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

Filing 10

MEMORANDUM AND OPINION Petitioners' motion to confirm the arbitration award is hereby granted. Ordered by Judge Joseph F. Bianco on 11/22/2016. (Hammond, Daniel)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 15-CV-6574 (JFB)
_____________________

TRUSTEES OF EMPIRE STATE CARPENTERS ANNUITY, APPRENTICESHIP, LABORMANAGEMENT COOPERATION, PENSION AND WELFARE FUNDS,
Petitioners,
VERSUS

BAYVIEW CUSTOM CONSTRUCTION CORP.,
Respondent.
___________________
MEMORANDUM AND ORDER
November 22, 2016
___________________

JOSEPH F. BIANCO, District Judge:
Petitioners, Trustees of Empire State
Carpenters Annuity, Apprenticeship, LaborManagement Cooperation, Pension and
Welfare Funds (the “petitioners” or the
“Funds”) brought this action to confirm an
arbitration award obtained against Bayview
Custom Construction Corp. (“Bayview”).
The petitioners also move to recover
attorneys’ fees and costs in connection with
this action. For the reasons set forth below,
the Court grants the petitioners’ motion to
confirm the arbitration award and grants the
petitioners’ motion for fees and costs.
I. BACKGROUND
A. Facts
The following facts are drawn from the
Funds’ Petition to Confirm an Arbitration
Award (“Pet.”) and accompanying exhibits.
(ECF No. 1.)

Bayview is a member of the Building
Contractors Association, Inc. (“Association”), which makes it subject to a
collective bargaining agreement (“CBA”)
between the Association and the Northeast
Regional Council of Carpenters (“Union”).
(Pet. ¶¶ 7–8, Exs. A, B.) The CBA compels
Bayview to make contributions to the Funds
for all work within the trade and geographical
jurisdiction of the Union. (Id. at ¶ 9, Ex. B,
art. 16.) The Funds also established a Joint
Policy for Collection of Delinquent
Contributions (“Collection Policy”), which
requires an employer to submit to a payroll
audit upon the Funds’ request to ensure
compliance with the CBA’s contribution
requirement. (Id. at ¶¶ 11–12, Ex. C, art.
4.7.) In the event an employer refuses to
permit an audit, the Collection Policy
provides that the Funds “shall determine the
estimated amount of the employer’s
delinquent contributions,” at which time the

II. CONFIRMATION OF ARBITRATION AWARD

matter becomes subject to arbitration. (Id. at
¶¶ 12, 17, Ex. C, art 4.7.) Should the
arbitrator find the employer deficient, the
Collection Policy renders the employer
“responsible for all delinquent contributions
in the estimated amount . . . and all interest,
attorneys’ fees, costs, auditor’s fees,
arbitrator’s fees and liquidated damages.”
(Id., Ex. C, art 4.7.) Interest on delinquent
contributions is calculated at a rate of 0.75%
per month, and liquidated damages are set at
20% of the delinquent contributions. (Id. at
¶¶ 13–14, Ex. C, arts. 2.1.C, 6.1.)

A. Standard of Review
Courts treat motions to confirm an
arbitration award “as akin to a motion for
summary judgment.” As such, the movant
must show that “there is no genuine dispute
as to any material fact and the movant is
entitled to judgment as a matter of law.”
Urbont v. Sony Music Entm’t, 831 F.3d 80,
88 (2d Cir. 2016) (quoting Fed. R. Civ. P.
56(a)). A party must support an assertion that
a fact cannot be or is genuinely disputed by

The Funds initiated arbitration, claiming
Bayview failed to submit to a payroll audit,
and sent notice of the arbitration to Bayview.
(Id. at ¶¶ 15, 19, Ex. D.) They estimated that
Bayview owed $303,041.48 for the period
from April 2, 2011 through December 31,
2014. (Id. at ¶ 16, Ex. E.) The arbitrator held
a hearing on July 22, 2015, but Bayview
failed to appear. (Id., Ex. E.) In his written
findings, the arbitrator concluded that
Bayview refused to submit to an audit and
was deficient in the amount calculated by the
Funds. (Id.) He then ordered Bayview to pay
the Funds $303,041.48 in estimated
deficiency,
$70,521.31
in
interest,
$60,608.30 in liquidated damages, $900.00 in
attorneys’ fees, and $750.00 in the
arbitrator’s fees, for a total amount of
$435,821.09. (Id.)

(A) citing to particular parts of
materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including
those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited
do not establish the absence or
presence of a genuine dispute, or that
an adverse party cannot produce
admissible evidence to support the
fact.
Fed. R. Civ. P. 56(c)(1). If the moving party
meets its burden, the non-moving party “must
do more than simply show that there is some
metaphysical doubt as to the material
facts. . . . [T]he nonmoving party must come
forward with specific facts showing that there
is a genuine issue for trial.” Caldarola v.
Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87
(1986)) (emphasis added in original). In
ruling on the motion, a district court “‘is not
to weigh the evidence but is instead required
to view the evidence in the light most
favorable to the party opposing summary
judgment, to draw all reasonable inferences

B. Procedural History
The Funds filed their petition in this
Court seeking confirmation of the award as
well as costs and attorneys’ fees on July 1,
2015. (ECF No. 1.) A summons was issued
as to Bayview on November 17, 2015 (ECF
No. 5.), and was returned executed on
November 30, 2015. (ECF No. 6.) To date,
Bayview has not filed an answer or appeared
in this action.

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“arbitrator is even arguably construing or
applying the contract and acting within the
scope of his authority.” Major League
Baseball, 532 U.S. at 509.

in favor of that party, and to eschew
credibility assessments.” Phaneuf v. Fraikin,
448 F.3d 591, 595 (2d Cir. 2006) (quoting
Amnesty Am. v. Town of W. Hartford, 361
F.3d 113, 122 (2d Cir. 2004)).

In Local 1199, Drug, Hospital and
Health Care Employees Union, RWDSU,
AFL-CIO v. Brooks Drug Co., 956 F.2d 22,
26 (2d Cir. 1992), for example, the Second
Circuit upheld an arbitrator’s interpretation
of a contract even though he arguably
misconstrued it. Specifically, the court
discerned “ambiguity in the clause” of the
contract in question, and thus held that the
arbitrator could justifiably consult extrinsic
evidence as well as other clauses of the
contract. Id. Although the factors the
arbitrator consulted were “by no means
dispositive of the issue in th[e] case,” the
Second Circuit upheld the district court’s
confirmation of the award because “the
rationale behind the arbitrator’s award was
supported at least in part by extrinsic
evidence of the parties’ intent.” Id.

B. Discussion
Federal courts have jurisdiction over
petitions brought to confirm labor arbitration
awards under Section 301 of the Labor
Management Relations Act (LMRA), 29
U.S.C. § 185.
Local 802, Associated
Musicians of Greater N.Y. v. Parker
Meridien Hotel, 145 F.3d 85, 88 (2d Cir.
1998). The LMRA embodies a “federal
policy of settling labor disputes by
arbitration,” and the Supreme Court has
recognized that giving courts final say on the
merits of arbitration awards would
undermine this policy. United Paperworkers
Int’l Union, AFL-CIO v. Misco, Inc., 484
U.S. 29, 36 (1987) (quoting Steelworkers v.
Enterprise Wheel & Car Corp., 363 U.S. 593,
596 (1960)). It follows that “courts play only
a limited role when asked to review the
decision of an arbitrator.” Id.; see also Major
League Baseball Players Ass’n v. Garvey,
532 U.S. 504, 509 (2001) (“Judicial review of
a labor-arbitration decision pursuant to such
an agreement is very limited.”); Florasynth,
Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir.
1984) (“[T]he confirmation of an arbitration
award is a summary proceeding that merely
makes what is already a final arbitration
award a judgment of the court.”).

Under Brooks Drug Co., the arbitrator’s
award in this case plainly draws its essence
from the CBA. Unlike in Brooks Drug Co.,
where there was ambiguity in the contract,
the CBA here expressly requires Bayview to
make contributions to the Funds, Pet. ¶ 9, Ex.
B, art. 16, and the Collection Policy expressly
permits payroll audits to which Bayview
must submit. Id. at ¶¶ 11–12, Ex. C, art. 4.7.
The Collection Policy also spells out the
procedures for the parties to follow in the
event an employer fails to submit to an audit,
which include an estimation of the deficient
contributions by the Funds and submitting
the dispute to binding arbitration. Id. at ¶¶
12, 17, Ex. B, art 4.7. Furthermore, the
Policy directs arbitrators to hold employers
responsible for the estimated deficient
amount, interest calculated at a rate of 0.75%
per month, attorneys’ fees, costs, auditor’s
fees, arbitrator’s fees, and liquidated
damages set at 20% of the delinquent

Specifically, the court’s role is to confirm
the arbitration award if it “‘draws its essence
from the collective bargaining agreement’
and is not the arbitrator’s ‘own brand of
industrial justice.’” First Nat. Supermarkets,
Inc. v. Retail, Wholesale & Chain Store Food
Employees Union Local 338, Affiliated with
the Retail, Wholesale & Dep’t Store Union,
AFL-CIO, 118 F.3d 892, 896 (2d Cir. 1997).
An award satisfies this standard if the
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contributions. Id. at ¶¶ 13–14, Ex. C, arts.
4.7, 2.1.C, 6.1.

e.g., N.Y. City Dist. Council of Carpenters
Pension Fund v. Dafna Const. Co., 438 F.
Supp. 2d 238, 242 (S.D.N.Y. 2006)
(awarding attorneys’ fees in a confirmation
proceeding where “the Agreement itself
require[d] [the defendant] to pay attorneys’
fees incurred by the Trustees in seeking
confirmation”); Trustees of N.Y. City Dist.
Council of Carpenters Pension Fund,
Welfare
Fund,
Annuity
Fund,
&
Apprenticeship, Journeyman Retraining,
Educ. & Indus. Fund v. All. Workroom Corp.,
No. 13-CIV-5096 (KPF), 2013 WL 6498165,
at *6 (S.D.N.Y. Dec. 11, 2013) (“Petitioners
are entitled to attorney’s fees under both
ERISA and the CBA.”).

The arbitrator’s award followed the terms
of the CBA and Collection Policy to the
letter. The arbitrator found that the Funds
followed all the appropriate procedures and
awarded an amount consistent with the
contract’s requirements. The award is based
on uncontroverted evidence that Bayview
failed to pay the estimated amount of
$303,041.48 in deficient contributions from
April 2, 2011 through December 31, 2014.
The award amounts for interest, liquidated
damages, attorneys’ fees, and the arbitrator’s
fee are also consistent with the contract’s
terms, and nothing in the record suggests the
award is “in contradiction of the clearly
expressed language of the contract.” Brooks
Drug Co., 956 F.2d at 26. The Court,
therefore, confirms the arbitration award of
August 18, 2015.

A. Attorneys’ Fees
Courts in the Second Circuit employ the
“lodestar figure” to determine reasonable
fees and costs. Luciano v. Olsten Corp., 109
F.3d 111, 115 (2d Cir. 1997). This figure is
calculated by multiplying the number of
hours reasonably expended on a case by a
reasonable hourly rate. Id. It is well
established that the “lodestar . . . creates a
‘presumptively reasonable fee,’” Millea v.
Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir.
2011) (quoting Arbor Hill Concerned
Citizens Neighborhood Assoc. v. Cnty. of
Albany, 522 F.3d 182, 183 (2d Cir. 2008),
and the burden is on the party seeking
attorneys’ fees to present evidence of hours
worked and rates claimed, Cruz v. Local
Union No. 3 of Int'l Bhd. of Elec. Workers, 34
F.3d 1148, 1160 (2d Cir. 1994).

III. PETITIONER’S ENTITLEMENT TO
ATTORNEYS’ FEES AND COSTS
The petitioners also seek to recover
$1097.50 in attorneys’ fees and costs
associated with this action to confirm the
arbitration award. Although neither the
LMRA nor the Federal Arbitration Act, 9
U.S.C. § 1 et seq., authorize the award of
attorneys’ fees in an action to confirm an
arbitration award, see, e.g., Trustees of The
N.Y. City Dist. Council of Carpenters
Pension Fund v. TNS Mgmt. Servs., Inc., No.
13-CIV.-2716 (JMF), 2014 WL 100008, at
*4 (S.D.N.Y. Jan. 10, 2014), and “[t]he
general rule in our legal system is that each
party must pay its own attorney’s fees and
expenses,” Perdue v. Kenny A. ex rel. Winn,
559 U.S. 542, 550 (2010), the Collection
Policy provides that delinquent employers
shall pay the Funds’ attorneys’ fees and cost
incurred in collection efforts. Pet. Ex. C, art.
6.3. This agreement provides a basis for this
court to award attorneys’ fees and costs. See,

A “reasonable hourly rate” is “what a
reasonable, paying client would be willing to
pay, given that such a party wishes to spend
the minimum necessary to litigate the case
effectively.” Bergerson v. N.Y. State Office
of Mental Health, Cent. N.Y. Psychiatric Ctr.,
652 F.3d 277, 289 (2d Cir. 2011). This Court
follows the “forum rule,” which “generally
requires use of the hourly rates employed in
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hours expended and hourly rates.” Cruz, 34
F.3d at 1160 (quoting Hensley v. Eckerhart,
461 U.S. 424, 437 (1983)). The hours
worked “should generally be documented by
contemporaneously created time records that
specify, for each attorney, the date, the hours
expended, and the nature of the work done.”
Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173
(2d Cir. 1998). In calculating the number of
hours worked, a court must exclude “[h]ours
that are ‘excessive, redundant, or otherwise
unnecessary.’” Id. (quoting Hensley, 461
U.S. at 434).

the district in which the reviewing court sits
in calculating the presumptively reasonable
fee.” Id. at 290. Courts in this district
consistently determine that an hourly rate of
$200 to $325 is a reasonable hourly rate for
senior associates while $100 to $200 is a
reasonable hourly rate for more junior
associates. See Favors v. Cuomo, 39 F. Supp.
3d 276, 301 (E.D.N.Y. 2014) (collecting
cases); see also, e.g., Trustees of Empire
State Carpenters Annuity, Apprenticeship,
Labor-Mgmt. Cooperation v. Dipizio
Constr., Inc., No. 15-CV-2592 (JFB)(AYS),
2016 WL 3033722, at *5 (E.D.N.Y. May 25,
2016); Ferrara v. Prof'l Pavers Corp., No.
11-CV-1433 (KAM)(RER), 2013 WL
1212816, at *2 (E.D.N.Y. Mar. 23, 2013);
Finkel v. Omega Commc’n Servs., Inc., 543
F. Supp. 2d 156, 165 (E.D.N.Y. 2008).

The attorneys submitted an invoice from
V&A dated September 9, 2015 documenting
the hours worked on September 1, 8, and 9.
Pet. Ex. F. It shows that the attorneys worked
for a total of 3.1 hours on this matter. Id. Ms.
Burke billed 0.50 hours of time reviewing
and revising the petition to confirm the
award, and Mr. Roffe billed 2.6 hours for
drafting and editing the petition and the
memorandum of law in support of the
petition and preparing exhibits. Id.

The petitioners seek attorneys’ fees at a
rate of $225.00 per hour for attorneys Elina
Burke and Jonathan Roffe. Ms. Burke
graduated from Fordham University School
of Law in 2011 and works as an associate at
Virginia & Ambinder, LLP (“V&A”). Pet.
¶ 28. Mr. Roffe graduated from Benjamin N.
Cardozo School of Law in 2014 and is also
an associate at V&A. Id. at ¶ 20. As a more
experienced associate, Ms. Burke’s requested
rate of $225.00 per hour falls within the range
routinely approved by courts for associates of
her level. See Dipizio, 2016 WL 3033722, at
*5; Hugee v. Kimso Apartments, LLC, 852 F.
Supp. 2d 281, 298 (E.D.N.Y. 2012)
(collecting cases). Mr. Roffe’s requested
rate, however, is too high, as the rate for
junior associates in this district is $100 to
$200. See Dipizio, 2016 WL 3033722, at *5;
Hugee, 852 F. Supp. 2d at 298 (collecting
cases). Therefore, Ms. Burke’s rate shall be
set at $225.00 per hour and Mr. Roffe’s rate
shall be set at $150.00 per hour.

Courts in this district routinely accept
invoices as sufficient to satisfy the
contemporaneous records requirement so
long as they provide “a clear description of
the work performed, the time spent on the
respective matter, the attorney who rendered
services, and the date the services were
performed.” Big R Food Warehouses v.
Local 338 RWDSU, 896 F. Supp. 292, 295
(E.D.N.Y. 1995); see, e.g., Home Loan Inv.
Bank, F.S.B. v. Goodness & Mercy, Inc., No.
10–CV–4677 (ADS)(ETB), 2012 WL
1078963, at *7 (E.D.N.Y. Jan. 4, 2012),
report and recommendation adopted, 2012
WL 1078886 (E.D.N.Y. Mar. 30, 2012);
Fuerst v. Fuerst, No. 10–CV–3941, 2012 WL
1145934, at *4 (E.D.N.Y. Apr. 5, 2012);
Boster v. Braccia, No. 06–CV–4756
(JG)(RER), 2007 WL 4287704, at *2
(E.D.N.Y. Dec. 4, 2007). The Court sees no
reason to depart from this practice here, as the

A party seeking attorneys’ fees “bears the
burden of establishing entitlement to an
award and documenting the appropriate
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as “[b]ills for the costs claimed . . . attached
as exhibits.”

V&A invoice reports in sufficient detail the
type of work performed by the two attorneys,
the date on which the work was performed,
and the time spent on each task. Furthermore,
based on the descriptions of the tasks
performed and the lack of opposition to the
petition, the Court finds that the 3.1 hours on
the matter is a reasonable number of hours
billed.
Consequently, the court calculates the
lodestar figure to be $502.50 and there
appears to be no reason to depart from this
figure. See Perdue, 559 U.S. at 553 (noting
that the lodestar figure includes “most, if not
all,” relevant factors in setting reasonable
attorney’s fee).

Petitioners’ declaration indicates that
they paid the $400 filing fee, Pet. ¶ 33, and
the digital receipt confirms that they did so on
November 16, 2015. ECF, Receipt Number
0207-8173327. The declaration and receipt
satisfy the itemization requirement, and it is
well established in this district that the filing
fee qualifies as a recoverable cost. See, e.g.,
Labarbera v. ASTC Labs. Inc., 752 F. Supp.
2d 263, 279 (E.D.N.Y. 2010); Jacobson v.
Peterbilt Elec. Contracting, Inc., 553 F.
Supp. 2d 211, 217 (E.D.N.Y. 2008); New
Leadership Comm. v. Davidson, 23 F. Supp.
2d 301, 305 (E.D.N.Y.1998).

The Court therefore awards
petitioners $502.50 in attorneys’ fees.

Accordingly,
the
Court
petitioners $400.00 in costs.

the

awards

***

B. Costs

In sum, the Court confirms the
arbitrator’s award of $435,821.09 and further
orders Bayview to pay an additional $902.50
in attorneys’ fees and costs associated with
this litigation.

A court may also award “those
reasonable out-of-pocket expenses incurred
by attorneys and ordinarily charged to their
clients” as a portion of attorney’s fees.
LeBlanc-Sternberg v. Fletcher, 143 F.3d 748,
763 (2d Cir. 1998) (quoting United States
Football League v. National Football
League, 887 F.2d 408, 416 (2d Cir.1989)).
Again, the party seeking to recover costs
must “adequately document[] and itemize[e]
the costs requested.” Pennacchio v. Powers,
No. 05-CV-985 (RRM)(RML), 2011 WL
2945825, at *2 (E.D.N.Y. July 21, 2011); see
also First Keystone Consultants, Inc. v.
Schlesinger Elec. Contractors, Inc., No. 10CV-696 (KAM)(SMG), 2013 WL 950573, at
*10 (E.D.N.Y. Mar. 12, 2013). Local Civil
Rule 54.1 provides that the party seeking
costs shall submit “an affidavit that the costs
claimed are allowable by law, are correctly
stated and were necessarily incurred” as well

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge

Dated: November 22, 2016
Central Islip, NY

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