Dector et al v. RCI Plumbing Corp. et al

Filing 180

OPINION AND ORDER: re: 179 MOTION to Enforce Judgment re: 157 Order of Dismissal, filed by Vincent Jones-Reese, Rudy Diaz, Courtney Savage, Carlos Soto, Ruben Valerio Gilson, Alvaro Dector, Michael Pacheco, Rodolfo Vargas, Eugeni o Granados Jr, David Cotto, Domingo Antonio Garcia, Muhammed Ahmed, Hermes N. Ramirez, Daniel Santana, Vicente Otero Valentin, Luis Clinton, Kareem sutton, Christian Amoroso, Donnell Sanders, Justin Soto, Erion Belli, Randolfo Alfonzo, Ju an Ortiz, Amos Rivera, Steven Martinez, Kelvin Mendez, Marcus M Rodriguez, Max Stewart, Nina S Sherpa, Almando Martinez, Christopher Rivera, Jason J Plummer, Francisco Puma, Matthew Martin, Edward Laureano, Joachim Blades, Joseph Schroede r, Demetrius Gordon, Anthony Rosado, Corey Mena, German E. Salado, Anthony Zapata, Felix Nelson Roques, Josh Charles, Oscar Gonzalez, Ronnie Provitt, Christopher Ponce, Wilson Romero, George Mena, Nkomo Levene, Jose Vizcaino Castro, Ibra him Samura, Ervin branch, Gregory McCoy, Brendon Ruiz, Valencio Brown, Eric Duvernay, Juan A araujo, Jesus Ramirez, Francisco Merced, Louis Didonna, Joseph Saffioti, Hector Rosado, Henry Gilson, Rayquan Williams, Frailyn Hidalgo, Hektor Dika, Olaniwun Adeniy, Eric Peralta, Adderly Santos, Henry Perez De Los Santos,, Eliezer Gil Arias, William Deppisch, Todd Mills, Juelle Rosadio, David Robinson, Adrian Cocos, Diokle Veron Lizardo, Joshua Vasquez Rosario, Gerson Lopez, Brandon McCrimmon, Jan Alexander, Johan Francisco Cabrera, Edwin shuguli, Efrain Natal, Brian Peters, Anthony Zappata, Jose Miguel Marte, Robert Vargas Jr., Jesse Gillespie, Luis Rosario, Erry Rosas, Adam Wankowicz, Rene Paez, Jose L. S antiago, Jose Ramirez, Terrance Leslie, Roberto G. Rolan, Gregory Campbell, Dwight Irving, Shamar Atkinson, Jose Marrero, Angel Cuevas Matos, Teofilo Sanchez Tanidad, Mark O'Connor, Vincent Ciara, Dwayne A. Malcolm, Defino Landa Domin guez, Hector Zamura, Matthew Roman, Jason Mills, Christopher Govedy, Wilfredo Martinez, 176 FIRST MOTION to Enforce Judgment re: 172 Order on Motion for Conference, 155 Memorandum & Opinion, Set Deadlines/Hearings filed by Vincent Jones-Reese, Rudy Diaz, Courtney Savage, Carlos Soto, Ruben Valerio Gilson, Alvaro Dector, Michael Pacheco, Rodolfo Vargas, Eugenio Granados Jr, David Cotto, Domingo Antonio Garcia, Muhammed Ahmed, Hermes N. Ramirez, Daniel Santana, Vicent e Otero Valentin, Luis Clinton, Kareem sutton, Christian Amoroso, Donnell Sanders, Justin Soto, Erion Belli, Randolfo Alfonzo, Juan Ortiz, Amos Rivera, Steven Martinez, Kelvin Mendez, Marcus M Rodriguez, Max Stewart, Nina S Sherpa, Alman do Martinez, Christopher Rivera, Jason J Plummer, Francisco Puma, Matthew Martin, Edward Laureano, Joachim Blades, Joseph Schroeder, Anthony Rosado, Demetrius Gordon, Corey Mena, German E. Salado, Anthony Zapata, Felix Nelson Roques, Josh Charles, Oscar Gonzalez, Ronnie Provitt, Christopher Ponce, George Mena, Wilson Romero, Nkomo Levene, Jose Vizcaino Castro, Ibrahim Samura, Ervin branch, Gregory McCoy, Brendon Ruiz, Valencio Brown, Eric Duvernay, Juan A araujo, Jesus Ramirez, Francisco Merced, Louis Didonna, Joseph Saffioti, Henry Gilson, Hector Rosado, Rayquan Williams, Frailyn Hidalgo, Hektor Dika, Olaniwun Adeniy, Eric Peralta, Adderly Santos, Henry Perez De Los Santos, Eliezer Gil Arias,, Willia m Deppisch, Todd Mills, Juelle Rosadio, Adrian Cocos, David Robinson, Diokle Veron Lizardo, Joshua Vasquez Rosario, Gerson Lopez, Brandon McCrimmon, Jan Alexander, Johan Francisco Cabrera, Edwin shuguli, Efrain Natal, Anthony Zappata, Br ian Peters, Jose Miguel Marte, Robert Vargas Jr., Jesse Gillespie, Luis Rosario, Erry Rosas, Adam Wankowicz, Rene Paez, Jose L. Santiago, Terrance Leslie, Jose Ramirez, Roberto G. Rolan, Gregory Campbell, Dwight Irving, Shamar Atkinson, Jose Marrero, Angel Cuevas Matos, Teofilo Sanchez Tanidad, Mark O'Connor, Vincent Ciara, Defino Landa Dominguez, Dwayne A. Malcolm, Hector Zamura, Matthew Roman, Jason Mills, Christopher Govedy, Wilfredo Martinez, 173 MOTION for Nils C. Shillito and Stephen D. Hans to Withdraw as Attorney filed by Christopher Chierchio, Robert Dimiceli, RCI PLBG, Inc. For the reasons stated herein, the plaintiffs' motion to enforce the settlement agreement is GRANTED in PART and DEN IED in PART. Additionally, the motion for Nils C. Shillito and Stephen D. Hans & Associates, P.C., to withdraw as counsel of record for defendants, Doc. 173, is GRANTED. The parties are directed to appear for a telephonic status conference on October 3, 2023, at 4:30 PM. The parties are to dial [phone] and enter access code 3029857#. The Clerk of the Court is respectfully directed to terminate the motion, Docs. 173, 176, 179. IT IS SO ORDERED., ( Telephone Conference set for 10/3/2023 at 04:30 PM before Judge Edgardo Ramos.), Attorney Stephen D. Hans and Nils C. Shillito terminated. (Signed by Judge Edgardo Ramos on 8/21/2023) (ama)

Case 1:17-cv-02269-ER Document 180 Filed 08/21/23 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ALVARO DECTOR and WILSON
ROMERO, individually and on behalf of all
others similarly situated, et al.,
Plaintiffs,

OPINION & ORDER
17-cv-2269 (ER)

– against –
RCI PLBG, INC., CHRISTOPHER
CHIERCHIO, and ROBERT DIMICELI,
Defendants.
RAMOS, D.J.:

�is Fair Labor Standards Act (“FLSA”) case was filed on March 29, 2017. Doc. 1. �e
Court approved the parties’ settlement agreement on September 22, 2020. Doc. 157. �e
agreement included a provision indicating that the Court would retain jurisdiction over its
enforcement. Doc. 156-1 at 11.
Before the Court is the plaintiffs’ motion to enforce the settlement, following the
defendants’ failure to meet their obligations pursuant to the agreement. Doc. 179. �e motion
also includes a request for declaratory judgment concerning the defendant parties against whom
the judgment shall be enforced. Doc. 179-1 at 11–12. For the reasons stated herein, the motion
is GRANTED in PART and DENIED in part.

Case 1:17-cv-02269-ER Document 180 Filed 08/21/23 Page 2 of 8

I.

BACKGROUND
Plaintiffs are all former employees of defendant RCI PLBG, Inc., 1 where they worked as

plumbers and mechanics in Manhattan and Staten Island, New York, from February 2016
through January 2017. Doc. 9 ¶ 1. �ey alleged that the defendants 2 failed to pay them their due
overtime wages and also failed to provide them with wage statements, as required by the FLSA
and the New York Labor Law (“NYLL”). Id. ¶ 2.
�e parties settled the instant dispute in August 2020. Doc. 156. Pursuant to the
settlement agreement, the defendants agreed to pay plaintiffs a total of $550,000. Doc. 156-1 at
3 § 2. �e agreement indicated that the defendants would make sixteen monthly payments of
$34,375, with the initial payment to be due in March 2020, and the final payment to be due in
June 2021. Id.
�e settlement also provided that, concurrently with the execution of the agreement, the
defendants would provide affidavits of confession of judgment. 3 Id. at 6 ¶ 2(g). �e affidavits
were to be held in escrow by counsel for plaintiffs, and were to be entered only in the event that
the defendants defaulted on their payment obligations. Id. In other words, the affidavits were
created to ensure that the plaintiffs would receive the settlement payments from the defendants,

In the instant motion, the plaintiffs state that RCI PLBG, Inc. operated as a plumbing operation under New York
City License Master Plumber #2136, which was located at 225 Victory Blvd., Staten Island, NY 10301. Doc. 179-1
at 12–13. However, the complaint states otherwise; it indicates that RCI PLBG, Inc. was located at 545-547
Midland Ave., Staten Island, NY 1306. Doc. 9 ¶ 7. �e motion also states that another entity, Pro-Star Plumbing,
Heating & Mechanical, Inc. (“Pro-Star”), now operates under the same license number as RCI PLBG, Inc., at 225
Victory Blvd., Staten Island, NY 10301. Doc. 179-1 at 12–13.
1

According to the complaint, individual defendant Christopher Chierchio managed and controlled RCI PLBG, Inc.,
and was an employer of plaintiffs under the FLSA and NYLL. Doc. 9 ¶ 9. Defendant Robert Dimiceli was the chief
executive officer (“CEO”) of RCI PLBG, Inc. Id. ¶ 11.

2

�e blank affidavits of confession of judgment attached to the settlement agreement stated that there would be a
35% penalty of $192,500 in the event of a default pursuant to the terms of the agreement. Doc. 156-1 at 26 ¶ 3.

3

2

Case 1:17-cv-02269-ER Document 180 Filed 08/21/23 Page 3 of 8

and to provide for additional compensation in the event that the defendants failed to do so. See
generally id.
�e Court approved the settlement and closed the case on September 22, 2020. Doc. 157.
However, the defendants failed to make any payments or deliver the affidavits of confession of
judgment upon the execution of the agreement. Doc. 179-2 ¶¶ 5, 6. On June 21, 2021, the
plaintiffs informed the defendants that they had defaulted under the agreement, and that they
would seek enforcement. Id. ¶ 7. According to plaintiffs, they notified the defendants that the
amount to be enforced would include a penalty of $192,500, 4 in addition to the settlement
amount of $550,000, bringing the total amount due to $742,500, plus interest. Id. ¶ 8.
�ereafter, plaintiffs asked the Court to approve a forbearance agreement amending the
payment schedule pursuant to these changes on August 12, 2021. Doc. 158. �e Court approved
the agreement, Doc. 159, which set payment dates for August 16, 2021 and October 1, 2021,
Doc. 158-1 at 1 ¶ 1. On each of the two new dates, the defendants 5 were to pay $275,000, which
together amounted to the full amount of $550,000 set forth in the settlement agreement. 6 Id. �e
forbearance agreement also stated that defendant Christopher Chierchio would deliver an
executed affidavit of confession, 7 which would be held in escrow. 8 Id. at 1–2 ¶ 2. And it further

�e $192,500 penalty is 35% of the settlement total of $550,000. Doc. 154-1 at 26. �e blank affidavits of
confession of judgment attached to the settlement agreement provided for this penalty. See, e.g., id.

4

In the forbearance agreement, only RCI PLBG, Inc. and Chierchio were defined as the defendants. Doc. 158-1 at
1.
5

6

�e forbearance agreement did not include the penalty of $192,500. See generally Doc. 158-1.

Although defendants initially failed to deliver signed confessions after the settlement agreement was executed,
defendant Chierchio later delivered an executed confession pursuant to the terms of the forbearance agreement.
Doc. 179-1 at 10 n.1; see also Doc. 176-2 (executed confession of judgment). �e precise date of the delivery is not
clear from the record; however, plaintiffs indicate that this took place after the forbearance agreement was filed with
the Court. Doc. 179-2 ¶ 9.

7

�e forbearance agreement acknowledged that the defendants failed to provide counsel for plaintiffs with the
executed affidavits of confession of judgment outlined in the initial settlement agreement. Doc. 158-1 at 1 ¶ 2.

8

3

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noted that if the defendants failed to make their payments, they would be in default of the
forbearance agreement and settlement agreement. Id. at 2 ¶ 3. �e forbearance agreement was
signed and dated by Dector, Romero, and Chierchio, but not Dimiceli. Id. at 3.
Several months later, the plaintiffs requested a conference to discuss a dispute regarding
the defendants’ failure to make the agreed-upon payments. Doc. 160 at 1. �e Court held a
conference on March 18, 2022, wherein it directed the parties to submit a joint status report
regarding the settlement payments. Doc. 163. �e parties thereafter submitted a series of four
status reports. Docs. 164, 165, 166, 167. In each of the reports, counsel for defendants indicated
that the amount owed remained unpaid, and that defendant Chierchio was making efforts to
obtain the funds necessary to pay the agreed-upon settlement amount in full. See id.; see also
Doc. 179-2 ¶ 11 (“Subsequent to the default on the Forbearance Agreement, Defendant Chierchio
would promise that payment of the settlement amount was imminent. If plaintiffs would forestall
collection for just another few days, they would be paid in full shortly without need of the
collection process, was the substance of all such offers. No payments were ever made.”). �e
docket then remained inactive for approximately one year, 9 when the plaintiffs requested a
conference in anticipation of their motion to enforce the settlement agreement. Doc. 169.
In March and April 2023, the plaintiffs again extended the deadlines for payment;
however, no payments were ever made. Doc. 179-2 ¶ 12. �e Court then held a conference on
April 21, 2023. Counsel for defendants requested permission to withdraw as counsel, 10 and

Plaintiffs indicate that although additional status letters were not filed, “the same basic pattern continued” until
April 2023. 179-1 at 7. Chierchio would promise that payment was imminent, but no payments were made. Id.
9

Counsel for defendants informed the Court that they had not received payment of legal fees from their clients
since 2019. See generally Doc. 174. Defendants have not obtained new counsel as of this date.

10

4

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plaintiffs were granted leave to file the instant motion, see Min. Entry dated Apr. 21, 2023, which
was filed on May 18, 2023, Docs. 176, 179. Defendants failed to oppose the motion.
II.

LEGAL STANDARD
“A district court has the power to enforce summarily, on motion, a settlement agreement

reached in a case that was pending before it.” Meetings & Expositions, Inc. v. Tandy Corp., 490
F.2d 714, 717 (2d Cir. 1974). �e party seeking to enforce a purported settlement agreement
bears the burden of proving that such a binding and enforceable agreement exists. E.g., Benicorp
Ins. Co. v. Nat’l Med. Health Card Sys., Inc., 447 F. Supp. 2d 329, 335 (S.D.N.Y. 2006).
A “motion to enforce a settlement agreement is fundamentally a claim for breach of a
contract.” Hendrickson v. United States, 791 F.3d 354, 358 (2d Cir. 2015) (citing Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994)). “In turn, settlement agreements are
contracts and must therefore be construed according to general principles of contract law.”
Jimmo v. Burwell, No. 22-cv-17 (CR), 2016 WL 4401371, at *6 (D. Vt. Aug. 17, 2016) (citing
Red Ball Interior Demolition Corp. v. Palmadessa, 173 F.3d 481, 484 (2d Cir. 1999)).
III.

ANALYSIS
A. Breach of the Agreement
Plaintiffs’ motion to enforce the settlement agreement and the forbearance agreement is

granted. As they note, this Court so ordered both documents, and it retained jurisdiction for the
purposes of enforcement. See Doc. 179-1 at 8. �e Court has otherwise supervised the parties’
efforts to meet their responsibilities under the settlement. Docs. 163–167. During that time, the
defendants––and specifically, Chierchio––acknowledged their obligations on multiple occasions,
and they reaffirmed their intention to fulfill those obligations. Docs. 158-1, 164, 165, 166, 167.

5

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Notwithstanding these circumstances, the record makes clear that defendants have failed
to make their payments as required. 11 In other words, they have breached the terms of the
parties’ agreements, and the plaintiffs are entitled to enforcement.
�e plaintiffs contend that they are entitled to a sum total of $742,500, which equals the
total settlement amount ($550,000) plus a 35% penalty ($192,500). Doc. 179-1 at 11. �ey
argue that they are entitled an entry of the “promised [c]onfessions” to enforce the settlement
against all defendants, and they ask the Court to enter judgment accordingly. Id. Importantly,
however, the plaintiffs only obtained and filed an executed confession from defendant
Chierchio—and the penalty amount was not otherwise indicated in the settlement agreement or
the forbearance agreement. Doc. 176-2; see also Doc. 156-1; Doc. 158-1. Nor did Dimiceli sign
the forbearance agreement—in fact, as noted above, Dimiceli was not included as a defendant in
the forbearance agreement. See generally Doc. 158-1. For these reasons, the Court finds that the
plaintiffs are entitled to enforcement, against all defendants, only of the amount stipulated in the
initial settlement agreement signed by all parties ($550,000). Doc. 156-1 at 14. It further
concludes that, at this juncture, the plaintiffs are entitled to enforcement of the additional penalty
amount ($192,500) against defendant Chierchio only––pursuant to the signed, executed, and filed
confession of judgment. 12 Doc. 176-2.

Additionally, as noted above, the defendants failed to initially deliver signed affidavits of confession of judgment,
as required by the initial agreement. Doc. 156-1 at at 6 ¶ 2(g).
11

As relevant here, and as set forth above, the forbearance agreement indicated that only Chierchio would provide
an executed affidavit of judgment. Doc. 158-1 at 1–2 ¶ 2. �e confession was signed by Chierchio in his individual
capacity. Doc. 176-2.

12

6

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B. Request for Declaration Regarding Defendant RCI PLBG, Inc.’s Successor
�e plaintiffs also request that the Court enter a declaratory judgment entitling them to
enforce their judgment against an entity that it labels in its motion the “successor entity” of
defendant RCI PLBG, Inc., namely, Pro-Star. Doc. 179-1 at 11–12. In support of this request,
plaintiffs make the following observations:
•

RCI PLBG, Inc. was operated as a plumbing operation under New York City License
Master Plumber #2136, and was located at 225 Victory Blvd., Staten Island, NY 10301;

•

Defendant Dimiceli holds Master Plumber License #2136;

•

Pro-Star is currently operating out of 225 Victory Blvd., Staten Island, NY 10301, using
Master Plumber License #2136.

Id. at 12–13. �ey thus contend that Pro-Star is the successor in liability to RCI PLBG, Inc. “as
a result of a de facto merger,” insofar as Dimiceli owns and operates Pro-Star using the
professional license and office space of RCI PLBG, Inc. Id. at 13. In the alternative, they
request a conference with the Court to discuss successor liability. Id.
�e plaintiffs’ request for declaratory relief regarding the successor status of Pro-Star is
denied at this juncture. �e Court simply has insufficient information to declare, as a matter of
law, that (1) Pro-Star is indeed the successor entity of defendant RCI PLBG, Inc., and (2) the
plaintiffs may enforce the settlement against Pro-Star. Beside the plaintiffs’ observations
pertaining to the overlapping license number and physical address of these two entities, the Court
has no information upon which to base a conclusion that a de facto merger took place here, or
that successor liability is appropriate. Accordingly, plaintiffs’ request in this regard is denied
without prejudice to a future application.

7

Case 1:17-cv-02269-ER Document 180 Filed 08/21/23 Page 8 of 8

IV.

CONCLUSION
For the reasons stated herein, the plaintiffs’ motion to enforce the settlement agreement is

GRANTED in PART and DENIED in PART. Additionally, the motion for Nils C. Shillito and
Stephen D. Hans & Associates, P.C., to withdraw as counsel of record for defendants, Doc. 173,
is GRANTED.
�e parties are directed to appear for a telephonic status conference on October 3, 2023,
at 4:30 PM. �e parties are to dial [phone] and enter access code 3029857#.
�e Clerk of the Court is respectfully directed to terminate the motion, Docs. 173, 176,
179.
It is SO ORDERED.
Dated:

August 21, 2023
New York, New York

Edgardo Ramos, U.S.D.J.

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