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THE NEW YORK v. ESTATE OF DEPERNO

March 5, 1993

THE NEW YORK STATE TEAMSTERS COUNCIL HEALTH AND HOSPITAL FUND, AND EVERETT L. CAMPBELL, JAMES M. CARLTON, JAMES A. HOOD, VICTOR C. OLIVADOTI, JOHN PRYSHLAK, NICHOLAS ROBILOTTO and ERVIN WALKER, AS TRUSTEES OF THE NEW YORK STATE TEAMSTERS COUNCIL HEALTH AND HOSPITAL FUND, Plaintiffs,
v.
THE ESTATE OF ROCCO F. DePERNO, ROCCO A. DePERNO, and PATRICIA DePERNO, Defendants.


Hurd


The opinion of the court was delivered by: DAVID N. HURD

United States Magistrate Judge

 MEMORANDUM-DECISION and ORDER

 I. Introduction.

 This action was commenced on October 4, 1988, by plaintiffs alleging violations of the Employee Retirement Income Security Act ("ERISA"), §§ 404(a)(1)(A)(i), 404(a)(1)(B), 406(a)(1)(C)&(D), 406(b)(1)&(2); codified at 29 U.S.C. §§ 1104(a)(1)(A)(i) & 1104(a)(1)(B), 1106(a)(1)(C)&(D), and 1106(b)(1)&(2), during the period of October 1981, through March 1986. They seek damages pursuant to ERISA § 409(a) (29 U.S.C. § 1109(a)).

 The first cause of action is against defendants The Estate of Rocco F. DePerno ("Trustee DePerno") and Rocco A. DePerno ("Attorney DePerno"), alleging violations of ERISA § 404(a)(1)(A)(i) (29 U.S.C. § 1104 (a)(1)(A)(i)), arising out of an alleged breach of their fiduciary duties, when several cooks were hired from Attorney DePerno's restaurant to work as maintenance men at the administrative office of the New York State Teamsters Council Health and Hospital Fund ("Fund").

 The second cause of action has been discontinued.

 The third cause of action is against Attorney DePerno and Patricia A. DePerno ("Mrs. DePerno"), alleging that they participated in Trustee DePerno's breach of his fiduciary duties under ERISA § 404(a)(1) (29 U.S.C. § 1104(a)(1)). See Plaintiffs' First Cause of Action.

 The fourth cause of action is against Trustee DePerno and Attorney DePerno, alleging violations of ERISA § 406(a)(1)(C)&(D) (29 U.S.C. § 1106(a)(1)(C)&(D)) by causing the Fund to engage in a prohibited transaction.

 The fifth cause of action is against Attorney DePerno and Mrs. DePerno, alleging violations of ERISA § 406(a)(1)(C)&(D) (29 U.S.C. § 1106(a)(1)(C)&(D)) as parties in interest by causing the Fund to engage in a prohibited transaction.

 The sixth cause of action against Trustee DePerno and Attorney DePerno, alleges violations of ERISA § 406(b)(1)&(2) (29 U.S.C. § 1106(b)(1)&(2)) as fiduciaries in dealing with the assets of the plan in their own interest on behalf of parties whose interests were adverse to the Fund.

 The court conducted a four day bench trial at Utica, New York. Post trial briefs were filed by the parties. The following Memorandum-Decision and Order constitutes the court's findings of fact and conclusions of law ...


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