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January 6, 1994



The opinion of the court was delivered by: JOHN E. SPRIZZO


 Plaintiffs Bert Hetchkop, in his fiduciary capacity as director, and the New York City District Council of Carpenters Welfare Fund, Pension Fund, Vacation Fund, Annuity Fund, Apprenticeship, Journeyman Retraining, Educational and Industry Fund and Supplemental Fund (the "Benefit Funds") bring this action to recover on a surety bond issued by Liberty Mutual Insurance Company ("Liberty"). Each party seeks summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and in addition, Liberty seeks a dismissal of the complaint pursuant to 28 U.S.C. § 1367(c). For the reasons that follow, the Benefit Funds' motion for summary judgment is granted.


 The Benefit Funds are jointly-administered, multi-employer, labor-management trust funds established and maintained pursuant to various collective bargaining agreements in accordance with the Taft-Hartley Act, 29 U.S.C. § 141 et seq. (1988). Complaint P 5. The Benefit Funds are also employee benefit plans within the meaning of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq. (1993). Id. Gundolt Carpet Workroom, Inc. ("Gundolt") is a member of the Greater New York Floor Coverers Association, Inc., which is the exclusive bargaining agent for all of its members for the purpose of collective bargaining with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (the "Union"). Affidavit of Daniel A. Donnellan dated 10/19/93 ("Donnellan Aff. of 10/19/93") P 3.

 In 1987, the Benefit Funds and Gundolt executed a collective bargaining agreement (the "Agreement") effective July 1, 1987 through June 30, 1990. Id. P 3-4. Under the Agreement, Gundolt was bound to make monetary contributions to the Benefit Funds for fringe benefits on behalf of its employees who performed work within the trade and geographical jurisdiction of the Union. Id. P 4. The Agreement also mandated that Gundolt post a surety bond, the amount of which was dictated by the number of members in the company's bargaining unit. Id. Pursuant to the Agreement, on or about December 2, 1988, Liberty issued Bond No. QL1-1331-432827-058 (the "Bond") in favor of the Benefit Funds which guaranteed up to $ 50,000 of Gundolt's contributions. *fn1" Affidavit of Mary Taylor ("Taylor Aff.") P 3. The Bond, which by its terms incorporated the Agreement, was effective from December 2, 1988 through June 30, 1990. Id. P 4.

 In order to determine if Gundolt had made all required payments, the Benefit Funds commenced an audit of their relevant books and records for the period July 1, 1988 through June 30, 1991. Donnellan Aff. of 10/19/93. P 11. The audit, which continued through July 17, 1991 and required 13 visits to Gundolt's offices, revealed that Gundolt had failed to make $ 242,933.90 in fringe benefit contributions to the Benefit Funds, of which $ 112,022.44 was covered by the Bond. Id.; Affidavit of Daniel A. Donnellan dated 12/15/93 ("Donnellan Aff. of 12/15/93") P 3. On November 8, 1991, the Benefit Funds notified Gundolt of its deficiency and demanded payment thereof, but payment was not forthcoming. Letter from Perkins to Treter of 11/8/91; Donnellan Aff. of 10/19/ 93 P 12.

 On June 29, 1992, the Benefit Funds brought the instant action against Gundolt, seeking $ 242,933.90 in damages for their alleged violation of the Agreement, and against Liberty, seeking $ 50,000 in damages based upon their guarantee relating thereto. Thereafter, Gundolt filed for protection under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101 et seq. (1988), and on December 11, 1992, the entire action was transferred to the court's suspense docket. By order dated February 1, 1993, the action was restored to the court's trial calendar so that the Benefit Funds could proceed against Liberty. The parties filed cross-motions for summary judgment.


 Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment may be granted if "there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The moving party must demonstrate the absence of any genuine issue of material fact. See Adickes v. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). It is well-established that a fact is material when its resolution would "affect the outcome of the suit under the governing law," and a dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Celotex, 477 U.S. 317, 322-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Moreover, in a contract dispute, summary judgment may be granted only where the language of the agreement is unambiguous, see Sayers v. Rochester Tel. Corp., 7 F.3d 1091, 1094 (2d Cir. 1993), which is a question for the court. See Metropolitan Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir. 1990).

 As a preliminary matter, Liberty has objected to the Court's exercise of jurisdiction over this action. *fn2" In short, Liberty contends that, under the circumstances, the state court is the appropriate forum for this contract claim and that this Court should decline to exercise its supplemental jurisdiction.

 Turning to the merits, it is well-established that the "liability of a surety on a bond is predicated upon a breach of the conditions of the bond which describe the obligation." State v. Peerless Ins. Co., 135 A.D.2d 143, 524 N.Y.S.2d 877, 881 (3d Dept. 1988) (citation omitted). The Bond provides that unless Gundolt makes the payments required under the Agreement "for the period during which the bond remains in force . . . the [Bond] shall be . . . in full force and effect, until June 30, 1990." As noted above, Gundolt failed to make the required payments. In addition, the Bond provides "that no suit, action or proceeding shall be maintained against the Surety hereunder, unless the same be instituted within two years after the date of expiration or cancellation of this bond." Since this action was instituted prior to June 30, 1990, or within two years from the expiration of the Bond, this condition was also satisfied.

 Liberty contends however, that pursuant to another provision set forth in the Bond, it unilaterally released itself from all liability to the Benefit Funds. According to Liberty, that provision enabled Liberty to "cancel its liability as to future assessments under the bond at any time by written notice to [Gundolt] and [the Benefit Funds] at least 30 days in advance of the date of cancellation." Accordingly, Liberty argues that its cancellation request, dated October 8, 1991, eliminated all liability to the Benefit Funds, once this request was sent, unless the Benefit Funds asserted their claims within that thirty day period. This argument is in turn predicated on ...

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