United States District Court, Southern District of New York
March 24, 2003
MASON TENDERS DISTRICT COUNCIL WELFARE FUND, PENSION FUND, ANNUITY FUND, TRAINING FUND; NEW YORK STATE LABORERS-EMPLOYERS COOPERATION & EDUCATION TRUST FUND, NEW YORK LABORERS' HEALTH & SAFETY TRUST FUND; BUILDING CONTRACTORS ASSOCIATION INDUSTRY ADVANCEMENT PROGRAM; JOHN J. VIRGA, IN HIS FIDUCIARY CAPACITY AS DIRECTOR; AND ANTHONY SILVERI, AS BUSINESS MANAGER OF THE MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK AND LONG ISLAND, FKA MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK, PLAINTIFFS,
LEO P. IPPOLITO, INC. AND LEO P. IPPOLITO, DEFENDANTS.
The opinion of the court was delivered by: Denise Cote, United States District Judge
MEMORANDUM OPINION AND ORDER
This action was filed on April 27, 2001, against defendants Leo P. Ippolito, Inc. and Leo P. Ippolito. On April 18, 2002, the action was dismissed against the individual defendant.
Discovery closed on May 31, 2002. An audit of the corporate records occurred prior to August 30, 2002, and revealed that no relevant records existed.
Plaintiffs have moved for entry of summary judgment against the corporate defendant for its failure to permit an audit of its books and records upon demand and for payment of the contractual penalty, costs and attorneys' fees. The remaining defendant has not provided any admissible evidence to dispute that the demand for access to the books and records was made and rebuffed prior to the commencement of this litigation. Although counsel for the defendant has submitted an affidavit asserting that no representative of the corporate defendant ever refused to provide the books and records, it is well established that an attorney's affidavit does not ordinarily create an issue of fact. See Sitts v. United States, 811 F.2d 736, 741-42 (2d Cir. 1987). The defendant explains that the owner of the corporation gave control of the corporate defendant to his son and that his son looted the corporation. It also asserts that it cooperated to the extent of its ability, but has not presented any admissible evidence as to when that cooperation was given.
The defendant asserts that discovery would show that the owner's son took most of the corporate documents, sold them to a competitor, and thereby nearly drove the defendant out of business. Discovery closed in May. No application was made to extend the discovery period. In any event, the defendant has not shown that the looting excused its obligation to cooperate with the audit when an audit was attempted prior to the commencement of the litigation.
Accordingly, there being no dispute regarding any fact that is material to a decision on this motion, it is hereby ORDERED that summary judgment be entered by the Clerk of Court for the plaintiffs, awarding a penalty of $400, costs of $190, and attorneys' fees of $5,902.50, and closing the case.
IT IS FURTHER ORDERED, that an audit having been conducted in 2002, the request for entry of an order to conduct an audit is denied as moot.
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