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September 24, 2004.


The opinion of the court was delivered by: DENISE COTE, District Judge


On February 19, 2004, the Trustees of the Union Mutual Fund (the "Trustees" and "Fund") brought this action under Section 502(a) (3) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a) (3), alleging that pro se defendant Martin Rivlin ("Rivlin") endorsed and deposited pension checks issued to his deceased father, in violation of the terms of the Union Mutual Fund Pension Plan ("Plan"). The Trustees seek damages in the amount of $98,646.25, with interest.

  Rivlin filed an answer on March 23. An initial pre-trial conference, which Rivlin did not attend, was held on April 30. A May 3 Order set forth a schedule for the submission of the Trustees' motion for summary judgment. On June 14, this Court ordered a subpoena duces tecum, prepared by plaintiffs, for the death certificate of Solomon Rivlin, the defendant's father. The New York Department of Health and Mental Hygiene was unable to locate any records related to Solomon Rivlin. The Trustees' motion for summary judgment was filed and served on Rivlin on July 1. Rivlin has not filed any opposition. For the reasons that follow, the Trustees' motion for summary judgment is denied, and the complaint is dismissed without prejudice.


  The following facts relevant to this motion are set forth in the defendants' Rule 56.1 Statement and supported by admissible evidence, unless otherwise noted. On February 22, 1985, Rivlin was appointed the conservator of the property of Solomon Rivlin, a participant in the Fund and recipient of monthly pension checks. In or about August 2003, the Fund learned that Solomon Rivlin passed away in or about February 1987.*fn1 Under the terms of Article IV, Section 4.5 of the Plan,
If a Participant does not have an eligible Spouse on the date his Pension payments commence, he shall receive a single-life Annuity computed under Section 4.8. The last payment of the single-life Annuity shall be made as of the first day of the month in which the death of the Participant occurs.
(Emphasis supplied.)

  After Solomon Rivlin's death, the Fund continued to send him monthly pension checks totaling $98,646.25. Between June 24, 1995 and January 14, 2003, Rivlin executed seventeen affidavits stating under oath that Solomon Rivlin was alive and that Rivlin received and endorsed the pension checks on his father's behalf.

  Rivlin's answer in this action*fn2 states

If I am not entitled to Survivors Benefits from the Union Pension fund by virtue of being Solomon Rivlin's only son and heir, than [sic] I am obligated to pay the sum declared in the summons. . . .
I am more than willing to pay back the Union Fund what is legitimately owed, but unless some settlement is worked out it will be impossible at this time and I will have to file for bankruptcy. I have been living hand to mouth over the years, am not gainfully employed and have been engaged in trying to complete a PhD dissertation, . . .
(Emphasis supplied.) On August 4, 2003, counsel to the Fund sent Rivlin a letter demanding the return of the $98,646.25 in pension checks sent to Rivlin after February 1987.


  Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R. Civ. P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of the movant's pleadings. Rule 56(e), Fed.R. Civ. P.; accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002).

  Section 502(a) (3) of ERISA ("Section 502(a) (3)") provides that a fiduciary may bring a civil action

(A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan. . . .
(Emphasis supplied.) Compensatory and punitive damages are never included within the equitable relief available under Section 502(a) (3). Gerosa v. Savasta & Company, Inc., 329 F.3d 317, 321 (2d Cir. 2003). "[T]he only conceivable equitable claim" for a monetary award against a non-fiduciary defendant pursuant to Section 502(a) (3) lies under the "antique equitable remedy of restitution." Id. (citation omitted).

  Not all relief characterized as restitution is considered equitable, however. Great-West Life & Annuity Ins. v. Knudson, 534 U.S. 204, 210 (2002). A plaintiff can seek restitution in equity "where money or property identified as belonging in good conscience to the plaintiff could be traced to particular funds or property in the defendant's possession." Id. at 213. In contrast, only restitution in law is available "where the property sought to be recovered or its proceeds have been dissipated so that no product remains." Id. (citation omitted); see also Gerosa, 329 F.3d at 321. A claim for money no longer in a defendant's possession seeks to impose personal liability upon him rather than to restore property to the plaintiff and is legal, not equitable, in nature. Great-West, 534 U.S. at 214. An action seeking restitution in law is not authorized by Section 502(a) (3). Id. at 221.

  Rivlin's answer, which is incorporated by the Trustees in their motion for summary judgment, states that he does not have the money to repay the Fund, that he is unemployed, and that he has been living "hand to mouth." The Trustees have not produced any evidence contradicting Rivlin's representation that he has spent the pension checks he had been receiving over ...

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