Upstate New York Engineers Health Fund et al v. Cambria Contracting Inc. et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
UPSTATE NEW YORK ENGINEERS HEALTH FUND,
by Deborah Spaulding, as Administrator; UPSTATE NEW
YORK ENGINEERS PENSION FUND, by Deborah
Spaulding, as Administrator; UPSTATE NEW YORK
ENGINEERS S.U.B. FUND, by Deborah Spaulding, as
Administrator; UPSTATE NEW YORK ENGINEERS
TRAINING FUND, by Theron Hogle and Eugene Hallock,
as Trustees; LOCAL 106 TRAINING AND
APPRENTICESHIP FUND, by Daniel J. McGraw and
James Logan, as Trustees; I.U.O.E. LOCAL 158
TRAINING FUND, by Theron Hogle and James Logan, as
Trustees; OPERATING ENGINEERS LOCAL 17
TRAINING FUND, by James Smolinski, as Administrative
Manager; CENTRAL PENSION FUND OF THE
INTERNATIONAL UNION OF OPERATING
ENGINEERS AND PARTICIPATING EMPLOYERS, by
its BOARD OF TRUSTEES; INTERNATIONAL UNION
OF OPERATING ENGINEERS LOCAL NO. 17, by Gary
Swain, as Business Manager; UPSTATE NEW YORK
OPERATING ENGINEERS LOCAL 158, by Michael
Lyons, as Business Manager,
Plaintiffs,
v.
CAMBRIA CONTRACTING, INC., FRANCIS V.
BARONE, JR., JR., Individually and as an Officer of
Cambria Contracting, Inc., and TRICIA L. BARONE,
Individually and as an Officer of Cambria Contracting,
Inc.,
Defendants.
5:20-cv-00431 (BKS/TWD)
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Appearances:
For Plaintiffs:
Jennifer A. Clark
Kenneth L. Wagner
Blitman & King LLP
Franklin Center - Suite 300
443 North Franklin Street
Syracuse, New York 13204
For Defendants:
R. Anthony Rupp, III
Aaron W. Knights
Jacob J. Honan
Marco Cercone
Rupp Pfalzgraf LLC
1600 Liberty Building
424 Main Street
Buffalo, New York 14202
Gerald Dandeneau
425 Broadhollow Rd. - Suite 114
Melville, New York 11747
Hon. Brenda K. Sannes, Chief United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
The Upstate New York Engineers Health Fund, Pension Fund, S.U.B. Fund, Training
Fund, as well as the Central Pension Fund, Local 106 Training and Apprenticeship Fund,
I.U.O.E. Local 158 Training Fund, and Operating Engineers Local 17 Training Fund—multi-
employer employee benefit plans as defined by 29 U.S.C. §§ 1002(3), (37)—along with Deborah
Spaulding, Theron Hogle, Eugene Hallock, Board of Trustees of the Central Pension Fund of the
International Union of Operating Engineers and Participating Employers, Daniel J. McGraw,
James Logan, and James Smolinski—all in fiduciary capacities for the various funds—and Gary
Swain on behalf of Local Union No. 17 and Michael Lyons on behalf of Local Union No. 158
(all together, “Plaintiffs”), bring this action pursuant to the Employee Retirement Income
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Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq., and the Labor Management
Relations Act of 1947, (“LMRA”), 29 U.S.C. § 185(a). (Dkt. No. 56). Plaintiffs sued Cambria
Contracting, Inc. as well as Francis V. Barone, Jr. and Tricia L. Barone individually and as
officers of Cambria. (Id.). Plaintiffs allege that Defendants failed to timely remit contributions,
breached their fiduciary duties, violated various other ERISA provisions, and violated collective
bargaining agreements. (Id.).
Plaintiffs moved for summary judgment on July 25, 2024. (Dkt. No. 89). After the
summary judgment motion was fully briefed, (Dkt. No. 89-53, 131-26, 136-27), the Court
ordered additional briefing from Plaintiffs on the question of “whether there are genuine issues
of material fact regarding whether Cambria Contracting Inc. performed ‘covered work’ within
the meaning of the applicable CBAs.” (Dkt. No. 145). Plaintiffs filed the requested brief. (Dkt.
No. 146). The Court later held a hearing on the motion. (Text Minute Entry, Aug. 6, 2025).
During the hearing, the Court granted the motion on Plaintiffs’ second cause of action which
sought a review and audit of certain books and records; dismissed Defendants’ ninth, tenth,
eleventh, twelfth, and thirteenth affirmative defenses; and denied the remainder of the motion
without prejudice and with leave to renew Plaintiffs’ first, fourth, and fifth causes of action. (Id.).
Presently before the Court is Plaintiffs’ renewed motion for summary judgment filed
pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 160). The motion is fully briefed. (Dkt.
Nos. 160-14, 161, 162, 163, 171, 173). For the reasons that follow, Plaintiffs’ motion is denied in
part and granted in part.
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II. 	FACTS1
The parties have stipulated that from January 1, 2012 through September 30, 2021,
Cambria was bound to collective bargaining agreements (“CBAs”) with International Union of
Operating Engineers, Local Union No. 463 (“Local 463”), International Union of Operating
Engineers, Local Union No. 17 (“Local 17”), and Upstate New York Operating Engineers, Local
Union No. 158 (“Local 158”). (Dkt. No. 89-47, ¶ 1). The parties have submitted that the
following CBAs are relevant:
as pertaining to Local 463;
(1) the 2008-2012 Highway/Heavy Construction Agreement and Tunnel and Shaft
Construction Agreement Between Labor Relations Division Western New York
Region Associated General Contractors of America New York State Chapter,
Inc. and International Union of Operating Engineers Local Union No. 463 AFL-
CIO Niagara Falls, New York (“2008-2012 Local 463 Heavy Highway CBA”),
(2) the 2012-2016 and 2016-2020 Highway/Heavy Construction Agreement and
Tunnel and Shaft Construction Agreement Between Labor Relations Division
Western New York Region Associated General Contractors of America New
York State Chapter, Inc. and International Union of Operating Engineers Local
Union No. 463 AFL-CIO Niagara Falls, New York (“2012-2016 and 2016-2020
Local 463 Heavy Highway CBAs”) (together, the “Local 463 Heavy Highway
CBAs”),
(3) the 2000-2003 Engineers Agreement (“2000-2003 Local 463 Building CBA”),
and
(4) the 2015-2018 Engineers Agreement (“2015-2018 Local 463 Building CBA”),
as pertaining to Local 17;
(1) the June 1, 2016-May 31, 2019 Agreement between Independent Building
Contractors of WNY and the International Union of Operating Engineers
Locals #17, 17A, 17B, 17RA (“2016-2019 Local 17 Building CBA”),
1 The facts, which are undisputed unless otherwise noted, are drawn from Plaintiffs’ Rule 56.1 Statement of Material
Facts, (Dkt. No. 89-1), and Defendants’ Response to Plaintiffs’ Statement of Material Facts, (Dkt. No. 131), to the
extent the facts are well-supported by pinpoint citations to the record, as well as the exhibits attached thereto and cited
therein, including the Stipulation of Facts and Liability, (Dkt. No. 89-47). The facts are construed in the light most
favorable to the non-moving party. See Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007).
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(2) the June 1, 2019-May 31, 2022 Agreement Between Independent Building
Contractors of WNY and the International Union of Operating Engineers
Locals #17, 17A, 17B, 17RA (“2019-2022 Local 17 Building CBA) (together,
the “Local 17 Building CBAs”), and
(3) the 2013-2015 Agreement between Independent Residential Contractors and
the International Union of Operating Engineers Local 17C Buffalo, New York
(“Local 17C Residential CBA”) (all together, the “Local 17 CBAs”),
and as pertaining to Local 158;
(1) the June 1, 2012-February 28, 2015 Building Agreement between ‘The
Associations’ and Local No. 158 of the International Union of Operating
Engineers (“2012-2015 Local 158 CBA”), and
(2) the June 1, 2015-February 28, 2019 Building Agreement between ‘The
Associations’ and Local No. 158 of the International Union of Operating
Engineers (“2015-2018 Local 158 CBA”) (all together, the “Local 158 CBAs”).
(See Dkt. No. 89-47, ¶1; Dkt. No. 160-14, at 5-6; Dkt. No. 161, at 2; Dkt. No. 171, at 3–4).
The CBAs to which the parties stipulated require2 Cambria to remit contributions to
various funds for work covered by the CBAs. (Dkt. No. 89-1, ¶ 2, 5; Dkt. No. 131, ¶ 2, 5). They
also require Cambria to make deductions from employees’ wages for non-ERISA benefit fund
contributions, such as union dues, political action committee contributions, and defense fund
monies. (Dkt. No. 89-1; ¶ 6, Dkt. No. 89-25, ¶ 20 (see citations therein); Dkt. No. 131, ¶ 6).
Although the parties agree that Cambria’s employees worked 5,676.75 hours covered by the
geographic and territorial work jurisdictions of the CBAs, they dispute whether the scope of the
work performed was covered by the respective CBAs. (Dkt. No. 160-14, at 1–2; Dkt. No. 161, at
1). Plaintiffs allege that the work was covered, and that Defendants owe unpaid fringe benefit
2 The parties dispute whether Defendants are bound by the 2015-2018 Local 463 Building CBA. See infra Section
IV.B.2.
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contributions and deductions. (Dkt. No. 89-1, ¶ 22). Defendants, however, deny owing any
contributions and deductions to Plaintiffs. (Dkt. No. 131, ¶ 22).
III. 	STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment may be granted only if
all submissions taken together “show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A fact
is material if it “might affect the outcome of the suit under the governing law,” and is genuinely
in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d
Cir. 2005).
Where here, the moving party bears the burden of persuasion at trial, it “must support its
motion with credible evidence—using any of the materials specified in Rule 56(c) [of the Federal
Rules of Civil Procedure]—that would entitle it to a directed verdict if not controverted at trial.”
Celotex Corp., 477 U.S. at 331 (Brennan, J., dissenting); Sorano v. Taggart, 642 F. Supp. 2d 45,
50 (S.D.N.Y. 2009). Put another way, the moving party’s evidentiary showing “must be
sufficient for the court to hold that no reasonable trier of fact could find other than for the
moving party.” Liberty Mut. Ins. Co. v. Sterling Ins. Co., 632 F. Supp. 3d 83, 88 (E.D.N.Y.
2022); Qureshi v. Costco Wholesale Corp., No. 20-cv-04086, 2021 WL 5163232, at *3, 2021
U.S. Dist. LEXIS 214615, at *7–8 (E.D.N.Y. Nov. 5, 2021) (“But where the moving party also
bears the ultimate burden of persuasion at trial, it must show ‘why the record is so one-sided as
to rule out the prospect of the nonmovant prevailing.’” (quoting 10A Wright & Miller’s Federal
Practice and Procedure §2727.1 (4th ed. 2021)). If the moving party meets this initial burden,
the nonmoving party must “either . . . produce evidentiary materials that demonstrate the
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existence of a ‘genuine issue’ for trial or . . . submit an affidavit requesting additional time for
discovery.” Celotex, 477 U.S. at 331 (Brennan, J., dissenting); see also Wright v. Goord, 554
F.3d 255, 266 (2d Cir. 2009).
“When ruling on a summary judgment motion, the district court must construe the facts
in the light most favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Dall. Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775,
780 (2d Cir. 2003). “The role of the court is not to resolve disputed issues of fact but to assess
whether there are any factual issues to be tried.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.
2011) (quoting Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). Still, the
nonmoving party “must do more than simply show that there is some metaphysical doubt as to
the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
and cannot rely on “mere speculation or conjecture as to the true nature of the facts to overcome
a motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)
(citing Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)). Furthermore, “[m]ere
conclusory allegations or denials . . . cannot by themselves create a genuine issue of material fact
where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010)
(alterations in original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).
IV. 	DISCUSSION
A. 	Plaintiffs’ Motion to Strike Defendants’ Argument that the CBAs Did Not
Cover the Work Performed
In their renewed motion for summary judgment, Plaintiffs move to strike Defendants’
covered work argument, which Defendants asserted in their response to Plaintiffs’ initial motion
for summary judgment, (Dkt. No. 131-26). (Dkt. No. 160-15, at 3). Plaintiffs contend that this
argument is insufficient and improper under Federal Rule of Civil Procedure 12(f), and that the
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Court lacks jurisdiction to hear this argument under Federal Rule of Civil Procedure 12(h)(3).
(Dkt. No. 160-14, at 1).3 For the following reasons, the Court denies Plaintiffs’ motion.
Plaintiffs allege that “Defendants have waived their new defense/claim,” under Rule 12(f)
of the Federal Rules of Civil Procedure. (Id. at 7). Rule 12(f), however, does not permit the relief
Plaintiffs seek. Rule 12(f) provides that a court “may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. Pro. 12(f)
(emphasis added). But Defendants’ argument is not in a pleading; it is made in response to
Plaintiffs’ original motion for summary judgment, (Dkt. No. 89). The Federal Rules of Civil
Procedure “explicitly distinguish between pleadings and motions.” Canadian Overseas Ores,
Ltd. v. Compania de Acero del Pacifico S.A., 727 F.2d 274, 277 (2d Cir. 1984). Rule 7(a) defines
pleadings to include complaints, answers, and third-party complaints. Fed R. Civ. P. 7(a). It
excludes responses to summary judgment motions. See id. Because Defendants’ argument is not
part of a pleading, the Court denies Plaintiffs’ motion.4 C.f. Browdy v. Lantz, No. 03-cv-1981,
2006 WL 389539, at *1, 2006 U.S. Dist. LEXIS 9203, at *4 (D. Conn. Feb. 17, 2006) (“Because
a motion for summary judgment is not a pleading, the plaintiff’s motion [to strike on the basis of
Rule 12(f) of the Federal Rules of Procedure] is denied.”).
Plaintiffs next argue that “the Court lacks jurisdiction to address Defendants’ new
defense/claim since Defendants were required to raise that defense/claim in arbitration as
3 Plaintiffs attached to their brief, (Dkt. No. 162), the Affidavit of Kennth L. Wagner in support of their motion to
strike. (Dkt. No. 162-2). Defendants move to strike this affidavit, its exhibit, and any reference to it in Plaintiffs’
briefs. (Dkt. No. 164). Because this affidavit is not relevant to Plaintiffs’ motion to strike under Fed. R. Civ. P. 12(f)
and 12(h)(3), the Court did not consider the affidavit, and therefore denies Defendants’ motion as moot.
4 To the extent Plaintiffs do not rely on Rule 12(f) of the Federal Rules of Civil Procedure to argue that Defendants
waived their covered work argument, the Court finds that their cited authority does not entitle them to the relief they
seek, either. The cases to which Plaintiffs cite, (Dkt. No. 160-14, at 8), pertain to waiver of affirmative defenses, not
to ordinary defenses to a claim.
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required by CBAs.” (Dkt. No. 160-14, at 8). The parties, however, did not agree to arbitrate this
dispute.
The 2015-2018 Local 463 Building CBA states that if there is a grievance “arising out of
the 2015-2018 Local 463 Building CBA . . . [i]n the event that the grievance is not settled by the
Business Agent and the Employer, then either party may serve notice in writing on the other
party, requesting that the grievance be referred to the Arbitration Committee[.]” (Dkt. No. 142-2,
at 15) (emphasis added). This provision does not mandate arbitration; it permits it.
The Local 17 Building CBAs provide that in the event of a dispute over “the
interpretation, application or meaning of any provision” in the CBAs, “the complaining party can
refer the dispute to arbitration.”5 (Dkt. No. 89-32, at 11; Dkt. No. 89-33, at 11). Here, arbitration
is permissive, not mandatory. The same is true for the Local 17 Residential CBA, which includes
an identical provision as the ones in the Local 17 Building CBAs. (Dkt. No. 89-40, at 7).
The Local 158 CBAs specifically exclude this type of dispute from arbitration. The 2015-
2018 Local 158 CBA provides that “[v]iolations concerning wages, hours, or fringe benefit
contributions shall not be subject to the arbitration provisions of this Article.” (Dkt. No. 89-10, at
18). The 2012-2015 Local 158 CBA contains the same provision, but also adds that “[t]he Health
Fund, Pension Fund, S.U.B. Fund, Training Fund, and Central Pension Fund, and all other Funds
identified in this Agreement are not bound by the grievance and arbitration procedure of this
Agreement.” (Dkt. No. 136-15, at 13). The Court finds no basis for Plaintiffs’ motion to strike
5 The parties agree that all of the Local 17 Building CBAs are relevant to this dispute, (see Dkt. No. 160-14, at 5; Dkt.
No. 161, at 2), However, for purposes of determining whether the work Cambria’s employees performed was covered
by the Local 17 Building CBAs, Plaintiffs contend that the Court may review only the 2016-2019 Local 17 Building
CBA. (Dkt. No. 160-14, at 6), while Defendants submit that the Court should review only the 2019-2022 Local 17
Building CBA, (Dkt. No. 161, at 2). The Court has reviewed both CBAs, and finds that the text of the provisions the
parties cited to are identical or substantially the same, so the Court will provide parallel citations to both CBAs.
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Defendants’ defense under Rule 12(h)(3) of the Federal Rules of Civil Procedure for a lack of
subject matter jurisdiction and therefore denies the motion.
B. 	Plaintiffs’ Remaining Causes of Action
Plaintiffs’ remaining causes of action pertain to delinquent fringe benefit contributions
and deductions. (Dkt. No. 56). They seek to recover these contributions and deductions, interest,
liquidated damages, audit fees, attorneys’ fees, and other costs from Cambria and request
judgment against them in the amount of $774,764.39. (Dkt. No. 56, at 22–23; Dkt. No. 160-15,
at 3). Plaintiffs also seek to recover unpaid contributions/trust assets, interest, audit fees,
attorneys’ fees, and other costs from Defendants Francis V. Barone, Jr. and Tricia L. Barone and
request judgment against the individual Defendants in the amount of $497,349.14. (Dkt. No. 56,
at 24–25; Dkt. No. 160-15, at 3). Lastly, Plaintiffs ask the Court to retain jurisdiction over this
action to hear an additional motion and accept supplemental evidence supporting the motion
based on a forthcoming audit for the period October 1, 2021 to date. (Dkt. No. 160-15, at 3). If
Defendants do not produce all the requested records, Plaintiffs request an order from the Court
allowing Plaintiffs to submit supplemental affidavits regarding the monies due under the formula
set forth in Plaintiffs’ third cause of action within the amended complaint. (Id.)
Defendants admit that after 2017, Cambria did not remit benefit contributions and
deductions to the Plaintiff Funds. (Dkt. No. 161, at 13). However, they argue that because
Cambria did not perform covered work as defined by the applicable CBAs, the Court must deny
Plaintiffs’ motion.6 (See id. at 3–8).
6 Defendants also argue that genuine issues of material fact exist as to the amount of alleged contributions owed and
whether Cambria is entitled to an offset or return of contributions. (Dkt. No. 161, at 17). The Court addresses the issue
of damages infra Section IV.C. The Court will not consider whether Cambria is entitled to an offset or return of
contributions because it found that Defendants abandoned this defense. (Dkt. No. 149, at 3–4; see also Dkt. No. 159).
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1. 	Contract Interpretation Principles
In deciding the remaining issue on summary judgment, whether the applicable CBAs
cover the work Defendants performed, the Court must interpret the meaning and scope of the
CBAs. In doing so, “ordinary principles of contract law [apply], at least when those principles
are not inconsistent with federal labor policy.” M&G Polymers USA, LLC v. Tackett, 574 U.S.
427, 435 (2015). The Court “construes the terms of a contract as a matter of law,” Jessica
Howard Ltd. v. Norfolk S. Ry., 316 F.3d 165, 168 (2d Cir. 2003), and its “primary objective is to
give effect to the intent of the parties as revealed by the language they chose to use.” Seiden
Assocs. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir. 1992).
The initial interpretation of a contract includes “the threshold question of whether the
terms of the contract are ambiguous.” Alexander & Alexander Servs. v. These Certain
Underwriters at Lloyd’s, London, 136 F.3d 82, 86 (2d Cir. 1998) (internal quotation marks and
citation omitted). Ambiguity does not exist when contract language has “a definite and precise
meaning, unattended by danger of misconception in the purport of the [contract] itself, and
concerning which there is no reasonable basis for a difference of opinion.” Hunt Ltd. v. Lifschultz
Fast Freight, Inc., 889 F.2d 1274, 1277 (2d Cir. 1989) (quoting Breed v. Ins. Co. of N. Am., 385
N.E.2d 1280, 1282 (N.Y. 1978)). Conversely, “[a] contract is ambiguous when it is “reasonably
susceptible of more than one interpretation.” Chimart Assocs. v. Paul, 489 N.E.2d 231, 233
(N.Y. 1986); see also Health-Chem Corp. v. Baker, 737 F. Supp. 770, 773 (S.D.N.Y. 1990)
(“[A] term is ambiguous when it is ‘capable of more than one meaning when viewed objectively
by a reasonably intelligent person who has examined the context of the entire integrated
agreement and who is cognizant of the customs, practices, usages and terminology as generally
understood in the particular trade or business.’” (quoting Walk–In Med. Ctrs. v. Breuer Cap.
Corp., 818 F.2d 260, 263 (2d Cir. 1987))).
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“Ambiguity is determined by looking within the four corners of the document, not to
outside sources.” Kass v. Kass, 696 N.E.2d 174, 180 (N.Y. 1998). “Clear contractual language
does not become ambiguous simply because the parties to the litigation argue different
interpretations.” Maniolos v. United States, 741 F. Supp. 2d 555, 569 (S.D.N.Y. 2010); see also
Seiden Assocs., Inc., 959 F.2d at 428 (ambiguity does not exist “where one party’s view ‘strain[s]
the contract language beyond its reasonable and ordinary meaning” (quoting Bethlehem Steel Co.
v. Turner Constr. Co., 141 N.E.2d 590, 593 (N.Y. 1957))). If the language is unambiguous,
“extrinsic evidence may not properly be received.” Seiden Assocs., Inc., 959 F.2d at 428.
However, if the language is ambiguous, “summary judgment may be granted only if the
ambiguities may be resolved through extrinsic evidence that is itself capable of only one
interpretation, or where there is no extrinsic evidence that would support a resolution of these
ambiguities in favor of the nonmoving party’s case.” Topps Co. v. Cadbury Stani S.A.I.C., 526
F.3d 63, 68 (2d Cir. 2008).
2. 	Local 463 CBAs
Plaintiffs previously argued that Defendants owed contributions and deductions pursuant
to the Local 463 Heavy Highway CBAs. (See Dkt. No. 89-1, ¶¶ 1–6; Dkt. No. 89-47, ¶ 1; Dkt.
No. 89-2, ¶ 19; Dkt. No. 89-3, at 1–36). Plaintiffs changed their position after Defendants argued
on summary judgment that the work Cambria performed was not covered by the Local 463
Heavy Highway CBAs. (See Dkt. No. 160-14, at 3; Dkt. No. 162, at 3). Now, Plaintiffs “do not
agree that the Local 463 Heavy Highway CBAs . . . are the operative CBAs,” (Dkt. No. 160-14,
at 3), because “Defendants admit that they did not perform work on highway, road or pipeline
projects within the meaning of the Heavy Highway CBAs,” (Dkt. No. 162, at 3). Instead,
Plaintiffs claim that the 2015-2018 Local 463 Building CBA, (Dkt. No. 142-2), is operative,
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(Dkt. No. 160-14, at 5–6), because “Defendants’ contracts, timesheets and project lists establish
that their operators performed work on building projects.” (Dkt. No. 162, at 3).7
After reviewing the parties’ submissions, the Court ordered additional briefing on the
preliminary question of whether Defendants are bound by the 2015-2018 Local 463 Building
CBA. (Dkt. No. 168). Plaintiffs argue that Defendants are bound because they executed a
memorandum of agreement in 2003, consenting to abide by the terms of a 2000-2003 Local 463
Building CBA that renewed. (Dkt. No. 171, at 3). In the alternative, Plaintiffs submit that
Defendants adopted the CBA because they “operated by the terms and conditions embodied in
the Local 463 Building CBA (with the exception of paying their delinquencies); acknowledged
that they were bound to the CBA by virtue of Local 463 Building remittance reports; and
realized the benefits of the Local 463 Building CBA.” (Id. at 6–7). Defendants disagree.
Although they concede that the memorandum of agreement binds Cambria to the 2000-2003
7 As a preliminary matter, the Court rejects Defendants’ argument that Plaintiffs should be precluded from bringing a
claim under the 2015-2018 Local 463 Building CBA because it was not in their complaint and is barred by Rule 37
of the Federal Rules of Civil Procedure. (Dkt. No. 173, at 1–3).
The Amended Complaint, (Dkt. No. 56), puts forth a cause of action for unpaid contributions and deductions under
ERISA and the LMRA. Defendants’ argument does not take into account the fact that Plaintiffs’ cause of action has
not changed; rather, Plaintiffs have responded to Defendants’ argument challenging the scope of covered work. In
response to that argument, Plaintiffs submitted that the contributions and deductions are due under the 2015-2018
Local 463 Building CBA rather than the Local 463 Heavy Highway CBAs. The authority to which Defendants cite is
inapposite. It pertains to breach of contract actions where a party added a new claim in the middle of summary
judgment briefing. See Roche Diagnostics GmbH v. Enzo Biochem, Inc., 992 F. Supp. 2d 213, 219–220 (S.D.N.Y.
2013) (rejecting breach of contract counterclaim where the defendant’s pleading alleged breach of one term of the
contract, but the summary judgment briefing asserted breach of an additional term of the contract); Caribbean
Wholesales & Serv. Corp. v. U.S. JVC Corp., 963 F. Supp. 1342, 1359 (S.D.N.Y. 1997) (rejecting contract impairment
claim brought under Puerto Rican law where the plaintiffs’ complaint alleged six events under which the contract was
impaired, but the summary judgment briefing asserted an additional circumstance under which the contract was
impaired).
Here the CBA, (Dkt. No. 142-2), was already in the record during the summary judgment hearing on August 6, 2025.
During that hearing, the Court stated that “[a]nything that’s in the record right now the Court can consider,” (See Dkt.
No. 149, at 47). Moreover, the Court previously asked Defendants to brief the question, “Do Defendants have any
caselaw support for this proposition [that Plaintiffs should be precluded from submitting evidence that was not
produced during discovery], especially if [Defendants] did not raise this argument about the scope of covered work
until after the close of discovery,” (Dkt. No. 147, at 5), and Defendants did not, (see generally Dkt. No. 161; Dkt. No.
163). Therefore, the Court considers the 2015-2018 Local 463 Building CBA.
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Local 463 Building CBA, Defendants contend that it does not apply after March 31, 2006, and
deny that Cambria, by its conduct, adopted it past that date. (Dkt. No. 173, at 3–6).
Cambria executed a memorandum of agreement (“MOA”) with Local 463 on November
3, 2003. (Dkt. No. 136-2, at 3). In that agreement, Cambria agreed to be bound by a “2000-2003
Engineers Agreement” between an industry association and Local 463 (“2000-2003 Local 463
Building CBA”). (Id.). The 2003 MOA provides a termination date of March 31, 2006. (Id.). It
states that the 2000-2003 Local 463 Building CBA is “hereby extended for a period of three (3)
years to commence on the 13 th day of May 2003 to terminate on the 31 st day of March 2006,
subject to” certain specified “wage modifications and changes.” (Id.). After itemizing wage
modifications and changes not relevant here, the 2003 MOA states that “[a]ll other terms and
conditions of the existing 2000-2003 Agreement herein modified or changed to remain in full
force and effect until the additional language changes and deletions follow.” (Id.).
There was a renewal provision in the 2000-2003 Local 463 Building CBA. (Dkt. No. 171,
at 21). The renewal provision provides:
This Agreement shall remain in full force and effect until March 31, 2003, and
through an extended term or terms as herein provided; and thereafter unless either
of the parties hereto give notice of their desire to alter the terms of the same in
accordance with the manner herein provided.
(Id.).
Plaintiffs argue that the renewal provision in the 2000-2003 Local 463 Building CBA
applies because the CBA was extended and that it continued in full force and effect after March
2006 because Defendants never gave notice of their desire to alter the terms of the CBA. (Id. at
3). Defendants, on the other hand, argue that the termination provision in the 2003 MOA governs
and that the 2000-2003 Local 463 Building CBA terminated on March 31, 2006. (Dkt. No. 173,
at 3–4).
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The 2003 MOA is silent on whether it adopts the 2000-2003 Local 463 Building CBA’s
renewal provision. The 2003 MOA does not state that the original terms and conditions of the
CBA which were unchanged “remain in full force and effect[.]” Instead it provides that the terms
and conditions modified or changed by the 2003 MOA “remain in full force and effect[.]”And
the provision on which Plaintiffs rely, the provision extending the CBA, states that the CBA
terminates on March 31, 2006. Thus, it is not clear whether the parties intended to merely
substitute the March 31, 2003 date in the renewal provision of the CBA with the March 31, 2006
date in the MOA, or whether the parties intended for the CBA to terminate on March 31, 2006.
The Court therefore finds that the 2003 MOA is ambiguous.
The Court thus turns to the extrinsic evidence, see Topps Co., 526 F.3d at 68, and may
consider the past practice of the parties. See New England Health Care Emps. Welfare Fund v.
iCARE Mgmt., LLC, 886 F. Supp. 2d 82, 103 (D. Conn. 2012) (citing Marcic v. Reinauer Transp.
Cos., 397 F.3d 120, 131–32 (2d Cir. 2005) (stating that a court may consider extrinsic evidence
of the parties’ past practices in interpreting an ambiguous provision of a CBA); see also Roberts
v. New York, 911 F. Supp. 2d 149, 175 (N.D.N.Y. 2012) (considering the past practices of the
parties to determine their intent regarding certain provisions of a collective bargaining
agreement).
Plaintiffs identify various remittance reports in support of their argument that Cambria
adopted the 2015-2018 Local 463 CBA. The Court considers whether these reports evidence that
the 2000-2003 Local 463 Building CBA renewed. Plaintiffs identify four remittance reports
labeled “Local 463 – BUILDING INDUSTRY” that Defendants submitted for work performed
by a Local 463 union member from December 2006 to March 2007. (See Dkt. No. 136-11, 2–5).
Each report states that “[b]y submitting this remittance report . . . the Employer agrees that it is
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bound to a collective bargaining agreement with the International Union of Operating Engineers
Local Union No. 17, 106, 463, 545, and/or 832[.]” (Id.). Second, Plaintiffs identify remittance
reports entitled “Local 463 – HEAVY HIGHWAY” for one employee from 2012 through 2017.
(See Dkt. No. 136-12). Defendants disagree that this evidence establishes that Defendants
intended to be bound by the Local 463 Building CBA after March 31, 2006. (See Dkt. No. 173,
at 5–6). They argue that “Cambria’s submission of four remittance reports for one employee
nearly 19 years ago fails to establish a course of conduct that perpetually binds Cambria to the
Local 463 Building CBA.” (Id. at 5).
Plaintiffs’ evidence does not necessarily indicate that the 2000-2003 Local 463 Building
CBA renewed, and thus, that Cambria is bound by the 2015-2018 Local 463 Building CBA. The
evidence that Cambria remitted reports for one Local 463 union member for four months in
2006-2007 does not require a trier of fact to conclude that Defendants were bound to the 2015-
2018 CBA. These reports acknowledge Cambria’s agreement to be bound “to a collective
bargaining agreement,” (Dkt. No. 136-11, at 2–5) (emphasis added), but do not specify to which
collective bargaining agreement it agreed to be bound. Although Cambria remitted reports for
contributions and deductions for one employee from 2012 through 2017, these reports were
submitted under the title, “Local 463 – HEAVY HIGHWAY,” not “Local 463 – BUILDING
INDUSTRY.” (See Dkt. No. 136-12). This evidence suggests that Cambria remitted reports
pursuant to the Local 463 Heavy Highway CBAs, not the 2015-2018 Local 463 Building CBA.
This extrinsic evidence is susceptible to more than one interpretation. While a trier of fact
may find that Cambria intended the 2000-2003 Local Building CBA to extend past March 31,
2006, a fact-finder may also find that the CBA was not extended into 2015-2018 based upon four
remittance reports in 2006 and 2007.
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The Court cannot resolve, based on the summary judgment record, whether Defendants
are bound by the 2015-2018 Local 463 Building CBA because the 2003 MOA is ambiguous, and
the extrinsic evidence is not susceptible to only one interpretation. Plaintiffs are thus not entitled
to summary judgment on their cause of action pertaining to the 2015-2018 Local 463 Building
CBA.8 9 See Shepley v. New Coleman Holdings, Inc., 174 F.3d 65, 72 n.5 (2d Cir. 1999) (stating
that courts may resolve an ambiguous agreement on the extrinsic evidence only if “the extrinsic
evidence creates no genuine issue of material fact and permits interpretation of the agreement as
a matter of law.”).
3. 	Local 17 Building CBAs
Both parties claim that the Local 17 Building CBAs are unambiguous, but each advances
a different interpretation of them. According to Defendants, the Local 17 Building CBAs do not
cover the type of work Cambria performed: “pure demolition work” that “was not connected
8 Plaintiffs’ payroll auditor, Michael Tarby, reallocated 262.50 hours to the Local 463 Building CBA. (Dkt. No. 136-
13, at ¶ 21 (see infra Section IV.C. for more on Tarby’s reallocation)). Tarby assigned 252 of those hours, which were
worked by one employee, to Local 463’s jurisdiction “[i]n accordance with the Funds’ Collections Policy and the
Court’s burden shifting analysis under ERISA” because “Defendants did not . . . produce any records to show where
[the employee] worked [those] 252 hours in 2016.” (Dkt. No. 171, at 2). Plaintiffs note:
Regardless of the Court’s finding concerning the Local 463 Building CBA, Defendants must still
remit contributions for the 252 hours worked by employee Hickey as an operating engineer.
Defendants failure to maintain and produce records identifying where the hours were
worked . . . does not deprive the Plaintiffs of their right to the contributions due on behalf of
employees.
(Id. at 2 n.1). Defendants did not respond to this argument, (see generally Dkt. No. 173), and the Court directs them
to explain their position on where these hours should be allocated in their pre-trial submissions.
9 Defendants’ position is that “because the CBAs are unambiguous, extrinsic evidence is neither necessary nor
appropriate.” (Dkt. No. 161, at 16). However, Defendants also state that they “reserve the right to present such
evidence if the Court finds ambiguity.” (Id. at 17). Defendants, however, have had ample opportunity to submit
evidence. Before the parties submitted any briefing on Plaintiffs’ renewed summary judgment motion, the Court stated
during the August 6, 2025 hearing that “the parties may submit exhibits if they need in the renewal motion if there
need to be exhibits submitted.” (Dkt. No. 149, at 47). Defendants did not provide any extrinsic evidence in the renewal
round of summary judgment briefing, this case is now set for trial, and the Court will not consider any new
submissions.
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with actual construction or site development.” (Dkt. No. 161, at 2).10 Plaintiffs argue that the
CBAs are not limited by the type of work performed; rather, they apply to “the operating
engineers who used the heavy equipment identified in the CBAs.” (Dkt. No. 160-14, at 7).
To support their interpretation, Defendants rely on a clause in Article 1, Purposes and
Principles:
This agreement shall apply to the building construction site which includes the
actual building, foundations, structural portions, interior portions of building, and
site work in conjunction with the building agreement including utilities, parking
lots, and driveways undertaken as part of the building project.
(Dkt. No. 89-32, at 6; Dkt. No. 89-33, at 6). Defendants argue that this language “establishes the
boundaries of the CBA[s],” and that the phrases “the building construction site” and “site work
in conjunction with the building agreement” do not include “[d]emolition where an existing
structure is torn down without any simultaneous construction.” (Dkt. No. 161, at 5–6).
Plaintiffs argue that this clause does not actually limit the scope of the CBAs because it is
contained in the “whereas clause.” (Dkt. No. 160-14, at 11). The Court rejects that argument.
The clause appears in a separate paragraph from the whereas clause and it is not preceded by the
term “whereas.” Moreover, its contents do not comport with the type of information usually
included within a whereas clause. See Recital, Black's Law Dictionary (12th ed. 2024) (defining
recital, also termed a whereas clause, as “[a] preliminary statement in a contract or deed
explaining the reasons for entering into it or the background of the transaction, or showing the
10 Defendants’ assertion that none of their demolition work was succeeded by site development or future construction
(see Dkt. No. 161, at 2), is demonstrably false. (See Dkt. No. 131-4, at 12 (“Job: Donovan Building Renovations), 14
(“demolition for the Proposed Convenience Store”), 16 (“Repair Building B and Building C Penthouse exterior”), 26
(“Wegman’s Demolition (Future Cabela’s)”), 28 (“[t]he additional work was related to the Proposed Guitar Center”),
29 (“demolition of 34 Chestnut Street for the Proposed Lockport Ice Arena & Sports Complex”), 40 (“demolish all
buildings for the future Wal-Mart”), 43 (“install precast concrete block wall”), 44 (“site earthwork for the Whole
Foods site”), 65 (“Project: American Harley Davidson Renovation”), 70 (“select demolition for the Proposed Five
Below”), 99 (“Job: Facade & Bldg Reno Frmr OTB”), 104 (“site work related to the renovation of the Yard Update
project”).
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existence of particular facts); Nova Grp./Tutor-Saliba v. United States, 87 F.4th 1375, 1380 (Fed.
Cir. 2023) (“Recitals are ‘explanations of the circumstances surrounding the execution of the
contract.”’ (quoting 17A C.J.S. Contracts § 420)); Sprint Nextel Corp. v. Wireless Buybacks
Holdings, 938 F.3d 113, 127 (4th Cir. 2019) (“Contracts often contain recitals: provisions that do
not make binding promises but merely recite background information about factual context or
the parties’ intentions.”). Even if the clause was part of the whereas clause, Plaintiffs have not
cited any authority rendering the clause ineffective, or even less effective, than the other parts of
the CBAs. Instead, the cases to which Plaintiffs cite suggest that a whereas clause does not create
any contractual promises or obligations. See New York v. United Parcel Serv., 253 F. Supp. 3d
583, 662–663 (S.D.N.Y. 2017), aff’d 942 F.3d 554 (2d. Cir. 2019) (finding that adopting the
defendant’s interpretation of the whereas clause would obligate the plaintiff to take an action
which the contract does not require); Abraham Zion Corp. v. Lebow, 761 F.2d 93, 103–104 (2d
Cir. 1985) (finding that construing the whereas clause to bind a party to a prior version of the
contract would create an obligation absent from the current contract). Here, the provision from
Article 1, Purposes and Principles does not create any contractual obligations; instead, it
describes what the agreement applies to.
According to Defendants, because the Article 1 clause references “site work in conjunction
with the building agreement,” (Dkt. No. 89-32, at 6; Dkt. No. 89-33, at 6), and “undertaken as
part of the building project,” (Dkt. No. 89-32, at 6; Dkt. No. 89-33, at 6), it does not cover the
situation in which “an existing structure is torn down without any simultaneous construction.”
(Dkt. No. 161, at 6). Neither party has addressed the terms, “building agreement” or “building
project.” It is unclear whether the term “building agreement” refers to an agreement to build, or
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whether it means an agreement regarding a building, such as erecting a building, renovating a
building, or demolishing a building. The same goes for the term “building project.”
In any event, it is not clear why Defendant’s construction is unambiguously correct.
Plaintiffs point to other provisions in the CBAs to support their argument that the CBAs
unambiguously cover “employees in the ‘classifications of work’ listed in the CBAs, with
‘classifications of work’ being the use of the heavy equipment/machines listed in the CBAs.”
(Dkt. No. 160-14, at 12). For example, Plaintiffs cite to a provision in Article III, Union
Recognition and Security, which provides:
The Employer hereby recognizes and acknowledges the Union as the sole and
exclusive bargaining representative of all Employees in the classifications of work
covered by this Agreement, and the schedules attached and made part thereof,
namely Engineers, Apprentice Engineers (also referred to as Oilers), Maintenance
Engineers (also referred to as Mechanics), Oilers (also referred to as Apprentice
Engineers), Firemen, Maintenance Welders, Master Mechanics and Assistant Master
Mechanics and all other work within the jurisdiction of the Union and all persons
performing the classes of work covered by this Agreement.
(Dkt. No. 89-32, at 10; Dkt. No. 89-33, at 10) (emphasis added). These classifications are
contained in Article XXV, Wage Rates and Classifications. (See generally Dkt. No. 89-32, at
33–44; Dkt. No. 89-33, at 32–42). “Classification A” and “Classification B” each list specific
machinery, equipment, and positions. (Dkt. No. 89-32, at 35–39; Dkt. No. 89-33, at 33–42.).
Plaintiffs also cite to Article V, Definition and Jurisdiction, which states that “[a]ll
machines used in Demolition, in the Building and Heavy and Highway Construction Industry
and claimed by the International Union of Operating Engineers Locals 17, 17A, 17B, and 17RA
irrespective of power are classified as follows . . .” (Dkt. No. 89-32, at 13; Dkt. No. 89-33, at
12). Article V then enumerates the various machines and equipment which Defendants agree
their employees used. (Dkt. No. 89-32, at 13–15; Dkt. No. 89-33, at 12–15; Dkt. No. 161, at 7).
Within that list, Plaintiffs emphasize “any Machine, irrespective of power, when used in the
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Building Construction Industry and normally operated by an Operating Engineer.” (Dkt. No. 89-
32, at 13; Dkt. No. 89-33, at 13).
Plaintiffs further cite to a provision governing “work disputes” which states:
The Employer agrees that the terms of this Agreement shall apply to all bargaining unit
work specified in this agreement which has traditionally been performed by bargaining
unit members. . . .The parties recognize that there may be pieces of equipment, or types
of work not listed in this agreement which both the Union and another labor
organization(s) would claim as bargaining unit work.
(Dkt. No. 89-32, at 24; Dkt. No. 89-33, at 23). This provision provides a dispute resolution
procedure for any work assignment dispute. (Dkt. No. 89-32, at 34; Dkt. No. 89-33).
Article V bolsters Plaintiffs’ interpretation because it includes “[a]ll machines used in
Demolition” as machinery and equipment claimed by Locals 17, 17A, 17B, and 17RA. (Dkt. No.
89-32, at 13; Dkt. No. 89-33, at 12). Even if, as Defendants urge, Article V “establishes
equipment classifications for wage-setting purposes” and describes the “industry context where
this classification system applies,” (Dkt. No. 161, at 6), the CBAs’ reference to machinery and
equipment used in the demolition industry would be meaningless if the CBAs did not include
demolition work at all. See CP III Rincon Towers, Inc. v. Cohen, 666 F. App’x 46, 51–52 (2d
Cir. 2016) (“It is well-established that we disfavor readings of a contract that render provisions
of an agreement superfluous. . . . [W]e do take the fact that a given interpretation would render a
provision superfluous into account in evaluating whether the relevant provisions, read together,
are ambiguous.” (citing Int’l Multifoods Crop. v. Com. Union Ins. Co., 309 F.3d 76, 86 (2d Cir.
2002) and RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 314 (2d Cir. 2003))); see also
Columbus Park Corp. v. Dep’t of Hous. Pres. & Dev., 598 N.E.2d 702, 708 (N.Y. 1992) (“[A]
construction which makes a contract provision meaningless is contrary to basic principles of
contract interpretation.”). And the classifications do not further define demolition work.
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However, Plaintiffs’ reliance on the union recognition provision, which indicates that the
CBAs apply to employees who use the equipment and machinery “in the classifications of work
covered by this Agreement” and the employees in “the schedules attached” (Dkt. No. 89-32, at
10; Dkt. No. 89-33, at 10) must be read with the rest of the CBA to give the other provisions
meaning. See Royal Dispatch Servs. v. UBS Fin. Servs., No. 12-cv-2032, 2012 WL 3113291, at
*4, 2012 U.S. Dist. LEXIS 107027, at *12 (E.D.N.Y. July 31, 2012) (The court “must consider
the contract as a whole, give effect and meaning to every term, and attempt to harmonize all of
the terms.”); Venture Grp. Enters. v. Vonage Bus. Inc., No. 20-cv-4095, 2024 WL 4502995, at
*5, 2024 U.S. Dist. LEXIS 188381, at *16 (S.D.N.Y. Oct. 16, 2024) (“[C]ourts should not read
language ‘in isolation because the contract must be considered as a whole.’” (quoting Brad H. v.
City of New York, 951 N.E.2d 743, 746 (N.Y. 2011))). The union recognition provision thus must
be considered along with the clause relied upon by Defendants in Article 1, Purposes and
Principles: the CBA applies to the “building construction site.” (Dkt. No. 89-32, at 6; Dkt. No.
89-33, at 6).
Although Locals 17, 17A, 17B, and 17RA claim “machines used in Demolition” and
“any Machine irrespective of power, when used in the Building and Construction Industry and
normally operated by an Engineer,” (Dkt. No. 89-32, at 13; Dkt. No. 89-33, at 12), it is not clear
to the Court that the CBA unambiguously covers any use of that equipment, and the parties have
not addressed the language in the Article 1 Purposes and Principles provision.
The Court may nevertheless resolve the summary judgment motion if “the extrinsic
evidence creates no genuine issue of material fact and permits interpretation of the agreement as
a matter of law.” Shepley,174 F.3d at 72 n.5 (2d Cir. 1999). “The categories of extrinsic evidence
that a court may consider in interpreting an ambiguous provision of a CBA include bargaining
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history, past practices, industry practices, other provisions in the CBA, and legal context.” New
England Health Care Emps. Welfare Fund, 886 F. Supp. 2d at 103 (citing Marcic, 397 F.3d at
131–32; see Roberts, 911 F. Supp. 2d at 175 (considering the past practices of the parties to
determine their intent regarding certain provisions of a collective bargaining agreement).
Defendants do not rely on extrinsic evidence.11 Plaintiffs do, and it supports only one
conclusion: that the CBAs cover the work Cambria performed. From the evidence on which
Plaintiffs rely, the Court finds most telling Cambria’s past practice of remitting contributions for
employees who performed only demolition work and the practice of similarly situated
employers.
Plaintiffs allege that over the course of seventeen years, from 2001 to 2017, Defendants
remitted “reports, fringe benefit contributions, and deductions to Plaintiffs on behalf of their
operating engineers who performed demolition, site work, and excavation work,” (Dkt. No. 160-
14, at 17), and have provided evidence indicating the same, (Dkt. No. 136-10, ¶¶ 4, 7–8; Dkt.
No. 136-12; Dkt. No. 89-3; Dkt. No. 89-4; Dkt. Nos. 136-15–136-19; Dkt. Nos. 136-21–136-24).
Defendants object to evidence of their past practice. They argue that “past contributions
were made in error and at Plaintiffs’ direction during a period of jurisdictional confusion,” and
that Cambria’s refusal to make contributions pursuant to the CBAs demonstrates “complete
repudiation” of the CBAs. (Dkt. No. 161, at 13). But even if Defendants had been confused
about Cambria’s obligations under the Local 17 Building CBAs, Defendants’ own witness
11 Defendants’ position is that “because the CBAs are unambiguous, extrinsic evidence is neither necessary nor
appropriate.” (Dkt. No. 161, at 16). However, Defendants also state that they “reserve the right to present such
evidence if the Court finds ambiguity.” (Id. at 17). Defendants, however, have had ample opportunity to submit
evidence. Before the parties submitted any briefing on Plaintiffs’ renewed summary judgment motion, the Court stated
during the August 6, 2025 hearing that “the parties may submit exhibits if they need in the renewal motion if there
need to be exhibits submitted.” (Dkt. No. 149, at 47). Defendants did not provide any extrinsic evidence in the renewal
round of summary judgment briefing, this case is now set for trial, and the Court will not consider any new
submissions.
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testified that this confusion stemmed from whether Cambria owed contributions for work
performed outside the geographical jurisdiction of Local 17, not whether the work was covered.
(See Dkt. No. 131-13, ¶¶ 7–8).
Defendants’ “repudiation” argument is likewise inapposite. The provision in the case they
rely on, NLRB v. Haberman Const. Co., 641 F.2d 351, 356 (5th Cir. 1981), (Dkt. No. 161, at 13),
discusses whether an employer’s conduct showed that the employer manifested its intention to be
bound by a labor agreement in the absence of a formal, written agreement between the parties.
Here, there is no issue as to whether Defendants were bound to the Local 17 Building CBAs. The
parties stipulated that Defendants were bound to them. (Dkt. No. 89-47 ¶ 1). And Defendants’
witness concedes that Cambria was “still technically signed to” the Local 17 Building CBA after
2017. (Dkt. No. 131-13, ¶ 10). But regardless if Defendants intended to repudiate the CBAs or
actually terminated it, their past practice of remitting contributions and deductions over a
seventeen-year period is probative extrinsic evidence. Based upon this strong extrinsic evidence
the Court finds that there are no genuine issues of material fact, and that the CBAs can be
interpreted as a matter of law to cover the demolition work performed by Defendants. See
Faulkner v. Nat'l Geographic Soc., 452 F. Supp. 2d 369, 381–82 (S.D.N.Y. 2006) (granting
summary judgment after finding that the parties’ contract was ambiguous, but that their past
practices supported only the movant’s interpretation).12
12 Plaintiffs have also provided evidence of industry practice to show that the Local 17 CBAs cover standalone
demolition work. This evidence includes an affidavit from Plaintiffs’ payroll auditor, Michael Tarby. He testified that
his accounting firm previously audited other employers subject to the same Local 17 Building CBAs, and that they
have remitted contributions and deductions to Plaintiffs for employees “operat[ing] heavy equipment to perform
demolition work.” (Dkt. No. 136-13, ¶ 3). Local 17’s Business Manager, William Fekete, also provided an affidavit,
in which he stated that “[c]ontractors apply Plaintiff Local 17’[s] . . . CBAs to demolition work and the employees
operating the equipment used in demolition work,” and that “[t]he demolition work does not need to be connected to
the construction of a building.” (Dkt. No. 136, ¶ 8). This evidence indicates that it is industry practice for standalone
demolition work to be covered under the CBAs. See Rossetto v. Pabst Brewing Co., 217 F.3d 539, 546 (7th Cir. 2000)
(finding another employer’s actions under the terms of an identical collective bargaining agreement evidence of
industry practice).
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4. 	Local 17C Residential CBA and Local 158 CBAs
Plaintiffs claim that Defendants owe contributions and deductions pursuant to the Local
17C Residential CBA and the Local 158 CBAs. (See Dkt. No. 160-14, at 3–5). Defendants do
not present any argument on the applicability of these CBAs, (see generally Dkt. No. 161; Dkt.
No. 163), and thus, have failed to raise any genuine issue of material fact regarding whether they
require Defendants to pay contributions and deductions. As a result, the Court analyzes whether
Plaintiffs have presented evidence sufficient to meet their summary judgment burden on this part
of their cause of action.
Plaintiffs have sufficiently shown that they are entitled to contributions and deductions
pursuant to the Local 17C Residential CBA and the Local 158 CBAs. Plaintiffs included each of
the CBAs in the record, (see Dkt. No. 89-40; Dkt. No. 136-5; Dkt. No. 89-10), and they all
require Cambria to remit contributions and deductions for work performed under the CBAs. (See
Dkt. No. 89-40, at 17–19, 23–27; Dkt. No. 136-5, at 14–18; Dkt. No. 89-10, at 19–26). Plaintiffs’
payroll auditor, Michael Tarby, reallocated hours for work performed by Cambria’s employees
to the Local 17C Residential CBA and the Local 158 CBAs.13 (See Dkt. No. 136-13, ¶¶ 20–22;
Dkt. No 160-14, at 3–5). Plaintiffs have provided his analysis. (See Dkt. No. 136-14–136-24).
Therefore, they are entitled to summary judgment on the part of their claim for contributions and
deductions pursuant to the Local 17C Residential CBA and the Local 158 CBAs.
C. 	Damages
The total award of damages cannot be determined yet because the Court denies part of
Plaintiffs’ motion for summary judgment.
13 See infra Section IV.C. for a discussion of Tarby’s reallocation.
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The record reflects the following regarding monies owed to Plaintiffs. Plaintiffs’ payroll
auditor, Michael Tarby, conducted an audit in March 2023. (See Dkt. No. 89-2, ¶ 16; Dkt. No.
89-3). He concluded that Cambria owed Plaintiffs $201,138.20 in delinquent contributions and
deductions. (See Dkt. No. 89-3; Dkt. No. 56, ¶ 33). Defendants hired Kenneth Pink, an
accountant, to review Tarby’s March 2023 audit. He issued a report in August 2023, correcting
Tarby’s $201,138.20 calculation to $169,331.64.14 (Dkt. No. 131-23, at 10). After Tarby and
Pink made their reports, the parties stipulated that Cambria’s employees worked 5,676.75 hours
from January 1, 2012 through September 30, 2021 in the geographic and territorial work
jurisdictions of specified collective bargaining agreements. (Dkt. No. 89-47, ¶ 2). Based on the
parties’ stipulation, Tarby recalculated the total amount of contributions and deductions Cambria
owed as $168,922.76. (Dkt. No. 89-2, ¶ 19). He included this analysis in his first affidavit in
support of Plaintiffs’ initial motion for summary judgment. (Dkt. No. 89-2). In response,
Defendants submitted an affidavit from Pink (Dkt. No. 131-5). He stood by his original analysis
that Cambria owed $169,331.64 in total contributions and deductions for the stipulated 5,676.75
hours. (See id. at ¶¶ 12–13). There was a difference of $408.88 between the auditors’
calculations.
In 2025, Tarby reallocated the hours Defendants owed to different CBAs than in his first
payroll audit. He testified in his second affidavit, (Dkt. No. 136-13), that he reallocated hours
after Defendants’ “object[ed] . . . to the allocation of 4,700 hours to Local 463 area under the
Heavy Highway CBA” in their response to Plaintiffs’ summary judgment motion. (Id. at ¶ 20).
14 In addition, Pink found that Cambria overpaid contributions based on “hours out of the jurisdiction,” (Dkt. No. 131-
23, at 8) in the amount of $420,068. (Id. at 9). After subtracting that sum from his calculation of total contributions
and deductions owed, $169,331, he found that Cambria overpaid Plaintiffs by $250,737. (Id.). The Court, however, is
not considering the issue of whether Defendants are entitled to an offset or recoupment of contributions because the
Court dismissed this affirmative defense. (See Dkt. No. 149, at 3; see also Dkt. No. 159).
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Tarby explained that he “initially (in 2017) allocated those 4,700 hours to Local 463’s area under
the Heavy Highway CBA because Defendants had not produced any records showing the precise
location of the work in New York and Defendants had chosen to report other hours to Plaintiffs
as being worked in Local 463’s area under the Heavy Highway CBA.” (Id. at ¶ 19). Tarby then
“reexamined Defendants’ (subsequently produced) records and reallocated the 4,700 hours based
on those records.” (Id. at ¶ 20). He also “reallocated 498.75 (of the 544.25 hours) that remained
in dispute.” (Id.). Based on this reallocation, Tarby recalculated the total contributions and
deductions owed as $165,038.90 (Id. at ¶ 23). Tarby’s affidavit describes how he reallocated the
hours and why that reallocation was warranted. (Id. at ¶¶ 16–23). Defendants did not provide
another affidavit from Pink in their surreply or in their briefing in response to Plaintiffs’ renewed
summary judgment motion.
Defendants, in their surreply, (Dkt. No. 141-2), and in their briefing responding to
Plaintiffs’ renewed motion for summary judgment, (Dkt. No. 161; Dkt. No. 163), have failed to
raise a genuine issue of material fact as to the reallocation. Although they make arguments
challenging it, they failed to adduce any evidence in support of their arguments.15 This is not
enough to raise a genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1)(A) (“A party
asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” (citation altered)); N.Y.
Dist. Council of Carpenters Pension Fund v. KW Const., Inc., No. 07-cv-8008, 2010 WL
15 During the hearing on Plaintiffs’ motion for summary judgment on August 6, 2025, the Court stated that “the parties
may submit exhibits if they need in the renewal motion if there need to be exhibits submitted[.]” (Dkt. No. 149, at 47).
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3958799, at *5, 2010 U.S. Dist. LEXIS 99643, at *19 (S.D.N.Y. Sep. 8, 2010) (“[T]o create a
genuine dispute of material fact, an employer must do more than simply ‘quibble’ with the
auditor’s methodology . . . Instead, an employer must at least put forth ‘affidavit and deposition
testimony asserting facts that would cast doubt upon the accuracy of the Fund’s calculations.’”
(citation modified) (quoting N.Y. Dist. Council of Carpenters Pension Fund v. Perimeter
Interiors, Inc., No. 06-cv-6377, 2009 WL 362640, at *3–4, 2009 U.S. Dist. LEXIS 11477, at *9
(S.D.N.Y. Feb. 13, 2009) and Ill. Conf. of Teamsters Emps. Welfare Fund v. Steve Gilbert
Trucking, 71 F.3d 1361, 1367 (7th Cir. 1995))). Therefore, Tarby’s reallocation of hours, except
as to hours allocated to the 2015-2018 Local 463 Building CBA16, is not at issue for trial.
The Court notes that there appears to be a genuine issue of material fact regarding
whether contributions and deductions are owed for 544.25 hours. (See Dkt. No. 89-2, ¶ 26
(“Defendants do not agree that they owe the additional 544.25 hours.”); Dkt. No. 89-51, at 17)).
This is an issue that was identified by Plaintiffs. Defendants have not addressed this issue in their
briefing; the parties are directed to address this in the pretrial submissions.
V. 	CONCLUSION
For these reasons, it is hereby
ORDERED that Defendant’s motion to strike the Affidavit of Kenneth L. Wagner (Dkt.
No. 164) is DENIED as moot; and it is further
ORDERED that Plaintiffs’ motion to strike Defendants’ covered work argument (Dkt.
No. 160) is DENIED; and it is further
16 Defendants may challenge Tarby’s reallocation of hours to the 2015-2018 Local 463 Building CBA because the
Court finds that whether Defendants were bound to that CBA is an issue for trial. See supra Section IV.B.2.
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ORDERED that Plaintiffs’ renewed motion for summary judgment (Dkt. No. 160) is
DENIED in part and GRANTED in part17; and it is further
ORDERED that the parties meet and confer by January 9, 2026 to determine whether
they can reach agreement on any of the remaining factual issues identified in this decision. Pre-
trial submissions required by the Court’s Trial Order (Dkt. No. 127) are due by January 16, 2026,
with responses due by January 23, 2026. The parties must, in their trial memoranda describe: (1)
their positions with respect to the remaining factual issues, (2) what issues remain for the jury,
(3) what evidence they seek to present at trial; and (4) what issues remain for the Court. In
addition, Defendants must, in their trial memorandum, address where the 252 hours worked by
employee Hickey as an operating engineer in 2016 were worked and to which CBA they should
be allocated. Responses to the trial memorandum submitted by each party are due by January 23,
2026; and it is further
ORDERED that a final pretrial conference is scheduled for January 30, 2026 at noon,
and trial remains scheduled for February 9, 2025.
IT IS SO ORDERED.
Dated: December 23, 2025
Syracuse, New York
17 This decision does not preclude Plaintiffs from pursuing claims under the Second Cause of Action arising out of the
audit for the period beginning on October 21, 2021. (See Dkt. No. 56 at 12–14, 23–24.)
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