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PAGOVICH v. KRONETHAL

September 9, 1994

TALIA PAGOVICH, Plaintiff,
v.
HENRY MOSKOWITZ and WILLIAM KRONETHAL, Defendants.


HAIGHT, JR.


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

HAIGHT, District Judge:

 This is an action arising under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq, involving the defendants' alleged failure to comply with their fiduciary and statutory obligations to provide plaintiff with information regarding certain pension and profit sharing plans and to release to her the accrued benefits under those plans. This Opinion resolves several pending motions. Defendant Henry Moskowitz ("Moskowitz"), a medical doctor, moves to dismiss the complaint. Plaintiff Talia Pagovich moves to amend the complaint to add the pension and profit sharing plans as defendants. Plaintiff also moves for partial summary judgment against Moskowitz pursuant to Fed. R. Civ. P. 56(c). Finally, defendant William Kronethal ("Kronethal") seeks summary judgment dismissing the complaint under Rule 56(c). For reasons discussed below, plaintiff's motion to amend the complaint is granted; Moskowitz's motion to dismiss the complaint is denied; plaintiff's motion for partial summary judgment against Moskowitz is granted; and Kronethal's motion for summary judgment is denied.

 I. BACKGROUND

 Plaintiff Talia Pagovich is the widow of Dr. Benjamin Pagovich who practiced medicine in partnership with Moskowitz from July, 1982 through October, 1987. During the course of the medical partnership, Moskowitz established two plans for the benefit of, among others, Pagovich: the Henry Moskowitz, M.D., P.C. Pension Plan and Trust, and the Henry Moskowitz, M.D., P.C. Profit Sharing Plan and Trust (collectively, the "Plans"). Moskowitz admits that he was and continues to be the trustee, administrator and a fiduciary of the Plans. See Answer of Moskowitz at PP 8, 26. The complaint alleges that Kronethal, the President of Integrated Planning and Associates and Vice-President of Standard Pension Services, Inc., was and continues to be an administrator and/or investment manager of the Plans, an allegation which Kronethal denies. Plaintiff is a beneficiary under the Plans.

 Dr. Pagovich died in August of 1990. The complaint alleges that since his death, and despite plaintiff's many requests, defendants have refused to provide plaintiff with statutorily required information regarding the Plans and have failed to release to her the accrued benefits under the Plans. The complaint alleges that by their conduct defendants violated, and continue to violate, their statutory and fiduciary duties prescribed by §§ 101-105, 404 and 405 of ERISA, 29 U.S.C. §§ 1021-1025, 1104 and 1105, and that plaintiff is therefore entitled to redress under §§ 409 and 502 of ERISA, 29 U.S.C. §§ 1109 and 1132. The complaint additionally sets forth common law claims for breach of contract and breach of fiduciary duty.

 Plaintiff seeks a judgment directing provision of the ERISA-mandated information respecting the Plans; payment of the Plans' accrued benefits; statutory penalties authorized by § 502(c) of ERISA, 29 U.S.C. § 1132(c); payment of reasonable attorney's fees pursuant to § 502(g) of ERISA, 29 U.S.C. § 1132(g); and punitive damages under her common law breach of fiduciary duty claim.

 II. DISCUSSION

 A. Moskowitz's Motion to Dismiss

 Without citing a particular Rule upon which the motion is based, Moskowitz moves to dismiss the complaint asserting the lack of any "triable issue to be determined by the Court." Given that familiar phrase, the Court treats the motion as brought pursuant to Fed. R. Civ. P. 56. Under that Rule, the moving party is entitled to summary judgment if the papers "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." On such a motion, "a court's responsibility is to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991) (citing Knight v. U.S. Fire Insurance, 804 F.2d 9 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987)) (citation omitted). Once this burden is met, the responding party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). "The non-movant cannot 'escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts,'. . . or defeat the motion through 'mere speculation or conjecture.'" Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (citations omitted). While the party resisting summary judgment must show a dispute of fact, it must also be a material fact in light of the substantive law. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 B. Plaintiff's Motion to Amend the Complaint

 Under Fed. R. Civ. P. 15(a) a court may grant leave to amend the complaint "when justice so requires." The purpose of Rule 15(a) is to encourage disposition of litigation on the merits. Sanders v. Thrall Car Mfg. Co., 582 F. Supp. 945, 952 (S.D.N.Y. 1983), aff'd 730 F.2d 910 (2d Cir. 1984). In Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962), the Supreme Court held that the mandate of Rule 15(a) "is to be heeded," and offered district courts guidance in exercising their discretion. The Foman Court wrote:

 
"In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought should, as the rules require, be 'freely given'."

 Id.

 Plaintiff requests leave to amend her complaint in order to add the Plans as defendants. Plaintiff contends that the amendment is essential because the Plans themselves must be parties to this suit pursuant to § 502(d)(2) of ERISA, 29 U.S.C. § 1132(d), in order to recover payment of accrued benefits under the Plans. *fn1" Plaintiff explains that her failure to name the Plans as defendants in the original complaint stems from her ignorance of the Plans' identities. This lack of knowledge assertedly resulted from the defendants' allegedly wrongful failure to provide her with information concerning the Plans. According to plaintiff, the identities of the Plans were not disclosed to her until she received discovery from by defendants in September, 1993. Just three weeks later she filed this motion to amend. See Affidavit of Richard G. Primoff dated September 22, 1993, at P 2.

 In his response to the motion, Moskowitz disparages plaintiff and her counsel for allegedly filing the initial complaint for the sole purpose of harassing Moskowitz in retaliation for his filing suit against plaintiff in state court on an entirely different matter. Moskowitz's response more closely resembles a shrill call for Rule 11 sanctions than opposition to a motion to amend the complaint. Nowhere in his critique has Moskowitz offered any reason for this Court to deny the motion to amend. He does not dispute that the Plans are necessary to the relief sought nor does he charge undue delay in the making of the motion. Moskowitz does not allege that the amendment itself is sought in bad faith. His accusations of improper motives and conclusory denunciations of the suit's lack of merit do not provide a valid basis for denying plaintiff's motion.

 Plaintiff filed the initial complaint on May 12, 1993 and the motion to amend on September 22, 1993. Four months is not an excessive delay particularly given that plaintiff did not know the Plan's identities until three weeks before making the motion, an assertion which has gone unchallenged by Moskowitz. Moskowitz has not shown he would be prejudiced by the amendment, and it is difficult to conceive of any possible prejudice. The initial complaint sought payment of the accrued benefits under the Plans, so no unfair surprise will result from the Plans' joinder. Moreover, the amended complaint does not advance any new factual allegations or claims. Accordingly, because plaintiff has demonstrated the necessity of the amendment and because Moskowitz has not shown, and the Court cannot identify, any reason for the denial of leave to amend, plaintiff's motion to amend is granted.

 C. Plaintiff's Motion for Partial Summary Judgment

 Plaintiff moves for partial summary judgment against Moskowitz due to his admission that plaintiff is owed the sum of at least $ 20,625.81 under the Plans. Plaintiff argues that the Court should grant partial summary judgment in the amount of the uncontested accruals pending resolution of the dispute concerning any greater amount of benefits to which she claims entitlement. Plaintiff further argues that no material issue of fact exists concerning Moskowitz's liability under §§ 502(c)(1) of ERISA, 29 U.S.C. 1132(c)(1), arising from violation of his obligations to furnish plaintiff certain information concerning the Plans. Plaintiff therefore urges the Court to impose the discretionary statutory penalty against Moskowitz authorized by § 1132(c)(1) and to grant her an award of attorney's fees.

 1. Undisputed Benefits

 Moskowitz has admitted that plaintiff is owed $ 20,625.81 under the Plans: $ 13,743.47 under the Profit Sharing Plan and Trust, and $ 6,882.34 under the Pension Plan and Trust. No dispute therefore exists as to plaintiff's entitlement to that sum. The parties continue to wage battle over whether the amount of indebtedness is even greater than the sum Moskowitz has admitted. Plaintiff maintains that documents Moskowitz produced in discovery reveal that as of October 31, 1986 Dr. Pagovich's accrued benefits in the Pension Plan were $ 12,521.44 and his accrued benefits in the Profit Sharing Plan were $ 11,159.01. In light of this diminution in value over six years of nearly $ 6,000 in the Pension Plan, and a six-year increase in value in the Profit Sharing Plan of slightly over $ 2,500, plaintiff argues that issues of fact remain as to whether she is owed more than Moskowitz admits and whether the diminution in value may be the result of a breach of fiduciary duty. Moskowitz disputes these assertions.

 A genuine issue of fact clearly exists as to whether the indebtedness to plaintiff is more than the uncontested amount. The fact that a dispute remains as to whether plaintiff is owed anything greater than $ 20,625.81 does not, however, preclude immediate judgment in the amount which is not in controversy. See e.g. Resnick v. Resnick, 722 F. Supp. 27, 35 (S.D.N.Y. 1989) (court granted plaintiff summary judgment as to undisputed amount of accrued benefits under pension plan, leaving for further resolution whether a disputed greater amount was owed). Plaintiff is therefore entitled ...


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