Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Management Cooperation, Pension and Welfare Funds v. J. Careri Construction Co., LLC

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS, In this instance, no objections have been filed, and the time to do so has passed. After careful review of the record, the Court finds the R&R to be correct, well-reasoned, and free of any clear error. The C ourt, therefore, adopts the R&R in its entirety as the opinion of the Court. The Clerk of Court is directed to enter judgment accordingly and to close this case. (Ordered by Judge Eric N. Vitaliano on 1/30/16) c/m Fwd. for Judgment. (Galeano, Sonia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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TRUSTEES OF EMPIRE STATE CARPENTERS
ANNUITY, APPRENTICESHIP, LABORMANAGEMENT COOPERATION, PENSION AND:
WELFARE FUNDS,
Plaintiffs,

MEMORANDUM & ORDER
14-cv-3325 (ENV) (RER)

-againstJ. CARERI CONSTRUCTION CO., LLC,
Defendant.

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VIT ALIANO, D.J.,
Plaintiffs Trustees of Empire State Carpent~rs Annuity, Apprenticeship, LaborManagement Cooperation, Pension and Welfare Funds ("Funds") initiated this action, on May
29, 2014, against defendant J. Careri Construction Co., LLC ("Careri"), pursuant to§ 502(a)(3)
of the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. §
1132(a)(3), § 301 of the Labor Management Relations Act of 1947 ("LMRA"), as amended, 29
U.S.C. § 185, and§ 9 of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 9, to confirm and
enforce an arbitration award. Defendant, it is alleged, was a party to a collective bargaining
agreement ("CBA") with a non-party union. The CBA required defendant to make periodic
contributions to plaintiffs; furnish its books and payroll records upon request for an audit; and
submit any dispute to final, binding arbitration. Defendant allegedly failed to comply with
plaintiffs' demands to furnish books and records. Pursuant to the CBA, the Funds sought
resolution through arbitration. All parties were noticed, and an arbitration hearing was held on
April 14, 2014. Defendant failed to appear at the arbitration hearing. The arbitrator then issued
an Audit Order and Deficiency Award, dated April 14, 2014, directing Careri to pay the Funds a

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total of $413,519 .88, consisting of $302,582.04 in estimated contributions, $48, 771.43 in
interest, $60,516.41 in liquidated damages, $900 in attorney's fees, and $750 for the arbitrator's
fee. The arbitrator further directed defendant to make available payroll and other records
covering the period January I, 2009 through February 28, 2014, and to immediately cooperate in
the performance of an audit. Though a copy of the award was sent to Careri, it has failed to
comply with the award.
This suit followed, and Careri has not appeared or otherwise responded to the complaint.
The Funds have moved for default judgment. After denying their initial application for
noncompliance with the applicable procedural rules, the Court granted their renewed default
judgment motion, and referred the matter to Magistrate Judge Ramon E. Reyes, Jr., for a report
and recommendation ("R&R") on damages. On January 5, 2016, Judge Reyes, upon his review
of the plausibility of liability and inquest on damages, recommended that the arbitrator's award
be confirmed and that judgment be entered in the amount of$413,519.88, plus $2687.53 in
attorney's fees and costs, for a total award of$416,207.41. The R&R gave the required notice
that any objection had to be filed on or before January 22, 2016. (R&R, ECF No. 16).
In reviewing a report and recommendation of a magistrate judge, a district court "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)(l ). 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); accord 28 U.S.C. § 636(b)(l ); see also Arista Records, LLC v. Doe 3, 604 F.3d
110, 116 (2d Cir. 2010). But, where 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, and "may adopt those portions of the [r]eport ... which are

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not facially erroneous." Price v. City ofN. Y., 797 F. Supp. 2d 219, 223 (E.D.N.Y. 2011)
(quoting La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000)).
In this instance, no objections have been filed, and the time to do so has passed. After
careful review of the record, the Court finds the R&R to be correct, well-reasoned, and free of
any clear error. The Court, therefore, adopts the R&R in its entirety as the opinion of the Court.
The Clerk of Court is directed to enter judgment accordingly and to close this case.
So Ordered.

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Dated: Brooklyn, New York
January 30, 2016

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//171J-L/ /Mo

ERIC N. VIfALIANO
United States District Judge

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