Bricklayers Insurance and Welfare Fund, Bricklayers Pension Fund, Bricklayers Supplemental Annuity Fund, Bricklayers and Trowel Trades International Pension Fund, New York City and Long Island Joint A et al v. Vinza Concrete, Inc. et al

Filing 63

ORDER ADOPTING REPORT AND RECOMMENDATION in its entirely. A default judgment is entered against the defendants. Ordered by Judge Ann M. Donnelly on 9/26/2017. (Greene, Donna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X
BRICKLAYERS INSURANCE AND WELFARE

FUND, BRICKLAYERS PENSION FUND,
BRICKLAYERS SUPPLEMENTAL ANNUITY FUND,

FILED
IN CLERK'S OFFICE

BRICKLAYERS AND TROWEL TRADES

US DISTRICT COURT E.D.N.Y.

INTERNATIONAL PENSION FUND,NEW YORK

5 SEP 2 6 2017

CITY AND LONG ISLAND JOINT APPRENTICESHIP

5

AND TRAINING FUND,INTERNATIONAL MASONRY
INSTITUTE, AND JEREMIAH SULLIVAN, JR., in

his fiduciary Capacity as Administrator and Chairman
of Trustees, BRICKLAYERS LOCAL 1, INTERNATIONAL

BROOKLYN OFFICE

UNION OF BRICKLAYERS AND ALLIED CRAFT

WORKERS, AND BRICKLAYERS LABOR
MANAGEMENT COMMITTEE,

Plaintiffs,

ORDER ADOPTING REPORT
AND RECOMMENDATION

-against-

15-CV-0080(AMD)
(CLP)

VINZA CONCRETE, INC., PATRICK VIOLA,
and JOSEPH SPERANZA,
Defendants.
■X

Ann M. Donnelly, United States District Judge:

On January 7, 2015, the plaintiffs. Bricklayers Insurance and Welfare Fund, Bricklayers
Pension Fund, Bricklayers Supplemental Annuity Fund, Bricklayers and Trowel Trades

International Pension Fund, New York City and Long Island Joint Apprenticeship and Training
Fund, and the International Masonry Institute, along with Jeremiah Sullivan Jr., the Chairman of

Trustees and Administrator of the Funds, and Bricklayers Local 1, its parent, International Union
of Bricklayers and Allied Craft Workers, and the Bricklayers Labor Management Relations
Committee commenced this action against the defendants, Vinza Concrete, Inc. ("Vinza") and

Patrick Viola^(ECF No. 1), and on April 3, 2015, pursuant to an amended complaint, against an
additional defendant, Joseph Speranza. (ECF No. 10.) The plaintiffs allege violations of the
Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1145, 1104, and 1109, Section
301 of the Labor Management Relations Act, 29 U.S.C. § 185, in addition to common law
claims. (ECF No. 1.) On October 17, 2016, the Clerk entered the defendants'default. (ECF No.

52). Thereafter, on January 17, 2017, the plaintiffs moved for default judgment. (ECF No. 60.)
On January 18, 2017,1 referred this matter to United States Magistrate Judge Cheryl L. Pollak
for a report and recommendation as to whether to grant the plaintiffs' defaultjudgment and
award damages.
On September 11, 2017, Judge Pollak issued a report recommending that I enter default

judgment against the defendants, and award damages:^ from the defendant, Vinza: (a)
$39,855.20 (unpaid contributions and unremitted dues);(b)$14,347.87 (interest)^;(c)$7,202.27
(liquidated damages); and (d)$400.00(costs), totaling, $61,805.34. Judge Pollak also
recommended that the plaintiffs be awarded the following damages from the defendant, Joseph
Speranza: $98,715.72(unpaid contributions and unremitted dues). And finally, Judge Pollak
recommended that the defendant, Vinza, be required, upon the plaintiffs demand, to submit to
an audit of its books and records, including but not limited to those documents specified in the
report and recommendation. (ECF No.62 at 22-23.)

In reviewing an R&R,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)(1)(C).

^ The plaintiffs voluntarily dismissed the defendant, Patrick Viola, on May 19, 2015, pursuant to Federal Rule of
Civil Procedure 41. (ECF No. 16.)

^ Judge Pollak determined that a damages hearing was unnecessary. See Fustokv. Conticommodity Servs., Inc., 122
F.R.D. 151, 156(S.D.N.Y. 1988).

^ Judge Pollak awarded the plaintiffs interest on the unpaid contributions and unremitted dues from the period
February 21, 2014 through September 11, 2017(the date of Judge Pollak's Report and Recommendation). (ECF
No. 62 at 18.)

Where, as here, no party has objected to the magistrate judge's recommendation,"a district court
need only satisfy itself that there is no clear error on the face of the record." Urena v. New York,
160 F.Supp.2d 606,609-10(S.D.N.Y. 2001)(quoting

v. Smith, 618 F.Supp. 1186, 1189

(S.D.N.Y. 1985)).

I have reviewed Judge Pollak's thorough and well-reasoned report and recommendation,
and find there are no errors. Thus, I adopt the report and recommendation in its entirely.
Accordingly, a default judgment is entered against the defendants. The Clerk of the

Court is respectfully directed to enter judgment against the defendant, Vinza, for the amount of
$61,805.34, and against Joseph Speranza for the amount of $98,715.72. In addition, the
defendant, Vinza, is directed to submit to an audit of its books at the plaintiffs request.

SO ORDERED.

s/Ann M. Donnelly
)onnelly
Unif8d States District Judge

Dated: Brooklyn, New York
September 26, 2017