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
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.
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