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September 15, 2005.

UON SUK PARK and JOHN SULLIVAN, in his capacity as the Administrator of the ESTATE OF SALLIE ANN PARK, Plaintiffs,

The opinion of the court was delivered by: JOHN KOELTL, District Judge


This action is brought pursuant to the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., by plaintiffs Uon Suk Park ("Mr. Park") and John Sullivan ("Sullivan"), in his capacity as the Administrator of the Estate of Sallie Ann Park (the "Estate") against defendants The Trustees of the 1199 SEIU Health Care Employees Pension Fund (the "Fund").*fn1 The Second Amended Complaint states the following six claims: (1) the defendants allegedly failed to provide the Estate with a statement of the total benefits accrued and the nonforfeiture pension benefits which had accrued in Sallie Ann Park's ("Mrs. Park") Plan in alleged violation of 29 U.S.C. § 1132(a)(1)(A) (the "First Claim"); (2) the plaintiffs request attorney's fees and costs pursuant to 29 U.S.C. § 1132(g)(1) (the "Second Claim"); (3) the Estate requests a declaratory judgment that the Summary Plan Description (the "SPD") fails to comply with 29 U.S.C. § 1055(c)(2)(B) (the "Third Claim");*fn2 (4) the defendants allegedly breached their fiduciary duty to the plaintiffs in violation of 29 U.S.C. § 1132(a)(3)(B) (the "Fourth Claim"); (5) the Estate requests that the Court exercise its equitable jurisdiction pursuant to 29 U.S.C. § 1132(a)(3)(B) to direct the defendants to grant the pension option that the defendants allegedly should have informed Mrs. Park would be in her best interests and that of her beneficiaries (the "Fifth Claim"); and (6) the Estate requests the benefits as would be allegedly due to it under the plan alleged in the Fifth claim (the "Sixth Claim").*fn3 The defendants moved for summary judgment and the Estate cross-moved for partial summary judgment on its Third Claim.


  The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of informing the district court of the basis for its motion and identifying the matter that it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Consol. Edison, Inc. v. Northeast Utilities, 332 F. Supp. 2d 639, 642 (S.D.N.Y. 2004).

  Summary judgment is appropriate if it appears that the non-moving party cannot prove an element that is essential to the non-moving party's case and on which it will bear the burden of proof at trial. See Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795, 805-06 (1999); Celotex, 477 U.S. at 322; Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998); Consol. Edison, 332 F. Supp. 2d at 643.


  The following facts are undisputed unless otherwise noted. A.

  The Fund is a multi-employer trust fund established in accordance with § 186(c) of the Labor Management Relations Act of 1947 and an "employee pension benefit plan" as the term is described under ERISA. (Defendant Trustees of Local 1199 SEIU Health Care Employees Pension Fund's Rule 56.1 Statement ("2004 Def. Stmt."), dated Dec. 9, 2004, ¶ 1; Affirmation of Key Mendes ("Mendes Aff."), sworn to Dec. 8, 2004, ¶¶ 3.)*fn4 The Fund is administered by a Board of Trustees for the purpose of providing pension benefits to participants, beneficiaries and spouses in accordance with the written description of the Plan, called Earning & Receiving Pension Benefits: Summary Plan Description and Official Plan Document. (2004 Def. Stmt. ¶ 6, 7; Mendes Aff. ¶¶ 8, 10.) The policy choices are set forth in layperson's terms within the Summary Plan Description ("SPD"), which is distributed to the participants upon enrollment in the Fund. (2004 Def. Stmt. ¶ 7; Mendes Aff. ¶ 9.) The plaintiffs acknowledge that Mrs. Park possessed a copy of the Fund's SPD. (Second Amended Compl. ("Compl.") ¶ 11.)

  The Fund is a defined benefit ("DB") plan where employers make contributions to the Fund based on actuarial design. (2004 Def. Stmt. ¶¶ 11, 12; Mendes Aff. ¶¶ 13-14.) Unlike a defined contribution plan where a participant has a separate account, such as a 401(k) plan, a participant does not have any automatic right to receive contributions to the Fund and is only entitled to an annuity based on a defined formula if the participant meets specific eligibility criteria as defined in the Fund's SPD. (2004 Def. Stmt. ¶¶ 10-11, 14-18; Mendes Aff. ¶¶ 12-20.)

  Pension benefits are not automatic; they must be applied for and approved by the Plan Administrator. (2004 Def. Stmt. ¶ 9; Mendes Aff. ¶ 12; Summary Plan Description ("SPD"), attached as Ex. B to Mendes Aff., at 54.) A participant is entitled to receive pension benefits if they are fully vested upon the participant's retirement. (2004 Def. Stmt. ¶ 9; Mendes Aff. ¶ 11; SPD at 20.)

  A participant who is married at retirement must take the pension benefits in the form of a Qualified Joint and Survivor Annuity, unless the participant receives spousal consent to select another option or demonstrates that the spouse cannot be located, which is referred to as the "lost spouse" exception or waiver. (2004 Def. Stmt. ¶¶ 38-39; Mendes Aff. ¶¶ 38-39; Plan Document, attached as Ex. B to Mendes Aff., at 85.)

  If a participant dies prior to retirement, the participant's spouse is entitled to the participant's pension benefits if: the participant was vested in the Plan, the participant and the spouse had been married a full year before the participant's death, the participant and the spouse were still married at the time of the participant's death, and the participant had not cancelled this coverage with the spouse's written approval or demonstrated that the spouse cannot be located. (2004 Def. Stmt. ¶¶ 10-11; Mendes Aff. ¶¶ 10-11; SPD at 50; Plan Document, attached as Ex. B to Mendes Aff., at 86-87.) When a participant dies prior to retirement, the participant's spouse is entitled to a Qualified Pre-retirement Survivor Annuity ("QPSA"). (2004 Def. Stmt. ¶¶ 29-31; Mendes Aff. ¶¶ 30-32.) In accordance with ERISA, only a spouse is entitled to a QPSA; the participant cannot assign the rights to the QPSA to anyone other than a spouse. (2004 Def. Stmt. ¶¶ 31-32; Mendes Aff. at ¶¶ 32-33.)

  If a claim for pension benefits is denied, the SPD notifies claimants that a lawsuit may only be filed after the complete administrative appeals procedure is followed. (SPD at 62.)*fn5 The appeals procedure requires the claimant to write to the Fund within sixty days of the date of the denial notice to request administrative review. (SPD at 55.) The retirement committee reviews the claim within sixty days and provides an opportunity for the claimant and the claimant's representative to appear before the committee. (Id.)


  Mrs. Park, a fully vested participant in the Fund, was employed by the New York University Medical Center from 1976 until her death on March 20, 1998. (Rule 56.1 Statement of Plaintiffs Uon Suk Park and John Sullivan ("Pl. Stmt."), dated Dec. 30, 2004, ¶ 1; Defendants Trustees of Local 1199 SEIU Health Care Employees Pension Fund's Rule 56.1 Statement Responding to Plaintiff's Motion for Summary Judgment/Opposition to Defendant's Motion for Summary Judgment ("2005 Def. Stmt."), dated Feb. 24, 2005, ¶ 1.) She took a leave of absence in 1996 during which time she received chemotherapy for ovarian cancer. (Compl. ¶ 9.) The cancer went into remission and she returned to her job in the summer or fall of 1997. (Id. ¶ 10; Affidavit of James E. Howard ("Howard Aff."), sworn to on Dec. 28, 2004, attached to Notice of Motion, ¶ 2.)

  The plaintiffs allege that after returning to work, Mrs. Park attempted to contact a Pension Fund counselor to obtain information to change the beneficiary of her pension benefits to her children, John Sullivan and Linda Sullivan, but the defendants were not responsive. (Pl. Stmt. ¶ 2.) The plaintiffs submitted an affidavit from James E. Howard, a former co-worker of Mrs. Park's, alleging that Mrs. Park, concerned that her pension benefits would go to Mr. Park and not to her children, Linda and John Sullivan, "would try to reach the Union to change the beneficiary of her pension plan, but they did not cooperate," and that "[s]he would call the phone number in the pension booklet and leave a message but nobody would call her back." (Howard Aff. ¶¶ 1-3.) The plaintiffs allege that the defendants' failure to respond to Mrs. Park's inquiries caused Mrs. Park not to change the beneficiary of her pension benefits and not to choose to retire. (Compl. ¶¶ 20-22.)

  The defendants deny that Mrs. Park ever contacted the Fund. The defendants assert that, although the Fund employs a phone staff whose primary responsibility it is to note and respond to telephone inquiries from Fund participants, there is no indication that Mrs. Park contacted the Fund. (2005 Def. Stmt. ¶ 2; Affirmation of Janette Edwards ("Edwards Aff.), sworn to on Feb. 24, 2005, ¶¶ 5-8, 10-13.)

  Mrs. Park died in March 1998 at age 64, with a death certificate stating that she was a widow. (2004 Def. Stmt. ¶¶ 25, 27; Ex. A to Mendes Aff.) According to the SPD, Mrs. Park could have chosen to retire as early as age 55. (2004 Def. Stmt. ¶ 26; Mendes Aff. ¶ 27; SPD at 30-31.) However, she had not done so and was still employed when she died. (2004 Def. Stmt. ¶ 21, 23; Mendes Aff. ¶ 23.)

  On June 4, 2001, Paul Dalnoky, the attorney representing Mrs. Park's Estate, sent a letter to the Fund inquiring about Mrs. Park's pension benefits, in which he wrote, "Uon Suk Park, her purported husband, has waived his claim to Ms. Park's pension." (Ex. C to Mendes Aff.) On June 18, 2001, the Director of the Fund responded by letter to Mr. Dalnoky, informing him that Mrs. Park had not applied for her pension benefits prior to her death, that her spouse was entitled to benefits if Mrs. Park had been married at the time of her death, and that her spouse may at any time apply for the pension benefits, and invited Mr. Dalnoky to contact him with any further questions. (Ex. D. to Mendes Aff.)

  On July 2, 2004, Mr. Dalnoky filed this lawsuit, and after receiving a service copy of the defendants' motion to dismiss, allegedly contacted Mr. Park, who agreed to join the lawsuit as a plaintiff. (Affirmation of Paul B. Dalnoky ("Dalnoky Aff."), sworn to Sept. 13, 2004, ¶ 2.) On September 21, 2004, the Fund sent a survivor's pension benefit form to Mr. Park. (2004 Def. Stmt. ¶ 47; Ex. E to Mendes Aff.) On September 22, 2004, the Fund mailed a copy of the Fund's SPD in effect at the time of Mrs. Park's death to Mr. Dalnoky. (2004 Def. Stmt. ¶ 48.) Mr. Park has not ...

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