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Duffy v. East Port Excavation & Utilities Contractors, Inc.

United States District Court, E.D. New York

August 25, 2014

WILLIAM K. DUFFY, et al., Plaintiffs,
v.
EAST PORT EXCAVATION & UTILITIES CONTRACTORS, INC., et al., Defendants.

ORDER

DENIS R. HURLEY, Senior District Judge.

Plaintiffs, the trustees of the Local 138, 138A & 138B, International Union of Operating Engineers Welfare Fund, Legal Fund, Apprenticeship Training Fund, and Annuity Fund, and Michael Fanning, CEO of the Central Pension Fund (collectively the "plaintiffs") commenced this action pursuant to Sections 515 and 502(a)(3) of the Employee Retirement Income Security Act ("ERISA"), alleging that defendants East Port Excavation & Utilities Contractors, Inc., Eastport Manor Construction, Inc. and Steven Governale (collectively "defendants") violated their statutory and contractual obligations to make contributions to the various plaintiffs' funds. Following a bench trial held on June 6, 7, and 20, 2011, by Memorandum and Order dated September 19, 2013, the Court found the defendants jointly and severally liable for contributions not made to plaintiffs for the period June 1, 2000 to December 31, 2009. As part of that Order, the Court directed plaintiffs to submit an affidavit on or before November 8, 2013 in support of their request for attorneys' fees and costs and directed defendants to file any opposition by December 6, 2013. Plaintiffs filed an affidavit in support on November 8, 2013, and defendants did not file any opposition.

On March 3, 2014, the Court referred the plaintiffs' motion for attorneys' fees to Magistrate Judge Arlene R. Lindsay. On May 23, 2014, Judge Lindsay issued a Report and Recommendation recommending that plaintiffs be awarded attorneys' fees in the amount of $39, 527.00 and costs in the amount of $2, 444.22. At this time, no party has filed any objections to the Report and Recommendation.

Pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72, this Court has reviewed the Report and Recommendation for clear error, and finding none, now concurs in both its reasoning and its result. Accordingly, the Court adopts Judge Lindsay's May 23, 2014 Report and Recommendation as set forth therein. Accordingly, the Court awards plaintiffs $39, 527.00 in attorneys' fees and $2, 444.22 in costs. The clerk of the Court is directed to enter judgment in accordance with the attached Judgment[1] reflecting these amounts as well as the amounts due to plaintiffs in unpaid contributions, interest on the unpaid contributions, liquidated damages, and audit fees.

SO ORDERED.

This action having been commenced on January 17, 2010 by the filing of the Complaint and issuance of a Summons, and copies of the Summons and Complaint having been served upon defendant pursuant to Rule 4(h)(1) of the Federal Rules of Civil Procedure; a non jury trial was held on June 6, 7, and 20, 2011; pursuant to an Memorandum and Order dated September 19, 2013, issued by the Honorable Judge Denis R. Hurley directing Plaintiffs to submit a proposed Judgment, upon notice;

NOW, on motion of Archer, Byington, Glennon & Levine, LLP, attorneys for the plaintiffs, and upon the proceedings herein, it is

ORDERED, ADJUDGED AND DECREED, that plaintiffs WILLIAM K. DUFFY, KENNETH HUBER, PHILLIPLIP CAPOBIANCO, JOHN DUFFY, PAUL O'BRIEN, MARC HERBST, JAMES HANEY, JR., JAMES PRATT, In, SCOTT ADRIAN and ROBERT AHEARN as Trustees of LOCAL 138, I38A & 138B, INTERNATIONAL UNION OF OPERATING ENGINEERS WELFARE FUND, LEGAL FUND, APPRENTICESHIP TRAINING FUND, and ANNUITY FUND, MICHAEL FANNING as CEO of the CENTRAL PENSION FUND, (the "FUNDS") have judgment, jointly and severally, against defendants, EAST PORT EXCAVATION & UTILITIES CONTRACTORS, INC., EASTPORT MANOR CONSTRUCTION, INC., and STEVEN GOVERNALE., having their place of business at 601 Portion Road, Suite 216, Ronkonkoma, New York, 11779, that plaintiffs are hereby awarded judgment against defendants for delinquent fringe benefit contributions due and owing pursuant to an audit on defendants' books and records for the period of June 1, 2000 to December 31, 2005, in the sum of $133, 734.66 plus interest in the amount of $71, 417.70 through September 19, 2013 on the unpaid contributions, totaling $205, 152.35; plus liquidated damages in a sum equal to interest calculated of the unpaid contributions as provided in § 502(g)(2)(C) of ERISA, 29 U.S.C. § 1132(g)(2)(C), totaling $71, 417.70; plus the costs and disbursements of the action, audit costs, and reasonable attorneys' fees, as demanded in the Complaint and as provided in § 502(g)(2)(D) ERISA, 29 U.S.C. § 1132(g)(2)(D), amounting to $39, 521.00 in attorney's fees, $24, 165.33 in audit fees, and $2, 444.22 in costs, respectively, and amounting in all as of September 19, 2013 in the amount of $342, 70.60, plus additional per diem interest and liquidated damages from September 19, 2013, until date of entry of judgment in the amount of $19.02 and that plaintiffs have execution therefore.


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