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BUTLER v. NEW YORK STATE TEAMSTERS CONFERENCE PENSION

United States District Court, N.D. New York


February 15, 2005.

JERRY BUTLER AND JAMES G. HARRIS, Plaintiffs,
v.
NEW YORK STATE TEAMSTERS CONFERENCE PENSION AND RETIREMENT FUND, Defendant.

The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge

MEMORANDUM DECISION AND ORDER

BACKGROUND

  The New York State Teamsters Conference Pension and Retirement Fund (the "NYS Fund") is a multi-employer pension plan that provides pension benefits to persons covered by collective bargaining accords entered into by certain employers and local unions of the International Brotherhood of Teamsters. The NYS Fund is a Taft-Hartley pension plan fund that was established, and is maintained by an eight member board of trustees ("Board of Trustees"). Four members of the Board of Trustees represent employers who contribute to the Fund, and four members represent the International Brotherhood of Teamsters, whose members benefit under the NYS Fund.

  Pension benefits under the NYS Fund are based on the number of pension credits participants earn and the contributions made to the NYS Fund by employers on their behalf. Usually, participants earn pension credits under the NYS Fund by working in employment under collective bargaining agreements that require employers to make contributions to the NYS Fund on the participants behalf ("Contributory Service Credit"). Participants may earn up to a maximum of one credit for each year, or portion thereof, that they work for an employer that is required to make contributions to the NYS Fund on their behalf.(Plan Document Ex, § 3.2(c)). Under § 4.1 of the NYS Fund's Plan Document, a participants monthly pension benefit ("Normal Page 3 Pension") is calculated by adding the benefit the participant earns for each year of service credit. The benefit earned for each year of service credit is generally determined by taking the greater of: (a) 2.6% times the contributions made to the NYS Fund on the participant's behalf for the year, or (b) the minimum benefit set forth in the plan document for the year in question, multiplied by the pension credit earned by the participant for that year, up to a maximum of one credit per year.

  The minimum benefit referred to in (b) supra is an amount that depends upon the employer's contribution rate to the NYS Fund. Ordinarily, the higher the employer contribution rate, the higher the minimum benefit. (Plan Document, Ex. 4 § 4.1) Inasmuch as contributions made on a participant's behalf discontinues when he or she stops working in the covered employment. A participant is commonly entitled to the minimum benefit that was in effect at the time he or she worked in employment covered by the NYS Fund.

  The following is an example of a calculation of the Normal Pension: Assume that Worker A earned one pension credit for each of the 25 years for which contributions were made to the NYS Fund on his behalf. For his last 20 years of employment, his employer contributed $3,000 per year to the NYS Fund, but for his first five years, his employer only contributed $1,000 per year. Worker A's Normal Pension under the NYS Fund would be calculated by taking the sum of the greater of; (a) 2.6% times the contributions made on his behalf for each year to the Fund, or (b) the minimum benefit for the year, which is assumed to be $35 for this example, times the pension credit earned for the year. For the last 20 years the $3,000 that was contributed on Worker A's behalf, 2.6% times $3,000 is $78 per year, which is greater than the minimum benefit. For the first five years, however, 2.6% times $1,000 Page 4 amounts to $26 per year. Because the minimum benefit of $35 is greater that $26, the $35 minimum benefit will be paid for the first five years. Under § 4.1 of the NYS Fund plan, Worker A's monthly pension benefit would equal the sum of $78 per year for 20 years, $78 x 20 = $1,560, plus $35 per year for five years, $35 x 5 = $175, making a total monthly benefit of $1,735.

  By and large, NYS Fund participants are eligible to receive their Normal Pension any time after reaching age 65 or, if they have earned at least 15 years of service credit, upon reaching age 60. Participants do not have to wait until age 60 to begin receiving benefits because the NYS Fund has two dissimilar early retirement options, one that is actuarially reduced and another that is not. Participants reaching age 55 and earned at least 15 years of service credit may decide to receive a pension benefit equal to their Normal Pension actuarially reduced for each year, or fraction thereof, that their benefits commence before age 60. (Plan Document, Ex. 4 § 4.3).

  Years ago, the NYS Fund became a signatory of the 1964 National Reciprocal Agreement for Teamsters Pension Funds ("1964 National Reciprocal Agreement"), in which it agreed to provide certain reciprocal pension benefits to individuals whose service is split between NYS Fund and any other fund that is a signatory to the 1964 National Reciprocal Agreement. (1/28/02 Affidavit of David E. Menter, Executive Administrator of the NYS Fund, Ex. 1 to Cross Motion ¶ 6). These reciprocal pension benefits are provided, in part, because, the signatory pension funds have agreed to recognize pension credits earned under signatory funds ("Related Service Credit"). At the denouement, both signatory funds wind up paying a proportionate share of the participant's pension benefit. Page 5

  Benefit calculations under the 1964 National Reciprocal Agreement consist of a three step process. First, a signatory fund, e.g. Fund X, must add the service credits a participant has earned under Fund X with the Related Credits Earned under the other signatory fund, Fund Y, to ascertain the participant's Combined Service Credit. (1964 National Reciprocal Agreement, Ex. 2 Exhibit A § 4). Second, Fund X must calculate the participant's pension benefits under the terms of its own pension plan, based on the participant's Combined Service Credit (1964 National Reciprocal Agreement, (Ex. 2 Exhibit A § 8(a)). Importantly, the 1964 National Reciprocal Agreement does not specify the level of benefits that is to be used in calculating the participant's pension benefits. Instead, the level of benefits to be used is determined by each signatory fund independently. (National Reciprocal Agreement Ex. 2). As previously pointed out, the NYS Fund benefit formula is based upon the greater of (a) 2.6% times the contributions made to the NYS Fund on the participant's behalf for the year, or, (b) the minimum benefit for the year multiplied by the pension credit earned by the participant for the year. Thus, when an participant is working under the other fund, the NYS Fund will use the minimum benefit to determine the participant's benefit for that year.

  Returning to the example, once the participant's level is determined for each year, step three in the calculation in the 1964 National Reciprocal Agreement involves multiplying benefits for all years by a fraction ("Reciprocal Pension Factor") determined by dividing the participant's Contributory Service Credit earned under Fund X by the participant's Combined Service Credit earned under Funds X and Y. (1965 Reciprocal Agreement (Ex. Example A § 8.(b). The resulting amount is Fund X's share of the individuals' reciprocal pension benefit. (National Reciprocal Agreement (Ex. 20)). Fund Y will be responsible for paying its share after Page 6 performing a similar calculation.

  The application of the 1964 National Reciprocal Agreement, nevertheless, can produce an amount that is less than the amount earned by the participant under the NYS Fund, regardless of the 1964 National Reciprocal Agreement; so the NYS Fund, as a final step determines if a participant's Normal Pension from the NYS Fund, based on the participant's Contributory Service Credit, is greater than the amount calculated under the 1964 National Reciprocal Agreement. If it is, the NYS Fund will pay the participant his or her Normal Pension amount, while using the participant's Combined Service Credit to determine the participant's eligibility for various pension payment options available under the NYS Fund's plan.

  About or during 1997, a revised National Reciprocal Agreement was proposed, and was adopted by the NYS Fund effective January 1, 1999. The 1997 National Reciprocal Agreement was integrated in the Fund's plan as Article 12 and states that:

Participants who on the Date of this Article [January 1, 1999] were eligible for and had applied for, or were receiving Reciprocal Benefits under the predecessor National Reciprocal Agreement shall not, by reason of the adoption of this Article governing Reciprocal Pension Benefits, forfeit or suffer any reduction of their Reciprocal Pension Benefits. The benefits provided pursuant to this Article shall not apply to any Participant who has retired prior to the Effective Date.
  Plaintiff James Harris retired in 1998, prior to the effective date of the 1987 National Reciprocal Agreement, and Plaintiff Jerry Butler was eligible for, and applied for, a reciprocal pension benefit from the NYS Fund in 1998. Hence, both Plaintiffs agree that their benefits must be calculated under the predecessor 1964 National Reciprocal Agreement. The 1997 National Reciprocal Agreement also does not apply to the Plaintiffs because the other fund under which they earned credit, the Central States Southeast Southwest Area Pension Fund, ("Central Page 7 States Fund"), never adopted the 1997 National Reciprocal agreement, but were a signatory of the 1964 National Reciprocal Agreement.

  Butler earned 16.0 and Harris earned 9.1 Contributory Service Credits under the NYS Fund, as well as the pension credits they earned under the Central States Fund. Both Plaintiffs, applied for, retired, and began receiving pension benefits from the NYS Fund based upon their Combined Service Credit between the NYS Fund and the Central States Fund. They each claimed initially that the NYS Fund incorrectly calculated their pension benefits under the 1964 National Reciprocal Agreement claiming that the NYS Fund paid a monthly benefit of $3,500 for participants who had 30 years of service.

  The Fund replied that it does not pay a monthly benefit of $3,500 to participants having 30 years of service. It then pointed out that it pays a benefit for each year of service that is equal to the greater of (a) 2.6% of the contribution made to the fund for the year on the participant's behalf; or (b) the minimum benefit factor for the year multiplied by the pension credit earned by the individual for the year multiplied by the pension credit earned by the individual for the year. Plaintiffs then claimed that the NYS Fund should have counted the contributions that were made to the Central States Fund as if they were made by their employers to the NYS Fund, and then have their benefits calculated by using the 2.6% of contributions formula rather than the $35 minimum benefit.

  Butler appealed the calculation of his benefits to the Board of Trustees of the NYS Fund. The appeal was denied in August 1990, and Butler requested the Board of Trustees to reconsider the denial. Harris also appealed the calculation of his benefits to the Board of Trustees. On January 29, 2001, the Board of Trustees denied both Butler's request for reconsideration, and Page 8 Harris' appeal. In its written opinions denying Butler's reconsideration request and Harris' appeal, the NYS Fund explicated:

The Butler opinion:
You claim essentially that Exhibit A of the 1964 National Reciprocal Agreement required the NYS Fund to calculate your pension under 2.6% of contributions part of the NYS Fund benefit formula as if the contributions that were actually made on your behalf to the Central States Fund were instead made to the NYS Fund. That claim is not a correct interpretation of Exhibit A and it is not consistent with the way the NYS Fund calculated partial pensions under the 1964 National Reciprocal Agreement.
The Harris opinion:
Section 9 of Exhibit A of the 1964 National Reciprocal Agreement provides that "[t]he payment of a partial pension shall be subject to all of the conditions continued in this plan applicable to other types of pensions. . . ." One of the conditions in Section 4.1(c) of the NYS Fund's pension plan is that contributions must be required to be made to the NYS Fund in in order for a participant to claim a benefit under the percentage contributions part of the benefit formula. Obviously, no contributions were required to be made to the NYS Fund on your behalf while you were working under the Central States Fund.
(Letters of February 28, 2001 sent to Butler and Harris from NYS Fund, Ex. 32)

  Plaintiff's then commenced this action under § 502 of ERISA, 29 U.S.C. § 1132(d)(1), alleging that they are entitled to a higher pension payment than those provided because the NYS Fund incorrectly calculated their pension benefits under the 1964 National Reciprocal Agreement, and that the NYS Fund did not timely provide Butler with a copy of 1967 National Reciprocal Agreement after his requests for same during the administrative appeal process. The lawsuit was instituted pursuant to 29 U.S.C. § 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), alleging that their pension benefits under the NYS Fund were miscalculated under the wrong National Reciprocal Agreement which the NYS Fund, Page 9 and several other Teamsters pension funds, have entered. Plaintiff Jerry Butler maintains that he was not given the documents he requested from the NYS Fund in violation of section 104(b) of ERISA, 29 U.S.C § 1024(b), and is seeking civil penalties under section 502(c) of ERISA, 29 U.S.C. § 1132(c).

  The complaint seeks increased pension benefits, payment of the unpaid difference between the amounts paid and the amounts actually due plaintiffs under their retirement plan, monetary and civil penalties, costs and statutory attorneys fees.

  Currently before the court are cross motions for summary judgment pursuant to Federal Rule of Procedure 56. Defendant has also moved to strike Plaintiffs' demand for a jury trial because lawsuits brought under § 502 of ERISA are equitable claims that should be tried before the court and not a jury. All motions have been opposed by the relevant party or parties.

  DISCUSSION

  Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. Fed.R.Civ.P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L. Ed.2d 695 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corporation v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L. Ed.2d 265 (1986); "The moving party bears the initial burden of identifying those portions of the pleadings and discovery Page 10 in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Celotex, 477 U.S. at 322-25, 106 S.Ct. 2548. If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Id. If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Electric Industries Corp. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L. Ed.2d 538 (1986). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. Fed.R.Civ.P. 56(e); Lujan, 497 U.S. at 888, 110 S.Ct. 3177.

  In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Eastman Kodak v. Image Technical Services, 504 U.S. 451, 112 S.Ct. 2072, 119 L. Ed.2d 265 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Id. at 587.

  Due to the fact that plaintiffs appear pro se, the court will give their pleadings liberal construction, Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed.2d 652 (1972), and "interpret them `to raise the strongest arguments they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999), quoting, Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Page 11 Nevertheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment proceedings, and a pro se party's bald assertions, unsupported by evidence, are insufficient to obtain a summary judgment, or overcome an opponent's well-founded motion for summary judgment. Carey v. Crescenzi, 923 F. 2d 18, 21 (2d Cir. 1991). On a motion for summary judgment, plaintiff must do more than rest on the allegations in his complaint, he must come forward with "concrete evidence from what a reasonable jury could return a verdict in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986).

  Plaintiffs allege that the 1998 calculations of their partial reciprocal pension benefits were incorrect because the NYS Fund either incorrectly applied the partial pension calculation formula, or used an altered formula restated in the 1997 Reciprocal Agreement that was to become effective January 1, 1999, causing these benefits to be $500 less than the amount that should have been calculated under the 1964 Reciprocal Agreement. The use of the restated formula was improper because their partial reciprocal pensions were vested under the 1964 Reciprocal Agreement, and ERISA prohibited the reduction of such benefits other than for hardship purposes, citing 29 U.S.C. § 1082(c)(8)(C).

  However, Plaintiff Harris retired in 1998, and Plaintiff Butler was eligible for, and had applied for, reciprocal pension benefits in 1998, but the 1997 Reciprocal Agreement was not effective for the NYS Fund until January 1, 1999, hence, its terms could not be used by the NYS Fund to compute either plaintiff's benefits. Their benefits had be computed under the provisions of the 1964 Reciprocal Agreement, which all the parties to this law all agree was the correct document to use in the calculation of plaintiffs' reciprocal pension benefits. (Def. Cross-Motion at 8, 13-14; Pls. Mem. Supp. Summ. J., at 4, ¶ 13). Plaintiffs have not shown what error, or Page 12 errors occurred in NYS Fund's reciprocal pension benefits computations.

  Plaintiffs further maintain that the decision of the NYS Fund's Board of Trustees affirming the calculation of their reciprocal pension benefit was arbitrary and capricious, that rather than $35, their minimum benefit rate should be $70 dollars, and that the NYS Fund should be penalized for not providing Plaintiff with documents they requested.

  Plaintiffs claim that the NYS Fund miscalculated its partial pension benefits because it did not count the contributions their employers made to reciprocal funds and apply them under under the 2.6% of contributions prong of the NYS Fund's benefit formula.

  At no time did the NYS Fund ever count contributions made to another fund under the contributions, including reciprocal funds, in computing participants' pension benefits under the 2.6% of contributions formula. (Menter Aff., Ex. 1 to Cross Motion ¶ 7). Under the terms of the NYS Fund's plan document, contributions are included in computing a pension's benefits only if the contributions received by the NYS Fund. The 1964 Reciprocal Agreement specifically states that "[t]he payment of a Partial Pension shall be subject to all of the conditions contained in this Plan applicable to other types of pension. . . ." (Section 9 to Exhibit A of 1964 Reciprocal Agreement, Ex. 2 to Cross Motion). The NYS Fund's plan document requires that contributions must be "paid to the Plan" to be counted in the benefit formula (Plan Document, Ex 4 to Cross Motion Section 1.15). The NYS Fund construes the Plan Document and 1964 Reciprocal Agreement as not permitting the inclusion of contributions made to other funds in computing benefits for reciprocal pensioners. (Menter Aff. Ex. 1 to Cross Motion ¶ 7)

  ERISA does not provide a standard for reviewing a plan administrator's interpretation of an ERISA plan's language. Thus, courts look to the plan documents to decide the appropriate standard of review. Page 13

  "[A] denial of benefits challenged under [ERISA] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L. Ed.2d 80 (1989); Miller v. Metropolitan Life Insurance Co., 925 F.2d 979, 983 (6th Cir. 1991) ("[A] trustee's decisions in discharging his duties under a trust instrument are accorded deferential treatment only when the instrument itself grants the trustee discretion . . ."); By comparison, the highly deferential arbitrary and capricious standard of review applies where a benefit plan unambiguously grants the administrator discretionary authority to construe the terms of a plan). Phillips v. Teamsters Local 639 Employers Health and Pension Trust, 79 F. Supp.2d 847, 880 (N.D. Eastern Div. Ohio 2000). Here, § 8.3 of the NYS Fund's Plan Document states that the Board of Trustees "shall have the exclusive right to interpret the Plan and to decide any matters arising thereunder in connection with the administration of the Plan." (Plan Document § 8.3 Ex. 4 to Cross Motion). Here, § 8.3 of the NYS Fund's Plan Document states that the Board of Trustees "shall have the exclusive right to interpret the Plan and to decide any matters arising thereunder in connection with the administration of the Plan." (Plan Document § 8.3 Ex. 4 to Cross Motion)

  Plaintiffs argue that Defendants' calculation of their pensions was arbitrary and capricious because their partial pension benefits calculations were not done in a manner consistent within the plain meaning of the formula for evaluating partial pension benefits set forth in Exhibit A, Section 8 of the 1964 National Reciprocal Agreement. However, it is not necessary to dwell on the proper standard of review because Defendant's calculations of Plaintiffs' partial pensions were correct under the plain language of the formula set forth in Exhibit A of the 1964 National Reciprocal Agreement. Ergo, Plaintiffs' claims fail even under Page 14 a de novo standard of review.

  The NYS Fund increased the minimum benefit rate from $35 to $70 on September 1, 1996. The increase was available only to participants actively working under the NYS Fund. The $70 minimum benefit rule states:

The above minimum rates are applicable only to participants who are actively at work on September 1, 1996, or have not had a Break-in-Service Year as of January 1, 1997. Any other Participant who has future Service Credit for contributions made before January 1, 1997 must have contributions made on his behalf by a Contributing Employer on or after January 1, 1997 in accordance with the hours requirement.
(The Plan Document describes a Break-in-Service Year as a plan year in which a participant does not complete more that 500 hours of service with an employer contributing to the NYS Fund. — Plan Document, Ex. 4 to Cross Motion §§ 1.5, 1.18). (Plan Document, Ex. 4 to Cross Motion, Amendment 13 at 2)

  Plaintiff Butler's last NYS Fund covered employment was in 1990, and Harris' was in 1986. (Butler's Benefit Calculation, Ex. 12 to Cross Motion; Harris' Benefit Calculation, Ex. 26 to Cross Motion). Consequently, the Plaintiffs were ineligible for the $70 minimum benefit rate because they were not actively employed under the NYS Fund on January 1, 1996, had a Break-in-Service Year before January 1, 1997, and they did not have contributions made on their behalf to the NYS Fund on or after January 1, 1997. ERISA does not prohibit the NYS Fund from creating future benefit increments available only to active participants.

  ERISA 29 U.S.C. § 1024(b)(4) states that "[t]he administrator, shall upon written request of any party or beneficiary, furnish a copy of the latest updated plan description . . ., or other instruments under which the plan is operated." ERISA 29 U.S.C § 1132(c)(1) provides that, if requested information is not mailed within 30 days after such request is received, penalties of up to $100 for each day of delay may be assessed against the plan administrator. In assessing Page 15 a claim for penalties, courts have considered various factors, including "bad faith or intentional conduct on the part of the administrator, the length of the delay, the number of requests made and documents withheld, and the existence of any prejudice to the participant or beneficiary." Pagovich v. Moskowitz, 865 F. Supp. 130, 137 (S.D.N.Y. 1994). Whether to assess penalties under this statute is committed to the court's own discretion. Goldstein v. Group Insurance Plan for Fairchild Republic, 940 F. Supp. 474, 480 (E.D.N.Y 1995), aff'd, 99 F.3d 101 (2d Cir. 1996); ERISA 29 U.S.C. § 1132(c)(1).

  The complaint in this action asserts that Plaintiffs requested the NYS Fund to send them a copy of the 1997 Reciprocal Agreement NYS Fund on or about May 17, 1999, and did not receive the document until March 25, 2001. On October 13, 1999, and July 30, 2000 Plaintiff Butler requested a complete text of the 1997 Reciprocal Agreement, and the requested document did not arrive until March 21, 2001. Plaintiffs seek imposition of the statutory $100 per day penalties against the NYS Fund administrator for failing to supply the requested materials within the thirty day time limits.

  The court has considered the relevant factors, and concludes, despite plaintiffs' allegations, that there is no evidence of bad faith or intentional misconduct on the part of NYS Fund. To the contrary, on May 17, 1999, immediately after receipt of Plaintiff Butler's request for the plan document and reciprocal agreement, NYS Fund's Manager sent him copies of the NYS Fund's Plan and the 1964 National Reciprocal Agreement. (Menter Aff. Ex. 1 to Cross Motion ¶ 14). The NYS Fund Manager's cover letter explained that, at that time, the NYS Fund did not have a copy of the 1997 National Reciprocal Agreement in its possession, but advised Plaintiff Butler that pages 43 through 45 of the enclosed Plan Document contained the terms of the 1997 National Reciprocal Agreement. (Menter Aff. Ex. 10 to Cross Motion). On February Page 16 2, 2000, the NYS Fund's Executive Administrator, David Menter, responding to Plaintiff Butler's second request, sent him another copy of Article 12 of the NYS Fund's Plan Document and explained that the terms of the 1997 National Reciprocal Agreement where incorporated into Article 12. (Menter Aff. Ex.1 to Cross Motion ¶ 23; and letter at Ex. 18).

  On or about June 28, 2000, Plaintiff Butler made another request for all of the documents he was entitled to obtain under ERISA 29 U.S.C. § 104(b). On July 10, 2000, the NYS Fund's Executive Director sent him copies of all documents the NYS Fund had in its possession. (Menter Aff. Ex. 1 to Cross Motion ¶ 24). On March 5, 2001, Plaintiff Butler again requested a copy of the 1997 National Reciprocal Agreement. The NYS Fund only had an unsigned copy of this agreement at that time, but on March 22, 2001, the NYS Fund's Executive Administrator sent Plaintiff Butler the NYS Fund's only copy of the 1997 Reciprocal Agreement.

  It appears that the NYS Fund made a good faith effort to respond to Plaintiff Butler's numerous requests for documents in a timely manner, supplied him with copies of all the requested documents it had available at those times. Additionally, the NYS Fund's actions, here, did not cause a prejudicial injury to plaintiffs by compelling them in initiate this lawsuit. Under the facts of this case, plaintiffs would have had to bring suit for their pension payment adjustments whether or not the requested documents had been provided, because the parties disagree on the interpretation of those documents. Under the circumstances, any award to Plaintiffs "where the absence of either bad faith or prejudice is palpable, would be an unjustifiable windfall." Grohowski v. U.E. Systems, Inc., 917 F. Supp. 261, 262 (S.D.N.Y. 1986) Therefore, NYS Fund's cross motion for summary judgment is granted on this ERISA claim, and Plaintiff's motion for summary judgment on this claim is denied.

  Accordingly, the decisions of the NYS Fund's Board of Trustees affirming the Page 17 calculations of Plaintiffs' partial pension are AFFIRMED; the NYS Fund's cross motion for summary judgment is GRANTED with respect to all claims; Plaintiffs' motion for summary judgment is DENIED; the complaint is DISMISSED in its entirety, and the NYS Fund's motion to strike Plaintiffs' demand for a jury trial is DENIED as moot.

  IT IS SO ORDERED. Page 1

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