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June 7, 1994

CHARLOTTE SHAPIRO, as personal Representative of the Estate of Sam Shapiro, Deceased, Plaintiff,

The opinion of the court was delivered by: JOHN R. BARTELS

 Bartels, U.S. District Judge.

 Plaintiff Charlotte Shapiro brings this action on behalf of her deceased husband, Sam Shapiro, against defendant Joint Industry Board of the Electrical Industry ["Joint Industry Board"] to recover medical benefits under the Employment Retirement Income security Act ["ERISA"], 29 U.S.C. § 1132(a)(1)(B). Defendant has moved for summary judgment pursuant to Federal Rule of Civil procedure ["Rule"] 56. *fn1" For reasons more fully explained herein, the motion for summary judgment is granted.


 The Joint Industry Board is the plan administrator of the Pension, Hospitalization and Benefit Plan of the Electrical Industry ["the Benefit plan"], an "employee welfare benefit plan" as defined by ERISA. Sam Shapiro was a Retired participant eligible to receive benefits under the Benefit Plan by virtue of his membership, prior to his retirement, in the International Brotherhood of Electrical Workers.

 Between September 1990 and the date of his death on March 31, 1991, Sam Shapiro was hospitalized on three separate occasions for treatment of a malignant lymphoma. At the direction of his physician, Sam Shapiro obtained private duty nursing services at a total cost of $ 69,300. He submitted a timely claim for reimbursement these expenditures with the Joint Industry Board.

 At a regularly scheduled meeting held on February 27, 1991, the Trustees of the Benefit Plan reviewed Shapiro's claim. By letter dated March 6, 1991, the Joint Industry Board informed Shapiro that his claim was not covered by the Benefit Plan because the private duty nursing expenses were not approved charges under Medicare Part B. An appeal submitted to the Trustees on Shapiro's behalf by his attorney was considered at a meeting on April 24, 1991. On May 9, 1991, defendant advised Shapiro that his appeal had been denied, citing Section 14.04(B) of the Benefit Plan. The Trustees declined to review an additional claim for private duty nursing care submitted by Shapiro's attorney on August 5, 1991.

 In addition, by letter dated December 27, 1990, plaintiff's attorney requested copies of the Benefit Plan and the Trust Agreement governing the administration of the plan. The Joint Industry Board forwarded Sam Shapiro a copy of the Benefit Plan on January 4, 1991. Defendant concedes that the Trust Agreement was never provided.

 On August 5, 1993, plaintiff filed the complaint in this action, setting out two causes of action. First, plaintiff alleges that defendant's denial of Sam Shapiro's claim for reimbursement of expenses for private duty nursing care was arbitrary and capricious. In addition, plaintiff asserts that defendant's failure to furnish a copy of the Trust Agreement violated ERISA.



 Rule 56 states that summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The burden is on the movant to establish the absence of any genuine issues of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Further, the court must construe the facts in the light most favorable to the non-moving party. Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985). However, the non-movant "may not defeat a motion for summary judgment merely by pointing to a potential issue of fact; there must be a genuine issue of material fact." Moller v. North Shore University Hospital, 12 F.3d 13, 15 (2d Cir. 1993), quoting City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).


 As a preliminary matter, defendant contends that this action should be dismissed because plaintiff has failed to sue the proper party. With respect to plaintiff's second cause of action alleging failure to provide the Trust Agreement, 29 U.S.C. § 1132(c) states:

Any administrator who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary . . . may be ...

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