COMPLAINT against Precision Testing & Blancing, Inc., Fred Bromberg, Louis Bromberg. (Filing Fee $ 350.00, Receipt Number 613867)Document filed by National Stabilization Agreement of the Sheet Metal Industry Fund, Sheet Metal Workers National Pension Fund, National Energy Management Institute Committee for the Sheet Metal and Air Conditioning Industry, Sheet Metal Occupational Health Institue Trust, International Training Institute for the Sheet Metal and Air Conditioning Industry.(jpo) Additional attachment(s) added on 5/8/2007 (Becerra, Maribel).
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Page 1 Jeffrey S. Dubin JD-0446)
Attorney for Plaintiffs
464 New York Avenue
Suite 100
Huntington, NY 11743
(631) 351-0300
(631) 351-1900 FAX
DubinJS@cs.com
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
cere eee tec ecenerecrecnamecaceerataccecsacccncraccars X CIVIL ACTION NO.
SHEET METAL WORKERS’ NATIONAL 07 cv 03530 (HB/DCF)
PENSION FUND; NATIONAL ENERGY
MANAGEMENT INSTITUTE COMMITTEE
FOR THE SHEET METAL AND AIR
CONDITIONING INDUSTRY; SHEET METAL
OCCUPATIONAL HEALTH INSTITUTE COMPLAINT
TRUST; INTERNATIONAL TRAINING
INSTITUTE FOR THE SHEET METAL AND
AIR CONDITIONING INDUSTRY; and
NATIONAL STABILIZATION AGREEMENT
OF THE SHEET METAL INDUSTRY FUND,
Plaintiffs,
-against-
PRECISION TESTING & BALANCING, INC. , and
FRED BROMBERG, as an individual, and
LOUIS BROMBERG, as an individual,
Defendants.
Plaintiffs, complaining of the defendants, by their attorney, JEFFREY S. DUBIN,
allege as follows:
1. This is an action by five employee benefit plans to enforce the obligations of
the defendants to make contributions to these plans and for interest, additional interest,Page 2 reasonable attorney's fees and costs of action. This action also seeks to reclaim property of
the plans that has been converted by the defendants and to remedy breaches of fiduciary
obligations and prohibited transactions of the defendants. The jurisdiction of this Court is
invoked under Section 502 of the Employee Retirement Income Security Act of 1974
’ (ERISA), as amended, 29 U.S.C. § 1132.
2. Sheet Metal Workers’ National Pension Fund (“Pension Fund); National
Energy Management Institute Committee For The Sheet Metal and Air Conditioning
Industry (“NEMIC”); Sheet Metal Occupational Health Institute Trust (“SMOHIT”);
International Training Institute for the Sheet Metal and Air Conditioning Industry
(“ITI”); and National Stabilization Agreement of the Sheet Metal Industry Fund
(“SASMI”), are and were employee benefit plans within the meaning of Section 3 (3) of
ERISA, 29 U.S.C. § 1002 (3).
3. Upon information and belief, the defendant PRECISION TESTING &
BALANCING, INC. (“corporate defendant”) is and was a corporation, incorporated
under the laws of the State of New York. Corporate defendant is and was an employer
within the meaning of Section 3(5) of ERISA, 29 U.S.C. § 1002 (5).
4. At all times relevant hereto, corporate defendant has been doing business in
this district within the meaning of 28 U.S.C. § 1391.
5. Venue is proper in this district pursuant to 29 U.S.C. § 1132 (e) (2).
6. Heretofore, corporate defendant entered into contracts which, inter alia,
Page Number -2-Page 3 Case 1:07-cv-03530-HB Document 1 Filed 05/02/2007 Page 3of 11
provided for contributions by corporate defendant to the Pension Fund and NEMIC, and
SMOHIT, and ITI and SASMI (all of which are hereinafter called the “Benefits Funds”)
for certain hours worked by participants employed by said corporate defendant. The
Benefits Funds are third party beneficiaries of said contract.
7. Said contracts incorporate by reference the provisions of the Agreements
and Declarations of Trust of the Benefits Funds. The contracts further provide that said
Agreements and Declarations of Trust and the interpretations of these documents by the
respective Boards of Trustees of the Benefits Funds are binding upon the defendants.
8, Said Contracts, inter alia, provide that “contributions are considered assets
of the respective Funds and title to all monies paid into and/or due and owing said Funds
shall be vested in and remain exclusively in the Trustees of the respective Funds. The
Employer shall have no legal or equitable right, title or interest in or to any sum paid by or
due from the Employer.”
9. Pursuant to said contracts, corporate defendant employed persons who were
participants in the Benefits Funds within the meaning of Section 3(7) of ERISA, 29
U.S.C. § 1002(7), while said contracts were in full force and effect.
10. Pursuant to said contracts, corporate defendant is required to make
contributions to plaintiffs for the period March 1, 2000 to April 30, 2007.
11. Defendant FRED BROMBERG (“first individual defendant”) is a principal
owner of corporate defendant. Upon information and belief, the first individual defendant
Page Number -3-Page 4 Case 1:07-cv-03530-HB Document 1 Filed 05/02/2007 Page 4of 11
exercises control over the activities and operations of corporate defendant and determines
whether or not corporate defendant makes contributions to the Benefits Funds.
12. Defendant LOUIS BROMBERG (“second individual defendant”) is a
principal owner of corporate defendant. Upon information and belief, the second
individual defendant exercises control over the activities and operations of corporate
defendant and determines whether or not corporate defendant makes contributions to the
Benefits Funds.
AS AND FOR A FIRST CLAIM FOR RELIEF
ON BEHALF OF PLAINTIFF PENSION FUND
13. Plaintiff Pension Fund repeats and realleges each and every allegation set
forth in paragraphs 1 through 12.
14. Corporate defendant has failed and refused and continues to refuse to pay to
plaintiff the amounts owed to plaintiff in breach of the terms of the Agreement and
Declaration of Trust of the Pension Fund and in violation of the provisions of Section 515
of ERISA, 29 U.S.C. § 1145; upon information and belief, said amounts are as set forth
hereinafter, no part of which has been paid, although duly demanded.
AS AND FOR A SECOND CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF NEMIC
15. Plaintiff NEMIC repeats and realleges each and every allegation set forth in
paragraphs 1 through 12.
16. Corporate defendant has failed and refused and continues to refuse to pay
Page Number -4-Page 5 Case 1:07-cv-03530-HB Document 1 Filed 05/02/2007 Page 5of 11
to plaintiff the amounts owed to plaintiff in breach of the terms of the Agreement and
Declaration of Trust of NEMIC and in violation of the provisions of Section 515 of
ERISA, 29 U.S.C. § 1145; upon information and belief, said amounts are as set forth
hereinafter, no part of which has been paid although duly demanded.
AS AND FOR A THIRD CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF SMOHIT
17. Plaintiff SMOHIT repeats and realleges each and every allegation set forth
in paragraphs 1 through 12.
18. Corporate defendant has failed and refused and continues to refuse to pay
to plaintiff the amounts owed to plaintiff in breach of the terms of the Agreement and
Declaration of Trust of SMOHIT and in violation of the provisions of Section 515 of
ERISA, 29 U.S.C. § 1145; upon information and belief, said amounts are as set forth
hereinafter, no part of which has been paid although duly demanded.
AS AND FOR A FOURTH CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF IT]
19. Plaintiff ITI repeats and realleges each and every allegation set forth in
paragraphs | through 12.
20. Corporate defendant has failed and refused and continues to refuse to pay
to plaintiff the amounts owed to plaintiff in breach of the terms of the Agreement and
Declaration of Trust of ITI and in violation of the provisions of Section 515 of ERISA, 29
U.S.C. § 1145; upon information and belief, said amounts are as set forth hereinafter, no
Page Number -5-Page 6 part of which has been paid although duly demanded.
AS AND FOR A FIFTH CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF SASMI
21. — Plaintiff SASMI repeats and realleges each and every allegation set forth in
paragraphs 1 through 12.
22. Corporate defendant has failed and refused and continues to refuse to pay
to plaintiff the amounts owed to plaintiff in breach of the terms of the Agreement and
Declaration of Trust of SASMI and in violation of the provisions of Section 515 of
ERISA, 29 U.S.C. § 1145; upon information and belief, said amounts are as set forth
hereinafter, no part of which has been paid although duly demanded.
AS AND FOR A SIXTH CLAIM FOR
RELIEF ON BEHALF OF THE BENEFITS FUNDS
23. Plaintiffs Benefits Funds repeat and reallege each and every allegation set
forth in paragraphs 1 through 22.
24. By failing and refusing to turn over to the Benefits Funds the contributions,
which are the property of the Benefits Funds, the corporate defendant and the first
individual defendant have converted the property of the Benefits Funds.
25. Said defendants must singly and jointly disgorge to the Benefits Funds said
converted assets in the amounts as are set forth hereinafter, no part of which has been
paid although duly demanded.
Page Number -6-Page 7 AS AND FOR A SEVENTH CLAIM FOR
RELIEF ON BEHALF OF THE BENEFITS FUNDS
26. Plaintiffs Benefits Funds repeat and reallege each and every allegation set
forth in paragraphs | through 22.
27. — By failing and refusing to turn over to the Benefits Funds the contributions,
which are the property of the Benefits Funds, the corporate defendant and the second
individual defendant have converted the property of the Benefits Funds.
28. Said defendants must singly and jointly disgorge to the Benefits Funds said
converted assets in the amounts as are set forth hereinafter, no part of which has been
paid although duly demanded.
AS AND FOR A EIGHTH CLAIM FOR
RELIEF ON BEHALF OF THE BENEFITS FUNDS
29. Plaintiffs Benefits Funds repeat and reallege each and every allegation set
forth on paragraphs 1 through 28.
30. By exercising control over assets belonging to the Benefits Funds, the
corporate defendant and the first individual defendant are fiduciaries with respect to the
Benefits Funds within the meaning of Section 3(21) of ERISA, 29 U.S.C. § 1002(21) (A).
31. By retaining assets of the Benefits Funds for their own use, said fiduciaries
have breached the fiduciary obligations owed to the Benefits Funds and committed
prohibited transactions within the meaning of Part 4 of Subchapter I of Chapter 18 of
Title 29 of the United States Code, 29 U.S.C. § 1101 et seg.
Page Number -7-Page 8 32. Said defendants are singly and jointly and individually liable to make
restitution to the Benefits Funds in the amounts as are set forth hereinafter, no part of
which has been paid although duly demanded.
AS AND FOR A NINTH CLAIM FOR
RELIEF ON BEHALF OF THE BENEFITS FUNDS
33. Plaintiffs Benefits Funds repeat and reallege each and every allegation set
forth on paragraphs 1 through 28.
34. By exercising control over assets belonging to the Benefits Funds, the
corporate defendant and the second individual defendant are fiduciaries with respect to
the Benefits Funds within the meaning of Section 3(21) of ERISA, 29 U.S.C. §
1002 (21) (A).
35. By retaining assets of the Benefits Funds for their own use, said fiduciaries
have breached the fiduciary obligations owed to the Benefits Funds and committed
prohibited transactions within the meaning of Part 4 of Subchapter I of Chapter 18 of
Title 29 of the United States Code, 29 U.S.C. § 1101 et seq.
36. Said defendants are singly and jointly and individually liable to make
restitution to the Benefits Funds in the amounts as are set forth hereinafter, no part of
which has been paid although duly demanded.
WHEREFORE, plaintiffs demand judgment in accordance with ERISA Section
502 (g) (2), 29 U.S.C. § 1132(g) (2):
Page Number -8-Page 9 lL. On the First Claim for Relief in favor of plaintiff Pension Fund and
against corporate defendant in the amount of $71,789.16.
2. On the Second Claim for Relief in favor of plaintiff NEMIC and
against corporate defendant in the amount of $306.05.
3, On the Third Claim for Relief in favor of plaintiff SMOHIT and
against corporate defendant in the amount of $204.04.
4. On the Fourth Claim for Relief in favor of plaintiff ITI and against
corporate defendant in the amount of $1,211.67.
5. On the Fifth Claim for Relief in favor of plaintiff SASMI and against
corporate defendant in the amount of $25,264.42.
6. In accordance with Section 502(g) of ERISA, 29 U.S.C. §
1132(g)(2), awarding plaintiffs on the foregoing claims for relief against corporate
defendant:
a. interest of 12% on said unpaid contributions pursuant to
ERISA Section 502 (g)(2)(B) and (E), 29 U.S.C. §§ 1132 (g) (2) (B) and (E) from the first
day of the month when payment was due, to the date when payment is made.
b. additional interest of 20% on said unpaid contributions
pursuant to ERISA Section 502 (g)(2)(C) and (E), 29 U.S.C. $§ 1132 (g)(2)(C) and (E).
c. reasonable attorneys fees and costs of the action pursuant to
Section 502 (g)(2)(D) of ERISA, 29 U.S.C. § 1132(g) (2) (D).
Page Number -9-Page 10 7. On the Sixth Claim for Relief in favor of plaintiffs Benefits Funds
and against corporate defendant and first individual defendant, jointly and severally, in
the amount of $98,775.34, plus interest and costs.
8, On the Seventh Claim for Relief in favor of plaintiffs Benefits Funds
and against corporate defendant and second individual defendant, jointly and severally, in
the amount of $98,775.34, plus interest and costs.
9, On the Eighth Claim for Relief in favor of plaintiffs Benefits Funds
and against corporate defendant and first individual defendant, jointly and severally:
a. in the amount of $98,775.34;
b. plus reasonable attorney’s fees and costs pursuant to Section
502 (g)(1) of ERISA, 29 U.S.C. § 1132(g) (1);
C. Plus interest.
10. On the Ninth Claim for Relief in favor of plaintiffs Benefits Funds
and against corporate defendant and second individual defendant, jointly and severally:
a. in the amount of $98,775.34;
b. plus reasonable attorney’s fees and costs pursuant to Section
502(g)(1) of ERISA, 29 U.S.C. § 1132 (g) (1);
C. Plus interest,
AND, for such other, further and different relief under ERISA, as this Court deems
appropriate.
Page Number - 10-Page 11 Dated: May 1, 2007
Jeffrey S. Dubin D-0446)
Attorney for Plaintiffs
464 New York Avenue
Suite 100
Huntington, NY 11743
(631) 351-0300
(631) 351-1900 FAX
DubinJS@cs.com
To: Defendants (Fed.R.Civ.P. § 4)
United States District Court (Fed.R.Civ.P. § 3)
Secretary of Labor-by Cert. Mail (29 U.S.C. § 1132 (h)
(RR#: 7006 2150 0004 1684 8631)
Secretary of Treas.-by Cert. Mail (29 U.S.C. § 1132 (h)
(RR#: 7006 2150 0004 1684 8624)
Page Number -11-
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:07-cv-03530-HB Document 1 Filed 05/02/2007 + Page 1 of 11
Jeffrey S. Dubin JD-0446)
Attorney for Plaintiffs
464 New York Avenue
Suite 100
Huntington, NY 11743
(631) 351-0300
(631) 351-1900 FAX
DubinJS@cs.com
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
cere eee tec ecenerecrecnamecaceerataccecsacccncraccars X CIVIL ACTION NO.
SHEET METAL WORKERS’ NATIONAL 07 cv 03530 (HB/DCF)
PENSION FUND; NATIONAL ENERGY
MANAGEMENT INSTITUTE COMMITTEE
FOR THE SHEET METAL AND AIR
CONDITIONING INDUSTRY; SHEET METAL
OCCUPATIONAL HEALTH INSTITUTE COMPLAINT
TRUST; INTERNATIONAL TRAINING
INSTITUTE FOR THE SHEET METAL AND
AIR CONDITIONING INDUSTRY; and
NATIONAL STABILIZATION AGREEMENT
OF THE SHEET METAL INDUSTRY FUND,
Plaintiffs,
-against-
PRECISION TESTING & BALANCING, INC. , and
FRED BROMBERG, as an individual, and
LOUIS BROMBERG, as an individual,
Defendants.
Plaintiffs, complaining of the defendants, by their attorney, JEFFREY S. DUBIN,
allege as follows:
1. This is an action by five employee benefit plans to enforce the obligations of
the defendants to make contributions to these plans and for interest, additional interest,
PDF Page 3
Case 1:07-cv-03530-HB Document 1 Filed 05/02/2007 Page 2 of 11
reasonable attorney's fees and costs of action. This action also seeks to reclaim property of
the plans that has been converted by the defendants and to remedy breaches of fiduciary
obligations and prohibited transactions of the defendants. The jurisdiction of this Court is
invoked under Section 502 of the Employee Retirement Income Security Act of 1974
’ (ERISA), as amended, 29 U.S.C. § 1132.
2. Sheet Metal Workers’ National Pension Fund (“Pension Fund); National
Energy Management Institute Committee For The Sheet Metal and Air Conditioning
Industry (“NEMIC”); Sheet Metal Occupational Health Institute Trust (“SMOHIT”);
International Training Institute for the Sheet Metal and Air Conditioning Industry
(“ITI”); and National Stabilization Agreement of the Sheet Metal Industry Fund
(“SASMI”), are and were employee benefit plans within the meaning of Section 3 (3) of
ERISA, 29 U.S.C. § 1002 (3).
3. Upon information and belief, the defendant PRECISION TESTING &
BALANCING, INC. (“corporate defendant”) is and was a corporation, incorporated
under the laws of the State of New York. Corporate defendant is and was an employer
within the meaning of Section 3(5) of ERISA, 29 U.S.C. § 1002 (5).
4. At all times relevant hereto, corporate defendant has been doing business in
this district within the meaning of 28 U.S.C. § 1391.
5. Venue is proper in this district pursuant to 29 U.S.C. § 1132 (e) (2).
6. Heretofore, corporate defendant entered into contracts which, inter alia,
Page Number -2-
PDF Page 4
Case 1:07-cv-03530-HB Document 1 Filed 05/02/2007 Page 3of 11
provided for contributions by corporate defendant to the Pension Fund and NEMIC, and
SMOHIT, and ITI and SASMI (all of which are hereinafter called the “Benefits Funds”)
for certain hours worked by participants employed by said corporate defendant. The
Benefits Funds are third party beneficiaries of said contract.
7. Said contracts incorporate by reference the provisions of the Agreements
and Declarations of Trust of the Benefits Funds. The contracts further provide that said
Agreements and Declarations of Trust and the interpretations of these documents by the
respective Boards of Trustees of the Benefits Funds are binding upon the defendants.
8, Said Contracts, inter alia, provide that “contributions are considered assets
of the respective Funds and title to all monies paid into and/or due and owing said Funds
shall be vested in and remain exclusively in the Trustees of the respective Funds. The
Employer shall have no legal or equitable right, title or interest in or to any sum paid by or
due from the Employer.”
9. Pursuant to said contracts, corporate defendant employed persons who were
participants in the Benefits Funds within the meaning of Section 3(7) of ERISA, 29
U.S.C. § 1002(7), while said contracts were in full force and effect.
10. Pursuant to said contracts, corporate defendant is required to make
contributions to plaintiffs for the period March 1, 2000 to April 30, 2007.
11. Defendant FRED BROMBERG (“first individual defendant”) is a principal
owner of corporate defendant. Upon information and belief, the first individual defendant
Page Number -3-
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Case 1:07-cv-03530-HB Document 1 Filed 05/02/2007 Page 4of 11
exercises control over the activities and operations of corporate defendant and determines
whether or not corporate defendant makes contributions to the Benefits Funds.
12. Defendant LOUIS BROMBERG (“second individual defendant”) is a
principal owner of corporate defendant. Upon information and belief, the second
individual defendant exercises control over the activities and operations of corporate
defendant and determines whether or not corporate defendant makes contributions to the
Benefits Funds.
AS AND FOR A FIRST CLAIM FOR RELIEF
ON BEHALF OF PLAINTIFF PENSION FUND
13. Plaintiff Pension Fund repeats and realleges each and every allegation set
forth in paragraphs 1 through 12.
14. Corporate defendant has failed and refused and continues to refuse to pay to
plaintiff the amounts owed to plaintiff in breach of the terms of the Agreement and
Declaration of Trust of the Pension Fund and in violation of the provisions of Section 515
of ERISA, 29 U.S.C. § 1145; upon information and belief, said amounts are as set forth
hereinafter, no part of which has been paid, although duly demanded.
AS AND FOR A SECOND CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF NEMIC
15. Plaintiff NEMIC repeats and realleges each and every allegation set forth in
paragraphs 1 through 12.
16. Corporate defendant has failed and refused and continues to refuse to pay
Page Number -4-
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Case 1:07-cv-03530-HB Document 1 Filed 05/02/2007 Page 5of 11
to plaintiff the amounts owed to plaintiff in breach of the terms of the Agreement and
Declaration of Trust of NEMIC and in violation of the provisions of Section 515 of
ERISA, 29 U.S.C. § 1145; upon information and belief, said amounts are as set forth
hereinafter, no part of which has been paid although duly demanded.
AS AND FOR A THIRD CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF SMOHIT
17. Plaintiff SMOHIT repeats and realleges each and every allegation set forth
in paragraphs 1 through 12.
18. Corporate defendant has failed and refused and continues to refuse to pay
to plaintiff the amounts owed to plaintiff in breach of the terms of the Agreement and
Declaration of Trust of SMOHIT and in violation of the provisions of Section 515 of
ERISA, 29 U.S.C. § 1145; upon information and belief, said amounts are as set forth
hereinafter, no part of which has been paid although duly demanded.
AS AND FOR A FOURTH CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF IT]
19. Plaintiff ITI repeats and realleges each and every allegation set forth in
paragraphs | through 12.
20. Corporate defendant has failed and refused and continues to refuse to pay
to plaintiff the amounts owed to plaintiff in breach of the terms of the Agreement and
Declaration of Trust of ITI and in violation of the provisions of Section 515 of ERISA, 29
U.S.C. § 1145; upon information and belief, said amounts are as set forth hereinafter, no
Page Number -5-
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Case 1:07-cv-03530-HB Document 1 Filed 05/02/2007 + Page 6 of 11
part of which has been paid although duly demanded.
AS AND FOR A FIFTH CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF SASMI
21. — Plaintiff SASMI repeats and realleges each and every allegation set forth in
paragraphs 1 through 12.
22. Corporate defendant has failed and refused and continues to refuse to pay
to plaintiff the amounts owed to plaintiff in breach of the terms of the Agreement and
Declaration of Trust of SASMI and in violation of the provisions of Section 515 of
ERISA, 29 U.S.C. § 1145; upon information and belief, said amounts are as set forth
hereinafter, no part of which has been paid although duly demanded.
AS AND FOR A SIXTH CLAIM FOR
RELIEF ON BEHALF OF THE BENEFITS FUNDS
23. Plaintiffs Benefits Funds repeat and reallege each and every allegation set
forth in paragraphs 1 through 22.
24. By failing and refusing to turn over to the Benefits Funds the contributions,
which are the property of the Benefits Funds, the corporate defendant and the first
individual defendant have converted the property of the Benefits Funds.
25. Said defendants must singly and jointly disgorge to the Benefits Funds said
converted assets in the amounts as are set forth hereinafter, no part of which has been
paid although duly demanded.
Page Number -6-
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Case 1:07-cv-03530-HB Document 1 Filed 05/02/2007 Page 7 of 11
AS AND FOR A SEVENTH CLAIM FOR
RELIEF ON BEHALF OF THE BENEFITS FUNDS
26. Plaintiffs Benefits Funds repeat and reallege each and every allegation set
forth in paragraphs | through 22.
27. — By failing and refusing to turn over to the Benefits Funds the contributions,
which are the property of the Benefits Funds, the corporate defendant and the second
individual defendant have converted the property of the Benefits Funds.
28. Said defendants must singly and jointly disgorge to the Benefits Funds said
converted assets in the amounts as are set forth hereinafter, no part of which has been
paid although duly demanded.
AS AND FOR A EIGHTH CLAIM FOR
RELIEF ON BEHALF OF THE BENEFITS FUNDS
29. Plaintiffs Benefits Funds repeat and reallege each and every allegation set
forth on paragraphs 1 through 28.
30. By exercising control over assets belonging to the Benefits Funds, the
corporate defendant and the first individual defendant are fiduciaries with respect to the
Benefits Funds within the meaning of Section 3(21) of ERISA, 29 U.S.C. § 1002(21) (A).
31. By retaining assets of the Benefits Funds for their own use, said fiduciaries
have breached the fiduciary obligations owed to the Benefits Funds and committed
prohibited transactions within the meaning of Part 4 of Subchapter I of Chapter 18 of
Title 29 of the United States Code, 29 U.S.C. § 1101 et seg.
Page Number -7-
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Case 1:07-cv-03530-HB Document 1 Filed 05/02/2007 + Page 8 of 11
32. Said defendants are singly and jointly and individually liable to make
restitution to the Benefits Funds in the amounts as are set forth hereinafter, no part of
which has been paid although duly demanded.
AS AND FOR A NINTH CLAIM FOR
RELIEF ON BEHALF OF THE BENEFITS FUNDS
33. Plaintiffs Benefits Funds repeat and reallege each and every allegation set
forth on paragraphs 1 through 28.
34. By exercising control over assets belonging to the Benefits Funds, the
corporate defendant and the second individual defendant are fiduciaries with respect to
the Benefits Funds within the meaning of Section 3(21) of ERISA, 29 U.S.C. §
1002 (21) (A).
35. By retaining assets of the Benefits Funds for their own use, said fiduciaries
have breached the fiduciary obligations owed to the Benefits Funds and committed
prohibited transactions within the meaning of Part 4 of Subchapter I of Chapter 18 of
Title 29 of the United States Code, 29 U.S.C. § 1101 et seq.
36. Said defendants are singly and jointly and individually liable to make
restitution to the Benefits Funds in the amounts as are set forth hereinafter, no part of
which has been paid although duly demanded.
WHEREFORE, plaintiffs demand judgment in accordance with ERISA Section
502 (g) (2), 29 U.S.C. § 1132(g) (2):
Page Number -8-
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Case 1:07-cv-03530-HB Document 1 Filed 05/02/2007 Page 9 of 11
lL. On the First Claim for Relief in favor of plaintiff Pension Fund and
against corporate defendant in the amount of $71,789.16.
2. On the Second Claim for Relief in favor of plaintiff NEMIC and
against corporate defendant in the amount of $306.05.
3, On the Third Claim for Relief in favor of plaintiff SMOHIT and
against corporate defendant in the amount of $204.04.
4. On the Fourth Claim for Relief in favor of plaintiff ITI and against
corporate defendant in the amount of $1,211.67.
5. On the Fifth Claim for Relief in favor of plaintiff SASMI and against
corporate defendant in the amount of $25,264.42.
6. In accordance with Section 502(g) of ERISA, 29 U.S.C. §
1132(g)(2), awarding plaintiffs on the foregoing claims for relief against corporate
defendant:
a. interest of 12% on said unpaid contributions pursuant to
ERISA Section 502 (g)(2)(B) and (E), 29 U.S.C. §§ 1132 (g) (2) (B) and (E) from the first
day of the month when payment was due, to the date when payment is made.
b. additional interest of 20% on said unpaid contributions
pursuant to ERISA Section 502 (g)(2)(C) and (E), 29 U.S.C. $§ 1132 (g)(2)(C) and (E).
c. reasonable attorneys fees and costs of the action pursuant to
Section 502 (g)(2)(D) of ERISA, 29 U.S.C. § 1132(g) (2) (D).
Page Number -9-
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Case 1:07-cv-03530-HB Document 1 Filed 05/02/2007 Page 10 of 11
7. On the Sixth Claim for Relief in favor of plaintiffs Benefits Funds
and against corporate defendant and first individual defendant, jointly and severally, in
the amount of $98,775.34, plus interest and costs.
8, On the Seventh Claim for Relief in favor of plaintiffs Benefits Funds
and against corporate defendant and second individual defendant, jointly and severally, in
the amount of $98,775.34, plus interest and costs.
9, On the Eighth Claim for Relief in favor of plaintiffs Benefits Funds
and against corporate defendant and first individual defendant, jointly and severally:
a. in the amount of $98,775.34;
b. plus reasonable attorney’s fees and costs pursuant to Section
502 (g)(1) of ERISA, 29 U.S.C. § 1132(g) (1);
C. Plus interest.
10. On the Ninth Claim for Relief in favor of plaintiffs Benefits Funds
and against corporate defendant and second individual defendant, jointly and severally:
a. in the amount of $98,775.34;
b. plus reasonable attorney’s fees and costs pursuant to Section
502(g)(1) of ERISA, 29 U.S.C. § 1132 (g) (1);
C. Plus interest,
AND, for such other, further and different relief under ERISA, as this Court deems
appropriate.
Page Number - 10-
PDF Page 12
Case 1:07-cv-03530-HB Document 1 Filed 05/02/2007 Page 11 of 11
Dated: May 1, 2007
Jeffrey S. Dubin D-0446)
Attorney for Plaintiffs
464 New York Avenue
Suite 100
Huntington, NY 11743
(631) 351-0300
(631) 351-1900 FAX
DubinJS@cs.com
To: Defendants (Fed.R.Civ.P. § 4)
United States District Court (Fed.R.Civ.P. § 3)
Secretary of Labor-by Cert. Mail (29 U.S.C. § 1132 (h)
(RR#: 7006 2150 0004 1684 8631)
Secretary of Treas.-by Cert. Mail (29 U.S.C. § 1132 (h)
(RR#: 7006 2150 0004 1684 8624)
Page Number -11-
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