The opinion of the court was delivered by: Stein, District Judge.
The issue for determination is whether a general contractor can
be held liable to a union and its multiemployer pension and
welfare funds for payments due from a subcontractor. For the
reasons set forth below, the answer in the context of the facts
here is affirmative. Plaintiffs — several pension and welfare
funds of the Mason Tenders Union — claim that the defendant
general contractor is liable for these delinquent payments
pursuant to an industry wide collective bargaining agreement with
the union. All parties have cross-moved for summary judgment
pursuant to Fed.R.Civ.P. 56. For the following reasons, the
general contractor's motion for summary judgment is denied and
plaintiffs' motion for summary judgment is granted as to
liability but denied as to damages.
Defendant Abatement International/Advatex Associates, Inc.
("Abatement") is a general contractor which, through its industry
wide representative, Environmental Contractors Association, Inc.,
entered into a collective bargaining agreement ("Abatement CBA")
with the relevant union, Mason Tenders District Council of
Greater New York ("Mason Tenders" or the "Union"). Pursuant to
Article II § 2 of the Abatement CBA, Abatement agreed not to
utilize a subcontractor unless the subcontractor "agrees to be
bound by the terms of this agreement and/or has an Agreement with
the Union having jurisdiction over such work. . . ." Abatement
further specifically agreed that it would "be responsible for the
payment of wages, fringe benefits fund contributions, and working
dues check-offs by such subcontractor."
On April 7, 1997, various parties — including several of the
same parties to this action — sued Diamond and its affiliates. A
judgment on consent was subsequently entered against the
defendants to that litigation ordering delinquent payments and
interest in the amount of $812,598.51 to the various funds
bringing suit and $56,906.35 to the Union for dues check-offs.
Diamond's obligations remain unpaid and plaintiffs have brought
this action to collect from Abatement the outstanding amounts,
plus interest and fees.
A. Summary Judgment Standard
A court may grant summary judgment "only when the moving party
demonstrates that `there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.'" Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.
1995) (quoting Fed.R.Civ.P. 56(c)). The Court must "view the
evidence in the light most favorable to the non-moving party and
draw all reasonable inferences in its favor, and may grant
summary judgment only when `no reasonable trier of fact could
find in favor of the nonmoving party.'" Allen, 64 F.3d at 79
(quoting Lund's, Inc. v. Chemical Bank, 870 F.2d 840, 844 (2d
Cir. 1989)) (citations omitted).
Plaintiffs claim that Abatement owes them the unpaid benefit
contributions and unpaid dues checkoffs pursuant to both ERISA
and the contract entered into by Abatement.
1. Benefit Contributions.
ERISA § 503(f), 29 U.S.C. § 1132(f), grants this Court
jurisdiction over any action by a plan's fiduciaries to enforce
ERISA obligations, including the obligation ...