Annuity, Pension, Welfare and Training Funds of the International Union of Operating Engineers Local 14-14B, AFL-CIO et al v. Central Enterprises, Inc.

Filing 23

MEMORANDUM AND ORDER: Plaintiffs motion for summary judgment is granted and relief is awarded in the amount of $17,624.64. See attached memorandum & order for details. Ordered by Judge Frederic Block on 10/15/2012. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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THE ANNUITY, PENSION, WELFARE and
TRAINING FUNDS of the INTERNATIONAL
UNION of OPERATING ENGINEERS LOCAL
14-14B, AFL-CIO by its TRUSTEES EDWIN L.
CHRISTIAN, CHRIS CONFREY, JOHN
CRONIN, DON DENARDO, RENZO
COLLAVINO, DANIEL NOESGES, DENISE M.
RICHARDSON, and JOHN F. O’HARE,

MEMORANDUM AND ORDER
Case No. 11-CV-973 (FB)

Plaintiffs,
-againstCENTRAL ENTERPRISES, INC.,
Defendant.
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Appearances:
For the Plaintiffs:
JAMES M. STEINBERG, ESQ.
Brady McGuire & Steinberg, P.C.
303 South Broadway, Suite 234
Tarrytown, NY 10591

For the Defendant:
EDWARD B. SAFRAN, ESQ.
88 Pine Street, 7th Floor
New York, NY 10005

BLOCK, Senior District Judge:
Plaintiffs are the Annuity, Pension, Welfare, and Training Funds of the
International Union of Operating Engineers Local 14-14B (“the Local 14 Trust Funds”). On
March 1, 2011, the Local 14 Trust Funds filed suit against Central Enterprises, Inc. (“Central
Enterprises”), alleging that Central Enterprises violated the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. § 1101 et seq., and the Labor Management
Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185, by failing to make required contributions

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to employee benefit plans. Plaintiffs seek to recover the unpaid contributions, as well as
interest, statutory damages, attorneys’ fees, and costs. Presently before the Court is
plaintiffs’ motion for summary judgment, which defendant has not opposed. For the
reasons set forth below, plaintiffs’ motion is granted.
I.
Because plaintiffs’ motion is unopposed, the Court considers the following
facts, proffered by plaintiffs and supported by documentary evidence, to be undisputed
for purposes of this motion. See FED. R. CIV. P. 56(e)(2) (authorizing district courts to
consider unopposed facts undisputed); Vt. Teddy Bear Co. v. 1–800 Beargram Co., 373 F.3d
241, 244, 246 (2d Cir. 2004) (noting that the non-movant’s failure “allow[s] the district court
to accept the movant’s factual assertions as true,” provided that the court is “satisfied that
the citation to evidence in the record supports the assertion”); see also LOCAL R. CIV. P.
56.1(c) (directing district courts to admit facts contained in the Rule 56.1 Statement of
Material Facts “unless specifically controverted by a correspondingly numbered paragraph
in the statement required to be served by the opposing party”).
The International Union of Operating Engineers Local 14-14B, AFL-CIO
(“Local 14”) entered into a collective bargaining agreement (“CBA”) with defendant
Central Enterprises, which has been in effect since April 16, 1996. See James M. Steinberg
Aff., Ex. C (CBA); see also Steinberg Aff. at 2; Pl’s. 56.1 Stmnt ¶ 1.1 The president and vice-

1

Citations to “Pl’s. 56.1 Stmnt” refer to the Rule 56.1 Statement of Material Facts,
dated March 16, 2012, which was submitted by plaintiffs in support of their motion for
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president of Central Enterprises signed the CBA. See Ex. C at 2. Defendant agreed to remit
contributions to the Local 14 Trust Funds and agreed to be bound to the Trust Agreements,
which established these trust funds. See id; Pl’s. 56.1 Stmnt ¶¶ 2-4. Pursuant to the Trust
Agreements, contributing employers must remit all fringe benefit contributions according
to the procedures established by the Local 14 Trust Funds. See Pl’s. 56.1 Stmnt ¶ 4;
Steinberg Aff., Ex. D (Sample Local 14 Trust Agreement)2; Steinberg Aff. at 2.
Plaintiffs contend that, from March 1, 2008, through February 28, 2009,
defendant employed Local 14 members but failed to pay required fringe benefit
contributions. After defendant consented to an audit, plaintiffs’ audit representative
reviewed defendant’s payroll records and calculated a deficiency of $8,870.71, representing
unpaid contributions and interest. See Steinberg Aff., Ex. E (Audit); see also Pl’s. 56.1 Stmnt
¶ 5; Marlene Monterroso Aff. at 2; Steinberg Aff. at 2-3. The audit reviewed the three-year
period of July 1, 2007, through February 28, 2010, which encompasses the year-long period
of the alleged deficiency. See Monterroso Aff. at 2. Defendant has not paid any portion of
this deficiency. See Pl’s. 56.1 Stmnt ¶ 6; Edwin L. Christian Aff. at 2; Monterroso Aff. at 3.
After plaintiffs filed their complaint, defendant submitted an answer with
cursory denials of plaintiffs’ allegations. See Steinberg Aff., Ex. A (Complaint), Ex. B

summary judgment.
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Due to the voluminous nature of the Trust Agreements, plaintiffs have provided
the Court with a representative copy of the agreement and have advised the Court that
the relevant provisions of each Trust Agreement (i.e., those relating to the collection of
benefits and the damages for a delinquency) are identical. See Steinberg Aff. at 2.
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(Answer). Although the parties engaged in settlement discussions, they were unable to
reach an agreement. On January 20, 2012, defense counsel informed plaintiffs that Central
Enterprises did not agree to the proposed settlement and that counsel was ending its
representation. However, defense counsel did not move to be relieved, nor did he appear
at a March 8, 2012 proceeding. Plaintiffs then moved for summary judgment. The Court
stated that it would deem plaintiffs’ motion to be unopposed if defendant did not file
opposition papers by April 20, 2012. In a letter dated March 20, 2012, defendant’s new
counsel informed plaintiffs’ counsel that Central Enterprises “has no assets with which to
pay legal fees . . . or to pay a settlement or a judgment” and “[a]ccordingly, it will not
oppose the summary judgment.”
II.
A. Standard Governing Unopposed Motion for Summary Judgment
Summary judgment is appropriate “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 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine
issue of material fact exists “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The district court must review all evidence in the light most favorable to the non-movant,
see Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), and
must “resolve all ambiguities and draw all inferences in favor of the non-moving party,”
Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001). To defeat a “properly
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supported” motion for summary judgment, the non-movant “must come forward with
affidavits, depositions, or other sworn evidence as permitted by Fed.R.Civ.P. 56, setting
forth specific facts showing that there exists a genuine issue of material fact.” Rule v. Brine,
Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).
Even when, as here, a motion for summary judgment is unopposed, the
Second Circuit has made clear that “the district court may not grant the motion without
first examining the moving party’s submission to determine if it has met its burden of
demonstrating that no material issue of fact remains for trial.” Amaker v. Foley, 274 F.3d 677,
681 (2d Cir. 2001). If the evidence submitted is insufficient to meet the moving party’s
burden of production, see FED. R. CIV. P. 56(c), then “summary judgment must be denied
even if no opposing evidentiary matter is presented.” Adickes v. S.H. Kress & Co., 398 U.S.
144, 160 (1970) (internal quotation marks omitted); see also Vt. Teddy Bear, 373 F.3d at 242
(“Fed. R. Civ. P. 56, governing summary judgment motions, does not embrace default
judgment principles.”). The undisputed facts must show that the moving party is entitled
to judgment as a matter of law. See Vt. Teddy Bear, 373 F.3d at 244; see also FED. R. CIV. P.
56(e)(3) (authorizing a court to “grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—show that the movant is entitled
to it” in cases where a party fails to address or support another party’s factual assertions).
B. Merits of Plaintiffs’ ERISA Claim
Plaintiffs assert that there are no material issues of fact in dispute that prevent
the Court from granting judgment on plaintiffs’ claim that defendant failed to pay required
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contributions for the period between March 1, 2008, and February 28, 2009.
Pursuant to Section 515 of ERISA:
Every employer who is obligated to make contributions to a multiemployer plan
under the terms of the plan or under the terms of a collectively bargained agreement
shall, to the extent not inconsistent with law, make such contributions in accordance
with the terms and conditions of such plan or such agreement.
29 U.S.C. § 1145; see also DeVito v. Hempstead China Shop, Inc., 38 F.3d 651, 651 (2d Cir. 1994).
The undisputed facts before this Court demonstrate that, pursuant to the
CBA, defendant was required to remit fringe benefit contributions to plaintiffs through the
purchase of fringe benefit stamps for employees who perform work that falls under the
jurisdiction of Local 14. See Ex. C at 2; Ex. D; see also Christian Aff. at 1-2; Pl’s. 56.1 Stmnt
¶¶ 1-4. Because the work was performed, the contributions became due and owing to
plaintiffs.
The audit report obtained by plaintiffs revealed that defendant was
delinquent in the amount of $8,870.71, representing $7,920.10 in fringe benefit contributions
owed for the audit period and $950.52 in interest owed through the date of the audit. See
Ex. E; Steinberg Aff. at 2-3; Monterroso Aff. at 2-3; see also Ex. F (Local 14 Wage Scale);
Christian Aff. at 1-2; Pl’s. 56.1 Stmnt ¶ 5.3 The audit report lists four employee names,
employee hours, and redeemed employee hours for the relevant period. Ex. E. Other than

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It is appropriate for the Court to “rely on an audit or an auditor’s opinion to
prove that defendant employers did not make required contributions to funds.” Duffy v.
Beaver Site, Inc., No. 07-CV-753, 2011 WL 43258, at * 4 (E.D.N.Y. Jan. 6, 2011) (quoting
Hanley v. Orient Beach Club, Inc., No. 96-CIV-4478, 1998 WL 65990, at *5 (S.D.N.Y. Feb.
18, 1998)).
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the cursory, unsubstantiated denials that defendant provided in its answer to plaintiffs’
complaint, see Ex. B, defendant has not challenged the accuracy of the audit or the validity
of plaintiffs’ claims. Defendant’s general denial in its answer, unsupported by details or
evidence, cannot defeat plaintiffs’ motion for summary judgment. See Rule, 85 F.3d at 1011;
Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 52 (2d Cir. 1993) (noting that, in a case involving
a failure to pay contributions pursuant to a CBA, plaintiff’s submission of an “affidavit and
accounting report at least shifted to the defense the burden of making a sufficient answer
to show what material questions remained for trial”).4
Thus, in the absence of any proof from defendant that it does not owe these
contributions, plaintiffs are entitled to payment. See Duffy, 2011 WL 43258; see also Cement
& Concrete Workers Dist. Council Welfare Fund v. Angel Const. Grp., No. 08-CV-1672, 2010 WL
3463181, at *4 (E.D.N.Y. June 15, 2010) (finding plaintiffs’ records, including an audit
report, submitted in support of their unopposed motion for summary judgment
demonstrated that defendant failed to comply with its obligations under ERISA and the
CBA). The Court is “satisfied that the citation to evidence in the record supports the

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The Second Circuit has recognized that the only defenses available to a
defendant in this type of ERISA action are: (1) that the “contributions themselves are
illegal,” and (2) “that the collective bargaining agreement is void (not merely
voidable).” Benson v. Brower’s Moving & Storage, Inc., 907 F.2d 310, 314 (2d Cir. 1990).
Neither defense is available in the present case. First, as noted above, the obligation to
remit contributions arose lawfully from the CBA and from work performed by
defendant’s employees who are members of Local 14. Second, documentary evidence
demonstrates that the CBA is currently in effect, was in effect during the period of the
deficiency, and is not void. See Ex. C (CBA); Christian Aff. at 1-2; Steinberg Aff. at 2.
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assertion[s]” alleged by plaintiffs. Vt. Teddy Bear, 373 F.3d at 244. Accordingly, the Court
finds that plaintiffs have met their burden of proving that defendant violated Section 515
of ERISA and portions of the CBA.
C. Damages
Having concluded that plaintiffs are entitled to summary judgment, the Court
now turns to the issue of damages. Just as with liability, plaintiffs bear the burden of
establishing their entitlement to damages even though defendant has not opposed their
motion. See Cement & Concrete Workers Dist. Council Welfare Fund, 2010 WL 3463181, at *6
(“Although defendants have failed to respond to plaintiffs’ motion for summary judgment,
the burden is still on plaintiffs to establish their entitlement to damages.” (citing Lupien v.
Citizens Utils. Co., 159 F.3d 102, 107 (2d Cir. 1998))); cf. Greyhound Exhibitgroup, Inc. v.
E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (“While a party’s default is deemed
to constitute a concession of all well pleaded allegations of liability, it is not considered an
admission of damages.”). Claims for damages must generally “be established by the
plaintiff in an evidentiary proceeding in which the defendant has the opportunity to
contest the amount.” Greyhound Exhibitgroup, 973 F.3d at 158. Even in cases involving
default judgments, a district court must review the supporting evidence by conducting an
evidentiary hearing or by reviewing detailed affidavits and documentary evidence in order
to ensure that there is a basis for the damages sought. See Action S.A. v. Marc Rich & Co.,
Inc., 951 F.2d 504, 508 (2d Cir. 1991); Fustok v. ContiCommodity Servs., 873 F.2d 38, 40 (2d Cir.
1989).
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Because plaintiffs have established a violation of § 1145, they are entitled to
the following remedies:
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of-(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an amount not in
excess of 20 percent (or such higher percentage as may be permitted
under Federal or State law) of the amount determined by the court
under subparagraph (A),
(D) reasonable attorney’s fees and costs of the action, to be paid by the
defendant, and
(E) such other legal or equitable relief as the court deems appropriate.
29 U.S.C. § 1132(g)(2). “[I]nterest on unpaid contributions shall be determined by using
the rate provided under the plan, or, if none, the rate prescribed under section 6621 of [the
Internal Revenue Code].” Id.
Plaintiffs seek relief in the amount of $17,070.00, representing the amount of
unpaid contributions, interest, statutory damages, attorneys’ fees, and costs. See Steinberg
Aff. at 4-5. The Court finds that plaintiffs have filed sufficient records to support their
claim for damages, including the audit report and a Statement of Damages, to which
defendant has chosen not to respond. See Ex. D at Section 4.7(2) (establishing an interest
rate of 6.0%); Ex. E (audit); Ex. F (Local 14 Wage Scale); Steinberg Aff., Ex. G (attorneys’
invoice); Monterroso Aff. at 1-3; Steinberg Aff. at 2-7. The Clerk of Court is accordingly
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directed to enter judgment in the amount of $17,624.64, representing (1) $7.920.19 in
delinquent contributions, (2) $1,904.85 in prejudgment interest on the delinquent
contributions (through the date of this Memorandum and Order), (3) $1,904.85 in statutory
damages,5 (4) $5,309.75 in attorneys’ fees, and (5) $585.00 in costs.6

Interest on the

judgment amount shall further accrue as provided for by 28 U.S.C. § 1961. See Schipani v.
McLeod, 541 F.3d 158, 164–65 (2d Cir.2008).
III.
For the foregoing reasons, plaintiffs’ motion for summary judgment is
granted and relief is awarded in the amount of $17,624.64.

SO ORDERED.
_________________________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, NY
October 15, 2012

5

Because the Trust Agreements do not provide for a liquidated damages
calculation, plaintiffs are entitled to an amount equal to the interest as statutory
damages. See 29 U.S.C. § 1132(g)(2)(C).
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The relief awarded is greater than the relief requested in plaintiffs’ motion for
summary judgment because the Court has taken into account interest that has accrued
since the date of plaintiffs’ motion.
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