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February 20, 1992


The opinion of the court was delivered by: NEAL P. MCCURN

 Plaintiff commenced this action in New York State Supreme Court, Oswego County, on October 23, 1990. Plaintiff amended his complaint on November 15, 1990. The gravamen of the amended complaint is that the defendant, an employee benefit fund, failed to pay plaintiff monthly pension benefit payments owed to him between 1983 and 1987. Contending that the action is governed by the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1000-1446 (1988 & West Supp. 1991), the defendant removed the case to this court pursuant to 28 U.S.C. § 1441 (1988 & West Supp. 1991). Jurisdiction is based upon the existence of a federal question, 28 U.S.C. § 1331 (1988).

 The defendant has interposed its answer, and now moves for summary judgment. The plaintiff has cross-moved for summary judgment.


 In April, 1983, when plaintiff reached 55 years of age, he allegedly requested the treasurer of his Local to make arrangements for plaintiff to receive an early pension from the Fund. Osborne Aff. (1/14/92) at 6. Between the time of his original request (in 1983) and April 1, 1987, plaintiff and Local officials wrote approximately sixteen letters to the defendant, ostensibly to secure pension payments for the plaintiff. See id. para. 7 and accompanying exhibits. Plaintiff's efforts to obtain pension benefits were unsuccessful until April 1, 1987, when he received his first pension payment. Defendant's refusal to pay plaintiff pension benefits before then was based on the Fund's assertion that plaintiff did not properly apply for funds until March, 1987. Since April 1, 1987, plaintiff has been receiving monthly pension benefits from the defendant Fund.

 Plaintiff brought this suit in 1990, alleging that he was wrongfully deprived of $ 6,000.00 in pension benefits between 1983 and April 1, 1987. Defendant now moves for summary judgment, and plaintiff cross-moves for summary judgment.


 The defendant presents three independent bases supporting its motion for summary judgment:

 A. plaintiff was not entitled to pension payments until 1987, because he did not properly apply for funds until that date;

 B. plaintiff has no right to sue until he exhausts the dispute mechanisms set forth in the pension plan; and

 C. plaintiff's action is time barred.

 Defendant's arguments will be discussed seriatim.

 A. Whether plaintiff properly applied for funds in 1983.

 Defendant's first basis for summary judgment turns on an interpretation of the Pension Plan provision governing payment of benefits. *fn1" In short, the Plan explicitly states that pension benefits will not be paid until the month "following receipt of an application" for benefits. According to the defense, the Fund did not receive plaintiff's application for retirement benefits until March, 1987. Under the express terms of the Plan, argues the defendant, plaintiff was not entitled to funds until he finally applied for them in 1987.

 Defendant's argument gives rise to questions of contract interpretation. In cases involving interpretation of agreements, "summary judgment is perforce improper unless the terms of the agreement are 'wholly unambiguous.'" Wards Co., Inc. v. Stamford Ridgeway Assoc., 761 F.2d 117, 120 (2d Cir. 1985) (citations omitted). This is because a contract that is susceptible to at least two fairly reasonable interpretations raises a material issue of fact as to the actual meaning of the ambiguous term. Mycak v. Honeywell, Inc., 953 F.2d 798 (No. 91-7275) (2d Cir. 1992) (citing Thompson v. Gjivoje, 896 F.2d 716, 721 (2d Cir. 1990); Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir. 1983); Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317 (2d Cir. 1975), cited in Wards Co., 761 F.2d at 120. As often stated, the existence of a genuine issue of material fact dictates that summary judgment must not be granted. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).

 Plaintiff has presented a genuine issue of material fact as to the interpretation of the Plan, thus defeating defendant's motion for summary judgment in this respect. Specifically, plaintiff avers that he verbally applied for pension benefits in 1983. Verbal application for benefits, contends the plaintiff, is sufficient "application" under the Plan to justify payment of benefits. After all, nowhere does the Plan state that application for benefits must be "in writing." Moreover, plaintiff's assertion that he verbally applied for pension payments is somewhat corroborated by the sixteen letters, written by both plaintiff and Local officials to the defendant between 1983 and 1987, concerning plaintiff's request for benefits. See Osborne Aff. exh. "A" through "P". Plaintiff has thus raised a factual issue as to (1) whether verbal application for pension benefits is sufficient under the Plan, and (2) whether plaintiff indeed verbally applied for benefits.

 Defendant implicitly acknowledges that the Plan itself does not expressly carry a written application requirement. Defendant nonetheless contends that the proper application of written procedures are outlined in the Plan Summary, and that the Plan Summary is unambiguous in its requirement of written application for pension benefits. See Plan Summary at 40, in DeBella Aff. (1/21/92) at exh. "A". *fn2" Defendant argues that the written application requirement set forth in the Plan Summary is entitled to the same force as the requirements of the Plan itself, in part because its inclusion in the Plan Summary is mandated by 29 C.F.R. § 2560.503-1(b)(1)(ii) (1991). Since the Fund did not receive plaintiff's written application for benefits as required by the Summary, argues the defendant, plaintiff was not entitled to pension benefits in 1983.

 The problem extant here is that the Plan Summary imposes requirements for applying for pension benefits which do not exist in the Plan itself. In particular, the Plan Summary requires written application for benefits, whereas the underlying Plan is absolutely silent on the subject of how to apply for benefits. The Plan's silence is especially troublesome because the federal regulations promulgated pursuant to ERISA state in pertinent part that in the absence of reasonable claim procedures set forth in the Plan, "a claim shall be deemed filed when a written or oral communication is made by the claimant" for benefits. 29 C.F.R. § 2560.503-1(d) ("Filing of a claim for ...

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