Durso et al v. Barsyl Supermarkets Inc. et al

Filing 50

MEMORANDUM & ORDER granting 34 Motion for Summary Judgment; For the stated reasons, IT IS HEREBY ORDERED that Plaintiffs' unopposed motion for summary judgment (ECF No. 34) is GRANTED and Plaintiffs are entitled to judgment against Defendant s Barsyl Supermarkets, Inc. and Almonte Beach Food Corp.; and IT IS FURTHER ORDERED that Plaintiffs are awarded damages from Defendants as further set forth herein; See Order for all additional details. So Ordered by Judge Joanna Seybert on 9/16/2021. C/ECF (Valle, Christine)

Case 2:17-cv-06754-JS-ARL Document 50 Filed 09/16/21 Page 1 of 13 PageID #: 219

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOHN R. DURSO, JOSEPH FONTANO,
TERI NOBLE, DEBRA BOLLBACH,
NEIL GONZALVO, JON GREENFIELD,
JOHN CATSIMATIDIS, ANGELO AVENA,
MORTON SLOAN, and JACOB DIMANT, M.D.,
as Trustees and Fiduciaries
of the LOCAL 338 RETIREMENT FUND,
Plaintiffs,

MEMORANDUM & ORDER
17-CV-6754(JS)(ARL)

-againstBARSYL SUPERMARKETS INC.,
ALMONTE BEACH FOOD CORP.,
ALMONTE REALTY LLC,
DAYMONTE REALTY LLC, and
ALMONTE MILL FOOD CORP.,
Defendants.
-----------------------------------X
APPEARANCES
For Plaintiffs:
William Anspach, Esq.
Paris N. Nicholls, Esq.
Friedman & Anspach
1500 Broadway, Suite 2300
New York, New York 10036
For Defendants:

Douglas P. Catalano, Esq.
Stephen P. Pischl, Esq.
Clifton Budd & DeMaria, LLP
350 Fifth Avenue, Suite 6110
New York, New York 10103

SEYBERT, District Judge:
Plaintiffs John R. Durso, Joseph Fontano, Teri Noble,
Debra Bollbach, Neil Gonzalvo, Jon Greenfield, John Catsimatidis,
Angelo Avena, Morton Sloan, and Jacob Dimant, M.D. (collectively,
the “Plaintiffs” or “Trustees”), as trustees and fiduciaries of
the Local 338 Retirement Fund (the “Fund”), commenced this action

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against defendants Barsyl Supermarkets, Inc. (“Barsyl”), Almonte
Beach Food Corp. (“Almonte Beach”), Almonte Realty LLC (“Almonte
Realty”), Daymonte Realty LLC (“Daymonte”), and Almonte Mill Food
Corp. (“Almonte Mill”) pursuant to the Employee Retirement Income
Security Act of 1974 (“ERISA”), as amended by the Multiemployer
Pension Plan Amendments Act of 1980 (“MPPAA”), 29 U.S.C. §§ 10011461. Before the Court is Plaintiffs’ unopposed motion for summary
judgment against defendants Barsyl and Almonte Beach (together,
the “Defendants”).

(Mot., ECF No. 34; Pls. Br., ECF No. 37.)

For

the reasons that follow, the motion is GRANTED.
BACKGROUND1
The Fund is an employee benefit plan and multiemployer
plan within the meaning of ERISA §§ 3(3) and (37), 29 U.S.C.
§§ 1002(3) and (37) and 1301(a)(3).

(Pls. 56.1 Stmt. ¶ 2.)

The

Fund was created to provide members of Local 338 RWDSU/UFCW (the
“Union”)

with

retirement

benefits

and

is

governed

by

the

Reaffirmation and Restatement of Agreement and Declaration of

The facts are drawn from Plaintiffs’ Local Civil Rule 56.1
Statement (“Pls. 56.1 Stmt.”) and admissible record evidence,
including the Ismael Torres Affidavit and the William Anspach
Declaration, along with the exhibits attached thereto. (Pls. 56.1
Stmt., ECF No. 38; Torres Aff., ECF No. 35; Anspach Decl., ECF No.
36.) Because Defendants have not responded to the motion, “the
factual allegations set forth in Plaintiffs’ statement of material
facts pursuant to Local Civil Rule 56.1, to the extent they are
properly supported pursuant to Fed. R. Civ. P. 56(c), are deemed
admitted.”
Durso v. Almonte Beach Food Corp., No. 17-CV-6673,
2021 WL 493398, at *1 n.3 (E.D.N.Y. Feb. 10, 2021) (collecting
authorities).
1

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Trust (the “Trust Agreement”).

(Id. ¶¶ 1, 14; Torres Aff. ¶¶ 2-

3; Trust Agmt., Ex. A, ECF No. 35-1, attached to Torres Aff.)
Defendants were signatories to a series of collective
bargaining agreements (“CBAs”) with the Union under which they
were required to make contributions to the Fund.
¶¶ 4-5.)

(Pls. 56.1 Stmt.

In 2013, the Fund determined that Barsyl effected a

complete withdrawal from the Fund within the meaning of ERISA §
4203(a) and Article VIII of the Trust Agreement.

(Id. ¶ 21.)

In

May 2015, the Fund determined that Almonte Beach effected a
complete withdrawal from the Fund within the meaning of ERISA §
4203(a) and Article VIII of the Trust Agreement.

(Id. ¶ 6.)

On

May 13, 2016, the Fund notified Barsyl that it had effected a
complete withdrawal from the Fund and incurred $143,182.00 in
withdrawal liability.

(Id. ¶ 22.)

Likewise, on September 29,

2016, the Fund notified Almonte Beach that it effected a complete
withdrawal
liability.

and

that

it

(Id. ¶ 7.)

incurred

$140,418.00

in

withdrawal

Neither Barsyl nor Almonte Beach made

payments to the Fund and, by letters dated August 4, 2016 and May
22, 2017, respectively, the Trustees provided Barsyl and Almonte
Beach sixty days to cure their default.

(Id. ¶¶ 23-25, 8-10.)

Barsyl and Almonte Beach did not make payments towards their
withdrawal liability, did not contest the Trustees’ findings, and
did not challenge the Fund’s withdrawal liability assessments.
(Id. ¶¶ 12-13, 27-28.)
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PROCEDURAL HISTORY
Plaintiffs commenced this action on November 17, 2017
pursuant to Section 502 of ERISA, 29 U.S.C. § 1132, seeking to
recover withdrawal liability from Defendants pursuant to ERISA §
4219(c)(5), 29 U.S.C. § 1399(c)(5), and Section 515 of ERISA, 29
U.S.C. § 1145, plus interest and additional damages.

On November

15, 2019, the parties appeared for a pre-motion conference to
discuss

Plaintiffs’

anticipated

(Min. Entry, ECF No. 31.)

motion

for

summary

judgment.

The Court continued the conference to

December 19, 2019, when the parties advised that they reached a
settlement.

(See ECF No. 32.)

After many adjournments and failed

settlement attempts, on October 27, 2020, the Court reinstated
Plaintiffs’ summary judgment motion, which was initially filed on
March 3, 2020.

(Pls. Ltr., ECF No. 49; Oct. 27, 2020 Elec. Order.)
ANALYSIS

I.

Legal Standards
Summary

judgment

is

appropriate

where

there

is

“no

genuine dispute as to any material fact and the movant is entitled
FED. R. CIV. P. 56(a).

to judgment as a matter of law.”

A genuine

factual issue exists where “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v.

The movant bears

the burden of establishing that there are no genuine issues of
material fact.

Gallo v. Prudential Residential Servs., L.P., 22
4

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F.3d 1219, 1223 (2d Cir. 1994).

“[W]here the non-moving party

chooses the perilous path of failing to submit a response to a
summary judgment motion, the district court may not grant the
motion without first examining the moving party’s submission to
determine if it has met its burden of demonstrating that no
material issue of fact remains for trial.”

Vermont Teddy Bear

Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004)
(quotation marks and citation omitted).

“An unopposed summary

judgment motion may also fail where the undisputed facts fail to
show that the moving party is entitled to judgment as a matter of
law.”

Id. (quotation marks and citations omitted).
In reviewing the record, “the court is required to

resolve

all

ambiguities

and

draw

all

permissible

factual

inferences in favor of the party against whom summary judgment is
sought.”

Sheet Metal Workers’ Nat’l Pension Fund v. Vadaris Tech.

Inc., No. 13-CV-5286, 2015 WL 6449420, at *2 (E.D.N.Y. Oct. 23,
2015) (quoting McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.
1997)).

The Court considers the “pleadings, deposition testimony,

answers to interrogatories and admissions on file, together with
any other firsthand information including but not limited to
affidavits.”

Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).

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II.

Discussion
A.

Withdrawal Liability - Statutory Framework
Plaintiffs seek summary judgment on their withdrawal

liability claims against Defendants Barsyl and Almonte Beach.
Under ERISA, every employer who enters into a CBA must make
contributions “in accordance with the terms and conditions of such
plan or such agreement.”

29 U.S.C. § 1145.

Pursuant to the MPPAA,

“withdrawal liability arises when an employer stops contributing
to a multiemployer pension plan and is designed to ‘relieve the
funding burden on remaining employers by having the withdrawing
employer

pay

benefits.’”

its

proportionate

share

of

the

plan’s

unvested

Div. 1181 Amalgamated Transit Union-New York Emps.

Pension Fund v. R & C Transit, Inc., No. 16-CV-2481, 2019 WL
2436144, at *4 (E.D.N.Y. Jan. 15, 2019) (quoting ILGWU Nat’l Ret.
Fund v. Levy Bros. Frocks, Inc., 846 F.2d 879, 881 (2d Cir. 1988)),
report and recommendation adopted by 2019 WL 2436115 (E.D.N.Y.
Feb.

14,

2019).

The

MPPAA

also

provides

that

an

“employer

withdraws from a plan when it permanently ceases to have operations
covered by a CBA or permanently ceases to have obligations to
contribute to the plan.”

Id. (citing 29 U.S.C. § 1383(a)).

Upon

withdrawal, a pension fund must send a notice and demand for
payment

for

an

employer’s

withdrawal

liability

“as

practicable” after an employer’s complete withdrawal.
29 U.S.C. § 1399(b)(1)).

soon

as

Id. (citing

“Payments are set at a level that
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approximates the periodic contributions the employer had made
before withdrawing from the plan.” Bay Area Laundry & Dry Cleaning
Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 196-97
(1997) (citing 29 U.S.C. § 1399(c)(1)(C)).

If the employer fails

to make any scheduled payment, it has sixty days to cure its
nonpayment.

29 U.S.C. § 1399(c)(2).

If the employer fails to

cure, the pension fund may declare the employer in default,
accelerate the payments, and demand the entire unpaid amount of
the withdrawal liability.

29 U.S.C. § 1399(c)(5).

Once an employer receives a notice and demand for payment
from a pension fund, the employer may dispute the amount of the
withdrawal

liability

1399(b)(2)(A).

or

assert

defenses.

29

U.S.C.

§

Where a dispute exists, either party may initiate

arbitration within specified time periods.

29 U.S.C. § 1401.

If

the employer does not initiate arbitration, it waives its right to
dispute the amount of its liability and its right to assert
defenses.

29 U.S.C. § 1401(b)(1).

The pension fund may then

initiate an action in state or federal court to collect the unpaid
withdrawal liability from the employer.
B.

29 U.S.C. § 1451(c).

Defendants Are Liable For Withdrawal Liability
Here, Plaintiffs seek withdrawal liability payments from

Defendants.

To prevail on a claim for withdrawal liability,

Plaintiffs must establish that: (1) each “defendant constituted an
‘employer’ under the MPPAA prior to withdrawal; (2) defendant[s]
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received notice of the withdrawal liability assessment against
[them]; and (3) defendant[s] failed to initiate arbitration as
required by the MPPAA.”

Finkel v. Athena Light & Power LLC, No.

14-CV-3585, 2016 WL 4742279, at *6 (E.D.N.Y. Sept. 11, 2016)
(citation omitted).
The Fund has satisfied each of these elements.

First,

there is no dispute that Defendants were employers under the MPPAA
prior to their withdrawal.

Indeed, both Defendants were parties

to CBAs with the Union, and were obligated to make contributions
to the Fund.
both

(Pls. 56.1 Stmt. ¶¶ 4-5.)

Defendants

of

their

withdrawal

certified mail on two occasions.

Second, the Fund notified
liability

assessments

by

See Trustees of Nat’l Ret. Fund

v. Le Perigord, Inc., No. 16-CV-6921, 2018 WL 1747257, at *2-3
(S.D.N.Y. Apr. 9, 2018).

Indeed, the Fund notified Barsyl of its

withdrawal liability, and the right to cure its default, on May
13, 2016 and August 4, 2016.

(Pls. 56.1 Stmt. ¶¶ 22, 25.)

Similarly, the Fund notified Almonte Beach of its withdrawal
liability, and the right to cure its default, on September 29,
2016 and May 22, 2017.

(Id. ¶¶ 7, 10.)

Third, and finally,

Defendants never requested to review of the Trustee’s assessments
or initiated arbitration regarding their withdrawal liability.
(Id. ¶¶ 13, 28.)

It follows that Defendants’ “ability to contest

the amount of withdrawal liability due and owning is foreclosed.”

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Div. 1181 Amalgamated Transit, 2019 WL 2436144, at *5 (collecting
cases).
Accordingly, Plaintiffs’ motion for summary judgment on
their

claims

GRANTED.

for

withdrawal

liability

against

Defendants

is

Plaintiffs are entitled to $143,182.00 in withdrawal

liability from Barsyl; and, $140,418.00 in withdrawal liability
from Almonte Beach.
C.

Interest and Liquidated Damages
The

Court

next

considers

Plaintiffs’

request

for

interest on Defendants’ withdrawal liability and for liquidated
damages.2 (Pls. Br. at 9-11.) “In any action to collect withdrawal
liability ‘in which a judgment in favor of the plan is awarded,
the

court

withdrawal

shall

award

liability,

the

plan,’

reasonable

in

addition

attorneys’

to

fees

the

unpaid

and

costs,

interest, and liquidated damages.” UNITE Nat. Ret. Fund v. Veranda
Mktg. Co., No. 04-CV-9869, 2009 WL 2025163, at *4 (S.D.N.Y. July
13, 2009) (quoting 29 U.S.C. §§ 1132(g)(2)(B)). This damages award
is a “mandatory remedy.”
1.

Id. (citation omitted).

Prejudgment Interest

Plaintiffs

first

seek

prejudgment

interest

on

the

withdrawal liability amounts pursuant to the Trust Agreement and

Plaintiffs have reserved the right to submit a separate
application for attorneys’ fees in the event the motion for summary
judgment is granted. (Pls. Br. at 11.)
2

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Section 502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2), which mandates
an award of interest at the rate established by the pension plan.
(Pls. Br. at 10.)

The Trust Agreement provides for the payment of

interest at a rate of 1½ percent per month, or 18 percent per year,
from the date payment was due.

(Pls. 56.1 Stmt. ¶¶ 15-16, 30-31;

Trust Agmt., Amendment No. 4, at ECF p. 39.)

Interest has accrued

from July 1, 2016 for Barsyl (Pls. 56.1 Stmt. ¶ 23), and from
October 1, 2016 for Almonte Beach (id. ¶ 8).
For Barsyl, interest calculated at 1½ percent per month
on the $143,182.00 withdrawal liability amounts to $2,147.73 per
month.

The time period from July 1, 2016 through March 1, 2020

encompasses forty-four months.

Therefore, Plaintiffs are entitled

to prejudgment interest from Barsyl in an amount of $94,500.12
with additional interest accruing from March 1, 2020 through the
month of payment at a rate of $2,147.73 per month.
For Almonte Beach, interest calculated at 1½ percent per
month on the $140,418.00 withdrawal liability amounts to $2,106.27
per month.

The time period from October 1, 2016 through March 1,

2020 encompasses forty-one months.

Therefore, Plaintiffs are

entitled to prejudgment interest from Almonte Beach in an amount
of $86,357.07, with additional interest accruing from March 1,
2020 through the month of payment at a rate of $2,106.27 per month.

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2.

Liquidated Damages

Plaintiffs also request, and are entitled to, liquidated
damages.
Section

(Pls. Br. at 10-11.)
502(g)(2)(C)

of

Under the Trust Agreement and

ERISA,

29

U.S.C.

§

1132(g)(2)(C),

Plaintiffs are entitled to damages in an amount equal to the
greater

of:

(i) interest

on

the

unpaid

contributions,

or

(ii) liquidated damages in the form of twenty percent of the unpaid
contributions.

(Pls. 56.1 Stmt. ¶¶ 18, 33; Trust Agmt. at ECF pp.

19-20, Article VII(5)(d)); 29 U.S.C. § 1132(g)(2)(C)(i) and (ii);
see also Finkel, 2016 WL 4742279, at *9.
Here,

Plaintiffs

are

correct

that

the

interest

calculated above is greater than twenty percent of the unpaid
withdrawal liability for Barsyl, which twenty percent amounts to
$28,636.40, and for Almonte Beach, which twenty percent amounts to
$28,083.60.

Accordingly, for Barsyl, Plaintiffs are entitled to

an award of liquidated damages equal to $94,500.12, in addition to
$2,147.73 per month from March 1, 2020 through the month of
payment.

For Almonte Beach, Plaintiffs are entitled to an award

of liquidated damages equal to $86,357.07, in addition to $2,106.27
per month from March 1, 2020 through the month of payment.

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CONCLUSION
For

the

stated

reasons,

IT

IS

HEREBY

ORDERED

that

Plaintiffs’ unopposed motion for summary judgment (ECF No. 34) is
GRANTED and Plaintiffs are entitled to judgment against Defendants
Barsyl Supermarkets, Inc. and Almonte Beach Food Corp.; and
IT

IS

FURTHER

ORDERED

that

Plaintiffs

are

awarded

damages from Defendants as follows:
(1)

As from Barsyl:
(a) $143,182.00 in withdrawal liability;
(b) $94,500.12 in prejudgment interest, with additional
interest accruing from March 1, 2020 through the month
of payment at a monthly rate of $2,147.73; and
(c) $94,500.12 in liquidated damages, in addition to
$2,147.73 per month from March 1, 2020 through the month
of payment; and

(2)

As from Almonte Beach:
(a) $140,418.00 in withdrawal liability;
(b) $86,357.07 in prejudgment interest, with additional
interest accruing from March 1, 2020 through the month
of payment at a monthly rate of $2,106.27; and
(c) $86,357.07

liquidated

damages,

in

addition

to

$2,106.27 per month from March 1, 2020 through the month
of payment; and
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IT IS FURTHER ORDERED that, within thirty (30) days from
the date of this Order, Plaintiffs may file a motion to recover
attorneys’ fees and costs incurred in this action, pursuant to
Section 502(g)(2)(E) of ERISA, 29 U.S.C. § 1132(g)(2)(E); and
IT IS FURTHER ORDERED that, within thirty (30) days from
the date of this Order, Plaintiffs shall file a status report
informing the Court how they intend to proceed against defendants
Almonte Realty, Daymonte, and Almonte Mill.

SO ORDERED.
/s/__JOANNA SEYBERT________
Joanna Seybert, U.S.D.J.
Dated: September 16 , 2021
Central Islip, New York

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