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Dolan v. Barile Mechanical Inc.

United States District Court, S.D. New York

March 28, 2013

PATRICK DOLAN JR., et al., Plaintiffs,
v.
BARILE MECHANICAL, INC., et al., Defendants

For Patrick Dolan, Jr., as Trustee and Co-Chairmen, Anthony Saporito, as Trustee and Co-Chairmen, Kevin J. Driscoll, as Administrator of: The Steamfitters' Industry Pension Fund, The Steam. Ind.Supp. Ret. Plan, The Steam. Industry Welf. Fund, The Steam. Industry Health Reim. Acc. Fund, The Steam. Ind. Sec. Ben. Fund, The Steam. Ind. Vac. Plan, & The Steam. Ind. Educ., Plaintiffs: Richard S. Brook, LEAD ATTORNEY, Law Office of Richard S. Brook, Mineola, NY.

For Barile Mechanical, Inc., Matthew Walby, Defendants: Donald Joseph Cayea, LEAD ATTORNEY, Jones Hirsch Connors & Bull P.C., New York, NY; Norman Daniel Alvy, LEAD ATTORNEY, Alvy & Tablante LLP, Lake Success, NY; Thomas Andrew Bizzaro, Certilman, Balin, Adler & Hyman, Hauppauge, NY.

For Michael Walby, Defendant: Donald Joseph Cayea, LEAD ATTORNEY, Jones Hirsch Connors & Bull P.C., New York, NY; Thomas Andrew Bizzaro, Certilman, Balin, Adler & Hyman, Hauppauge, NY.

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OPINION & ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

Plaintiffs, employee benefit welfare plans and employee benefit pension plans established under the Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. § 1002 et seq., and their fiduciaries (the " Funds" ), brought this action against Barile Mechanical, Inc. (" Barile" ) to confirm and enforce an arbitration award pursuant to Section 301(a) of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a), and Section 9 of the Federal Arbitration Act, 9 U.S.C. § 9. In a separate count, they have sued Barile, Barile's president and owner Michael Walby, and

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his son Matthew Walby, for violations of the New York Lien Law. Plaintiffs now move for summary judgment pursuant to Federal Rule of Civil Procedure 56.[1] The parties have consented to having this matter decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the following reasons, plaintiffs' motion for summary judgment is granted in part.

I. BACKGROUND

The following facts are undisputed unless otherwise stated.

This action arises out of a collective bargaining agreement between Barile and Enterprise Association Steamfitter Local 638 (the " Union" ). See Pl. 56.1 Statement ¶ 17; [2] Enterprise Association-Local Union 638 Working Agreement, dated Aug. 20, 2008 (annexed as Ex. 1 to Brook Aff.) (the " CBA" ). This agreement required Barile to make payments to the Funds based on the number of hours worked by its employees. Pl. 56.1 Statement ¶ ¶ 17-19. Plaintiffs conducted an audit of Barile's records pursuant to the CBA and discovered that the company had failed to make the required contributions to the Funds during certain time periods. Id. ¶ ¶ 22-24; Independent Accountants' Report on Applying Agreed-Upon Procedures, dated Nov. 2, 2010 (annexed as Ex. 5 to Brook Aff.), at 3. Pursuant to the CBA, the parties submitted a delinquency arbitration to a duly designated contractual arbitrator. Pl. 56.1 Statement ¶ 25; Demand for Arbitration, dated June 24, 2011 (annexed as Ex. 4B to Brook Aff.). Although defendants were aware of the arbitration, they failed to attend the arbitration and to produce documents or witnesses. Id. ¶ ¶ 26, 28. The arbitrator held a hearing on September 16, 2011, and issued a written award on September 22, 2011 in favor of plaintiffs. Id. ¶ ¶ 27, 29; Opinion and Award by Edward J. Nolan, dated Sept. 22, 2011 (annexed as Ex. 4A to Brook Aff.) (" Arb. Op." ), at 1-2, 4. The award, in the amount of $274,907.35, was based on the failure to make required contributions for the periods January 1, 2007 through December 31, 2009; May 3, 2011 through June 28, 2011; and July 5, 2011 through August 16, 2011. Arb. Op. at 2; Pl. 56.1 Statement ¶ 29. The award included interest owed on these sums, liquidated damages at the rate of 20 percent as

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required by the CBA, and legal costs, costs of the audit, and costs of the arbitration. Arb. Op. at 3-4. Since that date, Barile has not paid this amount, and the award has not been vacated or modified. Pl. 56.1 Statement ¶ ¶ 30-31.

Plaintiffs filed this action on January 11, 2012, seeking to confirm the arbitration award. See Complaint, filed Jan. 11, 2012 (Docket # 1); First Amended Complaint, filed Mar. 5, 2012 (Docket # 9) (" Compl." ). Initially, plaintiffs named Barile's surety, North American Specialty Insurance Company (" NASIC" ), as a defendant, see Compl. ¶ ¶ 6, 45-50, but plaintiffs voluntarily dismissed NASIC after receiving a payment of $120,000 from them, ...


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