United States District Court, S.D. New York
TRUSTEES FOR THE MASON TENDERS DISTRICT COUNCIL WELFARE FUND, PENSION FUND, ANNUITY FUND, and TRAINING PROGRAM FUND, and JOHN J. VIRGA, in his fiduciary capacity as Director; and ROBERT BONANZA, as Business Manager of the MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK, Plaintiffs,
GRAHAM RESTORATION CO. INC., Defendant.
OPINION AND ORDER
ANALISA TORRES UNITED STATES DISTRICT JUDGE
27, 2017, Plaintiffs filed a petition to confirm an
arbitration award of $34, 659.96. ECF No. 1. The Court
ordered that Plaintiffs proceed by motion for summary
judgment. ECF No. 6. On August 4, 2017, Plaintiffs filed then
motion for summary judgment. ECF No. 8. For the reasons
stated below, Plaintiffs' motion is GRANTED.
times relevant to this action. Defendant Graham Restoration
Co. Inc. ("Graham"), was a party to a collective
bargaining agreement (the "CBA") with Plaintiffs.
See Savci Decl.. Ex. 2, ECF No. 9. Article X of the
CBA provides for the parties to resolve disputes through
grievance procedures. Id. at 27. For any dispute not
resolved through these procedures, "the Union may appeal
the dispute to arbitration." Id.
6, 2016, Plaintiffs submitted a Notice and Demand for
Arbitration to Defendant, requesting "arbitration on the
issue of whether it had made contributions and other monies
to the Funds covering work performed by its employees."
Savci Decl. ¶ 17. On June 17, 2016, the arbitrator sent
an email, registered letter, and first class letter to the
parties, scheduling an arbitration hearing on July 12, 2016
at Plaintiffs' office in New York City. Savci Decl., Ex.
1, at 1-2 ("Arbitration Op."). On July 12, 2016,
Defendant failed to appear and thereby defaulted.
Id. at 2. After reviewing Plaintiffs' exhibits,
on July 27, 2016, the arbitrator awarded $34, 659.96 to
Plaintiffs for fringe benefits, dues, and PAC contributions
owed to Plaintiffs, as well as fees, interest, and damages.
Id. at 3. Specifically, the arbitrator awarded (1)
$27, 144.78 for delinquent contributions for fringes, (2) $4,
177.68 for delinquent contributions for dues and PAC, (3)
$612.50 in interest as of July 8, 2016, (4) $1, 225.00 in
damages, (5) $500.00 in legal fees, and (6) $1, 000.00 in
pro-rated arbitrator fees. Id.
year later, on July 27, 2017, Plaintiffs filed a petition to
confirm the arbitration award. ECF No. 1. On August 24, 2017,
Defendant filed a declaration in opposition explaining that
Defendant defaulted in the arbitration because it had already
agreed to pay Plaintiffs. DiCaterino Decl., ¶¶ 3-8,
ECF No. 16. Defendant further stated that it had paid $20,
000 to the Mason Tenders District Council Trust Fund and that
it opposes Plaintiffs' motion only to the extent that the
judgment entered in Plaintiffs' favor should be reduced
by $20, 000-that is, to $14, 659.96. Id. ¶ 9.
concede that Defendant has made $20, 000 in payments, Joint
Letter, at 2, ECF No. 22, but maintain that Defendant's
payment should not be credited because Defendant has been,
admittedly, id. at 1, “unwilling to provide
remittance reports as to how this $20, 000.00 is to be
directed among its employees as required at Article 16,
Section 15(a) and (j) of the collective bargaining agreement,
” id. at 2. Defendant responds that
Plaintiffs' argument is “irrelevant, ” as
Plaintiffs “can allocate the money anyway
[sic] it desires.” Id. at 1.
Standard of Review
judgment is appropriate when the record shows that there is
no genuine dispute as to any material fact and the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A dispute is genuine “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248. In ruling on a
motion for summary judgment, all evidence must be viewed in
the light most favorable to the non-moving party, Overton
v. N.Y. State Div. of Military & Naval Affairs, 373
F.3d 83, 89 (2d Cir. 2004), and the court must “resolve
all ambiguities and draw all permissible factual inferences
in favor of the party against whom summary judgment is
sought, ” Sec. Ins. Co. of Hartford v. Old Dominion
Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
Confirmation of Arbitration Award
parties agree both that Defendant owed Plaintiffs $34, 659.96
and that Defendant has made a payment of $20, 000.00 to
Plaintiffs, there is only one dispute before the Court. The
question is whether Defendant's partial compliance
without providing remittance reports should affect the
Court's judgment confirming the arbitration award-that
is, whether the partial compliance should reduce the judgment
by $20, 000.00 to $14, 659.96. Plaintiffs characterize
Defendant's attempt to reduce the judgment as an attempt
to modify the award, which Plaintiffs argue is time-barred by
New York CPLR § 7511.
Court declines to reach the parties' only remaining
dispute. “A district court confirming an arbitration
award does little more than give the award the force of a
court order. At the confirmation stage, the court is not
required to consider the subsequent question of
compliance.” Zeiler v. Deitsch, 500 F.3d 157,
169 (2d Cir. 2007). In the context of a petition to confirm
an arbitration award where, as here, the non-movant has not
contested the award, the Court's obligation is only to
“examin[e] the moving party's submission to
determine if it has met its burden of demonstrating that no
material issue of fact remains for trial.” D.H.
Blair & Co. v. Gottdiener, 462 F.3d 95, 110 (2d Cir.
2006) (citation omitted). This burden is minimal. Review of
an arbitral award is “severely limited” so as not
to frustrate the federal policy favoring arbitration.
Salzman v. KCD Fin., Inc., No. 11 Civ. 5865, 2011 WL
6778499, at *2 (S.D.N.Y. Dec. 21, 2011). An award should be
confirmed so long as there is at least “a barely
colorable justification for the outcome reached by the
arbitrator.” D.H. Blair & Co., 462 F.3d
at 110 (internal quotation marks omitted).
the arbitrator's decision provides more than “a
barely colorable justification.” Id. After
holding a hearing and considering Plaintiffs' evidence,
the arbitrator issued the award. Arbitration Op., at 2-3.
There is no indication that the arbitrator acted arbitrarily
or exceeded the scope of his authority in entering the award.
And Defendant has failed to raise any possible defenses to
the confirmation of the award. See D.H. Blair &
Co., 462 F.3d at 112 (“Because the Broker's
motion to confirm was unopposed, confirmation ...