Ferrara, Sr. et al v. A Star Business Service of New York Corp. et al

Filing 20

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION - Judge Brown's R&R is ADOPTED in its entirety, and Plaintiffs' motion is GRANTED. Plaintiffs are hereby awarded a default judgment against Defendant in the amounts set forth herein. The Clerk of the Court is directed to enter a Judgment consistent with this Memorandum and Order and to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 3/3/2014. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JOSEPH A. FERRARA, SR.; FRANK H.
FINKEL; MARC HERBST; DENISE
RICHARDSON; THOMAS F. CORBETT;
ANTHONY D’AQUILA; THOMAS GESUALDI;
LOUIS BISIGNANO; DOMINICK MARROCCO;
and ANTHONY PIROZZI, as Trustees
and Fiduciaries of the Local 282
Welfare Trust Fund, the Local 282
Pension Trust Fund, the Local 282
Annuity Trust Fund, the Local 282
Job Training Trust Fund, and the
Local 282 Vacation and Sick Leave
Trust Fund,

MEMORANDUM & ORDER
11-CV-5841(JS)(GRB)

Plaintiffs,
-againstA STAR BUSINESS SERVICES OF NEW
YORK CORP. and BASS & BASS WGP, INC.,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Joseph J. Vitale, Esq.
Zachary N. Leeds, Esq.
Michael Seth Adler, Esq.
Cohen, Weiss and Simon LLP
330 West 42nd Street, 25th Fl.
New York, NY 10036
For Defendants:

No appearances.

SEYBERT, District Judge:
Currently

pending

before

the

Court

is

plaintiffs

Trustees and Fiduciaries of the Local 282 Welfare Trust Fund,
the Local 282 Pension Trust Fund, the Local 282 Annuity Trust
Fund, the Local 282 Job Training Trust Fund, and the Local 282
Vacation and Sick Leave Trust Fund’s (collectively, “Plaintiffs”

or the “Funds”) motion for default judgment and Magistrate Judge
Gary R. Brown’s Report and Recommendation (“R&R”).

For the

following reasons, the Court ADOPTS this R&R in its entirety.
BACKGROUND
The

Court

presumes

familiarity

with

the

general

background of this case, which is set forth in greater detail in
Judge Brown’s R&R dated February 26, 2013 (Docket Entry 10) and
this Court’s Memorandum and Order dated March 27, 2013 (Docket
Entry

13).

Briefly,

Plaintiffs

commenced

this

action

on

December 1, 2011 against defendants A Star Business Service of
New

York

Corp.

“Defendants”)

and

pursuant

Bass
to

&

Bass

Sections

WGP,

Inc.

502(a)(3)

and

(together,
515

of

the

Employee Retirement Income Security Act of 1974 (“ERISA”), as
amended 29 U.S.C. §§ 1132(a)(3) and 1145.

Defendants did not

answer or otherwise appear in this action.
Plaintiffs

requested

a

certificate

of

default

on

February 21, 2012 (Docket Entry 4), which was entered by the
Clerk of the Court that same day (Docket Entry 5).

On July 20,

2012, Plaintiffs moved for default (Docket Entry 8), and, on
July 26, 2012, the Court referred Plaintiffs’ motion to Judge
Brown (Docket Entry 9).
Judge

Brown

issued

his

R&R

on

February

26,

2013,

recommending that: (1) an order issue directing Defendants to
submit to an audit of their books and records within thirty
2

days; (2) Plaintiffs be given sixty days to complete the audit
and to make any further submissions with respect to Plaintiffs’
application

for

contributions,
attorneys’

unpaid

and

fees

contributions,

interest

liquidated

damages,

costs;

(3)

and

and

on

and

additional

for

Plaintiffs

unpaid

be

attorneys’ fees and costs in the amount of $4,681.74.

awarded
On March

27, 2013, this Court adopted Judge Brown’s R&R in its entirety,
with certain technical qualifications.1
Now pending before the Court is Plaintiffs’ renewed
motion for default.
DISCUSSION
In reviewing an R&R, a district court “may accept,
reject,

or

modify,

recommendations

made

§ 636(b)(1)(C).

in

whole

by

the

or

in

part,

magistrate

the

judge.”

findings
28

or

U.S.C.

If no timely objections have been made, the

“court need only satisfy itself that there is no clear error on
the face of the record.”
606,

609-10

(S.D.N.Y.

Urena v. New York, 160 F. Supp. 2d

2001)

(internal

quotation

marks

and

citation omitted).

Although the Court adopted the portion of Judge Brown’s
February 26, 2013 R&R regarding attorneys’ fees and costs in the
amount of $4,681.74, Plaintiffs’ renewed motion includes fees
and costs from the inception of this litigation. Judge Brown’s
current R&R therefore considers the total amount of attorneys’
fees and costs from inception through the filing of the renewed
motion for default.
1

3

Here, no party objected to Judge Brown’s R&R.

And the

Court finds his R&R to be correct, comprehensive, well-reasoned,
and free of any clear error.

Accordingly, the Court ADOPTS it

in its entirety.
CONCLUSION
Judge

Brown’s

R&R

is

Plaintiffs’ motion is GRANTED.

ADOPTED

in

its

entirety,

and

Plaintiffs are hereby awarded a

default judgment against Defendant in the following amounts:
(1) $913,428.94 in unpaid contributions;
(2) $326,177.11 in interest plus per diem interest of
$450.46

from

June

21,

2013

through

the

date

of

judgment;
(3) $326,177.11 in liquidated damages plus per diem
liquidated

damages

of

$450.46

from

June

21,

2013

through the date of judgment;
(4) $17,192.50 in attorneys’ fees;
(5) $752.72 in costs; and
(6) $350 in audit fees.
The Clerk of the Court is directed to enter a Judgment
consistent

with

this

Memorandum

and

Order

and

to

mark

this

matter CLOSED.
SO ORDERED.
Dated:

March
3 , 2014
Central Islip, NY

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.

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