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PLUMBING INDUS. BD. PLUMBING LOCAL UNION NO. 1 V.

April 16, 1996

PLUMBING INDUSTRY BOARD PLUMBING LOCAL UNION NO. 1, Plaintiffs, against L & L MASONS, INC., E.W. HOWELL CO., INC., AMERICAN HOME ASSURANCE CO., INC., NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, T & L FABRICATORS, INC. and FIRE END & COKER CORP., Defendants.


The opinion of the court was delivered by: CHIN

 CHIN, D.J.

 Plaintiff Plumbing Industry Board, Plumbing Local Union No. 1 ("PIB") brings this action against E.W. Howell ("Howell") and American Home Assurance Construction Co., Inc. ("American"), *fn1" asserting claims under New York's Lien Law and as a third-party beneficiary to a contract. PIB seeks to recover unpaid fringe benefit contributions.

 Howell and American removed this action to this Court in January 1995, asserting the Employee Retirement Income Security Act of 1974 ("ERISA") as the basis for federal jurisdiction. They now move for summary judgment, arguing that PIB is not entitled to recovery under ERISA and that ERISA preempts PIB's state law claims. PIB has cross-moved for a remand to state court, contending that recent Second Circuit cases dictate that ERISA does not pre-empt their state claims. As discussed further below, ERISA pre-empts both § 5 of the New York Lien Law and PIB's common law contract claims. Accordingly, defendants' motion for summary judgment is granted.

 BACKGROUND

 The undisputed facts are as follows:

 On February 10, 1992, Howell entered into a contract (the "Contract") with the New York City School Construction Authority ("SCA") for the construction of the Townsend Harris High School in Queens, New York (the "Project"). In connection with the Project, Howell entered into a subcontract with Alumni, whereby Alumni was to perform certain plumbing work.

 At the time of this subcontract, Alumni was part of a collective bargaining agreement with PIB. Pursuant to that agreement, Alumni was obligated, inter alia, to make contributions for fringe benefits to PIB's employee benefit plan. Howell was not a party to the collective bargaining agreement.

 In December 1993, Alumni defaulted on its fringe benefit contributions and filed for bankruptcy. In response, PIB filed a notice of public improvement mechanic's lien, pursuant to § 5 of the New York Lien Law, against the interests of Howell in the amount of $ 160,000. To insure that it continued to receive payment from SCA, Howell discharged the lien by filing a surety bond issued by American.

 On December 12, 1994, PIB commenced this action in Supreme Court, New York County seeking to recover its unpaid fringe benefit contributions. The complaint is basically unintelligible. Giving it a generous interpretation, I will assume for the purposes of this motion that PIB intended to assert a claim for breach of contract (apparently on the theory that it is a third-party beneficiary to the Contract) and a claim to foreclose its lien. Howell and American removed the action to federal court, asserting that jurisdiction existed because ERISA pre-empted PIB's state law claims. These motions followed.

 DISCUSSION

 PIB concedes that Howell and American are not "employers" as that term is used in ERISA § 3(5). Thus, PIB cannot recover under ERISA. Instead, PIB asserts that it has two viable state law claims. PIB argues that this Court lacks jurisdiction over these claims, and that consequently this action should be remanded to state court.

 I. ERISA Pre-emption

 Section 514(a) of ERISA contains a specific ...


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