Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Management Cooperation, Pension and Welfare Funds v. Archetype Construction Corp.

Filing 16

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; Judge Brown's R&R is ADOPTED as set forth below, Plaintiffs' motion for default is GRANTED, and the arbitrator's award is CONFIRMED with modification. Accordingly, the Court holds as follows: (1) Plaintiffs are awarded $385,240.21 plus interest in the amount of.75%, compounding monthly, from the date of the arbitration award through the date of final judgment; and (2) Plaintiffs are awarded $2,402.21 in costs and attorney's 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 by Judge Joanna Seybert on 9/16/2014. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
TRUSTEES OF EMPIRE STATE CARPENTERS
ANNUITY, APPRENTICESHIP, LABORMANAGEMENT COOPERATION, PENSION
AND WELFARE FUNDS,
Plaintiffs,

MEMORANDUM & ORDER
13-CV-1877(JS)(GRB)

-againstARCHETYPE CONSTRUCTION CORP.,
Defendant.
------------------------------------X
APPEARANCES
For Plaintiffs:
Charles R. Virginia, Esq.
Richard B. Epstein, Esq.
Elina Turetskaya, Esq.
Virginia & Ambinder LLP
40 Broad Street, 7th Floor
New York, NY 10004
For Defendant:

No appearances.

SEYBERT, District Judge:
Currently pending before the Court is a motion for
default judgment filed by plaintiffs Trustees of Empire State
Carpenters

Annuity,

Cooperation,
Magistrate

Pension
Judge

Apprenticeship,

Labor-Management

and

Gary

Welfare

Funds

(“Plaintiffs”)

R.

Brown’s

Report

and

(“R&R”) addressing the motion.

and

Recommendation

For the following reasons, the

Court ADOPTS this R&R, with one modification.
BACKGROUND
Plaintiffs
against

defendant

commenced

Archetype

this

action

Construction

on
Corp.

April

4,

2013

(“Defendant”)

pursuant to Section 502(a)(3) of the Employee Retirement Income
Security

Act

of

1974

(“ERISA”),

as

amended,

29

U.S.C.

§ 1132(a)(3); Section 301 of the Labor Management Relations Act
of 1947 (“LMRA”), as amended, 29 U.S.C. § 185; and Section 9 of
the Federal Arbitration Act, 9 U.S.C. § 9 to confirm and enforce
an

arbitration

bargaining

award

agreement

ordering
(“CBA”)

compliance

between

the

with

a

collective

Northeast

Regional

Council of Carpenters (the “Union”) and Defendant.
Plaintiffs

requested

a

certificate

of

default

on

January 20, 2014 (Docket Entry 6), which was entered by the
Clerk of the Court the following day (Docket Entry 7).

On

January 22, 2014, Plaintiffs moved for default (Docket Entry 8),
and, on January 24, 2014, the Court referred Plaintiffs’ motion
to Judge Brown (Docket Entry 10).
On August 18, 2014, Judge Brown issued his R&R.

In

it, he makes the following recommendations that: (1) the Court
grant Plaintiffs’ motion and confirm the arbitrator’s award; (2)
the

Court

$283,668.70
interest,

award
in

Plaintiffs

outstanding

$56,733.74

in

$388,384.29
contributions,

liquidated

(consisting

of

$36,956.52

in

damages,

$250.00

in

attorney’s fees, $6,881.25 in audit costs, and $750.00 for the
arbitrator’s fee) plus interest from the date of the arbitration
through the date of judgment; and (3) the Court award Plaintiffs
$2,402.21 in costs and attorneys’ fees.
2

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

findings

judge.”

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

The

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

Judge Brown’s

calculation of $388,384.29 is based upon the arbitrator’s award,
which determined that Plaintiffs are entitled to $283,668.70 in
outstanding contributions, $36,956.52 in interest, $56,733.74 in
liquidated

damages,

$250.00

in

attorney’s

fees,

audit costs, and $750.00 for the arbitrator’s fees.

$6,881.25

in

Indeed, the

arbitrator itemized each of these figures, and then held the
aggregate to be $388,384.29.
Ex. C.)

(Turetskaya Decl., Docket Entry 9,

However, addition of each of these figures comes to

$385,240.21, not $388,384.29.
Courts have modified awards in similar circumstances
where there is an evident material miscalculation of figures on
the face of the arbitrator’s award.
3

See Trs. of the Empire

State

Carpenters

Annuity,

Apprenticeship,

Labor

Mgmt.

Cooperation, Pension & Welfare Funds v. Lynnview Constr. Corp.,
No. 12-CV-5644, 2013 WL 4852312, at *9 (E.D.N.Y. Sept. 10, 2013)
(citations omitted); Trs. of Empire State Carpenters Annuity,
Apprenticeship, Labor Mgmt. Cooperation, Pension & Welfare Funds
v. The Flooring Experts, Inc., No. 12-CV-6317, 2013 WL 4042357,
at *7 (E.D.N.Y. Aug. 8, 2013) (citations omitted), adopted by
2013 WL 4761151 (E.D.N.Y. Sept. 3, 2013); Trs. of the Bldg.
Trades Annuity Fund, Educ. Fund, Welfare Fund & the United Serv.
Workers Sec. Fund v. Prof’l Plumbing of Staten Island Corp., No.
09-CV-3812, 2010 WL 6230530, at *6 (E.D.N.Y. Nov. 17, 2010),
adopted by 2011 WL 1046856 (E.D.N.Y. Mar. 17, 2011); see also 9
U.S.C. § 11.

This Court will do the same.

Accordingly, the Court ADOPTS Judge Brown’s R&R with
the

exception

that

the

$385,240.21

figure,

not

$388,384.29,

applies.
CONCLUSION
Judge

Brown’s

R&R

is

ADOPTED

as

set

forth

below,

Plaintiffs’ motion for default is GRANTED, and the arbitrator’s
award is CONFIRMED with modification.

Accordingly, the Court

holds as follows:
(1) Plaintiffs are awarded $385,240.21 plus interest
in the amount of .75%, compounding monthly, from the date of the
arbitration award through the date of final judgment; and
4

(2)

Plaintiffs

are

awarded

$2,402.21

in

costs

and

attorney’s fees.
The Clerk of the Court is directed to enter a Judgment
consistent

with

this

Memorandum

and

Order

and

to

mark

matter CLOSED.
SO ORDERED.

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

September
16 , 2014
Central Islip, NY

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