The Annuity, Welfare and Apprenticeship Skill Improvement & Safety Funds of the International Union of Operating Engineers, Local 15, 15A, 15C & 15D, AFL-CIO v. A.G. Construction Corp.

Filing 18

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS, With no objections having been filed, after careful review of the record, the Court finds the Inquest R&R to be correct, well-reasoned, and free of any clear error. The Court, therefore, adop ts the Inquest R&R in its entirety as the opinion of the Court. Judgment shall enter in favor of pltffs and against AG as follows: (i) $5636.00 in delinquent contributions; (ii) $2956.25 in atty's fees and costs; and (iii) $2261.0 0 in audit costs. In addition, the Clerk of Court shall calculate interest on the delinquent contributions at the time final judgment is entered, and pltffs shall be awarded: (i) interest on the $5636.00 delinquency at a rate of 4.25% per a nnum ($0.66 per day) beginning July 15, 2009; (ii) statutory damages in the amount of interest on unpaid contributions, as calculated in (i); and (iii) an audit of deft's books and records, at deft's costs, for the period of July 1, 2011 to the date of judgment. The Clerk of Court is directed to calculate the interest as set out above, enter judgment, and close this case. (Ordered by Judge Eric N. Vitaliano on 1/28/2014) c/m Fwd. for Judgment. (Galeano, Sonia)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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THE ANNUITY, WELFARE AND
APPRENTICESHIP SKILL IMPROVEMENT &
SAFETY FUNDS OF THE INTERNATIONAL
UNION OF OPERATING ENGINEERS, LOCAL
15, 15A, 15C & 15D, AFL-CIO, BY THEIR
TRUSTEES JAMES T. CALLAHAN, FRANCIS P.
DIMENNA, DANIEL J. SCHNEIDER and JOHN
BRUNETTI,

13-CV-3590 (ENV) (SMG)

Plaintiffs,
-againstA.G. CONSTRUCTION CORP.
Defendants.
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VITALIANO, D.J.
Plaintiffs The Annuity, Welfare and Apprenticeship Skill Improvement &
Safety Funds of the International Union of Operating Engineers, Local15, 15A, 15C &
15D, AFL-CIO ("Local15 Trust Funds") by their trustees, brought this action
pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA") and the
Labor Management Relations Act ("LMRA") to recover contributions allegedly owed
by defendant A.G. Construction Corp. ("AG") to employee fringe benefit trust funds,
as well as damages for breach of the terms and conditions of a collective bargaining
agreement. In an order issued September 13, 2013, the Court granted plaintiffs'
motion for default judgment against AG, and referred the matter to Chief Magistrate
Judge Steven Gold for an inquest on damages. Judge Gold's Report and
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Recommendation on damages (the "Inquest R&R") issued on December 5, 2013, with
objections due by December 23, 2013. No objections have been filed.
In reviewing a report and recommendation of a magistrate judge, a district
judge "may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S. C.§ 636(b)(1). Further, a
district judge is required to "determine de novo any part of the magistrate judge's
disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); see also Arista

Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010). Where, as here, no timely
objection has been made, the "district court need only satisfy itself that there is no
clear error on the face of the record" to accept a magistrate judge's report and
recommendation. Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001)
(quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)).
With no objections having been filed, after careful review of the record, the
Court finds the Inquest R&R to be correct, well-reasoned, and free of any clear error.
The Court, therefore, adopts the Inquest R&R in its entirety as the opinion of the
Court. Judgment shall enter in favor of plaintiffs and against AG as follows:
(i)

$5636.00 in delinquent contributions;

(ii)

$2956.25 in attorney's fees and costs; and

(iii)

$2261.00 in audit costs.

In addition, the Clerk of Court shall calculate interest on the delinquent contributions
at the time final judgment is entered, and plaintiffs shall be awarded:
(i)

interest on the $5636.00 delinquency at a rate of 4.25o/o per annum ($0.66 per
2

day) beginning July 15, 2009;
statutory damages in the amount of interest on unpaid contributions, as

(ii)

calculated in (i); and
(iii)

an audit of defendant's books and records, at defendant's cost, for the period
of July 1, 2011 to the date of judgment.

The Clerk of Court is directed to calculate the interest as set out above, enter
judgment, and close this case.

Q ___

SO ORDERED.
Dated:

Brooklyn, New York
January 28, 2014

(5/ U6[))

UtT~11Wo

ERIC N. VITALIANO
United States District Judge

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