Dimaria et al v. Fasulo et al

Filing 250

ORDER: For the reasons stated on the record at the March 20, 2024 Final Approval (Fairness) Hearing, and as stated in the attached Order, Plaintiffs' 249 Motion to Certify Class, Give Final Approval to Class Action Settlement, Approve Case Contribution Awards, and Release Claims is granted. Ordered by Judge Pamela K. Chen on 3/20/2024. (AH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MARK PALUMBO, ROSARIO PRATO,
)
MAURICIO MARTINEZ, and JOSEPH
)
OVILE as participants and/or former
)
participants of the Pavers and Road Builders )
District Council Pension Fund, Welfare Fund, )
Apprenticeship, Skill Improvement and Safety
)
Fund and the United Plant and Production
)
Workers Local 175 Pension Fund, Welfare
Fund, and Apprenticeship, Skill Improvement )
and Safety Fund, on behalf of themselves and )
)
all persons similarly situated,
)
Plaintiffs,
)
vs.
)
ANTHONY FASULO, ALBERT ALIMENA, )
DOMINICK AGOSTINO, JOHN PETERS, )
ROBERT CHEVERIE, FRANCISCO
)
FERNANDEZ, JAMES KILKENNEY,
)
PHILIP FAICCO, VINCENT MASINO,
)
ANTHONY ROBIBERO and KEITH
LOSCALZO and/or their successors, in their )
capacity as present and former Trustees of the )
)
Pavers and Road Builders District Council
Pension Fund, Welfare Fund, Apprenticeship, )
Skill Improvement and Safety Fund and the )
PAVERS AND ROAD BUILDERS
)
DISTRICT COUNCIL PENSION FUND,
)
WELFARE FUND, and APPRENTICESHIP, )
SKILL IMPROVEMENT AND SAFETY
)
FUND,
)
Defendants.
)

Case No.: 07-CV-797 (PKC) (RML)
ORDER GRANTING FINAL APPROVAL
TO THE PROPOSED SETTLEMENT,
GRANTING FINAL CLASS
CERTIFICATION, APPROVING CASE
CONTRIBUTION AWARDS AND
RELEASING WELFARE CLAIMS

A hearing having been held before this Court (the “Court”) on March 20, 2024,
pursuant to this Court’s Order dated December 1, 2023 (the “Preliminary Approval
Order”), upon a Settlement and Release Agreement dated October 10, 2023 (the
“Settlement Agreement”) filed in the above-captioned action (the “Action”), which along
with the Preliminary Approval Order is incorporated herein by reference; it appearing that
due notice of said hearing has been given in accordance with the aforesaid Preliminary

Approval Order; the respective parties (“Parties”) having appeared by their attorneys of
record; the Court having heard and considered evidence in support of the proposed
settlement (the “Settlement”) set forth in the Settlement Agreement; the attorneys for the
respective Parties having been heard; an opportunity to be heard having been given to all
other persons requesting to be heard in accordance with the Preliminary Approval Order;
the Court having determined that notice to the Class (as defined in Appendix A to this
Order, sometimes referred to individually as “Class Members”) was adequate and
sufficient; and the entire matter of the proposed Settlement having been heard and
considered by the Court,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED, THIS 20th DAY OF
MARCH, 2024, AS FOLLOWS:
1.

This Court finds that (i) it has personal jurisdiction over all parties

and Class Members; (ii) it has subject matter jurisdiction over the claims asserted in the
Action; and (iii) venue is proper.
2.

The court-approved class notices regarding the pendency of this

class action and notice of the Final Approval (“Fairness”) Hearing, which were mailed
directly to the last known addresses of Class Members and posted in the offices of
Defendant Pavers and Road Builders District Council Welfare Fund and non-party United
Plant and Production Workers Local 175 Welfare Fund (“Class Notices”), have been given
to the Class pursuant to, and in the manner directed by, the Preliminary Approval Order.
Proof of the mailing and publication of the Class Notices has been filed with the Court and
full opportunity to be heard has been offered to all Parties to the Action, the Class and

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persons in interest. Moreover, Class Members have been offered the opportunity to object
to the Settlement. The form and manner of disseminating the Class Notices are hereby
determined to have been the best notice practicable under the circumstances and to have
been given in full compliance with each of the requirements of Rule 23 of the Federal Rules
of Civil Procedure (“FRCP”), the Due Process Clause of the United States Constitution,
and applicable law, and it is further determined that all Class Members are bound by this
Order Granting Final Judgment and the Settlement Agreement, as are their spouses,
children, representatives, heirs, administrators, executors, beneficiaries, conservators,
attorneys and assigns except as provided in the Settlement Agreement.
3.

Based on the record of the Action, the Court expressly and

conclusively finds, pursuant to Rules 23(a), 23(b)(1) and 23(g) of the Fed. R. Civ. P., as
follows:
a. that (i) the Class is so numerous that joinder of all members is impracticable,
(ii) there are questions of law and fact common to the Class, (iii) the claims
of Mark Palumbo, Rosario Prato, Mauricio Martinez and Joseph Ovile
(collectively, “Named Plaintiffs”) are typical of the claims of the Class, and
(iv) Named Plaintiffs and their counsel have fairly and adequately protected
the interests of the Class; and
b. that prosecuting separate actions by or against individual Class Members
would create a risk of inconsistent adjudications that would establish
incompatible standards of conduct for Defendants, and adjudications with
respect to individual class members would be dispositive of the interests of

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other class members, and
c. that Named Plaintiffs are adequate and typical representatives of the
Settlement Class that was conditionally certified by this Court by an order
dated December 1, 2023, and have fairly and adequately protected the
interests of the class, and
d. Jennifer S. Smith of the Law Offices of Jennifer Smith PLLC and David
New of the Law Office of David W. New, PC are adequate counsel for the
Class and have fairly and adequately represented the interests of the Class.
4.

The Action is finally certified as a class action pursuant to FRCP

23(a) and 23(b)(1) on behalf of a Class consisting all persons listed on Appendix A to this
Order. Named Plaintiffs Mark Palumbo, Rosario Prato, Mauricio Martinez and Joseph
Ovile are certified as the representatives of the Class. Jennifer S. Smith of the Law Offices
of Jennifer Smith PLLC, One Liberty Plaza, 165 Broadway, 23rd Floor, New York, NY
10006, and David W. New of the Law Office of David W. New, PC, PO Box 447,
Rutherford, NJ 07070, are certified as Class Counsel pursuant to FRCP 23(g).
5.

The Settlement Agreement and the terms of the Settlement as

described in the Settlement Agreement are found to be fair, reasonable, adequate, and in
the best interests of the Class, and are hereby approved pursuant to FRCP 23(e).
6.

The Parties are hereby authorized and directed to comply with and

to implement the Settlement in accordance with the terms and provisions set forth in the
Settlement Agreement, and the Clerk of the Court is directed to enter and docket this Order
Granting Final Approval.

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7.

This Order Granting Final Approval shall not constitute any

evidence or admission by any party herein that any acts of wrongdoing have been
committed by any of the Parties to the Action and should not be deemed to create any
inference that there is any liability therefor.
8.

The Court hereby approves the total amount of the Settlement Fund

of One Million Nine Hundred Twenty-Five Thousand Dollars ($1,925,000.00) to fully
resolve and satisfy the Welfare Claims, to be paid by Defendants in the manner and within
the time specified in the Settlement Agreement.
9.

Named Plaintiffs Mark Palumbo, Rosario Prato, Mauricio Martinez

and Joseph Ovile are hereby awarded $1,500 each (“Case Contribution Awards”) in order
to reimburse them for the time and expenses they incurred, including their time spent on
prosecuting the Action, which amount the Court finds to be fair and reasonable and which
Case Contribution Awards shall be paid by Defendants from the Settlement Fund to said
Named Plaintiffs in accordance with the terms of the Settlement Agreement.
10.

The proposed Settlement with the Defendants, which is reflected in

the Settlement Agreement and exhibits attached to the Declaration of Jennifer S. Smith as
Exhibit “D” and incorporated by reference herein and made a part of this Order, appears to
have been negotiated at arms-length and appears to be the product of serious, informed,
non-collusive negotiations, has no obvious deficiencies, and will not improperly grant
preferential treatment to the class representatives or segments of the class. The proposed
Settlement appears to be fair, reasonable, adequate and in the best interests of the Class
when balanced against the potential outcome of further litigation relating to class

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certification, defenses, liability and damages, and will avoid substantial costs, delay and
risks that would be presented by the further prosecution of the litigation.
11.

The Court finds that no objections to the Settlement were received

from Class Members.
12.

By operation of this Order Granting Final Judgment on all claims

remaining in this Action (the “Welfare Claims”), and except as to such rights or claims as
may be created by the Settlement Agreement, each Class Member (the “Releasors”) shall
be deemed to have fully and irrevocably released and discharged (a) the Defendants, any
and all of their past and present parents, subsidiaries, divisions, affiliates, related entities,
employee benefit, welfare, and/or training plans or funds, successors and assigns and any
and all of their past and present directors, officers, agents, contractors, trustees,
administrators, attorneys, employees and assigns (whether acting as agents for Defendants,
their affiliates or related entities); and (b) the Named Plaintiffs, their heirs, executors,
administrators, trustees, legal representatives, successors and assigns; (Defendants and
Named Plaintiffs are collectively referred to as “Releasees”) from any and all claims,
demands, causes of action and liabilities including, without limitation, all claims for
damages of any kind, interest, attorneys’ fees and costs, based on, arising out of, or related
to the Welfare Claims that were or could have been raised in this Action, by reason of any
act, omission, transaction or occurrence, that Releasors ever had, now have or may have
against any and/or all of the Releasees up to and including the date of execution of the
Settlement Agreement, under any contract, statute, regulation, agreement, duty or
otherwise including, but not limited to punitive damages, attorneys' fees and costs. This

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release shall not affect the right of Class Members or their beneficiaries to claim any
pension or welfare benefits from the Defendants, Local 175 Welfare Fund or Local 175
Training Fund to which they remain entitled under the terms of the relevant plan
documents.
13.

The Releasors shall be bound by the Settlement Agreement and all

of its terms and all determinations and judgments in the matter concerning the Settlement,
including, but not limited to, the mutual releases provided for in the Settlement Agreement.
14.

The Court hereby retains jurisdiction relating to the administration,

implementation, enforcement, and interpretation of the Settlement Agreement and the
Order Granting Final Approval. The Court may issue such related orders as needed to
effectuate the final approval of the Settlement Agreement and its implementation.
IT IS SO ORDERED.
Dated this 20th day of March, 2024.

/s/ Pamela K. Chen
HON. PAMELA K. CHEN
United States District Judge

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APPENDIX A
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MICHAEL ABBATE
DOMINICK AGOSTINO
ROCCO AGOSTINO
ANGELO ALAIMO
SALVATORE G. ALAIMO
GIOACCHINO ALAIMO
ROSARIO ARNONE
SALVATORE ARNONE
ANTONIO ASTUTO
GIOACCHINO AUGELLO
EDGAR F. AUQUILLA
MICHAEL A. BARRETTO
MICHAEL BARTILUCCI
ROLAND F. BEDWELL
JHOANI D. BETANCES
EDWARD BOLIJONIS
ALVIN A. BRATHWAITE
DOMENCIO F. BRUNO
NICHOLAS CACACE
MANUEL CANDO
ROBERT CARAMANNO
JOSEPH T. CARAMANNO
FRANCO CARDILLO
DERECK CARTER
MARCELINO CASTILLO
WILL R. CASTILLO
JESSIE CHAMBERS
JOHN A. CHIARELLI
CHARLIE CINQUEMANI
ANDREW CINQUEMANI
CARMELO CINQUEMANI
GUISEPPE CINQUEMANI
CARMINE J. COMITO
ANTONIO CONTE
PASQUALE CONTE
JOAQUIM C. CORREA
NELSON CRUZ
JAMES V. DADABO
LOUIS F. DADABO
REGINALD DAVIS
VICTOR DE GENESTE
AURELIO DELIZ
GIUSEPPE DI CARO
ANTHONY DI MAIO
CALOGERO DI MARIA
WILLIAM DOUGHTY
GENNARO ELVEZIO
CALOGERO FALZONE
CHARLIE FALZONE
MICHAEL FARRELL

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MICHAEL FERMIN
GREGORY J. FERRO
KENNETH S. FERST
PATRICK FOGARILE
SALVATORE, SR. GAMBINO
JOSEPH GERMANO
ROBERT GOLABEK
LUIS R. GOMEZ
LOUIS T. GONZALEZ
GUSTAVO GUERRERO
TIMOTHY A. HINDS
TODD HOLDER
PASQUALE LABATE
ROBERT A. LE CRICHIA
PHILIP G. LENTINI
ALFONSO LETO
JAMES J. LOMBARDI
VINCENZO LUPO
ROBERT MARESCO
MAURICIO MARTINEZ
MEDRADO MAZA
ALFONSO MESSINA
GIOVANNI MESSINA
GIUSEPPE MICELI
JOHN A. MORELLO
PETER MORELLO
WILLIAM J. MORTENSEN
FELICE MOTTOLA
UBALDO MURIALE
SHANNON D. OLIVER
JOSEPH S. OVILE
MARK A. PALUMBO
CHARLES PARKER, JR.
GLEN PATRICK
PIETRO PECORARO
SALVATORE PECORARO
STEFANO PECORARO
MICHAEL A. PIETRANICO
ANGELO PIRRERA
JOSEPH POPOLIZIO
ROSARIO PRATO
CHARLIE PRIOLO
MICHAEL T. PROPER
MARTIR RAMIREZ
LEONARDO RANDAZZO
DAVID RENDON
CESAR RODRIGUEZ
STEVE ROJAS
GREG SCHMALTZ
GEORGE SCHMIDT

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GIOVANNI SCIOVE
NICHOLAS V. SCORCIA
CONSTANTINE SEMINATORE
PAUL SEMPLICE
SLADE T. SHAW
ANTHONY SHUKRY
CHRISTOPHER J. SMITH
LEONARD SMITH
WILLIAM SMITH JR
MICHAEL SOLOMON
CARLO SORRENTINO
RAYMOND SOTO
MASSIMO SPANO
ABIP STEBLEVA

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DZELADIN STEBLEVA
VULNET STEBLEVA
GERARD TESTANI
PETER L. TESTANI
VITO TEUTONICO
DEVON A. THOMAS
VINCENT TOPPI
GIUSEPPE TRIBUZIO
MATTHEW TUMMINELLO
JOSEPH VITALE
LYNDON WATTERS
KEVIN WHITE
CARLOS R. ZUNIGA