After hearing evidence presented by plaintiff, and reviewing the general contractor's construction logs and records, a panel of three union representatives and four employer representatives determined that defendant was liable for the contributions owed. Subsequent to this decision, plaintiff demanded that defendant comply with the Board's decision. When defendant did not fully do so, plaintiff commenced the instant action.
Aside from the fact that there seem to be no material issues in dispute, plaintiff makes two legal arguments for summary judgment: first that under ERISA, it is entitled to the contributions; and second that under the LMRA, defendant is bound by the decision of the Trade Board. Defendant concedes these points of law.
However, defendant raises two defenses. First, defendant argues that it did not receive notice of the Trade Board hearing in time to ask for an adjournment of the hearing. As a result, defendant argues that the determination of the Board should be set aside. Given that defendant had at least one day, and maybe two days in which to request such an adjournment, this argument is not persuasive. Second, defendant claims that it has already made partial payment of the amount owed. In response, plaintiff has agreed to adjust the amount it seeks to recover.
We accordingly grant plaintiff's motion for summary judgment on the question of defendant's liability for the contributions owed. We direct that the parties attempt to agree on the actual amount. If they have not done so on or before fourteen days from the date of this order, we shall refer this matter to a Magistrate Judge to resolve whatever dispute remains.
On the question of attorneys fees, plaintiff is clearly entitled by law to recover. If the parties cannot agree on the amount of fees, my chambers will arrange a conference to discuss the matter.
New York, New York
October 2, 1995
WHITMAN KNAPP, SENIOR U.S.D.J.
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