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NEW YORK DIST. COUNCIL, CARP. PEN. v. ELITE CONCRETE

United States District Court, S.D. New York


May 14, 2004.

THE NEW YORK DISTRICT COUNCIL OF CARPENTERS PENSION FUND, et al., Plaintiffs, -against- ELITE CONCRETE CORPORATION, Defendant

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

Plaintiffs move for summary judgment (a) confirming an arbitration award, which awarded to the Trustees of the New York City District Council of Carpenters Benefit Funds and against defendant the sum of $ 19,371.64 plus interest at the rate of 10 percent from the date of the award through the date of payment, (b) entering judgment in that amount, and (c) attorneys' fees in the amount of $6,444,75 and costs of $54.75.

The Court has found no proof that the motion for summary judgment was served on the defendant. Nonetheless, defendant, although served with the summons and complaint, has not appeared or answered, and the time within which to do so has expired. Fed.R.Civ.P. 5(a), with an exception not relevant here, excuses service "on parties in default for failure to appear." Accordingly, service on the defendant was not required.

  There being no genuine issue of material fact and plaintiff being entitled to judgment as a matter of law, the motion is granted. The Clerk shall enter judgment in favor of plaintiffs and against the defendant (a) confirming the arbitration award, and (b) awarding to plaintiffs the principal amount of $19,371.64 together with interest thereon at the rate of 10 percent per annum from October 25, 2002 to the date of entry of the judgment together with the additional sum of $6,499.50 for attorneys' fees and costs.

  SO ORDERED.

20040514

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