Kilkenney et al v. Graci Paving Associates, Inc.

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JAMES KILKENNY and CHARLES PRIOLO,
as TRUSTEES of the CONSTRUCTION
COUNCIL LOCAL 175 PENSION FUND,
JAMES KILKENNY and CHARLES PRIOLO,
as TRUSTEES of the CONSTRUCTION
COUNCIL LOCAL 175 WELFARE FUND,
JAMES KILKENNY and CHARLES PRIOLO,
as TRUSTEES OF THE CONSTRUCTION
COUNCIL LOCAL 175 ANNUITY FUND, and
JAMES KILKENNY and CHARLES PRIOLO,
as TRUSTEES of the CONSTRUCTION
COUNCIL LOAL 175 TRAINING FUND,
Plaintiffs,
-against-
GRACI PAVING ASSOCIATES, INC.,
Defendant.
REPORT AND
RECOMMENDATION
25-CV-2486(NJC)(SIL)
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STEVEN I. LOCKE, United States Magistrate Judge:
Presently before the Court in this action for alleged failure to make required
contributions pursuant to the Employee Retirement Income Security Act (“ERISA”),
29 U.S.C. § 1001 et seq., on referral from the Honorable Nusrat J. Choudhury for
Report and Recommendation, is a motion seeking a default judgment against
Defendant Graci Paving Associates, Inc. (“Graci” or “Defendant”) submitted by
Plaintiffs Trustees James Kilkenny and Charles Priolo (together “Plaintiffs” or
“Trustees”), as Trustees of the Construction Council Local 175 Pension Fund (the
“Pension Fund”), the Construction Council Local 175 Welfare Fund (the “Welfare
Fund”), the Construction Council Local 175 Annuity Fund (the “Annuity Fund”), and
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the Construction Council Local 175 Training Fund (the “Training Fund” and,
collectively, the “Funds”). 	See Docket Entry (“DE”) [9]. 	Plaintiffs seek to recover
unpaid 	contributions, 	interest 	on 	unpaid 	contributions, 	liquidated 	damages,
injunctive relief, and leave to apply for additional interest and attorneys’ fees and
costs. DE [9-1].
For the reasons set forth herein, the Court respectfully recommends that
Plaintiffs’ motion for default judgment be granted and that judgment in the amount
of $254,677.08 be entered against Graci, which includes: (1) $193,252.51 for unpaid
contributions to the Funds; (2) $40,596.40 in interest accrued on unpaid payments;
(3) $19,325.25 in liquidated damages; and (4) $1,502.92 for interest accrued on
untimely payments from June 2023 to July 2023. 	The Court further recommends
that Plaintiffs be granted leave to file an updated application for additional accrued
interest and an application for attorneys’ fees and costs.
I. 	BACKGROUND
A. 	Facts1
The Funds are employee benefit and multi-employer plans within the meaning
of ERISA §§ 1002(3), (37), established and maintained pursuant to the terms of
various collective bargaining agreements, with a principal place of business at 99
Mineola Avenue, Roslyn Heights, New York 11577. 	Compl. ¶¶ 6-7. 	The Trustees
1 All relevant factual allegations are taken from the Complaint and are accepted as true for purposes
of resolving this motion. See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d
Cir. 2004).
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seek to enforce the Funds’ Agreements with Defendant requiring that Defendant
contribute to the various employee fringe benefit funds. 	Id. at ¶¶ 1-2. 	The Funds
operate pursuant to the terms of Trust Agreements between the United Plant and
Production Workers, Local Union 175 (the “Union”)2 and Graci. Id. at ¶ 2. 	The Union
is a labor organization representing employees in an industry affecting commerce and
various employers to provide pension, health and welfare, annuity, and job training
benefits to covered employees, retirees, and their dependents. 	Id. at ¶¶ 6, 9; see
Declaration 	of 	Elise 	S. 	Feldman 	in 	Support 	of 	Motion 	for 	Default 	Judgment
(“Feldman Decl.”), [DE 10], ¶ 10.
Defendant is an employer within the meaning of ERISA, 29 U.S.C. §1002(5),
with a principal place of business at 267 North Cedar Street, Massapequa, New York.
Compl. ¶ 8. On or about June 23, 2021, Graci entered into a “paving and assumption
agreement” binding it to a collective bargaining agreement (the “CBA”) with the
Union. Id. at ¶ 9; Feldman Decl. Ex. I. The terms of the CBA require that Graci pay
fringe benefit contributions to each of the Funds based upon the number of hours
each covered employee worked. 	Id. 	Non-party New York Independent Contractors
Alliance, Inc. (“NYICA”) acts “as a collective bargaining agent for the employers to
negotiations with labor unions,” including Graci. 	Id. at ¶ 10; Feldman Decl. ¶ 12.
Plaintiffs allege that, “[a]s the designated collective bargaining agent, NYICA binds
its member employers to collective bargaining agreements that it negotiates with
2 The Union is now named “Construction Council 175, Utility Workers of America, AFL-CIO.” Compl.
¶ 2. There is no substantive difference and the two entities are referred to interchangeably herein as
the “Union.”
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labor unions.” Compl. ¶ 11. At all relevant times, Graci was a member of the NYICA
and was therefore bound by the relevant agreements to which the NYICA agreed
upon on Graci’s behalf, including those at issue in this action. Id. at ¶ 12.3 Relevant
here, the CBA requires that Graci make payments to the Funds for each hour worked
by its covered employees at the rates specified by the CBA and Trust Agreements.
See DE [10-7]; Compl. ¶¶ 13-24. While the primary CBA is referred to as the “Paving
Division,” it includes an addendum providing for separate contribution obligations
referred to as the “Nassau/Suffolk Division CBA.” 	See Feldman Decl. Ex. H.
Plaintiffs’ motion addresses both.
A Policy for Collection of Delinquent Contributions (the “Delinquency Policy”),
DE [10-10], dictates the manner for recovery of delinquent contributions in the event
Graci fails to make required payments. Id. at ¶¶ 13-15; CBA at 19. The Delinquency
Policy allows for recovery of unpaid contributions, interest, liquidated damages,
attorneys’ fees, and costs. Id. From June 2021 until June 2022, Defendants failed to
make payments to the Funds as required by the CBA and Trust Agreements.
Feldman Decl. ¶¶ 26-28. An auditor concluded that Graci failed to make $164,065.45
in contractually required contributions to the Paving Division Fund and $29,187.08
in contractually required contributions to the Nassau/Suffolk Division CBA. 	Id. at
Ex. L.
3 Although the applicable CBAs pre-date Graci’s agreement to become a member of the NYICA, Graci
agreed to them and they apply to Plaintiffs’ claims. Feldman Decl. Exs. E, F, I.
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B. 	Procedural Background
By way of a Complaint dated May 5, 2025, Plaintiffs commenced this action
against Graci seeking to recover unpaid amounts owed. 	DE [1]. 	On May 17, 2025,
Plaintiffs served Defendant with the Summons and Complaint. 	DE [6]. 	After
Defendant failed to answer or otherwise respond, Plaintiffs requested that the Clerk
of the Court enter a Certificate of Default. DE [7]. The Clerk of the Court entered a
Certificate of Default on July 11, 2025. DE [8].
In the instant motion, Plaintiffs seek a default judgment including: 	(i)
$164,065.43 for unpaid contributions to the Paving Division CBA; (2) $35,327.64 for
interest on delinquent payments to the Paving Division CBA; (3) $16,406.54 for
liquidated damages related to the Paving Division CBA; (4) $29,187.08 for unpaid
contributions to the Nassau/Suffolk Division CBA; (5) $5,268.76 for interest on
delinquent 	payments 	to 	the 	Nassau/Suffolk 	CBA; 	(6) 	$2,918.71 	for 	liquidated
damages related to the Nassau/Suffolk Division CBA; and (7) $1,502.92 for interest
related to untimely payments owed from June 2023 through July 2023. See Proposed
Judgment, DE [9-1]. Plaintiffs further seek a judgment that Defendant be required
to pay the Funds in the amount that may become due and owing during the pendency
of this action, an injunction permanently enjoining Defendant from violating ERISA
with respect to this action, and an order granting leave to seek additional interest,
attorneys’ fees, and costs. Id. 	On August 11, 2025, Plaintiffs filed the instant motion
for default judgment, DE [9], which Judge Choudhury referred to this Court for a
Report and Recommendation.
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II. 	LEGAL STANDARD
ERISA 	provides 	that 	employers 	obligated 	to 	make 	contributions 	to
multiemployer benefit plans pursuant to a collective bargaining agreement must do
so in accordance with the applicable agreement’s terms. 	See 29 U.S.C. § 1145;
Gesualdi v. Gen. Concrete, Inc., No. 11-CV-1866(CBA)(JO), 2013 WL 1192967, at *3
(E.D.N.Y. Feb. 1, 2013) (Report and Recommendation), adopted by 2013 WL 1192954
(E.D.N.Y. Mar. 22, 2013) (“Under ERISA, employers need not provide any particular
benefits; however, once an employer elects to provide benefits, the statute governs
the terms of administration of the benefits.”); Trs. of Loc. 807 Labor-Mgmt. Health &
Pension Funds v. River Trucking & Rigging, Inc., No. 03-CV-3659(JMA), 2005 WL
2290579, at *6 (E.D.N.Y. Sept. 20, 2005) (“Section 1145 makes clear that a plan
member’s 	contractual 	duty 	to 	make 	contributions 	to 	multiple 	employer 	plans
‘becomes a statutory requirement,’ and the duty may be enforced in accordance with
§ 1132(g).”) (quoting Gilles v. Burton Constr. Co., 736 F.2d 1142, 1143 n.2 (7th Cir.
1984)).
When an employer does not comply with its contribution obligations, ERISA
provides for statutory damages as follows:
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
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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.
For purposes of this paragraph, interest on unpaid contributions shall
be determined by the rate provided under the plan, or, if none, the rate
prescribed under section 6621 of Title 26.
29 U.S.C. § 1132(g)(2).
A 	court 	must 	ascertain 	damages 	with 	“reasonable 	certainty,” 	assessing
whether the claimant has produced sufficient evidence of the damages sought. Credit
Lyonnais Sec., Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999); see Gesualdi v.
Tapia Trucking LLC, No. 11-CV-4174(DLI)(JMA), 2012 WL 7658194, at *4 (E.D.N.Y.
Oct. 15, 2012) (Report and Recommendation), adopted by 2013 WL 831134 (E.D.N.Y.
Mar. 6, 2013).
III. 	DISCUSSION
A. 	Liability
Plaintiffs allege that Defendant violated ERISA by failing to make required
contributions to the Funds from June 2021 until June 2022. 	Feldman Decl. ¶ 26.
Plaintiffs also claim that Graci is liable under ERISA, 29 U.S.C. § 1132(a)(3), for
failure to submit remittance reports and relevant books and records for audit, as
required by the CBA and the Trust Agreement. Id. “ERISA § 502(a)(3) allows plan
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participants, beneficiaries or fiduciaries to bring a civil action to enjoin any act or
practice which violates any provision of this subchapter or terms of the plan, or . . .
obtain other appropriate equitable relief.” 	Levi v. McGladrey LLP, No. 12-CV-
8787(ER), 2016 WL 1322442, at *5 (S.D.N.Y. Mar. 31, 2016) (citing 29 U.S.C. §
1132(a)(3)). 	A covered employer violates ERISA when it fails to make payments
required by a collective bargaining agreement. See Bricklayers & Allied Craftworkers
Loc. 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Constr., LLC, 779 F.3d 182,
189-90 (2d Cir. 2015) (“Under ERISA, the corporate defendant is liable for unpaid
contributions . . . .”) (internal quotation omitted); Durso v. Andover Subacute &
Rehab., No. 23-CV-6773(NJC)(AYS), 2025 WL 2355761, at *3 (E.D.N.Y. Aug. 14,
2025) (holding that default judgment was warranted where the employer did not
adhere to its contribution requirements under ERISA); Finkel v. Omega Commc’n
Servs., 	Inc., 	543 	F. 	Supp. 	2d 	156, 	160 	(E.D.N.Y. 	2008) 	(holding 	the 	plaintiff
established liability under ERISA where the plaintiff alleged “that defendant entered
into an agreement with the Union under which defendant was obligated to make
contributions 	to 	the 	ERISA 	Plans 	and 	that 	defendant 	failed 	to 	make 	such
contributions”).
Plaintiffs’ allegations, accepted as true, establish Defendant’s liability for
failure make required contributions to the Funds. 	The uncontroverted allegations
establish that Defendant is bound by the CBA and Trust Agreements. See Compl. ¶¶
13-14. These agreements require that Graci make certain contributions to the Funds
and to adhere “to all terms and conditions of the Trust Agreements, at all times
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relevant hereto, including all rules, regulations, procedures promulgated by the
Trustees of the Funds pursuant thereto, such as the Funds’ Policy for Collection of
Delinquent Contributions.” Id. at ¶¶ 13-14. To this end, “Section 515 of ERISA, [29
U.S.C. § 1145], requires 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 to make such contributions.” Gesualdi v. Reid, 198 F. Supp. 3d
211, 217-18 (E.D.N.Y. 2016) (citing Gesualdi v. Pecgro Trucking, Inc., No. 14-CV-
6347(JS)(GRB), 2015 WL 5608149, at *3 (E.D.N.Y. Aug. 13, 2015)). 	As Graci failed
to make its required contributions, it violated ERISA.4 Compl. ¶¶ 47-51.
Plaintiffs allege that an audit of Graci’s records from June 2021 through June
2022 revealed that Graci failed to make $164,065.43 of required contributions on
behalf of the Paving Division. Feldman Decl. ¶ 26; Ex. K. Likewise, Defendant failed
to make $29,187.08 in required contributions on behalf of the Nassau/Suffolk Division
CBA. Id. at Ex. L. The Funds requested payment of this deficiency, which Defendant
has failed and refused to properly remit. Feldman Decl. ¶¶ 26-27, Exs. K-L. These
allegations, accepted as true, establish Defendant’s liability. See Alston as Tr. of Loc.
272 Labor-Mgmt. Fund v. Select Garages, LLC, No. 24 Civ. 5439(DEH)(SLC), 2025
WL 472581, at *5 (S.D.N.Y. Jan. 21, 2025) (holding that allegations that the
4 To the extent Plaintiffs also assert breach of contract causes of action, see Compl. ¶¶ 17-46, the claims
are duplicative of Plaintiffs’ causes of action arising under ERISA and would impermissibly allow for
double recovery. Aracich v. Bd. of Trs. of Empl. Benefit Funds of Heat & Frost Insulators Loc. 12, No.
22-2544, 2023 WL 4692316, at *5 (2d Cir. July 24, 2023) (affirming dismissal of claim that “duplicate[d]
[the plaintiff’s] other claims under ERISA”); 4KZ Inc. v. DimashAli Creative Ctr., LLP, No. 24-CV-
1249(ST), 2025 WL 2696539, at *9 (E.D.N.Y. Sept. 22, 2025) (“Plaintiffs are not entitled to double
recovery as both claims seek to redress the same harm.”). 	As the Court concludes that relief is
appropriate under ERISA, it does not address Plaintiffs’ claims for breach of contract and respectfully
recommends that those claims be dismissed.
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defendant was an employer that failed to make required contributions to funds were
sufficient to establish liability on a motion for a default judgment); Annuity, Welfare
& Apprenticeship Skill Improvement & Safety Funds of the Int’l Union of Operating
Eng’rs Loc. 15A, 15C & 15D, AFL-CIO v. Ne. Indus. Maint. Inc., No. 19 Civ.
4484(ENV)(SJB), 2020 WL 6437400, at *7 (E.D.N.Y. Sept. 28, 2020) (holding that, in
context 	of 	default 	judgment 	proceedings, 	similar 	allegations 	established 	the
defendant’s liability under ERISA); Finkel, 543 F. Supp. at 160 (holding that liability
under ERISA was established where the plaintiff “allege[d] that [the] defendant
entered into an agreement with the Union under which [the] defendant was obligated
to make contributions to the ERISA Plans” and failed to do so). 	Accordingly, the
Court respectfully recommends that Defendant be held liable for failure to contribute
to the Funds and that a default judgment be entered.
B. 	Damages
Once 	liability 	is 	established, 	the 	court 	must 	ascertain 	damages
with ”reasonable certainty.” Hosking v. New World Mortg., Inc., 570 F. App’x 28, 31
(2d Cir. 	2014). 	To 	prove 	damages, 	a 	plaintiff 	need 	only 	show 	that 	the
“compensation sought relate[s] to the damages that naturally flow from the injuries
pleaded.” Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 159
(2d 	Cir. 	1992). 	An 	evidentiary 	hearing 	is 	not 	required 	if 	there 	is 	a 	basis,
demonstrated through detailed affidavits and other documentary evidence, for the
damages awarded. 	See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping
Corp., Div. of Ace Young Inc., 109 F.3d 105, 111 (2d Cir. 1997).
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1. 	Unpaid Contributions
Plaintiffs 	have 	submitted 	evidence 	that 	their 	auditor 	determined 	that
Defendant failed to make $193,252.51 in payments required by the CBA and Trust
Agreements. See Feldman Decl. Ex. L. This is sufficient to establish damages. See
Bakery & Confectionary Union & Indus. Int’l Pension Fund v. Ges Bake Shop, Inc.,
No. 	13-CV-728(FB)(CLP), 	2014 	WL 	1159821, 	at 	*7 	(E.D.N.Y. 	Mar. 	21, 	2014)
(awarding damages based upon auditor’s letter enumerating damages). Accordingly,
the Court respectfully recommends that judgment in the amount of $193,252.51 be
entered against Defendant for unpaid contributions.
2. 	Interest
ERISA mandates that interest on unpaid contributions be awarded “by using
the rate provided under the plan, or, if none, the rate prescribed under section 6621
of title 26.” 	Select Garages, LLC, 2025 WL 472581, at *6 (citing 29 U.S.C. §
1132(g)(2)(B)). The CBA provides that Graci is required to pay interest at an “annual
rate of ten percent” for unpaid contributions. CBA Art. XI, § 5(a). Accordingly, having
recommended that judgment be entered against Graci in the amount of $193,252.51
for unpaid contributions, and based upon the auditor’s conclusion, see Feldman Decl.
Exs. K, L, the Court recommends that judgment be entered against Defendant for
unpaid interest in the amount of $40,596.40 as Plaintiffs request. 	See Proposed
Judgment ¶¶ 2, 5; Feldman Decl. Exs. K-L. 	The Court further recommends that
Plaintiffs be awarded $1,502.92 in interest for untimely payments from June 2023 to
July 2023. Feldman Decl. ¶ 28; Ex M. Finally, the Court recommends that Plaintiffs’
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application 	to 	“update 	the 	interest 	timeframe 	on 	Defendant’s 	delinquent
contributions,” see Feldman Decl. ¶ 37, be granted, and that Plaintiffs be granted
leave to submit an updated request for interest in conjunction with any application
for attorneys’ fees as described below.
3. 	Liquidated Damages
A prevailing plaintiff in an ERISA action is also entitled to an amount equal
to the greater of interest on the unpaid contributions or liquidated damages in an
amount 	not 	in 	excess 	of 	20% 	of 	the 	unpaid 	benefit 	contribution 	award.
29 U.S.C. § 1132(g)(2)(C); see DeVito v. Hempstead China Shop, Inc., 831 F. Supp.
1037, 1040 (E.D.N.Y. 1993) (“The language of Section 1132(g) is mandatory, and once
the provision applies, the district court must award liquidated damages.”); see also
Virga v. Big Apple Constr. & Restoration, Inc., 590 F. Supp. 2d 467, 473 (S.D.N.Y.
2008) (“ERISA further demands that statutory damages be awarded in the amount
equal to that of the interest due on the unpaid principal. 	This award is mandatory
even if not provided explicitly by the terms of the CBA.”) (internal citations omitted).
Here, the CBA provides for liquidated damages in the amount of 10% of unpaid
contributions. 	CBA Art. XI, § 5(a). 	Having recommended that judgment in the
amount of $193,252.51 be entered for unpaid contributions, the Court further
recommends 	that 	judgment 	be 	entered 	against 	Defendant 	for 	$19,325.25 	in
liquidated damages.
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4. 	Attorneys’ Fees and Costs and Audit Fees
Plaintiffs seek leave “to make an application to this Court for attorneys’ fees
and costs associated with this action.” DE [9] at 2. They neither specify the amount
of relief they seek nor provide substantiation for any such award. 	Both ERISA and
the CBA allow for an award of reasonable attorneys’ fees. 29 U.S.C. § 1121(g)(2)(D);
Delinquency Policy Art. IV(2); CBA Art. VI, § 2; see Richardson v. Laws Constr. Corp.,
557 F. App’x 57, 59 (2d Cir. Feb. 13, 2014) (“When trustees prevail in an ERISA action
for unpaid contributions, 29 U.S.C. § 1132(g)(2)(D) mandates an award of reasonable
attorney’s fees and costs of the action, to be paid by the defendant.”) (internal
quotation omitted). 	Accordingly, the Court respectfully recommends that Plaintiffs
be granted leave to file an application for attorneys’ fees and costs with adequate
substantiation.
Moreover, while ERISA does not explicitly allow for recovery of audit costs, it
authorizes “such other legal and equitable relief as a court deems appropriate,” see
29 U.S.C. § 1132(g)(2)(E), and courts routinely interpret Section 1132(g)(2)(E) of
ERISA to authorize an award of such costs. 	See Reid, 198 F. Supp. 3d at 221
(“[C]ourts have routinely interpreted § 1132(g)(2)(E) of ERISA to authorize the cost
of audits as part of the damages award.”) (quotation omitted); Ferrara v. CMR
Contracting, LLC, 848 F. Supp. 2d 304, 313 (E.D.N.Y. 2012) (“The costs of an audit
are routinely recoverable in ERISA actions.”). The Delinquency Policy allows for the
recovery of fees related to payroll audits. Delinquency Policy Art. VI(2). Accordingly,
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the Court also recommends that Plaintiffs be granted leave to submit substantiation
and an application for fees incurred related to their audit of Defendant’s records.
5. 	Injunctive Relief
Finally, Plaintiffs seek declaratory relief enjoining Graci from “violating
ERISA by failing, refusing, or neglecting to make required contributions to the
funds,” 	Compl. 	¶¶ 	71-76, 	and 	“request 	permission 	to 	petition 	the 	Court 	for
delinquencies found pursuant to the requested audit period.” 	Feldman Decl. ¶ 55.
Effectively, 	the 	relief 	sought 	would 	require 	that 	Defendant 	comply 	with 	its
contractual 	and statutory 	obligations. 	While the 	relief 	requested is 	arguably
surplusage, “[i]njunctive relief is appropriate under Section 1132(g)(2)(E) of ERISA,
which states that in a successful action to enforce the requirements of ERISA, an
ERISA plan may recover ‘such other legal or equitable relief as the court deems
appropriate.’” La Barbera v. Fed. Metal & Glass Corp., 666 F. Supp. 2d 341, 349-50
(E.D.N.Y. 2009) (citing 29 U.S.C. § 1132(g)(2)(E)); see Lanzafame v. L & M Larjo Co.,
Inc., No. 03-CV-3640(NG)(KAM), 2006 WL 2795348, at *9 (E.D.N.Y. Sept. 26, 2006)
(“Plaintiff is entitled to an injunction requiring defendants to comply with the terms
of the CBA . . . .”).
Where, as here, the defendant is in default and the applicable statute provides
for injunctive relief as a possible remedy, the court may issue an injunction provided
that the plaintiffs meet the requirements for obtaining a permanent injunction, which
include a showing of “‘irreparable harm should the injunction not be granted.’” King
v. Nelco Indus., Inc., No. 96 Civ. 4177(EHN), 1996 WL 6296564, at *1 (E.D.N.Y. Oct.
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23, 1996); see LaBarbera v. David Liepper & Sons, Inc., No. 06-CV-1371(DLI)(JMA),
2006 WL 2423420, at *6 (E.D.N.Y. July 6, 2006). 	Plaintiffs must also demonstrate
the absence of an adequate remedy at law. Id.
Plaintiffs’ concern that Defendant may not properly make its contributions or
participate in the CBA-mandated audit in the future warrants injunctive relief. Graci
has failed to comply with its obligations arising under the Trust Agreements and CBA
and has made no effort to rectify its failures. 	Loc. No. 46 Metallic Lathers Union &
Reinforcing Iron Workers Welfare Tr., Annuity Fund, Pension Fund, Apprenticeship
Fund, Vacation Funds, Scholarship Fund, & Other Funds v. Brookman Constr. Co.,
No. 	12-CV-218(ARR)(LB), 	2013 	WL 	5304358, 	at 	*6 	(E.D.N.Y. 	Sept. 	19, 	2013)
(“Plaintiffs’ concern that defendant may not properly make its contributions or
participate in the CBA-mandated audit in the future is well-founded.”); Sullivan v.
Marble 	Unique 	Corp., 	No. 	10-CV-3582(NGG)(LB), 	2011 	WL 	5401987, 	at 	*14
(E.D.N.Y. Aug. 30, 2011) (holding that injunctive relief is “an appropriate remedy in
ERISA disputes where the defendant intends to frustrate any judgment . . . or show[s]
contempt for the judicial process”).
. 	Plaintiffs allege, and reasonably expect, that Defendant’s failure to make
timely payments to the Funds will continue. Compl. ¶¶ 73, 79. In light of Defendant’s
failure to participate in the judicial process, injunctive relief is appropriate. 	See
Sullivan, 2011 WL 5401987, at *14 (“Faced with recalcitrant ERISA defendants,
numerous court have granted an injunction . . . .”); La Barbera v. Cab II Enters., No.
08-CV-3648(FB)(CLP), 2009 WL 2447498, at *9 (E.D.N.Y. Aug. 5, 2009) (holding that
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injunctive relief is “an appropriate remedy in ERISA disputes where the defendant
intends to frustrate any judgment . . . or show[s] contempt for the judicial process”)
(internal quotation marks omitted); Mingoia v. Crescent Wall Sys., No. 03 Civ.
7143(THK), 2004 WL 1885952, at *7 (S.D.N.Y. Aug. 20, 2004) (“In light of Defendants’
past failures to make required contributions . . . and the threat of termination of
employee 	benefits 	if 	employer 	contributions 	are 	not 	timely 	made, 	permanent
injunctive relief is justified.”) (collecting cases). 	Accordingly, the Court respectfully
recommends that Plaintiffs’ motion be granted with respect to their request for
injunctive relief.
IV. 	CONCLUSION
For the reasons set forth herein, the Court respectfully recommends that
Plaintiffs’ motion for default judgment be granted. 	The Court recommends that
judgment be entered against Defendant in the total amount of $254,677.08, including:
(1) $193,252.51 for unpaid contributions to the Funds, including on behalf of both the
Paving Division and Nassau/Suffolk Division CBAs; (2) $40,596.40 in interest on
unpaid contributions; (3) $19,325.25 in liquidated damages; and (4) $1,502.92 in
interest for untimely payments. The Court further recommends Plaintiffs be granted
leave to file an updated application for additional accrued interest and an application
for attorneys’ fees and costs.
V. 	OBJECTIONS
A copy of this Report and Recommendation is being served on Plaintiffs by
electronic filing on the date below. 	Plaintiffs are directed to serve a copy of it on
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Defendant via first-class mail and promptly file proof of service by ECF. 	Any
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;
Fed. R. Civ. P. 6(a) and 6(d). Failure to file objections within this period waives the
right to appeal the District Court’s Order. 	See Ferrer v. Woliver, No. 05-CV-3696,
2008 WL 4951035, at *2 (2d Cir. Nov. 20, 2008); Beverly v. Walker, 118 F.3d 900, 902
(2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996).
Dated: 	Central Islip, New York
February 2, 2026
/s/ Steven I. Locke
STEVEN I. LOCKE
United States Magistrate Judge
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