Babino v. Gesualdi

278 F.Supp.3d 562

Michael BABINO, Individually, Plaintiff,

v.Thomas GESUALDI, Joseph Ferrara, Sr., Louis Bisignano, Frank Finkel, Anthony D'Aquila, Marc Herbst, Michael O'Toole, Denise Richardson, Michael Bourgal, Thomas Corbett, as Trustees and Fiduciaries of the Local 282 Pension Trust Fund, Local 282Welfare Trust Fund, Local 282 Annuity Trust Fund and the Local 282 Vacation & Sick Leave Fund, Thomas J. Ryan, Administrator, Defendants.

15–cv–3575 (ADS)(AKT)

United States District Court, E.D. New York.

Signed October 4, 2017

Dandeneau & Lott, Attorneys for the Plaintiff, 425 Broadhollow Road, Suite 418, Melville, NY 11747, By: Gerald V. Dandeneau, Esq., of Counsel

Cohen Weiss & Simon, Attorneys for the Defendants, 330 West 42nd Street, New York, NY 10036, By: Tzvi N. Mackson, Esq., Michael Seth Adler, Esq., of Counsel

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge:

This action was brought by the Plaintiff Michael Babino (the "Plaintiff") against the Defendants Thomas Gesualdi, Joseph Ferrara, Sr., Louis Bisignano, Frank Finkel, Anthony D'Aquila, Marc Herbst, Michael O'Toole, Denise Richardson, Michael Bourgal, and Thomas Corbett (collectively, the "Trustees"), as trustees and fiduciaries of the Local 282 Pension Trust Fund (the "Pension Fund"), the Local 282 Welfare Trust Fund (the "Welfare Fund"), the Local 282 Annuity Trust Fund (the "Annuity Fund") and the Local 282 Vacation & Sick Leave Trust Fund (the "Vacation Fund," collectively with the Pension Fund, the Welfare Fund, and the Annuity Fund, the "Funds"), and Thomas J. Ryan, Administrator (collectively, with the Funds and the Trustees, the "Defendants"), seeking recovery of pension, welfare, annuity, and vacation benefits allegedly due pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA").

Presently before the Court are cross-motions from the Plaintiff and the Defendants for summary judgment pursuant to Federal Rule of Civil Procedure (" FED. R. CIV. P. " or "Rule") 56, as well as a motion by the Plaintiff to amend his complaint pursuant to Rule 15. For the following reasons, the Plaintiff's motions are denied in their entirety, and the Defendants' motion is granted in its entirety.

I. BACKGROUND

A. The Relevant Facts

The majority of the facts in this case are undisputed. The following facts are drawn from the Plaintiff's response to the Defendants' 56.1 Statement (the "SMF"), as well as the Plaintiff's supplemental 56.1 Statement.

1. The Funds

The Funds are "employee benefits plans" and "multiemployer plans" as defined by ERISA. The Funds provide various benefits to covered employees of employers who sign collective bargaining agreements with Building Material Teamsters Local 282, International Brotherhood of Teamsters ("Local 282"). Covered employees receive pension benefits, welfare plans, vacation benefits, and medical benefits from the Funds. The Funds are jointly administered by the Trustees.

The Funds are maintained pursuant to a Restated Agreement and Declaration of Trust (the "Trust Agreement"), for the purposes of collecting and receiving contributions from employers bound by collective bargaining agreements with Local 282. The Funds incorporate by reference the Trust Agreement, which require employers to contribute monies to the Funds on behalf of those employees who perform work covered by collective bargaining agreements.

Only those employees who perform covered work qualify for benefits. As demonstrated below, the Funds' documents do not clearly identify "covered work," but instead refer to the collective bargaining agreements for what work is covered.

The Trust Agreement requires employers to submit reports ("remittance reports") to the Funds that set forth the number of hours worked by covered employees. In order to verify the accuracy of these remittance reports, the Funds conduct regular audits of employers, and may conduct an audit at any time pursuant to the Trust Agreement.

In addition to the remittance reports, the Funds also analyze "Hired Truck Reports," which are referred to as "shop steward reports," or "steward reports" in the industry. These steward reports are filled out each week by two different types of stewards: barn stewards, and on-site stewards. Barn stewards work for the truck driver's employer, and work out of the "barn" where the truck drivers typically start their day. On-site stewards work for the company for the company for whom the truck driver is performing a service. Both stewards are appointed by the Union, and all steward reports are sent to the Fund's office.

2. Oakfield Leasing, Inc.

Oakfield Leasing, Inc. ("Oakfield") provided trucking services to customers. The Plaintiff's mother owned Oakfield until 2010, after which time Babino's father owned it.

Oakfield was a party to two collective bargaining agreements with Local 282 during the relevant period—the New York City Heavy Construction & Excavating Contract (the "Heavy CBA"), in effect from July 1, 1993 through June 30, 2006; and the Metropolitan Trucker's Association and Independent Trucker's Contract, in effect from July 1, 2006 through June 30, 2012 (the "MTA CBAs") (collectively, the "CBAs").

The Heavy CBAs list the following employees as covered by the agreement: automobile chauffeurs; Euclid and turnpull operators; and drivers of six wheeler tractorsand trailers, heavy equipment trailers, and boom trucks. (SMF ¶¶ 34–36). The MTA CBAs each state that "[t]he terms and conditions of this Agreement shall apply to the Employees of the Employer on any day they drive a dump truck, flatbed trailer, or flo-boy." (SMF ¶ 38). The Plaintiff claims that "covered work" encompasses more than just driving, and cites to affidavits from two individuals, discussed below.

Between July 1995 and July 2012, Oakfield submitted remittance reports to the Funds that indicated that the Plaintiff worked for Oakfield. The remittance reports did not specify the type of work in which the Plaintiff engaged.

3. Coral Industries, Inc. and the Initial Lawsuit

The Plaintiff was the owner, sole officer, and only shareholder of Coral Industries, Inc. ("Coral"). Coral also provided trucking services to customers.

At some point in the late 200s, the Funds sought to audit both Oakfield and Coral (the "Companies") because of multiple perceived connections between the Companies. Namely, the Funds sought to determine whether Oakfield had reported all hours of covered employees and paid the required corresponding contributions. The Companies failed to submit to the audit, and so in 2011, the Funds sued the Companies and the Plaintiff in the United States District Court for the Eastern District of New York. The case, Ferrara et al. v. Oakfield Leasing Inc. et al. , 11–cv–408 (ADS)(WDW) (the "Oakfield Lawsuit"), was assigned to this Court.

On November 9, 2012, the Court granted summary judgment to the Funds. Ferrara v. Oakfield Leasing Inc. , 904 F.Supp.2d 249 (E.D.N.Y. 2012) (the " 2012 Decision"). The Court found that Coral and Oakfield were a single employer; ordered the Companies to submit to an audit; and found that the Plaintiff was jointly and severally liable with the Companies for the Companies' obligations to the Funds. Relevant here, the Court found that Coral was bound by the CBAs, and that Coral therefore owed monies to the funds for covered work done by Coral's employees.

The Trustees audited Coral and found that Coral owed $875, 729.20 in unpaid contributions for Coral drivers covered by the CBAs. The Court awarded the Funds those unpaid contributions. Ferrara v. Oakfield Leasing Inc. , No. 11-CV-408 ADS WDW, 2013 WL 1207066, at *2 (E.D.N.Y. Mar. 23, 2013) (the " 2013 Decision").

4. The Funds' Evidence Purportedly Supporting Their Decision To Terminate His Benefits

On January 28, 2013, the Funds received a letter allegedly sent by Anthony Bassolino ("Bassolino") and purportedly signed by five other employees of the Companies (the "Employees' Letter"). Bassolino stated that he drove for Oakfield beginning in October 2005, and worked as a barn steward for Oakfield from August 2009 until July 2012. As a barn steward, Bassolino was given the task of entering time sheets for drivers to track when Oakfield employees engaged in covered work. The Funds used these time sheets to verify covered work.

Bassolino claimed that the Plaintiff ran the daily operations at Oakfield while Bassolino worked there, and the Plaintiff told him to list the Plaintiff on three 8–hour tours per week. Yet Bassolino said that he never saw the Plaintiff drive a truck after 2007, and said that he could "confirm with certainty [that] he did not drive a regular tour while [Bassolino] was [s]tewar[d]." (Def.'s Ex Bulding BB). Bassolino had believed that the Plaintiff was one of the owners of Oakfield, but once he discovered that he was not, he sought to bring the matter to the Funds' attention. The other five signatures purportedly belong to John Minutillo, Joseph Mollin, Michael Zizzo, Jean Policard, and Anthony Zaffuto, each of whom worked for either Oakfield or Coral. Joseph Mollin worked for both companies.

While the Plaintiff does not dispute the existence of this letter, he disputes the veracity of the statements made in the letter.

In a letter dated January 24, 2014, the attorneys for the Defendants informed the Trustees that during discovery in the Oakfield Lawsuit, they had spoken to, Anthony Zaffuto ("Zaffuto"), one of the signatories to the Employees' Letter. Zaffuto had allegedly told the Defendants' attorneys in a telephone interview that the Plaintiff would take Zaffuto's driving tickets and write his name over Zaffuto's, so that the Plaintiff could maintain coverage under the Funds.

The Plaintiff alleges that Zaffuto and Babino were biased because they were both plaintiffs in an action brought against the Plaintiff and the Companies for violations of the Fair Labor Standards Act. The Plaintiff also points out that Bassolino received cash wages when he worked for Coral.

Also...