The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM — DECISION & ORDER
Plaintiffs bring this action pursuant to the Employee
Retirement Income Security Act of 1974, as amended, ("ERISA"),
29 U.S.C. § 1001 et seq., and the Labor-Management Relations
Act of 1947, as amended ("Taft-Hartley Act"), 29 U.S.C. § 185(a)
to recover benefit contributions allegedly owed by Defendants
Mauro's Plumbing Heating and Fire Suppression, Inc. ("Mauro's")
and Northeast Mechanical of N.Y., Inc. ("Northeast"). Presently
before the Court is Plaintiffs' motion for summary judgment
pursuant to FED. R.Civ.P. 56 seeking a judgment that Northeast
is the alter ego and/or successor of Mauro's and that Mauro's
and Northeast are liable for delinquent fringe benefit
contributions, deductions, interest, and liquidated damages
totaling $250,657.38, pursuant to ERISA, 29 U.S.C. § 1132(g)(2),
for the period of May 3, 1996 to March 31, 1998 and an amount as
yet to be determined for the period April 1, 1998 to the
present. Plaintiffs also seek $34,979.76 in attorneys' fees and
costs and a permanent injunction directing Defendants to comply
with the terms of the collective bargaining agreement.
1. The Collective Bargaining Agreement
The Plumbers, Pipefitters and Apprentices Local No. 112
Pension, Health and Educational and Apprenticeship Funds (the
"Funds") were established pursuant to Restated Agreements and
Declarations of Trust. The Funds are multi-employer plans and
employee benefit plans as defined by ERISA, 29 U.S.C. § 1002(3)
On March 13, 1996, Mauro's entered into a collective
bargaining agreement between the Broome County, New York
Association of Plumbing, Heating and Cooling Contractors, Inc.
and Local Union No. 112 of the United Association of Journeyman
and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada (the "Union") (the "Agreement" or
"CBA"). The CBA requires, among other things, that Mauro's
report to the Funds and Union the number of hours worked by
covered employees; remit certain contributions to the Funds for
various employee benefits; and remit deductions to the Union for
vacation, dues and contributions to the Industry Improvement and
Industry Advancement Plans (the "IAP").*fn1 The CBA also
states that by signing the Agreement, Mauro's agrees to be bound
"to the terms of the Trust Agreements under which the Health
Fund, Pension Fund, and Education and Apprenticeship Fund are
operating." See CBA Art. 11(H).
In this action, Plaintiffs seek to recover allegedly
delinquent contributions from Mauro's, a signatory to the CBA,
and Northeast, a non-signatory. Plaintiffs assert that Northeast
is the alter ego and/or successor of Mauro's and, thus, is bound
to the CBA and jointly and severally liable for contributions
allegedly owed by Mauro's. Because the parties dispute the alter
ego and/or successor issue, a detailed analysis of the
formation, business operations, and interrelationship of the two
companies is warranted.
Mauro's was incorporated on October 2, 1989. It had an office
located at Watson Boulevard, Endicott New York and subsequently
moved to 5 Endicott Avenue, Johnson City, New York. Mauro's
performed primarily residential, light commercial, and
prevailing wage work in the plumbing industry. See P. Mauro
Aff. ¶ 3.*fn2 Philip and Albert Mauro held all of Mauro's
shares and the offices of President and Secretary/Treasurer,
In September of 1996 Philip and Albert Mauro established a
second corporation, Northeast. On September 24, 1996, the Mauros
incorporated Northeast under the laws of New York. Philip and
Albert Mauro, the President and Secretary/Treasurer of
Northeast, respectively, hold all of its shares. The Mauros
established Northeast as a non-Union corporation to perform
residential and light commercial work, maintenance, repair, and
service work on non-Union, non-prevailing wage jobs. See P.
Mauro Aff. ¶ 21. Northeast's original office was located at 404
W. Main Street, Endicott, New York and its phone number was
(607) 748-1239. See P. Mauro Aff. ¶¶ 19, 20. This number "rang
through" to Mauro's office at 5 Endicott Avenue. See P. Mauro
Dep. at p. 131.
In December 1996, Mauro's ceased all operations and was no
longer a viable business. See P. Mauro Aff. ¶ 18. As early as
January 2, 1997, Northeast began operating at Mauro's 5 Endicott
Avenue address and took over Mauro's (607) 729-2521 telephone
line. See Clark Aff.Ex. N and Ex. J at p. 11-12.
Northeast employed the following individuals who Mauro's
previously employed: Rebecca Anthony, Thomas Brown, Christopher
Corbett, Kenneth Fontana, Russell Garruto, Robert Handzel, John
Hardy, Mark Klossner, Stan Krizinofski, Mark Lindsay, Joseph
Lindsey, Albert Mauro, Philip Mauro, Tim Micalizzi, Greg Misner,
Michael Morrelino, David Rosenbloom, Carmen Salva, John
Sullivan, Grace Tkach, Thomas Vergona, Carlton Williams, and
William Yurko.*fn3 These employees performed the same type of
work at Northeast as they did at Mauro's. Philip
and Albert Mauro retained similar responsibilities at Northeast.
During early 1997 the business operations of Northeast
overlapped with those of the defunct Mauro's. In January 1997,
Grace Tkach continued to perform duties on behalf of Mauro's
while receiving compensation from Northeast. See Tkach Dep. at
pp. 29-30. In December of 1996 or January of 1997 Northeast
completed work on Mauro's Stamford Village Apartments project,
see P. Mauro Dep. at pp. 85-86, without entering into a new
contract with Court Street Companies, the project's manager.
Additionally, former employees of Mauro's testified that, while
receiving compensation from Northeast, they worked on Mauro's
Oneonta School District Project. See Micalizzi Aff. ¶¶ 4, 8;
Handzel Aff. ¶ 7. Although Mauro's ceased doing business in
December of 1996, it submitted a remittance report to the Union
for the period of January 1 to 31, 1997. See McCarthy Aff.Ex.
A. This report listed hours for Handzel and Micalizzi.
Northeast, rather than Mauro's, paid Micalizzi and Handzel for
work completed during the reported period. Mauro's did not
notify either employee of the change in company name. In January
and February of 1997, Handzel received paychecks that listed no
company name and only learned that Northeast employed him when
he received his 1997 W-2 Wage Statement. See Handzel Aff. ¶¶ 5,
8. Micalizzi also received paychecks without a company name and
learned Northeast employed him when he received his 1997 W-2
Wage Statement. See Micalizzi Aff. ¶¶ 3, 9. As early as
November 1996, employees who believed Mauro's employed them
received paychecks listing Northeast as their employer. See
Lindsay Aff. ¶ 7.
From January 1997 through July 1997 Northeast paid for Blue
Cross/Blue Shield health insurance coverage for its employees
pursuant to a policy that listed the employer as Mauro's.
Moreover, during December of 1996 and January of 1997 Northeast
and Mauro's made several payments to each other. See Clark
Aff. ¶¶ 4650 (citing, inter alia, Chase Manhattan Check Nos.
2100, 2105 and Binghamton Savings Bank Check Nos. 1582 and
1594). During this same period, Northeast and Mauro's made
payments on behalf of one another to suppliers and banking
institutions. See Clark Aff. ¶¶ 51-54 (citing, inter alia,
Binghamton Savings Bank Check No. 1552 and Chase Manhattan Bank
Check Nos. 2697 and 2795).
Northeast utilizes the same attorneys, Hinman, Howard &
Kattell, and accountant, Ken Lass, CPA, as Mauro's.
Prior to the repossession of Mauro's tools and equipment in
October of 1997, see P. Mauro Aff. ¶ 16, Ex. B, Northeast
utilized this equipment. See, e.g., Lindsay Aff. ¶ 9.
Northeast also utilized a vehicle previously registered to
Mauro's. Northeast assumed the registration, however, no money
changed hands. See P. Mauro Dep. at p. 123. Moreover,
Northeast used the same office equipment as Mauro's had.*fn4
See Tkach Dep. at p. 19.
Currently, there is a twenty percent (20%) overlap between the
former customer list of Mauro's and the customer list of
Northeast. Northeast uses virtually identical suppliers and
service providers, however, Northeast filled out new ...