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Patrick Morin As President of the Empire v. Falcone Building & Remodeling

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


September 19, 2012

PATRICK MORIN AS PRESIDENT OF THE EMPIRE REGIONAL COUNCIL OF CARPENTERS, JOHN FUCHS, PATRICK MORIN, ANTHONY MACAGNONE, MICHAEL CONROY, DAVID HAINES, GEOFFREY JAMES, JAMES MALCOLM, WILLIAM MACCHIONE, ALAN EHL, WILLIAM WEITZMAN, KEVIN HICKS, JOSEPH OLIVIERI, DALE STUHLMILLER, ARTHUR GODSELL, ROBERT CARLINO, PAUL J. O'BRIEN, JR., JOSEPH GANIRO, ROSS PEPE, RICHARD O'BEIRNE, JAMES LOGAN, ANTHONY CAROPRESSO, ANTONIO MARTINS, TODD HELFRICH AND FRANK WIRT AS TRUSTEES OF THE EMPIRE STATE CARPENTERS WELFARE, PENSION, VACATION, ANNUITY, SCHOLARSHIP, APPRENTICE-TRAINING, LABOR-MANAGEMENT COOPERATION AND CHARITABLE TRUST FUNDS, PLAINTIFFS,
v.
FALCONE BUILDING & REMODELING, INC., DEFENDANT.

The opinion of the court was delivered by: Spatt, District Judge.

ORDER

On September 9, 2005, the plaintiffs commenced this action against the defendant, Falcone Building & Remodeling, Inc., seeking to collect delinquent employee benefit plan contributions and unpaid wages owed by the defendant. On June 27, 2006, the Court entered a default judgment against the defendant, and referred the matter to United States Magistrate Judge A. Kathleen Tomlinson for an inquest as to damages, including reasonable attorneys' fees and costs.

On April 17, 2012, Judge Tomlinson issued a Report and Recommendation (the "Report") recommending that the Court award the plaintiffs damages as follows:

(1) $173,645.87 for unpaid fringe benefits;

(2) $28,534.75 in interest on the unpaid fringe benefits;

(3) $34,729.17 in liquidated damages;

(4) $3,310.00 in attorney's fees; and

(5) $2,734.54 in unpaid wages and interest, for a total sum of $242,954.33.

(Report at 14.) Judge Tomlinson further recommended that the Court award the plaintiff post- judgment interest at the rate set forth in 28 U.S.C. § 1961 as of the date of the entry of final judgment. To date, there have been no objections filed to the Report.

In reviewing a report and recommendation, a court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §636(b)(1)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (citing Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)). The Court has reviewed Judge Tomlinson's Report and finds it be persuasive and without any legal or factual errors.

There being no objection to Judge Tomlinson's Report, it is hereby

ORDERED, that Judge Tomlinson's Report and Recommendation is adopted in its entirety. The Court awards the plaintiffs: (1) $173,645.87 for unpaid fringe benefits; (2) $28,534.75 in interest on the unpaid fringe benefits; (3) $34,729.17 in liquidated damages; (4) $3,310.00 in attorney's fees; (5) $2,734.54 in unpaid wages and interest; and (6) post- judgment interest at the rate set forth in 28 U.S.C. § 1961 as of the date of the entry of final judgment, and it is further

ORDERED, that the Clerk of the Court is directed to enter judgment in favor of the plaintiffs in the amount of $242,954.33, plus post-judgment interest pursuant to 28 U.S.C. § 1961, and it is further

ORDERED, that the Clerk of the Court is directed to close this case.

SO ORDERED.

ARTHUR D. SPATT United States District Judge

20120919

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