Trustees of the Local 7 Tile Industry Welfare Fund, Trustees of the Local 7 Tile Industry Annuity Fund, Trustees of the Tile Layers Local Union 52 Pension Fund et al v. Top Stone & Tile, Inc.

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Case 1:24-cv-07567-MKB-VMS
Document 26 Filed 01/30/26 Page 1 of 10 PageID #:

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
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TRUSTEES OF THE LOCAL 7 TILE INDUSTRY WELFARE FUND, TRUSTEES OF THE LOCAL 7 TILE INDUSTRY ANNUITY FUND, TRUSTEES OF THE TILE LAYERS LOCAL UNION 52 PENSION FUND, and TRUSTEES OF THE BRICKLAYERS & TROWEL TRADES INTERNATIONAL PENSION FUND,
SUPPLEMENTAL REPORT AND RECOMMENDATION
24 Civ. 7567 (MKB) (VMS)
Plaintiffs,
-against-
TOP STONE & TILE INC.,
Defendant. x
Vera M. Scanlon, United States Magistrate Judge:
The Court is in receipt of Plaintiffs' supplements, see generally ECF Nos. 24-24-2 & 25- 25-2, to its motion for entry of default judgment, see generally ECF Nos. 13-18, filed subsequent to this Court's issuance of its initial report and recommendation on such motion, see generally ECF No. 21.
Plaintiffs were directed to file a proposed form of judgment consistent with the report and recommendation, see generally id., and the Court's subsequent Order, see 8/25/2025 Order. More specifically, the Court directed Plaintiff to submit a proposed form of judgment with (1) an allocation of delinquent contributions among each of the Funds, which excludes "IU Pension Surcharge" and "IMI," with such amount accounting for the $15,000 payment made by Defendant on February 6, 2025, and the $20,000.00 payment made by Defendant on a date that
1 All capitalized terms used in this supplemental report and recommendation are defined in the initial report and recommendation. See generally ECF No. 21.
AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO
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was to be provided by Plaintiffs; (2) calculation of an award of interest through February 6,
2025, as allocated to each of the various Funds in the report and recommendation; (3) calculation
of an award of interest, calculated as to each of the Funds from February 7, 2025, up to the date
of Defendant’s second payment; (4) a notation for an award of interest, to be calculated by the
Clerk of Court, from the date of Defendant’s second payment, through the date of judgment, if
judgment is entered, to the Funds, in the amount of ten percent annual interest on the delinquent
contributions to the Funds, with the exception of the International Pension Fund, the
Craftworkers Political Action Committee, and the International Dues Check-Off, calculated
based on the claimed delinquent contributions in Plaintiffs’ proposed form of judgment to be
filed, and fifteen percent annual interest on the delinquent contributions to the International
Pension Fund, the Craftworkers Political Action Committee, and the International Dues Check-
Off, calculated based on the claimed delinquent contributions in Plaintiffs’ proposed form of
judgment to be filed; (5) an award of liquidated damages to the ERISA Funds, as allocated to
each of the various Funds in the report and recommendation; (6) an award of attorneys’ fees to
the ERISA Funds; and (7) an award of costs for the audit to the Funds and additional costs to the
ERISA Funds. See ECF No. 21 at 21-23; 8/25/2025 Order.
The Court agrees with the calculations proposed by Plaintiffs based on the presumption
to be awarded to the audits, see Trustees of the New York City District Council of Carpenters
Pension Fund, Welfare Fund, Annuity Fund, Apprenticeship, Journeyman Retraining,
Educational & Industry Fund v. Inniss Constr., Inc., No. 20 Civ. 6894 (LJL) (KHP), 2021 WL
2556130, at *3-4 (S.D.N.Y. May 13, 2021) (citations omitted), report & recommendation
adopted, No. 20 Civ. 6894 (LJL), 2021 WL 2555840 (S.D.N.Y. June 22, 2021), and on review of
the related calculations, as described below. The Court relies upon the allocations provided by
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Plaintiffs’ auditor as to each of the Funds, see ECF No. 24-2 at 7, as opposed to those set forth in
the proposed form of judgment, which inexplicably vary slightly from the allocations provided
by Plaintiffs’ auditor. The Court notes that it has relied upon the supplemental audits provided
by Plaintiffs’ auditor as to the total amount of the allocations, see generally ECF No. 24-2 at 4-7;
ECF No. 25-2 at 5-22, when in conflict with the accompanying declarations provided by
Plaintiffs’ auditor, see generally ECF No. 24-2 at 1-3; ECF No. 25-2 at 1-4, which appear to
contain some clerical errors.
As to point one above, the Court respectfully recommends an award of $7,413.81 for
delinquent contributions to the Funds as follows: for the International Funds, $489.36 for the
International Pension Fund, $5.34 for Craftworkers Political Action Committee, and $171.67 for
International Dues Check-Off, and, for the Local Funds, $2,320.55 for the Welfare Fund, $93.88
for the Retiree Fund, $729.60 for the Local Pension Fund, $829.19 for the Vacation Fund,
$355.90 for the Supplemental Fund, $1,823.99 for the Annuity Fund, $17.80 for the Promotional
Fund, $1.78 for the Training Fund, $3.56 for the Building Fund, $17.80 for the Defense Fund,
$1.78 for the Tile Industry Political Action Committee, $344.38 for the Local Dues Check-Off
One, and $207.33 for the Local Dues Check-Off Two. See ECF No. 24-2 at 7.2
As to point two above, the Court respectfully recommends an award of $24,902.77 for
interest through February 12, 2025, given that the check for the first payment from Defendant
cleared on February 13, 2025, consisting of, for the International Funds, $2,666.98 for the
2 Given that $2,362.47 of the $35,000.00 from the first and second payments from Defendant
was allocated to “IU Pension Surcharge” and “IMI,” see ECF No. 24-2 at 7, as to which the
Court did not recommend granting relief, the total amount of delinquent contributions
recommended to be awarded is higher than initially contemplated by the Court in its initial report
and recommendation and subsequent Order by that amount, see ECF No. 21 at 22; 8/25/2025
Order.
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International Pension Fund, $29.11 for Craftworkers Political Action Committee, and $885.66
for International Dues Check-Off and, for the Local Funds, $7,587.67 for the Welfare Fund,
$386.51 for the Retiree Fund, $2,389.47 for the Local Pension Fund, $2,483.01 for the Vacation
Fund, $1,109.06 for the Supplemental Fund, $5,510.04 for the Annuity Fund, $58.64 for the
Promotional Fund, $5.88 for the Training Fund, $11.72 for the Building Fund, $58.64 for the
Defense Fund, $5.88 for the Tile Industry Political Action Committee, $1,072.04 for the Local
Dues Check-Off One, and $642.66 for the Local Dues Check-Off Two. See ECF No. 25-2 at
21.3, 4
As to point three above, the Court respectfully recommends an award of $927.95 for
interest from February 13, 2025, through June 16, 2025, given that the check for the second
payment from Defendant cleared on June 17, 2025, consisting of, for the International Funds,
$85.43 for the International Pension Fund, $0.93 for Craftworkers Political Action Committee,
and $29.76 for International Dues Check-Off and, for the Local Funds, $295.81 for the Welfare
Fund, $15.98 for the Retiree Fund, $84.22 for the Local Pension Fund, $94.57 for the Vacation
Fund, $41.42 for the Supplemental Fund, $211.24 for the Annuity Fund, $2.07 for the
Promotional Fund, $0.23 for the Training Fund, $0.42 for the Building Fund, $2.07 for the
Defense Fund, $0.20 for the Tile Industry Political Action Committee, $39.78 for the Local Dues
3 Plaintiffs seek to change the critical date for the interest calculation following Defendant’s first
payment from February 6, 2025, as set forth in the original briefing, see ECF No. 17 at 16, to
February 12, 2025, given that the check for the first payment purportedly cleared on February 13,
2025, see ECF No. 25 at 1. The Court finds the change in date to be warranted, albeit one that
should have been raised in the original briefing. As such, the relevant interest calculation
recommended to be awarded herein is slightly higher than that recommended to be awarded in
the initial report and recommendation. See ECF No. 21 at 22.
4 See supra, n.5.
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Check-Off One, and $23.82 for the Local Dues Check-Off Two. See ECF No. 25-2 at 21.5
As to point four above, the Court respectfully recommends an award of interest on the
delinquent contributions to each of the Funds referenced in point one above, to be calculated by
the Clerk of Court, from June 17, 2025, which is the date on which the second payment from
Defendant cleared, through the date of judgment, if judgment is entered, in the amount of ten
percent annual interest on the delinquent contributions to the Funds, with the exception of the
International Pension Fund, the Craftworkers Political Action Committee and the International
Dues Check-Off, which should be awarded fifteen percent annual interest on the delinquent
contributions for this period.
As to point five above, consistent with the initial report and recommendation, see ECF
No. 22 at 17-18, 23, the Court respectfully recommends an award of $7,188.05 for liquidated
damages to the ERISA Funds, consisting of, for the International Funds, $549.98 for the
International Pension Fund and, for the Local Funds, $2,602.04 for the Welfare Fund, $118.24
for the Retiree Fund, $815.65 for the Local Pension Fund, $849.13 for the Vacation Fund,
$377.58 for the Supplemental Fund, and $1,875.43 for the Annuity Fund.
As to point six above, consistent with the initial report and recommendation, see id. at 18-
20, 23, the Court respectfully recommends an award of $4,839.11 for attorneys’ fees to the
ERISA Funds.6
As to point seven above, consistent with the initial report and recommendation, see ECF
No. 21 at 20-21, 23, the Court respectfully recommends an award of $3,692.67 in costs,
5 See supra, n.5.
6 The Court notes that the proposed form of judgment does not state that the award is to the
ERISA Funds. See ECF No. 25-1 at 4; see ECF No. 21 at 23.
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consisting of $3,200.00 for the audit to the Funds and $492.67 in additional costs to the ERISA
Funds.7
The Court attaches as Exhibit A to this report and recommendation a correct proposed
judgment, which is complete except as to the interest calculations to be made by the Clerk of
Court.
Any written objections to this report and recommendation must be filed with the Clerk of
the Court within fourteen days of service. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Any
requests for an extension of time for filing objections must be directed to the District Judge
assigned to this action prior to the expiration of the fourteen-day period for filing objections.
Failure to file objections within fourteen days will preclude further review of this report and
recommendation by both the District Court and the Court of Appeals. See Miller v. Brightstar
Asia, Ltd., 43 F.4th 112, 120 (2d Cir. 2022) (reasoning that, “although Rule 72 applies only to
the district court’s review of a report and recommendation, this court has adopted the rule that
when a party fails to object timely to a magistrate [judge]’s recommended decision, it waives any
right to further review of that decision” (citation & quotations omitted)).
The Court will mail this report and recommendation to Defendant Top Stone & Tile Inc.
at 1400 Ocean Avenue, Apartment 3B, Brooklyn, NY 11230.
Dated: Brooklyn, New York
January 30, 2026
Vera M. Scanlon
VERA M. SCANLON
United States Magistrate Judge
7 The Court notes that the proposed form of judgment incorrectly lists the award of costs as
$2,692.67, instead of $3,692.67, and does not state that the award consists of $3,200.00 for the
audit to the Funds and $492.67 in additional costs to the ERISA Funds. See ECF No. 25-1 at 4;
see ECF No. 21 at 23.
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Case 1:24-cv-07567-MKB-VMS
Document 26
Filed 01/30/26
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EXHIBIT A
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TRUSTEES OF THE LOCAL 7 TILE
INDUSTRY WELFARE FUND, TRUSTEES OF
THE LOCAL 7 TILE INDUSTRY ANNUITY
FUND, TRUSTEES OF THE TILE LAYERS
LOCAL UNION 52 PENSION FUND, and
TRUSTEES OF THE BRICKLAYERS &
TROWEL TRADES INTERNATIONAL
PENSION FUND,
Plaintiffs,
-against-
TOP STONE & TILE INC.,
Defendant.
PROPOSED JUDGMENT
24 Civ. 7567 (MKB) (VMS)
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This action having been commenced on October 29, 2024, by the filing of the summons
and complaint, and a copy of the summons and complaint having been served on Defendant Top
Stone & Tile Inc. (“Defendant”) via the New York State Secretary of State on November 1,
2024, and proof of service having been filed on November 4, 2024, and Defendant not having
answered the complaint, and the time for answering the complaint having expired, it is
ORDERED, ADJUDGED AND DECREED that:
(1) $7,413.81 for delinquent contributions are awarded as follows, with the awardees
collectively the “Funds”:
$489.36 for the Bricklayers & Trowel Trades International Pension Fund,
$5.34 for the Bricklayers and Allied Craftworkers Political Action Committee,
$171.67 for International Dues Check-Off,
$2,320.55 for the Local 7 Tile Industry Welfare Fund,
$93.88 for the Local 7 Tile Industry Retiree Fund,
$729.60 for the Tile Layers Local Union 52 Pension Fund,
$829.19 for the Local 7 Tile Industry Vacation Fund,
$355.90 for the Local 7 Tile Industry Supplemental Fund,
$1,823.99 for the Local 7 Tile Industry Annuity Fund,
$17.80 for the Local 7 Tile Industry Promotional Fund,
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$1.78 for the Local 7 Tile Industry Training Fund,
$3.56 for the Local 7 Tile Building Fund,
$17.80 for the Local 7 Tile Industry Defense Fund,
$1.78 for the Local 7 Tile Industry Political Action Committee,
$344.38 for the First Local Dues Check-Off and
$207.33 for the Second Local Dues Check-Off;
(2) $24,902.77 for interest through February 12, 2025, after which the check for the first
payment from Defendant cleared, awarded as follows:
$2,666.98 for the Bricklayers & Trowel Trades International Pension Fund,
$29.11 for the Bricklayers and Allied Craftworkers Political Action Committee,
$885.66 for International Dues Check-Off,
$7,587.67 for the Local 7 Tile Industry Welfare Fund,
$386.51 for the Local 7 Tile Industry Retiree Fund,
$2,389.47 for the Tile Layers Local Union 52 Pension Fund,
$2,483.01 for the Local 7 Tile Industry Vacation Fund,
$1,109.06 for the Local 7 Tile Industry Supplemental Fund,
$5,510.04 for the Local 7 Tile Industry Annuity Fund,
$58.64 for the Local 7 Tile Industry Promotional Fund,
$5.88 for the Local 7 Tile Industry Training Fund,
$11.72 for the Local 7 Tile Building Fund,
$58.64 for the Local 7 Tile Industry Defense Fund,
$5.88 for the Local 7 Tile Industry Political Action Committee,
$1,072.04 for the First Local Dues Check-Off and
$642.66 for the Second Local Dues Check-Off;
(3) $927.95 for interest from February 13, 2025, through June 16, 2025, after which the
check for the second payment from Defendant cleared on June 17, 2025, awarded as follows:
$85.43 for the Bricklayers & Trowel Trades International Pension Fund,
$0.93 for the Bricklayers and Allied Craftworkers Political Action Committee,
$29.76 for International Dues Check-Off,
$295.81 for the Local 7 Tile Industry Welfare Fund,
$15.98 for the Local 7 Tile Industry Retiree Fund,
$84.22 for the Tile Layers Local Union 52 Pension Fund,
$94.57 for the Local 7 Tile Industry Vacation Fund,
$41.42 for the Local 7 Tile Industry Supplemental Fund,
$211.24 for the Local 7 Tile Industry Annuity Fund,
$2.07 for the Local 7 Tile Industry Promotional Fund,
$0.23 for the Local 7 Tile Industry Training Fund,
$0.42 for the Local 7 Tile Building Fund,
$2.07 for the Local 7 Tile Industry Defense Fund,
$0.20 for the Local 7 Tile Industry Political Action Committee,
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$39.78 for the First Local Dues Check-Off and
$23.82 for the Second Local Dues Check-Off;
(4) _________________________ for interest on the $7,413.81 in delinquent
contributions referenced in (1) above, to be calculated by the Clerk of Court, from June 17, 2025,
through the date of judgment, in the amount of ten percent annual interest on the delinquent
contributions to the each of the Funds, with the exception of the Bricklayers & Trowel Trades
International Pension Fund, the Bricklayers and Allied Craftworkers Political Action Committee
and the International Dues Check-Off, which is to be awarded fifteen percent annual interest on
the delinquent contributions for this period;
(5) $7,188.05 for liquidated damages, awarded as follows, with the awardees collectively
the “ERISA Funds”:
$549.98 for the Bricklayers & Trowel Trades International Pension Fund,
$2,602.04 for the Local 7 Tile Industry Welfare Fund,
$118.24 for the Local 7 Tile Industry Retiree Fund,
$815.65 for the Tile Layers Local Union 52 Pension Fund,
$849.13 for the Local 7 Tile Industry Vacation Fund,
$377.58 for the Local 7 Tile Industry Supplemental Fund and
$1,875.43 for the Local 7 Tile Industry Annuity Fund;
(6) $4,839.11 for attorneys’ fees to the ERISA Funds; and
(7) $3,692.67 in costs, consisting of $3,200.00 for the audit to the Funds and $492.67 in
additional costs to the ERISA Funds.
____________________________________
Hon. Margo K. Brodie, Chief U.S.D.J.
Dated: _______________
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