Trustees of the Pavers and Road Builders District Council Welfare, Pension, and Annuity Funds and the Trustees of the Local 1010 Apprenticeship, Skill Improvement and Training Fund v. Graci Paving Associates, Inc.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TRUSTEES OF THE PAVERS AND ROAD
BUILDERS DISTRICT COUNCIL
WELFARE, PENSION, and ANNUITY
FUNDS and THE TRUSTEES OF THE
LOCAL 1010 APPRENTICESHIP, SKILL
IMPROVEMENT AND TRAINING FUND
Plaintiffs,
v.
GRACI PAVING ASSOCIATES, INC.,
Defendant.
-----------------------------------------------------------X
LEE G. DUNST, Magistrate Judge:
Plaintiffs Trustees of the Pavers and Road Builders District Council Welfare, Pension,
and Annuity Funds and the Trustees of the Local 1010 Apprenticeship, Skill Improvement, and
Training Fund (collectively, “Plaintiffs”) seek default judgment and other relief (the “Motion”)
against Defendant Graci Paving Associates, Inc. (“Graci Paving”) for its alleged violations of
Section 515 of the Employee Retirement Income Security Act (“ERISA”) of 1974, as amended,
29 U.S.C. § 1001, et seq., and Section 301 of the Labor-Management Relations Act (“LMRA”)
of 1947, as amended, 29 U.S.C. § 141, et seq. See Electronic Case Number (“ECF”) No. 13.
On October 16, 2025, District Judge Nusrat J. Choudhury referred the Motion to the
undersigned for a Report and Recommendation. See Electronic Order, dated October 16, 2025.
For the reasons below, the undersigned respectfully recommends that the Court grant the Motion
in its entirety.
REPORT AND
RECOMMENDATION
25-CV-03937 (NJC) (LGD)
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I. BACKGROUND
A. Factual Background
Plaintiffs are employer and employee trustees charged with overseeing various multi-
employer labor management trust funds established pursuant to Section 302 of the LMRA (the
“Funds”).1 See ECF No. 1 at ¶ 4; ECF No. 14-4; ECF No. 15-1. Graci Paving is a corporation
organized under New York law with a principal place of business in Massapequa, New York.
See ECF No. 1 at ¶ 5. Plaintiffs allege that “[a]t all relevant times, [Graci Paving] was a party to,
or manifested an intention to be bound by, a collective bargaining agreement (the ‘CBA’) with
the Highway, Road and Street Construction Laborers Local Union 1010 (the ‘Union’).” Id. at
¶ 9; see also ECF No. 14-2 (the CBA).2
The CBA states that the “[e]mployer is bound by all of the terms and conditions of the
Agreements and Declarations of Trust with respect to the Welfare Fund, Pension Fund, Training
Fund and Annuity Fund, which Agreements and Declarations of Trust are hereby made part of
this [CBA] and are incorporated herein.” ECF No. 14-2 at 23; see also ECF No. 1 at ¶ 9
(quoting the “Trust Agreements”). The CBA requires “[Graci Paving] to remit specified benefit
contributions to the Funds and related entities on behalf of which the Funds act as collection
agents, in connection with all work performed within the trade and geographical jurisdiction of
the Union (‘Covered Work’).” ECF No. 1 at ¶ 13. Additionally, the CBA requires that Graci
1 These facts are taken from Plaintiffs’ Complaint, the Motion, and documents filed in support of the
Motion. See ECF No.; ECF No. 13; ECF No. 14–18. The facts are assumed to be true for the purposes of this
Motion. See BASF Corp. v. Original Fender Mender, Inc., No. 23-CV-2796, 2023 WL 8853704, at *1 (E.D.N.Y.
Dec. 22, 2023), report and recommendation adopted (E.D.NY. Jan. 9, 2024) (taking the facts as stated in the
Plaintiff’s complaint, default judgment motion, and attachments supporting the motion as true); Esquivel v. Lima
Rest. Corp., No. 20-CV-2914, 2023 WL 6338666, at *1 (E.D.N.Y. Sept. 29, 2023) (same).
2 The relevant CBA covered the period of July 1, 2022 to June 30, 2025. See ECF No. 14 at ¶ 7; ECF No.
14-2 at 1, 39. Plaintiffs’ documentation submitted in support of the Motion references a subsequent collective
bargaining agreement covering the period of July 1, 2025 to June 30, 2028. See ECF No. 14 at ¶ 8; ECF No. 14-3 at
1, 41. The latter agreement is not at issue in this case.
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Paving “forward specified dues check-offs3 and other contributions to the Union (‘union
assessments’) for each hour of Covered Work performed by [Graci Paving’s] employees.” Id. at
¶ 14.
Plaintiffs’ Board of Trustees (the “Board”), using the authority vested in it by their
respective Trust Agreements, “promulgated a Policy for Collection of Delinquent Fringe Benefit
Contributions (the ‘Collection Policy’).” ECF No. 1 at ¶ 12; see also ECF No. 15-2 (the
Collection Policy). The Collection Policy provides that, should an employer be more than two
months delinquent in its contributions and fail to submit remittance reports, the Board may
calculate the contributions owed using an estimation protocol. See ECF No. 15 at ¶ 17; ECF No.
15-2 at 9–10 (describing the estimation protocol).
The CBA and Collection Policy require Graci Paving “to remit its contributions to the
Funds on or before the 35th day following the close of the month in which the hours were
worked.” ECF No. 1 at ¶ 15. To assist Plaintiffs in overseeing this contribution requirement, the
CBA and Collection Policy require that Graci Paving “submit remittance reports to the Funds
detailing the number of hours of Covered Work performed by each of its employees on or before
the 35th day following the close of the month in which the hours were worked.” Id. ¶ 16. If
Graci Paving fails to timely remit contributions to the Funds, the CBA and Collection Policy
permit Plaintiffs to recover multiple categories of relief: (1) the delinquent benefit contributions;
(2) liquidated damages representing 10% of the delinquent contributions; (3) interest on late-paid
contributions calculated at 10% annually; (4) delinquent union assessments and dues check-offs;
(5) attorney’s fees; (6) court disbursements and costs; (7) auditing expenses; and (8) additional
3 Dues check-offs, which are common to many collective bargaining agreements, are “automatic
deduction[s]” from an employee’s paycheck that generally consist of “union initiation fees, dues, and assessments.”
United Food & Com. Workers Dist. Union Loc. One, AFL-CIO v. N.L.R.B., 975 F.2d 40, 41 (2d Cir. 1992).
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damages available pursuant to ERISA. See ECF No. 1 at ¶ 20; ECF No. 14-2 at 26; see also ECF
No. 15-2 at 3.
Plaintiffs allege that Graci Paving failed to submit remittance reports for the period of
January to June 2025. See ECF No. 1 at ¶ 27. Therefore, Plaintiffs allege that Graci Paving
“owes the Funds contributions, union assessments, and dues check-offs in an unknown amount”
for that period, to be “determined in accordance with the Collection Policy.” Id.
B. Procedural Background
Plaintiffs commenced this lawsuit on July 16, 2025, asserting two causes of action:
(1) unpaid contributions under Section 515 of the ERISA (29 U.S.C. § 1145), and (2) violation of
the CBA under Section 301 of the LMRA § 301 (29 U.S.C. § 185). See id. ¶¶ 30–42.
Plaintiffs properly served Graci Paving with the Summons and Complaint on July 18,
2025. See ECF No. 7. Graci Paving failed to answer, move, or otherwise respond to the
Complaint. Plaintiffs sought a certificate of default on August 14, 2025, which the Clerk of the
Court granted the same day. See ECF No. 9 (request for the certificate of default); ECF No.
(entry of default).
On October 3, 2025, Plaintiffs moved for default judgment. See ECF Nos. 13–18. On
October 16, 2025, Judge Choudhury referred the Motion to the undersigned. See Electronic
Order, dated October 16, 2025. Despite service of the pleadings, certificate of default, and
Plaintiffs’ default judgment motion papers,4 Graci Paving has still failed to appear or respond to
4 On December 31, 2025, the undersigned ordered Plaintiffs “to file a supplemental submission
by 1/9/2026 confirming that they have properly served [Graci Paving] with their motion papers and supporting
documents.” Electronic Order, dated December 31, 2025 (emphasis in original). Plaintiffs certified service of their
default judgment motion papers on January 5, 2026. See ECF No. 25. It should be noted that the undersigned’s prior
orders that explicitly referenced default judgment previously had been served on Graci Paving. See ECF No. 19;
ECF No. 20; ECF No. 22; ECF No. 24; ECF No. 27. On January 12, 2026, the undersigned directed Defendants to
respond to the pending motion for default judgment by January 21, 2026. See Electronic Order, dated January 12,
2026. The order was served on Defendant (see ECF No. 27), and they continued to fail to respond or contact the
Court by that deadline.
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the Motion. On November 19, 2025, the undersigned issued an order scheduling an initial
teleconference for December 1, 2025, and reminded Graci Paving that “failure to comply with
this Order may result in an entry of default judgment based on the present record.” See
Electronic Order, dated November 19, 2025; see also ECF No. 22 (certifying service of the
November 19, 2025 Order). Graci Paving failed to attend the teleconference, and the
undersigned noted that the Motion “remain[ed] under advisement.” ECF No. 23 (December 1,
2025 minute order); EFC No. 24 (certifying service of the December 1, 2025 minute order).
II. LEGAL STANDARD
A. Default Judgment
“Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for
obtaining a default judgment.” Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011).
First, “[w]hen a party against whom a judgment for affirmative relief is sought has failed to
plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must
enter the party’s default.” See FED. R. CIV. P. 55(a). Second, after default has been entered, and
the defendant fails to appear or move to set aside the default under Rule 55(c), the Court may, on
the plaintiff’ motion, enter a default judgment against the defendant. See FED. R. CIV. P.
55(b)(2).
If a default is granted, the well-pleaded factual allegations set forth in the complaint are
deemed true. See Windward Bora LLC v. Thomas, No. 20-CV-6046, 2022 WL 5114489, at *3
(E.D.N.Y. Sept. 30, 2022) (citation omitted). When evaluating a motion for default judgment,
however, the court “must ensure that (1) jurisdictional requirements are satisfied; (2) the plaintiff
took all the required procedural steps in moving for default judgment; and (3) the plaintiff's
allegations, when accepted as true, establish liability as a matter of law.” Cooper v. Fire & Ice
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Trucking, Corp., No. 23-CV-1675, 2024 WL 3344001, at *3 (E.D.N.Y. July 9, 2024) (citation
omitted); see also Windward Bora, 2022 WL 5114489, at *3 (explaining that the court has the
responsibility to “ensure that the factual allegations, accepted as true, provide a proper basis for
liability and relief.” Id. (internal citation omitted)).
B. Damages
After finding the defaulting party liable, the court must decide whether, and in what
amount, to award damages. See A&B Alternative Mktg. Inc. v. Int'l Quality Fruit Inc., 521 F.
Supp. 3d 170, 176 (E.D.N.Y. 2021), aff'd, 35 F.4th 913 (2d Cir. 2022) (“A defendant's default
does not constitute an admission as to the damages claimed in the complaint.”). The plaintiff has
the burden to establish by a “reasonable certainty” his entitlement to the relief requested. See
Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999).
Rule 55 provides that, if “it is necessary to take account or to determine the amount of
damages or to establish the truth of any averment by evidence . . . the court may conduct such
hearings or order such references as it deems necessary and proper.” See id. at 154. Rule
55(b)(2) does not mandate that a district court hold a hearing, as judges have discretion to
determine what is “necessary and proper.” See McLean v. Wayside Outreach Dev., Inc., 624 F.
App'x 44, 45 (2d Cir. 2015) (citation omitted). To evaluate damages, the court may conduct an
inquest (see FED. R. CIV. P. 55(b)(2)(B)), or it may rely on the plaintiff’s affidavits and other
documentary evidence. See Bricklayers & Allied Craftworkers Local 2 v. Moulton Masonry &
Constr., LLC, 779 F.3d 182, 189 (2d Cir. 2015).
III. DISCUSSION
As explained below, Plaintiffs have satisfied the jurisdictional, procedural, and liability-
based prerequisites of Rule 55. Accordingly, the undersigned finds that Plaintiffs are entitled to
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default judgment.
A. Jurisdictional Requirements
The Court “may not enter a default judgment unless it has both subject-matter jurisdiction
over the action and personal jurisdiction” over the Defendant. Cooper, 2024 WL 3344001, at *3
(citing Covington Indus., Inc. v. Resintex A.G., 629 F.2d 730, 732 (2d Cir. 1980)).
1. Subject Matter Jurisdiction
As alleged in the Complaint, Plaintiffs are pursuing claims under ERISA § 515 (29
U.S.C. § 1145) and LMRA § 301 (29 U.S.C. § 185). See ECF No. 1 at ¶¶ 30–42. Thus, the
Court has federal question jurisdiction over Plaintiffs’ ERISA and LMRA claims pursuant to 28
U.S.C. § 1331. See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all
civil actions arising under the . . . laws . . . of the United States.”). Additionally, the Court has
subject matter jurisdiction over Plaintiff’s ERISA claims pursuant to 29 U.S.C. § 1332. See 29
U.S.C. § 1332(a)(3) (allowing the “participant, beneficiary, or fiduciary” of an employee benefit
plan to bring a civil action to enjoin violations of the plan and obtain equitable relief).
2. Personal Jurisdiction
Personal jurisdiction must comport with state law and the United States Constitution. See
Relevant Sports, LLC v. U.S. Soccer Fed'n, Inc., 61 F.4th 299, 305 (2d Cir. 2023) (analyzing
personal jurisdiction under New York law and the Due Process Clause). New York law
authorizes personal jurisdiction over corporations served through the Secretary of State. See
N.Y. C.P.L.R. § 311(a)(1) (allowing personal service on a corporation “pursuant to section
hundred six . . . of the business corporation law”); N.Y. BUS. CORP. L. § 306(b)(1)(i) (permitting
service of process on a corporation through personal service on the Secretary of State).
Plaintiffs served Graci Paving by personally serving the Secretary of State with the
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Summons and Complaint on July 18, 2025.5 See ECF No. 7. Service on Graci Paving “through
the Secretary of State is permitted because [i]n New York, the business corporation law requires
that corporations . . . register with the Secretary of State and authorize the Secretary of State to
accept legal process to guarantee that those aggrieved by their acts or omissions can have access
to justice.” Logan v. World Luxury Cars, Inc., No. 15-CV-248, 2022 WL 2466834, at *4
(E.D.N.Y. Mar. 30, 2022), report and recommendation adopted, 2023 WL 156878 (E.D.N.Y.
Jan. 11, 2023) (internal quotation marks and citation omitted). The use of these state procedures
“is in fact a form of constructive consent to personal jurisdiction which has been found to satisfy
due process.” Id. (internal quotation marks and citation omitted).
Additionally, this Court has personal jurisdiction over a defendant who is served with a
summons and “is subject to the jurisdiction of a court of general jurisdiction in the state where
the district court is located.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50,
59 (2d Cir. 2012) (quoting FED. R. CIV. P. 4(h)(1)(A)). New York state courts have general
jurisdiction over corporations that are formed under state law and operating within the state. See
Annuity, Pension, Welfare, Training & Lab. Mgmt. Cooperation Tr. Funds of Int'l Union of
Operating Eng'rs Loc. 14-14B, AFL-CIO v. C.M. Ashland Constr., 714 F. Supp. 3d 167, 175
(E.D.N.Y. 2024) (“New York state has general jurisdiction over corporations formed under its
laws and operating within the state.”). Graci Paving is a corporation organized under New York
law and has been properly served the Summons and Complaint. See ECF No. 1 at ¶ 5; ECF No.
7.
In either case, the Court finds that it has personal jurisdiction over Graci Paving in
accordance with state law, the Federal Rules of Civil Procedure, and due process requirements.
5 Although not required for personal jurisdiction purposes, Plaintiffs also provided Defendant with a copy
of the Summons, Complaint, and Litigation Hold Notice via certified mail and email. See ECF No. 17-3.
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B. Procedural Requirements
Plaintiffs must meet certain procedural requirements to pursue the Motion. First,
Plaintiffs must prove that they properly served Graci Paving pursuant to the Federal Rules of
Civil Procedure, and that the Clerk of Court properly entered a certificate of default. Next,
Plaintiffs must demonstrate compliance with Local Rule 55.2. See E.D.N.Y. Loc. Civ. R. 55.2.
1. Federal Rule of Civil Procedure 4
Under Rules 4(e)(1) and 4(h)(1)(A), a party may serve an individual and a corporation in
accordance with the rules of the “state where the district is located or where service is made.”
FED. R. CIV. P. 4(e)(1); id. 4(h)(1)(A). New York law permits service of process on a corporation
through the Secretary of State. See N.Y. C.P.L.R. § 311(a)(1); N.Y. BUS. CORP. L.
§ 306(b)(1)(i). Here, Plaintiffs personally served the Secretary of State with the Summons and
Complaint on July 18, 2025. See ECF No. 7. Therefore, the Court finds that Plaintiffs properly
served Graci Paving with the Summons and Complaint in compliance with Rule 4.
2. Entry of Default
The Court next determines that the Clerk of Court properly entered a certificate of default
against Graci Paving. Plaintiffs served Graci Paving on July 18, 2025 (see ECF No. 7), and
Graci Paving was required to answer, move, or otherwise respond to the Complaint by August 8,
2025. See FED. R. CIV. P. 12(a)(1)(A)(i). Graci Paving failed to do so, and Plaintiffs requested a
certificate of default on August 14, 2025. See ECF No. 9. The Clerk of the Court properly
entered default against Graci Paving on the same day. See ECF No. 11.
3. Local Rule 55.2
The Court also finds that Plaintiffs have satisfied the procedural requirements in this
Court’s Local Civil Rule 55.2 (hereinafter “Local Rule 55.2”). Local Rule 55.2 sets forth the
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procedural requirements for requesting a default judgment. “Local Rule 55.2 is strictly
construed, and failure to comply with the rule is alone a basis to deny the motion for default
judgment.” Santacruz v. Blok Chocolatier LLC, No. 19-CV-544, 2021 WL 4341103, at *2
(E.D.N.Y. June 23, 2021), report and recommendation adopted, 2021 WL 4340963 (E.D.N.Y.
Sept. 23, 2021).
a. Local Rule 55.2(a)(1)(A)– (C)
First, the movant must file an affidavit or declaration showing (1) that the Clerk of the
Court entered default, (2) that the movant has complied with the Servicemembers Civil Relief
Act, 50a U.S.C. § 521 (“SCRA”), and (3) that the party against whom judgment is sought is not
known to be a minor or incompetent person. See E.D.N.Y. Loc. Civ. R. 55.2(a)(1)(A)-(C).
Plaintiffs have satisfied these requirements. See ECF No. 17 at 2-3 (affirming that the
Clerk of the Court entered default, that Graci Paving “is not an infant or incompetent,” and that
“[Graci Paving] is a corporation and therefore, is not in military service”).
b. Local Rule 55.2(a)(2)–(3)
Second, the movant must file (1) a memorandum of law, (2) a proposed order detailing
the proposed judgment to be entered, and (3) a certificate of service stating that all documents in
support of the motion, including the Clerk’s certificate of default, have been personally served on
or mailed to the last known residence (for an individual) or business address (for a company).
E.D.N.Y. Loc. Civ. R. 55.2(a)(2)-(3).
Plaintiff have met each of these requirements. See ECF No. 18 (memorandum of law);
ECF No. 17-9 (proposed order detailing Plaintiffs’ proposed judgment); ECF No. 25 (certificate
of service).
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c. Local Rule 55.2(c)
Finally, the movant must file “a statement of damages, sworn or affirmed to by one or
more people with personal knowledge, in support of the request, showing the proposed damages
and the basis for each element of damages, including interest, attorney’s fees, and costs.”
E.D.N.Y. Loc. Civ. R. 55.2(c). Again, Plaintiffs have satisfied this requirement. See ECF No.
17-10 (statement of damages).
C. Liability
Having assured itself that the jurisdictional and procedural prerequisites to entering a
default judgment have been satisfied, the Court must “assess whether Plaintiff’s well-pleaded
factual allegations establish Defendants’ liability as a matter of law.” Cooper, 2024 WL
3344001, at *6; Lakers for Garmets & Made Clothes v. Jetax Inc., No. 24-CV-2226, 2025 WL
3461453, at *10 (E.D.N.Y. Sept. 17, 2025) (“[I]t [is] the plaintiff's burden to demonstrate that
th[e] uncontroverted allegations, without more, establish the defendant's liability on each
asserted cause of action.” (citation omitted)). As explained below, Plaintiffs have thoroughly
established Graci Paving’s liability on their ERISA and LMRA claims. Thus, the undersigned
recommends that the Motion be granted.
1. Plaintiffs have Established Liability on their ERISA Claim
Plaintiffs’ first cause of action against Graci Paving arises under ERISA § 515 (29 U.S.C.
§ 1445) for “unpaid contributions . . . for the period October 1, 2023 through December 31,
2024,” and for “unpaid contributions . . . for the period January through May 2025.” ECF No. 1
at 6–7. ERISA Section 515 states that:
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.
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29 U.S.C. § 1145; see also Trs. of Metal Polishers Loc. 8A-28A Funds v. Legacy Restoration
Metal Stone Wood, LLC, No. 24-CV-5192, 2025 WL 3461171, at *6 (E.D.N.Y. Aug. 29, 2025)
(noting that, “under Section 515, ‘employers are required to pay fringe benefit contributions
pursuant to an effective collective bargaining agreement.’” (quoting Flanagan v. Marco Martelli
Assocs., Inc., No. 13-CV-6023, 2015 WL 1042279, at *8 (E.D.N.Y. Mar. 9, 2015))). “To
establish a violation of Section 515, Plaintiffs must show that Defendant is (1) an employer, (2)
bound by a CBA that required payment of contributions, who (3) failed to make those
contributions.” Legacy Restoration, 2025 WL 3461171, at *6.
Here, Plaintiffs allege that Graci Paving is an “employer” within the meaning of ERISA.
“An ‘employer’ is ‘any person acting directly as an employer, or indirectly in the interest of an
employer, in relation to an employee benefit plan . . . and includes a group or association of
employers acting for an employer in such capacity.” Annuity, Welfare & Apprenticeship Skill
Improvement & Safety Funds of Int'l Union of Operating Eng'rs Loc. 15, 15A, 15C & 15D, AFL-
CIO by Callahan v. Baymen Indus. Ltd., No. 22-CV-703, 2024 WL 4274949, at *7 n.16
(E.D.N.Y. Sept. 24, 2024) (quoting 29 U.S.C. 1005(a)); Trs. of Pavers & Rd. Builders Dist.
Council Welfare, Pension, & Annuity Funds v. Kore Contracting Corp., No. 24-CV-3235, 2025
WL 825049, at *8 (E.D.N.Y. Mar. 14, 2025) (same). Plaintiffs have demonstrated that Graci
Paving acts as an employer because it is a construction company that was bound by the CBA and
its employee benefit plan. See ECF No. 1 at ¶¶ 5, 913; ECF No. 14 ¶¶ 6–10 (“Loscalzo Decl.”);
ECF No. 15 ¶¶ 5–8 (“Montelle Decl.”); ECF No. 15-1 (employee benefit plan).
Plaintiffs also allege that the CBA required Graci Paving to remit benefit contributions to
the Funds. See ECF No. 1 at ¶¶ 13–15; ECF No. 14-2 at 23–24 (establishing the contribution
requirement and rates for Graci Paving). Despite this obligation, Plaintiffs assert that Graving
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Paving failed to pay benefit contributions from October 2023 to December 2024, and from
January 2025 to May 2025. See ECF No. 1 at ¶¶ 22–25, 27; Montelle Decl. at ¶¶ 13–32. These
allegations, taken as true, suffice to establish ERISA liability for these time periods. See Legacy
Restoration, 2025 WL 3461171, at *6 (finding that allegations of employer’s failure to remit
contributions in accordance with a collective bargaining agreement sufficed to establish liability
for default judgment purposes).
2. Plaintiffs have Established Liability on their LMRA Claim
Plaintiffs’ second cause of action, brought under LMRA § 301 (29 U.S.C. § 185), asserts
that Graci Paving breached the CBA. See ECF No. 1 at ¶¶ 37–42.
An employer’s breach of a collective bargaining agreement and documents incorporated
by reference is actionable under the LMRA. See 29 U.S.C. 185(a) (establishing a cause of action
for “[s]uits for violation of contracts between an employer and a labor organization representing
employees in an industry affecting commerce”); Trs. of Pavers & Rd. Builders Dist. Council
Welfare, Pension, & Annuity Funds v. IKNA Constr. LLC, No. 24-CV-561, 2025 WL 447731, at
*10 (E.D.N.Y. Jan. 15, 2025), report and recommendation adopted, 2025 WL 777108 (E.D.N.Y.
Mar. 11, 2025) (“An employer's breach of a collective bargaining agreement and/or trust
agreement . . . is actionable under the LMRA.” (citations omitted)). Once an employer’s
violation of a collective bargaining agreement is established, courts may enforce the agreement.
See Trs. of Pavers & Rd. Builders Dist. Council Welfare, Pension, Annuity, & Apprenticeship,
Skill Improvement & Safety Funds v. Peduto Constr. Corp., No. 19-CV-2306, 2020 WL
9814096, at *3 (E.D.N.Y. Feb. 27, 2020) (“Section 301(a) of the LMRA authorizes [the] Court
to enforce the CBA.”).
Plaintiffs allege that “[a]t all relevant times,” Graci Paving “was an employer in an
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industry affecting commerce.” ECF No. 1 at ¶ 5. Plaintiffs further allege that, in violation of the
CBA and Collection Policy, Graci Paving failed to: (1) remit contributions, union assessments,
and dues check-offs for the period of October 1, 2023 to December 31, 2024, (2) timely remit all
contributions for the periods (a) December 2023 and (b) February 2024 to June 2024, and
(3) submit remittance reports for the period of January to May 2025. See id. at ¶¶ 9–21, 37–42;
see also ECF No. 18 at 9–13. In the context of default judgment, these allegations are sufficient
to establish a claim under Section 301. See Ikna Constr., 2025 WL 447731, at *10; see also Trs.
of the Loc. 813 Ins. Tr. Fund v. A.A. Danzo Sanitation, Inc., No. 16-CV-318, 2018 WL 4268907,
at *3 (E.D.N.Y. Aug. 8, 2018), report and recommendation adopted, 2018 WL 4266038
(E.D.N.Y. Sept. 5, 2018) (finding LMRA liability based on allegations in the complaint and
documents supporting the plaintiffs’ default judgment motion).
IV. DAMAGES AND OTHER REMEDIES
“While a party's default is deemed to constitute a concession of all well pleaded
allegations of liability, it is not considered an admission of damages.” G & G Closed Cir.
Events, LLC v. Clayton, 779 F. Supp. 3d 317, 336 (E.D.N.Y. 2025) (quoting Greyhound
Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992)). Instead, the
Court must be satisfied that Plainiffs have “the burden of proving damages to the Court with
reasonable certainty.” Gov't Emps. Ins. Co. v. Onyema, 790 F. Supp. 3d 147, 166 (E.D.N.Y.
2025) (citation omitted). Defendants seek the following damages, costs, and other relief:
• $173,514.03 in delinquent benefit contributions for the periods of October 2023 to
December 2024, and January to June 2025;
• $7,705.32 in delinquent union assessments for the periods of October 2023 to
December 2024, and January to June 2025;
• $2,778.30 in delinquent union dues check-offs for the period of October 2023 to
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December 2024;
• $11,579.29 in pre-judgment interest calculated at an annual rate of 10%;
• $1,319.82 in late payment interest calculated at an annual rate of 10% for
contributions that were paid beyond their respective due dates during the periods of
(1) December 2023, and (2) February to June 2024;
• $17,351.40 in liquidated damages calculated as 10% of the delinquent benefit
contribution;
• $2,468.00 in audit costs;
• $4,630.80 in attorneys’ fees;
• $492.60 in court costs and disbursements; and
• Post-judgment interest.
See Montelle Decl.; ECF No. 15-2 (audit report); ECF No. 15-5 (calculations spreadsheet); EFC
No. 17-10 (statement of damages). As explained below, the undersigned finds that Plaintiffs
have established the above requested relief with reasonable certainty and recommends awarding
that relief.
A. ERISA Damages
Plaintiffs that have established liability under ERISA § 515 are entitled to: “(1) the
amount of unpaid contributions, (2) interest on the unpaid contributions, (3) liquidated damages,
(4) reasonable attorney's fees and costs, and (5) such other legal and equitable relief as the court
deems appropriate.” C.M. Ashland, 714 F. Supp. 3d at 180 (citation omitted); see also 29 U.S.C.
§ 1132(g)(2) (listing the recoverable damages and relief). “In ERISA cases seeking an award of
damages after a finding of liability, [c]ourts frequently rely on the affidavits, reports, and other
documentary evidence filed by plaintiffs.” Ikna Constr., 2025 WL 447731, at *12 (quoting
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Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of Int'l Union of
Operating Engineers Loc. 15, 15A, 15C & 15D, AFL-CIO by Callahan v. PETK, Inc., No. 22-
CV-3559, 2022 WL 19520880, at *4 (E.D.N.Y. Oct. 13, 2022)).
1. Delinquent Benefit Contributions
Plaintiffs seek $106,608.92 and $66,905.11 in contributions that remain unpaid, for the
periods of October 2023 to December 2024 and January to June 2025, respectively.
For the October 2023 to December 2024 period, Plaintiffs have provided supporting
documents, including the declarations of a Local 1010 Officer Keith Loscalzo (ECF No. 14) and
Funds Administrator Joseph Montelle (ECF No. 15), the CBA and applicable contribution rates
(ECF No. 14-2 at 23–24), remittance reports (ECF No. 15-3), an audit report (ECF No. 15-4),
and a spreadsheet calculating Graci Paving’s unpaid benefit contributions (ECF No. 15-5).
Plaintiffs’ audit report6 and calculations spreadsheet established that Graci Paving’s combined
unpaid benefit contributions for this period were $106,608.92. See ECF No. 15-4 at 4; ECF No.
15-5 at 2.
In light of Graci Paving’s failure to submit remittance reports for the January to June
2025 period, Plaintiffs relied on the estimation protocol in the Collection Policy. See ECF No.
15-2. Using the estimation protocol, Plaintiffs divided a three-month benefit contribution
average (discerned from prior remittance reports) by the Funds’ total benefit rate. See ECF No.
Montelle Decl. at ¶¶ 16–24; ECF No. 15-3; ECF No. 15-5 at 1; ECF No. 15-6 (rate sheet).
Plaintiffs then multiplied the resulting number—an average number of hours worked per
month—by the applicable benefit rate for each of the Funds. See Montelle Decl. at ¶¶ 25–27;
6 The audit report notes a total of $106,608.91 in unpaid benefit contributions. See ECF No. 15-4 at 4.
When the listed sums for each month during are added, however, they total to 106,608.92 in unpaid benefit
contributions. See id.
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ECF No. 15-5 at 1; ECF No. 15-6. This calculation yielded $11,150.85 as the estimated average
monthly contribution. See Montelle Decl. at ¶ 28; ECF No. 15-5 at 2. Plaintiffs repeated this
process for each month of the January to June 2025 period, determining that Graci Paving owed
an estimated total of $66,905.11 in delinquent contributions. See Montelle Decl. ¶ 31; ECF No.
15 at 2.
Altogether, Plaintiffs’ submissions are sufficient to determine Graci Paving’s delinquent
contributions with reasonable certainty. See Trs. of Pavers & Rd. Builders Dist. Council
Welfare, Pension, & Annuity Funds v. Toros Bros. Constr. Corp., No. 24-CV-6634, 2025 WL
3265230, at *6–8 (E.D.N.Y. Nov. 24, 2025) (applying a nearly identical estimation protocol
established in the plaintiffs’ collection policy to calculate unpaid benefit contributions and union
assessments); Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of Int'l
Union of Operating Eng'rs Loc. 15 , 15A, 15C & 15D, AFL-CIO by Callahan v. Triton Builders,
Inc., No. 22 CV 4809, 2022 WL 18859028, at *6-7 (E.D.N.Y. Nov. 16, 2022) (recommending
ERISA damages for unpaid benefit contributions based on an audit report and affidavits);
Gesualdi v. Reid, No. 19-CV-4132, 2021 WL 8316386, at *9 (E.D.N.Y. Aug. 12, 2021)
(approving the use of a formula in a trust agreement to estimate unpaid benefit contributions).
Thus, the undersigned recommends awarding Plaintiffs the combined total in unpaid benefit
contributions of $173,514.03.
2. Prejudgment Interest on Delinquent Benefit Contributions
Plaintiffs also request $11,579.29 in prejudgment interest on Graci Paving’s delinquent
benefit contributions. See 29 U.S.C. § 1132(g)(2)(B) (“In any action under this subchapter by a
fiduciary for or on behalf of a plan to enforce [ERISA § 515] in which a judgment in favor of the
plan is awarded, the court shall award the plan . . . interest on the unpaid contributions). ERISA
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provides that “interest on unpaid contributions shall be determined by using the rate provided
under the plan, or, if none, the rate prescribed under section 6621 of the Internal Revenue Code.”
29 U.S.C. § 1132(g)(2)(E); see also Gesualdi, 2021 WL 8316386, at *9–11 (applying 29 U.S.C.
§ 1132(g)(2)(E)).
Here, the CBA states that “[i]f an Employer fails to pay contributions . . . when due, the
Employer shall pay, in addition to, the amounts due and unpaid . . . annual interest at the rate of
10% per annum.” ECF No. 14-2 at 26. Plaintiffs first calculated the daily interest rate by
multiplying the unpaid monthly contributions due by the 10% annual interest rate, followed by
dividing that full year of interest by 365 days. See Montelle Decl. at ¶ 35. For instance, for the
March 2024 period, the Plaintiffs multiplied the $398.56 in unpaid contributions by the 10%
interest rate (yielding annual interest of $39.856) and divided the resulting number by 365 days
(yielding a $.11 daily interest rate). See id.; see also ECF No. 15-5 at 2. Plaintiffs then
multiplied the daily interest rate by the number of days the benefit contributions were late, using
September 25, 2025 as a control date. See Montelle Decl. at ¶ 35; ECF No. 17-10 at 1 n.1
(noting that prejudgment interest was calculated through September 25, 2025). Thus, for the
March 2024 period, Plaintiffs multiplied the daily interest rate ($.11) by the length of Graci
Paving’s delinquency (508 days), yielding $55.88 in interest. See Montelle Decl. at ¶ 35.; see
also ECF No. 15-5 at 2. Plaintiffs used this formula for the October 2023 to December 2024 and
January to June 2025 periods, calculating $11,579.29 in total interest due on unpaid benefit
contributions through September 25, 2025. See ECF No. 15-5 at 2; ECF No. 17-10 at 1.
Having reviewed Plaintiffs’ calculations, the undersigned recommends awarding
Plaintiffs $11,579.29 in interest on Graci Paving’s delinquent benefit contributions. See Ikna
Constr., 2025 WL 447731, at *14 (calculating prejudgment interest at 10% annually using the
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same calculation method); Gesualdi, 2021 WL 8316386, at *9 (calculating prejudgment interest
at 18% annually using the same calculation method).
To facilitate the calculation of prejudgment interest going forward, the undersigned
recommends that interest continue to accrue on the unpaid benefit contributions at a rate of 10%
annually—$47.54 per day—from September 26, 2025 through the date that judgment is entered.
3. Liquidated Damages
Additionally, Plaintiffs also seek $17,351.40 in liquidated damages. See ECF 17-10 at 1;
ECF No. 18 at 8–10. Pursuant to ERISA, the court shall award “an amount equal to the greater of
. . . interest on the unpaid contribution, or . . . liquidated damages provided for under the plan in
an amount not to exceed 20 percent.” 29 U.S.C. § 1132(g)(2)(c)(i–ii). The CBA and Collection
Policy calculate liquidated damages as 10% of the contribution delinquency. ECF No. 14-2; ECF
No. 15-2 at 3.
Plaintiffs aver that “[l]iquidated damages calculated at a rate of ten percent (10%) of the
total contribution delinquency of $173,514.03, yields liquidated damages totaling $17,351.40.”
Montelle Decl. at ¶ 37; see also ECF No. 15-5 at 2. The undersigned agrees. Plaintiffs’
liquidated damages being greater than $11,579.29 in prejudgment interest, the undersigned
recommends awarding Plaintiffs’ $17,351.40 in liquidated damages. See Guidice as Tr. for
I.B.E.W. Loc. 1049 Craft Annuity Fund v. All Reliable Servs., Inc., No. 23-CV-7575, 2025 WL
745908, at *13 (E.D.N.Y. Jan. 26, 2025), report and recommendation adopted as modified, 2025
WL 521144 (E.D.N.Y. Feb. 18, 2025) (awarding $83,252.08 in liquidated damages instead of
$80,853.72 in prejudgment interest on unpaid contributions).
4. Attorneys’ Fees
Plaintiffs also seek an award of $4,630.80 for attorneys’ fees. See ECF No. 17 at ¶ 26
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(“Iorfino Decl.”). “Upon a finding that defendants have been delinquent in paying
contributions,” an award for “attorney's fees under [ERISA] § 1132(g)(2) is mandatory.” Finkel
v. Triple A Grp., Inc., 708 F. Supp. 2d 277, 290 (E.D.N.Y. 2010); see also 29 U.S.C. §
1132(g)(2)(D) (providing for “reasonable attorney’s fees and costs of the action, to be paid by
the defendant” in a successful ERISA § 515 action). Nevertheless, “[d]istrict courts have
discretion to determine the reasonable amount to award in attorneys’ fees.” Legacy Restoration,
2025 WL 3461171, at *9.
“The starting point of the attorney's fee calculation is the lodestar method, under which
fees are determined by multiplying the number of hours reasonably expended on the litigation by
a reasonable hourly rate.” Wright v. Miah, No. 22-CV-4132, 2023 WL 6219435, at *14
(E.D.N.Y. Sept. 7, 2023), report and recommendation adopted, 2023 WL 6216541 (E.D.N.Y.
Sept. 25, 2023) (citation omitted); see also Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir.
2011). The lodestar ‘“is essentially what a reasonable, paying client would be willing to pay,
given that such a party wishes to spend the minimum necessary to litigate the case effectively.’”
Wright, 2023 WL 6219435, at *14 (quoting Streamlight, Inc. v. Gindi, No. 18-CV-987, 2019 WL
6733022, at *18 (E.D.N.Y. Oct. 1, 2019)).
a. Reasonable Hourly Rates
To determine a reasonable hourly rate, courts consider “market rates prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience, and
reputation.” Hennessy by & through Hennessy v. 194 Bedford Ave Rest Corp., No. 21-CV-5434,
2022 WL 4134502, at *6 (E.D.N.Y. Aug. 8, 2022), report and recommendation adopted, 2022
WL 4134437 (E.D.N.Y. Sept. 12, 2022) (internal quotation marks and citations omitted).
Presumptively reasonable hourly rates in this District are currently “$450-$650 for partners,
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$300-$450 for senior associates, $150-$300 for junior associates, and $100-$150 for paralegals.”
Rubin v. HSBC Bank USA, NA, 763 F. Supp. 3d 233, 244 (E.D.N.Y. 2025).
The fee applicant has the burden to establish the reasonableness of the requested hourly
rates. See Legacy Restoration, 2025 WL 3461171, at *10. Based on the billing records of
Plaintiffs’ counsel, Plaintiffs were charged for the work of six individuals at the following hourly
rates and levels of seniority (see ECF No. 17-7)7:
Individual Seniority Hourly Rate
Adrianna Grancio Partner $333.00
Lillianna Iorfino Associate $333.00
Eva Keating Director of Operations &
Former Senior Paralegal
$132.00
Alice Gaalsywk Paralegal $132.00
Abigail Frankel Paralegal $132.00
Rahul James Paralegal $132.00
First, the undersigned finds that the $132 hourly rate for the paralegals associated with this
matter—Eva Keating, Alice Gaalsywk, Abigail Frankel, and Rahul James—are within the $100
to $150 range for paralegals in this District. In addition, the undersigned determines that $333
hourly rate for Adrianna Grancio, who is 2016 graduate of St. John’s University School of Law
and a partner-level attorney, is reasonable as compared to $450 to $650 range for partners in this
District. See Iorfino Decl. at ¶ 17.
As for Lilliana Iorfinio, she is a 2021 graduate of Brooklyn Law School and an associate-
level attorney. See id. Although the demarcation between a junior and senior associate is
inexact, the undersigned finds that—given her five years of legal experience and notable
7 Plaintiffs’ counsel, Virginia & Ambinder LLP, notes that it utilized a “blended” billing rate for attorneys
and paralegals associated with this matter. See Iorfino Decl. at ¶¶ 18, 23. According to Plaintiffs’ counsel, “[t]his
approach streamlines billing and provides the client with the benefit of both senior-level strategic oversight and the
efficient execution of tasks by associates—without being charged separate, tiered rates,” and ensures “consistent,
fair billing for “legal assistant positions [that] typically experience high turnover.” Id. Plaintiffs and counsel
negotiated these rates. Id. at ¶ 24.
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attention to this matter8—Ms. Iorfino’s $333 hourly rate is reasonable.
b. Reasonableness of the Hours Billed
Plaintiffs’ counsel billed for 16.2 hours of legal services, all of which were related to this
case, securing an entry of default, drafting Plaintiffs’ pleadings and the instant Motion, and
preparing correspondence to Plaintiffs and Graci Paving. See ECF No. 17-7 at 3. Reviewing
these billing records, the undersigned finds that this billing was “reasonable and not excessive,
redundant, or unnecessary.” Toros Bros., 2025 WL 819918, at *10. Compared to other ERISA
cases involving default judgment motions, the undersigned also finds that Plaintiffs’ counsel
dedicated a reasonable number of hours to this case. See Argila v. Mach Grp., Inc., 740 F. Supp.
3d 128, 135 (E.D.N.Y. 2024) (“[C]ourts in this district typically award attorney fees for roughly
twenty to thirty hours of work in ERISA default judgment cases.”); PETK, Inc., 2022 WL
19520880, at *7 (collecting cases).
Thus, the undersigned recommends awarding Plaintiffs $4,630.80 in attorneys’ fees.
5. Audit Costs
Plaintiffs also request that the Court award $2,468 in audit costs. See ECF No. 18 at 8,
10. “[C]ourts have routinely interpreted § 1132(g)(2)(E) of ERISA to authorize the cost of audits
as part of the damages award.” Gesualdi, 198 F. Supp. 3d at 221 (quoting Gesualdi v. Pecgro
Trucking, Inc., No. 14-CV-6347, 2015 WL 5608149, at *6 (E.D.N.Y. Aug. 13, 2015), report and
recommendation adopted, No. 14-CV-6347, 2015 WL 5608157 (E.D.N.Y. Sept. 23, 2015)). The
CBA and Collection Policy provide for reasonable auditing and accounting expenses. See ECF
No. 14-2 at 26; ECF No. 15-2 at 3. Plaintiffs provide a sworn declaration averring that the Funds
incurred audit costs of $2,648. See Montelle Decl. at ¶15; see also ECF No. 15-4 at 1.
8 Ms. Iorfino billed 10.9 hours of the total 16.2 hours that Plaintiffs’ counsel billed for this matter. See ECF
No. 17-7.
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Accordingly, the undersigned recommends that the Court award Plaintiffs $2,468 in audit costs.
6. Court Costs and Disbursements
Plaintiffs also seek $492.60 for a service of process fee, court filing fees, and postage.
See ECF No. 18 at 15. Plaintiffs “bear[] the burden of adequately documenting and itemizing the
costs requested.” Datiz v. Int'l Recovery Assocs., Inc., No. 15-CV-3549, 2020 WL 5899881, at
*14 (E.D.N.Y. Mar. 12, 2020), report and recommendation adopted as modified, 2020 WL
3790348 (E.D.N.Y. July 7, 2020) (quoting Ganci v. U.S. Limousine Serv. Ltd., No. 10-CV-3027,
2015 WL 1529772, at *8 (E.D.N.Y. Apr. 2, 2015)). “Court fees reflected on the Court’s docket
and costs for which a claimant provides extrinsic proof, such as an invoice or receipt, are
considered sufficiently substantiated, as is a sworn statement or declaration under penalty of
perjury that certain amounts were expended on particular items.” Antoine v. Brooklyn Maids 26,
Inc., 489 F. Supp. 3d 68, 105 (E.D.N.Y. 2020).
Here, Plaintiffs have substantiated their service of process and postage fees with a service
invoice, copies of the relevant postage rates, and billing receipts. See ECF No. 17-7 (billing
receipts); ECF No. 17-8 (postage rates and service invoice). In addition, the docket reflects that
Plaintiffs paid a $405 filing fee. See ECF No. 1. Plaintiffs total requested costs, which are
supported by documentary evidence, are reasonable compared to other cases in this District. See,
e.g., All Reliable Servs., Inc., 2025 WL 745908, at *16 (recommending $502.15 in costs for
“filing fees, cost of service, printing, postage, fax machine charges, and making copies.” (citation
omitted)); Gesualdi v. Pecgro Trucking, Inc., No. 14-CV-6347, 2015 WL 5608149, at *7
(E.D.N.Y. Aug. 13, 2015), report and recommendation adopted, 2015 WL 5608157 (E.D.N.Y.
Sept. 23, 2015) (recommending an award of $603.91 for filing, service of process, mailing,
postage, and PACER fees). Thus, the undersigned recommends awarding Plaintiffs $492.60 for
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court costs and disbursements.
B. Non-ERISA Damages
Apart from ERISA damages, Plaintiffs are entitled to compensatory damages under the
LMRA for violations of the CBA. Ikna Constr., 2025 WL 447731, at *15 (“[A] plaintiff suing
pursuant to Section 301 of the LMRA, 29 U.S.C. § 185, in whose favor judgment is rendered is
entitled to an award of compensatory damages equivalent to the amount of unpaid dues owed
pursuant to the relevant collective bargaining agreement.” (citation omitted)). “LMRA damages
are limited to those permitted in the relevant CBA and trust agreements.” Annuity, Welfare &
Apprenticeship Skill Improvement & Safety Funds of the Int'l Union of Operation Eng'rs, Loc.
15, 15A, 15C, 15D, AFL-CIO v. A.G., No. 13-CV-3590, 2014 WL 354647, at *4 (E.D.N.Y. Jan.
31, 2014).
1. Delinquent Union Assessments
Plaintiffs seek two tranches of unpaid union assessments: (1) $5,042.10 in unpaid
assessments for the periods March 2024, May 2024, and July through December 2024, as
identified from Plaintiffs’ auditing; and (2) $2,663.21 in unpaid assessments, calculated pursuant
to the Collection Policy’s estimation protocol. See Montelle Decl. at ¶ 14; ECF No. 15-4 at 5;
ECF No. 18 at 11–12. The CBA requires that Graci Paving “forward specified dues check-offs
and other contributions to the Union (‘union assessments’) for each hour of Covered Work
performed by Defendant’s employees.” ECF No. 1 at ¶ 14; see also ECF No. 14-2 at 23–24.
As for the first tranche of union assessments, the undersigned notes a one cent
discrepancy between the totals provided in Plaintiffs’ spreadsheet of damages calculations
($5042.11) (see ECF No. 15-5 at 2) and those listed in Plaintiffs’ audit report ($5042.10) (see
ECF No. 15-4 at 5). Because this is a one cent discrepancy—likely the result of a typographical
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error—and Plaintiffs request the lower amount (see ECF No. 18 at 11), the undersigned
recommends awarding $5042.10 in union assessments for the March 2024, May 2024, and July
through December 2024 periods. Legacy Restoration, 2025 WL 3461171, at *9 (awarding union
assessments in the lower of two amounts based on a one cent discrepancy).
Because Graci Paving failed to submit remittance reports for the January to June 2025
period, Plaintiffs relied on the estimation protocol in the Collection Policy. See ECF No. 15-2.
Using the previously described process for calculating unpaid benefit contributions, Plaintiffs
estimated that, at the rates applicable to each category of union assessments (see ECF No. 15-6),
Graci Paving owed $2,663.21 in union assessments for the January to June 2025 period. See
Montelle Decl. at ¶¶ 29–32; see also ECF No. 15-5 at 2. After reviewing Plaintiffs’ calculations,
the undersigned finds that Plaintiff’s have adequately established the amount of unpaid union
assessments with reasonable certainty. See Toros Bros., 2025 WL 819918, at *10. Accordingly,
the undersigned recommends awarding Plaintiffs $2,663.21 in union assessments for the January
to June 2025 period.
2. Delinquent Dues Check-Offs
Plaintiffs also seek $2,778.30 in unpaid dues check-offs for the periods of March 2024,
May 2024, and July to December 2024. See Montelle Decl. at ¶ 14; ECF No. 15-4 at 5; ECF No.
18 at 11. The CBA requires that Graci Paving deduct $1.35 per hour of Covered Work from its
employees’ paychecks to cover the Union’s dues. See ECF No. 14-2 at 25.
Again, the undersigned notes that there is a one cent discrepancy between the unpaid
check-offs identified in Plaintiffs’ spreadsheet of damages calculations ($2,778.31) (see ECF No.
15-5 at 2) and those listed in Plaintiffs’ auditing ($2,778.30) (See ECF No. 15-4 at 5). As with
Plaintiffs’ first tranche of union assessments, the undersigned recommends awarding Plaintiffs
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$2,778.30 in dues check-offs.
3. Late Payment Interest on Benefit Contributions
Plaintiffs also request $1,319.82 in late payment interest for benefit contributions paid
beyond their respective due dates during the December 2023 and February to June 2024 periods.
See ECF No. 18 at 12-13.
Pursuant to the CBA and Collection Policy, Plaintiffs are entitled to 10% annual interest
on unpaid benefit contributions. See ECF No. 14-2 at 26; ECF No. 15-2 at 3. Using their
calculation method for unpaid benefit contributions, Plaintiffs calculated interest from the due
date of the late-paid contributions through the date on which Plaintiffs received the contributions.
See ECF No. 16 at ¶ 13 (“Morris Decl.”). Repeating this calculation for the December 2023 and
February to June 2024 periods, Plaintiffs determined that Graci Paving owes $1,319.82 in late
payment interest. See Morris Decl. ¶¶ 15–17; ECF No. 16-1 (late payment interest calculations).
After reviewing Plaintiffs’ calculations, the undersigned finds that Plaintiffs have
correctly calculated the interest accrued on late-paid benefit contributions. Accordingly, the
undersigned recommends awarding Plaintiffs $1,319.82 in late payment interest. See Trs. of
Pavers & Rd. Builders Dist. Council Welfare, Pension, Annuity, & Apprenticeship, Skill
Improvement & Safety Funds v. Shelbourne Constr. Corp., No. 19-CV-2312, 2020 WL 1668041,
at *7 (E.D.N.Y. Mar. 5, 2020), report and recommendation adopted, 2020 WL 1666461
(E.D.N.Y. Apr. 3, 2020) (awarding $437.79 in interest on four late contribution payments); Trs.
of Pavers & Rd. Builders Dist. Council Welfare, Pension, Annuity & Apprenticeship, & Skill
Improvement & Safety Funds v. Genrus Corp., No. 20-CV-1837, 2022 WL 4586316, at *5
(E.D.N.Y. June 14, 2022), report and recommendation adopted, 2022 WL 4586348 (E.D.N.Y.
Sept. 29, 2022) (awarding $447.22 in interest on late-paid contributions under the LMRA).
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C. Post-Judgment Interest
Under 28 U.S.C. § 1961, “the award of post-judgment interest is mandatory on awards in
civil cases as of the date judgment is entered.” H.C. v. New York City Dep't of Educ., 71 F.4th
120, 129 (2d Cir. 2023) (internal quotation marks and citations omitted); see also 28 U.S.C.
§ 1961(a). Accordingly, the undersigned recommends that Plaintiffs be granted post-judgment
interest calculated from the date the Clerk of Court enters judgment until the date of payment at
the statutory rate. See 28 U.S.C. § 1961.
V. CONCLUSION
For the foregoing reasons, the undersigned recommends that the Court grant the Motion
in its entirety and award damages in the following amounts:
(1) $173,514.04 in delinquent benefit contributions;
(2) $7,705.31 in delinquent union assessments;
(3) $2,778.30 in delinquent union dues check-offs;
(4) $11,579.29 in pre-judgment interest, plus $47.54 per day from September 26,
2025 through the date that judgment is entered;
(5) $1,319.82 in late payment interest;
(6) $17,351.40 in liquidated damages;
(7) $2,468.00 in audit costs;
(8) $4,630.80 in attorneys’ fees;
(9) $492.60 in court costs and disbursements; and
(10) Post-judgment interest calculated from the date the Clerk of Court enters
judgment until the date of payment, pursuant to 28 U.S.C. § 1961.
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VI. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2), the parties shall have fourteen (14)
days from service of this Report and Recommendation to file written objections. See also Fed.
R. Civ. P. 6(a) & (d) (addressing computation of days). Any requests for an extension of time
for filing objections must be directed to Judge Choudhury. FAILURE TO FILE TIMELY OBJECTIONS
SHALL CONSTITUTE A WAIVER OF THOSE OBJECTIONS BOTH IN THE DISTRICT COURT AND ON LATER
APPEAL TO THE UNITED STATES COURT OF APPEALS. See Thomas v. Arn, 474 U.S. 140, 154–55
(1985); Frydman v. Experian Info. Sols., Inc., 743 F. App’x 486, 487 (2d Cir. 2018); McConnell
v. ABC-Amega, Inc., 338 F. App’x 24, 26 (2d Cir. 2009); F.D.I.C. v. Hillcrest Assocs., 66 F.3d
566, 569 (2d Cir. 1995).
SO ORDERED:
Dated: Central Islip, New York
January 22, 2026 /s/ Lee G. Dunst__
LEE G. DUNST
United States Magistrate Judge
Case 2:25-cv-03937-NJC-LGD Document 28 Filed 01/22/26 Page 28 of 28 PageID #:
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