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May 22, 1978

JACK KULCHIN, Plaintiff,
SPEAR BOX COMPANY, INC. RETIREMENT PLAN, SPEAR SALES COMPANY, INC. RETIREMENT PLAN, and SIDNEY CONESCU, individually and as Trustee of the Spear Box Company, Inc. Retirement Plan and the Spear Sales Company, Inc. Retirement Plan, Defendants

The opinion of the court was delivered by: CARTER


 Plaintiff, Jack Kulchin, commenced this action against the employee retirement plans ("Plans") of Spear Box Company ("Spear Box") and Spear Sales Company ("Spear Sales"), and against Sidney Conescu, individually and in his capacity as the trustee of the defendant Plans. Kulchin seeks to recover pension benefits allegedly owed to him under the Plans, *fn1" certain statutorily prescribed penalties arising from defendant Conescu's alleged refusal to supply Kulchin with specific documents relating to the Plans, *fn2" and attorneys' fees. *fn3"

 Defendants now move for summary judgment pursuant to Rule 56, F.R.Civ.P. *fn4" Plaintiff, in his responsive papers, resists defendants' motion and asks that summary judgment be entered in his favor since the court clearly has the power, in appropriate circumstances, to grant summary judgment for the non-moving party even in the absence of a formal cross-motion for such relief. *fn5" For the reasons set out below, defendants' motion is denied, and partial summary judgment will be entered for plaintiff solely on his claim for pension benefits under the Plans.


 Plaintiff is a seventy-five year old man who, for fifty-five of those years, has been a director, officer, employee and/or shareholder of both Spear Box and Spear Sales ("Companies"). In 1963, the Companies first created the Plans and from their inception, plaintiff here has been a "participant" in the Plans, i.e., he has been included within them, and, under certain circumstances, would be entitled to pension benefits under them.

 On August 29, 1977, the relationship between the plaintiff and the Companies ended. Plaintiff claims that he was discharged and locked out of his offices. The Companies contend that Kulchin voluntarily left their employ. Whichever version of the facts surrounding Kulchin's departure from the Companies is accepted, it is undisputed that after August 29, 1977, plaintiff provided no services to the Companies, nor did he receive any compensation from them. *fn6"

 On September 2, 1977, Kulchin phoned Conescu and requested that his pension benefits be distributed to him. Plaintiff maintains that he specifically demanded that he be sent the claim forms that are technically required by the Plans before any pension benefits are paid out; *fn7" defendants disagree. In any event, no such claim forms were provided to Kulchin.

 Two weeks later, on September 14, 1977, Kulchin commenced an action in New York State Supreme Court *fn8" against the Companies challenging the propriety of his discharge and seeking reinstatement and back pay. That suit is now pending, and it is the effect of that suit on plaintiff's entitlement to his benefits under the Plans which is at the core of the instant motion.

 Kulchin pressed forward in his state court action and on November 29, 1977, demanded in the course of pretrial discovery that the Companies supply him with copies of the trustees' annual report for both Plans for the fiscal year ending August 31, 1977. Those documents were not given to plaintiff until almost four months after the discovery request was first made, and then, only pursuant to state court order.

 The instant suit was commenced on February 10, 1978. Plaintiff here seeks to enforce his right to pension benefits under the Plans and to recover a $100 per day statutory penalty from defendant Consecu for his failure to provide Kulchin with the pension claim forms and for his refusal to turn over copies of the Plans' annual reports.

 On March 6, 1978, plaintiff made a specific formal written request to Conescu for the benefit claim forms alluded to in both Plans. It turned out, however, that no such forms existed. Instead, on March 20, 1978, defendants delivered to plaintiff's counsel a newly composed form which purported to embody those questions which the Plans traditionally asked of claimants.

 In March and April of this year, the parties filed the papers which are now before the court. Oral argument was held on April 28, 1978, and now the matter is ripe for a determination at least in part.

 1. Right to Pension Benefits

 In order for plaintiff to be entitled to receive benefits under the Plans, he either must have retired *fn9" or his employment must have been "terminated otherwise than by death, retirement or disability." *fn10" If plaintiff meets either of those prerequisites, the terms of the Plans require that payments "must commence not later than sixty (60) days after the Valuation Date, or, if later, not later than the sixtieth (60th) day following the date upon which the amount payable is ascertained." *fn11" ...

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