Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nigro v. Dwyer

June 14, 2006

ROBERT NIGRO, PAT DAMIANI, JR., JOSEPH DELEONARDIS, JOHN DISPENSA, ROBERT DIZINE, ET. AL., AS TRUSTEES OF THE IBEW LOCAL 363 PENSION, WELFARE, ANNUITY AND J.A.T. FUNDS, PLAINTIFFS,
v.
WILLIAM A. DWYER D/B/A ON-LINE ELECTRIC, DEFENDANT.



The opinion of the court was delivered by: McMahon, J

DECISION AND ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT

Introduction

In 1998, On-Line Electric, Inc. ("On-Line") was dissolved for failing to pay its corporate franchise tax. Eighteen months later, defendant William A. Dwyer, On-Line's President, signed a Letter of Assent agreeing that On-Line would be bound by collective bargaining agreements between the Hudson Valley Chapter of the National Electrical Contractors Association ("NECA") and Local Union 363, International Brotherhood of Electrical Workers (the "Funds"). These agreements require contributions to various pension-type funds, based on work performed.

Dwyer made payment to the Funds through 2001. Dwyer subsequently performed electrical work. But he made no further payment to the Funds.

Plaintiffs have sued Dwyer personally for the unmade contributions. They allege that defendant Dwyer is personally liable for the contributions because he signed the Letter of Assent on behalf of On-Line while the corporation was dissolved. Plaintiffs seek summary judgment as to defendant's liability and an inquest to resolve the amount owed and reasonable attorneys' fees.

Defendant denies liability. He contends that he is not liable because On-Line has paid its back franchise taxes and is currently in good standing. Interestingly, On-Line got itself reinstated on March 3, 2005, a mere six days before the Complaint against Dwyer was filed and shortly after he became aware that the Funds were "on to him."

Plaintiffs urge that defendant has waived or should be estopped from asserting the "improper party" defense because he did not raise it until this motion was filed. Defendant asserts that his general denial was sufficient to raise the defense.

For the reasons explained below, the Court denies this motion for partial summary judgment, and orders a trial on the issue of fraud.

Facts

Defendant's opposition to this motion has utterly failed to comply with the requirements of Local Rule 56.1, requiring responses to "include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party." Local Rule 56.1(b). Local Rule 56.1 is not a mere formality, but rather is meant "to streamline the consideration of summary judgment motions by freeing district courts of the need to hunt through voluminous records without guidance from the parties."Deleon v. Putnam Valley Bd. of Educ., Slip Copy, 2006 WL 236744, at *2 (S.D.N.Y. Jan. 26, 2006), quoting Holz v. Rockefeller & Co., Inc., 258 F.3d. 62, 74 (2d Cir. 2001).

Defendant's response to the motion does not include a Rule 56.1 Statement; all he filed is an Affidavit in Opposition and his attorney's Affirmation in Opposition. These responses are not keyed to plaintiffs' Statement of Facts. Nor do they properly cite to evidence in the record, pursuant to Local Rule 56.1(d).

Defendant's failure to comply with Rule 56.1 permits the Court to deem the facts in plaintiffs' Rule 56.1 Statement uncontroverted, and I do so. These uncontroverted facts will still be viewed in a light most favorable to the non-moving party (defendant), as per the standard of review on a motion for summary judgment. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).*fn1

Parties

Defendant operates On-Line Electric, Inc., ("On-Line"), an electrical contracting corporation organized to do business under the laws of the State of New York on June 17, 1994. Compl. ¶ 6, McGovern Affirmation Ex. 3.

On-Line was dissolved by the Department of State of the State of New York on September 23, 1998, for failing to pay its franchise taxes. Pls.' Reply Mem. of Law at 7, citing McGovern Supp. Affirmation ¶ 3, Ex. 3. Subsequent to the corporation's dissolution, defendant continued to do business under the name of On-Line. Pls.' Local Rule 56.1 St. of Facts ¶ 3.

Defendant's Relationship with the Funds

Defendant signed a Letter of Assent on February 2, 2000, appointing the Hudson Valley Chapter of NECA as defendant's "collective bargaining representative for all matters contained in or pertaining to the current and any subsequent approved inside labor agreement between the Hudson Valley Chapter NECA and Local Union 363, IBEW." Pls.' 56.1 St. ¶¶ 3-4.

When defendant signed the Letter of Assent, NECA and the Funds were parties to a collective bargaining agreement that was effective from 9/1/97 through 3/31/01. Pls.' 56.1 St. ¶ 11. NECA and the Funds entered into two successor agreements, the first from 4/1/01 through 3/31/04, and the next from 4/1/04 through 3/31/07. Pls.' 56.1 St. ¶ 12.

These agreements require an employer to pay contributions to several pension-type funds based on the amount of work performed. Section 11.04 of the collective bargaining agreement sets out, "A contractor who normally performs electrical installations, must pay into all of the above funds. The contractors' rate of pay ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.