The opinion of the court was delivered by: DENISE COTE, District Judge
MEMORANDUM OPINION and ORDER
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
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.
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 ...