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MASON TENDERS DIST. COUNCIL WELFARE FUND v. UNITED

May 17, 1996

MASON TENDERS DISTRICT COUNCIL WELFARE FUND, PENSION FUND, ANNUITY FUND, ASBESTOS TRAINING PROGRAM FUND, INDUSTRY FUND, LEGAL SERVICES FUND, VACATION FUND, NEW YORK STATE LABORERS-EMPLOYERS COOPERATION AND EDUCATION TRUST FUND, NEW YORK LABORERS' HEALTH AND SAFETY TRUST FUND, and BUILDING CONTRACTORS ASSOCIATION INDUSTRY ADVANCEMENT PROGRAM, and PAUL V. RAGONE, in his fiduciary capacity as Director, and JAMES LUPO, as President of THE MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK, Plaintiffs, against UNITED CITY CONTRACTING INC. and DANIEL PALMADESSA, Defendants.


The opinion of the court was delivered by: CEDARBAUM

 CEDARBAUM, J.

 Plaintiffs bring this action pursuant to section 502(a)(3) and 515 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1132(a)(3) & 1145 (1994), and pursuant to section 301 of the Labor Management Relations Act, 1947 ("LMRA"), 29 U.S.C. § 185 (1994), to recover fringe benefit contributions, union dues check-offs and political action committee contributions from Daniel Palmadessa, a former Vice President and fifty-percent shareholder of United City Contracting Inc. and a signatory to various collective bargaining agreements between United City and the Mason Tenders District Council of Greater New York ("the Union"). Palmadessa has moved to dismiss the complaint and plaintiffs have moved for summary judgment. Because the parties have had an opportunity to present materials to supplement the pleadings, I will also treat Palmadessa's motion to dismiss as a motion for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons that follow, plaintiffs' motion is denied and Palmadessa's motion is granted.

 Undisputed Facts

 (1) Mason Tenders District Council Welfare Fund, Pension Fund, Annuity Fund, Asbestos Training Program Fund, Industry Fund, Legal Services Fund and Vacation Fund, the New York State Laborers-Employers Cooperation and Education Trust Fund, the New York Laborers' Health and Safety Trust Fund and the Building Contractors Association Industry Advancement Program are jointly administered, multi-employer, labor-management trust funds established and maintained pursuant to various collective bargaining agreements and trust agreements in accordance with section 302(5) of the LMRA, 29 U.S.C. § 186(c)(5) (1994). The Funds are employee benefit plans within the meaning of sections 3(1), 3(2), 3(3) and 502(d)(1) of ERISA, 29 U.S.C. §§ 1002(1), (2), (3) & 1132(d)(1) (1994), and multi-employer plans within the meaning of sections 3(37) and 515 of ERISA, 29 U.S.C. §§ 1002(37) & 1145 (1994).

 (3) United City is a domestic corporation doing business in the City and State of New York as an employer within the meaning of section 3(5) and 515 of ERISA, 29 U.S.C. §§ 1002(5) & 1145 (1994), and is an employer in an industry affecting commerce within the meaning of section 301 of the LMRA, 29 U.S.C. § 185.

 (4) At all times relevant, Palmadessa was the Vice President and fifty-percent owner of United City.

 (5) Palmadessa executed a collective bargaining agreement with the Union for the period June 1, 1987 to May 31, 1990 ("the 1987 Agreement").

 (6) Under the 1987 Agreement, United City was obligated to contribute to the Welfare Fund, Pension Fund, Annuity Fund, Asbestos Training Program Fund, Industry Fund, Legal Services Fund and the Building Contractors Association Industry Advancement Program, and to remit union dues check-offs and New York Laborers' Political Action Committee ("NYLPAC") contributions.

 (7) The signature clause of the 1987 Agreement provides:

 
IN WITNESS WHEREOF the parties hereto have set their hands the day and year set forth below. The person signing on behalf of the Employer also agrees to be personally bound by and to assume all obligations of the Employer provided in this Trade Agreement and he warrants and represents that he has authority to bind the Employer and the principals or members thereof.

 (Palmadessa Aff., Exh. B at 23.)

 (8) Palmadessa executed a collective bargaining agreement with the Union for the period June 1, 1990 to May 31, ...


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