The opinion of the court was delivered by: Sweet, District Judge.
Building Service 32B-J Health, Pension and Annuity Funds
("Funds" or "Plaintiffs") have moved by order to show cause for a
preliminary injunction pursuant to Rule 65, Fed.R.Civ.P.,
foreclosing defendant Vanderveer Estates Holding, LLC
("Vanderveer" or "Defendant") from disposing of assets owed to
the Funds under a prior arbitration award, for an order of
attachment pursuant to Rule 64, Fed.R.Civ.P. and CPLR § 6201,
or in the alternative, for Vanderveer to post a million-dollar
bond. Vanderveer opposes the motion. For the reasons set forth
below, the motion is denied except that a bond will be required.
The Parties and Related Entities
Local 32B-32-J, Service Employees International Union, AFL-CIO
("Union") is a labor organization that represents members
employed in the building service industry in metropolitan New
The Funds are jointly administered, multi-employer, labor-management
trust Funds based in New York City. The Funds are
employee benefit plans that provide benefit coverage for
participants employed by employers who are parties to collective
bargaining agreements with the Union. The purpose of the Funds is
to receive contributions from employers who are parties to
collective bargaining agreements with the Union, to invest and
maintain those monies, and to distribute pensions, health and
insurance benefits, and annuity payments to eligible employees.
The Realty Advisory Board on Labor Relations, Inc. ("RAB") is a
multi-employer organization which is a signatory to a series of
collective bargaining agreements ("CBA") with the Union covering
employees of apartment buildings in New York City.
Vanderveer is a for-profit domestic limited liability company
based in New York City that owns several buildings in Brooklyn
and employed workers covered by the RAB collective bargaining
In an earlier case, the Union filed suit against Vanderveer to
compel payment for back contributions for the period July 5, 1998
through September 30, 1998, arising from Vanderveer's "lockout"
of 51 Union employees working at an apartment complex in Brooklyn
after Vanderveer purchased that property on June 5, 1998.
The Honorable Louis L. Stanton of this District held that
Vanderveer was bound by the RAB Agreement, under which it was
required to submit disputes to arbitration. That decision was
upheld by the Second Circuit, and Vanderveer submitted to
On or about November 24, 1998, an arbitrator awarded the Union
a total of $167,878.62 in back benefit contributions under the
CBA as well as $181,200.57 in damages. Bevona v. Vanderveer
Estates Holding, LLC, No. 829-I (Schecter Arb.) This award was
upheld by Judge Stanton, Bevona v. Vanderveer Estates Holding,
LLC, No. 98 Civ. 8689 (S.D.N.Y. Feb. 11, 1999), and summarily
affirmed by the Second Circuit, Bevona v. Vanderveer Estates
Holding, LLC, Nos. 98 Civ. 9529 and 99 Civ. 7049, 173 F.3d 843
1999 WL 220151 (2d Cir. April 12, 1999).
The Funds brought the instant lawsuit on January 19, 2000
pursuant to sections 502(a)(3) and 515 of the Employee Retirement
Income Security Act, as amended ("ERISA") (29 U.S.C. § 1132
(a)(3) and 1145) and section 301 of the Labor Management
Relations Act of 1947 (29 U.S.C. § 185). This action seeks to
compel payment on $401,896.32 in benefit fund contributions
claimed due for the period January 1, 1999 through January 1,
2000. (Compl. ¶ 8).
The Funds moved for summary judgment pursuant to Rule 56,
Fed.R.Civ.P., on June 28, 2000. Vanderveer filed a cross-motion
for summary judgment on August 4, 2000. The Funds filed a reply
memorandum on August 24, 2000, at which time the motion was
deemed submitted. That motion is still pending.
By order to show cause of September 14, 2000, the Funds filed
the instant motion for a temporary restraining order attaching
Vanderveer's assets during the pending litigation and for a
preliminary injunction. Vanderveer filed a memorandum of law in
opposition on September 19, 2000, and the motion was deemed fully
submitted after oral argument was heard on September 20, 2000.
Vanderveer is the owner of a number of residential apartment
buildings in a complex named "Vanderveer Estates" at 3301 Foster
Avenue, Brooklyn, New York. When it purchased those properties,
Vanderveer assumed the prior owner's obligation to honor the
terms and conditions of a collective bargaining agreement with
the RAB, although Vanderveer itself is not a member of the RAB.
The CBA requires that employers that are parties to it contribute
funds to a group of union-sponsored employee benefit funds.
Vanderveer has not made any such payments since purchasing the
properties known as Vanderveer Estates.
Vanderveer's obligation to pay is the subject of the underlying
action in this case. While the Funds allege that Vanderveer is a
recidivist violator of its obligations to pay and seek to enjoin
it from selling off any assets, Vanderveer contends ...