The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
REPORT AND RECOMMENDATION
This is an action brought pursuant to Sections 502 and 515 of the
Employee Retirement Income Security Act of 1974 ("ERISA"), as amended,
29 U.S.C. § 1132 and 1145, and Section 301 of the Labor-Management
Relations Act of 1947 ("Taft-Hartley Act"), 29 U.S.C. § 185. The suit
was commenced by the Mason Tenders District Council Welfare Fund, Pension
Fund, Annuity Fund, Training Program Fund, New York State
Laborers-Employers Cooperation and Education Trust Fund, New York
Laborers' Health and Safety Trust Fund, Building Contractors Association
Industry Advancement Program, and John J. Virga in his capacity as
Director (collectively, the "Funds"), and by Anthony Silveri as Business Manager of the Mason Tenders
District Council of Greater New York (the "Union"). The plaintiffs seek
damages stemming from the failure of Giro Randazzo Builders ("Randazzo
Builders") to pay contributions to the plaintiffs and to permit an audit
of its books and records, as required under a collective bargaining
agreement between Randazzo Builders and the Union.*fn1
Following entry of a default judgment, the case was referred to me for
an inquest on damages, and a hearing was held on February 10, 2004.
Despite being afforded notice of the hearing, Randazzo Builders did not
appear. The following findings are therefore based on the evidence
presented at the hearing and on the information submitted by the
Randazzo Builders is a corporation that conducted business in New York
City at all relevant times. (Complaint ("Compl."), ¶ 11). Randazzo
Builders entered into a collective bargaining agreement (the "Labor
Contract") with the Union which, among other things, obligated Randazzo
Builders to pay fringe benefit contributions to the Funds based on work
performed for Randazzo Builders by Union members. (Compl., ¶ 11). The
Labor Contract also required Randazzo Builders to remit to the Union dues
checkoffs and Political Action Committee ("PAC") contributions that were based on
the work performed by Union members and were deducted from the wages of
those employees who authorized such deductions. (Compl., ¶ 11). In
furtherance of this program, the Labor Contract obligated Randazzo
Builders to make available its books and records for periodic audits by
the Funds. (Compl., ¶ 11).
Notwithstanding the Labor Contract, Randazzo Builders failed to pay
fringe benefit contributions to the Funds, as well as dues checkoffs and
PAC contributions to the Union, for the period April 1, 2001 through the
present. (Compl., ¶¶ 23-26, 46-49, 55-58). Randazzo Builders also
failed to permit the Funds to audit its books for the same period.
(Compl., ¶¶ 14-16).
The plaintiffs filed the instant action on April 23, 2003. When the
defendants failed to answer, the Honorable Richard M. Berman, U.S.D.J.,
entered a default judgment and referred the case to me for an inquest on
As this case arises under ERISA, the Court has jurisdiction pursuant to
29 U.S.C. § 1132 (e)(1) and (f), as well as federal question
jurisdiction under 28 U.S.C. § 1331. This Court also has jurisdiction
under Section 301 of the Taft-Hartley Act, 29 U.S.C. § 185, and under
28 U.S.C. § 1337, as this is a civil action arising under an act of
Congress regulating commerce. In addition, Randazzo Builders is subject
to personal jurisdiction in this Court since it was doing business in New
York at all relevant times. See New York Civil Practice Law and Rules ("CPLR") § 301.
All of the plaintiffs' factual allegations, except those relating to
damages, must be accepted as true where, as here, the defendant has
defaulted. See Transatlantic Marine Claims Agency, Inc. v. Ace
Shipping Corp., 109 F.3d 105, 108 (2d Cir. 1997); Cotton v.
Slone, 4 F.3d 176, 181 (2d Cir. 1993); Time Warner Cable of New
York City v. Barnes, 13 F. Supp.2d 543, 547 (S.D.N.Y. 1998). In
this case, the allegations of the Complaint establish ERISA violations
and breach of contract with respect to Randazzo Builders.
The Funds are employee benefit plans under ERISA,
29 U.S.C. § 1002(1), (2), (3) and 1132(d)(1) (Compl., ¶¶ 4-7), while Randazzo
Builders was an employer under the terms of that statute,
29 U.S.C. § 1002(5), 1145. (Compl., ¶ 11). Accordingly, Randazzo Builders'
obligations to the Funds under the Labor Contract are enforceable through
ERISA. 29 U.S.C. § 1132 (a)(3).
Randazzo Builders was required by the Labor Contract to pay fringe
benefit contributions to the Funds, and dues checkoffs and PAC
contributions to the Union. It failed to comply with this requirement for
the period April 1, 2001 through the present. Randazzo Builders also
failed to meet its obligation to permit an audit of its books and records
for the same period. Consequently, Randazzo Builders is ...