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OSBORNE v. NEW YORK STATE TEAMSTERS CONF. PENSION

May 27, 1992

BRUCE OSBORNE, Plaintiff,
v.
NEW YORK STATE TEAMSTERS CONFERENCE PENSION AND RETIREMENT FUND, Defendant.



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

 MEMORANDUM-DECISION AND ORDER

 On February 21, 1992, this court entered an order denying defendant New York State Teamsters Conference Pension and Retirement Fund's ("Fund") motion for summary judgment. Osborne v. New York State Teamsters Conf. Pension and Retirement Fund, 783 F. Supp. 739 (N.D.N.Y. 1992) (McCurn, C.J.). Defendant now moves for reconsideration of that order.

 For the reasons set forth below, defendant's motion for reconsideration is granted, the February 21, 1992 order denying summary judgment is vacated, and defendant's motion for summary judgment is granted. Defendant's motion is granted, however, with a comment concerning defense counsel's practice in this court.

 I. BACKGROUND

 A complete recitation of the facts giving rise to this litigation is set forth in the February 21 decision denying summary judgment. See generally Osborne, 783 F. Supp. 739. In sum, from 1956 through 1971, plaintiff Bruce Osborne's employers contributed funds to the defendant Fund on plaintiff's behalf. The Fund was created and operated pursuant to an agreement between participating employers and numerous local unions, including plaintiff's union. Plaintiff attests that in April, 1983, when he was 55 years old, he orally applied to the Fund to receive early pension benefits. His purported requests for benefits went unfulfilled for four years, until he finally received his first payment in April, 1987. The Fund asserts that plaintiff was not eligible for funds before April, 1987 because he did not properly apply for benefits until that date. More specifically, according to the Fund plaintiff was not entitled to benefits because he did not submit a written application as required by the pension plan. Since April, 1987, however, plaintiff has been receiving monthly pension benefits from the defendant Fund.

 Plaintiff brought this suit against the Fund in 1990, alleging that the Fund improperly deprived him of $ 6,000.00 in pension benefits between 1983 and 1987. The Fund subsequently moved for summary judgment, stating three bases for relief. Osborne, 783 F. Supp. at 741. The court found the existence of genuine issues of material fact as to all three arguments and therefore denied defendant's motion. Most notably, the court found a genuine factual issue as to whether the plan specifically required plaintiff to submit written as opposed to oral application for funds. The court wrote:

 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.

 Id. at 742.

 Defendant seeks reconsideration of this aspect of the decision.

 II. DISCUSSION

 Defendant moves for reconsideration on grounds that the Fund plan specifically requires that applications for funds be placed in writing. Since plaintiff produced no evidence showing that he applied for funds in writing, argues the defense, he cannot prevail as a matter of law and summary judgment should have been granted.

 In its original motion for summary judgment defendant was unable to cite a provision of the plan that required written application for benefits. When directly questioned at oral argument about the existence of a writing requirement, defense counsel directed the court only to Section V on page 30 of the plan, a provision which does not contain a writing requirement. Osborne, 783 F. Supp. at 741 n.1 (quoting Section V); see Transcript (1/28/92) at 3. *fn1" Any claim by the defense that Section V requires that applications be submitted in writing is belied by the text of Section V itself, which is unequivocally silent as to a writing requirement. Significantly, in support of its motion for summary judgment, the defense presented no other portion of the 51-page plan document that mandated written application for funds. *fn2" The court therefore ruled that there exists a genuine factual dispute as to whether the application must be in writing and consequently denied defendant's motion for summary judgment.

  *fn2" To that end, the court rejected defendant's reliance upon the plan summary as imposing a writing requirement because the plan document itself, not its summary, controls the terms of the plan. Osborne, 783 F.2d at 742-43. In this argument for reconsideration, defendant persists in arguing that the plan summary carriers an applicable writing requirement. Since the defense has given absolutely no ...


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