The Annuity, Pension, Welfare, Training and Labor Management Cooperation Trust Funds of The International Union of Operating Engineers Local 14-14B, AFL-CIO et al v. Graci Paving Associates, Inc.

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Case 1:25-cv-02726-RER-CLP Document 23 _ Filed 11/21/25 Page 1 of 18 PagelD #:
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

THE ANNUITY, PENSION, WELFARE,
TRAINING AND LABOR MANAGEMENT
COOPERATION TRUST FUNDS OF THE
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 14-14B, AFL-CIO ET

AL., REPORT AND

RECOMMENDATION
25 CV 2726 (RER) (CLP)

Plaintiffs,
-against-
GRACI PAVING ASSOCIATES, INC.,

Defendants.

POLLAK, United States Magistrate Judge:

On May 15, 2025, plaintiffs The Annuity, Pension, Welfare, Training and Labor
Management Cooperation Trust Funds of the International Union of Operating Engineers Local
14-14B, AFL-CIO, by their Trustees Edwin L. Christian, John Cronin, Thomas D. Gordon, Hugh
Manley, Tyreef Bevel, John F. O’Hare, William Tyson and Michael Salgo (“Local 14 Funds”),
and International Union of Operating Engineers Local 14-14B, AFL-CIO (“Local 14” or the
“Union’’), by its business manager, Edwin L. Christian (together, “plaintiffs”), commenced this
action against defendant Graci Paving Associates, Inc. (“Graci” or “defendant’’), pursuant to the
Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. §§ 1001
et seq., and Section 301 of the Labor Management Relations Act of 1947 (“LMRA”), as
amended, 29 U.S.C. § 185, seeking to recover unpaid annuity, voluntary annuity, pension,

welfare, training and labor management cooperation trust fund contributions, along with dues

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

2
assessments and defense payments. (Compl.1).
Despite proper service, defendant Graci failed to answer or otherwise respond to the
Complaint. (Steinberg Decl.2 ¶ 4). As a result of defendant’s failure to respond to the
Complaint, plaintiffs requested a Certificate of Default (ECF No. 9), and on June 24, 2025, the
Clerk of Court entered a notation of default. (ECF No. 10). Thereafter, on June 27, 2025,
plaintiffs filed a Motion for default judgment (Mot.3), which is currently pending before this
Court on referral from the Honorable Ramon E. Reyes. (ECF Order dated June 30, 2025). For
the reasons set forth below, the Court respectfully recommends that plaintiffs’ Motion for default
judgment be granted and that plaintiffs be awarded a total of $32,976.02 in damages and $3,375
in attorney’s fees and costs.
FACTUAL BACKGROUND
Plaintiffs Local 14 Funds are joint trustee funds established by various trust indentures
pursuant to Section 302 of the LMRA. (Compl. ¶ 4). Local 14 Annuity and Pension Funds are
employee pension benefit plans, and Local 14 Welfare and Training Funds are employee welfare
benefit plans, within the meaning of Sections 3(1) and (2) of ERISA. (Id. ¶¶ 7, 8). Local 14
Labor Management Cooperation Trust Fund is a labor management cooperation trust fund as
defined by the LMRA, 29 U.S.C. §§ 186(c)(9) and Section 501(c)(5) of the Internal Revenue
Code. (Id. ¶ 10). Plaintiffs allege that defendant Graci is a foreign corporation duly licensed to
operate in New York (Id. ¶ 14), as well as an employer within the meaning of Section 3(5) of
1 Citations to “Compl.” refer to plaintiffs’ Complaint filed May 15, 2025 (ECF No. 1).
2 Citations to “Steinberg Decl.” refer to the Declaration of James M. Steinberg, Esq. In Support of
Plaintiffs’ Motion for Default Judgment, filed June 27, 2025 (ECF No. 12).
3 Citations to “Mot.” refer to plaintiff’s Motion for Default Judgment, filed June 27, 2025 (ECF No 11),
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ERISA and Section 301 of the LMRA (Id. ¶ 16).
Plaintiffs allege that Local 14 and Graci are parties to a collective bargaining agreement
(“CBA”) pursuant to which Graci agreed to remit contributions, along with dues assessment and
defense fund payments based on work performed by employees covered by the CBA. (Id. ¶¶ 17,
18). All contributions and payments were to be remitted through the purchase of stamps from
the Funds Office for plaintiffs Local 14 Funds. (Id. ¶ 19).
Plaintiffs allege that as part of the CBA and the Trust Agreements establishing the Local
14 Funds, Graci consented to an audit to determine if it had paid all of the required contributions
for the period November 1, 2022, through October 31, 2024. (Id. ¶ 21). On May 13, 2025,
plaintiffs’ auditor determined that Graci had failed to provide the contractually required
contributions with interest, as well as dues assessment and defense fund payments owed for the
period November 1, 2022 through October 31, 2024, in the amount of $34,025.96. (Id. ¶ 22).
Plaintiffs allege that defendant has failed to pay any portion of the outstanding amount owed in
ERISA contributions, ($30,088.20 as of the initial damages calculation, $25,401,24 as of the
amended damages calculation), and in dues assessments, defense fund, and labor management
cooperation trust fund payments ($2,314,35). (Id. ¶¶ 23, 24; First Cause of Action).
Plaintiffs further contend that defendant has violated Section 515 of ERISA, 29 U.S.C. §
1145, and is liable to the Trust Funds for: 1) the amount owed in unpaid fringe benefit
contributions, 2) interest on the unpaid contributions at the rate provided for in the Trust Fund
Plan or, if none, at the rate set out in the Internal Revenue Code, 26 U.S.C. § 6621, 3) statutory
damages, 4) attorney’s fees, 5) auditor’s fees, and 6) costs and disbursements. (Compl. ¶¶ 27,
29). Based on the violation of ERISA, plaintiffs now seek the amount of the delinquent fringe
benefit contributions, as well as accumulated interest and statutory damages to be determined by
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the Court, 4 pursuant to Section 502 of ERISA, 29 U.S.C. § 1132. (Id. ¶ 30; Second Cause of
Action).
DISCUSSION
A. Default Judgment
Plaintiffs move for default judgment pursuant to Rule 55(b)(2) of the Federal Rules of
Civil Procedure. Upon the plaintiffs’ request, the Clerk of the Court entered a default because
defendant “failed to plead or otherwise defend [against the instant Complaint].” (ECF No. 10);
Fed. R. Civ. P. 55(a). A clerk’s entry of default is not the same as a default judgment granted by
the court. Rather, Rule 55 sets forth a two-step process in which first a default, and then a
default judgment, is entered. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993).
After a default has been entered against a party, if that party fails to appear or otherwise move to
set aside the default pursuant to Rule 55(c), a default judgment may be entered. See Fed. R. Civ.
P. 55(b). In this case, the Clerk of the Court entered a default against defendant on June 24, 2025
(ECF No. 10), and the motion for default judgment was filed on June 27, 2025 (Mot.).
The Second Circuit has warned that default judgment is an extreme remedy that should
be used only when the need to move a case forward expeditiously trumps a party’s right to be
heard before a court of law. See Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981). When
evaluating whether to grant a default judgment, the Court must weigh the costs of prolonged
litigation against offering “litigants a reasonable chance to be heard.” Enron Oil Corp. v.
4 Plaintiffs originally sought $34,025.96, which accounted for the delinquent fringe benefit contributions
and the interest accrued on those delinquent contributions, through May 7, 2025, as well as further prejudgment
interest to be determined by the Court. (Compl. ¶ 22; Steinberg Decl., Ex. J). However, on July 10, 2025, plaintiffs
submitted an Amended Statement of Damages (ECF No. 19-2), reflecting developments, discussed further infra, that
led to plaintiffs seeking damages lower than previously calculated. The Court has also calculated, using the
formulae supplied by plaintiffs, the interest that has accumulated up until and including the date of this Report and
Recommendation.
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Diakuhara, 10 F.3d at 95-96; see also Meehan v. Snow, 652 F.2d at 277. It is well-settled that
defaults are “generally disfavored” and “doubt[s] should be resolved in favor of the defaulting
party.” Enron Oil Corp. v. Diakuhara, 10 F.3d at 95-96; see also Erwin DeMarino Trucking Co.
v. Jackson, 838 F. Supp. 160, 162 (S.D.N.Y. 1993) (stating that courts must “supervise default
judgments with extreme care to avoid miscarriages of justice”). As such, courts should take
great care in entering default judgment, ensuring, if at all possible, that both parties may have
their cases judged on the merits. Id.
A court possesses significant discretion and may consider a number of factors in deciding
whether or not to grant a default judgment, including “whether the grounds for default are clearly
established,” “the amount of money potentially involved,” and the record of attempts to involve
the defaulting party in the proceedings. See Hirsch v. Innovation Int’l, Inc., No. 91 CV 4130,
1992 WL 316143, at *2 (S.D.N.Y. Oct. 19, 1992) (citations omitted). Additionally, a court may
consider whether material issues of fact remain, whether the facts alleged in the complaint state a
valid cause of action, whether the plaintiff has been substantially prejudiced by the delay
involved, and how harsh an effect a default judgment might have on the defendant. See Au Bon
Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981); 10A Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure, §§ 2685, 2688 (3d ed. 1998).
B. Entry of Default Judgment
The benefit plans operated by plaintiffs fall under the purview of ERISA in that the
Funds are run by an organization of employees with the goal of providing health and retirement
benefits to members of the employee organization, in accordance with 29 U.S.C. § 1002. ERISA
specifies the types of damages to be awarded when judgments are entered in favor of benefit
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plans. See 29 U.S.C. § 1132(g)(2). These include the following:
1. 	the unpaid contributions,
2. 	interest on the unpaid contributions,
3. 	an amount equal to the greater of--
i. 	interest on the unpaid contributions, or
ii. 	liquidated damages provided for under the plan in an
amount not in excess of 20 percent (or such higher
percentage as may be permitted under Federal or State
law) of the amount determined by the court under
subparagraph (A),
4. 	reasonable attorney’s fees and costs of the action, to be paid by
the defendant, and
5. 	such other legal or equitable relief as the court deems
appropriate.
Id. Plaintiffs have also alleged a claim under 29 U.S.C. § 1145, which states:
Every employer who is obligated to make contributions to a
multiemployer plan under the terms of the plan or under the terms
of a collectively bargained agreement shall, to the extent not
inconsistent with law, make such contributions in accordance with
the terms and conditions of such plan or such agreement.
29 U.S.C. § 1145.
The Complaint asserts that, as a result of its performance of heavy construction work,
defendant Graci was required to adhere to the terms and conditions of the CBA entered into
between Local 14 and the General Contractors Association of New York, Inc. (the “Local
14/CGA Agreement”). (Compl. ¶¶ 17, 18; see also Steinberg Decl. ¶ 5, Ex. D). The Local
14/CGA Agreement required Graci to contribute certain amounts to the plaintiffs, including
annuity, voluntary annuity (including political action committee), pension, welfare, and training
contributions, along with defense fund and dues assessment payments, and labor management
cooperation trust contributions for each hour of work performed by covered employees, and to
adhere to the trust agreements establishing the plaintiff funds. (Compl. ¶ 18; Steinberg Decl. ¶
5). Plaintiffs further allege that pursuant to an audit authorized by the Trust Agreements and the
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Local 14/GCA Agreement, it was determined that Graci had failed to remit ERISA contributions
in the amount of $31,711.61, including interest in the amount of $1,623.41, and non-ERISA
contributions in the amount of $2,314.35, for the period July 1, 2023, through October 31, 2024.
(Compl. ¶ 22; Steinberg Decl. ¶ 6, Ex. J). Plaintiffs allege that the failure to meet these
obligations warrants relief.
Accordingly, plaintiffs seek to have this Court issue an Order: 1) directing that judgment
be entered for the amount of delinquent ERISA and non-ERISA contributions owed, together
with interest; and 2) granting plaintiffs liquidated damages, costs, and attorney’s fees. (Steinberg
Decl. ¶ 10).
Pursuant to Section 515 of ERISA, Graci is required to make contributions to the Funds
in accordance with the terms of the CBA. See 29 U.S.C. § 1145. Based on a review of the
allegations in the Complaint, which are undisputed at this time, and the supporting
documentation submitted in connection with this inquest, including the terms of the CBA,
plaintiffs have sufficiently alleged a claim that the defendant breached its statutory and
contractual obligations under both ERISA and the CBA. Id.
Moreover, in this case, it is beyond dispute that defendant is in default, since defendant
failed to file an answer to the Complaint, failed to oppose plaintiffs’ motion for a default
judgment, and failed to challenge the Clerk’s entry of a default. See Hirsch v. Innovation Int’l,
Inc., 1992 WL 316143, at *2 (holding that the defendant’s default was “crystal clear” as
evidenced by its failure to oppose plaintiff’s motion for a default judgement). Despite the
numerous opportunities afforded defendant, it apparently lacks interest in participating in these
proceedings. Furthermore, defendant has also failed to obtain counsel, which constitutes a
failure to defend because defendant, a corporation, cannot proceed pro se in federal court. See
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Shapiro, Bernstein & Co. v. Cont’l Record Co., 386 F.2d 426, 427 (2d Cir. 1967) (per curiam)
(stating that “it is settled law that a corporation cannot appear other than by its attorney”); see
also Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983) (discussing the
rationale for requiring corporations, as “artificial” entities, to appear through counsel only).
Given that plaintiffs have duly served all orders and motions on defendant, and defendant
has refused to attend any hearing or move in any way whatsoever with respect to the instant case,
the Court finds no compelling reason to delay further in entering a default judgment.
Accordingly, this Court respectfully recommends that default judgment be granted against
defendant.
C. Damage Awards in Default Judgments
Once a default judgment is entered, the defendant is deemed to have admitted all of the
well-pleaded allegations in the petition pertaining to liability. See Greyhound Exhibitgroup, Inc.
v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080 (1993);
Montcalm Publ’g Corp. v. Ryan, 807 F. Supp. 975, 977 (S.D.N.Y. 1992) (internal citations
omitted). For the purposes of an inquest, a court accepts as true all factual allegations in the
petition, except those relating to damages. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d at 65.
The plaintiffs still have the burden of proving damages, either by an evidentiary hearing or,
should the defendant fail to appear, exhibits submitted by the plaintiffs. See Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d at 158; see also Levesque v. Kelly
Commc’ns, Inc., No. 91 CV 7045, 1993 WL 22113, at *4 (S.D.N.Y. Jan. 25, 1993); Fustok v.
ContiCommodity Servs., Inc., 122 F.R.D. 151, 156 (S.D.N.Y. 1988). By Order dated October
15, 2025, the Court directed defendant to submit papers on the question of damages (ECF No.
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21). Defendant neither submitted papers nor asked for any extensions.
1. 	Contributions Owed
Plaintiffs seek an award of delinquent ERISA and non-ERISA contributions, based on the
results of the audit. In his initial Declaration, Mr. Steinberg stated that plaintiffs sought damages
in the amount of $30,088.20 in ERISA contributions due and owing, as well as $2,314.35 in non-
ERISA contributions due and owing, plus interest accrued on each amount. (Steinberg Decl. ¶¶
10(a), (g)). However, on July 10, 2025, counsel filed a supplemental Declaration of James M.
Steinberg, Esq. In Further Support of Plaintiff’s Motion for Default Judgment, in which he
indicated that following the filing of the Motion for default judgment, plaintiffs received a partial
payment for the ERISA contributions in question from Graci’s general contractor Tishman
Construction Corporation of New York, in the amount of $4,369.20. (Steinberg Supp. Decl.5 ¶
2). In addition, plaintiffs identified an open credit for defendant Graci in the amount of $317.76.
(Id.) 	After applying these credits to the principal amount of the ERISA contributions deficiency,
plaintiffs now seek a revised deficiency principal of $25,401.24. (Id.) The adjusted amount,
along with a revised calculation of interest owed from May 8, 2025, through June 27, 2025, is set
forth in an Amended Statement of Damages (“Am. Stmt.”) and Amended Proposed Default
Judgment, attached to Mr. Steinberg’s supplemental Declaration. (Id. Attachments 2, 3).
Accordingly, having reviewed the various exhibits attached to the Motion for default
judgment, and the supplemental Declaration of Mr. Steinberg, the Court respectfully
recommends that plaintiffs be awarded $25,401.24 in unpaid ERISA contributions and $2,314.35
5 Citations to “Steinberg Supp. Decl.” refer to the supplemental Declaration of James M. Steinberg, dated
July 10, 2025 (ECF No. 19). Another version of this declaration, with fewer documents, was submitted earlier on
the same day (ECF No. 18); the Court refers to the later version that includes the same documents and additional
ones, such as the Amended Statement of Damages.
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in non-ERISA contributions. (Steinberg Supp. Decl.; Am. Stmt.).
2. 	Interest and Liquidated Damages
Pursuant to ERISA, defendant Graci is liable to the plaintiffs for interest on the amount
of the unpaid ERISA contributions at the rate provided for in the plan. 29 U.S.C. §
1132(g)(2)(B). The Trust Agreements provide that if a contributing employer defaults in the
making of its contribution payments, interest shall accrue at the annual rate of 6.0%, calculated
from the date the contributions were due. (Pls.’ Mem.6 at 9 (citing Exs. E (Annuity Fund), F
(Pension Fund), G (Welfare Fund), H (Training Fund))). Based on the audit report, adjusted to
account for the payments identified in Mr. Steinberg’s supplemental Declaration, plaintiffs seek a
total amount of $1,623.41 in interest accrued on the ERISA contributions through May 7, 2025,
together with additional interest earned through the date of judgment. (Steinberg Supp. Decl.,
Am. Stmt.). Plaintiffs have calculated the interest accumulated from May 8, 2025, through June
27, 2025, as $212.95. (Steinberg Supp. Decl., Attachment 3, at 2). As of November 21, 2025,
the date of this Report and Recommendation, 147 days have passed since June 28, 2025. Using
the formula on which plaintiffs rely in calculating the interest rate through May 7, 2025
(Madeiras Aff.7 ¶ 6), the Court calculates that since June 27, 2025, $613.818 in interest has
accrued on the unpaid ERISA contributions. The total interest due to plaintiffs on the unpaid
delinquent ERISA contributions therefore amounts to $2,450.17.9
6 Citations to “Pls.’ Mem.” refer to Plaintiffs’ Memorandum of Law In Support of Plaintiffs’ Motion for
Default Judgment Against Defendant Graci Paving Associates Inc., filed June 27, 2025 (ECF No. 16).
7 Citations to “Madeiras Aff.” refer to the Affidavit of Lisa Madeiras in Support of Plaintiffs’ Motion for
Default Judgment, filed June 27, 2025 (ECF No. 15). The formula used is: “[number of days] x [interest rate (6%)] /
[365 days] x [amount owed in straight + overtime contributions].” (Id. ¶ 6).
8 147 days (x) 0.06/365 (x) $25,401.24 = $613.81.
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With respect to the non-ERISA contributions owed, which amount to $2,314.35 (Am.
Stmt.), plaintiffs seek interest accrued at the rate of 9.0% per annum in accordance with Section
5004 of the New York CPLR. (Pl.’s Mem. at 15 (citing Annuity, Pension, Welfare & Training
Funds of the Int’l Union of Operating Engineers Local 14-14B, AFL-CIO v. Superior Site Work,
No. 15 CV 543, 2017 WL 639248 (E.D.N.Y. Feb. 16, 2017))). Under New York law, where
damages were “incurred at various times, interest shall be computed upon each item from the
date it was incurred or upon all of the damages from a single reasonable intermediate date.”
N.Y. CPLR § 5001(b). Plaintiffs have selected March 1, 2025 as the midpoint date in the
deficiency period identified by the audit, citing various ERISA cases. (Pls.’ Mem. at 15 (citing
Alston v. Northstar La Guardia LLC, No. 10 CV 3611, 2010 WL 3432307, at *3 (S.D.N.Y. Sept.
3, 2010) (citations omitted))). Using March 1, 2025 as the reasonable midpoint date, and
counting through June 27, 2025, plaintiffs calculate that they would be entitled to interest on the
non-ERISA contributions in the amount of $63.91. (Steinberg Supp. Decl., Attachment 3, at 2).
However, the reasonable midpoint date in this case would not be March 1, 2025, but
March 1, 2024. The delinquency period at issue is July 1, 2023, through October 31, 2024. The
midpoint of this approximately sixteen-month date range (488 days) would be 244 days after
July 1, 2023, or March 1, 2024. See Alston v. Northstar La Guardia LLC, at *3-4 (finding that
the midpoint in the delinquency period of December 22, 2008, to December 27, 2009 was June
25, 2009); Annuity, Pension, Welfare & Training Funds of the Int’l Union of Operating
Engineers Local 14-14B, AFL-CIO v. Superior Site Work, 2017 WL 639248 at *9 (finding that
the midpoint date in the delinquency period of July 1, 2011, to December 15, 2014, was March
23, 2013). These courts chose dates resembling a halfway point between the start and end of the
9 $1,623.41 (interest through May 7, 2025) + $212.95 (interest from May 8, 2025, to June 27, 2025) +
$613.81 (interest from June 28, 2025, to November 21, 2025) = $2,450.17.
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identified deficiency period. See also Finkel v. Triple A Grp., Inc., 708 F. Supp. 2d 277, 288
(E.D.N.Y. 2010) (finding that the midpoint between the delinquency period of October 17, 2007
and December 19, 2007, was November 17, 2007). Given that plaintiffs cite to these precedents,
but incorrectly list March 1, 2025, the Court presumes that plaintiffs made a clerical mistake in
their papers by listing the midpoint of the deficiency period as one year later than the actual
reasonable midpoint. Thus, the Court considers March 1, 2024, as the reasonable midpoint date
from which to calculate the prejudgment interest on the non-ERISA contributions.
Since March 1, 2024, interest has continually accumulated on the non-ERISA
contributions. As of November 21, 2025, the date of this Report and Recommendation, 631 days
have passed since the reasonable midpoint date of March 1, 2024. From March 1, 2024, to
November 21, 2025, the amount of interest which has accrued on the delinquent non-ERISA
contributions, according to the formula set forth by the N.Y. CPLR and used in plaintiffs’
calculations (Madeiras Aff. ¶ 6), is therefore $360.09.10 N.Y. CPLR § 50014.
All told, Graci is liable to the plaintiffs for interest payments totaling $2,810.2611 since
the date that each contribution was owed.
Apart from interest due and owing on the delinquent contributions, Graci is required to
pay statutory damages on the ERISA contributions, calculated as the greater of 1) the interest on
unpaid contributions, or 2) liquidated damages as provided for under the plan that are not greater
than 20% of the delinquency. 29 U.S.C. § 1132(g)(2)(C). (See Pls.’ Mem. at 9-10). In this case,
plaintiffs note that the Trust Agreements do not provide for a liquidated damages calculation, and
therefore plaintiffs seek an award of statutory damages equal to the amount of interest owed on
10 631 days (x) 0.09/365 (x) $2,314.35 = $360.09
11 This number accounts for the $2,450.17 in interest accrued on the ERISA contributions, and the $360.09
accrued on the non-ERISA contributions.
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the delinquent ERISA contributions, or $2,450.17. (Id. at 10). The Court respectfully
recommends awarding damages equal to the interest awarded on the delinquent ERISA
contributions.
Based on a review of the CBA, the Trust Agreements, the Steinberg Declaration and
supplemental Declaration and exhibits thereto, the Court respectfully recommends that plaintiffs
be awarded $1,623.41 in interest owed on past due ERISA contributions through May 7, 2025;
$826.76 in interest accumulated on the ERISA delinquent contributions since May 8, 2025,
through the date of this Report and Recommendation; and $2,450.17 in statutory damages to
reflect the total interest on the ERISA contributions. In addition, the Court respectfully
recommends that plaintiffs be awarded $360.09 in interest accumulated on the non-ERISA
delinquent contributions since March 1, 2024, through the date of this Report and
Recommendation.
Adding the unpaid contributions to the total interest and statutory damages, as outlined
above, the total amount in damages to which plaintiffs are entitled as of the date of this Report
and Recommendation is $32,976.02.12 The Court respectfully recommends that plaintiffs be
awarded this amount. Should the district court adopt this Report and Recommendation, the
Court recommends that the above interest amounts be adjusted based on the filing date of the
district court’s adoption Order, according to plaintiffs’ formulae.
3. 	Attorney’s Fees and Costs
12 This number accounts for the unpaid delinquent contributions ($25,401.24 in ERISA contributions,
$2,314.35 in non-ERISA contributions), the interest on all contributions ($2,450.17 in interest accrued on ERISA
contributions, plus $360.09 in interest accrued on non-ERISA contributions), and statutory damages equaling the
interest on the ERISA contributions ($2,450.17).
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Pursuant to 29 U.S.C. § 1132(g)(2)(D) and the CBA, plaintiffs seek to collect attorney’s
fees and costs. (Steinberg Decl. ¶¶ 11-13). With respect to attorney’s fees, ERISA provides that
when an employee benefit fund prevails in a legal action, the defendant is liable for legal costs.
29 U.S.C. § 1132(g)(2)(D). Here, the Trust Agreements also establish that the employer is liable
for legal costs once the employer is in default. (Pls.’ Mem. at 10-11 (citing Exs. E, F, G, H)).
Plaintiffs request an award of $2,850.00 in legal fees and $530.00 in costs. (Pls.’ Mem. at 12-
13).
“The district court retains discretion to determine . . . what constitutes a reasonable fee.”
Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (quoting LeBlanc-Sternberg v.
Fletcher, 143 F.3d 748, 758 (2d Cir. 1998)). “The traditional starting point for determining a
reasonable attorneys’ fee award is the ‘lodestar’ amount, which results in a presumptively
reasonable fee.” Dunn v. Advanced Credit Recovery, Inc., No. 11 CV 4023, 2012 WL 676350, at
*5 (S.D.N.Y. Mar. 1, 2012) (citing Perdue v. Kenny A., 559 U.S. 542, 551-52 (2010)), report &
recommendation adopted by, 2012 WL 1114335 (S.D.N.Y. Apr. 3, 2012); see also Millea v.
Metro-North R.R. Co., 658 F.3d at 166-67 (explaining that it is legal error to fail to calculate the
lodestar “as a starting point”); Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of
Albany, 522 F.3d 182, 188-90 (2d Cir. 2008).
To determine the lodestar amount, a court must determine “the number of hours
reasonably expended on the litigation” and multiply that number “by a reasonable hourly rate.”
Moore v. Diversified Collection Servs., Inc., No. 07 CV 397, 2013 WL 1622949, at *1 (E.D.N.Y.
Mar. 19, 2013) (internal citations and quotation marks omitted), report & recommendation
adopted by, 2013 WL 1622713 (E.D.N.Y. Apr. 15, 2013); see also Adusumelli v. Steiner, Nos. 08
CV 6932, 09 CV 4902, 10 CV 4549, 2013 WL 1285260, at *2 (S.D.N.Y. Mar. 28, 2013)
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(explaining that “[c]ourts in the Second Circuit use the familiar ‘lodestar’ method of calculating
reasonable attorney’s fees – multiplying the number of hours reasonably expended by a
reasonable hourly rate”) (citing Millea v. Metro-North R.R., Co., 658 F.3d at 166); Dunn v.
Advanced Credit Recovery, Inc., 2012 WL 676350, at *5.
Although the lodestar approach results in a “presumptively reasonable” fee, “it is not
‘conclusive in all circumstances.’” Millea v. Metro-North R.R. Co., 658 F.3d at 166-67 (quoting
Perdue v. Kenny A., 559 U.S. at 553). Rather, in “rare circumstances,” a court may adjust the
lodestar “when [the lodestar method] ‘does not adequately take into account a factor that may
properly be considered in determining a reasonable fee.’” Id. at 167 (quoting Perdue v. Kenny
A., 559 U.S. at 554); see also Adusumelli v. Steiner, 2013 WL 1285260, at *2. The burden is on
the party moving for attorney’s fees to justify the hourly rates sought. See Hensley v. Eckerhart,
461 U.S. 424, 437 (1983). In addition to the parties’ evidentiary submissions, the Court may
consider its own experience and familiarity with the case and with rates generally charged. See
Cruz v. Local Union No. 3 of the Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir. 1994)
(noting that “[a] district court’s ‘choice of rates [is] well within [its] discretion’”) (alteration in
original) (quoting Cabrera v. Jakobovitz, 24 F.3d 372, 393 (2d Cir. 1994), cert. denied, 513 U.S.
876 (1994) (internal quotation marks omitted)). To “inform and assist the court in the exercise of
its discretion, the burden is on the fee applicant to produce satisfactory evidence – in addition to
the attorney’s own affidavits – that the requested rates are in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience, and
reputation.” Blum v. Stenson, 465 U.S. 866, 895 n.11 (1984).
The Second Circuit has held that in calculating the presumptively reasonable fee,
“courts ‘should generally use the hourly rates employed in the district in which the reviewing
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court sits . . . ’” Simmons v. New York City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009)
(citations and internal quotation marks omitted) (holding that when awarding attorney’s fees,
there is a presumption in favor of relying on the rates where the case is litigated, not where the
attorneys are located). Indeed, as the court in Simmons noted, in determining the
“presumptively reasonable fee,” courts should consider what a reasonable client would be
willing to pay, keeping in mind that “a reasonable, paying client . . . wishes to spend the
minimum necessary to litigate the case effectively.” Id. (citations and internal quotation marks
omitted); see also Cook v. First Revenue Assurance, LLC, No. 10 CV 5721, 2012 WL 272894,
at *3 (E.D.N.Y. Jan. 9, 2012), report and recommendation adopted, 2012 WL 272891 (E.D.N.Y.
Jan. 30, 2012). In awarding attorney’s fees in the present case, the Court is guided principally
by the fact that default actions are relatively simple legal matters, taking into account as well
the attorney’s degree of skill and the Court’s own experience dealing with similar claims.
Plaintiffs’ counsel from Brady McGuire & Steinberg, P.C. (“the Firm”) has submitted
detailed billing records, as required by New York State Association for Retarded Children, Inc. v.
Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). (Steinberg Decl., Ex. L). The Firm seeks $2,850.00
in fees, representing 6.25 hours spent by Mr. Steinberg on the matter. (Steinberg Decl. ¶¶ 11, 12,
Ex. L). According to his Declaration, Mr. Steinberg has been practicing in this field of law for
over 30 years since February 1995, and he bills at the rate of $456 per hour. (Id. ¶¶ 11, 12).
Having reviewed the Firm’s billing records and being familiar with similar cases in
which attorney’s fees have been awarded for ERISA related litigation, the Court finds the request
for 6.25 hours of work to be reasonable, and the rate of $456 per hour to be in line with similar
fee awards for lawyers with the amount of experience of Mr. Steinberg.
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Plaintiffs also seek an award of costs in the amount of $530, representing $405 for the
filing fee and $120 for service of process fees. (Pls.’ Mem. at 13). Under ERISA, an award of
costs is mandatory. 29 U.S.C. § 1132(g)(2)(D); see Finkel v. Detore Elec. Constr. Co., Inc., No.
11 CV 0814, 2019 WL 1077796, at *12 (E.D.N.Y. Mar. 6, 2012). Here, the Court takes judicial
notice of the filing fee of $405 and finds the $120 service of process fee supported by the invoice
submitted by U.S. Process Service. (Steinberg Decl., Ex. M). However, the filing fee and
service fee add up to $525, not $530.
Accordingly, it is respectfully recommended that plaintiffs be awarded $2,850.00 in
attorney’s fees, and $525 in costs.
Any objections to this Report and Recommendation must be filed with the Clerk of the
Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (providing the
method for computing time). Failure to file objections within the specified time waives the right
to appeal the District Court’s order. See, e.g., Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d
Cir. 2008).
Plaintiffs are directed to serve this Report and Recommendation on the defendant and file
proof of service on the docket immediately thereafter.
SO ORDERED.
Dated: Brooklyn, New York
November 21, 2025
/s/ Cheryl L. Pollak
Cheryl L. Pollak
United States Magistrate Judge
Eastern District of New York
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