Roelcke v. ZiP Aviation, LLC et al

Filing 140

OPINION AND ORDER re: 131 AMENDED MOTION for Summary Judgment filed by Katharina Roelcke, 102 MOTION for Summary Judgment filed by Manhattan Helicopters LLC, Itai Shoshani, ZiP Aviation, LLC. The Court has consider ed all of the arguments of the parties. To the extent not discussed above, the arguments are either moot or without merit. For the foregoing reasons, the defendants' motion for summary judgment is granted in part and denied in part. The plaintiff's motion for summary judgment is denied. The Clerk is directed to close Docket Nos. 102 and 131. SO ORDERED. (Signed by Judge John G. Koeltl on 11/23/2021) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
KATHARINA ROELCKE,
Plaintiff/
Counterclaim Defendant,

15-cv-6284 (JGK)
OPINION AND ORDER

- against ZIP AVIATION, LLC, ET AL.,
Defendants/
Counterclaim Plaintiffs.
────────────────────────────────────
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
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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

Unless otherwise noted, this Opinion and Order omits all alterations,
omissions, emphasis, quotation marks, and citations in quoted text.

1

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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
3

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
4

(“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.

5

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 ¶
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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-001134647. 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 DEF0011516. The defendants contend that these allegations were
false. Def.’s Add’l Statement ¶ 32. The Connecticut Superior
7

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 court seeking the return of
certain of her personal items from Shoshani. Def.’s Add’l
Statement ¶ 36. The action was eventually dismissed and Shoshani
voluntarily made some of the plaintiff’s personal items
available to her. Id. ¶¶ 37-38. The defendants contend that the
plaintiff never retrieved the items, while the plaintiff
maintains that the items that she was looking for—clothes and
shoes—were not made available to her and that the items that
Shoshani attempted to give the plaintiff were either damaged or
destroyed. Id.; Pl.’s Reply to Def.’s Add’l Statement ¶ 38.
ii. Administrative Proceedings
Sometime after the breakup of the relationship between
Shoshani and the plaintiff, the plaintiff filed several
complaints with the Federal Aviation Administration (“FAA”). The
defendants argue that the complaints included unfounded
allegations that Shoshani, among other things, engaged in
insurance fraud and knowingly flew unsafe aircrafts. Def.’s 56.1
¶ 35. The defendants contend that the FAA found no credible
8

information to support the complaints and found that they
stemmed from the plaintiff’s personal animus towards Shoshani.
Id. The plaintiff disputes that the complaints were unfounded
and argues that she submitted letters to the FAA at the
direction of and under duress by Shoshani. Pl.’s Reply to Def.’s
Add’l Statement ¶ 7.
Additionally, the defendants contend that after the
breakup, the plaintiff filed a complaint against Shoshani with
the Florida Division of Consumer Services solely in order to
have Shoshani’s gun license revoked. Def.’s 56.1 ¶ 36. The
plaintiff disputes this, arguing that she submitted a letter to
the Florida Division of Consumer Services because she was
residing in Florida at the time and the New York Family Court
instructed her to provide a copy of the order of protection to
local Florida authorities. Pl.’s Response to Def.’s 56.1 ¶ 36;
ECF No. 121 ¶ 67 (“Roelcke Aff.”).
Finally, the defendants contend that in early 2016, the
plaintiff sent a complaint to the Internal Revenue Service
(“IRS”) alleging improprieties regarding Shoshani’s personal tax
returns and Zip/MH’s finances. Def.’s Add’l Statement ¶ 15. The
IRS has not taken any legal action against any of the
defendants. Id. ¶ 16. The plaintiff denies having made any
complaint to the IRS. Pl.’s Reply to Def.’s Add’l Statement ¶
15.
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iii. Communications with Third Parties
It appears undisputed that the plaintiff and her counsel
discussed the plaintiff’s allegations in this action with a
reporter at the New York Post, which ran an article about the
plaintiff’s claims under the headline “‘You can’t just escape:’
‘Sex slave’ assistant sues helicopter boss.” Def.’s 56.1 ¶ 34;
ECF No. 116-1. Moreover, it is undisputed that after the
plaintiff and Shoshani broke up, the plaintiff contacted
Shoshani’s ex-wife. Def.’s 56.1 ¶ 37. The defendants contend
that the plaintiff’s phone calls to Shoshani’s ex-wife were
harassing; the plaintiff argues that she had no intention to
harass Shoshani’s ex-wife and instead called her to apologize
for any pain that the plaintiff caused as a result of the
plaintiff’s affair with Shoshani. Id.; Pl.’s Response to Def.’s
56.1 ¶ 37. According to the defendants, the plaintiff also sent
materials regarding Shoshani’s alleged sexual abuse of the
plaintiff to his ex-sister-in-law. Def.’s Add’l Statement ¶ 6.
D. The Defendants’ Conversion Claim
Before the plaintiff and Shoshani broke up, Shoshani
purchased a Nissan 350Z that was registered to and owned by Zip.
Pl.’s 56.1 ¶¶ 29-30. While the parties dispute whether Shoshani
bought the car for the plaintiff, it is undisputed that for a
certain period of time, the plaintiff used the car with
Shoshani’s permission. Id.
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The defendants set forth the following version of events
with respect to the car. Shoshani became concerned with the
plaintiff’s reckless driving and in early 2011, informed the
plaintiff that he would allow her to continue to use the car
only if she returned the license plates to Shoshani. Def.’s
Add’l Statement ¶¶ 44-46. The plaintiff stated that she would
only do so if Shoshani gave her ownership of the vehicle or sent
her a letter telling the plaintiff that the car was hers. Id. ¶
47. It appears that Shoshani did not do so and that the
plaintiff continued to use the car.
In July and August 2012, Shoshani demanded multiple times
that the plaintiff return the car. Id. ¶¶ 50-53. Shoshani also
informed the plaintiff that the car was not insured and should
not be driven. Id. In August 2012, Shoshani filed a police
report alleging that the car had been stolen. Id. ¶ 54. In
February 2013, to ensure that Zip would not face liability
regarding the car, Shoshani transferred the title to the
plaintiff. Id. ¶ 56. Shoshani did not sign a bill of sale to
complete the transaction. Id. ¶ 57.
The plaintiff disputes that she ever drove recklessly, and
generally contends that Shoshani bought the car for the
plaintiff, always regarded the car to be the plaintiff’s, and
intended throughout this time period to transfer ownership to
the plaintiff. Pl.’s Response to Def.’s Add’l Statement ¶¶
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44-57. The plaintiff concedes that Shoshani never signed a bill
of sale memorializing that Shoshani transferred ownership of the
car to the plaintiff. Id. ¶ 57.
II.
The standard for granting summary judgment is well
established. The Court “shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322–23 (1986); Gallo v. Prudential Residential Servs.,
L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). “[T]he trial court’s
task at the summary judgment motion stage of the litigation is
carefully limited to discerning whether there are any genuine
issues of material fact to be tried, not to deciding them. Its
duty, in short, is confined at this point to issue-finding; it
does not extend to issue-resolution.” Id. at 1224. The moving
party bears the initial burden of “informing the district court
of the basis for its motion” and identifying the matter or
matters that “it believes demonstrate the absence of a genuine
issue of material fact.” Celotex, 477 U.S. at 323. The
substantive law governing the case will identify those facts
which are material, and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will

12

properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a
court must resolve all ambiguities and draw all reasonable
inferences against the moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary
judgment is improper if there is any evidence in the record from
any source from which a reasonable inference could be drawn in
favor of the nonmoving party. See Chambers v. TRM Copy Ctrs.
Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets
its burden, the nonmoving party must produce evidence in the
record and “may not rely simply on conclusory statements or on
contentions that the affidavits supporting the motion are not
credible.” Ying Jing Gan v. City of New York, 996 F.2d 522, 532
(2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114–15
(2d Cir. 1998).
III. The Defendants’ Motion for Summary Judgment
The plaintiff advances (1) claims arising under various
employment statutes for alleged workplace discrimination and
unpaid compensation (Counts I, IV, VIII, XVII, and XVIII); (2) a
breach of contract claim based on the plaintiff’s alleged oral
contract with Shoshani and the Consulting Agreement (Count X);
(3) quantum meruit and unjust enrichment claims based on the
unpaid services that the plaintiff performed for the defendants
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(Counts XI and XII); and (4) assault claims, alleging
rape/sexual abuse, IIED, and violations of New York City’s
Gender Motivated Violence Protection Act (Counts XIV, XV, and
XVI). The defendant moves for summary judgment seeking to
dismiss each of these claims. 2
A. The Plaintiff’s Employment Claims
The plaintiff’s employment claims fall into two categories:
(1) sex discrimination claims under the New York State Human
Rights Law (“NYSHRL”) and the New York City Human Rights Law
(“NYCHRL”); and (2) unpaid wages claims under the Fair Labor
Standards Act (“FLSA”) and New York Labor Law (“NYLL”). The
defendants move for summary judgment dismissing each of the
plaintiff’s employment claims on the basis that the plaintiff
was never employed by the defendants.
A plaintiff seeking relief under any of these statutes must
establish the existence of an employer-employee relationship
between the plaintiff and the relevant defendant. McHenry v. Fox
News Network, LLC, 510 F. Supp. 3d 51, 80-81 (S.D.N.Y. 2020)
(NYSHRL and NYCHRL); Martin v. Sprint United Mgmt. Co., 273 F.
Supp. 3d 404, 443 (S.D.N.Y. 2017) (FLSA and NYLL). Whether a
plaintiff was employed by a defendant may be resolved as a
matter of law if the relevant underlying evidence is undisputed.
Judge Batts previously dismissed the plaintiff’s other causes of action at
the motion to dismiss stage. See Roelcke I, 2018 WL 1792374, at *15.

2

14

See, e.g., Browning v. Ceva Freight, LLC, 885 F. Supp. 2d 590,
597-98 (E.D.N.Y. 2012); Nazinitsky v. Fairmont Ins. Brokers,
Ltd., No. 06-cv-5555, 2010 WL 836766, at *8 (E.D.N.Y. Mar. 8,
2010) (citing Murphy v. Guilford Mills, Inc., No. 02-cv-10105,
2005 WL 957333, at *5 (S.D.N.Y. Apr. 22, 2005)).
i. NYSHRL and NYCHRL Claims
Under the NYSHRL and NYCHRL, courts apply a two-part test
to determine whether a plaintiff was employed by a defendant.
Areu v. Fox News Network, LLC, No. 20-cv-8678, 2021 WL 4124226,
at *8-10 (S.D.N.Y. Sept. 9, 2021). “To clear the first step—a
prerequisite to a finding of employment—the plaintiff must
demonstrate that she was hired by the putative employer. To
prove that she was hired, she must establish that she received
remuneration in some form for her work.” Id. at *9 (quoting
United States v. City of New York, 359 F.3d 83, 91-92 (2d Cir.
2004)). This remuneration need not be a salary, but it must
convey a “substantial benefit” to the putative employee. City of
New York, 359 F.3d at 91-92 (defining employee for the purposes
of Title VII). 3 “Benefits must meet a minimum level of
significance or substantiality, in order to find an employment
Cases analyzing whether a plaintiff was an employee within the meaning of
Title VII of the Civil Rights Act of 1964 are instructive in the NYSHRL and
NYCHRL context because courts use a “nearly identical standard to determine
the employment relationship” across the three statutes. See, e.g., Gallagher
v. AEG Mgmt. Brooklyn, LLC, No. 16-cv-4779, 2017 WL 2345658, at *4 (E.D.N.Y.
May 30, 2017); Wang v. Phoenix Satellite Television US, Inc., 976 F. Supp. 2d
527, 534-36 (S.D.N.Y. 2013).
3

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relationship in the absence of more traditional compensation.”
York v. Ass’n of the Bar, 286 F.3d 122, 126 (2d Cir. 2002).
Courts in the Second Circuit have found the following benefits
to be sufficiently substantial to qualify as remuneration:
“salary, vacation, sick pay [and] benefits such as health
insurance, disability insurance, life insurance, death benefits,
and retirement pension.” Id. By contrast, “vague benefits” such
as networking opportunities, “widespread publicity,” or “name
recognition” are insufficient. See Hughes v. Twenty-First
Century Fox, Inc., 304 F. Supp. 3d 429, 444 (S.D.N.Y. 2018).
If the plaintiff demonstrates remuneration, then courts
proceed to the second step in the analysis and consider whether
the proposed employer (1) had the power of the selection and
engagement of the employee; (2) made the payment of salary or
wages to the employee; (3) had the power of dismissal over the
employee; and (4) had the power to control the employee’s
conduct. 4 Gallagher v. AEG Mgmt. Brooklyn, LLC, No. 16-cv-4779,
2017 WL 2345658, at *4 n.2 (E.D.N.Y. May 30, 2017); see also

The parties both contend that after analyzing whether the plaintiff was
hired by the defendants, the Court should consider the thirteen factors laid
out in Community for Creative Non–Violence v. Reid, 490 U.S. 730 (1989).
However, the correct legal standard under the NYSHRL and NYCHRL entails
consideration of the four factors articulated above, not the thirteen Reid
factors, which are relevant in the Title VII context. See, e.g., Wang, 976 F.
Supp. 2d at 536; State Div. of Human Rights on Complaint of Emrich v. GTE
Corp., 487 N.Y.S.2d 234, 235 (App. Div. 1985). However, in practice the Reid
test is “nearly identical” to the analysis under the NYSHRL and NYCHRL
four-factor test. Wang, 976 F. Supp. 2d at 536; see also supra n.3.
4

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Cater v. New York, 316 F. Supp. 3d 660, 674 (S.D.N.Y. 2018).
Whether the alleged employer exercised control over the
employee’s conduct and the incidents of her employment remains
the most important consideration in this analysis. Strohl v.
Brite Adventure Ctr., Inc., No. 08-cv-259, 2009 WL 2824585, at
*8 (S.D.N.Y. Aug. 28, 2009).
The question of whether the plaintiff was employed by
Zip/MH within the meaning of the NYSHRL and NYCHRL cannot be
resolved on a motion for summary judgment because the relevant
underlying evidence is disputed. Regarding remuneration, there
is evidence in the record that while the plaintiff did not
receive a salary from the defendants, she did receive benefits
from Zip/MH in the form of occasional wire transfers, lodging at
the Zip/MH corporate apartment, and the use of Zip/MH’s Nissan
350Z. See supra Section I.A. If these benefits were in fact
given to the plaintiff by Zip/MH in exchange for her work, then
they may very well have constituted remuneration by Zip/MH
within the meaning of the NYSHRL and NYCHRL. See, e.g., City of
New York, 359 F.3d at 92 (concluding that benefits in the form
of cash payments, food stamps, transportation, and childcare
expenses were remuneration).
However, there is countervailing record evidence that
supports the conclusion that the plaintiff received these
benefits as a result of the plaintiff’s personal relationship
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with Shoshani and not in exchange for work that she did on
behalf of Zip/MH. For example, certain of the plaintiff’s
statements, including allegations in the plaintiff’s complaint,
suggest that the plaintiff’s work for Zip/MH was done on a
voluntary basis and that it was Shoshani, not Zip/MH, that
supported the plaintiff financially. See, e.g., Second Amended
Complaint (“SAC,” ECF No. 30) ¶¶ 64-65 (“[I]n order to maintain
his hold over Plaintiff, Defendant SHOSHANI periodically wired
Plaintiff some money . . . However, Defendant ZIP and Defendant
SHOSHANI never paid Plaintiff her agreed upon salary, or any
salary for that matter.”); ECF No. 135-1 at DEF-0007568 (March
4, 2010 email from the plaintiff to Shoshani; discussing Zip/MH
matters and writing that “I’m a volunteer”); ECF No. 107-10 at
P0483 (May 30, 2010 email from the plaintiff to Shoshani; “I
know and [u]nderstand fully your priorities lie with the company
and true employees come first, you don[’]t need to do anything
for me, I’ve taken this all on myself and am not an employee of
Zip but a self imposed volunteer.”) (emphasis added). This
conclusion is also supported by Shoshani’s testimony that he
financially supported the plaintiff not because she was owed
income or wages, but because she was his girlfriend. Shoshani
Tr. 67:8-68:25, 126:5-25.
Likewise, there are genuine disputes of material fact
underpinning the second step of the employer/employee test. As
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discussed above, the parties dispute whether Zip/MH ever paid
the plaintiff any salary or wages, either in the form of cash
payments or fringe benefits. Additionally, the extent to which
Zip/MH exercised control over the plaintiff cannot be resolved
at this stage. For example, the defendants contend that the
plaintiff was free to come and go from the Zip/MH offices as she
pleased and that, at certain times, the plaintiff did not show
up to the Zip/MH offices for weeks or months at a time. Def.’s
56.1 ¶¶ 11-12. By contrast, the plaintiff highlights deposition
testimony in which Zip/MH employees explained that they
witnessed the plaintiff work out of the Zip/MH offices daily.
Pl.’s Response to Def.’s 56.1 ¶¶ 11-12. Likewise, the defendants
argue that the plaintiff helped Shoshani with tasks “without
much oversight,” while the plaintiff contends that Shoshani
oversaw all of the plaintiff’s work. Def.’s 56.1 ¶ 13; Pl.’s
Response to Def.’s 56.1 ¶ 13.
Finally, the general nature of the relationship between
Zip/MH and the plaintiff is unclear given the conflicting record
evidence. The defendants appear to have represented to third
parties that the plaintiff was employed by Zip/MH by giving her
business cards listing her as “COO” and an @zipaviation.com
email address. Shoshani likewise represented that the plaintiff
was employed by Zip/MH in the Letter of Recommendation. On the
other hand, Shoshani testified and affirmed that he never hired
19

the plaintiff to work for Zip/MH, Def.’s 56.1 ¶ 15, and there is
some evidence that suggests that the plaintiff understood
herself to be an unpaid volunteer.
In sum, the question of whether the plaintiff was employed
by Zip/MH within the meaning of the NYSHRL and NYCHRL turns on
disputed material questions of fact. Accordingly, the
defendants’ motion for summary judgment with respect to the
plaintiff’s NYSHRL and NYCHRL claims is denied.
ii. FLSA and NYLL Claims
In determining whether a plaintiff is employed by a
defendant in the FLSA context, courts apply the “economic
reality test,” which weighs:
(1) the degree of control exercised by the employer
over the workers,
(2) the workers’ opportunity for profit or loss and
their investment in the business,
(3) the degree of skill and independent initiative
required to perform the work,
(4) the permanence or duration of the working
relationship, and
(5) the extent to which the work is an integral part
of the employer’s business.
Brock v. Superior Care, Inc., 840 F.2d 1054, 1058-59 (2d Cir.
1988). “No one of these factors is dispositive; rather, the test
is based on the totality of the circumstances.” Id. at 1059.
Similarly, under the NYLL, “the critical inquiry in
determining whether an employment relationship exists pertains
to the degree of control exercised by the purported employer
20

over the results produced or the means used to achieve the
results.” Bynog v. Cipriani Grp., Inc., 802 N.E.2d 1090, 1092-93
(N.Y. 2003). Factors relevant to assessing control include
whether the worker (1) worked at her own convenience; (2) was
free to engage in other employment; (3) received fringe
benefits; (4) was on the employer’s payroll; and (5) was on a
fixed schedule. Id. Courts in the Second Circuit routinely
conduct analyses under the FLSA and NYLL simultaneously in view
of the “substantial similarity” of the statutes. See, e.g.,
Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339, 360 (E.D.N.Y.
2015).
The issue of whether the plaintiff was employed by Zip/MH
under the NYLL and FLSA cannot be resolved at this stage for
largely the same reasons as discussed above with respect to the
claims arising under the NYCHRL and NYSHRL. There is conflicting
evidence in the record regarding whether the plaintiff was
compensated by Zip/MH for her work, whether and to what extent
the plaintiff worked on a fixed schedule, the amount of control
and supervision the defendants exercised over the plaintiff’s
work, and the general nature of the relationship between Zip/MH
and the plaintiff. Accordingly, the defendants’ motion for
summary judgment dismissing the plaintiff’s NYLL and FLSA claims
is denied.

21

B. Breach of Contract
The plaintiff contends that between June and October 2007,
Shoshani and the plaintiff discussed and orally agreed to the
terms of her employment. The plaintiff alleges that this
constituted an oral contract that the defendants breached. The
defendants move for summary judgment on this claim, arguing that
there is no evidence in the record supporting the existence of
an oral contract and that even if there were, any such contract
would be unenforceable. 5
To succeed on a claim for breach of contract under New York
law, a plaintiff must demonstrate “(1) the existence of an
agreement, (2) adequate performance of the contract by the
plaintiff, (3) breach of contract by the defendant, and (4)
damages.” Eternity Glob. Master Fund Ltd. v. Morgan Guar. Tr.
Co., 375 F.3d 168, 177 (2d Cir. 2004) (quoting Harsco Corp. v.
Segui, 91 F.3d 337, 348 (2d Cir. 1996)). 6 Additionally, “it is
well settled that for a contract to be valid[,] the salient
terms must be set forth in sufficient detail so that the
The defendants also moved for summary judgment dismissing the plaintiff’s
claim for breach of the Consulting Agreement. The plaintiff failed to address
this issue in her brief in opposition to the defendants’ motion for summary
judgment. Accordingly, summary judgment dismissing the plaintiff’s claim for
breach of contract based on the Consulting Agreement is granted. See Scott v.
JPMorgan Chase & Co., No. 13-cv-646, 2014 WL 338753, at *10 (S.D.N.Y. Jan.
30, 2014) (a plaintiff forfeits any claim not defended in the
plaintiff’s brief in opposition).
5

The plaintiff alleges that the oral agreement was made in New York, SAC ¶¶
20-22, and the parties do not dispute that New York law applies to this
claim.

6

22

parties’ intention may be ascertained with a reasonable degree
of certainty.” Time, Inc. v. Kastner, 972 F. Supp. 236, 239
(S.D.N.Y. 1997); see also Houlahan v. Raptor Trading Sys., Inc.,
No. 16-cv-9620, 2020 WL 2836255, at *9 (S.D.N.Y. May 30, 2020)
(citing Opals on Ice Lingerie v. Bodylines Inc., 320 F.3d 362,
372 (2d Cir. 2003)).
The parties dispute whether the plaintiff in fact entered
into an oral contract with any of the defendants. However,
whatever the discussions among the parties were, any oral
agreement would be unenforceable because the record is devoid of
evidence establishing the contract’s essential terms, such as
the plaintiff’s job responsibilities, benefits, compensation, or
the duration of the contract. The plaintiff did not delineate
any of the specific terms of the putative oral contract at her
deposition or in the affidavit that she submitted in opposition
to the defendants’ motion for summary judgment. The plaintiff
simply described the oral contract as “a mutual agreement that
[the plaintiff] would move to New York and work for Zip” but did
not explain any of its material terms. Roelcke Aff. ¶ 9. Any
alleged oral agreement is unenforceable in view of this failure
of proof. See, e.g., Houlahan, 2020 WL 2836255, at *9 (severance
agreement that does not contain the amount of the severance is
unenforceable); Time, Inc., 972 F. Supp. at 239 (“[W]here a
contract does not have such essential terms as the time or
23

manner of performance or price to be paid, the contract is
unenforceable.”); cf. Geller v. Reuben Gittelman Hebrew Day
School, 826 N.Y.S.2d 103, 104 (App. Div. 2006) (material terms
of an employment agreement include “salary and the amount of
services required”).
The plaintiff argues alternatively that the defendants
breached an implied-in-fact contract. The elements of an
implied-in-fact contract are the same as those of an express
contract. Maas v. Cornell Univ., 721 N.E.2d 966, 970 (N.Y.
1999). Under New York law, “a contract may be implied where
inferences may be drawn from the facts and circumstances of the
case and the intention of the parties as indicated by their
conduct.” Axiom Inv. Advisors, LLC v. Deutsche Bank AG, No. 15-cv9945, 2018 WL 4253152, at *9 (S.D.N.Y. Sept. 6, 2018). The party
asserting the existence of an implied-in-fact contract must supply “in
nonconclusory language, the essential terms of the parties’ contract,
including those specific provisions of the contract upon which
liability is predicated . . . .” Lapine v. Seinfeld, 918 N.Y.S.2d 313,
318 (Sup. Ct. 2011) (quoting Cangilia v. Chicago Tribute-New York
Syndicate, Inc., 612 N.Y.S.2d 146, 147 (App. Div. 1994)); see also

I.G. Second Generation Partners, L.P. v Duane Reade, 793
N.Y.S.2d 379, 381-82 (App. Div. 2005) (explaining that an
implied-in-fact contract requires a showing that there was a
meeting of the minds).

24

The claim that the defendants breached an implied-in-fact
contract is absent from the SAC and was raised for the first
time in the plaintiff’s opposition brief. In any event, any
argument based on an implied-in-fact contract theory is without
merit. As with the alleged oral contract, the plaintiff does not
point to anything in the record that evidences what the terms of
the putative implied-in-fact contract would have been. The
plaintiff cannot show that there was a meeting of the minds
without evidence of the contract’s essential terms, and
consequently any implied-in-fact theory fails.
Accordingly, the defendants’ motion for summary judgment
dismissing the plaintiff’s claim for breach of contract is
granted.
C. Quantum Meruit and Unjust Enrichment
The plaintiff claims that she is entitled to compensation
for her work under a quantum meruit and unjust enrichment
theory. Quantum meruit and unjust enrichment are equitable
doctrines available when an express contract is unenforceable.
Milton Abeles, Inc. v. Farmers Pride, Inc., 603 F. Supp. 2d 500,
503–04 (E.D.N.Y. 2009). Under New York law, quantum meruit and
unjust enrichment claims may be analyzed as a single claim. MidHudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp.,
418 F.3d 168, 175 (2d Cir. 2005). To recover in quantum meruit
under New York law, a plaintiff must establish: “(1) the
25

performance of services in good faith, (2) the acceptance of the
services by the person to whom they are rendered, (3) an
expectation of compensation therefor, and (4) the reasonable
value of the services.” Revson v. Cinque & Cinque, P.C., 221
F.3d 59, 69 (2d Cir. 2000). Regarding the third element, the
plaintiff’s expectation of compensation must be reasonable under
the circumstances. See Learning Annex Holdings, LLC v. Rich
Glob., LLC, 860 F. Supp. 2d 237, 244 (S.D.N.Y. 2012).
The defendants contend that the plaintiff’s unjust
enrichment and quantum meruit claims fail because the plaintiff
did not reasonably expect to be paid for her work for Zip/MH.
The defendants point to evidence including a 2007 email from
Shoshani to the plaintiff in which Shoshani explained that he
could not afford the plaintiff’s requested salary. See ECF No.
107-12. The defendants also highlight the communications
discussed above in which the plaintiff appears to acknowledge
that she was doing at least some work for Zip/MH on a voluntary
basis.
On the other hand, the plaintiff testified that she moved
to New York on the understanding that she was accepting a job at
Zip/MH and would be compensated for her work. Pl.’s Response to
Def.’s 56.1 ¶ 18. The conclusion that the plaintiff reasonably
expected to be paid for her work is also corroborated by the
plaintiff’s testimony that she received approximately $21,000
26

from Zip/MH during her first year of work and that she
understood those payments to represent a portion of the wages
she was owed. Id. ¶ 19.
Because the question of whether the plaintiff reasonably
expected to be paid for her work at Zip/MH hinges on disputed
facts and evidence, it would be inappropriate to resolve these
claims at the summary judgment stage. Accordingly, the
defendants’ motion for summary judgment dismissing the unjust
enrichment and quantum meruit claims is denied.
D. Assault Claims
The plaintiff advances three claims that the parties
collectively refer to as the “assault claims:” (1) a claim of
IIED; (2) a claim alleging civil violations of Sections 130.35,
130.50, and 130.70 of the New York Penal Code, which
respectively proscribe rape, criminal sexual acts, and
aggravated sexual abuse (see N.Y. Penal Law §§ 130.35, 130.50,
130.70); and (3) a claim alleging violations of the New York
City Gender Motivated Violence Protection Act, which affords a
civil cause of action to victims of “crime[s] of violence
motivated by gender” (see N.Y.C. Admin. Code § 8-904). These
claims are each premised on the plaintiff’s allegations that
Shoshani physically and sexually abused her. As discussed above,
the parties vigorously dispute the veracity of these
allegations. See Def.’s 56.1 ¶ 28; Pl.’s Response to Def.’s 56.1
27

¶ 28. The defendants argue that the Court may resolve the
question of whether Shoshani assaulted the plaintiff at the
summary judgment stage because the plaintiff’s allegations are
incredible, uncorroborated, and contradictory.
“It is axiomatic that assessments of credibility and
choices between conflicting versions of the events are matters
for the jury, not for the court on summary judgment.” Ricks v.
O’Hanlon, 07-cv-9849, 2010 WL 245550, at *6 (S.D.N.Y. Jan. 19,
2010) (quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.
1996)); see also Hayes v. N.Y. Dep’t of Corr., 84 F.3d 614, 619
(2d Cir. 1996) (“In applying [the summary judgment] standard,
the court should not weigh evidence or assess the credibility of
witnesses.”). However, “while it is undoubtedly the duty of
district courts not to weigh the credibility of the parties at
the summary judgment stage,” the court may discredit a
plaintiff’s evidence and grant summary judgment “in the rare
circumstance where the plaintiff relies almost exclusively on
his own testimony, much of which is contradictory and
incomplete.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d
Cir. 2005).
The defendants argue that they are entitled to summary
judgment dismissing the plaintiff’s assault claims because the
sole evidence supporting these claims is her own testimony,
which, according to the defendants, is internally inconsistent
28

and contradicted by the testimony of Shoshani and other
witnesses. The defendants also point to three declarations: two
from third parties who formerly associated with the plaintiff
and essentially contend that the plaintiff has a propensity for
extortion and blackmail, and a third from a putative expert who
concluded that the plaintiff’s claims of psychological trauma
are of “questionable reliability.” See ECF No. 107-18 at 22.
However, as the plaintiff notes, there is evidence in the
record in addition to her own testimony that tends to
corroborate her claims, including the testimony of the
plaintiff’s childhood friend and of Zip/MH’s general manager.
See, e.g., Pl.’s Response to Def.’s 56.1 ¶ 28. While the
defendants have identified certain apparent inconsistencies in
the plaintiff’s testimony, it is far from clear that the
plaintiff’s testimony as a whole “is so patently unreliable that
it could not be given any weight by a reasonable juror.”
Domenech v. Parts Auth., Inc., 653 F. App’x 26, 28 (2d Cir.
2016). The question of whether the alleged assaults occurred
“inherently involves credibility determinations that should be
resolved by a jury,” see id., and the defendants are free to
highlight any inconsistent testimony for the jury at trial. But
it would be inappropriate at the summary judgment stage, on this
record, for the Court to “step into the factfinding role and to
determine how best to resolve conflicting interpretations about
29

material facts.” Yu Zhang v. Sabrina USA Inc., No. 18-cv-12332,
2021 WL 1198932, at *3 (S.D.N.Y. Mar. 30, 2021) (“Although there
is much to suggest that the Plaintiff's self-serving and
contradicted testimony is unreliable, the existence of that
testimony in the record is enough to render summary judgment
improper”). 7
Accordingly, the defendants’ motion for summary judgment
dismissing the assault claims is denied.
IV. The Plaintiff’s Motion for Summary Judgment
The defendants advance three counterclaims: (1) abuse of
process; (2) IIED; and (3) conversion of the Nissan 350Z. The
plaintiff moves for summary judgment on each of these claims. 8
A. Abuse of Process
It is undisputed that after the plaintiff and Shoshani
broke up, the plaintiff initiated several judicial proceedings

Summary judgment is inappropriate even if the declarations submitted by the
defendants were considered. However, the declarations of the two lay
witnesses concern allegations that the plaintiff previously engaged in
blackmail and extortion in circumstances that are irrelevant in this case.
These declarations serve no apparent purpose other than as improper evidence
that the plaintiff acted in conformity with her alleged bad character in the
present circumstances. See Fed. R. Evid. 404(b)(1) (“Evidence of any other .
. . act is not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the character”).
Because the defendants have failed to demonstrate that the declarations are
admissible for any proper purpose, they should not be considered on a motion
for summary judgment. See, e.g., Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d
Cir. 1997). And the defendants’ expert’s declaration, even if it were
admissible, does not render the plaintiff’s testimony so implausible that no
reasonable jury could find it credible.
7

Judge Batts previously dismissed the defendants’ other counterclaims at the
motion to dismiss stage. See Roelcke II, 2019 WL 10856680, at *8.

8

30

involving the defendants, including this lawsuit. It is further
undisputed that in certain of these proceedings, the plaintiff
obtained orders of protection against Shoshani. The defendants
contend this course of action constituted abuse of process. 9
Under New York law, an abuse of process claim lies against
a party who (1) employs 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. Roelcke II, 2019 WL 10856680, at *5 (citing Curiano
v. Suozzi, 469 N.E.2d 1324, 1326 (N.Y. 1984)). A party advancing
an abuse of process claim must also prove actual or special
damages. See Parkin v. Cornell Univ., 583 N.E.2d 939, 943 (N.Y.
1991)
The plaintiff contends that she is entitled to summary
judgment dismissing this claim for five reasons. First, the
plaintiff argues that the defendants’ claim is premised on the
plaintiff’s initiation of lawsuits against the defendants, which
cannot satisfy the first element of abuse of process. The
plaintiff is correct that the “overwhelming weight of authority”
provides that “the institution of a civil action by summons and
The defendants’ claim for abuse of process is premised solely on the
plaintiff’s conduct with respect to the judicial proceedings discussed above
(see supra Section I.C.i) and not on any of the administrative proceedings
involving the defendants. See Answer and Counterclaims to Plaintiff’s SAC ¶¶
50-54.
9

31

complaint is not legally considered process capable of being
abused.” Manhattan Enter. Grp., LLC v. Higgins, No. 18-cv-6396,
2019 WL 4601524, at *4 (S.D.N.Y. Sept. 22, 2019), aff’d, 816 F.
App’x 512 (2d Cir. 2020) (quoting Curiano, 469 N.E.2d at 1326)
(collecting cases). Instead, “to qualify as legal process for
purposes of an abuse-of-process claim, the court-issued writ
must not only direct or demand that the person to whom it is
directed shall perform or refrain from doing some prescribed
act, but also interfere with one’s person or property.”
Manhattan, 816 F. App’x at 514 (quoting Williams v. Williams,
246 N.E.2d 333, 335 (N.Y. 1969)) (affirming dismissal of abuse
of process claim based on allegations that the defendants “filed
and prosecuted a series of duplicative, frivolous, and malicious
lawsuits aimed at harassing” the plaintiffs).
Accordingly, the defendants’ claim for abuse of process is
without merit to the extent that it is premised on the
initiation of this litigation or the prosecution of the small
claims action, which was dismissed without the issuance of
relevant process. However, the plaintiff also obtained orders of
protection from the New York State Family Court and the
Connecticut Superior Court and sought to hold Shoshani in
contempt of the New York order of protection. The orders of
protection commanded Shoshani to, among other things, refrain
from being in physical proximity or communicating with the
32

plaintiff and to surrender his firearms. ECF No. 100-10 at DEF0011346-48; ECF No. 100-11 at DEF-0011510. These orders
therefore constituted regularly issued process that compelled
Shoshani to perform and abstain from certain prescribed acts,
satisfying the first element of abuse of process. See, e.g.,
Dixon v. Roy, No. 41346/07, 2008 WL 4635548, at *4-5 (N.Y. Sup.
Ct. 2008) (obtaining a temporary restraining order satisfied the
first element of abuse of process); cf. Casa de Meadows Inc.
(Cayman Islands) v. Zaman, 908 N.Y.S.2d 628, 632 (App. Div.
2010) (affirming dismissal of abuse of process claim; explaining
that “process did not issue” because the “plaintiffs’ request
for a temporary restraining order was denied.”).
Second, the plaintiff argues that the defendants have
failed to establish that the plaintiff intended to harm Shoshani
without justification and used process in order to obtain an
improper collateral objective. However, Shoshani declared and
testified that the allegations that resulted in the issuance of
the orders of protection—including allegations that Shoshani
physically abused, threatened, and stalked the plaintiff—were
fabricated by the plaintiff. See, e.g., ECF 104-5 ¶¶ 19, 22, 27
(“Shoshani Aff.”); Shoshani Dep. 169:16-171:17. If a jury
credits Shoshani’s version of events and discredits the
plaintiff’s, then a jury may also reasonably conclude that the
plaintiff had no legitimate justification to seek the orders of
33

protection because Shoshani did not actually pose a threat to
the plaintiff. Moreover, if there were no legitimate
justification to seek the orders of protection, then a jury may
reasonably conclude that the plaintiff used process to obtain
the improper collateral objectives of inflicting economic harm
on Shoshani and impeding his ability to carry firearms, which
Shoshani represents he sometimes must do in connection with his
work. Shoshani Aff. ¶ 25; Bd. of Educ. of Farmingdale Union Free
Sch. Dist. v. Farmingdale Classroom Teachers Ass’n, Inc., Loc.
1889 AFT AFL-CIO, 343 N.E.2d 278, 283-84 (N.Y. 1975) (the
“premediated infliction of economic injury without economic or
social excuse or justification is an improper objective which
will give rise to a cause of action for abuse of process.”).
Third, the plaintiff contends that the defendants cannot
prove actual or special damages. However, Shoshani declared that
the defendants incurred substantial legal expenses litigating
the proceedings initiated by the plaintiff. Shoshani Aff. ¶ 27.
These expenses can constitute damages for an abuse of process
claim. See, e.g., Parkin, 583 N.E.2d at 943.
Fourth, the plaintiff argues that the defendants claim is
barred by the Noerr-Pennington doctrine, which “generally
immunizes from liability a party’s commencement of a prior court
proceeding.” T.F.T.F. Capital Corp. v. Marcus Dairy, Inc., 312
F.3d 90, 93 (2d Cir. 2002). However, the Noerr-Pennington
34

doctrine does not foreclose claims that fall within the “sham
exception,” which “excludes any abuse of process that bars
access to the courts, such as unethical conduct in the setting
of the adjudicatory process or the pursuit of baseless,
repetitive claims.” Shetiwy v. Midland Credit Mgmt., 980 F.
Supp. 2d 461, 475 (S.D.N.Y. 2013); Friends of Rockland Shelter
Animals, Inc. (FORSA) v. Mullen, 313 F. Supp. 2d 339, 343
(S.D.N.Y. 2004) (“Fraudulent acts are not protected by
the Noerr-Pennington doctrine when they occur in the
adjudicatory process or where false information is filed with an
administrative agency with deceptive intent.”). The defendants
contend that the plaintiff obtained the orders of protection
through false statements and for improper purposes. Accordingly,
the Noerr-Pennington doctrine does not bar the defendants’ claim
on this motion for summary judgment.
Finally, the plaintiff contends that the defendants’ claim
is untimely. The applicable statute of limitations in New York
for intentional torts, including abuse of process, is one year.
N.Y. C.P.L.R. § 215(3). Where, as here, the defendants’
counterclaim is based on state law, the tolling provisions of
N.Y. C.P.L.R. § 203(d) apply. See Mopex, Inc. v. Am. Stock
Exchange, LLC, No. 02-cv-1656, 2002 WL 342522, at *7 (S.D.N.Y.
Mar. 5, 2002). Section 203(d) provides that the statutes of

35

limitations for counterclaims are tolled upon the filing of the
complaint.
The original complaint in this action was filed on August
10, 2015, making the abuse of process claim timely if it accrued
after August 10, 2014. Because the plaintiff did not begin
seeking orders of protection until February 10, 2015, the
defendants’ claim is timely. 10
Accordingly, the plaintiff’s motion for summary judgment
dismissing the defendants’ counterclaim of abuse of process is
denied.
B. IIED
The defendants contend that the plaintiff intentionally
inflicted emotional distress on Shoshani by engaging in a
campaign of harassment that included: (1) initiating judicial
and administrative proceedings involving the defendants on false
pretenses; (2) falsely accusing Shoshani of physical and sexual
abuse in this lawsuit and publicly discussing these allegations
with media outlets; (3) having allegedly harassing
communications with Shoshani’s ex-wife and ex-sister-in-law.

The plaintiff’s argument to the contrary is based on an erroneous
interpretation of Section 203(d). The plaintiff relies on the second clause
of Section 203(d), which provides that if a counterclaim would otherwise be
untimely by the time the complaint is filed, then the counterclaim is not
time-barred if it “arose from the transactions, occurrences, or series of
transactions or occurrences, upon which a claim asserted in the complaint
depends.” However, the claim of abuse of process was timely at the time that
the complaint was filed. Accordingly, this provision of Section 203(d) is
irrelevant.

10

36

Under New York law, intentional infliction of emotional
distress has four elements: “(1) extreme and outrageous conduct,
(2) intent to cause severe emotional distress, (3) a causal
connection between the conduct and the injury, and (4) severe
emotional distress.” Bender v. City of New York, 78 F.3d 787,
790 (2d Cir. 1996) (citing Howell v. N.Y. Post Co., 612 N.E.2d
699, 702 (N.Y. 1993)). Typically, in order to sustain an IIED
claim, 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.” Fischer v. Maloney, 373
N.E.2d 1215, 1217 (N.Y. 1978).
Although the “standard of outrageous conduct is strict,
rigorous and difficult to satisfy . . ., that is not the case
when there is a deliberate and malicious campaign of harassment
or intimidation.” Rich v. Fox News Network, LLC, 939 F.3d 112,
123 (2d Cir. 2019) (quoting Scollar v. City of New York, 74
N.Y.S.3d 173, 178 (App. Div. 2018)). In this context, the
question is whether the complained of actions “under the
totality of the circumstances[] amounted to a deliberate and
malicious campaign.” Id.
The plaintiff first argues that her conduct was not extreme
and outrageous as a matter of law. However, given the disputed
evidence in the record, a reasonable jury could conclude that
37

the plaintiff engaged in a campaign of harassment in which the
plaintiff (1) publicly disseminated fabricated physical and
sexual assault allegations against Shoshani; (2) maliciously
subjected the defendants to judicial and administrative
proceedings based on false pretenses; and (3) made harassing
communications to Shoshani’s ex-wife and ex-sister-in-law. 11
Courts have found that campaigns of harassment involving
similarly outrageous conduct could satisfy the first element of
IIED. See, e.g., 164 Mulberry Street Corp. v. Columbia Univ.,
771 N.Y.S.2d 16, 22-23 (App. Div. 2004) (plaintiff-restaurateurs
stated a claim for IIED based on allegations that the defendant
wrote letters to the plaintiffs falsely accusing the plaintiffs
of having caused severe food poisoning); Flatley v. Hartmann,
525 N.Y.S.2d 637, 638 (App. Div. 1988) (plaintiff stated a claim
for IIED based on allegations that the defendant “made repeated
telephone calls to the plaintiff’s house only to hang up as
someone answered”); Green v. Fischbein Olivieri Rozenholc &
Badillo, 507 N.Y.S.2d 148, 152 (App. Div. 1986) (campaign by
landlord who, among other things, brought numerous unfounded
eviction proceedings and other actions against the plaintiff
plausibly constituted extreme and outrageous conduct); see also
Allam v. Meyers, No. 09-cv-10580, 2011 WL 721648 (S.D.N.Y. Feb.

The plaintiff vigorously disputes these allegations, but the Court cannot
resolve these issues of fact on this motion for summary judgment.
11

38

24, 2011) (explaining that “courts applying New York law have
found the existence of a ‘campaign’ even absent (a)
‘unrelenting’ harassment directed at a single plaintiff; and (b)
physical threats”).
Next, the plaintiff argues that the defendants’ claim of
IIED should be dismissed because it is duplicative of the
defendants’ claim for abuse of process. The plaintiffs correctly
note that a “claim for IIED may not be sustainable where the
conduct complained of falls well within the ambit of other tort
liability.” Turley v. ISG Lackawanna Inc., 774 F.3d 140, 157 (2d
Cir. 2014); McGrath v. Nassau Health Care Corp., 217 F. Supp. 2d
319, 335 (E.D.N.Y. 2002) (“IIED claims that are duplicative of
other tort claims” should be dismissed). However, the claim for
abuse of process is premised solely on the plaintiff’s
initiation of certain judicial proceedings involving Shoshani.
By contrast, the claim of IIED encompasses a broader pattern of
conduct that also includes the initiation of administrative
proceedings, public dissemination of allegedly false claims of
abuse, and allegedly harassing contact with third parties.
Accordingly, the plaintiff’s argument that the two claims are
duplicative is without merit.
Finally, the plaintiff advances the same statute of
limitations argument as she did for the abuse of process claim.
However, for the reasons explained above, any intentional tort
39

counterclaim is timely if the claim accrued within one year
before the complaint was filed. Because the conduct underlying
the defendants’ claim of IIED falls within or postdates that
time period, the claim is timely.
Accordingly, the plaintiff’s motion for summary judgment
dismissing the defendants’ counterclaim of IIED is denied.
C. Conversion
The defendants contend that the plaintiff committed
conversion of the Nissan 350Z when she refused to return the car
to the Shoshani. Under New York law, “conversion takes place
when someone, intentionally and without authority, assumes or
exercises control over personal property belonging to someone
else, interfering with that person’s right of possession.”
Dardashtian v. Gitman, No. 17-cv-4327, 2017 WL 6398718, at *7
(S.D.N.Y. Nov. 28, 2017). To maintain a claim for conversion, a
plaintiff must show that: “(1) the property subject to
conversion is a specific identifiable thing; (2) [the] plaintiff
had ownership, possession or control over the property before
its conversion; and (3) [the] defendant exercised an
unauthorized dominion over the thing in question, to the
alteration of its condition or to the exclusion of the
plaintiff’s rights.” Moses v. Martin, 360 F. Supp. 2d 533, 541
(S.D.N.Y. 2004). “Where the original possession is lawful, a
conversion does not occur until the defendant refuses to return
40

the property after demand by the property’s rightful owner.”
Simpson & Simpson, PLLC v. Lippes Mathias Wexler Friedman LLP,
14 N.Y.S.3d 258, 261 (App. Div. 2015).
The plaintiff argues that she is entitled to summary
judgment dismissing this claim because the plaintiff did not
exercise unauthorized domain over the car. The plaintiff’s
argument fails. Although it is undisputed that the plaintiff had
Shoshani’s permission to use the car for a certain period time,
the defendants contend that in July and August 2012, Shoshani
demanded that the plaintiff return the car and that the
plaintiff failed to do so. See, e.g., ECF No. 116-14, 116-15,
116-16 (repeated demands by Shoshani that the plaintiff return
the car). Because there is evidence in the record that the
plaintiff failed to return the car to Shoshani after he demanded
that she do so, the defendants’ claim for conversion may
proceed.
The plaintiffs also argue that the defendants’ claim is
untimely under the applicable three-year statute of limitations.
See N.Y. C.P.L.R. § 214(3). As discussed above with respect to
IIED and abuse of process, a counterclaim arising out of New
York law is not time barred if it was timely as of the date that
the complaint was filed. See N.Y. C.P.L.R. § 203(d). Therefore,
because conversion has a three-year statute of limitations and
the complaint was filed on August 10, 2015, the defendants’
41

counterclaim is not time barred unless it accrued before August
10, 2012.
The parties agree that the earliest date that a claim of
conversion could have accrued was August 22, 2012-the day that
Shoshani sent the plaintiff the final demand that she return the
car. See ECF No. 115 at 22; ECF No. 128 at 3. Therefore, the
defendants' claim for conversion is timely.
Accordingly, the plaintiff's motion for summary judgment
dismissing the defendants' claim of conversion is denied.
CONCLUSION

The Court has considered all of the arguments of the
parties. To the extent not discussed above, the arguments are
either moot or without merit.
For the foregoing reasons, the defendants' motion for
summary judgment is granted in part and denied in part. The
plaintiff's motion for summary judgment is denied.
The Clerk is directed to close Docket Nos. 102 and 131.
SO ORDERED.
Dated:

New York, New York
November ;f]_, 2021

,q'fu, Gcd~m
'

s.,,

I

'--

\
,John G. Koeltl
~ States District Judge

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