The opinion of the court was delivered by: KNAPP
WHITMAN KNAPP, SENIOR D.J.
This is a case brought by plaintiffs union trust funds ("plaintiff funds") for the Local 46 Metallic Lathers Union etc. ("the Union") for recovery of unpaid union fringe benefits. They allege that their claims arise out of work performed on a construction project run by the New York City School Construction Authority ("the project"). Defendants are the prime contractor on the project, Trataros Construction Inc. ("defendant Trataros"), the majority shareholder of defendant Trataros, Costas Trataros ("Mr. Trataros"), the surety on a public improvement bond on which plaintiffs are suing, Seaboard Surety Company ("defendant Seaboard"), and the subcontractor on the project, Construction Building Services ("CBS"). Defendants Trataros, Mr. Trataros and Seaboard ("the moving defendants") have moved to dismiss.
The facts as alleged by plaintiffs are as follows:
As prime contractor, defendant Trataros was required under New York State Finance Law to supply a labor and material payment bond. Such bond had to guarantee "prompt payment of monies due to all persons furnishing labor or materials to the contractor or his subcontractor in the prosecution of the work provided for in such contract." New York State Finance Law § 137(1). Defendant Trataros posted such a bond, issued by defendant Seaboard. The New York City School Construction Authority was obligee. Defendant Trataros was the named principal on the bond.
On or about July 19, 1994, CBS, for reasons that are unknown, abandoned its work on the project and stopped making contributions to the plaintiff funds. Defendant Trataros stepped into the role of employer and hired union workers to continue working on the project. When union officials expressed concerns about contributions to the funds, defendant Trataros gave assurances that it would assume responsibility for the contributions.
Attached to plaintiffs' complaint is a letter dated June 2, 1994, in which defendant Trataros seeks to assure the plaintiff funds that the provisions of the subcontract agreement between defendant Trataros and CBS "provide for the issuance of two-party checks against funds accruing thereunder to discharge valid debts incurred during its performance."
Defendant Trataros made benefit contribution payments on at least six occasions from April 26, 1994 to July 26, 1994 (some even before CBS stopped making its contributions to the plaintiff funds). Defendant Trataros made no contributions to plaintiff funds after July 26, 1994, despite the fact that union workers continued to work on the project until September 14, 1994.
As a result, on April 12, 1995, plaintiffs brought this action. Defendant Trataros is named in Count II, defendant Seaboard is named in Count III, and defendant Costas Trataros is named in Counts VII, VIII and IX.
Count II alleges a violation of 29 U.S.C. § 1145 of the ERISA statute by defendant Trataros; it also alleges a breach of contract claim against defendant Trataros, based on a written guarantee of payment; and a breach of contract claim against defendant Trataros based on an oral promise of payment.
Count III alleges a claim against defendant Seaboard Surety based upon § 137 of the New York State Finance Law.
Count VII asserts a violation of 29 U.S.C. § 1145 of the ERISA statute by defendant Costas Trataros by alleging the federal common law claim of greater ...