Argila et al v. S&N Builders, Inc. et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
JACK ARGILA, in his fiduciary capacity
as a Trustee for the POINTERS,
CLEANERS & CAULKERS WELFARE,
PENSION & ANNUITY FUNDS, the
BRICKLAYERS JOINT APPRENTICE
TRAINING FUND, the LABOR
MANAGEMENT FUND, and the
PROMOTION FUND; and as President of
the BRICKLAYERS AND ALLIED
CRAFTWORKERS LOCAL UNION NO.
1, B.A.C.I.U., AFL-CIO; and the
TRUSTEES of the BRICKLAYERS AND
TROWEL TRADES INTERNATIONAL
PENSION FUND and the
INTERNATIONAL MASONRY
INSTITUTE,
MEMORANDUM
AND ORDER
22-CV-3324 (TAM)
Plaintiffs,
-against-
S&N BUILDERS, INC. and SAKANDER
RAJA,
Defendants.
----------------------------------------------------------X
TARYN A. MERKL, United States Magistrate Judge:
On June 6, 2022, Jack Argila, as a Trustee for the Pointers, Cleaners & Caulkers
Welfare, Pension & Annuity Funds, the Bricklayers Joint Apprentice Training Fund, the
Labor Management Fund, and the Promotion Fund (the “PCC Funds”), and as
President of the Bricklayers and Allied Craftworkers Local Union No. 1, B.A.C.I.U.,
AFL-CIO (“Local 1”), as well as the Trustees of the Bricklayers and Trowel Trades
International Pension Fund and the International Masonry Institute (the “International
Funds” and, collectively with the PCC Funds, the “Funds”) (Local 1 and the Funds
collectively, “Plaintiffs”), commenced this action against Defendants S&N Builders, Inc.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 1 of 45 PageID #:
<pageID>

2
(“S&N” or “S&N Builders”), Sakander Raja (“Raja”) (collectively, “Defendants”), Doe
General Contractor, and Doe Surety Company. See generally Compl., ECF 1. On March
28, 2023, Plaintiffs filed an amended complaint, naming Defendant Endurance
Assurance Corp. in place of Doe Surety Company. See generally Am. Compl., ECF 25. On
November 15, 2024, Plaintiffs filed a second amended complaint, adding Defendants
North American Specialty Insurance Company and QBE Insurance Corporation as
parties.1 See generally Second Am. Compl., ECF 53. The second amended complaint
seeks delinquent benefit contributions, dues, and assessments, as well as related relief
under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq.,
the Labor Management Relations Act (“LMRA”),2 29 U.S.C. § 141, et seq., the New York
Lien Law, N.Y. Lien L. § 70, et seq., and common law.
1 On April 22, 2025, Plaintiffs and Defendant Endurance Assurance Corporation filed a
stipulation of dismissal, which the Court entered on April 25, 2025. See Stipulation of Dismissal,
ECF 70; Apr. 25, 2025 ECF Order & ECF 71. On July 1, 2025, Plaintiffs filed a notice of voluntary
dismissal as to Defendant QBE Insurance Corporation. Notice of Voluntary Dismissal, ECF 74.
On November 26, 2025, Plaintiffs and Defendant North American Specialty Insurance Company
(n/k/a Swiss Re Corporate Solutions America Insurance Corporation) filed a stipulation of
dismissal, which the Court entered on December 2, 2025. Stipulation of Dismissal, ECF 83; Dec.
2, 2025, ECF Order & ECF 84. Accordingly, only Defendants S&N Builders and Sakander Raja
remain.
2 The Court notes that Plaintiffs refer to the LMRA by name only once in their second
amended complaint and do not cite the statute in connection with any of their causes of action.
Second Am. Compl., ECF 53, ¶ 1; see generally id. However, because Plaintiffs’ claims involving
alleged violations of the CBAs “involve interpretation of the CBA[s], [their] claims are governed
by” the LMRA rather than state contract law. Arnold v. Beth Abraham Health Services, Inc., No. 09-
CV-6049 (DLC), 2009 WL 5171736, at *2 (S.D.N.Y. Dec. 30, 2009), aff’d on other grounds sub nom.
Arnold v. 1199 SEIU, 420 F. App’x 48 (2d Cir. 2011) (summary order); see, e.g., Brown v. Nat’l
Football League, 219 F. Supp. 2d 372, 378 (S.D.N.Y. 2002) (“It is well established . . . that [the
LMRA] completely preempts state law claims . . . that involve the interpretation and application
of a CBA” and “an action that in substance charges a violation of a CBA may be removed to
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 2 of 45 PageID #:
<pageID>

3
Plaintiffs and Defendants S&N Builders and Sakander Raja have each moved for
summary judgment. Pls. Mot. for Summ. J. (“Pls. Mot.”), ECF 87; Defs. Cross-Mot. for
Summ. J. (“Defs. Mot.”), ECF 94. For the reasons discussed below, the Court grants in
part Plaintiffs’ motion for summary judgment and denies Defendants’ cross-motion for
summary judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. 	Factual Background
The Funds are “jointly trusteed multiemployer plans established and maintained
pursuant to collective bargaining agreements.” Pls. Rule 56.1 Statement (“Pls. 56.1”),
ECF 87-1, ¶ 1 (quotation marks omitted). But see Defs. Counter Rule 56.1 Statement, ECF
92, ¶ 1 (noting that “Defendants are without knowledge to either admit or deny” and
that the statement is “not one of material facts”); Defs. Counter Rule 56.1 Statement
(“Defs. Counter-56.1”), ECF 94, ¶ 1 (same).3 The Funds are union funds that “represent
employee participants that perform work within the scope of” Local 1’s collective
bargaining agreement. Pls. 56.1, ECF 87-1, ¶ 1. As relevant here, Plaintiffs represent
federal court, even though the complaint itself did not include a federal cause of action” (citing
United Steelworkers of Am. v. Rawson, 495 U.S. 362, 368–69 (1990); Allis-Chalmers v. Lueck, 471 U.S.
202, 214 (1985))); Cespuglio v. Ward, No. 03-CV-8603 (SAS), 2004 WL 1088235, at *3 (S.D.N.Y. May
13, 2004) (finding that LMRA “preemption applies in any case that raises questions about the
construction of, or rights and responsibilities under, a collective bargaining agreement,
regardless of whether the plaintiff’s claims sound in tort or contract”); Int’l Brotherhood of Elec.
Workers Loc. 106 v. Marker Elec. Contracting, Inc., No. 16-CV-932-FPG, 2018 WL 4327815, at *4
(W.D.N.Y. Sept. 10, 2018).
3 The Court notes that Defendants submitted duplicative filings. As relevant here, ECF
92 and ECF 94 (Defendants’ response to Plaintiffs’ Rule 56.1 Statement) are identical to one
another, as are ECF 92-2 and ECF 94-2 (Defendants’ Rule 56.1 Statement). See generally Defs.
Counter Rule 56.1 Statement, ECF 92; Defs. Counter-56.1, ECF 94; Defs. 56.1, ECF 92-2; Defs.
56.1, ECF 94-2. For the purposes of recounting the parties’ statements and counterstatements,
the Court cites to ECF 94 and ECF 94-2.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 3 of 45 PageID #:
<pageID>

4
workers who engaged in pointing, cleaning, and caulking work for Defendants on a
number of projects for the New York City Housing Authority (“NYCHA”).
More specifically, from 2015 through 2019, Defendant S&N Builders “submitted
competitive bids and was awarded six (6) public works construction projects by” the
NYCHA. Defs. Rule 56.1 Statement (“Defs. 56.1”), ECF 94-2, ¶ 1 (citing Raja
Affirmation, ECF 94-3, ¶ 3); Pls. Counter Rule 56.1 Statement (“Pls. Counter-56.1”), ECF
93-1, ¶ 1. Defendant Raja “is the President and Chief Executive Officer of S&N.” Pls.
56.1, ECF 87-1, ¶ 7 (citing Morgan Decl., ECF 90, ¶ 5 (citing Entity Information, Ex. GG
to Morgan Decl., ECF 90-1)); Defs. Counter-56.1, ECF 94, ¶ 7; see also Defs. 56.1, ECF 94-
2, ¶ 7; Pls. Counter-56.1, ECF 93-1, ¶ 7.
For each of these six NYCHA projects, Defendant S&N Builders “provided
payment and performance bonds from an insurance company surety.” Defs. 56.1, ECF
94-2, ¶ 2 (citing Raja Affirmation, ECF 94-3, ¶ 5; Payment Bonds, Ex. HH to Morgan
Decl., ECF 90-2); Pls. Counter-56.1, ECF 93-1, ¶ 2. The payment bonds each provided
that:
All persons who have performed labor, rendered services or furnished
materials and supplies, as aforesaid, shall have a direct right of action
against the Principal [S&N] and his, its or their successor[s] [a]nd assigns,
and the Surety herein, or against either or both of any of them and their
successors and assigns. Such persons may sue in their own name, and
may prosecute the suit to judgment and execution without the necessity of
joining with any other person as party plaintiff.
Defs. 56.1, ECF 94-2, ¶ 24 (quoting Payment Bonds, Ex. HH to Morgan Decl., ECF 90-2);
Pls. Counter-56.1, ECF 93-1, ¶ 24. Each payment bond for the six NYCHA projects was
issued between April 30, 2015, and July 11, 2019. Defs. 56.1, ECF 94-2, ¶ 23 (citing
Payment Bonds, Ex. HH to Morgan Decl., ECF 90-2); Pls. Counter-56.1, ECF 93-1, ¶ 23.
Defendant Raja signed the payment bonds for all but one of the projects, and signed
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 4 of 45 PageID #:
<pageID>

5
some of the checks for contributions, dues, and assessments.4 Pls. 56.1, ECF 87-1, ¶ 8
(citing Payment Bonds, Ex. HH to Morgan Decl., ECF 90-2; Argila Aff., ECF 88, ¶¶ 38,
40, 45, 48, 50, 56, 76; Exs. L–Q, V to Argila Aff., ECF 88-12, 88-13, 88-14, 88-15, 88-16, 88-
17, 88-22); Defs. Counter-56.1, ECF 94, ¶ 8.
Moreover, “[a]s a condition of being awarded each of the NYCHA construction
contracts,” Defendant S&N Builders “was required to execute a Letter of Assent
agreeing to be bound by the terms of the” Project Labor Agreement (“PLA”).5 Defs. 56.1,
ECF 94-2, ¶ 6 (citing Raja Affirmation, ECF 94-3, ¶ 7); Pls. Counter-56.1, ECF 93-1, ¶ 6.
The Letters of Assent were executed by Defendant Raja in his official capacity as
President of S&N Builders, not in his individual capacity. Defs. 56.1, ECF 94-2, ¶¶ 7–8
(citing Ex. D to Argila Aff., ECF 88-4); Pls. Counter-56.1, ECF 93-1, ¶¶ 7–8. Plaintiffs
assert that Defendant Raja, as President of Defendant S&N Builders, executed a Letter
of Assent to the PLA for NYCHA projects and that Defendant S&N Builders
“performed work on a total of 17 different NYCHA” projects. Pls. 56.1, ECF 87-1, ¶ 11
(citing Argila Aff., ECF 88, ¶ 8; Ex. D to Argila Aff., ECF 88-4; Duravcevic Aff., ECF 89,
¶ 39; Ex. FF to Duravcevic Aff., ECF 89-10). Defendants do not contest that Defendant
Raja, as President of Defendant S&N Builders, executed Letters of Assent for only six
NYCHA projects, “Various Development Site Wide Specific, Various Development
4 The Court notes that the referenced checks are all from Defendant S&N Builders, but
the Court is unable to independently discern who signed each check on behalf of Defendant
S&N Builders as the signature line simply reads “Authorized Signature” rather than the name
of Defendant Raja or another company agent. See Exs. L–Q, V to Argila Aff., ECF 88-12, 88-13,
88-14, 88-15, 88-16, 88-17, 88-22.
5 The PLA was “entered into by NYCHA . . . and the signatory affiliated Local Unions,”
including Local 1, to “provide for the cost efficient, safe, quality, and timely completion of
certain rehabilitation and renovation work.” Ex. C to Argila Aff., ECF 88-3, at 1, 2.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 5 of 45 PageID #:
<pageID>

6
Citywide, Sotomayor Houses, Monroe Houses, Morris Houses[,] and Ingersoll
Houses[,] and that S&N performed work at those projects.” Defs. Counter-56.1, ECF 94,
¶ 11. In addition, “[t]he PLA was applicable to each of the NYCHA projects at issue in
this action.” Defs. 56.1, ECF 94-2, ¶ 5 (citing Argila Aff., ECF 88, ¶¶ 5–11); Pls. Counter-
56.1, ECF 93-1, ¶¶ 3–5.6
While Plaintiffs contend that the PLA incorporates Plaintiffs’ collective
bargaining agreements (“CBAs”), Defendants only admit that the PLA provides that
Defendant S&N Builders “[a]grees to be bound by the legally established collective
bargaining agreements and local trust agreements as set forth in the Project Labor
Agreement and this Agreement but only to the extent of Program Work and as required
by the PLA.” Defs. Counter-56.1, ECF 94, ¶ 13 (quotation marks omitted); Pls. 56.1, ECF
87-1, ¶ 13 (citing Argila Aff., ECF 88, ¶¶ 6, 8–10; Ex. C to Argila Aff, ECF 88-3, art. 2(4);
Ex. D to Argila Aff., ECF 88-4); see also Defs. 56.1, ECF 94-2, ¶ 9; Pls. Counter-56.1, ECF
93-1, ¶ 9. Defendant Raja did not execute a CBA or local trust agreement in his
individual capacity. Defs. 56.1, ECF 94-2, ¶ 10; Pls. Counter-56.1, ECF 93-1, ¶ 10.
For the NYCHA projects, Defendant S&N Builders “submitted signed certified
payroll records to NYCHA” and each included either a statement certifying “‘that the
above information represents wages and supplemental benefits paid to all persons
employed by my firm for construction work on the above project during the period
6 At oral argument, the parties agreed that the discrepancy between the six versus
seventeen NYCHA projects at issue is not a material dispute as this discrepancy stems from a
distinction between projects and locations, respectively. The delinquency at issue concerns “six
projects,” and the “auditor’s summary . . . only cites to the six projects.” Hr’g Tr., ECF 97, at
41:8–9; see id. at 41:20–23 (Defendants’ counsel noting that the “17 versus 6” is “just semantics”
and not “a material fact” because Plaintiffs are “only claiming six projects where the benefits
were past due); id. at 42:6–11 (Plaintiffs’ counsel concurring).
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 6 of 45 PageID #:
<pageID>

7
shown’” or a box that is checked off that states, “‘[i]n addition to the basic hourly wage
rates paid to each laborer or mechanic, listed in the above referenced payroll, payments
of fringe benefits as listed in the contract have been or will be made to appropriate
programs for the benefit of such employees.’” Pls. 56.1, ECF 87-1, ¶ 12 (quoting
Duravcevic Aff., ECF 89, ¶ 40 (quoting Ex. FF to Duravcevic Aff., ECF 89-10)); Defs.
Counter-56.1, ECF 94, ¶ 12. The payroll reports submitted by Defendant S&N Builders
“set forth the name of the employees working on the NYCHA projects, the worker
classification, the hours worked that week and the applicable rate of pay.” Defs. 56.1,
ECF 94-2, ¶ 11 (citing Raja Affirmation, ECF 94-3, ¶ 12; Ex. A to Raja Affirmation, ECF
94-4; Duravcevic Aff., ECF 89, ¶ 40; Ex. FF to Duravcevic Aff., ECF 89-10); see Pls.
Counter-56.1, ECF 93-1, ¶ 11 (clarifying that the exhibits cited are samples, not a
representation of all payroll reports for all work performed by Defendant S&N Builders,
and that Plaintiffs’ auditor “issued several audits with scope limitations due to their
inability to review the full set of certified payroll records”). These payroll reports were
submitted “for[] Sakander Raja” as “President” of Defendant S&N, but signed by
Defendant S&N Builders’ project manager, Deven Butala. Ex. FF to Duravcevic Aff.,
ECF 89-10, at ECF pp. 2, 3, 6, 15 (capitalization altered); see Defs. 56.1, ECF 94-2, ¶ 17
(citing Ex. FF to Duravcevic Aff., ECF 89-10; Ex. A to Raja Affirmation, ECF 94-4); Pls.
Counter-56.1, ECF 93-1, ¶ 17. The payroll reports also include a certification that “I,
Sakander Raja[,] President” “do hereby state” that “I pay or supervise the payment of
the persons employed by S & N Builders, Inc.” Ex. FF to Duravcevic Aff., ECF 89-10, at
ECF pp. 5, 8, 10, 12, 14. This certification is also signed by Deven Butala “[f]or Sakander
Raja, President.” Id.
Pursuant to the CBAs, “the employer must submit monthly employer remittance
reports setting out the hours worked by its employees and the amount of contributions
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 7 of 45 PageID #:
<pageID>

8
and dues and assessments due for each employee, which ‘shall be remitted by
Employer not later than the fifteenth (15th) day of the following month.’” Pls. 56.1, ECF
87-1, ¶ 17 (quoting Argila Aff., ECF 88, ¶ 16; 2015–2019 CBA, Ex. A to Argila Aff., ECF
88-1, art. XV, at 27 (providing that “[a] monthly report on a form prepared by the
Trustees shall be remitted by each Employer not later than the fifteenth (15th) day of the
following month”); 2019–2023 CBA, Ex. B to Argila Aff., ECF 88-2, art. XV, at 28 (same));
Defs. Counter-56.1, ECF 94, ¶ 17. Under the CBAs, these “remittance reports must be
submitted each month regardless of whether the employer performed work covered by
the CBAs for that month.” Pls. 56.1, ECF 87-1, ¶ 17 (citing Argila Aff., ECF 88, ¶ 16;
2015–2019 CBA, Ex. A to Argila Aff., ECF 88-1, art. XV, at 27; 2019–2023 CBA, Ex. B to
Argila Aff., ECF 88-2, art. XV, at 28); Defs. Counter-56.1, ECF 94, ¶ 17. Additionally, the
PLA provides:
[T]he Contractors agree to be bound by the written terms of the legally
established jointly trusteed Trust Agreements specifying the detailed basis
on which payments are to be paid into, and benefits paid out of, such
Trust Funds but only with regard to Program Work done under this
Agreement and only for those employees to whom this Agreement
requires such benefit payments.
Pls. 56.1, ECF 87-1, ¶ 19 (quoting PLA, Ex. C to Argila Aff., ECF 88-3, at 25) (citing
Argila Aff., ECF 88, ¶¶ 10–11; Ex. D to Argila Aff, ECF 88-4); Defs. Counter-56.1, ECF
94, ¶ 19 (admitting that this language appears in the PLA). Moreover, pursuant to the
Trust Agreements, “a) the ‘assets of the Trust Fund shall not revert or be used for or
inure to the benefit of any of the Employers,’” and “b) ‘all contributions required from
an Employer shall, after their due date and until their payment over in full by the
Employer to the Trust Fund, be deemed to constitute a trust fund in the possession of
such Employer; and said Employer shall be responsible and liable therefore as a
fiduciary.’” Pls. 56.1, ECF 87-1, ¶ 20 (quoting Argila Aff., ECF 88, ¶ 25 (internal
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 8 of 45 PageID #:
<pageID>

9
quotation marks omitted)) (citing Exs. F–I of Argila Aff., ECF 88-6, 88-7, 88-8, 88-9, art.
II, § 2, art. III, § 3); Defs. Counter-56.1, ECF 94, ¶ 20. The CBAs further provide that
“‘[t]he Employer recognizes that once the contributions become due and owing to the
Fringe Benefit Funds, the contributions are assets of the Fringe Benefit Funds, and
Employer acts as a fiduciary of those fund assets until they are paid over to the Fringe
Benefit Funds.’” Pls. 56.1, ECF 87-1, ¶ 21 (quoting Argila Aff., ECF 88, ¶ 26 (citing Exs.
A–B to Argila Aff., ECF 88-1, 88-2, art. XV(7)(e)); Defs. Counter-56.1, ECF 94, ¶ 21.
Defendants “submitted periodic payment requisitions to NYCHA which
attached the certified payroll reports.” Defs. 56.1, ECF 94-2, ¶ 15 (citing Raja
Affirmation, ECF 94-3, ¶ 11; Ex. A to Raja Affirmation, ECF 94-4); Pls. Counter-56.1, ECF
93-1, ¶ 15 (noting that “S&N does not specify when exactly they submitted the periodic
payment requisitions or that such requisitions were timely” (quotation marks omitted)).
Additionally, Defendant S&N submitted “remittance reports to Plaintiffs setting forth
the Local No. 1 employee hours worked and the contributions payable pursuant to the
PLA.” Defs. 56.1, ECF 94-2, ¶ 16 (citing Raja Affirmation, ECF 94-3, ¶ 14; Ex. B to Raja
Affirmation, ECF 94-5); Pls. Counter-56.1, ECF 93-1, ¶ 16 (clarifying that the evidence
presented does not “establish that S&N submitted remittances each month or when
exactly they were submitted”). As noted above, at least some of these certified payroll
reports were signed by Defendant S&N’s project manager, Deven Butala. Defs. 56.1,
ECF 94-2, ¶ 17 (citing Ex. FF to Duravcevic Aff., ECF 89-10; Ex. A to Raja Affirmation,
ECF 94-4); Pls. Counter-56.1, ECF 93-1, ¶ 17 (clarifying that the proffered exhibits are a
sample and not a representation of all certified payroll reports for all work performed
by Defendant S&N on NYCHA projects).
The PLA “allowed Plaintiffs to designate a working journey person as shop
steward for the NYCHA projects” and “provided that the shop steward would have the
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 9 of 45 PageID #:
<pageID>

10
right to receive employee complaints or grievances and assist in their adjustment with
the contractor’s appropriate supervisor.” Defs. 56.1, ECF 94-2, ¶¶ 12–13; Pls. Counter-
56.1, ECF 93-1, ¶¶ 12–13. While Defendants contend that “[f]or all NYCHA projects
performed by S&N, Local No. 1 had a shop steward present who maintained his/her
own record of hours worked,” Defs. 56.1, ECF 94-2, ¶ 14, Plaintiffs admit only “that
there were shop stewards on at least some of S&N’s NYCHA projects, as the auditor did
review some shop steward reports in connection with the audit for the period January
1, 2016 through March 31, 2019,” Pls. Counter-56.1, ECF 93-1, ¶ 14 (citing Duravcevic
Aff., ECF 89, ¶¶ 8, 13). Moreover, the PLA provides that:
To the extent consistent with procurement regulations of the United States
Department of Housing and Urban Development, and in consideration of
the unions’ waiver of their rights to withhold labor from a contractor or
subcontractor delinquent in the payment of fringe benefits contributions
(“Delinquent Contractor”); NYCHA agrees that where any such union
and/or fringe benefit fund shall notify NYCHA, the General Contractor,
and the Delinquent Contractor in writing with back-up documentation
that the Delinquent Contractor has failed to make fringe benefit
contributions to it as provided herein and the Delinquent Contractor shall
fail, within ten (10) calendar days after receipt of such notice, to furnish
either proof of such payment or notice that the amount claimed by the
union and/or fringe benefit fund is in dispute, NYCHA shall withhold
from amounts then or thereafter becoming due and payable to the General
Contractor an amount equal to that portion of such payment due to the
General Contractor that relates solely to the work performed by the
Delinquent Contractor which the union or fringe benefit fund claims to be
due it, and shall remit the amount when and so withheld to the fringe
benefit fund and deduct such payment from the amounts then otherwise
due and payable to the General Contractor, which payment shall, as
between the General Contractor and NYCHA, be deemed a payment by
NYCHA to the General Contractor; provided however, that in any month,
such withholding shall not exceed the amount contained in the General
Contractor’s monthly invoice for work performed by the Delinquent
Contractor. The union or its employee benefit funds shall include in its
notification of delinquent payment of fringe benefits only such amount it
asserts the Delinquent Contractor failed to pay on the specific project
against which the claim is made and the union or its employee benefit
funds may not include in such notification any amount such Delinquent
Contractor may have failed to pay on any other NYCHA or non-NYCHA
project.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 10 of 45 PageID #:
<pageID>

11
Defs. 56.1, ECF 94-2, ¶ 18 (quoting Ex. C to Argila Aff., ECF 88-3, art. 11, § 2(C))
(emphasis omitted); Pls. Counter-56.1, ECF 93-1, ¶ 18. Furthermore, the PLA also states:
In the event the General Contractor or Delinquent Contractor shall notify
NYCHA as above provided that the claim of the union or fringe benefit
fund is in dispute, NYCHA shall withhold from amounts then or
thereafter becoming due and payable to the General Contractor an
amount equal to that portion of such payment due to the General
Contractor that relates solely to the work performed by the Delinquent
Contractor which the union and/or fringe benefit fund claims to be due it,
and deposit such amount when and so withheld in a separate interest-
bearing account pending resolution of the dispute pursuant to the union’s
Schedule A agreement, and the amount so deposited together with the
interest thereon shall be paid to the party or parties ultimately determined
to be entitled thereto, or held until the Delinquent Contractor and union
or fringe benefit fund shall otherwise agree as to the disposition thereof;
provided however, that such withholding shall not exceed the amount
contained in the General Contractor’s monthly invoice for work
performed by the Delinquent Contractor.
Defs. 56.1, ECF 94-2, ¶ 19 (quoting Ex. C to Argila Aff., ECF 88-3, art. 11, § 2(D))
(emphasis omitted); Pls. Counter-56.1, ECF 93-1, ¶ 19.
In a letter dated January 5, 2023, Plaintiffs “notified NYCHA of an alleged
delinquency of $693,602.83 on various projects and attached a spreadsheet detailing the
delinquencies for each project,” quoting “Article 11, Section 2(C) of the PLA in
requesting that NYCHA withhold monies against the projects.” Defs. 56.1, ECF 94-2,
¶ 20 (citing Raja Affirmation, ECF 94-3, ¶ 30; Ex. C to Raja Affirmation, ECF 94-6); Pls.
Counter-56.1, ECF 93-1, ¶ 20. NYCHA withheld the money as requested by Plaintiffs.
Defs. 56.1, ECF 94-2, ¶ 21 (citing Raja Affirmation, ECF 94-3, ¶ 30); Pls. Counter-56.1,
ECF 93-1, ¶ 21. On October 19, 2023, NYCHA issued payment to Plaintiffs in the
amount of $723,813.21, and on February 13, 2025, issued an additional payment of
$237,003.77. Defs. 56.1, ECF 94-2, ¶ 22 (citing Argila Aff., ECF 88, ¶ 57; Ex. R to Argila
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 11 of 45 PageID #:
<pageID>

12
Aff., ECF 88-18; Ex. S to Argila Aff., ECF 88-197); Pls. Counter-56.1, ECF 93-1, ¶ 22
(adding citation to Argila Aff., ECF 88, ¶ 67).
In 2019, Plaintiffs engaged an auditor to conduct an audit of Defendant S&N
Builders’ projects. Pls. 56.1, ECF 87-1, ¶ 22 (citing, inter alia, Duravcevic Aff., ECF 89,
¶¶ 7, 22–24). For the audit period spanning from January 1, 2016, through March 31,
2019 (the “’19–’21 Audit Period”), Plaintiffs’ auditor, Kobgo, issued an audit report on
February 26, 2021, “showing a delinquency in the amount of $491,991.02 for work
performed on various NYCHA Projects.” Pls. 56.1, ECF 87-1, ¶ 23 (citing Duravcevic
Aff., ECF 89, ¶¶ 7–13; Ex. Y to Duravcevic Aff., ECF 89-3); Defs. Counter-56.1, ECF 94,
¶ 23 (noting that “Defendants are without knowledge to either admit or deny”); cf. Defs.
56.1, ECF 94-2, ¶ 28 (noting that the February 26, 2021 audit “identified $157,247.48 in
allegedly past due Pointers contributions for the period July 1, 2015 to June 30, 2016 and
$201,450.58 for the period July 1, 2016 to June 30, 2017”); Pls. Counter-56.1, ECF 93-1,
¶ 28 (denying Defendants’ statement, and specifying that if Defendants are only
tallying amounts due to Pointers, then the correct amount “for the July 1, 2015 to June
30, 2016 period is $164,949.94 and for the July 1, 2016 through June 30, 2017 period is
$211,321.57”). Following the February 26, 2021 audit report, Defendant S&N worked
with Plaintiffs to “negotiate a settlement of sums claimed due and made periodic
payment[s] in furtherance of those negotiations” in order to attempt to resolve the
delinquency identified in the audit report. Pls. 56.1, ECF 87-1, ¶ 24; Defs. Counter-56.1,
7 The Court notes that Exhibit S to the Argila Affidavit indicates that the February 13,
2025 NYCHA payment noted in Defendants’ Rule 56.1 statement appears to have in fact paid on
February 3, 2025. Compare Defs. 56.1, ECF 94-2, ¶ 22 (asserting that NYCHA issued an
additional payment “on February 13, 2025”) with Ex. S to Argila Aff., ECF 88-19 (NYCHA
checks indicating a payment date of February 3, 2025).
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 12 of 45 PageID #:
<pageID>

13
ECF 94, ¶ 24. More specifically, Defendant “S&N submitted check no. 13909, dated
March 17, 2021, in the amount of $49,118.45, as well as checks in April, June, July, and
August 2021, each in the amount of $38,246.75.” Pls. 56.1, ECF 87-1, ¶ 25 (citing Argila
Aff., ECF 88, ¶¶ 38, 40; Ex. L to Argila Aff., ECF 88-12; Ex. M to Argila Aff., ECF 88-13);
Defs. Counter-56.1, ECF 94, ¶ 25. Following a meeting in April 2025, Defendant S&N
submitted objections and supporting documentation to the audit report for the ’16–’19
Audit Period. Pls. 56.1, ECF 87-1, ¶ 51; Defs. Counter-56.1, ECF 94, ¶ 51. Following the
objections, on July 10, 2025, Kobgo issued a revised audit report for the ’16-’19 Audit
Period, “which revealed a revised delinquency of $433,522.97 and, after application of
various payments, a net delinquency of $21,737.22”; Defendant S&N paid the remaining
delinquency on July 16, 2025, leaving a balance of $0.00 for the ’16–’19 Audit Period. Pls.
56.1, ECF 87-1, ¶ 52; Defs. Counter-56.1, ECF 94, ¶ 52.
At the end of 2021 and into the beginning of 2022, Kobgo and Plaintiffs began
working with Defendant S&N and NYCHA to obtain records for the audit period
spanning from April 1, 2019, through March 19, 2023 (the “’19–’23 Audit Period”). Pls.
56.1, ECF 87-1, ¶¶ 22, 26; Defs. Counter-56.1, ECF 94, ¶¶ 22, 26. On January 12, 2022,
Kobgo issued a Delinquency and Omissions Schedule (“Delinquency Schedule”) for
Defendant S&N “for the period March 29, 2021 through November 21, 2021, showing a
delinquency due and owing to the Funds in the amount of $728,918.32” for four
NYCHA projects, which was provided to Defendant S&N. Pls. 56.1, ECF 87-1, ¶ 27;
Defs. Counter-56.1, ECF 94, ¶ 27. Defendant S&N and Plaintiffs attempted to reach a
global resolution for the delinquencies identified in the February 26, 2021 audit report
and the Delinquency Schedule; however, “settlement terms were never agreed upon
and no settlement agreement was ever entered into by the parties.” Pls. 56.1, ECF 87-1,
¶ 28; Defs. Counter-56.1, ECF 94, ¶ 28. Nevertheless, between September 2021 and May
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 13 of 45 PageID #:
<pageID>

14
2023, Defendant S&N submitted eleven payments towards the deficiencies. Pls. 56.1,
ECF 87-1, ¶¶ 29 (citing Argila Aff., ECF 88, ¶ 45; Ex. N to Argila Aff., ECF 88-14), 31, 35,
39; Defs. Counter-56.1, ECF 94, ¶¶ 29, 31, 35, 39.
According to Plaintiffs, on May 16, 2023, Kobgo issued an audit report of
Defendant S&N for the ’19–’23 Audit Period, which showed “a delinquency of
$1,125,249.18, plus audit costs of $11,950.00.” Pls. 56.1, ECF 87-1, ¶ 38; Defs. Counter
56.1, ECF 94, ¶ 38 (noting that “Defendants are without knowledge to either admit or
deny”); cf. Defs. 56.1, ECF 94-2, ¶ 30 (stating that the May 16, 2023 audit “revealed an
alleged delinquency of $1,125,249.18”) (citing Duravcevic Aff., ECF 89, ¶ 24; Ex. BB to
Duravcevic Aff., ECF 89-6); Pls. Counter-56.1, ECF 93-1, ¶ 30. Defendant S&N submitted
objections to the ’19–’23 audit report; following a review of the objections, Kobgo issued
a revised audit report on October 24, 2023, “which revealed a revised delinquency of
$331,444.74 and, after application of two payments . . . , a net delinquency of
$210,322.51, plus audit costs of $14,275.00.” Pls. 56.1, ECF 87-1, ¶ 41; Defs. Counter-56.1,
ECF 94, ¶ 41; see also Defs. 56.1, ECF 94-2, ¶¶ 31–32; Pls. Counter-56.1, ECF 93-1, ¶¶ 31–
32. However, Defendant S&N Builders provided objections to the revised audit report
as well, and on May 3, 2024, Kobgo issued a further revised audit of the ’19–’23 Audit
Period, “which revealed a revised delinquency of $323,302.19, and a net delinquency of
$202,179.96, plus $16,450.00 in audit costs.” Pls. 56.1, ECF 87-1, ¶ 44; Defs. Counter-56.1,
ECF 94, ¶ 44. Defendant S&N submitted additional objections, and Kobgo issued
another revised audit report on November 11, 2025, “which revealed a revised
delinquency of $318,180.43, and a net delinquency of $4,446.34,” in addition to audit
costs. Pls. 56.1, ECF 87-1, ¶ 53; Defs. Counter-56.1, ECF 94, ¶ 53. However, as detailed in
Defendants’ 56.1 statement, and not disputed by Plaintiffs, “[a]ll contributions claimed
due by Plaintiffs under the Second Amended Complaint have been paid in full.” Defs.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 14 of 45 PageID #:
<pageID>

15
56.1, ECF 94-2, ¶ 40; Pls. Counter-56.1, ECF 93-1, ¶ 40; see Hr’g Tr., ECF 97, at 3:3–4:2
(Plaintiffs’ counsel confirming at the oral argument that “there are no contributions due
and owing”).
Defendants S&N Builders and Raja have “not paid any interest, liquidated
damages, audit costs, or attorney’s fees and expenses associated with the delinquencies
as demanded by Plaintiffs.” Pls. 56.1, ECF 87-1, ¶ 54; Defs. Counter-56.1, ECF 94, ¶ 54.
Plaintiffs contend that the total damages amount is $915,237.42, which consists of
(1) “remaining unpaid contributions, dues and assessments in the amount of
$4,446.33”8; (2) “interest on the delinquent contributions for the ’16-’19 Audit Period in
the amount of $246,934.96, and for the ’19-’23 Audit Period in the amount of
$74,186.55”; (3) “interest on the dues and assessments for the ’16-’19 Audit Period in the
amount of $16,608.20, and for the ’19-’23 Audit Period in the amount of $6,401.47”;
(4) “additional interest on the contributions in the amount of $321,121.51 (since that
amount is greater than 20% liquidated damages on the contributions)”; (5) “audit costs
in the amount of $35,120.00”; (6) “attorney’s fees in the amount of $209,639.50”; and
(7) “costs and expenses in the amount of $778.91.” Pls. 56.1, ECF 87-1, ¶ 56. But see Defs.
Counter-56.1, ECF 94, ¶ 56 (asserting that “Defendants are without knowledge to either
admit or deny other than to deny that there are remaining unpaid contributions, dues
and assessments in the amount of $4,446.33”).
8 As noted above, however, Plaintiffs have since acknowledged that there is no
outstanding delinquency based on unpaid contributions. Defs. 56.1, ECF 94-2, ¶ 40; Pls.
Counter-56.1, ECF 93-1, ¶ 40; Hr’g Tr., ECF 97, at 3:3–4:2 (Plaintiffs’ counsel confirming that
“there are no contributions due and owing”).
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 15 of 45 PageID #:
<pageID>

16
II. Procedural History
As noted above, Plaintiffs initiated this action on June 6, 2022. See generally
Compl., ECF 1. On July 22, 2022, Defendants filed an answer to the complaint. See
generally Answer, ECF 14.9
On October 25, 2023, the parties filed a motion requesting a settlement
conference before the Court. Joint Mot. for Hr’g, ECF 36. Following a pre-settlement
status conference, however, the Court directed the parties to continue settlement
discussions amongst themselves, including any further analysis of the revised audit
report. Nov. 1, 2023 ECF Min. Entry & Order. The parties were unable to resolve the
matter through settlement and proceeded with discovery. Status Report, ECF 42; June
25, 2024 ECF Order.
On November 15, 2024, with leave of court, Plaintiffs filed a second amended
complaint. See Second Am. Compl., ECF 53; Nov. 13, 2024 ECF Order. On August 1,
2025, Plaintiffs filed a motion for a pre-motion conference, requesting leave to file a
motion for summary judgment against Defendants S&N Builders and Raja. Pls. Mot. for
Pre-Mot. Conference, ECF 76. On August 12, 2025, Defendants S&N Builders and Raja
also filed a motion for a pre-motion conference, requesting leave to file a motion for
summary judgment against Plaintiffs. Defs. Mot. for Pre-Mot. Conference, ECF 77. On
September 9, 2025, the Court held a pre-motion conference regarding the anticipated
motions for summary judgment and set a briefing schedule for the parties’ respective
motions. Sept. 9, 2025 ECF Min. Entry & Order. Following numerous extensions of the
9 On July 29, 2022, the parties consented to magistrate judge jurisdiction. See Consent to
Jurisdiction, ECF 16; Consent to Jurisdiction, ECF 17.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 16 of 45 PageID #:
<pageID>

17
deadline to submit the parties’ motions, on March 9 and 10, 2026, the parties filed their
bundled motion papers. See Pls. Mot., ECF 87; Defs. Mot., ECF 94; see generally Docket.
On March 10, 2026, Plaintiffs filed a letter asserting that Defendants’ reply
memorandum violates Local Rule 7.1(c) and impermissibly raises new issues. Pls.
Letter, ECF 95. The Court scheduled a conference to discuss. Mar. 11, 2026 ECF
Scheduling Order. At the conference, the Court took the parties’ motions and associated
papers under advisement as filed and noted Plaintiffs’ objection. Mar. 18, 2026 ECF
Min. Entry & Order.
On September 15, 2026, the Court held oral argument on the parties’ motions for
summary judgment. See Sept. 15, 2026 ECF Min. Entry & Order; Hr’g Tr., ECF 97; see
also Sept. 4, 2026 ECF Scheduling Order. Following the hearing, the Court permitted the
parties to “provide supplemental authority concerning the issues discussed at the
hearing.” Sept. 15, 2026 ECF Min. Entry & Order. On September 22, 2026, both parties
filed letters providing supplemental authority. See Defs. Letter, ECF 98; Pls. Letter, ECF
99.
DISCUSSION
I. 	Legal Standard: Summary Judgment
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Darnell v. Pineiro, 849 F.3d 17, 22 (2d Cir. 2017).
“A fact is ‘material’ for these purposes if it ‘might affect the outcome of the suit under
the governing law.’” Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Further, a factual dispute is “genuine” if
“‘the evidence is such that a reasonable jury could return a verdict for the nonmoving
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 17 of 45 PageID #:
<pageID>

18
party.’” Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113–14 (2d Cir. 2017)
(quoting Anderson, 477 U.S. at 248). The Court must “view all facts in this case in the
light most favorable to the non-movant, resolving all ambiguities in [the non-movant’s]
favor.” Borley v. United States, 22 F.4th 75, 78 (2d Cir. 2021). “Put another way, summary
judgment is appropriate only where the record taken as a whole could not lead a
rational trier of fact to find for the non-movant.” Id. (alterations and quotation marks
omitted).
“The movant bears the burden of ‘demonstrat[ing] the absence of a genuine issue
of material fact.’” Nick’s Garage, Inc., 875 F.3d at 114 (alteration in original) (quoting
Celotex Corp., 477 U.S. at 323). Once the moving party has satisfied their burden, “‘the
nonmoving party must come forward with specific facts showing that there is a genuine
issue for trial.’” Brizzi v. Utica Mut. Ins. Co., 529 F. Supp. 3d 44, 51 (E.D.N.Y. 2021)
(emphasis in original) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (internal quotation marks omitted)); see also Anderson, 477 U.S. at 252
(“The mere existence of a scintilla of evidence in support of the [non-movant’s] position
will be insufficient; there must be evidence on which the jury could reasonably find for
the [non-movant].”).
Summary judgment must be denied “if there is any evidence in the record that
could reasonably support a jury’s verdict for the non-moving party.” Marvel Characters,
Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002). Further, Rule 56(c)(1) provides that:
A party asserting that a fact cannot be or is genuinely disputed must
support the assertion by: (A) 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; or (B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 18 of 45 PageID #:
<pageID>

19
Fed. R. Civ. P. 56(c)(1); see also Lener v. Hempstead Pub. Schs., 55 F. Supp. 3d 267, 274
(E.D.N.Y. 2014).
When determining whether a movant is entitled to summary judgment, courts
do not weigh the evidence or make credibility determinations to decide the truth of the
matter, but instead assess “‘whether there is a genuine issue for trial.’” Green v. Town of
E. Haven, 952 F.3d 394, 406 (2d Cir. 2020) (quoting Anderson, 477 U.S. at 249, 255).
District courts are “required to ‘resolve all ambiguities, and credit all factual inferences
that could rationally be drawn, in favor of the party opposing summary judgment.’”
Kessler v. Westchester County Dep’t of Soc. Servs., 461 F.3d 199, 206 (2d Cir. 2006) (quoting
Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001)); see also Johnson v. Killian, 680 F.3d 234,
236 (2d Cir. 2012) (per curiam). In addition, courts “may not properly consider the
record in piecemeal fashion, trusting innocent explanations for individual strands of
evidence; rather, it must review all of the evidence in the record.” Rasmy v. Marriott
Int’l, Inc., 952 F.3d 379, 386 (2d Cir. 2020) (quotation marks omitted).
Cross-motions for summary judgment are examined using the same standards,
and the court’s role is to “determine whether either of the parties deserves judgment as
a matter of law on facts that are not in dispute.” AFS/IBEX v. AEGIS Managing Agency
Ltd., 517 F. Supp. 3d 120, 123 (E.D.N.Y. 2021); see Morales v. Quintel Ent., Inc., 249 F.3d
115, 121 (2d Cir. 2001). Accordingly, the court must examine each party’s motion “on its
own merits” and draw “all reasonable inferences . . . against the party whose motion is
under consideration.” Morales, 249 F.3d at 121.
II. Analysis
Here, Plaintiffs move for summary judgment to recover “the principal amount
due under the audits,” along with “any interest, liquidated damages, audit costs, or
attorney’s fees and expenses associated with the delinquencies as demanded by
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 19 of 45 PageID #:
<pageID>

20
Plaintiffs.” Pls. Mem., ECF 91, at 7. In particular, Plaintiffs argue that Defendant S&N
Builders “is bound to the PLA which incorporates the CBAs, as evidenced by the Letters
of Assent and the fact that S&N performed work on the PLAs”; further, “[p]er the CBAs
and Trust Agreements, contributions that are due and owing to the Funds are assets of
the Funds for which the employer is responsible as a fiduciary until the time they are
paid over to the Funds.” Id. at 8–9. Moreover, Plaintiffs argue that because Defendant
Raja (1) “executed labor and material payment bonds as principal of S&N”; (2) directed
the submission of certified payroll records to NYCHA; and (3) “signed checks on behalf
of S&N for payment of contributions, dues, and assessments,” he is personally liable as
an ERISA fiduciary. Id. at 9; see id. at 14. Plaintiffs contend that, in light of the
undisputed material facts, they are entitled to an entry of summary judgment against
both Defendants S&N Builders and Raja for the requested sums.
Defendants oppose Plaintiffs’ motion for summary judgment and cross-move for
summary judgment. Defendants argue that “Plaintiffs have waived any right against
either S&N or Raja to recover . . . as a result of their own failure to mitigate the very
damages they now seek to recover.” Defs. Mem., ECF 94-7, at 7. Defendants also
contend that Defendant Raja “is not an ERISA fiduciary” and cannot be held
individually liable. Id. at 3.
A. ERISA Violations
The parties do not dispute that the executed Letters of Assent provided that
Defendant S&N agreed “to be bound by the legally established collective bargaining
agreements and local trust agreements as set forth in the” PLA, “but only to the extent
of Program Work and as required by the PLA.” Defs. 56.1, ECF 94-2, ¶ 9; Pls. Counter-
56.1, ECF 93-1, ¶ 9; see also Defs. Mem., ECF 94-7, at 4–5. However, Plaintiffs allege that
Defendant S&N, an employer bound by the CBAs, violated ERISA by failing to make
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 20 of 45 PageID #:
<pageID>

21
required contributions to the ERISA Funds, and that Defendant Raja is liable as a
fiduciary.
Under Section 515 of ERISA:
Every employer who is obligated to make contributions to a
multiemployer plan under the terms of the plan or under the terms of a
collectively bargained agreement shall, to the extent not inconsistent with
law, make such contributions in accordance with the terms and conditions
of such plan or such agreement.
29 U.S.C. § 1145; see also id. § 1132(g)(2) (stating, inter alia, that if there is a judgment in
favor of a “fiduciary for or on behalf of a plan” seeking to enforce Section 515, “the
court shall award the plan . . . the unpaid contributions,” as well as “interest on the
unpaid contributions [and] liquidated damages” according to the “rate provided under
the plan”).
Moreover, under ERISA:
Any person who is a fiduciary with respect to a plan who breaches any of
the responsibilities, obligations, or duties imposed upon fiduciaries by this
subchapter shall be personally liable to make good to such plan any losses
to the plan resulting from each such breach, and to restore to such plan
any profits of such fiduciary which have been made through use of assets
of the plan by the fiduciary[.]
29 U.S.C. § 1109(a). The statute explains that “a person is a fiduciary with respect to a
plan to the extent [that] he exercises any discretionary authority or discretionary control
respecting management of such plan or exercises any authority or control respecting
management or disposition of its assets[.]” Id. § 1002(21)(A). To hold Defendant Raja
personally liable as a fiduciary, Plaintiffs must demonstrate “both that (1) the unpaid
contributions were plan assets and (2) [the defendant] exercised a level of control over
those assets sufficient to make him a fiduciary.” In re Halpin, 566 F.3d 286, 289 (2d Cir.
2009); see Bd. of Trs. of Pointers, Cleaners & Caulkers Annuity Fund, Pension Fund & Welfare
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 21 of 45 PageID #:
<pageID>

22
Fund v. Harbor Island Contracting, Inc. (“Harbor Island Contracting”), No. 13-CV-6075
(MKB) (RER), 2015 WL 1245963, at *3 (E.D.N.Y. Mar. 16, 2015).
1. 	Defendant S&N Builders
Here, the undisputed facts demonstrate that Defendant S&N Builders employed
union members as defined by ERISA, see Ex. FF to Duravcevic Aff., ECF 89-10 (showing
that Defendant S&N Builders employed workers with “Pointers Caulkers and
Cleaners” indicated as their work classification (capitalization altered)); the Plaintiffs
are trustees and fiduciaries of the Funds, which are multiemployer plans, as defined by
ERISA, see Pls. 56.1, ECF 87-1, ¶ 1; and Defendant S&N Builders agreed to the terms of
the CBAs that require employers to remit contributions to these plans, see Defs. 56.1,
ECF 94-2, ¶ 9; Pls. Counter-56.1, ECF 93-1, ¶ 9; see also Defs. Mem., ECF 94-7, at 4–5.
Plaintiffs contend that Defendant S&N Builders failed to remit contributions for the
period from January 1, 2016, through March 19, 2023, as demonstrated through audit
examinations conducted by Kobgo. See Pls. Mem., ECF 91, at 12. Plaintiffs contend that,
as evidenced by the July 10, 2025 revised audit report for the ’16–’19 Audit Period,
Defendant “S&N failed to timely pay contributions, dues and assessments to the Funds
and Local 1 for work performed by its employees . . . in the amount of $433,522.97.” Id.;
see Pls. 56.1, ECF 87-1, ¶ 52; Defs. Counter-56.1, ECF 94, ¶ 52; see also July 10, 2025 Kobgo
Revised Audit, Ex. Z to Duravcevic Aff., ECF 89-4, at ECF p. 2 (noting that “[a] complete
set of weekly certified payroll records were requested but not made available for
review”). Following the application of various payments provided by Defendant S&N
Builders and other parties, see, e.g., Exs. L–N to Argila Aff., ECF 88-12, 88-13, 88-14
(checks supplied by Defendant S&N); see Ex. Z to Duravcevic Aff., ECF 89-4, at ECF p.
2, a net delinquency of $21,737.22 remained, Pls. 56.1, ECF 87-1, ¶ 52; Defs. Counter-
56.1, ECF 94, ¶ 52. It is uncontested that Defendant “S&N paid the remaining
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 22 of 45 PageID #:
<pageID>

23
delinquency on July 16, 2025, leaving a principal balance of $0.00 for the ’16–’19 Audit
Period.” Pls. 56.1, ECF 87-1, ¶ 52 (citing Argila Aff., ECF 88, ¶¶ 75–76; Morgan Decl.,
ECF 90, ¶ 53); Defs. Counter-56.1, ECF 94, ¶ 52.
As for the ’19–’23 Audit Period, Plaintiffs contend that, as evidenced by the
November 11, 2025 revised audit report, Defendant “S&N failed to timely pay
contributions, dues and assessments to the Funds and Local 1 for work performed by its
employees during the ’19–’23 Audit Period in the amount of $318,180.43.” Pls. Mem.,
ECF 91, at 12; see Pls. 56.1, ECF 87-1, ¶ 53; Defs. Counter-56.1, ECF 94, ¶ 53; see also Nov.
11, 2025 Kobgo Revised Audit, Ex. EE to Duravcevic Aff., ECF 89-9, at ECF p. 3 (noting
that “[a] complete set of weekly certified payroll records were requested but not made
available for review”). Following the application of various payments provided by
Defendant S&N Builders, NYCHA, and the surety, see Ex. EE to Duravcevic Aff., ECF
89-9, at ECF pp. 3–4, a net delinquency of $4,446.34 remained, Pls. 56.1, ECF 87-1, ¶ 53;
Defs. Counter-56.1, ECF 94, ¶ 53. Defendants admit that the Kobgo audit reports reflect
a net delinquency of $21,737.22 for the ’16–’19 Audit Period and $4,446.34 for the ’19–’23
Audit Period, and posit that the delinquency for the ’16–’19 Audit Period was paid in
full. Defs. Counter-56.1, ECF 94, ¶¶ 52–53. The parties now agree that “[a]ll
contributions claimed due by Plaintiffs under the Second Amended Complaint have
been paid in full.” Defs. 56.1, ECF 94-2, ¶ 40 (citing Raja Affirmation, ECF 94-3, ¶¶ 24,
35); Pls. Counter-56.1, ECF 93-1, ¶ 40; Hr’g Tr., ECF 97, at 3:3–4:2.
On summary judgment, Defendants do not contest the methodology used for the
audit reports, nor the delinquencies reported therein. Defs. Counter-56.1, ECF 94,
¶¶ 52–53; see Cement and Concrete Workers Dist. Council Welfare Fund v. Super. Gunite, 742
F. Supp. 3d 309, 315–16 (E.D.N.Y. 2024) (finding no genuine dispute of material fact that
the defendant was liable to the plaintiffs under ERISA because, inter alia, the defendant
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 23 of 45 PageID #:
<pageID>

24
“does not dispute that the relevant contractual provisions . . . bound the parties during
the audit period or that the plaintiffs conducted the audit, nor does it challenge the
auditor’s methodology”). Defendants also supply no underlying evidence to support
the assertion that Defendant “S&N submitted monthly remittance reports to Plaintiffs.”
Defs. 56.1, ECF 94-2, ¶ 16 (citing Raja Affirmation, ECF 94-3, ¶ 14; Ex. B to Raja
Affirmation, ECF 94-5); see Pls. Counter-56.1, ECF 93-1, ¶ 16. Rather, the record
illustrates that the monthly remittance reports cited by Defendants are simply a
“sample of a monthly remittance report for the Ingersoll project.” Raja Affirmation, ECF
94-3, ¶ 14; see Ex. B to Raja Affirmation, ECF 94-5; see also Pls. Counter-56.1, ECF 93-1,
¶ 17 (citing Ex. FF to Duravcevic Aff., ECF 89-10 (sampling of payroll reports submitted
by Defendant S&N)). Accordingly, the Court finds that there are no genuine disputes as
to any material fact regarding the delinquencies identified in the audit reports. Cf.
Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470–71 (2d Cir. 2002) (“Fed. R. Civ. P.
56 does not impose an obligation on a district court to perform an independent review
of the record to find proof of a factual dispute[;]” rather, “courts are entitled to order
litigants to provide specific record citations” in support of their summary judgment
arguments). The Court further finds that Defendant S&N Builders’ failure to timely
remit contributions to the Plaintiffs violated ERISA and the CBAs.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 24 of 45 PageID #:
<pageID>

25
2. 	Defendant Raja10
Plaintiffs assert that Defendant Raja is personally liable for the above ERISA
violations as a fiduciary of the Funds’ assets. Pls. Mem., ECF 91, at 13–15. Defendants
contend that Defendant Raja is not a fiduciary, and so cannot be held liable. Defs. Mem.,
ECF 94-7, at 18–23.
As a threshold matter, it is not meaningfully disputed that the unpaid funds
were plan assets. As established above, Defendant S&N was subject to the Trust
Agreements. The Trust Agreements provide that: (1) “assets of the Trust Fund shall not
revert or be used for or inure to the benefit of any of the Employers . . .” and (2) “[a]ll
contributions required from an Employer shall, after their due date and until their
payment over in full by the Employer to the Trust Fund, be deemed to constitute a trust
fund in the possession of such Employer; and said Employer shall be responsible and
liable therefore as a fiduciary.” Exs. F–I to Argila Aff., ECF 88-6, 88-7, 88-8, 88-9, art. II,
§ 2, art. III, § 3. Moreover, the IFP Trust Agreement further provides that: “Title to all
monies paid into and/or due and owing the Trust Fund shall be vested in and remain
exclusively in the Trustees of the Fund.” May 21, 2003 Amendment, Ex. J to Argila Aff.,
ECF 88-10, at ECF p. 46. Furthermore, the CBAs state that “[t]he Employer recognizes
that once the contributions become due and owing to the Fringe Benefit Funds, the
10 The parties’ papers only set forth arguments regarding whether Defendant Raja is an
ERISA fiduciary, not whether he is a fiduciary under the LMRA. The Court notes that “[c]ourts
considering whether a plaintiff may hold an individual defendant personally liable for claims
brought under the LMRA have applied state law” and that “[u]nder New York law, individual
liability is found ‘only in rare cases’ where there is ‘overwhelming evidence of the signatory’s
intention to assume personal liability.’” Bldg. Indus. Elec. Contractors Assn. v. Patriot Electric
Corp., No. 22-CV-7653 (NGG) (RML), 2024 WL 22762, at *9 (E.D.N.Y. Jan. 2, 2024) (quoting
Mason Tenders Dist. Council Welfare Fund v. Thomsen Const. Co., 301 F.3d 50, 53 (2d Cir. 2002)
(internal quotation marks omitted)). Accordingly, because the parties only briefed Defendant
Raja’s fiduciary status under ERISA, the Court does not consider whether Defendant Raja may
be a fiduciary under the LMRA.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 25 of 45 PageID #:
<pageID>

26
contributions are assets of the Fringe Benefit Funds, and Employer acts as a fiduciary of
those fund assets until they are paid over to the Fringe Benefit Funds.” 2015–2019 CBA,
Ex. A to Argila Aff., ECF 88-1, art. XV, § 7(e), at 30–31; 2019–2023 CBA, Ex. B to Argila
Aff., ECF 88-2, art. XV, § 7(e), at 32. While unpaid contributions are generally not
considered plan assets, the Second Circuit in In re Halpin observed that parties are “free
to contractually provide for some other result,” as the parties did here. In re Halpin, 566
F.3d at 290; see Sullivan v. M.A.C. Design Corp., No. 14-CV-1846 (NGG) (VVP), 2015 WL
5518456, at *3 (E.D.N.Y. Sept. 17, 2015) (noting that In re Halpin “emphasized that parties
to an agreement are free to contractually define unpaid contributions otherwise, and
that such a contract would trump the default rule”) (citing In re Halpin, 566 F.3d at 287;
Sheet Metal Workers’ Nat’l Pension Fund v. AUL Sheet Metal Works Inc., No. 10-CV-1371
(KBF), 2012 WL 32237, at *4 (S.D.N.Y. Jan. 5, 2012)). In Sullivan, a case arising under the
same CBAs, the court found that the instant language was “sufficient to designate the
unpaid employer contributions as plan assets.” 2015 WL 5518456, at *2. This reasoning
applies with equal force here and Defendants’ arguments to the contrary are unavailing.
See Defs. Mem., ECF 94-7, at 19–20 (discussing In re Halpin).11 Specifically, Defendants
11 Moreover, while Defendants assert that “the action against Raja for solely interest,
liquidated damages, attorney’s fees and/or auditor fees must be dismissed” because “during
the course of this litigation, S&N paid the balance of the outstanding contributions as money
was received on the various projects from NYCHA” and “[a]t this point in time, no additional
contributions are owed,” this argument, too, is unavailing. Defs. Mem., ECF 94-7, at 20. As
established above, the CBAs and the Trust Agreements provide that all contributions that are
due and owing are deemed to be assets of the Funds, and Defendants provide no case law to
support the assertion that payment of the outstanding contributions during the course of
litigation somehow nullifies Plaintiffs’ contractual entitlement to other forms of relief. See
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 26 of 45 PageID #:
<pageID>

27
use In re Halpin to argue that “[u]npaid employer contributions only become ‘plan
assets’ for ERISA purposes after being paid to the fund.” Id. at 19. However,
Defendants’ reading of In re Halpin is too narrow. Rather, the Second Circuit found that
the “the unpaid employer contributions were not assets of the plans” because the plan
documents at issue in that case described the fund assets as “contributions made by
Employers”; therefore, because “there is no indication that the parties sought to
displace the ordinary presumption that an employer does not become a fiduciary of
plan assets simply because it is under a contractual obligation to contribute to an
employee benefit fund,” the court found that the unpaid contributions were not plan
assets under the CBA at issue in that case. In re Halpin, 556 F.3d at 290–91 (quotation
marks omitted and emphasis in original). Here, however, as established above, the
language of the CBAs and trust documents specifically renders the unpaid
contributions plan assets. See Sullivan, 2015 WL 5518456, at *2. Accordingly, the Court
finds that the unpaid contributions and late-paid contributions were plan assets when
they became due.
The next question the Court must answer is whether there is a dispute of
material fact as to whether Defendant Raja “exercised a level of control over those assets
generally id.; cf. Iron Workers Dist. Council of W. New York & Vicinity Welfare & Pension Funds v.
Hudson Steel Fabricators & Erectors, Inc., 68 F.3d 1502, 1506 (2d Cir. 1995) (observing that “an
employer cannot escape its statutory liability for interest, liquidated damages or double interest,
attorney fees, and costs simply by paying the delinquent contributions before entry of judgment
in a § 1132(g)(2) action brought to recover delinquent contributions”); Argila v. R.Z. United
Constr., Inc., No. 23-CV-2547 (RPK) (TAM), 2026 WL 388608, at *13 n.18 (E.D.N.Y. Jan. 22, 2026),
report and recommendation adopted, Feb. 10, 2026 Order Adopting R. & R. (“As the Second Circuit
has observed, § 1145 of ERISA requires employers to make plan contributions in accordance
with the terms of the plan or applicable CBA, so even when ERISA contributions are paid late,
in the event of a judgment in favor of the plan under § 1132(g)(2) of ERISA, the plaintiff is
entitled to all the measures of relief not already obtained.” (quotation marks omitted)); Finkel v.
Allstate Elec. Corp., No. 09-CV-4071 (ENV) (RER), 2010 WL 5558899, at *5 & n.4 (E.D.N.Y. Nov.
24, 2010), report and recommendation adopted, 2011 WL 63600 (E.D.N.Y. Jan. 6, 2011).
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 27 of 45 PageID #:
<pageID>

28
sufficient to make him a fiduciary.” In re Halpin, 566 F.3d at 289. The Second Circuit has
observed that “Congress intended ERISA’s definition of fiduciary ‘to be broadly
construed.’” LoPresti v. Terwilliger, 126 F.3d 34, 40 (2d Cir. 1997) (quoting Blatt v.
Marshall & Lassman, 812 F.2d 810, 812 (2d Cir. 1987)). Notwithstanding that principle, it
is a functional, rather than a formal, definition. See Mason Tenders Dist. Council Pension
Fund v. Messera, 958 F. Supp. 869, 881 (S.D.N.Y. 1997). Accordingly, courts assess the
actual role a putative fiduciary played, if any, in the management of plan assets (i.e.,
here, the unpaid contributions).
For example, in LoPresti, the Second Circuit reversed the district court, finding
that one of the putative fiduciaries — who was a signatory on the company’s account,
“signed checks on that account, including checks payable to the Funds,” and “had a role
in determining which bills to pay” — was an ERISA fiduciary, while a second putative
fiduciary — who “was authorized to sign checks on the Company’s account” and “had
some general knowledge that deductions were made from employees’ wages” — was
not because he was “primarily a production person with no responsibility for
determining which of the company’s creditors would be paid or in what order.” 126
F.3d at 40–41 (quotation marks omitted). Other cases have held similarly. See, e.g.,
Harbor Island Contracting, 2015 WL 1245963, at *3 (finding the complaint’s allegations
that the individual defendant “held authority to sign checks on behalf of Harbor Island,
including checks that should have been submitted to the Funds” and “determined
whether Harbor Island would make contributions to the Funds, or use assets of the
Funds to pay other obligations or himself” sufficient to find him liable as a fiduciary in
default posture); Gesualdi v. Hardin Contracting, Inc., No. 09-CV-2660 (ARR) (JMA), 2010
WL 1048821, at *4 (E.D.N.Y. Feb. 16, 2010) (finding defendant to be individually liable
as a fiduciary where he signed dishonored checks without specifying that he was doing
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 28 of 45 PageID #:
<pageID>

29
so in a representative capacity), report and recommendation adopted as modified on other
grounds, 2010 WL 1048818 (E.D.N.Y. Mar. 19, 2010); see also Messera, 958 F. Supp. at 881
(collecting cases finding that agents of trustees may be held to be fiduciaries when
trustees merely rubber stamp the agents’ recommendations).
At the same time, a defendant’s status as an officer of a corporate entity alone is
insufficient to find that he is an ERISA fiduciary. See Finkel v. Romanowicz, 577 F.3d 79,
86 (2d Cir. 2009) (affirming district court’s finding that the individual defendant was
not a fiduciary where he “was simply an officer of” the corporate defendant, “signed
checks on the company’s behalf,” and “maintained plan assets for the benefit of”
himself and his company, but did not “select investments,” was not “responsible for
determining which of the company’s creditors would be paid or in what order,” or
otherwise was authorized to manage plan assets (cleaned up)).
Here, the undisputed facts in the record establish that Defendant Raja: (1) is the
President and Chief Executive Officer of Defendant S&N, see Pls. 56.1, ECF 87-1, ¶ 7
(citing Ex. D to Argila Aff., ECF 88-4; Ex. GG to Morgan Decl., ECF 90-1, at ECF p. 2);
Defs. Counter-56.1, ECF 94, ¶ 7; (2) signed the payment bonds, with the exception of the
bond for one project, as principal of Defendant S&N, see Defs. Counter-56.1, ECF 94, ¶ 8
(citing Ex. HH to Morgan Decl., ECF 90-2); (3) executed the Letters of Assent to the PLA,
see Pls. Counter-56.1, ECF 93-1, ¶ 7; Defs. 56.1, ECF 94-2, ¶ 7 (citing Ex. D to Argila Aff.,
ECF 88-4); (4) signed some checks for contributions, dues, and assessments, see Defs.
Counter-56.1, ECF 94, ¶ 8 (citing Exs. L–Q to Argila Aff., ECF 88-12, 88-13, 88-14, 88-15,
88-16, 88-17); (5) had others sign the certified payroll reports “for[] Sakander Raja” as
“President” of Defendant S&N, Ex. FF to Duravcevic Aff., ECF 89-10, at ECF pp. 2, 3, 6,
15 (capitalization altered); and (6) had others sign the certifications included in the
payroll reports, which stated that “I, Sakander Raja[,] President” “do hereby state” that
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 29 of 45 PageID #:
<pageID>

30
“I pay or supervise the payment of the persons employed by S & N Builders, Inc.,” id. at
ECF pp. 5, 8, 10, 12, 14. See also Hr’g Tr., ECF 97, at 4:25–5:6 (Plaintiffs’ counsel
representing that “the undisputed evidence in the record is that [Raja] is the CEO and
president of S&N Builders[,] . . . the signatory to the PLA as the president[,] . . . [and]
signed checks which establishes his authority and control over the finances of the
company”), 6:25–7:3 (Plaintiffs’ counsel noting that Raja “obtained payment bonds on
behalf of S&N which are meant to guarantee the payment of contributions of this exact
sort”), 10:2–7 (Plaintiffs’ counsel indicating that the certified payrolls are signed “for
Sakander Raja, president”), 10:14–18 (Plaintiffs’ counsel highlighting Raja’s “signature
on the bonds”); see also id. at 13:3–13.
The record does not reflect, however, that Defendant Raja signed certified reports
on behalf of S&N himself; rather, as stated above, the sample of certified payroll reports
provided in the record, although submitted under Raja’s name as President of S&N,
were signed by Defendant S&N’s project manager, Deven Butala. Defs. 56.1, ECF 94-2,
¶ 17 (citing Ex. FF to Duravcevic Aff., ECF 89-10; Ex. A to Raja Affirmation, ECF 94-4);
Pls. Counter-56.1, ECF 93-1, ¶ 17 (citing Ex. FF to Duravcevic Aff., ECF 89-10; Ex. A to
Raja Affirmation, ECF 94-4); see also Pls. Letter, ECF 99, at 2–3. Additionally, as
discussed at oral argument, Defendant Raja’s affirmation contends that Defendant
S&N’s “Office Manager handled the monthly remittance reports as well as the
communications with Plaintiffs and their auditors,” and would also “review the various
payment obligations on the projects and make decisions on who to pay and what
amounts they would receive based on the amounts received from NYCHA.” Raja
Affirmation, ECF 92-3, ¶ 34; see id. ¶ 23 (“Our Office Manager, Cynthia Sukhram, would
review the relevant obligations and make decisions on who to pay and the amounts
they would receive.”); Hr’g Tr., ECF 97, at 24:12–22, 25:20–24, 26:5–17.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 30 of 45 PageID #:
<pageID>

31
Viewing these facts in the light most favorable to Defendants — as the non-
movant on Plaintiff’s motion for summary judgment on the issue of whether Defendant
Raja is a fiduciary — a reasonable factfinder could find in Defendants’ favor. While
there is evidence that Defendant Raja may have signed some checks for contributions,
dues, and assessments, this does not demonstrate that he had sufficient responsibility
over the company’s determinations as to paying its creditors to be an ERISA fiduciary
under the case law; rather, the record could be interpreted to conclude that, like the
non-fiduciary in LoPresti, Defendant Raja “had some general knowledge that
deductions were made from employees’ wages,” but was not responsible “for
determining which of the company’s creditors would be paid or in what order.” 126
F.3d at 40 (quotation marks omitted); see Romanowicz, 577 F.3d at 86; see also supra note 4
(noting that the Court cannot independently discern who signed each check on behalf
of Defendant S&N). Additionally, the fact that Defendant Raja signed payment bonds
on behalf of Defendant S&N Builders has very little bearing on whether he managed
plan assets or otherwise exercised a level of control over such assets such that he was
acting as a fiduciary as to ERISA contributions, specifically. See Greenblatt v. Delta
Plumbing & Heating Corp., 68 F.3d 561, 574–75 (2d Cir. 1995) (observing that a surety
bond executed between the parties under the terms of their CBA did not implicate
ERISA: “surety law does not touch upon any rights or duties incident to the ERISA plan
itself, nor does it conflict with any ERISA cause of action”); see generally In re Halpin, 566
F.3d at 289. Moreover, as Defendants highlighted at the hearing, Defendant Raja’s
affirmation contends that Defendant S&N’s Office Manager made the relevant decisions
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 31 of 45 PageID #:
<pageID>

32
regarding which creditors were paid and in what order. Raja Affirmation, ECF 92-3,
¶¶ 23, 34.12
Conversely, viewing these same facts in the light most favorable to Plaintiffs —
as the non-movant as to Defendants’ summary judgment claim that Defendant Raja is
not a fiduciary — a factfinder could conclude that Defendant Raja’s overall role,
together with his signing of the contributions, dues, and assessment checks,
demonstrated “a level of control over those assets sufficient to make him a fiduciary.”
In re Halpin, 566 F.3d at 289. In-court testimony could further establish the functional
level of control Defendant Raja exercised over the plan assets as Defendant S&N’s
President and CEO, which topics are underdeveloped in the summary judgment record.
12 In the supplemental letter filed on September 22, 2026 following oral argument,
Plaintiffs provide three cases in support of their argument that Defendant Raja is an ERISA
fiduciary: (1) Trs. of New York City Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity
Fund, & Apprenticeship, Journeyman Retraining, Educ. and Indus. Fund v. Infinity Mgmt. Corp.
(“Infinity”), No. 17-CV-8204 (AKH), 2019 WL 13472372 (S.D.N.Y. Sept. 12, 2019); (2) Iron Workers
Loc. No. 60 Annuity Pension Fund by Robb v. Solvay Iron Works, Inc. (“Solvay”), No. 5:15-CV-54
(BKS/DEP), 2018 WL 2185510 (N.D.N.Y. May 11, 2018); and (3) Trs. of Plumbers Loc. Union No. 1
Welfare Fund, Additional Sec. Ben. Fund, Vacation & Holiday Fund, Trade Educ. Fund, & 401(K) Sav.
Plan v. Temperini Mech., Inc. (“Temperini”), No. 12-CV-5646 (ILG) (SMG), 2014 WL 2644774
(E.D.N.Y. June 13, 2014). Pls. Letter, ECF 99, at 1–2. Each of these cases, however, is
distinguishable. In Infinity, the defendant “sign[ed] all certified payroll records, which include[d] a
certification that the above information represents wages and supplemental benefits paid to all
persons employed by [the defendant’s] firm for construction work on the above project,” and
did not identify “any relevant documents bearing [the company’s bookkeeper’s] name or
signature.” Infinity, 2019 WL 13472372, at *3–4, *4 n.4 (quotation marks omitted and emphasis
added). In Solvay, the record established that the defendant “had authority and control over [the
company’s] bank accounts, and that he paid suppliers to keep them happy.” 2018 WL 2185510, at *9
(emphasis added). Finally, in Temperini, the defendant was found to be a fiduciary by virtue of
“his role as president, CEO, and [as] the person who approved and signed the documents related to
contributions to the funds.” 2014 WL 2644774, at *4 (emphasis added). As set forth above, the
record evidence present in this case, when viewed in the light most favorable to Defendants,
does not establish that Defendant Raja exercised “a level of control over those assets sufficient
to make him a fiduciary,” when considering the fact that Defendant Raja did not sign the
certified payroll records himself and attested that others in the company decided which
creditors got paid in which order. In re Halpin, 566 F.3d 286, 289 (2d Cir. 2009).
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 32 of 45 PageID #:
<pageID>

33
For these reasons, the Court finds that the summary judgment record evinces a
dispute of material fact as to whether Raja was or was not a fiduciary. Consequently,
both parties’ motions for summary judgment on the issue of Defendant Raja’s fiduciary
status are denied and this issue is reserved for trial.
B. Breach of the PLA and the CBA
As set forth above, Plaintiffs also allege that Defendant S&N Builders breached
the PLA, and the CBAs incorporated therein, by failing to timely submit remittance
reports.
The LMRA authorizes suits in federal court “for violation[s] of contracts between
an employer and a labor organization[13] representing employees.” 29 U.S.C. § 185(a); see
also Annuity, Pension, Welfare, Training and Lab. Mgmt. Coop. Tr. Funds of Int’l Union of
Operating Eng’rs Loc. 14-14B v. Regal USA Concrete, Inc., No. 23-CV-1208 (FB) (RML),
2023 WL 7413837, at *2 (E.D.N.Y. Sept. 28, 2023), report and recommendation adopted, 2023
WL 6865599 (E.D.N.Y. Oct. 18, 2023). Accordingly, where an employer violates the
terms of a CBA, a “labor organization may sue . . . in behalf of the employees whom it
represents.” 29 U.S.C. § 185(b). Under the LMRA, “courts apply common law principles
of contract to [CBAs].” Trs. of New York City Dist. Council of Carpenters Pension Fund v.
Manny P. Concrete Co., Inc., No. 18-CV-4111 (AJN), 2020 WL 2087678, at *3 (S.D.N.Y.
Apr. 30, 2020). In applying the LMRA, courts “enforce obligations in contracts arising
through incorporating other contracts by reference.” Id. (citing Goodrich Pump & Engine
13 A “‘labor organization’ means any organization . . . in which employees participate
and which exists for the purpose, in whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”
29 U.S.C. § 152(5).
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 33 of 45 PageID #:
<pageID>

34
Control Sys. v. Int’l Union, United Auto. Aero. & Agric. Implement Workers of Am., 723 F.
App’x 67, 69–70 (2d Cir. 2018); 75-07 Food Corp. v. Trs. of United Food & Com. Workers Loc.
342 Health Care Fund, No. 13-CV-5861 (JFB) (ARL), 2014 WL 691653, at *1–3 (E.D.N.Y.
Feb. 24, 2014)). Courts commonly find that an employer’s violation of a CBA
incorporated by reference in a PLA — a “large-scale contract[] common in the
construction industry” that is “often signed before construction begins” — can lead to
LMRA liability, even if the defendant is not a signatory to the CBA itself, as is the case
here. Bldg. Indus. Elec. Contractors Ass’n v. City of New York, 678 F.3d 184, 185 (2d Cir.
2012).
Here, Defendant S&N’s contractual obligations are contained in “tiers of
agreements.” Manny P. Concrete Co., 2020 WL 2087678, at *4. Defendants perform work
“under project labor agreements . . . , which are collective bargaining agreements
(CBAs) between labor organizations and employers that determine workers’ wages and
benefits.” Id. at *1. The PLA “incorporate[s] by reference collective bargaining
agreements, which in turn incorporate the Funds’ trust agreements, regulations, and
policies.” Id. at *4. As set forth above, a PLA “dated January 1, 2015 was entered into
between NYCHA and the Building and Construction Trades Council of Greater New
York and Vicinity.” Defs. 56.1, ECF 94-2, ¶ 3 (citing Ex. C to Argila Aff., ECF 88-3); Pls.
Counter-56.1, ECF 93-1, ¶ 3; see also Ex. C to Argila Aff., ECF 88-3, at ECF p. 49. The
parties agree that Plaintiff Local 1 was a signatory to the PLA and that the “PLA was
applicable to each of the NYCHA projects at issue in this action.” Defs. 56.1, ECF 94-2,
¶¶ 4–5 (citing Argila Aff., ECF 88, ¶¶ 5–11; Ex. C to Argila Aff., ECF 88-3); Pls. Counter-
56.1, ECF 93-1, ¶¶ 4–5. Defendant S&N “was required to execute a Letter of Assent
agreeing to be bound by the terms of the PLA” as a precondition to “being awarded
each of the NYCHA construction contracts” at issue. Defs. 56.1, ECF 94-2, ¶ 6; Pls.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 34 of 45 PageID #:
<pageID>

35
Counter-56.1, ECF 93-1, ¶ 6; see also Defs. 56.1, ECF 94-2, ¶ 7 (noting that the “Letters of
Assent for the NYCHA projects were executed by” Defendant Raja as President of
Defendant S&N). Each of these letters of assent provided that Defendant S&N “‘[a]grees
to be bound by the legally established collective bargaining agreements and local trust
agreements as set forth in the Project Labor Agreement and this Agreement but only to
the extent of Program Work and as required by the PLA.” Defs. 56.1, ECF 94-2, ¶ 9 (Ex.
D to Argila Aff., ECF 88-4); Pls. Counter-56.1, ECF 93-1, ¶ 9. The PLA incorporates the
CBAs and, together, the PLA and CBAs represent “the complete understanding of all
signatories and supersedes any national agreement, local agreement or other collective
bargaining agreement of any type which would otherwise apply to this Program Work,
in whole or in part.” Ex. C to Argila Aff., ECF 88-3, art. 2, § 4, at ECF p. 11. Here, it is
undisputed that Defendant S&N, through Defendant Raja, signed various Letters of
Assent to the PLA, which incorporate by reference the CBAs and local trust agreements
set forth in the PLA. Therefore, “[i]n addition to being bound by the terms of the” PLA,
Defendant S&N is “also bound by these other contracts” — “[i]n short, assent to a PLA
brings with it myriad contractual obligations.” Manny P. Concrete Co., 2020 WL 2087678,
at *4.
The PLA’s terms provide that “[c]ontractors agree to pay on a timely basis
contributions on behalf of all employees covered by [the PLA] to those established
jointly trusteed employee benefit funds.” Ex. C to Argila Aff., ECF 88-3, art. 11, § 2(A),
at ECF pp. 31–32; see Pls. 56.1, ECF 87-1, ¶ 14; cf. Defs. Counter-56.1, ECF 94, ¶ 14
(contending that Plaintiffs’ assertion regarding the terms of the PLA “is not one of
material facts, but rather a conclusion of law”). In turn, the CBAs provide that an
employer — in this case, Defendant S&N — is required to make contributions to
Plaintiffs’ funds and to timely submit remittance reports, in addition to other
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 35 of 45 PageID #:
<pageID>

36
obligations. 2015–2019 CBA, Ex. A to Argila Aff., ECF 88-1, arts. XV–XVI, at 26–36;
2019–2023 CBA, Ex. B to Argila Aff., ECF 88-2, arts. XV–XVI, at 27–37. As relevant here,
“[a] monthly report on a form prepared by the Trustees shall be remitted by each
Employer not later than the fifteenth (15th) day of the following month.” 2015–2019
CBA, Ex. A to Argila Aff., ECF 88-1, art. XV, § 4, at 27; 2019–2023 CBA, Ex. B to Argila
Aff., ECF 88-2, art. XV, § 4, at 28. The CBAs further provide that failure to make weekly
contributions to the fund renders an employer in delinquency and the employer is
obligated to make its books and records, including the specified remittance reports,
available for inspection and audit. 2015–2019 CBA, Ex. A to Argila Aff., ECF 88-1, art.
XV, § 7, at 27–31; 2019–2023 CBA, Ex. B to Argila Aff., ECF 88-2, art. XV, § 7, at 28–32.
As discussed above, there is no dispute that the Kobgo audit reports reflected a
net delinquency of $21,737.22 for the ’16–’19 Audit Period and $4,446.34 for the ’19–’23
Audit Period, and that the delinquency for the ’16–’19 Audit Period was paid in full.
Defs. Counter-56.1, ECF 94, ¶¶ 52–53. The parties also agree that “[a]ll contributions
claimed due by Plaintiffs under the Second Amended Complaint have been paid in
full.” Defs. 56.1, ECF 94-2, ¶ 40 (citing Raja Affirmation, ECF 94-3, ¶¶ 24, 35); Pls.
Counter-56.1, ECF 93-1, ¶ 40. While Defendants contend that Defendant “S&N
submitted monthly remittance reports to Plaintiffs setting forth the Local No. 1
employee hours worked and the contributions payable pursuant to the PLA,”
Defendants supply no underlying evidence to support these assertions. Defs. Counter-
56.1, ECF 94, ¶ 56; Defs. 56.1, ECF 94-2, ¶ 16 (citing Raja Affirmation, ECF 94-3, ¶ 14; Ex.
B to Raja Affirmation, ECF 94-5).
Accordingly, there is no dispute of fact on the question of whether Defendant
S&N breached the PLA and the CBA through its failure to timely submit all the
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 36 of 45 PageID #:
<pageID>

37
required remittance reports, contributions, dues, and other payments due under the
CBAs.
C. Defenses
As a defense to liability, Defendants assert that Plaintiffs’ failure to mitigate
damages constitutes a waiver of their right to recover. Defs. Mem., ECF 94-7, at 9–16.
More specifically, Defendants offer three bases upon which they argue that Plaintiffs
failed to mitigate their alleged damages: (1) Plaintiffs failed to employ the remedies
afforded under the PLA; (2) Plaintiffs failed to utilize the remedies afforded under the
payment bonds; and (3) Plaintiffs failed to follow their own collection procedures. Id.;
Defs. Reply, ECF 94-8, at 3–8. Plaintiffs deny that Defendants’ waiver defense is
applicable in this case and assert that even if it did apply, it fails. Pls. Opp’n, ECF 93, at
11–20.
As established by the Federal Rules of Civil Procedure, waiver is an affirmative
defense. Fed. R. Civ. P. 8(c)(1); see Trs. of New York City Dist. Council of Carpenters Pension
Fund v. Halcyon Constr. Corp. (“Halcyon Constr.”), No. 15-CV-1191 (PGG), 2017 WL
5643603, at *9 (S.D.N.Y. Mar. 31, 2017). “Given that waiver turns on questions of intent,
it is generally not susceptible to summary judgment.” Halcyon Constr., 2017 WL
5643603, at *9 (collecting cases). In order to survive summary judgment, the party
asserting waiver “must produce ‘evidence of an intentional relinquishment of a known
right.’” Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 303 (2d Cir. 1996) (quoting
Hayes v. Crane Hogan Structural Sys., 594 N.Y.S.2d 923, 925 (App. Div. 4th Dep’t 1993)).
“‘Waiver may be established by affirmative conduct or by a failure to act that evinces
the intent to abandon the right.’” Halcyon Constr., 2017 WL 5643603, at *9 (quoting
Jordan v. Can You Imagine, Inc., 485 F. Supp. 2d 493, 499 (S.D.N.Y. 2007)).
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 37 of 45 PageID #:
<pageID>

38
At the outset, however, the “Second Circuit has recognized that an employer’s
affirmative defenses in a Section 515 ERISA action are limited.” Mason Tenders Dist.
Council Welfare Fund v. Blade Contracting, Inc., No. 22-CV-9609 (JGLC), 2025 WL 936571,
at *11 (S.D.N.Y. Mar. 27, 2025) (citing Benson v. Brower's Moving & Storage, Inc., 907 F.2d
310, 314 (2d Cir. 1990) (“Our research has disclosed only two defenses recognized by the
courts: (1) that the pension contributions themselves are illegal, and (2) that the
collective bargaining agreement is void (not merely voidable).”)). “Thus, once an
employer knowingly signs an agreement that requires him to contribute to an employee
benefit plan, he may not escape his obligation by raising defenses that call into question
the union’s ability to enforce the contract as a whole.” Benson, 907 F.2d at 314; see Trs. of
New York City Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, &
Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. M.C.F. Assocs., Inc., 530 F.
Supp. 3d 460, 466 (S.D.N.Y. 2021).
Here, Defendants have not attempted to argue the CBAs are void, nor have they
attempted to argue that the contributions are illegal. Accordingly, Defendants have not
substantiated any affirmative defense to bar application of ERISA.
Even assuming, arguendo, that Defendants could raise a waiver defense based on
the assertion that Plaintiffs failed to mitigate their damages, this argument fails because
Defendants have not illustrated that Plaintiffs were on notice of the delinquencies prior
to the audits. See Halcyon Constr., 2017 WL 5643603, at *9 (rejecting waiver defense
because “there is no evidence that [the plaintiffs] knew — prior to the Second Audit —
that [the defendant] had been delinquent in making the required contributions”). While
Defendants assert, in a conclusory fashion, that “S&N submitted weekly certified
payrolls along with its monthly payment requisitions to NYCHA,” Defendants do not
proffer any evidence to support this claim. Defs. Mem., ECF 94-7, at 12; see also Pls.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 38 of 45 PageID #:
<pageID>

39
Counter-56.1, ECF 93-1, ¶¶ 11, 15 (specifying that the certified payroll reports and
payment requisitions to NYCHA in the record constitute only a sample of these
records). Without evidence in the record to support Defendants’ contentions,
Defendants’ argument that Plaintiffs sat on their rights and failed to adequately
mitigate their damages is unavailing. See Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010)
(“[M]ere conclusory allegations or denials . . . cannot by themselves create a genuine
issue of material fact where none would otherwise exist.” (internal quotation marks
omitted)).14 Accordingly, Defendants’ proposed defenses are unpersuasive and fail on
summary judgment.
III. Damages
“Section 502 of ERISA sets forth the damages that are recoverable for an
employer’s failure to remit contributions as required by Section 515 of ERISA.” Finkel v.
Colony Elec. Co. (“Colony Elec.”), No. 10-CV-2240 (FB) (LB), 2010 WL 5665042, at *4
(E.D.N.Y. Nov. 8, 2010), report and recommendation adopted, 2011 WL 346738 (E.D.N.Y.
Feb. 1, 2011). Section 502, which was codified at 29 U.S.C. § 1132(g)(2), provides as
follows:
14 Defendants’ supplemental letter claims that “it is clear that Federal Courts in New
York will not preclude a defendant from pursuing a mitigation of damages defense because the
case involves ERISA claims.” Defs. Letter, ECF 98, at ECF p. 3. However, the case in this circuit
that Defendants quote acknowledges that “‘the issue is not settled.’” Id. (quoting Iron Workers
Loc. 12 Pension Fund by Eggleston v. Standard Steel Fabricators, Inc. (“Standard Steel”), No. 1:16-CV-
0625 (GTS/CFH), 2018 WL 4554493, at *10 (N.D.N.Y. Sept. 21, 2018)). Moreover, the court in
Standard Steel noted that “to the extent the doctrine of mitigation applies in the ERISA context, it
would apply at most to the determination of damages, and not to liability” and determined that
“[n]either party ha[d] discussed and analyzed the facts, or lack thereof, supporting this
defense,” rendering it impossible for the court to analyze the defense. Standard Steel, 2018 WL
4554493, at *10–11 (quotation marks omitted). Here, however, as established above, there is
ample case law in the Second Circuit supporting the determination that Defendants have not
raised an accepted defense under ERISA, the defenses were adequately briefed, and
Defendants’ arguments are unpersuasive against the backdrop of the summary judgment
record.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 39 of 45 PageID #:
<pageID>

40
In any action under this subchapter by a fiduciary for or on behalf of a
plan to enforce section 1145 of this title in which a judgment in favor of
the plan is awarded, the court shall award the plan —
(A) 	the unpaid contributions,
(B) 	interest on the unpaid contributions,
(C) 	an amount equal to the greater of —
(i) 	interest on the unpaid contributions, or
(ii) 	liquidated damages provided for under the plan in an
amount not in excess of 20 percent (or such higher percentage as
may be permitted under Federal or State law) of the amount
determined by the court under subparagraph (A),
(D) 	reasonable attorney’s fees and costs of the action, to be paid by the
defendant, and
(E) 	such other legal or equitable relief as the court deems appropriate.
29 U.S.C. § 1132(g)(2). For LMRA claims, plaintiffs may only recover the damages
provided for in the contract itself. See Colony Elec., 2010 WL 5665042, at *4.
The Court further notes that while ERISA does not allow for recovery based on
contributions that were paid prior to the initiation of the suit, “a plaintiff may recover
interest on late contributions under a breach-of-contract theory pursuant to the LMRA.”
Bd. of Trs. of the United Union of Roofers, Waterproofers & Allied Workers Loc. Union No. 8
W.B.P. & A. Funds v. Akro Gen. Contracting, Inc. (“Akro Gen. Contracting”), No. 15-CV-
4901 (CBA) (VMS), 2016 WL 6775467, at *6 (E.D.N.Y. Aug. 15, 2016) (collecting cases),
report and recommendation adopted sub nom. Bd. of Trs. of the United Union of Roofers v. Akro
Gen. Contracting, Inc., 2016 WL 6779487 (E.D.N.Y. Nov. 15, 2016). It is undisputed that
Defendants submitted a number of checks to address the alleged delinquencies prior to
the filing of this suit on June 6, 2022. See, e.g., Defs. Counter-56.1, ECF 94, ¶ 25
(admitting that Defendant S&N submitted a number of checks in 2021). Nevertheless,
because Plaintiffs have also sued for breaches of the CBAs, Plaintiffs may recover
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 40 of 45 PageID #:
<pageID>

41
interest on late payments under those contracts. See Akro Gen. Contracting, 2016 WL
6775467, at *6.
Here, “Plaintiffs seek judgment in the total amount of $915,237.43,”15 which
consists of: (1) “remaining delinquent contributions and dues per the 11/11/25 Revised
Audit in the amount of $4,446.33”; (2) “ten percent (10%) interest on all delinquent
contributions per the 7/10/25 and 11/11/25 Revised Audits in the total amount of
$321,121.51”; (3) “nine percent (9%) interest on all delinquent dues and assessments per
the 7/10/25 and 11/11/25 Revised Audits in the total amount of $23,009.67”;
(4) “additional interest on ERISA contributions for the 7/10/25 and 11/11/25 Revised
Audits in the total amount of $321,121.51”; (5) “audit costs in the amount of $35,120.00”;
(6) “attorney’s fees in the amount of $209,639.50”; and (7) “costs and expenses in the
amount of $778.91, in accordance with ERISA.” Pls. Mem., ECF 91, at 25. However, this
requested relief appears to be out of date given the parties’ agreement that all of the
delinquent contributions have been paid. See Defs. 56.1, ECF 94-2, ¶ 40; Pls. Counter-
56.1, ECF 93-1, ¶ 40; Hr’g Tr., ECF 97, at 3:3–4:2.
Notwithstanding the above determinations on liability, the Court finds that it
cannot award damages at this time on the basis of the present record. First, if Defendant
Raja is found to be a fiduciary, the Defendants here may be jointly and severally liable
for unpaid contributions, pre-judgment interest, and attorney’s fees and costs. See
Bricklayers & Allied Craftworkers Loc. 2, Albany, N.Y. Pension Fund v. Moulton Masonry &
Const., LLC, 779 F.3d 182, 190 (2d Cir. 2015) (no fiduciary liability for liquidated
damages); Loc. 1992 Pension Fund v. A-G Elec. Supply Co. Inc., No. 21-CV-3441 (JMA)
15 The Court notes that, by the Court’s calculation, Plaintiffs’ requested damages as
enumerated amount to $915,237.23, rather than $915,237.43.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 41 of 45 PageID #:
<pageID>

42
(JMW), 2024 WL 872467, at *6–7 (E.D.N.Y. Feb. 6, 2024) (damages and attorney’s fees
and costs) (collecting cases), report and recommendation adopted, 2024 WL 866235
(E.D.N.Y. Feb. 28, 2024); Trs. of the Plumbers Loc. Union No. 1 Welfare Fund v. LG Elite
Plumbing, Inc., No. 25-CV-2234 (PKC) (RML), 2026 WL 884495, at *11 (E.D.N.Y. Mar. 6,
2026) (attorney’s fees), report and recommendation adopted, 2026 WL 881364 (E.D.N.Y.
Mar. 31, 2026). Accordingly, the Court finds it inappropriate to attempt to calculate and
award damages until the outstanding question of Defendant Raja’s fiduciary status is
addressed to avoid conflicting judgments. Cf. Badalamenti v. Country Imported Car Corp.,
No. 10-CV-4993 (SJF) (GRB), 2012 WL 601481, at *2 (E.D.N.Y. Feb. 22, 2012) (in the
ERISA default context, deferring the determination of damages due to outstanding
“defendants against whom plaintiff alleges joint and several liability based upon the
breach of their respective fiduciary duties”) (collecting cases).
Moreover, the Court observes that “where the movant ‘fail[s] to fulfill its initial
burden’ of providing admissible evidence of the material facts entitling it to summary
judgment, summary judgment must be denied, ‘even if no opposing evidentiary matter
is presented,’ for the non-movant is not required to rebut an insufficient showing.”
Giannullo v. City of New York, 322 F.3d 139, 140–41 (2d Cir. 2003) (quoting Adickes v. S.H.
Kress & Co., 398 U.S. 144, 158, 160 (1970)). This is because it is the movant’s burden to
establish all critical elements of the case. See Adickes, 398 U.S. at 158 (“Given these
unexplained gaps in the materials submitted by [movant], we conclude that [movant]
failed to fulfill its initial burden of demonstrating . . . a critical element in this aspect of
the case . . . .”). In other words, “the court may grant summary judgment only if the
motion and supporting materials . . . show that the movant is entitled to it”;
“[c]onsidering some facts undisputed does not of itself allow summary judgment.” Fed.
R. Civ. P. 56(e)(3) advisory committee’s note to 2010 amendment.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 42 of 45 PageID #:
<pageID>

43
Here, Plaintiffs have failed to meet their burden on summary judgment to
establish damages with clarity. As set forth above, ERISA does not allow for recovery
based on contributions that were paid prior to the initiation of the suit but “a plaintiff
may recover interest on late contributions under a breach-of-contract theory pursuant to
the LMRA.” Akro Gen. Contracting, Inc., 2016 WL 6775467, at *6. As established in the
parties’ papers, the record, and Plaintiffs’ damages calculations spreadsheets,
Defendant S&N submitted a number of checks to address the alleged delinquencies
prior to the filing of this lawsuit on June 6, 2022. See, e.g., Defs. Counter-56.1, ECF 94,
¶ 25; Exs. L–N to Argila Aff., ECF 88-12, 88-13, 88-14; Ex. II to Morgan Decl., ECF 90.
While Plaintiffs’ damages spreadsheets appear to deduct payments made prior to suit
to a certain extent, the Court is unable to discern whether such payments are adequately
excluded from Plaintiffs’ requested damages calculations.16 Moreover, Plaintiffs’
damages calculations do not account for the impact of Defendants’ final payment to
address the $4,446.33 outstanding delinquency for the ’19–’23 Audit Period, which
payment appears to have been made after Plaintiffs’ summary judgment motion was
served. See Hr’g Tr., ECF 97, at 3:3–4:2 (Plaintiffs’ counsel confirming at the oral
argument that “there are no contributions due and owing” because after Plaintiffs
16 For example, in Exhibit II to the Morgan Declaration regarding Plaintiffs’ calculations
as to the July 10, 2025 revised audit for the ’16–’19 Audit Period, it appears that Plaintiffs
attempted to indicate periods with pre-suit payments in red. See generally Ex. II to Morgan Decl.,
ECF 90-3. However, the Court notes that, for the PCC Funds ERISA Contributions, the “Nov-
16” period with a “Date of Pay” of “02/03/25” is noted in red, even though the date of payment
falls after the filing of this suit on June 6, 2022. Id. at ECF p. 2. Likewise, it appears that the
International Contributions may fall within the category of ERISA damages as well; however,
similarly the “Nov-16” period is notated in red although the date of payment indicates a
payment provided post-suit. Id. at ECF p. 3. Moreover, for the International Contributions, the
“Jan-16” and “Feb-16” periods both include a date of pay prior to the filing of the suit
(“03/17/21,” for both periods), but it is not clear, due to the lack of red font, whether these
periods have been omitted from the ultimate calculation. Id.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 43 of 45 PageID #:
<pageID>

44
“served their affirmative motion . . . within a day or two S&N did submit a check in
payment” for the outstanding delinquency).
The Court further notes that Plaintiffs’ motion does not make clear which
damages are being sought pursuant to ERISA and which are being sought as a result of
the breaches to the CBAs, and which damages are therefore potentially attributable to
each Defendant. See generally Pls. Mem., ECF 91; see Hr’g Tr., ECF 97, at 35:10–11, 35:14–
25 (explaining that Plaintiffs separate damages into “three buckets . . . ERISA
contributions, non-ERISA contributions, and dues and assessments”), 36:7–11 (noting
that “the dues and assessments which are [due] to the union . . . would be under the
LMRA”), 36:13–17 (adding that “the whole claim can be decided under ERISA even for
the dues and assessments because they were due and owing in accordance with the
CBA and the plan documents”). Cf. generally Morgan Decl., ECF 90 (providing
explanations regarding Plaintiffs’ damages calculations); Akro Gen. Contracting, 2016 WL
6775467, at *6 (noting that while ERISA does not allow for recovery based on
contributions that were paid prior to the initiation of the suit, “a plaintiff may recover
interest on late contributions under a breach-of-contract theory pursuant to the
LMRA”). As set forth above, Plaintiffs only contend that Defendant Raja is an ERISA
fiduciary and do not establish whether Defendant Raja is liable for any damages sought
under a breach of contract theory pursuant to the LMRA rather than ERISA. See
generally Pls. Mem., ECF 91; see also supra note 10.
The Court is not persuaded that Plaintiffs have met their burden to establish the
requested damages. See Adickes, 398 U.S. at 158. Accordingly, for all of these reasons, the
Court finds that Plaintiffs have failed to establish their entitlement to damages at this
time and denies Plaintiffs’ motion for summary judgment as to damages, attorney’s
fees, and costs.
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 44 of 45 PageID #:
<pageID>

45
CONCLUSION
Plaintiffs’ motion for summary judgment is granted in part and denied in part,
and Defendants’ motion for summary judgment is denied. Due to outstanding disputes
of material fact as to whether Defendant Raja is a fiduciary under ERISA, both parties’
motions for summary judgment on that issue are denied. Accordingly, Plaintiffs have
established their entitlement to summary judgment on liability under ERISA and based
on breaches of the CBAs against Defendant S&N Builders only. The questions of
damages and Defendant Raja’s individual liability are reserved for trial.
SO ORDERED.
Dated: Brooklyn, New York
October 8, 2026
_____________________________________
TARYN A. MERKL
UNITED STATES MAGISTRATE JUDGE
Case 1:22-cv-03324-TAM Document 100 Filed 10/08/26 Page 45 of 45 PageID #:
<pageID>