COMPLAINT against AUL Sheet Metal Works Inc., Yves Jerome. (Filing Fee $ 350.00, Receipt Number 638837)Document filed by Sheet Metal Workers' National Pension Fund, National Energy Management Institute Committee for the Sheet Metal and Air Conditioning Industry, Sheet Metal Occupational Health Institute Trust, International Training Institute for Sheet Metal and Air Conditioning Industry, National Stabilization Agreement of The Sheet Metal Industry Fund.(jpo)
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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
SHEET METAL WORKERS’ NATIONAL
PENSION FUND; NATIONAL ENERGY
MANAGEMENT INSTITUTE COMMITTEE
FOR THE SHEET METAL AND AIR
CONDITIONING INDUSTRY; SHEET METAL
OCCUPATIONAL HEALTH INSTITUTE
TRUST; INTERNATIONAL TRAINING
INSTITUTE FOR THE SHEET METAL AND
AIR CONDITIONING INDUSTRY; and
NATIONAL STABILIZATION AGREEMENT
OF THE SHEET METAL INDUSTRY FUND,
Plaintiffs,
-against-
AUL SHEET METAL WORKS INC., and
YVES JEROME, as an individual,
Defendants.
CIVIL ACTION NO.
08cv0540(DC)
ECF Case
COMPLAINT
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 submit remittance reports; make contributions to these plans and forPage 2 interest, additional interest, 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.
2. 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;
Federal Question Jurisdiction, 28 U.S.C. § 1331; Supplemental Jurisdiction, 28 U.S.C. §
1367.
3, 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 (“SSMOHIT”);
International Training Institute for the Sheet Metal and Air Conditioning Industry
(“TTT”); 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).
4. Upon information and belief, the defendant AUL SHEET METAL
WORKS INC. (“corporate defendant”) is and was a corporation, incorporated under the
laws of the State of New York.
5. Corporate defendant is and was an employer within the meaning of Section
3(5) of ERISA, 29 U.S.C. § 1002(5).
6. At all times relevant hereto, corporate defendant has been doing business in
Page Number -2-Page 3 Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 3of 12
this district within the meaning of 28 U.S.C. § 1391.
7. Venue is proper in this district pursuant to ERISA Section 502 (e) (2), 29
U.S.C. § 1132(e) (2).
8. Heretofore, corporate defendant entered into contracts which, inter alia,
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.
9. The Benefits Funds are third party beneficiaries of said contract.
10. Said contracts incorporate by reference the provisions of the Agreements
and Declarations of Trust of the Benefits Funds.
11. The contracts further provide chat 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.
12. 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.”
13. Said Contracts, inter alia, provide that “The Employer shall submit a
remittance report and the required contributions to the NATIONAL BENEFIT FUNDS
Page Number -3-Page 4 Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 4of12
by the twentieth (20°) of the month following the month when covered employment was
performed. Failure to file said report with the required contributions adopted hereinabove
shall constitute a delinquency in violation of the Employer's obligations under this
Agreement. The Trustees and/or Directors of the various National Benefit Funds may
take whatever steps they deem necessary, including legal action, to collect such
delinquent payments and provision of the Agreement notwithstanding.”
14. Pursuant to said contracts, corporate defendant employed persons who were
participants in the Benefits Funds within the meaning of ERISA Section 3(7), 29 U.S.C. §
1002 (7), while said contracts were in full force and effect.
15. Pursuant to said contracts, corporate defendant is required to make
contributions to plaintiffs for the period December 1, 2006 to the present.
16. Pursuant to said contracts, corporate defendant is required to submit
remittance reports for the period December 1, 2006 to the present.
17. Defendant YVES JEROME (“individual defendant”) is a principal owner of
corporate defendant. Upon information and belief, the 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.
18. Defendant YVES JEROME (“individual defendant”) is a principal owner of
corporate defendant. Upon information and belief, the individual defendant exercises
control over the activities and operations of corporate defendant and determines whether
Page Number -4-Page 5 Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 5of 12
or not corporate defendant submits remittance reports to the Benefits Funds.
19 Pursuant to ERISA Section 502 (d) (1), 29 U.S.C. § 1132 (d) (1) each of the
awe
Benefits Funds may bring this action as an entity.
AS AND FOR A FIRST CLAIM FOR RELIEF
ON BEHALF OF PLAINTIFF PENSION FUND
20. Plaintiff Pension Fund repeats and realleges each and every allegation set
forth in paragraphs | through 19.
21. Corporate defendant has failed and refused and continues to refuse to pay to
plaintiff Pension Fund the amounts owed tc 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, and in violation of the collective
bargaining agreement entered into by corporate defendant; said amounts are presently
unknown as corporate defendant has failed to submit remittance reports.
AS AND FOR A SECOND CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF NEMIC
22. — Plaintiff NEMIC repeats and realleges each and every allegation set forth in
paragraphs | through 19.
23. | Corporate defendant has failed and refused and continues to refuse to pay
to plaintiff NEMIC 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, and in violation of the collective bargaining agreement entered
Page Number -5-Page 6 Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 6of 12
into by corporate defendant; said amounts are presently unknown as corporate defendant
has failed to submit remittance reports.
AS AND FOR A THIRD CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF SMOHIT
24. Plaintiff SMOHIT repeats and realleges each and every allegation set forth
in paragraphs 1 through 19.
25. | Corporate defendant has failed and refused and continues to refuse to pay
to plaintiff SMOHIT 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; and in violation of the collective bargaining
agreement entered into by corporate defendant; said amounts are presently unknown as
corporate defendant has failed to submit remittance reports.
AS AND FOR A FOURTH CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF ITI
26. — Plaintiff ITI repeats and realleges each and every allegation set forth in
paragraphs | through 19.
27. Corporate defendant has failed and refused and continues to refuse to pay
to plaintiff ITI the amounts owed to plaintiff in breach of the terms of the Agreement and
Declaration of Trust of ITT and in violation of the provisions of Section 515 of ERISA, 29
U.S.C. § 1145, and in violation of the collective bargaining agreement entered into by
corporate defendant; said amounts are presently unknown as corporate defendant has
Page Number -6-Page 7 failed to submit remittance reports.
AS AND FOR A FIFTH CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF SASMI
28. Plaintiff SASMI repeats and realleges each and every allegation set forth in
paragraphs | through 19.
29. Corporate defendant has failed and refused and continues to refuse to pay
to plaintiff SASMI 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, and in violation of the collective bargaining agreement entered
into by corporate defendant; said amounts are presently unknown as corporate defendant
has failed to submit remittance reports.
AS AND FOR A SIXTH CLAIM FOR
RELIEF ON BEHALF OF THE BENEFITS FUNDS
30. Plaintiffs Benefits Funds repeat and reallege each and every allegation set
forth in paragraphs | through 29.
31. 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 individual
defendant have converted the property of the Benefits Funds.
32. 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 alchough duly demanded.
Page Number -7-Page 8 AS AND FOR A SEVENTH 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 32.
34. By exercising control over assets belonging to the Benefits Funds, the
corporate defendant and the individual defendant are fiduciaries with respect to the
Benefits Funds within the meaning of Section 3(21)(A) 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
Ticle 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.
AS AND FOR AN EIGHTH CLAIM FOR
RELIEF ON BEHALF OF THE BENEFITS FUNDS
37. Plaintiffs Benefits Funds repeat and reallege each and every allegation set
forth on paragraphs 1 through 36.
38. Defendants have failed and refused and continue to refuse to submit the
required remittance reports to the Funds in breach of the terms of the Agreements and
Page Number -8-Page 9 Declarations of Trust of the Funds, and in violation of the collective bargaining
agreement entered into by defendants.
WHEREFORE, plaintiffs demand judgment in accordance with ERISA Section
502 (g) (2), 29 U.S.C. § 1132 (g) (2):
1. On the First Claim for Relief in favor of plaintiff Pension Fund and
against corporate defendant in the amounts owed as shown in the remittance reports
corporate defendant is required to provide the Pension Fund.
2. On the Second Claim for Relief in favor of plaintiff NEMIC and
against corporate defendant in the amounts owed as shown in the remittance reports
corporate defendant is required to provide to NEMIC.
3. On the Third Claim for Relief in favor of plaintiff SMOHIT and
against corporate defendant in the amounts owed as shown in the remittance reports
corporate defendant is required to provide to SMOHIT.
4, On the Fourth Claim for Relief in favor of plaintiff IT] and against
corporate defendant in the amounts owed as shown in the remittance reports corporate
defendant is required to provide to ITT.
5. On the Fifth Claim for Relief in favor of plaintiff SASMI and against
corporate defendant in the amounts owed as shown in the remittance reports corporate
defendant is required to provide to SASMI.
6. In accordance with Section 502(g) of ERISA, 29 U.S.C. §
Page Number -9-Page 10 1132(g) (2), awarding plaintiffs on the foregoing claims for relief against corporate
defendant:
a. interest of 8% % 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).
7. On the Sixth Claim for Relief (regarding converted assets) in favor of
plainciffs Benefits Funds and against corporate defendant and individual defendant, jointly
and severally, in the amounts owed as shown in the remittance reports defendants are
required to provide to the Benefits Funds, plus interest and costs.
8. On the Seventh Claim for Relief (regarding restitution for prohibited
transactions) in favor of plaintiffs Benefits Funds and against corporate defendant and
individual defendant, jointly and severally:
a. in the amounts owed as shown in the remittance reports
defendants are required to provide to the Benefits Funds;
b. plus reasonable attorney's fees and costs pursuant to Section
502(g) (1) of ERISA, 29 U.S.C. § 1132(g) (1);
Page Number -10-Page 11 c, Plus interest,
9. On the Eighth Claim for Relief in favor of plaintiffs Benefits Funds
and against corporate defendant and individual defendant, jointly and severally:
a. Ordering defendants, jointly and severally to forthwith submit
to the Funds the required remittance reports;
b. plus reasonable attorney’s fees and costs pursuant to Section
502(g) (1) of ERISA, 29 U.S.C. § 1132 (g) (1);
Cc. Plus interest,
10. Such additional contributions to the Fringe Benefit Funds that
become due and owing from the date of filing of this action until the date of entry of
judgment in this action, plus, interest of 8% % on said unpaid contributions pursuant to
E.R.I.S.A. 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, plus
additional interest of 20% on said unpaid contributions pursuant to E.R.1.S.A. Section
502(g)(2)(C) and (E), 29 U.S.C. 88 1132(g)(2) (C) and (E), plus reasonable attorneys fees
and costs pursuant to Section 502 (g)(2)(D) of E.R.L.S.A., 29 U.S.C. § 1132 (g) (2) (D),
Page Number - 1 1-Page 12 AND, for such other, further and different relief under ERISA and the laws of the
State of New York, as this Court deems appropriate.
Dated: January 21, 2008 C
Jeffrey S. Dubin JD-0446)
torney for Plaintiffs
64 New York Avenue
Suite 100
Huntington, New York 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)
RRR#: 7007 1490 0004 3854 3696
Secretary of Treas.-by Cert. Mail (29 U.S.C. § 1132 (h)
RRR#: 7007 1490 0004 3854 9889
Page Number - 12-
PDF Page 1
PlainSite Cover Page
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Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 1 of 12
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
SHEET METAL WORKERS’ NATIONAL
PENSION FUND; NATIONAL ENERGY
MANAGEMENT INSTITUTE COMMITTEE
FOR THE SHEET METAL AND AIR
CONDITIONING INDUSTRY; SHEET METAL
OCCUPATIONAL HEALTH INSTITUTE
TRUST; INTERNATIONAL TRAINING
INSTITUTE FOR THE SHEET METAL AND
AIR CONDITIONING INDUSTRY; and
NATIONAL STABILIZATION AGREEMENT
OF THE SHEET METAL INDUSTRY FUND,
Plaintiffs,
-against-
AUL SHEET METAL WORKS INC., and
YVES JEROME, as an individual,
Defendants.
CIVIL ACTION NO.
08cv0540(DC)
ECF Case
COMPLAINT
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 submit remittance reports; make contributions to these plans and for
PDF Page 3
Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 2 of 12
interest, additional interest, 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.
2. 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;
Federal Question Jurisdiction, 28 U.S.C. § 1331; Supplemental Jurisdiction, 28 U.S.C. §
1367.
3, 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 (“SSMOHIT”);
International Training Institute for the Sheet Metal and Air Conditioning Industry
(“TTT”); 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).
4. Upon information and belief, the defendant AUL SHEET METAL
WORKS INC. (“corporate defendant”) is and was a corporation, incorporated under the
laws of the State of New York.
5. Corporate defendant is and was an employer within the meaning of Section
3(5) of ERISA, 29 U.S.C. § 1002(5).
6. At all times relevant hereto, corporate defendant has been doing business in
Page Number -2-
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Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 3of 12
this district within the meaning of 28 U.S.C. § 1391.
7. Venue is proper in this district pursuant to ERISA Section 502 (e) (2), 29
U.S.C. § 1132(e) (2).
8. Heretofore, corporate defendant entered into contracts which, inter alia,
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.
9. The Benefits Funds are third party beneficiaries of said contract.
10. Said contracts incorporate by reference the provisions of the Agreements
and Declarations of Trust of the Benefits Funds.
11. The contracts further provide chat 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.
12. 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.”
13. Said Contracts, inter alia, provide that “The Employer shall submit a
remittance report and the required contributions to the NATIONAL BENEFIT FUNDS
Page Number -3-
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Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 4of12
by the twentieth (20°) of the month following the month when covered employment was
performed. Failure to file said report with the required contributions adopted hereinabove
shall constitute a delinquency in violation of the Employer's obligations under this
Agreement. The Trustees and/or Directors of the various National Benefit Funds may
take whatever steps they deem necessary, including legal action, to collect such
delinquent payments and provision of the Agreement notwithstanding.”
14. Pursuant to said contracts, corporate defendant employed persons who were
participants in the Benefits Funds within the meaning of ERISA Section 3(7), 29 U.S.C. §
1002 (7), while said contracts were in full force and effect.
15. Pursuant to said contracts, corporate defendant is required to make
contributions to plaintiffs for the period December 1, 2006 to the present.
16. Pursuant to said contracts, corporate defendant is required to submit
remittance reports for the period December 1, 2006 to the present.
17. Defendant YVES JEROME (“individual defendant”) is a principal owner of
corporate defendant. Upon information and belief, the 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.
18. Defendant YVES JEROME (“individual defendant”) is a principal owner of
corporate defendant. Upon information and belief, the individual defendant exercises
control over the activities and operations of corporate defendant and determines whether
Page Number -4-
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Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 5of 12
or not corporate defendant submits remittance reports to the Benefits Funds.
19 Pursuant to ERISA Section 502 (d) (1), 29 U.S.C. § 1132 (d) (1) each of the
awe
Benefits Funds may bring this action as an entity.
AS AND FOR A FIRST CLAIM FOR RELIEF
ON BEHALF OF PLAINTIFF PENSION FUND
20. Plaintiff Pension Fund repeats and realleges each and every allegation set
forth in paragraphs | through 19.
21. Corporate defendant has failed and refused and continues to refuse to pay to
plaintiff Pension Fund the amounts owed tc 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, and in violation of the collective
bargaining agreement entered into by corporate defendant; said amounts are presently
unknown as corporate defendant has failed to submit remittance reports.
AS AND FOR A SECOND CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF NEMIC
22. — Plaintiff NEMIC repeats and realleges each and every allegation set forth in
paragraphs | through 19.
23. | Corporate defendant has failed and refused and continues to refuse to pay
to plaintiff NEMIC 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, and in violation of the collective bargaining agreement entered
Page Number -5-
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Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 6of 12
into by corporate defendant; said amounts are presently unknown as corporate defendant
has failed to submit remittance reports.
AS AND FOR A THIRD CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF SMOHIT
24. Plaintiff SMOHIT repeats and realleges each and every allegation set forth
in paragraphs 1 through 19.
25. | Corporate defendant has failed and refused and continues to refuse to pay
to plaintiff SMOHIT 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; and in violation of the collective bargaining
agreement entered into by corporate defendant; said amounts are presently unknown as
corporate defendant has failed to submit remittance reports.
AS AND FOR A FOURTH CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF ITI
26. — Plaintiff ITI repeats and realleges each and every allegation set forth in
paragraphs | through 19.
27. Corporate defendant has failed and refused and continues to refuse to pay
to plaintiff ITI the amounts owed to plaintiff in breach of the terms of the Agreement and
Declaration of Trust of ITT and in violation of the provisions of Section 515 of ERISA, 29
U.S.C. § 1145, and in violation of the collective bargaining agreement entered into by
corporate defendant; said amounts are presently unknown as corporate defendant has
Page Number -6-
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failed to submit remittance reports.
AS AND FOR A FIFTH CLAIM FOR
RELIEF ON BEHALF OF PLAINTIFF SASMI
28. Plaintiff SASMI repeats and realleges each and every allegation set forth in
paragraphs | through 19.
29. Corporate defendant has failed and refused and continues to refuse to pay
to plaintiff SASMI 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, and in violation of the collective bargaining agreement entered
into by corporate defendant; said amounts are presently unknown as corporate defendant
has failed to submit remittance reports.
AS AND FOR A SIXTH CLAIM FOR
RELIEF ON BEHALF OF THE BENEFITS FUNDS
30. Plaintiffs Benefits Funds repeat and reallege each and every allegation set
forth in paragraphs | through 29.
31. 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 individual
defendant have converted the property of the Benefits Funds.
32. 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 alchough duly demanded.
Page Number -7-
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Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 8 of 12
AS AND FOR A SEVENTH 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 32.
34. By exercising control over assets belonging to the Benefits Funds, the
corporate defendant and the individual defendant are fiduciaries with respect to the
Benefits Funds within the meaning of Section 3(21)(A) 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
Ticle 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.
AS AND FOR AN EIGHTH CLAIM FOR
RELIEF ON BEHALF OF THE BENEFITS FUNDS
37. Plaintiffs Benefits Funds repeat and reallege each and every allegation set
forth on paragraphs 1 through 36.
38. Defendants have failed and refused and continue to refuse to submit the
required remittance reports to the Funds in breach of the terms of the Agreements and
Page Number -8-
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Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 9 of 12
Declarations of Trust of the Funds, and in violation of the collective bargaining
agreement entered into by defendants.
WHEREFORE, plaintiffs demand judgment in accordance with ERISA Section
502 (g) (2), 29 U.S.C. § 1132 (g) (2):
1. On the First Claim for Relief in favor of plaintiff Pension Fund and
against corporate defendant in the amounts owed as shown in the remittance reports
corporate defendant is required to provide the Pension Fund.
2. On the Second Claim for Relief in favor of plaintiff NEMIC and
against corporate defendant in the amounts owed as shown in the remittance reports
corporate defendant is required to provide to NEMIC.
3. On the Third Claim for Relief in favor of plaintiff SMOHIT and
against corporate defendant in the amounts owed as shown in the remittance reports
corporate defendant is required to provide to SMOHIT.
4, On the Fourth Claim for Relief in favor of plaintiff IT] and against
corporate defendant in the amounts owed as shown in the remittance reports corporate
defendant is required to provide to ITT.
5. On the Fifth Claim for Relief in favor of plaintiff SASMI and against
corporate defendant in the amounts owed as shown in the remittance reports corporate
defendant is required to provide to SASMI.
6. In accordance with Section 502(g) of ERISA, 29 U.S.C. §
Page Number -9-
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Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 10 of 12
1132(g) (2), awarding plaintiffs on the foregoing claims for relief against corporate
defendant:
a. interest of 8% % 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).
7. On the Sixth Claim for Relief (regarding converted assets) in favor of
plainciffs Benefits Funds and against corporate defendant and individual defendant, jointly
and severally, in the amounts owed as shown in the remittance reports defendants are
required to provide to the Benefits Funds, plus interest and costs.
8. On the Seventh Claim for Relief (regarding restitution for prohibited
transactions) in favor of plaintiffs Benefits Funds and against corporate defendant and
individual defendant, jointly and severally:
a. in the amounts owed as shown in the remittance reports
defendants are required to provide to the Benefits Funds;
b. plus reasonable attorney's fees and costs pursuant to Section
502(g) (1) of ERISA, 29 U.S.C. § 1132(g) (1);
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Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 11 of 12
c, Plus interest,
9. On the Eighth Claim for Relief in favor of plaintiffs Benefits Funds
and against corporate defendant and individual defendant, jointly and severally:
a. Ordering defendants, jointly and severally to forthwith submit
to the Funds the required remittance reports;
b. plus reasonable attorney’s fees and costs pursuant to Section
502(g) (1) of ERISA, 29 U.S.C. § 1132 (g) (1);
Cc. Plus interest,
10. Such additional contributions to the Fringe Benefit Funds that
become due and owing from the date of filing of this action until the date of entry of
judgment in this action, plus, interest of 8% % on said unpaid contributions pursuant to
E.R.I.S.A. 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, plus
additional interest of 20% on said unpaid contributions pursuant to E.R.1.S.A. Section
502(g)(2)(C) and (E), 29 U.S.C. 88 1132(g)(2) (C) and (E), plus reasonable attorneys fees
and costs pursuant to Section 502 (g)(2)(D) of E.R.L.S.A., 29 U.S.C. § 1132 (g) (2) (D),
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Case 1:08-cv-00540-DC Document 1 Filed 01/22/2008 Page 12 of 12
AND, for such other, further and different relief under ERISA and the laws of the
State of New York, as this Court deems appropriate.
Dated: January 21, 2008 C
Jeffrey S. Dubin JD-0446)
torney for Plaintiffs
64 New York Avenue
Suite 100
Huntington, New York 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)
RRR#: 7007 1490 0004 3854 3696
Secretary of Treas.-by Cert. Mail (29 U.S.C. § 1132 (h)
RRR#: 7007 1490 0004 3854 9889
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