Sheet Metal Workers National Pension Fund et al v. ARC Mechanical Corp. et al

Filing 19

Order of Settlement. The Clerk of the Court shall close this case. Civil Case Terminated. Ordered by Judge Sandra J. Feuerstein on 5/16/2012. (Florio, Lisa)

'

FILED .
IN CLI:Rk:S OFFICE
U S DISTRICT COURT E D N y

*

11AY 1 6 2012

*

LONG ISLAND OFFICE

JeffreyS. Dubin, P.C.
Attorneys for Plaintiffs
464 New York Avenue
Suite I 00
Humington, New York I I 743
631.351.0300
631.351.1900 FAX
[e-mail]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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SHEET METAL WORKERS' NATIONAL
PENSION FUND; NATIONAL ENERGY
MANAGEMENT INSTITUTE COMMITTEE
FOR THE SHEET METAL AND AIR
CONDITIONING INDUSTRY; SHEET METAL
OCCUPATIONAL HEt\L TH INSTITUTE
TRUST; INTERNATIONAL TRAINING
INSTITUTE FOR THE SHEET METAL AND
AIR CONDITIONI:--IG INDUSTRY: and
:>IATIONAL STABILIZATION AGREEMENT
OF THE SHEET METAL INDUSTRY FUND,

CIVIL ACTION NO.
II CV 4753 (SJF) (ETB)
ECF CASE

SETTLEMENT STIPULATION
AND ORDER

Plaintiffs,
-nguinstARC MECHANICAL CORP., and ANTHONY
TAORMINA. as an individual.
Defendants.

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IT IS II EREBY STIPULATED AND AGREED, by and between the onorneys for the
plaintiffs and the attorneys for the defendants, all the panics to the above entitled action, that

whereas no pany hereto is an infant or incompetent person for whom a committee bas been
appointed and no person not a party has an interest in the subject matter of the action, the
above entitled action is settled upon the following terms and conditions:
I.

Defendant Arc Mechanical Corp., agrees that it is a party to a collective

bargaining agreement with Local Union 28, Sheet Metal Worlcers'lnternational Association.
2.

Pursuant to said collective bargaining agreement, defendants, although they do

not admit liability, agree to pay contributions of$22,647.86, to the Sheet Metal Workers'
National Pension Fund; the National Energy Management Institute Committee for the Sbeet
Metal and Air Conditioning Industry; the Sheet Metal Occupational Health Institute Trust;
the International Training Institute for the Sheet Metal and Air Conditioning Industry; and
the National Stabilization Agreement of the Sheet Metal Industry FUlld.
3.

Defendants, although they do not admit liability, agree to pay interest of

$984.18, to tbe Sheet Metal Workers' National Pension Fund; the National Energy
Management Institute Committee for the Sheet Metal and Air Conditioning Industry; the
Sheet Metal Occupational Health Institute Trust; the International Training Institute for the
Sheet Metal and Air Conditioning Industry; and to the National Stabilization Agreement Of
the Sheet MetallndPStry Fund.

Page Number -2-

4.

Defendants, although they do not admit liability, agree to pay liquidated

damages of $4,529.55, to tbe Sheet Metal Workers' National Pension Fund; tbe National
Energy Management Institute Comminee for the Sheet Metal and Air Conditioning Industry;
tbe Sheet Metal Occupational Health Institute Trust: the International Training Institute for
the Sheet Metal and Air Conditioning Industry; and to the National Stabilization Agreement
Of the Sheet Metsllndustry Fund.

5.

In consideration of the settlement of this action, said liquidated damages of

$4,529.55, are waived, provided that defendants are not in default under this Settlement

Stipulation. If defendants default under this Settlement Stipulation, the liquidated damages
of$4,529 .55 shall be added to any judgment obtained under this Settlement Stipulation.
6.

Defendants, although they do not admit liability, agree to pay late fees of

$1,727.10, to the Sheet Metal Workers' National Pension Fund; the National Energy
Management Institute Committee for the Sheet Metal and Air Conditioning Industry; the
Sheet Metal Occupational Health Institute Trust; the International Training Institute for the
Sheet Metal and Air Conditioning Industry; and to the National Stabilization Agreement Of
the Sheet Metal Industry Fund.
7.

Defendants, although they do not admit liability, agree to pay to plaintiffs

attorney's fees of$7,675.00, and costs of$658.99.

Page Number-3-

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.I .

B.

Defendants, although they do not admit liability, agree to pay to plaintiffs said

contributions; interest; liquidated damages; late fees; attorney's fees and costs, which amount
to $33,693.13.
9.

Defendants shall pay the sum in 60 installments. The first installment of

SS61.SS, is due upon execution ofthis agreement by the defendants. Thereafter, defendants
shall make S9 monthly payments, each in the amount of$S6 I .SS, toaether with 0.2S percent
per month interest on the declining balance, added to the payment, as per the attached
payment schedule. Payments shall be post marked on or before the first business day of the
month that is closest to the first day of the month. The second installment is due on or before
June I, 2012. Payments shall be made by good check, payable to Jeffrey S. Dubin, as
attorney, and sent to JeffreyS. Dubin, Esq., 464 New York Avenue, Suite !00, Huntington,
New York 11743.
I0.

Default by defendants is dermed as the failure to make any required payment

in full, including interest, within ten (I 0) days of its due date, and the failure to cure after ten
(IS) days telecopier/facsimile notice to defendants and their legal counsel. Default is further
defined as the dishonor of any check tendered as payment hereunder, and the failure to cure
after ten (IS) days tclccopicr/facsimlle notice to defendants and their legal counsel. Default
by defendants is further defined as the failure to continue to pay during the term of this
Page Number -4-

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Agreement, all current contributions due and owing on or before the date such contributions
are due, for as long as defendants arc legally obligated to contribute to the plaintiffs. Default
by defendants is further defined as the failure to file during the term of this Agreement, all
contribution reports on or before the date such contribution rcpons are due, for as long as
defendants are legally obligated to file such reports with the plaintiffs.
II.

The defendants agree that if more than three telecopier/facsimile notices are

required to be given under the preceding section, the defendants shall be charged SSO.OO for
each additional set of notices. Failure to pay said SSO.OO within 30 days of the date of the
additional notice shall be considered a default under this Settlement Stipulation.
12.

Upon default by defendants, defendants consent to the entry of a judgment

against them, jointly and severally, without further notice, in the amount of S38,222.68,Jess
any amounts paid hereunder, plus interest of 8.5% per annum on the amounts due from the
date the payment was due, until the date paid, plus attorney's fees and costs, all as provided
for by the Employee Retirement Income Security Act {ERISA), 29 U .S.C., § I 00 I, et. seq.,
in the United Srates District Court for the Eastern District of New York.
13.

PlaintiffS agree that upon payment in full hereunder, plaintiffs' attorney shall

forthwith prepare a Release of defendants for all claims asserted in this action, or if a
judgment has been entered hereunder, a Satisfaction of Judgment, and in such event, he shall

Page Number -5-

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file the same with each Clerk with whom said judgment was docketed.
14.

The Court shall retain jurisdiction of this matter for the purpose of enforcing

the terms of this Settlement Agreement and any Order or Judgment resulting therefrom.
IS.

Either party may, without notice, submit this Agreement to the Court to be •so

ordered."
16.

Tbe parties agree that the defendants have entered into this Stipulation for the

purpose ofresolving plaintiffs' claims without protracted litigation. The parties further agree
that this Stipulation is made without prejudice to the parties' rights and defenses in any other
matters or disputes between the parties, or between either of the parties and any third parties.
17.

This Stipulation covers contributions due for the period of May I, 20 II,

through July 31, 20 II, and interest through November 28, 20 II, and late fees from
September 1,2010 through April30,201!. The parties agree that if at anytime in the future,
an audit of the payroll records of the defendants reveal that additional amounta of
contributions than arc provided for by this Selllement Stipulation, were due for the time
period covered by this Settlement Stipulation, the plaintiffs may seek to collect said
additional contributions and may tile suit to recover same.
18.

The parties agree that ifatany time In the future, an audit of the payroll records

of the defendants reveal that lesser amounts of contributions than arc provided for by this

Page Number -8-

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Settlement Stipulation, were due for the time period covered by this Settlement Stipulation,
the defendants may seck to collect said overpayments and may file suit to recover the same.
I 9.

The parties agree that if at any time in the future, the defendants repon to the

plaintiffs additional hours of covered employment that occurred during the time period
covered by this Settlement Stipulation, the plaintiffs may seek to collect tbe contributions that
are due for such additional hours, plus any interest, penalties and attorney's fees and may file
suit to recover the same.
20.

The parties agree that if at any time in the future a participant of any of the

plaintiffs comes forward with evidence of hours worked for defendants, but not reported by
defendants, the plaintiffs may pursue such remedies as they may have with respect to said
unreponed hours.
21.

This Settlement Stipulation does not include the settlement of any withdrawal

liability the defendants may now have or may have in the future.
22.

This Settlement Stipulation constitutes the entire understanding between the

parties witb respect to the matters addressed herein and supersedes any and all prior written
and/or oral agreements, representations, warranties, statements, promises, undenakings or
understandings, if any, pcnaining to the subject matter hereof.

Page Number-7-

fj.'l.

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23.

This Settlement Stipulation may only be amended by a written Instrument

siped by the pany or parties to be charged thereby. Neither the parties, nor their agents have
made promises or oral or written statements other than those that appear within this
SettlementS tipulation. This SettlementS tlpulation may not be altered, amended or modified
or otherwise changed in anyrcspcct whatsoever, except by a subsequent writing e~tecuted by
all of the panics.
24.

The panics agree and hereby state that the consideration stated herein is the

sole consideration for this Settlement Stipulation and that such consideration is contractual
and not a mere recital.
2S.

Each of the panics to this Settlement Stipulation hereby represents and

warrants to one another that be or it bas read this entire Settlement Stipulation, that the
contents are fully known and understood and that the same bas been executed by its own free
will, without any promises other than as set forth herein, threats or the exertion of duress
upon it.
26.

Each of the panics to this Settlement Stipulation represents and warrants to

each other that (a) this Settlement Stipulation has been duly authorised by It and the persons
or person e~tecuting this document is authorized to do so on its behalf, (b) the execution and
performance of this Settlement Stipulation shall not violate any other obligation which it may

Page Number -8-

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have by contract or operation of Jaw, and [c) the person signing Ibis Selllement Stipulation
is legally competent to execute this document.
27.

The panics agree that they have jointly drafted this Settlement Agreementand

in any event each of them waives any right to assert any rule of construction that would
operate to construe any ambiguity against any pany drafting this Settlement Stipulation.
28.

This Settlement Stipulation shall be binding and enforceable against, and shall

inure to the benefit of, all successors, assigns, and representatives of the parties, and the other
persons and entities to be released. This Settlement Stipulation is intended to benefit the
panics only, and shall not be conslnled to benefit any person not a pany hereto.
29.

Whenever possible, each provision of Ibis Settlement Stipulation shall be

interpreted in such a manner to be effective and valid under applicable law, but if any
provision of this Settlement Stipulation shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to theextentofsuch prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Settlement
Stipulation.

Page Number -9-

Dated·.

Huntington, New York
May 10,2012

--::--.

sociates, P.C.
Attorneys for Defendants
I Corporate Drive
Suite I 03
Bohemia, New York 11716
631-589-7242
SZabell@loborlowsNY .com

JfflREY S. DUBIN
JeffreyS. Dubin, P.C.
Attorney for Plaintiffs
Suite I 00
464 New York Avenue
Huntington. New York 11743
(>31.35 1.0300
631.35 I. I 900 F'AX
[e-mail]

SOOR~ED:

s/ Sandra J. Feuerstein
United States District Judge

Page Number -10-

If./.

Arc Mechanical Corp. - Payment Schedule

Payment#
& Due Date

Interest
@0.25%

(Prepared 5/11112)

Payment

Balance
$ 33,693.12

I. Upon execution

-0-

$561.55

$ 33,131.58

2.

6/1112

$ 82.83

$644.38

$ 32,570.03

3.

7/2/12

$ 81.43

$642.98

$ 32,008.48

4.

8/1/12

$ 80.02

$641.57

$ 31,446.93

5.

9/4/12

$78.62

$640.17

$ 30,885.38

6. 10/1112

$ 77.21

$638.76

$ 30,323.83

7. I 111112

$ 75.81

$637.36

$29,762.28

8. 12/3/12

$74.40

$635.95

$29,200.73

1/2/13

$ 73.00

$634.55

$ 28,639.18

10. 211/13

$ 71.60

$633.15

$ 28,077.63

II. 3/1/13

$70.19

$631.74

$ 27,516.08

12. 4/1/13

$ 68.79

$630.34

$ 26,954.53

13. 5/1113

$67.39

$628.94

$26,392.98

14. 6/3/13

$ 65.98

$627.53

$25,831.43

15. 7/1113

$6458

$626.13

$ 25,269.88

16. 8/1113

$ 63.17

$624.72

$ 24,708.33

17. 9/3/13

$ 61.77

$623.32

s 24,146.78

18. 10/1/13

$ 60.37

$621.92

$ 23,585.23

19. 11/1/13

$ 58.96

$620.51

$23,023.68

20. 1212/13

$57.56

$619.11

$ 22,462.13

21. 1/2/14

$ 56.15

$617.70

$ 21,900.58

22. 2/3/14

$ 54.75

$616.30

$21,339.03

23. 3/3/14

$ 53.35

$614.90

$ 20,777.48

9.

24. 4/1/14

$ 51.94

$613.49

$ 20,215.93

25. 511114

$50.54

$612.09

$ 19,654.38

26. 6/2/14

$49.14

$610.69

$ 19,092.83

27. 7/1114

$47.73

$609.28

$ 18,531.28

28. 8/1114

$ 46.33

$607.88

$ 17,969.73

29. 9/2/14

$44.92

$606.47

$ 17,408.18

30. 10/1114

$43.52

$605.07

$ 16,846.63

31. 11/3/14

$42.12

$603.66

$ 16,285.08

32. 12/1114

$40.71

$602.26

$ I 5,723.53

33. 1/2/15

$39.31

$600.86

$ 15,161.98

34. 212/IS

$37.90

$599.45

$ 14,600.43

35. 312/IS

$36.50

$598.05

$ 14,038.88

36. 4/1/15

$ 35.10

$596.65

$ 13,477.33

37. StillS

$33.69

$595.24

$ 12,915.78

38. 6/1/1 s

$32.29

$593.84

$ 12,354.23

39. 7/1115

$ 30.89

$592.44

$ 11,792.68

40. 8/3/15

$29.48

$591.03

$ 11,231.13

41. 9/1/15

$ 28.08

$589.63

$ 10,669.58

42. 10/1/15

$26.67

$688.22

$ I 0,108.03

43. 11/2/15

$ 25.27

$586.82

$ 9,546.48

44. 12/1115

$23.87

$ 585.42

$ 8,984.93

45. 1/4/16

$22.46

$584.01

$ 8,423.38

46. 2/1/16

$ 21.06

$582.61

$ 7,861.83

47. 3/1/16

$ 19.65

$581.20

$ 7,300.28

48. 4/l/16

$ 18.25

$579.80

$ 6,738.73

49. 5/2/16

$ 16.85

$578.40

$ 6,177.18

so.

6/1/16

$ 15.44

$576.99

$ 5,615.63

51. 7/1/16

$ 14.04

$575.59

$ 5,054.08

52. 8/1/16

$ 12.63

$574.18

$ 4,492.53

53. 911116

$ 11.23

$572.78

$ 3,930.98

54. 10/3/16

$ 9.83

$571.38

s

55. 1111116

$ 8.42

$569.97

$ 2,807.88

56. 12/1116

$ 7.02

$568.57

$ 2,246.33

57. 112/17

$ 5.62

$567.17

$ 1,684.78

58. 2/1117

$ 4.21

$565.76

$ 1,123.23

59. 3/1/17

$ 2.81

$564.36

$

561.68

60. 4/3/17

$ 1.40

$562.95

$

-0-

3,369.43