United States District Court, N.D. New York
UPSTATE NEW YORK ENGINEERS HEALTH FUND, by Daniel P. Harrigan, as Administrator, UPSTATE NEW YORK ENGINEERS PENSION FUND, by Daniel P. Harrigan, as Administrator, UPSTATE NEW YORK ENGINEERS S.U.B. FUND, by Daniel P. Harrigan, as Administrator, UPSTATE NEW YORK ENGINEERS TRAINING FUND, by Theron Hogle and Eugene Hallock, as Trustees, OPERATING ENGINEERS LOCAL 17 TRAINING FUND, by James Smolinski, as Administrative Manager, CENTRAL PENSION FUND OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS AND PARTICIPATING EMPLOYERS, by Michael R. Fanning, as Chief Executive Officer, INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 17, by Norman Noon, as Business Manager, INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION NO. 463, by Paul McCollum, as Business Manager, Plaintiffs,
DIPIZIO CONSTRUCTION CO., INC., BERNARD DIPIZIO, individually and as an Officer of DiPizio Construction Co., Inc., ROSANNE DIPIZIO, individually and as an Officer of DiPizio Construction Co., Inc., Defendants.
BLITMAN, KING LAW FIRM Attorneys for Plaintiffs
BARCLAY DAMON LLP Attorneys for Defendants
JENNIFER A. CLARK, ESQ.
MICHAEL E. FERDMAN, ESQ.
MEMORANDUM-DECISION AND ORDER
D'Agostino, U.S. District Judge.
December 19, 2014, Plaintiffs Upstate New York Engineers
Health Fund ("Health Fund"), Upstate New York
Engineers Pension Fund ("Pension Fund"), Upstate
New York Engineers S.U.B. Fund ("S.U.B. Fund"),
Upstate New York Engineers Training Fund ("Training
Fund"), Operating Engineers Local 17 Training Fund
("Operating Fund"), Central Pension Fund of the
International Union of Operating Engineers and Participating
Employers ("Central Fund") (collectively, the
"Funds"), International Union of Operating
Engineers, Local Union No. 17, and International Union of
Operating Engineers, Local Union No. 463 (collectively, the
"Unions") commenced this action against DiPizio
Construction Co., Inc., Bernard DiPizio, and Rosanne DiPizio
for failing to timely remit benefit contributions and
deductions under the Employee Retirement Income Security Act
of 1974 ("ERISA"), 29 U.S.C. § 1001 et
seq., and the Labor Management Relations Act of 1947
("LMRA"), 29 U.S.C. § 1985. See Dkt.
No. 1 at ¶¶ 1-2. Presently before the Court are
Plaintiffs' motion for summary judgment and
Defendants' cross-motion for leave to file an amended
answer. See Dkt. Nos. 61, 63. As set forth below,
the motion for summary judgment is granted in part and denied
in part, and the motion for leave to file an amended answer
DiPizio Construction is a New York corporation. See
Dkt. No. 1 at ¶ 16. Plaintiffs allege that Bernard
DiPizio is DiPizio Construction's president, and that
Rosanne DiPizio is its vice president. See Id. at
¶¶ 17-18. Plaintiffs are fiduciaries of the Funds
and the business managers of the Unions, and they bring this
action alleging that DiPizio Construction failed to timely
remit contributions and deductions owed to the Funds and the
Unions. See Id. at ¶¶ 7-14. When the
complaint was filed on December 19, 2014, Plaintiffs alleged
that DiPizio Construction owed $315, 696.74 in fringe benefit
contributions and deductions. See Id. at ¶ 32.
Based on two audits conducted after the complaint was filed
and DiPizio Construction's remittance reports, Plaintiffs
now claim that DiPizio Construction owed a total of $508,
371.56 in contributions and deductions through February 2016.
See Dkt. No. 61-57 at 8. Of that amount, Defendants,
Defendants' surety, and third parties had untimely paid
$276, 048.07 as of the time that the motion for summary
judgment was filed. See Id. Therefore, DiPizio
Construction allegedly owes $232, 323.49 in outstanding
contributions and deductions.
to Plaintiffs, DiPizio Construction is required to pay
contributions and deductions to the Funds and the Unions
because it is bound to collective bargaining agreements
("CBAs") with Local No. 17 and Local No. 463.
See Id. at ¶¶ 24-25. Defendants'
obligations to the Funds arise from the CBAs, and the CBAs
require DiPizio Construction to comply with the terms of the
Funds' trust agreements. See Dkt. No. 61-57 at
3-4. Although the CBAs at issue were signed by the Unions and
the Association of General Contractors Labor Relations
Division ("AGC/LRD"), Plaintiffs allege that
DiPizio Construction is nonetheless bound to those CBAs.
See Id. In their answer, Defendants admitted that
DiPizio Construction is bound to the CBAs, see Dkt.
No. 16 at ¶ 1, but Defendants now seek to amend their
answer to assert that they were never bound to the CBAs
between the AGC/LRD and the Unions, see Dkt. No.
63-1 at 3.
December 15, 2016, Plaintiffs filed a motion for summary
judgment seeking an award of unpaid deductions and
contributions, as well as interest, liquidated damages, audit
fees, and attorneys' fees and costs. See Dkt.
No. 61-57 at 1. Defendants filed an opposition to the motion
in which they argue-for the first time-that DiPizio
Construction was never bound to the CBAs between the Unions
and the AGC/LRD. See Dkt. No. 63-1 at 5. Defendants
claim that DiPizio Construction withdrew bargaining authority
from the AGC/LRD before it signed the CBA with Local No. 17,
and that the AGC/LRD was never delegated as DiPizio
Construction's bargaining agent with respect to Local No.
463. See Dkt. No. 63-1 at 5-6; Dkt. No. 64-4 at
¶ 12. In support of that claim, Defendants submit an
affidavit from Rosanne DiPizio stating that while reviewing
Plaintiffs' summary judgment motion, she was
"reminded" that DiPizio Construction had withdrawn
its designation of the AGC/LRD as a bargaining agent.
See Dkt. No. 64-4 at ¶ 9. Defendants also
submit a letter stating that "DiPizio Construction
Company, Inc. hereby withdraws its' [sic] designation
from the AGC/LRD, multi-employer bargaining unit as
previously designated on 2/24/05 and 3/8/05." Dkt. No.
64-5 at 2. The letter is dated May 27, 2005, see
id., years before the AGC/LRD signed the 2009-2014 and
2014-2017 CBAs with Local No. 17, to which Plaintiffs claim
DiPizio Construction is bound, see Dkt. Nos. 68-2,
same day that Defendants responded to the summary judgment
motion, Defendants also cross-moved to amend their answer in
order to deny being bound to the CBAs. See Dkt. No.
63-1 at 4. Plaintiffs responded to Defendants'
cross-motion to amend, arguing that even if Defendants
withdrew AGC/LRD's bargaining authority, Defendants are
still bound to the CBAs. See Dkt. No. 68.
Standard of Review
may grant a motion for summary judgment only if it determines
that there is no genuine issue of material fact to be tried
and that the facts as to which there is no such issue warrant
judgment for the movant as a matter of law. See Chambers
v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994)
(citations omitted). When analyzing a summary judgment
motion, the court "'cannot try issues of fact; it
can only determine whether there are issues to be
tried.'" Id. at 36-37 (quotation and other
citation omitted). Moreover, it is well settled that a party
opposing a motion for summary judgment may not simply rely on
the assertions in its pleading. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P.
assessing the record to determine whether any such issues of
material fact exist, the court is required to resolve all
ambiguities and draw all reasonable inferences in favor of
the nonmoving party. See Chambers, 43 F.3d at 36
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)) (other citations omitted). Where the
non-movant either does not respond to the motion or fails to
dispute the movant's statement of material facts, the
court may not rely solely on the moving party's Rule 56.1
statement; rather, the court must be satisfied that the
citations to evidence in the record support the movant's
assertions. See Giannullo v. City of New York, 322
F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying
in the record the assertions in the motion for summary
judgment "would derogate the truth-finding functions of
the judicial process by substituting convenience for
judgment may be requested not only as to an entire case but
also as to a claim, defense, or part of a claim or
defense." Fed.R.Civ.P. 56(a) advisory committee's
note to 2010 amendment. Summary judgment may also be granted
against any part of the remedy sought by the opposing
party's claims. See Hamblin v. British Airways
PLC, 717 F.Supp.2d 303, 307 (E.D.N.Y. 2010).
Motion to Amend
party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so
requires." Fed.R.Civ.P. 15(a)(2). District Courts have
broad discretion to grant or deny an opportunity to amend.
See Foman v. Davis, 371 U.S. 178, 182 (1962). Under
Rule 15(a), a motion to amend a pleading should only be
denied, "if there is an 'apparent or declared reason
- such as undue delay, bad faith or dilatory motive . . .,
repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of the allowance of an amendment, [or] futility of
amendment.'" Dluhos v. Floating and Abandoned
Vessel Known as "New York", 162 F.3d 63, 69
(2d Cir. 1998) (quoting Foman v. Davis, 371 U.S.
178, 182 (1962)) (other citation omitted); accord
Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647,
653 n.6 (2d Cir. 1987) (citation omitted). An amendment of a
pleading is considered "futile" when the proposed
new claim would not withstand a motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure. See
Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d
Cir. 1991); see also Vasile v. Dean Witter Reynolds
Inc., 20 F.Supp.2d 465, 468 (E.D.N.Y. 1998),
aff'd, 205 F.3d 1327 (2d Cir. 2000).
The Collective Bargaining Agreements
their opposition to the motion for summary judgment and their
motion to amend, Defendants make three different arguments
regarding the applicability of the CBAs signed by the AGC/LRD
and the Unions. First, Defendants argue that DiPizio
Construction was never bound to the CBAs between the AGC/LRD
and the Unions because the AGC/LRD lacked bargaining
authority to bind DiPizio Construction to the CBAs.
See Dkt. No. 64 at 8-9. Second, even if the Court
finds that DiPizio Construction was bound to the CBAs,
DiPizio Construction should not be required to remit
contributions and deductions for work performed on certain
jobs that Defendants claim were not covered by the terms of
the CBA. See Id. at 9. Third, Defendants argue that
any dispute over the applicability of the CBAs is governed by
the arbitration clauses contained in the CBAs; therefore,
Plaintiffs' claims should be referred to arbitration.
See Id. at 10.
Withdrawal of Bargaining Authority
their complaint, Plaintiffs allege that "[a]t all times
relevant herein, Defendant Corporation was bound to"
both the 2009-2014 CBA with Local No. 17 and the 2012-2016
CBA with Local No. 463. Dkt. No. 1 at ¶¶ 24-25. In
their May 22, 2015 answer, Defendants admitted those
allegations. See Dkt. No. 16 at ¶ 1. Over a
year and a half later-after the close of discovery and after
the deadline for dispositive motions-Defendants now seek to
amend their answer in order to deny those and other
allegations. Defendants now claim that DiPizio Construction
was never bound to the CBAs with Local No. 17 because it
withdrew bargaining authority from the AGC/LRD by letter
dated May 27, 2005-years before the CBAs in question were
signed. Additionally, Defendants claim never to have
designated bargaining authority to the AGC/LRD with respect
to Local No. 463, and that they were therefore never bound to
any CBAs between the AGC/LRD and Local No. 463. Plaintiffs argue
that even if DiPizio Construction did not delegate bargaining
authority to the AGC/LRD, DiPizio Construction was still
bound to the CBAs because it adopted the CBAs through its
302(c)(5)(B) of the LMRA requires that payments to a trust
fund be made pursuant to a "written agreement with the
employer." 29 U.S.C. § 186(c)(5)(B). However,
"[s]ection 302(c)(5)(B) does not require that an
agreement be signed, only that it be 'written' and
set forth 'a detailed basis on which . . . payments are
to be made' to a trust fund. Accordingly, an unsigned,
written agreement satisfies Section 302(c)(5)(B)'s
'written agreement' requirement." Brown v.
C. Volante Corp., 194 F.3d 351, 355 (2d Cir. 1999)
(quoting 29 U.S.C. § 186(c)(5)(B)); see also
Bricklayers Local 21 of Ill. Apprenticeship & Training
Program v. Banner Restoration, Inc., 385 F.3d 761, 766
(7th Cir. 2004) ("We begin with the well-established
principle '"that a collective bargaining agreement
is not dependent on the reduction to writing of the
parties' intention to be bound, " . . . rather
"all that is required is conduct manifesting an
intention to be bound by the terms of an
agreement."'") (quoting Gariup v. Birchler
Ceiling & Interior Co., 777 F.2d 370, 373 (7th Cir.
1985)). Therefore, even if DiPizio Construction never signed
the CBAs, it can still be bound to the terms of the CBAs.
have looked to a number of factors in determining whether an
employer's conduct "manifested an intent to adopt,
or agree to, . . . unsigned CBAs." Brown, 194
F.3d at 355. Those factors include "payment of the wages
on the union scale, paying pension and welfare contributions,
submission of benefit reports, and accession to union
audits." New England Health Care Empls. Welfare Fund
v. iCARE Mgmt., LLC, 886 F.Supp.2d 82, 100 (D. Conn.
2012) (citing Brown, 194 F.3d at 355). In
Brown, the Second Circuit found that there was no
issue of material fact as to whether an employer had adopted
an unsigned CBA because the employer submitted monthly
remittance reports, cooperated with an audit, paid union
wages, and wrote a letter to the plaintiff funds
acknowledging "responsibility to the funds."
Brown, 194 F.3d at 354-55.
case, DiPizio Construction has similarly manifested its
intent to be bound to the CBAs with Local No. 17 and Local
No. 463. DiPizio Construction submitted to three separate
audits, see Dkt. Nos. 61-42, 61-43,  submitted
remittance reports, see Dkt. Nos. 61-35, 61-37,
61-38, and even paid a portion of the outstanding
contributions and deductions after this action was filed,
see Dkt. No. 65 at ¶¶ 23-24. Additionally,
DiPizio Construction signed multiple agreements evidencing
their intent to be bound to the CBAs. DiPizio Construction
signed memoranda of agreement with Local No. 463 in 2008 and
2012 modifying certain aspects of CBAs between the AGC/LRD
and Local No. 463. See Dkt. No. 61-19 at 38; Dkt.
No. 68-6 at 40. As for the CBA with Local No. 17, DiPizio
Construction signed a similar memorandum of understanding on
June 22, 2005-nearly a month after withdrawing bargaining
authority from the AGC/LRD-modifying the CBA between the
AGC/LRD and Local No. 17. See Dkt. No. 68-1.
Finally, and perhaps most tellingly, Defendants admitted in
their answer that DiPizio Construction was bound to the CBAs.
See Dkt. No. 16 at ¶ 1. Although they now seek
to amend their answer and assert that DiPizio Construction
was never bound to the CBAs, Defendants were, at the very
least, under the impression that DiPizio Construction was
bound to the CBAs when Defendants filed their answer.
According to the evidence before the Court, DiPizio
Construction has, at all times prior to Defendants'
opposition to the motion for summary judgment, operated as
though it were bound to the CBAs.
there is no genuine issue of material fact as to whether
DiPizio Construction adopted the CBAs with the Unions,
Defendants' motion to amend their answer in order to deny
being bound to the CBAs is denied as futile.
"Heavy" and "Highway" Jobs
argue that, even if DiPizio Construction was bound to the
CBAs, certain jobs were not covered by the 2014-2017 CBA
between Local No. 17 and the AGC/LRD, which contains the
following language: "This agreement shall apply to Heavy
and Highway construction and building site work but shall not
apply to the actual building, foundations, structural portion
and interiors of buildings that are normally covered by
Building agreements in the geographical area of this
agreement." See Dkt. No. 63-1 at 7; Dkt. No.
68-3 at 6.
to Defendants, some portion of the work performed after the
complaint was filed was not heavy, highway, or building site
work; instead, it was building work that is not covered by
the CBA with Local No. 17. See Dkt. No. 64 at 9-10.
Defendants identify four particular projects or categories of
projects that they argue are not subject to the CBA:
"Clearview, " "Gabes, " "Small Jobs:
Misc., " and "Shop." See Dkt. No.
63-5 at ¶¶ 28-29. But Defendants provide no
documentary evidence indicating the nature of the work that
was done on those jobs. They simply attach an affidavit from
Rosanne DiPizio stating in conclusory terms that the work was
not covered by the CBA. See id.
reply, Plaintiffs provide extensive evidence contradicting
Defendants' claim. See Dkt. No. 68. First,
Plaintiffs provide affidavits from four different members of
Local No. 17 who claim to have worked on the jobs or
categories of jobs in question. See Dkt. Nos. 68-12,
68-13, 68-14, 68-15. Each affidavit states that the union
members were paid union wages and that they were never given
any indication that they would not receive their full
employee benefits package. See Id. Furthermore, the
affidavits actually describe the work that was performed and,
in every instance, it was the type of work that is covered by
the CBA. See Id. Second, according to Local No.
17's business manager, DiPizio Construction deducted
union dues from the employees' wages in accordance with
the CBA. See Dkt. No. 68 at ¶ 22. Third,
Plaintiffs provide an application for a highway work permit
signed by Bernard DiPizio that describes the work that
DiPizio Construction proposed to do on the Gabe job.
See Dkt. No. 68-11 at 12. The categories of proposed
work were "pavement, " "storm drainage and
grading, " and "erosion and sedimentation
control." Id. Based on the description of the
work included in the application, it appears that the work
done on the Gabe job was covered by the CBA.
DiPizio's brief, conclusory statement is not sufficient
to create an issue of fact as to whether the jobs in question
were covered by the CBAs. See McKenzie Eng'g Co. v.
N.L.R.B., 182 F.3d 622, 626 (8th Cir. 1999) (holding
that there was no issue of fact as to whether a specific job
was covered under a "Highway and Heavy" provision
where the employer deducted union dues ...