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Trustees of Empire State Carpenters Annuity v. JJJ Concrete Corp.

United States District Court, E.D. New York

January 29, 2015

TRUSTEES OF EMPIRE STATE CARPENTERS ANNUITY, APPRENTICESHIP, LABOR-MANAGEMENT COOPERATION, PENSION AND WELFARE FUNDS, Plaintiffs,
v.
JJJ CONCRETE CORP. and RELL CONCRETE CORP., Defendants

For Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Management Cooperation, Pension and Welfare Funds, Plaintiff: Charles R. Virginia, Nathan V. Bishop, LEAD ATTORNEYS, Michael Bauman, Virginia & Ambinder LLP, New York, NY.

For JJJ Concrete Corp., Rell Concrete Corp., Defendants: Richard M. Mahon, LEAD ATTORNEY, Catania, Mahon, Milligram & Rider, PLLC, Newburgh, NY.

REPORT AND RECOMMENDATION

Arlene R. Lindsay, United States Magistrate Judge.

Before the Court, on referral from District Judge Feuerstein, are the motions by (1) plaintiffs Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Management Cooperation, Pension and Welfare Funds (" Plaintiffs" or the " Funds") and (2) defendants JJJ Concrete Corp. (" JJJ") and Rell Concrete Corp. (" Rell") (collectively, " Defendants") for summary judgment. For the reasons set forth below, the Court respectfully reports and recommends that Plaintiffs' motion be denied in its entirety and Defendants' motion be granted in part and denied in part.

I. BACKGROUND

The following facts are drawn from Plaintiffs' Local Rule 56.1 Statement (" Pls.' 56.1 Stmt."), Defendants' Local Rule 56.1 Statement and Counterstatement (" Defs.' 56.1 Stmt."), Plaintiffs' Local 56.1 Statement in Opposition (" Pls.' Opp'n 56.1 Stmt."), and the evidence proffered in support. The facts are undisputed unless otherwise noted.

A. The Collective Bargaining Agreement

Defendant JJJ executed a Collective Bargaining Agreement (" CBA") with the Northeast Regional Council of Carpenters, formerly known as the Empire State Regional Council of Carpenters (the " Union") on April 15, 2009. Pls.' 56.1 Stmt. ¶ 1. The CBA required JJJ to make specified hourly contributions to the Funds for every hour of work within the trade and geographical jurisdiction of the Union. Id. ¶ 3. The CBA required JJJ, inter alia, to furnish its books and payroll records when requested by the Funds for the purpose of conducting an audit to ensure compliance with benefit fund contribution requirements. Id. ¶ 4.

Pursuant to the CBA, the Funds attempted to conduct an audit of JJJ's books and records covering the period July 2009 through the present. Id. ¶ 5. The Funds also requested the records of defendant Rell, as the Funds believe Rell to be a related entity. Id. ¶ 6. JJJ refused to provide Rell's documents. Id. According to Defendants, JJJ is not obligated to provide Rell's documents to Plaintiffs because Rell is a separate legal entity and is not under contract with the Union nor under the control of JJJ. Defs.' 56.1 Stmt. ¶ 81.

B. JJJ Concrete Corp.

JJJ is a corporation which was established pursuant to the laws of the State of New York on April 17, 1979. Id. ¶ 1. JJJ was initially formed by Juaquim Almeida and was later owned by Mr. Almeida together with two other partners. Id. ¶ ¶ 2-3. Amorim Pereira a/k/a Amory Pereira (" Amory") subsequently bought out the two partners and continued ownership of JJJ with Mr. Almeida until approximately 2010, when Amory became its sole owner. Id. ¶ ¶ 4-6.

JJJ provides concrete construction services to large commercial clients, id. ¶ 13, and works solely on union projects, id. ¶ 14. JJJ has worked on West Point Hospital, West Point Middle School, Woodbury Commons, Newark Airport, and the Picatinny Arsenal in Morris County, New Jersey. Id. ¶ 15. JJJ uses high-end commercial equipment for its projects, which demand several thousand yards of concrete; as a result, JJJ has the capability to provide hundreds of yards of concrete each day. Id. ¶ ¶ 16-19. Due to the nature of the work, JJJ's employees must have the skills to collaborate with large teams of other workers and coordinate with other tradesman at the project sites like plumbers, electricians, framers, excavators, and steel workers. Id. ¶ 21. JJJ owns its own vehicles, including a 2003 Toyota pick-up truck, a 2003 Ford flatbed truck, a 2002 Chevrolet Suburban, a 2004 Chevrolet C4500, a 2001 Ford Van, a 2000 Ford F350 and a 1999 Ford F350. Id. ¶ 23.

JJJ's principal place of business is at 21 Grove Street, Spring Valley, New York, where it rents an office and yard space for storage of its equipment at approximately $35, 000 per year. Id. ¶ ¶ 7-8. 21 Grove Street is owned by Rochris Real Estate Corp. (" Rochris"), a company owned in part by Amory. Pls.' 56.1 Stmt. ¶ 25; Defs.' 56.1 Stmt. ¶ 100. Rental of the office and yard space entitles JJJ, and all other lessees at 21 Grove Street, to use all common areas on the property including the bathrooms, parking lot and a small meeting room in the first floor of the building. Defs.' 56.1 ¶ 9. According to Defendants, several other companies rent space in the yard area, along with JJJ, and also use the yard to store their equipment. Id. ¶ ¶ 10-11. These companies include Rodriguez Construction and Amjack Leasing, the latter of which is owned by Amory. Id. ¶ 10.

C. Rell Concrete Corp.

Rell was formed in 2010 and is solely owned by Lorell Pereira (" Lorell"), who is Amory's daughter. Id. ¶ ¶ 24-25. Lorell was 18 years old at the time of Rell's founding and had no experience in the construction business. Pls.' 56.1 Stmt. ¶ 10. Lorell is Rell's President, and there are no other officers. Id. ¶ 14; Defs.' 56.1 Stmt. ¶ 89. At her deposition, Lorell testified that Rell has never had any corporate meetings or Board of Directors meetings. Pls.' 56.1 Stmt. ¶ 42. Lorell further testified that her duties at Rell consist of signing checks, and she works approximately 1-3 hours per week. Id. ¶ 18.

Amory loaned Rell thousands of dollars at its start-up. Id. ¶ 11. According to Plaintiffs, this loan was undocumented. Id. ¶ 12. Defendants dispute this " characterization" and note that the record reflects that Amory gave Rell money " here and there" and not in one lump sum amount. Defs.' 56.1 Stmt. ¶ 87. It is undisputed that the loan or loans have not been repaid. Pls.' 56.1 Stmt. ¶ 13. Lorell made no capital contribution to Rell, and she does ...


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