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GREENBLATT v. DELTA PLUMBING & HEATING CORP.

April 7, 1994

WILLIAM GREENBLATT and PETER N. SALZARULO, as Chairman and Co-Chairman, respectively and Trustees of the JOINT INDUSTRY BOARD OF THE PLUMBING INDUSTRY OF THE CITY OF NEW YORK and Funds Administered by JOINT INDUSTRY BOARD OF THE PLUMBING INDUSTRY OF THE CITY OF NEW YORK, PETER N. SALZARULO, in his capacity as President of LOCAL UNION NO. 2 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, PETER N. SALZARULO, Individually and LOCAL UNION NO. 2 OF THE UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL-CIO, Plaintiffs,
v.
DELTA PLUMBING & HEATING CORP. and NEW YORK SURETY COMPANY, Defendants.


SWEET


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 Plaintiffs William Greenblatt and Peter N. Salzarulo as Chairman and Co-Chairman, respectively, and Trustees of the Joint Industry Board of the Plumbing Industry of the City of New York and Funds Administered by Joint Industry Board of the Plumbing Industry of the City of New York ("the Board"), Peter N. Salzarulo, in his capacity as President of Local Union No. 2 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Peter N. Salzarulo, individually, and Local Union No. 2 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (collectively, the "Plaintiffs"), have submitted a proposed judgment purportedly in conformance with this Court's opinion of September 29, 1993, reported at 834 F. Supp. 86 (S.D.N.Y. 1993) (the "September 29 Opinion"). Defendant New York Surety Company ("New York Surety") objects to certain portions of the Plaintiffs' proposed judgment, and has submitted a proposed counter-judgment.

 Prior Proceedings

 The parties, facts, and prior proceedings in this matter were discussed at length in prior opinions of this Court, familiarity with which is assumed. See, e.g., Greenblatt v. Delta Plumbing & Heating Corp., 834 F. Supp. 86 (S.D.N.Y. 1993); Greenblatt v. Delta Plumbing & Heating Corp., 818 F. Supp. 623 (S.D.N.Y. 1993). They will be described below only to the extent necessary for the resolution of this motion.

 The Plaintiffs, who include guardians of various Employee Retirement Income Security Act of 1974 (ERISA) Funds, brought suit in this Court against Delta Plumbing and Heating Corporation ("Delta") on November 30, 1989, and added the New York Surety as a named defendant in May 1990. Delta sought protection from its creditors by filing a voluntary petition in bankruptcy in March 1991, automatically staying the action against it pursuant to 11 U.S.C. § 362, leaving New York Surety as the sole defendant.

 New York Surety's motion to dismiss the complaint was denied on April 9, 1993. Greenblatt v. Delta Plumbing & Heating Corp., 818 F. Supp. 623 (S.D.N.Y. 1993). In the April 9 Opinion, the Court determined that New York Surety was subject to the jurisdiction of the Court under ERISA, 29 U.S.C. § 1145 ("Section 1145").

 The September 29, 1993 Opinion, issued after trial, concluded that "judgment will be entered awarding to the Board the sum of $ 50,636.86 plus costs." Greenblatt v. Delta Plumbing & Heating Corp., 834 F. Supp. 86, 93 (S.D.N.Y. 1993). Argument on the present matter was heard on January 5, 1994, and was considered fully submitted as of that date.

 Facts

 The Plaintiff's proposal provides for judgment in the principal amount of $ 50,638.86 as and for past benefit contributions for the period through to June 30, 1990, interest at 18% according to the CBA from March 5, 1990, liquidated damages in the amount of $ 33,421.65, disbursements of this action in the amount of $ 807.00, attorneys' costs in the amount of $ 73,963.25, and accounting costs in the amount of $ 3,650.00, amounting in total to $ 195,902.41.

 The CBA provides, among other things, as follows:

 
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18. FRINGE BENEFITS, FAILURE TO PAY: In the event an Employer shall default in payment of fringe benefits provided for by the terms of this Agreement, it shall be considered the same as failure to pay wages, and all Employees shall not be permitted to work for any Employer who is delinquent in the payment of fringe benefits.
 
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20. FRINGE BENEFITS, CONSEQUENCES BECAUSE OF FAILURE TO PAY: The failure of an Employer to pay all Fringe Benefits and Supplemental Benefits and Contributions shall have the same consequences as the failure of an Employer to pay the wages of Journeymen, Apprentices and Worker Trainees or to afford them the conditions of employment stipulated in this Agreement, and in addition, such Employer shall be liable for the payment of such Fringe Benefits with interest of 18% per annum plus liquidated damages of 20% of the amount owing and all costs including, but not limited to, reasonable audit and accounting expenses, witness costs, and attorney fees and court costs.
 
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22. SURETY BOND TO GUARANTY PAYMENT OF FRINGE BENEFITS: Each Employer shall furnish a bond of an agreed form by a Surety Company approved by the New York State Insurance Department to the benefit of the Joint Plumbing Industry Board to guaranty the payment of the Fringe Benefits herein mentioned, Security Benefits and any and all other benefits and contributions. The amount of the bond shall be in ...

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