claims ...