Upstate New York Engineers Health Fund et al v. DiPizio Construction Co. Inc. et al.

Filing 74

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Defendants' cross-motion for leave to file an amended answer (Dkt. No. 63 ) is DENIED; and the Court further ORDERS that Plaintiffs' motion for summary judgment (Dkt. No. 61 ) is DENIED in part as to the requested permanent injunction, and GRANTED in part as to an audit of DiPizio Construction's books and records from January 2016 to date, as well as to unpaid contributions and deductions, interest, liquidated dama ges, and attorneys' fees and costs; and the Court further ORDERS that the Clerk of the Court shall enter judgment in the amount of $623,313.88 against DiPizio Construction, consisting of (1) $232,271.14 in unpaid contributions and d eductions, (2) $171,075.53 in interest on unpaid contributions and deductions, (3) $171,508.46 in liquidated damages, (4) $2,305.75 in interest and liquidated damages on contributions untimely paid before the complaint was filed, and (5) $46,153 in attorneys' fees and costs; and the Court further ORDERS that the Clerk of the Court shall enter judgment in the amount of $213,454.23 against Rosanne and Bernard DiPizio, consisting of (1) $156,878.59 in unpaid c ontributions, (2) $10,422.64 in prejudgment interest, and (3) $46,153 in attorneys' fees and costs; and the Court further ORDERS that Defendants are required to produce DiPizio Construction's books and records for the period fr om January 2016 to date for Plaintiffs' review and audit, and that the Court shall retain jurisdiction in this matter until Plaintiffs complete their audit of DiPizio Construction's books and records; and the Court further ORDERS that wi thin thirty (30) days of the completion of the audit, Plaintiffs shall move for entry of judgment against Defendants for any and all contributions and deductions that are determined to be due as a result of the audit, plus the applicable interest thereon, liquidated damages, audit costs, and attorneys' fees and costs; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Plaintiffs' favor; and the Court further ORDERS that the Clerk of the Court serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 7/14/2017. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
UPSTATE NEW YORK ENGINEERS HEALTH
FUND, by Daniel P. Harrigan, as Administrator,
UPSTATE NEW YORK ENGINEERS PENSION
FUND, by Daniel P. Harrigan, as Administrator,
UPSTATE NEW YORK ENGINEERS S.U.B.
FUND, by Daniel P. Harrigan, as Administrator,
UPSTATE NEW YORK ENGINEERS TRAINING
FUND, by Theron Hogle and Eugene Hallock, as
Trustees, OPERATING ENGINEERS LOCAL 17
TRAINING FUND, by James Smolinski, as
Administrative Manager, CENTRAL PENSION
FUND OF THE INTERNATIONAL UNION OF
OPERATING ENGINEERS AND PARTICIPATING
EMPLOYERS, by Michael R. Fanning, as Chief
Executive Officer, INTERNATIONAL UNION OF
OPERATING ENGINEERS, LOCAL UNION NO.
17, by Norman Noon, as Business Manager,
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL UNION NO. 463, by
Paul McCollum, as Business Manager,
Plaintiffs,
vs.

5:14-CV-1539
(MAD/TWD)

DIPIZIO CONSTRUCTION CO., INC.,
BERNARD DIPIZIO, individually and as an
Officer of DiPizio Construction Co., Inc.,
ROSANNE DIPIZIO, individually and as an
Officer of DiPizio Construction Co., Inc.,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

BLITMAN, KING LAW FIRM
443 North Franklin Street Suite 300
Syracuse, New York 13204
Attorneys for Plaintiffs

JENNIFER A. CLARK, ESQ.

BARCLAY DAMON LLP
3 Fountain Plaza
1100 M&T Center

MICHAEL E. FERDMAN, ESQ.

Buffalo, New York 14203
Attorneys for Defendants
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On December 19, 2014, Plaintiffs Upstate New York Engineers Health Fund ("Health
Fund"), Upstate New York Engineers Pension Fund ("Pension Fund"), Upstate New York
Engineers S.U.B. Fund ("S.U.B. Fund"), Upstate New York Engineers Training Fund ("Training
Fund"), Operating Engineers Local 17 Training Fund ("Operating Fund"), Central Pension Fund
of the International Union of Operating Engineers and Participating Employers ("Central Fund")
(collectively, the "Funds"), International Union of Operating Engineers, Local Union No. 17, and
International Union of Operating Engineers, Local Union No. 463 (collectively, the "Unions")
commenced this action against DiPizio Construction Co., Inc., Bernard DiPizio, and Rosanne
DiPizio for failing to timely remit benefit contributions and deductions under the Employee
Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., and the Labor
Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 1985. See Dkt. No. 1 at ¶¶ 1-2.
Presently before the Court are Plaintiffs' motion for summary judgment and Defendants' crossmotion for leave to file an amended answer. See Dkt. Nos. 61, 63. As set forth below, the motion
for summary judgment is granted in part and denied in part, and the motion for leave to file an
amended answer is denied.
II. BACKGROUND
Defendant DiPizio Construction is a New York corporation. See Dkt. No. 1 at ¶ 16.
Plaintiffs allege that Bernard DiPizio is DiPizio Construction's president, and that Rosanne
DiPizio is its vice president. See id. at ¶¶ 17-18. Plaintiffs are fiduciaries of the Funds and the
2

business managers of the Unions, and they bring this action alleging that DiPizio Construction
failed to timely remit contributions and deductions owed to the Funds and the Unions. See id. at
¶¶ 7-14. When the complaint was filed on December 19, 2014, Plaintiffs alleged that DiPizio
Construction owed $315,696.74 in fringe benefit contributions and deductions. See id. at ¶ 32.
Based on two audits conducted after the complaint was filed and DiPizio Construction's
remittance reports, Plaintiffs now claim that DiPizio Construction owed a total of $508,371.56 in
contributions and deductions through February 2016. See Dkt. No. 61-57 at 8.1 Of that amount,
Defendants, Defendants' surety, and third parties had untimely paid $276,048.07 as of the time
that the motion for summary judgment was filed. See id. Therefore, DiPizio Construction
allegedly owes $232,323.49 in outstanding contributions and deductions.
According to Plaintiffs, DiPizio Construction is required to pay contributions and
deductions to the Funds and the Unions because it is bound to collective bargaining agreements
("CBAs") with Local No. 17 and Local No. 463. See id. at ¶¶ 24-25. Defendants' obligations to
the Funds arise from the CBAs, and the CBAs require DiPizio Construction to comply with the
terms of the Funds' trust agreements. See Dkt. No. 61-57 at 3-4. Although the CBAs at issue
were signed by the Unions and the Association of General Contractors Labor Relations Division
("AGC/LRD"), Plaintiffs allege that DiPizio Construction is nonetheless bound to those CBAs.
See id. In their answer, Defendants admitted that DiPizio Construction is bound to the CBAs, see
Dkt. No. 16 at ¶ 1, but Defendants now seek to amend their answer to assert that they were never
bound to the CBAs between the AGC/LRD and the Unions, see Dkt. No. 63-1 at 3.

Page numbers for docket entries in this Memorandum-Decision and Order refer to those
assigned by the Court's electronic filing system ("ECF").
1

3

On December 15, 2016, Plaintiffs filed a motion for summary judgment seeking an award
of unpaid deductions and contributions, as well as interest, liquidated damages, audit fees, and
attorneys' fees and costs. See Dkt. No. 61-57 at 1. Defendants filed an opposition to the motion
in which they argue—for the first time—that DiPizio Construction was never bound to the CBAs
between the Unions and the AGC/LRD. See Dkt. No. 63-1 at 5. Defendants claim that DiPizio
Construction withdrew bargaining authority from the AGC/LRD before it signed the CBA with
Local No. 17, and that the AGC/LRD was never delegated as DiPizio Construction's bargaining
agent with respect to Local No. 463. See Dkt. No. 63-1 at 5-6; Dkt. No. 64-4 at ¶ 12. In support
of that claim, Defendants submit an affidavit from Rosanne DiPizio stating that while reviewing
Plaintiffs' summary judgment motion, she was "reminded" that DiPizio Construction had
withdrawn its designation of the AGC/LRD as a bargaining agent. See Dkt. No. 64-4 at ¶ 9.
Defendants also submit a letter stating that "DiPizio Construction Company, Inc. hereby
withdraws its' [sic] designation from the AGC/LRD, multi-employer bargaining unit as previously
designated on 2/24/05 and 3/8/05." Dkt. No. 64-5 at 2. The letter is dated May 27, 2005, see id.,
years before the AGC/LRD signed the 2009-2014 and 2014-2017 CBAs with Local No. 17, to
which Plaintiffs claim DiPizio Construction is bound, see Dkt. Nos. 68-2, 68-3.
On the same day that Defendants responded to the summary judgment motion, Defendants
also cross-moved to amend their answer in order to deny being bound to the CBAs. See Dkt. No.
63-1 at 4. Plaintiffs responded to Defendants' cross-motion to amend, arguing that even if
Defendants withdrew AGC/LRD's bargaining authority, Defendants are still bound to the CBAs.
See Dkt. No. 68.
III. DISCUSSION
A.

Standard of Review
4

1. Summary Judgment
A court may grant a motion for summary judgment only if it determines that there is no
genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at
36-37 (quotation and other citation omitted). Moreover, it is well settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the
motion or fails to dispute the movant's statement of material facts, the court may not rely solely
on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to
evidence in the record support the movant's assertions. See Giannullo v. City of New York, 322
F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the
motion for summary judgment "would derogate the truth-finding functions of the judicial process
by substituting convenience for facts").
"[S]ummary judgment may be requested not only as to an entire case but also as to a
claim, defense, or part of a claim or defense." Fed. R. Civ. P. 56(a) advisory committee's note to
2010 amendment. Summary judgment may also be granted against any part of the remedy sought

5

by the opposing party's claims. See Hamblin v. British Airways PLC, 717 F. Supp. 2d 303, 307
(E.D.N.Y. 2010).
2. Motion to Amend
"A party may amend its pleading only with the opposing party's written consent or the
court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P.
15(a)(2). District Courts have broad discretion to grant or deny an opportunity to amend. See
Foman v. Davis, 371 U.S. 178, 182 (1962). Under Rule 15(a), a motion to amend a pleading

should only be denied, "if there is an 'apparent or declared reason — such as undue delay, bad
faith or dilatory motive . . ., repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of the allowance of an amendment, [or]
futility of amendment.'" Dluhos v. Floating and Abandoned Vessel Known as "New York", 162
F.3d 63, 69 (2d Cir. 1998) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)) (other citation
omitted); accord Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir. 1987)
(citation omitted). An amendment of a pleading is considered "futile" when the proposed new
claim would not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. See Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991); see also Vasile
v. Dean Witter Reynolds Inc., 20 F. Supp. 2d 465, 468 (E.D.N.Y. 1998), aff'd, 205 F.3d 1327 (2d
Cir. 2000).
B.

The Collective Bargaining Agreements
In their opposition to the motion for summary judgment and their motion to amend,2

Defendants make three different arguments regarding the applicability of the CBAs signed by the

Defendants submitted the same memorandum of law in support of both their opposition
to the motion for summary judgment and their motion for leave to amend their answer.
2

6

AGC/LRD and the Unions. First, Defendants argue that DiPizio Construction was never bound to
the CBAs between the AGC/LRD and the Unions because the AGC/LRD lacked bargaining
authority to bind DiPizio Construction to the CBAs. See Dkt. No. 64 at 8-9. Second, even if the
Court finds that DiPizio Construction was bound to the CBAs, DiPizio Construction should not
be required to remit contributions and deductions for work performed on certain jobs that
Defendants claim were not covered by the terms of the CBA. See id. at 9. Third, Defendants
argue that any dispute over the applicability of the CBAs is governed by the arbitration clauses
contained in the CBAs; therefore, Plaintiffs' claims should be referred to arbitration. See id. at 10.
1. Withdrawal of Bargaining Authority
In their complaint, Plaintiffs allege that "[a]t all times relevant herein, Defendant
Corporation was bound to" both the 2009-2014 CBA with Local No. 17 and the 2012-2016 CBA
with Local No. 463. Dkt. No. 1 at ¶¶ 24-25. In their May 22, 2015 answer, Defendants admitted
those allegations. See Dkt. No. 16 at ¶ 1. Over a year and a half later—after the close of
discovery and after the deadline for dispositive motions—Defendants now seek to amend their
answer in order to deny those and other allegations. Defendants now claim that DiPizio
Construction was never bound to the CBAs with Local No. 17 because it withdrew bargaining
authority from the AGC/LRD by letter dated May 27, 2005—years before the CBAs in question
were signed. Additionally, Defendants claim never to have designated bargaining authority to the
AGC/LRD with respect to Local No. 463, and that they were therefore never bound to any CBAs
between the AGC/LRD and Local No. 463.3 Plaintiffs argue that even if DiPizio Construction did

In her affidavit, Rosanne DiPizio states that Defendants admitted to being bound to the
CBA with Local No. 17 because they had forgotten that DiPizio Construction withdrew
bargaining authority from the AGC/LRD in 2005. See Dkt. No. 64-4 at ¶ 9. As for Local No.
463, Defendants claim that DiPizio Construction never delegated bargaining authority to the
AGC/LRD with respect to any CBA with Local No. 463. But Defendants do not explain why
3

7

not delegate bargaining authority to the AGC/LRD, DiPizio Construction was still bound to the
CBAs because it adopted the CBAs through its conduct.
Section 302(c)(5)(B) of the LMRA requires that payments to a trust fund be made
pursuant to a "written agreement with the employer." 29 U.S.C. § 186(c)(5)(B). However,
"[s]ection 302(c)(5)(B) does not require that an agreement be signed, only that it be 'written' and
set forth 'a detailed basis on which . . . payments are to be made' to a trust fund. Accordingly, an
unsigned, written agreement satisfies Section 302(c)(5)(B)'s 'written agreement' requirement."
Brown v. C. Volante Corp., 194 F.3d 351, 355 (2d Cir. 1999) (quoting 29 U.S.C. § 186(c)(5)(B));
see also Bricklayers Local 21 of Ill. Apprenticeship & Training Program v. Banner Restoration,
Inc., 385 F.3d 761, 766 (7th Cir. 2004) ("We begin with the well-established principle '"that a
collective bargaining agreement is not dependent on the reduction to writing of the parties'
intention to be bound," . . . rather "all that is required is conduct manifesting an intention to be
bound by the terms of an agreement."'") (quoting Gariup v. Birchler Ceiling & Interior Co., 777
F.2d 370, 373 (7th Cir. 1985)). Therefore, even if DiPizio Construction never signed the CBAs, it
can still be bound to the terms of the CBAs.
Courts have looked to a number of factors in determining whether an employer's conduct
"manifested an intent to adopt, or agree to, . . . unsigned CBAs." Brown, 194 F.3d at 355. Those
factors include "payment of the wages on the union scale, paying pension and welfare
contributions, submission of benefit reports, and accession to union audits." New England Health
Care Empls. Welfare Fund v. iCARE Mgmt., LLC, 886 F. Supp. 2d 82, 100 (D. Conn. 2012)
(citing Brown, 194 F.3d at 355). In Brown, the Second Circuit found that there was no issue of
material fact as to whether an employer had adopted an unsigned CBA because the employer

they admitted to being bound to the CBA with Local No. 463 in their answer.
8

submitted monthly remittance reports, cooperated with an audit, paid union wages, and wrote a
letter to the plaintiff funds acknowledging "responsibility to the funds." Brown, 194 F.3d at 35455.
In this case, DiPizio Construction has similarly manifested its intent to be bound to the
CBAs with Local No. 17 and Local No. 463. DiPizio Construction submitted to three separate
audits, see Dkt. Nos. 61-42, 61-43,4 submitted remittance reports, see Dkt. Nos. 61-35, 61-37, 6138, and even paid a portion of the outstanding contributions and deductions after this action was
filed, see Dkt. No. 65 at ¶¶ 23-24.5 Additionally, DiPizio Construction signed multiple
agreements evidencing their intent to be bound to the CBAs. DiPizio Construction signed
memoranda of agreement with Local No. 463 in 2008 and 2012 modifying certain aspects of
CBAs between the AGC/LRD and Local No. 463. See Dkt. No. 61-19 at 38; Dkt. No. 68-6 at 40.
As for the CBA with Local No. 17, DiPizio Construction signed a similar memorandum of
understanding on June 22, 2005—nearly a month after withdrawing bargaining authority from the
AGC/LRD—modifying the CBA between the AGC/LRD and Local No. 17. See Dkt. No. 68-1.
Finally, and perhaps most tellingly, Defendants admitted in their answer that DiPizio
Construction was bound to the CBAs. See Dkt. No. 16 at ¶ 1. Although they now seek to amend
their answer and assert that DiPizio Construction was never bound to the CBAs, Defendants were,

Plaintiffs conducted three audits of DiPizio Construction's books and records. After the
first audit in October 2014, Defendants objected to a portion of the audit allocating employee
time to specific constructions projects. See Dkt. No. 61-41 at ¶ 9. Defendants requested that
Plaintiffs re-audit DiPizio Construction's books and records making certain changes. See id. The
second audit was conducted in July 2015, and a third audit was conducted in February 2016. See
Dkt. Nos. 61-42, 61-43.
4

In their response to Plaintiffs' statement of material facts, Defendants concede that they
made those payments, but they contend that the payments were voluntary and maintain that they
are not bound to the CBAs. See Dkt. No. 65 at ¶¶ 23-24.
5

9

at the very least, under the impression that DiPizio Construction was bound to the CBAs when
Defendants filed their answer. According to the evidence before the Court, DiPizio Construction
has, at all times prior to Defendants' opposition to the motion for summary judgment, operated as
though it were bound to the CBAs.
Because there is no genuine issue of material fact as to whether DiPizio Construction
adopted the CBAs with the Unions, Defendants' motion to amend their answer in order to deny
being bound to the CBAs is denied as futile.
2. "Heavy" and "Highway" Jobs
Defendants argue that, even if DiPizio Construction was bound to the CBAs, certain jobs
were not covered by the 2014-2017 CBA between Local No. 17 and the AGC/LRD, which
contains the following language: "This agreement shall apply to Heavy and Highway construction
and building site work but shall not apply to the actual building, foundations, structural portion
and interiors of buildings that are normally covered by Building agreements in the geographical
area of this agreement." See Dkt. No. 63-1 at 7; Dkt. No. 68-3 at 6.
According to Defendants, some portion of the work performed after the complaint was
filed was not heavy, highway, or building site work; instead, it was building work that is not
covered by the CBA with Local No. 17. See Dkt. No. 64 at 9-10. Defendants identify four
particular projects or categories of projects that they argue are not subject to the CBA:
"Clearview," "Gabes," "Small Jobs: Misc.," and "Shop." See Dkt. No. 63-5 at ¶¶ 28-29. But
Defendants provide no documentary evidence indicating the nature of the work that was done on
those jobs. They simply attach an affidavit from Rosanne DiPizio stating in conclusory terms that
the work was not covered by the CBA. See id.

10

In reply, Plaintiffs provide extensive evidence contradicting Defendants' claim. See Dkt.
No. 68. First, Plaintiffs provide affidavits from four different members of Local No. 17 who
claim to have worked on the jobs or categories of jobs in question. See Dkt. Nos. 68-12, 68-13,
68-14, 68-15. Each affidavit states that the union members were paid union wages and that they
were never given any indication that they would not receive their full employee benefits package.
See id. Furthermore, the affidavits actually describe the work that was performed and, in every
instance, it was the type of work that is covered by the CBA. See id. Second, according to Local
No. 17's business manager, DiPizio Construction deducted union dues from the employees' wages
in accordance with the CBA. See Dkt. No. 68 at ¶ 22. Third, Plaintiffs provide an application for
a highway work permit signed by Bernard DiPizio that describes the work that DiPizio
Construction proposed to do on the Gabe job. See Dkt. No. 68-11 at 12. The categories of
proposed work were "pavement," "storm drainage and grading," and "erosion and sedimentation
control." Id. Based on the description of the work included in the application, it appears that the
work done on the Gabe job was covered by the CBA.
Rosanne DiPizio's brief, conclusory statement is not sufficient to create an issue of fact as
to whether the jobs in question were covered by the CBAs. See McKenzie Eng'g Co. v. N.L.R.B.,
182 F.3d 622, 626 (8th Cir. 1999) (holding that there was no issue of fact as to whether a specific
job was covered under a "Highway and Heavy" provision where the employer deducted union
dues pursuant to the CBA and its president made a statement implying that the work was covered
by the CBA).
3. Arbitration
The 2014-2017 CBA between Union Local No. 17 and the AGC/LRD establishes
procedures for arbitrating disputes between an employer and the union. See Dkt. No. 68-3 at 4.
11

Under the CBA, disputes over "the interpretation, application or meaning of any provision" of the
CBA may be referred to arbitration. See id. In light of that language, Defendants argue that any
dispute over the applicability of the CBA to certain types of jobs—including whether the jobs
identified by Defendants fall into the categories of highway, heavy, or building site work—must
be decided by an arbitrator, not a federal court. See Dkt. No. 63-1 at 10.
When a labor agreement contains an arbitration clause, there is a presumption in favor of
arbitration. See Local 8A-28A Welfare & 401(K) Retirement Funds v. Millard Grp., Inc., No. 03CV-8672, 2004 WL 305729, *2 (S.D.N.Y. Feb. 18, 2004) (citing United Steelworkers of Am. v.
Warrior & Gulf Nav. Co., 363 U.S. 574, 578 (1960)). However, the presumption of arbitrability
applies only to the parties to the agreement, not to third party beneficiaries of the agreement, such
as employee benefit funds. See MI Installers & Furniture Serv., Inc. v. N.Y.C. Dist. Council of
Carpenters Pension Fund, 476 F. Supp. 2d 387, 391 (S.D.N.Y. 2007); see also Schneider Moving
& Storage Co. v. Robbins, 466 U.S. 364, 372 (1984) ("[T]he presumption of arbitrability is not a
proper rule of construction in determining whether arbitration agreements between a union and
the employer apply to disputes between trustees and employers."). Because the Funds are seeking
to recover unpaid contributions from DiPizio Construction for the jobs in question, the
presumption of arbitrability does not apply. The question, then, is whether the CBA evidences an
intent to arbitrate disputes between an employer and employee benefit funds.
There is no provision in the CBA addressing arbitration of disputes between employers
and employee benefit funds. Instead, the section of the CBA dealing with arbitration mentions
only the employer and the union. See Dkt. No. 68-3 at 6. In similar cases, courts in this circuit
have found "the plain language of these provisions to limit the mandatory arbitration requirement
to the parties explicitly referenced in the agreement: the Employer and the Union." Dodge
12

Hyundai of Paramus v. United Welfare Fund, Welfare Div., No. 11-CV-979, 2011 WL 4356373,
*4 (E.D.N.Y. Sept. 16, 2011); accord MI Installers, 476 F. Supp. 2d at 392. Defendants' two
sentence argument in favor of arbitration provides no evidence of an agreement that benefit funds
should be required to arbitrate disputes over unpaid contributions. Therefore, the Court rejects
Defendants' argument that the dispute over the applicability of the CBA requires arbitration.
C.

DiPizio Construction Company
Plaintiffs allege that DiPizio construction is liable for failure to make contributions and

deductions to the Funds and the Unions as required by ERISA and the LMRA. Under ERISA, an
employer that is required to make contributions to a multiemployer benefit plan "must make such
contributions in accordance with the terms and conditions of such plan or [collectively bargained]
agreement." 29 U.S.C. § 1145. Similarly, the LMRA "provides a federal cause of action for
'[s]uits for violation of contracts between an employer and a labor organization.'" Gesualdi v.
Reid, 198 F. Supp. 3d 211, 218 (E.D.N.Y. 2016) (quoting 29 U.S.C. § 185(a)). Here, the facts
establish that DiPizio Construction was bound by the CBAs requiring it to make contributions
and deductions, and that it failed to do so.
"Ordinarily, claims for damages must be established in an evidentiary proceeding at which
a defendant is afforded an opportunity to contest the amount claimed." Annuity, Pension, Welfare
& Training Funds of the In'l Union of Operating Eng'rs, Local 14 14B, AFL CIO v. Superior Site
Work, Inc., No. 15-CV-543, 2017 WL 639248, *4 (E.D.N.Y. Feb. 16, 2017). However, an
evidentiary hearing is not required if the court can make a determination of damages based on
detailed affidavits and documentary evidence submitted by the plaintiff. See id. In this case,
Plaintiffs provide extensive documentation—including audits, remittance reports, and numerous
affidavits—detailing DiPizio Construction's delinquent contributions and deductions to the Funds
13

and the Unions. Defendants, on the other hand, have not provided any evidence contesting
Plaintiffs' calculations of unpaid contributions, deductions, interest, or liquidated damages.
Although Defendants challenge the applicability of the CBAs to DiPizio Construction, their
opposition to the motion for summary judgment does not challenge the calculation of damages
provided by Plaintiffs. Therefore, the Court will determine damages based on the affidavits and
documentary evidence submitted by Plaintiffs.
The civil enforcement provision of ERISA provides that
[i]n any action under this subchapter by a fiduciary for or on behalf
of a plan to enforce section 1145 of this title in which a judgment in
favor of the plan is awarded, the court shall award the plan–
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of–
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan
in an amount not in excess of 20 percent (or such higher percentage as may be
permitted under Federal or State law) of the amount determined by the court under
subparagraph (A),
(D) reasonable attorney's fees and costs of the action, to be
paid by the defendant, and
(E) such other legal or equitable relief as the court deems
appropriate.
29 U.S.C. § 1132(g)(2). Here, Plaintiffs seek contributions, deductions, interest, liquidated
damages, audit fees, and attorneys' fees and costs. See Dkt. No. 61-57 at 4.
1. Contributions and Deductions
According to a July 8, 2015 audit, DiPizio Construction owed $265,959.69 in
contributions and deductions for the period of February 1, 2011 through July 31, 2014. See Dkt.
14

No. 61-45 at ¶ 8. After this action was filed, DiPizio's surety, Travelers Casualty and Surety
Company of America ("Travelers"), untimely paid $199,741.16 of the outstanding contributions
and deductions. See id. at ¶ 9. Additionally, DiPizio Construction untimely paid another
$13,750.47 of the overdue contributions and deductions identified in the July 8, 2015 audit,
leaving a balance of $52,468.06 for the period of February 1, 2011 through July 31, 2014. See id.
at ¶ 10. Plaintiffs conducted the second audit of DiPizio Construction's records on February 7,
2016. See Dkt. No. 61-43. According to that audit, DiPizio Construction owed an additional
$209,679.00 in contributions and deductions for the period of August 2014 through December
2015. See Dkt. No. 61-45 at ¶ 14. A third party paid $37,291.64 of those outstanding
contributions and deductions, which left a balance of $172,387.36 for the period of August 2014
through December 2015. See id. at ¶ 16. Finally, remittance reports submitted by DiPizio
Construction show that it owed an additional $7,468.07 in contributions and deductions for
January and February 2016. See id. at ¶ 17.
Therefore, Plaintiffs claim that DiPizio Construction owes a total of $232,323.49 in
outstanding contributions and deductions. After reviewing all of the affidavits and supporting
documentation, the Court concludes that, with one minor exception, Plaintiffs' calculations
accurately reflect the amount that is due, and the Court awards Plaintiffs $232,271.14 in
outstanding contributions and deductions.6

Plaintiffs submit an affidavit from Paul McCollum, who is the business manager of Local
No. 463, a trustee of the Training Fund, and a trustee of the Construction Industry Research and
Service Trust Fund ("C.I.R.S.T. Fund"). In the affidavit, McCollum states that Defendants owe
$53.35 to the C.I.R.S.T. Fund, see Dkt. No. 61-16 at ¶ 24; unpaid contributions to the C.I.R.S.T.
Fund are also included in Plaintiffs' audits, see Dkt. Nos. 42, 43. However, the C.I.R.S.T. Fund is
not a plaintiff in this case, and Plaintiffs provide no explanation for why the C.I.R.S.T. Fund is
entitled to recover unpaid contributions. Therefore, the Court subtracts the $53.35 owed to the
C.I.R.S.T. Fund from the total amount of outstanding contributions and deductions owed by
DiPizio Construction.
6

15

2. Interest
Plaintiffs seek interest on unpaid and untimely paid contributions and deductions. For the
purposes of an action to collect interest on unpaid contributions under ERISA, "interest on unpaid
contributions shall be determined by using the rate provided under the plan, or, if none, the rate
prescribed under section 6621 of Title 26." 29 U.S.C. § 1132(g)(2). "Under the LMRA, it is
within the court's discretion to award prejudgment interest." Finkel v. INS Elec. Servs. Inc., No.
06-CV-4862, 2008 WL 941482, *7 (E.D.N.Y. Apr. 4, 2008). The Funds' trust agreements
provide for interest at the following rates: twenty-four percent for the Upstate New York
Engineers Training, Health, Pension, and S.U.B. funds, see Dkt. No. 61-28 at ¶ 11; nine percent
for the Central Fund, see Dkt. No. 61-21 at ¶ 7; and the Operating Fund provides for interest at
the rate prescribed by ERISA, see Dkt. No. 61-13 at ¶ 7.7 The Local No. 17 and Local No. 463
CBAs do not specify a rate of interest to be paid on delinquent deductions due to the Unions;
therefore, Plaintiffs chose to apply the New York state statutory rate of nine percent as set forth
by the New York Civil Practice Law and Rules § 5004. See Dkt. No. 61-16 at ¶ 19; Dkt. No. 6124 at ¶ 15.
Based on the above rates, Plaintiffs request $171,075.53 in interest on unpaid
contributions and deductions through January 1, 2017. See Dkt. No. 61-57 at 7. After reviewing
Plaintiffs' calculations, see Dkt. Nos. 47, 48, 49, 50, 51, the Court finds that they accurately
reflect the amount of interest owed by DiPizio Construction.
3. Liquidated Damages

The interest rate prescribed by ERISA is the federal short-term interest rate plus three
percentage points. See 26 U.S.C. § 6621(1).
7

16

Plaintiffs request liquidated damages on unpaid and untimely paid contributions in the
amount of $185,333.54. See Dkt. No. 61-57 at 7. ERISA provides for liquidated damages in an
"amount equal to the greater of--(i) interest on the unpaid contributions; or (ii) liquidated damages
provided for under the plan in an amount not in excess of 20 percent" of the unpaid contributions.
29 U.S.C. § 1132(g)(2)(C). After reviewing Plaintiffs' calculation of liquidated damages, the
Court was not able to determine how Plaintiffs arrived at some of the figures laid out in their
spreadsheets. Specifically, there are several instances where Plaintiffs assess liquidated damages
on unpaid contributions that are greater than twenty percent of the unpaid contributions and also
greater than the interest on the unpaid contributions; such amounts are not compatible with
ERISA's liquidated damages provision. See Dkt. No. 61-47 at 5, 15, 19; Dkt. No. 61-49 at 4.
Therefore, the Court will instead award Plaintiffs an amount equal to the interest on unpaid
contributions as laid out in Plaintiffs' spreadsheets, which is $171,508.46.8 See Dkt. Nos. 47, 49,
50.
4. Late Contributions and Deductions Paid Before the Filing of this Action
Plaintiffs also seek interest and liquidated damages as a result of contributions that were
untimely paid prior to the filing of the present action. See Dkt. No. 61-57 at 10. "ERISA does
not permit damages for contributions paid prior to filing suit, even when those contributions were
untimely paid." Finkel v. Allstar Elec. Corp., No. 11-CV-3222, 2013 WL 4806951, *8 (E.D.N.Y.
Sept. 9, 2013) (citing Iron Workers Dist. Council of W.N.Y. & Vicinity Welfare & Pension Funds
v. Hudson Steel Fabricators & Erectors, Inc., 68 F.3d 1502, 1507 (2d Cir. 1995)). The Court

This amount is greater than the outstanding interest on unpaid contributions because
Defendants, Travelers, and third parties have already paid a percentage of the interest that is due
on unpaid contributions. The appropriate amount of liquidated damages is the total interest on
unpaid contributions before those payments were made.
8

17

may, however, award interest and liquidated damages under the LMRA, which "provides a
statutory basis for enforcing the contractual terms of the CBA." Gesualdi v. Loriann Trucking
Co., Inc., No. 11-CV-5984, 2012 WL 3887205, *7 (E.D.N.Y. July 27, 2012).
Here, Plaintiffs are entitled to interest and liquidated damages under the Funds' trusts and
collections policies when an employer breaches the terms of the CBAs. See Dkt. No. 61-28 at ¶¶
11-12; Dkt. No. 61-21 at ¶¶ 7-8. Defendants untimely paid $15,974.14 to Plaintiffs for the period
of July 2014 through September 2014, and under the Funds' trusts and collections policies
Defendants owe $84.79 in interest and $2,220.96 in liquidated damages on those late payments.
See Dkt. No. 61-45 at ¶¶ 18-19. Therefore, DiPizio Construction owes a total of $2,305.75 in
interest and liquidated damages on untimely payments made prior to the filing of the complaint.
5. Audit Fees
"Requests for audit fees are 'generally determined by utilizing the same standards the court
applies in awarding attorneys' fees.'" Teamsters Local 814 Welfare Fund v. Dahill Moving &
Storage Co., 545 F. Supp. 2d 260, 269 (E.D.N.Y. 2008) (quoting King v. Unique Rigging Corp.,
No. 01-CV-3797, 2006 WL 3335011, *5 (E.D.N.Y. Oct. 27, 2006)). Accordingly, a party
requesting audit fees must provide sufficient information to allow a court to determine the
reasonableness of the fees requested. Several courts in this circuit have denied audit fees in
ERISA actions where the plaintiffs have failed to provide detailed records of the work that was
performed by auditors. See Upstate N.Y. Eng'rs Health Fund v. Oneidaview Pile Driving, Inc.,
No. 5:15-CV-512, 2017 WL 1483446, *4 (N.D.N.Y. Apr. 25, 2017) (denying audit fees where the
plaintiffs provided an invoice from their auditor stating the number of hours worked without
specifying what work was performed); Eng'rs Joint Welfare Fund v. C. Destro Dev. Co., Inc., 178

18

F. Supp. 3d 27, 36 (N.D.N.Y. 2016) (same); Dahill Moving & Storage Co., 545 F. Supp. 2d at
269 (same).
In this case, Plaintiffs request $22,395.84 in audit fees. See Dkt. No. 61-41 at ¶ 19. To
support that request, Plaintiffs provide an affidavit from their auditor and a series of invoices from
his auditing firm. See Dkt. No. 61-44. But the invoices list only the date, the number of hours
worked, and the title "DiPizio Construction"; they say nothing about the specifics of the work that
was performed. See id. Therefore, the Court is not able to determine whether the audit fees
Plaintiffs request are reasonable, and Plaintiffs' request for audit fees is denied.
6. Attorneys' Fees and Costs
In an ERISA action involving delinquent contributions, "the court in its discretion may
allow a reasonable attorney's fee and costs of action to either party." 29 U.S.C. § 1132(g)(1).
"[A] district court must begin its § 1132(g)(1) analysis by determining whether a party has
achieved 'some degree of success on the merits,' but it is not required to award fees simply
because this pre-condition has been met." Toussaint v. JJ Weiser, Inc., 648 F.3d 108, 110 (2d Cir.
2011) (quoting Hardt v. Reliance Standard Life Ins. Co., 500 U.S. 242, 254 (2010)). Here,
Plaintiffs have achieved success on the merits, and the Court finds that an award of attorneys' fees
is appropriate.
In this case, Plaintiffs request $64,290.70 in attorneys' fees and $3,586.00 in costs. See
Dkt. No. 61-2 at ¶ 24. To support their request, Plaintiffs have submitted a detailed narrative of
legal services listing the date, attorney or paralegal, time spent, and the nature of the work
completed. See Dkt. No. 61-12. After reviewing the time records, the Court finds that the
amount of time spent by Plaintiffs' attorneys was reasonable. However, the Court finds that

19

Plaintiffs' requested hourly rates of $282-$300 for attorneys and $154-$165 for paralegals are too
high.
In determining the reasonableness of attorneys' fees rates, the Second Circuit has held that
the court is "to bear in mind all of the case-specific variables that [the courts] have identified as
relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate," which is "the
rate a paying client would be willing to pay." Arbor Hill Concerned Citizens Neighborhood Ass'n
v. County of Albany, 522 F.3d 182, 190 (2d Cir. 2008). The relevant factors for the Court to
consider include the complexity and difficulty of the case, the resources required for effective
prosecution of the case, the case's timing demands, the attorney's interest in achieving the ends of
the litigation, the nature of representation, and the type of work involved in the case. See id. at
184 n.2.
In similar actions to recover unpaid contributions under ERISA, this Court has found that
rates of $210 per hour for experienced attorneys and $80 per hour for paralegals are appropriate.
See I.B.E.W. Local 910 Welfare, Annuity & Pension Funds v. Grayco Elec., Inc., No. 7:12-CV652, 2013 WL 495638, *4 (N.D.N.Y. Feb. 7, 2013); Upstate N.Y. Eng'rs Health Fund ex rel.
Harrigan v. Ransom, No. 5:13-CV-1434, 2015 WL 145441, *5 (N.D.N.Y. Jan. 12, 2015). Other
courts in the Northern District have awarded fees at the same rates in ERISA cases. E.g. Upstate
N.Y. Eng'rs Health Fund v. FMC Demolition, Inc., No. 5:13-CV-1307, 2015 WL 401113, *7
(N.D.N.Y. Jan. 28, 2015). The Court awards those same rates in this case. Therefore, the Court
awards Plaintiffs $42,567 in attorneys' fees, consisting of $35,847 for attorney work and $6,720
for paralegal work. Additionally, the Court has reviewed Plaintiffs' request for $3,586 in costs
and finds it reasonable.
D.

Individual Liability
20

Plaintiffs also claim that Rosanne and Bernard DiPizio are personally liable for a portion
of DiPizio Construction's unpaid contributions. See Dkt. No. 61-57 at 17. Under ERISA, in order
to establish that an individual is personally liable for unpaid contributions as a fiduciary, a
plaintiff must show that "(1) the unpaid contributions were plan assets and (2) [the defendant]
exercised a level of control over those assets sufficient to make him a fiduciary." In re Halpin,
566 F.3d 286, 289 (2d Cir. 2009).
First, "[w]hile unpaid employer contributions are not ordinarily assets of the plan, the
parties to an agreement are free to provide otherwise." Trs. of the Road Carriers Local 707
Welfare Fund v. Goldberg, No. 08-CV-0884, 2009 WL 3497493, *3 (E.D.N.Y. Oct. 28, 2009)
(citing In re Halpern, 566 F.3d at 290-91) (citations omitted). In this case, the trust agreements
for the Health, Pension, S.U.B., and Training funds provide that withheld contributions are
considered plan assets. See Dkt. No. 61-16 at ¶ 14; Dkt. No. 61-28 at ¶ 18. However, Plaintiffs
do not provide evidence that the trust agreements of the Operating Fund or the Central Fund
classify unpaid contributions as plan assets; therefore, Bernard and Rosanne Dipizio are not liable
for unpaid contributions to those funds.
Second, Plaintiffs claim that both Bernard and Rosanne DiPizio exercised sufficient
control over the assets to be liable as fiduciaries. See Dkt. No. 61-57 at 16. "In determining
whether an individual is personally liable as a fiduciary, courts analyze how much control the
individual exercised over [plan] assets. In making this determination, courts look to several
factors, 'most significantly, whether a defendant was responsible for authorizing and making
payments to an employee benefits plan.'" Sullivan v. M.A.C. Design Corp., No. 14-CV-1846,
2015 WL 5518456, *3 (E.D.N.Y. Sept. 17 2015) (alteration in the original) (quoting Trs. of Sheet
Metal Workers Int'l Assoc. Local No. 38 Vacation Fund v. Katonah Roofing, Inc., Nos. 10-CV21

1619, 11-CV-8185, 2011 WL 9010113, *6 (S.D.N.Y. Sept. 4, 2011)). Although Defendants
concede that Bernard DiPizio, as President and founder of DiPizio Construction, had decision
making power and control over assets, they claim that Rosanne DiPizio was not a fiduciary. See
Dkt. No. 64 at 8.
1. Bernard DiPizio
For the reasons stated above, Bernard DiPizio is liable as an ERISA fiduciary for unpaid
contributions to the Health, Pension, S.U.B., and Training funds. Therefore, Plaintiffs are entitled
to unpaid contributions, prejudgment interest, and attorneys' fees and costs from Bernard DiPizio.
According to Plaintiffs, DiPizio Construction owes $35,428.10 in unpaid contributions to
the Health, Pension, and S.U.B. funds for the period of February 1, 2011 through July 31, 2014,
see Dkt. No. 61-28 at ¶ 24; it owes $116,022.55 to those same funds for the period of August 1,
2014 through December 31, 2015, see id. at ¶ 33; and it owes an additional $5,123.00 for January
and February 2016, see id. at ¶ 33. Plaintiffs also provide evidence that DiPizio Construction
owes $304.94 in unpaid contributions to the Training fund. See Dkt. No. 61-16 at ¶ 24.
Therefore, Bernard DiPizio is liable for a total amount of $156,878.59 in unpaid contributions.
In addition to unpaid contributions, prejudgment interest may also constitute appropriate
relief against a fiduciary under 29 U.S.C. § 1109(a). See Moulton Masonry, 779 F.3d at 190. The
decision whether to grant prejudgment interest is in the discretion of the district court, and the
court must "explain and articulate its reasons for any decision regarding prejudgment interest."
Id. (quoting Henry v. Champlain Enters., Inc., 445 F.3d 610, 622-23 (2d Cir. 2006)).
"Prejudgment interest is intended to serve 'as compensation for the use of money withheld' and to
put 'the plan in the position it would have occupied but for the breach.'" Oneidaview Pile Driving,
2017 WL 1483446, at *5 (quoting Diduck v. Kaszycki & Sons Contractors, Inc., 974 F.2d 270,
22

286 (2d Cir. 1992)). "Assessing the appropriate amount of interest requires a comparison of what
the plan earned during the time in question and what it would have earned had the money lost due
to the breach been available." Diduck, 974 F.2d at 286.
Here, based on the consolidated annual rates of return for the Health, Pension, S.U.B., and
Training funds, Plaintiffs claim that those funds have lost $10,422.64 in investment income as a
result of unpaid and untimely paid contributions. See Dkt. No. 61-16 at ¶ 30; Dkt. No. 61-28 at
¶¶ 43-44. After carefully reviewing Plaintiffs' records, the Court finds that an award of
$10,422.64 in prejudgment interest against Bernard DiPizio is appropriate to compensate
Plaintiffs for the use of the withheld contributions. As Plaintiffs are the prevailing party and have
established Bernard DiPizio's liability, he is also liable for the $46,153 in attorneys' fees and costs
awarded to Plaintiffs.
2. Rosanne DiPizio
In order to show that Rosanne DiPizio has the requisite control over plan assets to be
considered an ERISA fiduciary, Plaintiffs cite to a series of requests for admissions that were
served on Defendants. See Dkt. No. 61-2 at ¶¶ 8-11. Plaintiffs served Defendants with the first
request for admissions on July 8, 2015, and it included the following: "On and after November
2012, Defendant [Rosanne] DiPizio determined how much money would be paid to the Plaintiffs
in satisfaction of the obligations of Defendant DiPizio Construction Co. under the Collective
Bargaining Agreements." Dkt. No. 61-4 at 7. The first request for admissions also contained
other factual assertions that, if admitted, clearly establish that Rosanne DiPizio was an ERISA
fiduciary. See id. at 5-7. Defendants never responded to any of Plaintiffs' requests for
admissions. See Dkt. No. 61-2 at ¶¶ 8-11.

23

Under Federal Rule of Procedure 36, if a party fails to respond to a request for admissions
within thirty days, then any matter set forth in the request for admissions is deemed admitted. See
Fed. R. Civ. P. 36(a)(3). A fact deemed admitted is considered "conclusively established unless
the court, on motion, permits the admission to be withdrawn or amended." Fed. R. Civ. P. 36(b).
In a motion to withdraw an admission, the withdrawing party must satisfy two requirements: "(1)
presentation of the merits of the action must be subserved, and (2) the party who obtained the
admission must not be prejudiced by the withdrawal." Hadley v. United States, 45 F.3d 1345,
1348 (9th Cir. 1995). But the rule is permissive, meaning that "even if a party satisfies the two
criteria described by the rule, the decision whether to permit withdrawal remains within the sound
discretion of the court." Ng v. HSBC Mortg. Corp., No. 07-CV-5434, 2011 WL 3511296, *4
(E.D.N.Y. Aug. 10, 2011) (citing Donovan v. Carls Drug Co., 703 F.2d 650, 652 (2d Cir. 1983)).
Here, Defendants have not made a motion to withdraw their admissions in accordance
with Rule 36. On August 13, 2015, over thirty days after serving Defendants with the first
request for admissions, Plaintiffs explained that Defendants' failure to respond would result in the
facts set forth being deemed admitted by the Court. See Dkt. No. 61-4 at 14. Despite that
warning, Defendants did not respond to the request for admissions or move for the Court to
withdraw any admissions resulting from their failure to respond. Instead, Defendants simply
contradicted those admissions in their opposition to Plaintiffs' motion for summary judgment
without even addressing their failure to respond to the request for admissions. Defendants argued
that Rosanne DiPizio is not an ERISA fiduciary because she was not an officer of DiPizio
Construction and was not involved in making decisions about the business. See Dkt. No. 63-1 at
11. In support of that argument, Defendants provide affidavits from Rosanne and Bernard

24

DiPizio, both of whom state in conclusory terms that Rosanne DiPizio did not have decision
making authority at DiPizio Construction. See Dkt. No. 64-4 at ¶ 31; Dkt. No. 64-12 at ¶¶ 2, 4.
"Although an admission should ordinarily be binding on the party who made it, there must
be room in rare cases for a different result, as when an admission no longer is true because of
changed circumstances or through honest error a party has made an improvident admission." Ng,
2011 WL 3511296, at *5 (quoting 8A Charles Alan Wright & Arthur R. Miller, Federal Practice
& Procedure § 2264 (3d ed. 2011)). This is not such a case. Defendants have been on notice for
nearly a year and a half of Plaintiffs' intention to rely on Defendants' admissions. Defendants
nevertheless failed to make a motion to withdraw their admissions under Federal Rule of Civil
Procedure 36, and they do not even address the evidentiary issue in their opposition to the motion
for summary judgment. See J & J Sports Prods., Inc. v. Mari, No. 10-CV-455, 2012 WL
1004842, *1 (E.D.N.Y. Mar. 23, 2012) (deeming admitted all of the statements contained in a
request for admissions when the admitting party failed to respond and also failed to address the
evidentiary issue in his opposition to the motion for summary judgment); accord Ng, 2011 WL
3511296, at *5.
The Court finds that—based on the information contained in Plaintiffs' first request for
admissions—Rosanne DiPizio had sufficient control over DiPizio Construction's decision making
to be considered an ERISA fiduciary. Therefore, Rosanne DiPizio is liable for unpaid
contributions to the Health, Pension, S.U.B., and Training funds in the amount of $156,878.59.
For the same reasons set forth in regard to Bernard DiPizio, Rosanne DiPizio is also liable for
$10,422.64 in prejudgment interest and $46,153 in attorneys' fees and costs.
F.

Injunctive Relief

25

Plaintiffs argue that Defendants must be compelled to produce their books and records for
Plaintiffs' review and audit. "Faced with recalcitrant ERISA defendants, numerous courts have
granted an injunction requiring an employer, who both failed to make contributions and cooperate
with an audit, to submit to a CBA-required audit covering a specific period of time." Sullivan v.
Marble Unique Corp., No. 10-CV-3582, 2011 WL 5401987, *14 (E.D.N.Y. Aug. 30, 2011)
(collecting cases). Here, the Funds' collections policies and trust agreements provide that
Defendants are required to produce their books and records for Plaintiffs' examination and audit.
See Dkt. No. 61-28 at ¶ 17; Dkt. No. 61-22 at 14; Dkt. No. 61-16 at ¶ 20. Plaintiffs claim that
DiPizio Construction has refused to produce its records for audit for the period beginning in
January 2016. See Dkt. No. 61-57 at 26. Accordingly, the Court concludes that Plaintiffs are
entitled to examine Defendants' books and records for the time period of January 2016 to date.
Plaintiffs also seek a permanent injunction restraining Defendants from breaching the
CBAs and directing Defendants to perform their obligations to Plaintiffs under the CBAs,
including to submit timely the required monthly remittance reports and contributions and
deductions to Plaintiffs. See Dkt. No. 61-57 at 24-26. Injunctive relief is available to Plaintiffs
under ERISA. See 29 U.S.C. § 1132(g)(2)(E); see also Beck v. Levering, 947 F.2d 639, 641 (2d
Cir. 1991) (holding that permanent injunctions are available as a remedy under ERISA in certain
circumstances involving self-dealing by plan fiduciaries). However, the permanent injunction
that Plaintiffs seek would do nothing to alter the parties' respective rights or obligations, as it
would merely require Defendants to comply with obligations Defendants are already legally
required to comply with. Accordingly, Plaintiffs' request for a permanent injunction fails to
establish irreparable harm. See Gesualdi v. Mack Excavation & Trailer Serv., Inc., No. CV 09-

26

2502, 2010 WL 985269, *11 (E.D.N.Y. Feb. 12, 2010) (citing DeFunis v. Odegaard, 416 U.S.
312, 316 (1974)). Therefore, the Court denies Plaintiffs' request for a permanent injunction.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants' cross-motion for leave to file an amended answer (Dkt. No.
63) is DENIED; and the Court further
ORDERS that Plaintiffs' motion for summary judgment (Dkt. No. 61) is DENIED in part
as to the requested permanent injunction, and GRANTED in part as to an audit of DiPizio
Construction's books and records from January 2016 to date, as well as to unpaid contributions
and deductions, interest, liquidated damages, and attorneys' fees and costs; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in the amount of $623,313.88
against DiPizio Construction, consisting of (1) $232,271.14 in unpaid contributions and
deductions, (2) $171,075.53 in interest on unpaid contributions and deductions, (3) $171,508.46
in liquidated damages, (4) $2,305.75 in interest and liquidated damages on contributions untimely
paid before the complaint was filed, and (5) $46,153 in attorneys' fees and costs; and the Court
further
ORDERS that the Clerk of the Court shall enter judgment in the amount of $213,454.23
against Rosanne and Bernard DiPizio, consisting of (1) $156,878.59 in unpaid contributions, (2)
$10,422.64 in prejudgment interest, and (3) $46,153 in attorneys' fees and costs; and the Court
further
ORDERS that Defendants are required to produce DiPizio Construction's books and
records for the period from January 2016 to date for Plaintiffs' review and audit, and that the
27

Court shall retain jurisdiction in this matter until Plaintiffs complete their audit of DiPizio
Construction's books and records; and the Court further
ORDERS that within thirty (30) days of the completion of the audit, Plaintiffs shall
move for entry of judgment against Defendants for any and all contributions and deductions that
are determined to be due as a result of the audit, plus the applicable interest thereon, liquidated
damages, audit costs, and attorneys' fees and costs; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Plaintiffs' favor; and the
Court further
ORDERS that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.
Dated: July 14, 2017
Albany, New York

28