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COSSACK v. BURNS

July 7, 1997

THOMAS F. COSSACK, Plaintiff, against DARRELL L. BURNS, SAMUEL R. GRIMALDI, ANTHONY C. CAROPRESSO, WALTER D. GOULD, IRONWORKER'S LOCAL NO. 12 PENSION FUND, AND IRONWORKER'S LOCAL NO. 12, Defendants.


The opinion of the court was delivered by: MCAVOY

 I. BACKGROUND1

 Plaintiff Thomas Cossack brings suit under the Employee Retirement Income Security Act ("ERISA") against his union, his pension fund, and the fund's trustees to recover retirement pension benefits. Plaintiff also brings suit under New York State law for breach of contract and estoppel. Essentially, Cossack alleges that after 39 years of service, the Ironworkers Local No. 12 Pension Fund ("Local 12 Plan") improperly granted him only 8.8 years of pension credits.

 In 1953, Cossack began work as an ironworker on permit. In 1957, he obtained his union book. In 1959, he automatically became a participant in the Ironworkers District Council of Western New York and Vicinity Welfare Fund and Pension Fund ("District Council Plan"). In 1969, Ironworkers Local No. 12 ("Local 12 Union") proposed its own pension plan for its fraternal brothers.

 According to Plaintiff, the Local 12 Union management (through its business agent, Mr. Winnig) assured members that the Local No. 12 Pension Fund had the same benefits as the District Council Plan and that the new pension fund would not curtail the benefits a Union member earned in the District Council Plan. Plaintiff states that it was represented to him that once a union member was vested under the terms of the District Council Plan, that member's pension credits were safe and vested under the Local 12 Plan, even if that member stopped working or missed time over the years. Without these assurances, Cossack argues, there was no point to the membership's approving the Local 12 Plan (i.e., no point of potentially losing all past pension credits). In addition, until his retirement, Plaintiff alleges that he was never provided a copy of the 1969 Local 12 Plan, or its Summary Plan Description ("SPD").

 In 1992, Cossack retired and applied for retirement benefits. At that time, Cossack was told by the Local 12 Plan Administrator, Darrell Burns, that under the Local 12 Plan's break-in-service rules, Cossack's failure to work in the mid 1970's had caused him to forfeit all prior pension credit he earned. On December 11, 1992, the Plan Trustees denied Cossack's request for additional benefits after reviewing Cossack's application and objections to the revocation. Plaintiff filed the instant suit on December 22, 1995.

 Presently before the Court are Defendants' Motion and Plaintiff's Cross-Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 II. DISCUSSION

 Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, a court may grant summary judgment if it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). It is the substantive law that will determine what facts are material to the outcome of a case. See Anderson, 477 U.S. at 250.

 Initially, the moving party has the burden of informing the court of the basis of its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). If the moving party satisfies its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The Court must then resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). However, the non-moving party must do more than simply show "that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Only when the Court concludes that no rational finder of fact can find in favor of the non-moving party should summary judgment be granted. Gallo v. Prudential Residential. Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994).

 Furthermore, in an effort to aid the disposition of summary judgment motions, the Local Rules of the Northern District of New York require:

 
On a motion for summary judgment pursuant to Fed. R. Civ. P. 56, there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue, with specific citations to the record where such facts are set forth. The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue, with specific citations to the record where the factual issues arise. All material facts set forth in the statement served by the moving party shall be deemed admitted unless controverted by the statement served by the opposing party. The motion for summary judgment shall be denied if the moving party fails to file and serve the statement required by this paragraph.

 N.D.N.Y.L.R. 7.1(f) (emphasis added). In the absence of this mandatory short and concise statement, the motion shall either be denied or the facts deemed admitted.

 Here, neither party has complied with Rule 7.1(f). Throughout their Rule 7.1(f) statements, neither party provides even one factual citation, let alone "specific citations to the record where the factual issues arise." N.D.N.Y.L.R. 7.1(f).

 If compliance with Local Rule 7.1(f) can be accomplished with such a minimal statement, any benefits inuring from Rule 7.1(f) would be completely eviscerated. Rule 7.1(f) was drafted to force litigants to focus sharply on the specific factual issues in dispute. By doing this, and providing precise citation to the record where the disputed facts are located, both the parties and the Court can move immediately to the gravamen of the case; absent this forced focus, the parties' briefs can remain, as is often the case, as "two ships passing in the night."

 Accordingly, because Defendants have failed to comply with Rule 7.1(f), their Motion for Summary Judgment is denied in its entirety. Similarly, because Plaintiff has failed to comply with Rule 7.1(f), Plaintiff's Cross-Motion for Summary Judgment is denied in its entirety. Nevertheless, as evidenced by the submissions of the parties, there is little agreement as to the applicable law in this case. For this reason, the Court will address some of the legal standards at issue to provide the parties with guidance at trial.

 A. Applicability of ERISA

 As an initial matter, the Court must determine whether ERISA governs this case at all. Pursuant to ERISA's "preemption provision," ERISA is not applicable where (1) the plaintiff's asserted claim accrued, or (2) the relevant act or omission that served as the basis for the plaintiff's claim occurred, before January 1, 1975. 29 U. S. C. § 1144 (b)(1). *fn2" Thus, § 1144 effectively preserves the application of state law to any cause of action arising before January 1, 1975, as well as to any claim involving an act or omission occurring before that date. See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1189 (2d Cir. 1996); Menhorn v. Firestone Tire & Rubber Co., 738 F.2d 1496, 1500 (9th Cir. 1984). In Nowak v. Ironworkers Local 6 Pension Fund, the Second Circuit had cause to interpret section 1144, and stated: "In interpreting the 'act or omission' clause of this provision, we have held that ERISA will not apply where a denial of benefits after January 1, 1975, was merely the 'inexorable consequence' of a pre-1975 'act or omission.'" 81 F.3d 1182 at 1189 (quoting Lamontagne v. Pension Plan of the United Wire, Metal & Mach. Pension Fund, 869 F.2d 153, 155-56 (2d Cir. 1989)).

 Here, there are three events that could conceivably be considered the relevant "act or omission" triggering ERISA preemption: the date on which Plaintiff is alleged to have completed his "break in service" such that he forfeited his pension credits; the adoption date of the pension plan that was in effect at the time Plaintiff's break in service occurred; or the adoption date of the pension plan that was in effect at the time Plaintiff applied for benefits.

 Defendants argue that Cossack incurred a five year break-in-service from plan years 1973-74 through 1977-78; thus, Defendants assert that as of May 31, 1976, three consecutive plan years had past since Cossack earned any pension credit. In opposition, Plaintiff does not contest that he was unemployed between 1974 and 1977, but instead asserts that his unemployment was involuntary and thus it cannot divest him of earned past pension credits. (See Plf's Mem. of Law at 12). Putting aside Plaintiff's argument as to the significance of his asserted involuntary unemployment, for purposes of ERISA preemption the Court will initially assume that Plaintiff's break-in-service date was May 31, 1976.

 The fact that May 31, 1976, is after the January 1, 1975 effective date of ERISA leads to the preliminary conclusion that ERISA governs the instant dispute. However, recent decisions in this circuit caution that the present conundrum is not so easily resolved. In Nowak, the Second Circuit stated that the relevant "act or omission" was the adoption of the break-in-service provision in the applicable pension plan, rather than the actual date the break-in-service occurred. 81 F.3d at 1189-90. Similarly, in Lamontagne v. Pension Plan of the United Wire, Metal & Mach. Pension Fund, 869 F.2d 153 (2d Cir. 1989), the court stated:

 
The act central to Lamontagne's case was the Plan's pre-1975 adoption of the break in employment policy. This policy required the Fund to deny Lamontagne's pension application in 1978, since Lamontagne had failed to obtain covered employment at any time after September 1971. Given Lamontagne's employment history, the 1978 denial of his pension application was merely a consequence of the Fund's adoption of the break in employment policy. The ...

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