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.

Masino v. A to E

December 21, 2009

VINCENT MASINO, ROBERT CHEVERIE, JOHN PETERS, ANTHONY FASULO, ALBERT ALIMENA AND DOMINICK AGOSTINO, AS TRUSTEES AND FIDUCIARIES OF THE PAVERS AND ROAD BUILDERS DISTRICT COUNCIL WELFARE, PENSION, ANNUITY AND APPRENTICESHIP, SKILL IMPROVEMENT AND TRAINING FUNDS, PLAINTIFFS,
v.
A TO E, INC., DEFENDANT.



The opinion of the court was delivered by: Levy, Magistrate Judge

MEMORANDUM AND ORDER

This case is before me on consent of the parties, pursuant to 28 U.S.C. § 636(c). (See Consent to Exercise Jurisdiction by a U.S. Magistrate Judge, dated Oct. 19, 2007.) Although the parties initially attempted to settle the matter, defendant A to E, Inc. ("defendant" or "A to E") never answered or moved with respect to the complaint, and plaintiffs now seek a default judgment. For the reasons stated below, plaintiffs' motion is granted, and plaintiffs are hereby awarded $1,501.39 in liquidated damages and $4,260.65 in attorney's fees and costs, for a total of $5,762.04.

BACKGROUND AND FACTS

Plaintiffs Vincent Masino, Robert Cheverie, John Peters, Anthony Fasulo, Albert Alimena, and Dominick Agostino ("plaintiffs"), as trustees and fiduciaries of the Pavers and Road Builders District Council Welfare, Pension, Annuity and Apprenticeship, Skill Improvement and Training Funds (collectively, the "Funds"), brought this action in August 2007 under § 515 of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §1001, et seq. Each of the Funds is a multi-employer employee benefit trust fund, organized and operated in accordance with ERISA. (Compaint, dated Aug. 15, 2007 ("Compl."), ¶ 1.) The Funds provide benefits to the members of the Highway, Road and Street Construction Laborers Local Union No. 1010 ("Local 1010") and/or the Sheet Asphalt Workers Local Union No. 1018 ("Local 1018") (collectively, the "Union") -- both members of the Pavers and Road Builders District Council -- and maintain their principal place of business in Flushing, New York. (Compl. ¶¶ 1, 4.)

Defendant is a corporation registered to do business in New York, with its principal place of business in Seaford, New York. (Compl. ¶ 2.) Defendant is bound to the collective bargaining agreement (the "CBA") between the Union and various employers within the paving industry. (Compl. ¶ 5.) Plaintiffs allege that defendant failed to pay all required contributions on behalf of its employees who performed work covered by the CBA. (Compl. ¶¶ 16, 17.)

Plaintiffs have demonstrated that defendant was properly served with the Summons and Complaint. (Affidavit of Service of Mary M. Bonville, sworn to Aug. 23, 2007; see also Declaration of Charles R. Virginia, Esq., dated May 26, 2009 ("Virginia Decl."), ¶ 9.) In addition, a Clerk's Certificate confirms that defendant has not filed an answer or otherwise moved with respect to the complaint, and that the time to do so has expired. (Clerk's Certificate, dated May 26, 2009.) Plaintiffs' motion for a default judgment is therefore granted.

It is well settled that, upon default, a defendant is deemed to have admitted all of the well-pleaded allegations in the complaint pertaining to liability. Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993); Greyhound Exhibitgroup, Inc., v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); Time Warner Cable of N.Y. City v. Barnes, 13 F. Supp. 2d 543, 547 (S.D.N.Y. 1998). "While the default judgment constitutes an admission of liability, the quantum of damages remains to be established by proof unless the amount is liquidated or susceptible of mathematical computation." LaBarbera v. Golden Vale Constr. Group, No. 06 CV 813, 2007 WL 2071565, at *3 (E.D.N.Y. July 17, 2007) (quoting Levesque v. Kelly Commc'ns, Inc., No. 91 Civ. 7045, 1993 WL 22113, at *4 (S.D.N.Y. Jan. 25, 1993)) (citation omitted). Plaintiff's allegations are as follows:

Defendant failed to make contributions to the Funds in the amount of $15,013.90 for work performed from February through April 2007. (Compl. ¶ 11.) Defendant has since paid the delinquent contributions and interest. (Virginia Decl. ¶ 12.) Defendant has also remitted partial payment of plaintiffs' attorney's fees and costs in the amount of $1,854.10. (Virginia Decl. ¶ 12.) Plaintiffs now seek liquidated damages of $1,501.39, representing ten percent of the unpaid contributions, and an additional $3,910.65 in attorney's fees and $350 in costs, for a total of $5,762.04. (Virginia Decl. ¶¶ 13, 14, 16.)

DISCUSSION

"An employer's failure to contribute an agreed upon amount to a benefit plan pursuant to a collective bargaining agreement is an ERISA violation creating a right of action for the benefits due." Trustees of the Bldg. Servs. 32B-J, Pension, Health & Annuity Funds v. Linden Realty Assocs., No. 94 CV 1358, 1995 WL 302454, at *4 (E.D.N.Y. May 8, 1995) (citing Benson v. Brower's Moving & Storage, Inc., 907 F.2d 310 (2d Cir. 1990); Berry v. Garza, 919 F.2d 87 (8th Cir. 1990); Winterrowd v. David Freedman & Co., 724 F.2d 823 (9th Cir. 1984)). Section 502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2), authorizes the Funds to recover:

(A) the unpaid contributions,

(B) interest on the unpaid contributions,

(C) an amount equal to the greater of -

(i) interest on the unpaid ...


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.