Restrepo v. Dynamic Fire, Inc.

OCR transcription for search; preserved printed pages are authoritative

Case 1:25-cv-02079-NCM-JAM
Document 19 Filed 11/03/25 Page 1 of 33 PageID #:

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
- X
HUMBERTO RESTREPO, as Chairman of the Joint Industry Board of the Electrical Industry,
Plaintiff,
REPORT AND RECOMMENDATION
V.
DYNAMIC FIRE, INC.,
25-CV-2079 (Merle, J.) (Marutollo, M.J.)
Defendant.
x
JOSEPH A. MARUTOLLO, United States Magistrate Judge:
Plaintiff Humberto Restrepo, as Chairman of the Joint Industry Board of the Electrical Industry, commenced this action on April 14, 2025, against Defendant Dynamic Fire, Inc. pursuant to the Employee Retirement Income Security Act ("ERISA") of 1974, 29 U.S.C. §§ 1001-1461, as amended by the Multiemployer Pension Plan Amendments Act of 1980, Pub. L. No. 96-364, 94 Stat. 1208. Dkt. No. 1 | 1. Plaintiff seeks to recover a total of "$1,000,538.43, representing withdrawal liability in the principal amount of $809,533; interest in the amount of $29,098.83 through July 15, 2025; liquidated damages in the amount of $161,906.60; attorneys' fees, costs, and expenses incurred in the instant action in the amount of $4,854.36; continued interest on the principal withdrawal liability of $809,533 from July 16, 2025 through the date of payment at the monthly rate of 8%; and post-judgment interest on the balance of the judgment amount at the statutory rate. Dkt. No. 18-1; see also Dkt. No. 1 at 6-7.1
Currently pending before this Court, on a referral from the Honorable Natasha C. Merle, United States District Judge, is Plaintiff's motion for default judgment. Dkt. No. 13; see also July
Page citations are to the ECF-stamped page numbers.
AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO

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17, 2025 Referral Order. 	For the reasons set forth below, the undersigned respectfully
recommends that the Court grant in part and deny in part Plaintiff’s motion for default judgment.2
I. 	Background
The following facts are taken from the Complaint, Plaintiff’s motion for default judgment,
and the attachments filed in support of the motion (Dkt. Nos. 1, 13, 14, 15,16), which are accepted
as true for the purposes of this motion. See Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009)
(“in light of [the defendant’s] default, a court is required to accept all of [the plaintiff’s] factual
allegations as true and draw all reasonable inferences in [the plaintiff’s] favor”); see also Bencosne
v. Beautiful Paradise Rest. Corp., No. 22-CV-1567 (PGG) (SN), 2025 WL 602981, at *2
(S.D.N.Y. Feb. 24, 2025).
A. 	Factual Allegations
According to the Complaint, Plaintiff is the administrator of a multiemployer pension plan
to collect employer withdrawal liability under ERISA (the “Funds”). Dkt. No. 1 ¶¶ 1, 16. The
Funds are a defined benefit pension plan within the meaning of Title IV of ERISA. Id. ¶ 16; Dkt.
No. 15 at 9.
“The Joint Industry Board is the “administrator” of [the Funds] within the meaning of
section 3(16)(A) of ERISA, 29 U.S.C. § 1002(16)(A).” 	Dkt. No. 1 ¶ 18. 	“The Joint Industry
Board and its members, including Plaintiff, are ‘fiduciaries’ of the Funds within the meaning of
section 3(21)(A) of ERISA, 29 U.S.C. § 1002(21)(A).” 	Dkt. No. 1 ¶¶ 4, 18. 	The Funds are
administered from Flushing, New York. Dkt. No. 1 ¶ 4.
2 Emily Miller, a judicial intern who is a third-year law student at the Washington University School of
Law, is gratefully acknowledged for her assistance in the research of this Report and Recommendation.
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Defendant is a business corporation with its principal place of business listed in Long
Island City, New York. Id. ¶ 5. Defendant was a party to several collective bargaining agreements
(“CBAs”) between Local Union No. 3 of the International Brotherhood of Electrical Workers,
AFL-CIO (“Union”) “and employer associations and independent or unaffiliated employers in the
electrical, elevator, sign, television, burglar alarm and other related industries.” 	Id. ¶¶ 4, 9-10.
The particular CBA cited by Plaintiff in the instant case is between Plaintiff and the New York
Systems Suppliers Association, of which Defendant is a member, as well as various independent
contractors. Dkt. No. 14-10 at 3, 22. The CBA requires Defendant to make benefit contributions
to the Funds in connection with “specified categories of work” (“Covered Work”). Dkt. No. 1 ¶
15. The CBA pertains to work in the electrical industry. Dkt. No. 14-10 at 3. The work of all
“employee(s) classified by the Employer as Service Technician, Wiremen Assemblers, System
Technician and Helpers,” save for “office clerical, manager, assistant managers, professionals and
supervisors as defined in the National Labor Relations Act” is Covered Work under the CBA. Dkt.
No. 14-10 at 3.
The CBA’s initial term of coverage was from “March 10, 2018 through March 11, 2022”;
the term was extended to provide coverage through “March 12, 2022 through March 12, 2025 by
way of a Memorandum of Agreement.” Dkt. No. 14 ¶¶ 19-20.
The CBA requires participating employers to adhere to the Pension, Hospitalization and
Benefit Plan of the Electrical Industry Trust Agreement (“Trust Agreement”). Dkt. No. 1. ¶ 10.
The Trust Agreement establishes that “the Joint Industry Board may declare an employer in default
of its obligations to pay withdrawal liability if it reasonably appears to the Joint Industry Board
that the employer has experienced a change in circumstances of a substantial nature from which it
can be reasonably anticipated that future installments cannot be paid,” or if the employer fails to
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comply with the notices provided to it regarding the withdrawal liability. Dkt. No. 1 ¶ 21; Dkt.
No. 14-2 at 34. The Complaint alleges that “in or around December 2024,” Defendant permanently
ceased business operations and permanently ceased to have obligations under the Funds, known
as a “complete withdrawal” under section 4203(a) of ERISA, 29 U.S.C. § 1383(a), which triggered
withdrawal liability per sections 4201 and 4211 of ERISA, 29 U.S.C. §§ 1381 and 1391. Dkt. No.
1 ¶¶ 19-20. Because of Defendant’s closure, the Joint Industry Board determined that Defendant
would be unlikely to be able to comply with the withdrawal liability payment schedule determined
in accordance with the statutory rules and the actuary’s calculations and made the full sum of
withdrawal liability due February 1, 2025. Dkt. No. 1 ¶¶ 23-24.
Section 4301(b) of ERISA, 29 U.S.C. 1451(b), provides that “failure of the employer to
make any withdrawal liability payment within the time prescribed shall be treated in the same
manner as a delinquent contribution [under Section 515 of ERISA][,]” and the Trust Agreement
states that “an employer is in default of its withdrawal liability if (a) any installment is not paid
when due, (b) the plan administrator on behalf of the Pension Fund has notified the employer of
its failure to pay the liability on the date it was due, and (c) the employer has failed to pay the past-
due installment within sixty (60) days after its received the late payment notice.” Dkt. No. 15 at
10-11. The Complaint alleges that Defendant did not make payments as required by the letter, at
which point Plaintiff informed the Defendant in a default letter dated February 7, 2025 that he
would take legal action if they failed to tender payment within 60 days. Dkt. No. 1 at ¶¶ 26-29.
The Complaint also asserts that Defendant failed to tender payment within the specified 60 days,
Id. at ¶ 30, and that Defendant incurred interest on all delinquent contributions, pursuant to the
Collection Policy. Id. at ¶ 14; Dkt. No. 14-13 at 8. Pursuant to the Trust Agreement, the Funds
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retain an actuary to calculate withdrawal liability in keeping with the formula laid out in section
4211(b)(1) of ERISA. Dkt. No. 15 at 3; see also Dkt. No. 14-16 at 1.
Plaintiff established a policy for the collection of delinquent employer contributions to the
Funds (“Collection Policy”) pursuant to the Trust Agreements. Dkt. No.1 ¶¶ 13-14. Under the
Collection Policy, if an employer fails to pay contributions as required, the employer shall be
responsible for a monthly interest rate of 8 per cent” calculated from the due date. Dkt. No.1 ¶ 14;
Dkt. No. 14-13 at 8.
Plaintiff asserts that “pursuant to sections 502(a)(3) and (g)(2), 515, 4219(c)(6), and
4301(b) and (e) of ERISA, 29 U.S.C. §§ 1132(a)(3) and (g)(2), 1145, 1399(c)(6), and 1451(b) and
(e), the regulations thereunder, including 29 C.F.R. § 4219.33, and the Trust Agreement, Plaintiff
is entitled to judgment against Defendant for withdrawal liability in the amount of $809,533;
prejudgment interest thereon at the rate of 8% per month; liquidated damages in an amount equal
to the greater of the foregoing amount of interest or 20% of the foregoing amount of withdrawal
liability; and all reasonable attorneys’ fees, costs, and expenses incurred by Plaintiff in prosecuting
this action.” Dkt. No.1 ¶ 32.
B. 	Procedural History
On April 14, 2025, Plaintiff filed this action seeking unpaid withdrawal liability under
Sections 4201 and 4211 of ERISA, 29 U.S.C. §§ 1381 and 1391. Dkt. No. 1 ¶ 20.
Defendant was served by a process server with a Summons, the Complaint, and a Litigation
Hold Notice on May 1, 2025, though Defendant’s General Agent, Nicholas Salvia. Dkt. No. 14-
3. Defendant was also served at its business address with a copy of the Scheduling Order by first
class and electronic mail on April 25, 2025. 	Dkt. No. 6. 	Defendant has failed to answer or
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otherwise respond to the Complaint. 	Dkt. No. 14 ¶ 3; Dkt. No. 14-9. 	The Clerk of the Court
entered a certificate of default on June 16, 2025. See Dkt. No. 12.
On July 16, 2025, Plaintiff moved for default judgment. Dkt. No. 13. Plaintiff argues that
he is owed $809,533 in withdrawal liability; Plaintiff notes in his motion that he devised this figure
by consulting an actuary retained by the Funds, who calculated withdrawal liability based upon
guidelines promulgated by section 4211(b)(1) of ERISA and adopted by the Trust Agreement.
Dkt. No. 15 at 10. 	The complaint alleges that the Funds were owed withdrawal liability when
Defendant permanently closed business and was therefore no longer obligated to them, effecting
a complete withdrawal. Dkt. No. 1 ¶¶ 19-20. The Funds impose “a monthly interest rate of 8%
for delinquent withdrawal liability payments,” which, according to Plaintiff, amounts to
$29,098.83 in interest through July 15, 2025 which “shall continue to accrue through the date of
payment.” Dkt. No. 15 at 12; Dkt. No. 18 at 1. “[T]he [] Fund[s] [are] also entitled to liquidated
damages equal to the greater of the interest assessed on the unpaid principal, or 20% of the
principal delinquency.” Dkt. No. 15 at 19. In the instant case, 20% of the principal delinquency
was calculated as “$161,906.60 . . . which is greater than the interest assessed on the unpaid
principal.” Id. at 12. Accordingly, Plaintiff maintains that Defendant owes liquidated damages to
the Funds in the amount of $161,906.60. Id. Plaintiff also seeks “additional interest at the rate of
8% per month from July 16, 2025 through the date of judgment,” plus “reasonable attorneys’ fees,
costs, and expenses in the amount of $4,854.36,” plus post-judgment interest calculated at the
statutory rate. See Dkt. No. 14-21; Dkt. No. 15 at 8, 13.
On September 26, 2025, the Court ordered Plaintiff to supplement his motion for default
judgment. See Text Order dated September 26, 2025. The Court noted that Plaintiff argues that
he is entitled to interest on the unpaid withdrawal liability. Id. (citing 29 U.S.C. § 1132(g)(2)(B)).
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But the Court noted that, “[u]sing the equation provided by Plaintiff, [] calculations do not appear
to match the amount of interest sought.” Id. The Court ordered Plaintiff to supplement his “motion
for default judgment and explain, in more detail, its calculations for how it arrived at the interest
sought on the unpaid withdrawal liability.” Id.
On September 29, 2025, Plaintiff filed a letter supplementing his motion per the Court’s
September 26, 2025 order. In his letter, Plaintiff noted that he used the improper equation for his
initial interest calculations and provided an alternative equation and an updated interest calculation
pursuant to the updated equation. Dkt. No. 18 at 1.
II. 	Standard for Default Judgment
“Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for obtaining
a default judgment.” 	Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011). 	First,
“[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the
party’s default.” Fed. R. Civ. P. 55(a). Second, and “[i]n all other cases, the party must apply to
the court for a default judgment.” Fed. R. Civ. P. 55(b)(2). Under Rule 55, the court “may conduct
hearings or make referrals . . . when, to enter or effectuate judgment, it needs to: (A) conduct an
accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by
evidence; or (D) investigate any other matter.” Id.
The decision to grant or deny a default motion is “left to the sound discretion of a district
court.” Esquivel v. Lima Rest. Corp., No. 20-CV-2914 (ENV) (MMH), 2023 WL 6338666, at *3
(E.D.N.Y. Sept. 29, 2023) (quoting Shah v. New York State Dep’t of Civ. Serv., 168 F.3d 610, 615
(2d Cir. 1999)); Harleysville Preferred Ins. Co. v. Van Dyke, No. 23-CV-06183 (NSR), 2025 WL
2773100, at *7 (S.D.N.Y. Sept. 29, 2025) (same).
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When evaluating a motion for default judgment, “a court is required to accept all the
[plaintiff]’s factual allegations as true and draw all reasonable inferences in its favor.” Finkel, 577
F.3d at 84; see also 10A Wright, Miller & Kane, Federal Practice & Procedure § 2688.1 (4th ed.)
(“If the court determines that defendant is in default, the factual allegations of the complaint,
except those relating to the amount of damages, will be taken as true.”). In determining whether
to enter a default judgment, the Court considers the following factors, “(1) whether the default was
willful; (2) whether setting aside the default would prejudice the adversary; and (3) whether a
meritorious defense is presented.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993).
III. 	Jurisdiction and Venue
The Court “must satisfy itself that it has subject matter and personal jurisdiction before
rendering judgment against defendants.” 	Dumolo v. Dumolo, No. 17-CV-7294 (KAM) (CLP),
2019 WL 1367751, at *4 (E.D.N.Y. Mar. 26, 2019); see Covington Indus., Inc. v. Resintex A.G.,
629 F.2d 730, 732 (2d Cir. 1980) (“A judgment entered against parties not subject to the personal
jurisdiction of the rendering court is a nullity.”).
A. 	Subject Matter Jurisdiction
The Court has jurisdiction over this action as the claims arise pursuant to Sections 502(e)(1)
and (f), 4301(c) of ERISA, 29 U.S.C. §§ 1132(e)(1) and (f), and 1451(c); see Annuity, Welfare &
Apprenticeship Skill Improvement & Safety Funds of Int’l Union of Operating Eng’rs Loc. 15,
15A, 15C & 15D, AFL-CIO by Callahan v. Allstate Mapping & Layout, LLC, No. 23-CV-07345
(PKC) (PK), 2024 WL 3813259, at *2 (E.D.N.Y. July 22, 2024) (“[t]he Court has jurisdiction over
Plaintiff’s claims pursuant to Section[] 502. . . of ERISA, 29 U.S.C. §§ 1132”); Trs. of Loc. 813
Pension Tr. Fund v. Argento Rubbish Removal, Inc., No. 22-CV-5683 (FB) (PK), 2023 WL
5961658, at *3 (E.D.N.Y. Aug. 21, 2023), report and recommendation adopted as modified, No.
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1:22-CV-05683-FB-PK, 2023 WL 5956787 (E.D.N.Y. Sept. 13, 2023) (finding subject matter
jurisdiction in a withdrawal liability case).
Therefore, the undersigned respectfully recommends a finding that the Court has subject
matter jurisdiction over Defendant.
B. 	Personal Jurisdiction
“[B]efore a court grants a motion for default judgment, it may first assure itself that it has
personal jurisdiction over the defendant.” Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp.,
619 F.3d 207, 213 (2d Cir. 2010) (citation omitted). “A default judgment may not be granted ‘if
the defendant has not been effectively served with process.’” Nat’l Cas. Co. v. Runway Towing
Corp., No. 19-CV-5091 (DG) (CLP), 2021 WL 5310857, at *2 (E.D.N.Y. Oct. 19, 2021), report
and recommendation adopted, 2021 WL 5304055 (E.D.N.Y. Nov. 15, 2021) (quoting Doe v.
Alsaud, 12 F. Supp. 3d 684, 687 (S.D.N.Y. 2014)).
Under Rule 4(e)(1), an individual may be served by “following state law for serving a
summons in an action brought in courts of general jurisdiction in the state where the district court
is located.” Fed. R. Civ. P. 4(e)(1). Pursuant to Rule 4(h)(1)(A), a corporation may be served in
the same manner as an individual prescribed by Rule 4(e)(1). Fed. R. Civ. P. 4(h)(1)(A). Rule
4(h)(1)(B) permits service upon a corporation by delivering copies of the summons and complaint
“to an officer, a managing or general agent, or any other agent authorized by appointment or by
law to receive service of process[.]” Fed. R. Civ. P. 4(h)(1)(B).
New York state law allows for a corporation to be served by delivering the summons “to
an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent
authorized by appointment or by law to receive service.” N.Y. C.P.L.R. § 311(a)(1); see Llolla v.
Karen Gardens Apartment Corp., No. 12-CV-1356 (MKB) (JO), 2016 WL 233665, at *6
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(E.D.N.Y. Jan. 20, 2016) (noting that “both the New York and federal rules both require personal
delivery to an officer, director, managing or general agent.”); Fashion Page, Ltd. v. Zurich Ins.
Co., 50 N.Y.2d 265, 271, 406 N.E.2d 747, 750 (1980)(same). “The phrase ‘managing or general
agent’ does not refer to any agent of the corporation, but one who operates at its highest levels, or
at least has overall authority to make high-level decisions on the part of the enterprise.”
Kumer v. Hezbollah, No. 18-CV-7449 (CBA), 2020 WL 6146622, at *2 (E.D.N.Y. Oct. 20, 2020)
(citation omitted). “Ultimately, ‘[p]laintiff bears the burden to show a ‘basis for inferring that the
defendant has authorized a particular person to accept service of process on [its] behalf.’” Id.
Here, the Court has personal jurisdiction over Defendant. Defendant is a corporation with
its address for service listed with the New York Department of State Division of Corporations at
37-14 13th Street Long Island City, New York 1110. Dkt. No. 1 ¶ 5. Plaintiff served Defendant
through its president and majority shareholder, Nicholas Salvia, the corporation’s “General Agent”
whose post office address of 278 Van Wyck Lake Road, Fishkill, New York, is listed as “the post
office address to which the Secretary of State shall maintain a copy of any process served against
Defendant served upon the Secretary of State by personal delivery.” Dkt. No. 14 ¶¶ 7-9; Dkt. No
14-4. 	Because service of the summons and the complaint was issued to Salvia, service was
properly rendered. Dkt. No. 14 at 7-9; Dkt. No. 12. Plaintiff has demonstrated proper service on
Defendant by filing an affidavit of service, which attests that Defendant was served by way of
personal service on their General Agent, and by filing documents attesting to Salvia’s role in the
corporation to support the assertion that his authority within the corporation is sufficient to label
him a General Agent. Dkt. No. 14-7; Dkt. No. 14-5; 14-3.
Thus, the undersigned respectfully recommends a finding that service on Defendant was
proper in this case and the Court has personal jurisdiction over Defendant.
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C. 	Venue
Venue is proper for a civil action in “a judicial district in which any defendant resides” or
“a judicial district in which a substantial part of the events giving rise to the claim occurred.” 28
U.S.C. §§ 1391(b)(1), (2). A corporation is deemed to be a resident of “any district” in “a state
which has more than one judicial district and in which . . . [that] corporation is subject to personal
jurisdiction at the time an action is commenced.” 	Id. § 1391(d). 	The Complaint asserts that
Defendant has its principal place of business in Long Island City, New York. 	Dkt. No. 1 ¶ 5.
Accordingly, Plaintiff properly asserts that, “[v]enue is proper in this district pursuant to Section
502(e)(2) and 4301(d) of ERISA, 29 U.S.C. § 1132(e)(2).” Dkt. No. 1 ¶ 3.
Accordingly, the undersigned respectfully recommends that venue is proper in this district.
IV. 	Procedural Compliance with Local Rules 7.1 and 55.2
Local Civil Rule 7.1 requires that a plaintiff attach to a motion for default (1) a notice of
motion specifying the applicable rules or statutes pursuant to which the motion is brought; (2) a
memorandum of law setting forth the cases and other authorities relied upon in support of the
motion; and (3) supporting affidavits and exhibits containing any factual information and portions
of the record necessary for the decision of the motion. See L. Civ. R. 7.1. Plaintiff complied with
the procedural requirement set forth in Local Civil Rule 7.1 by filing a notice of motion (Dkt. No.
13), a memorandum of law (Dkt. No. 15), and an affidavit with exhibits (Dkt. No. 14) in support
of the motion. 	Local Civil Rule 55.2 requires that a plaintiff attach to any motion for default
judgment an affidavit or declaration showing that the clerk has entered a Certificate of Default,
that the movant has complied with the Servicemembers Civil Relief Act (“SCRA”), and that the
defaulting party is not known to be a minor or an incompetent person. See L. Civ. R. 55.2(a)(1)(A)-
(C); 50 U.S.C. § 3931. A movant must also file a certificate of service indicating the motion and
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all supporting documents, including the Clerk’s Certificate of Default, have been personally served
on or mailed to the last residence (for a natural person) or business address (for an entity) of the
defaulting party. Id. at (a)(3). Additionally, if damages, attorneys’ fees, or costs are at issue, a
moving party must also file “a statement of damages, sworn or affirmed to by one or more people
with personal knowledge, in support of the request.” Id. at (c).
In accordance with Local Civil Rule 55.2(a), Plaintiff has attached to his motion for default
judgment the Clerk’s certificate of default and a proposed form of default judgment. See Dkt. Nos.
14-9, 14-21. Moreover, Plaintiff has indicated in an affidavit that he has complied with the SCRA,
because the defendant is a corporation and cannot participate in military service or be classified as
minor or incompetent, and that Nicholas Salvia, the individual served on behalf of the company,
was not taking part in active service at the time he was served.3 Dkt. No 14 ¶¶10-11; Dkt. No. 6;
see also 50 U.S.C. § 3931 (the SCRA requires a plaintiff seeking default judgment to “file with
the court an affidavit stating whether or not the defendant is in military service and showing
necessary facts to support the affidavit.”); Windward Bora, LLC v. Ortiz, No. 21-CV-04154
(MKB) (JMW), 2022 WL 3648622, at *5 (E.D.N.Y. July 5, 2022) (noting that such an affidavit is
absolutely mandatory), report and recommendation adopted, 2022 WL 3647586 (E.D.N.Y. Aug.
24, 2022); Apex Mar. Co. v. Furniture, Inc., No. 11-CV-5365 (ENV) (RER), 2012 WL 1901266,
at *1 (E.D.N.Y. May 18, 2012) (“The non-military affidavit must be based not only on an
investigation conducted after the commencement of an action or proceeding but also after a default
in appearance by the party against whom the default judgment is to be entered.”) (citation omitted).
In further compliance with Local Civil Rule 55.2(a), Plaintiff has stipulated that, as a corporate
3 Because Salvia is not a party to the instant action, there is no requirement that his lack of military service
be verified.
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defendant, defendant cannot be a minor, incompetent, or involved in military service. Dkt. No. 14
¶ 10; L. Civ. R. 55.2(a)(1)(C).
Per Local Civil Rule 55.2(a)(3), Plaintiff has mailed all papers submitted in connection
with the motion for a default judgment to the “last known business address” of Dynamic Fire and
the “last known residence” of Nicholas Salvia, president and majority shareholder of Dynamic
Fire. 	See Dkt. No. 14-8; L. Civ. R. 55.2(a)(3). 	Moreover, Plaintiff has submitted sufficient
documentation to fulfill Local Rule 55.2(c)’s requirement to “file a statement of damages, sworn
or affirmed to by one or more people with personal knowledge, in support of the request, showing
the proposed damages and the basis for each element of damages, including interest, attorney’s
fees, and costs.” L. Civ. R. 55.2(c). Specifically, Plaintiff has filed a signed damages statement
as an attachment to its affidavit, providing a basis for withdrawal liability, liquidated damages, and
interest; Plaintiff also included an actuary report detailing withdrawal liability calculations. See
Dkt. Nos. 14-16; 14-17; 14-20. Plaintiff’s counsel has also submitted adequate documentation of
attorneys’ fees, costs, and expenses associated with prosecuting this case. See Dkt. Nos. 14 ¶¶ 62-
73; 14-18; 14-19.
Accordingly, the undersigned respectfully recommends that the Court find that Plaintiff
has satisfied the jurisdictional requirements to proceed with his motion under Local Civil Rules
7.1 and 55.2.
V. 	Liability under ERISA
Plaintiff seeks to collect withdrawal liability from Defendant under sections 4201 and 4211
of ERISA, 29 U.S.C. §§ 1381 and 1391. Dkt. No. 1 ¶ 20.
Plaintiff’s claim alleges that Defendant is liable for withdrawal liability under sections
4201 and 4211 of ERISA, 29 U.S.C. §§ 1381 and 1391. “Under Section 4201(a) of ERISA, an
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employer is required to pay withdrawal liability when the employer completely withdraws from
participation in a Fund.” Trs. of the 1199 SEIU Health Care Emps. Pension Fund v. Traymore
Chemists, Inc., No. 13-CV-4070 (MKB), 2014 WL 4207589, at *4 (E.D.N.Y. June 25, 2014),
report and recommendation adopted, 2014 WL 4207592 (E.D.N.Y. Aug. 25, 2014). 	Upon
withdrawal, the “plan sponsor is required to notify the employer as to the amount of its withdrawal
liability and demand payment in accordance with a schedule.” 	Id. at *4. 	At that point, “the
employer who wishes to dispute the amount of liability must request a review within 90 days of
the demand and if not resolved, then arbitration is mandatory,” but, “if no arbitration proceeding
is initiated, the employer ‘waives its right to arbitration and its right to assert any defenses in [an]
action seeking withdrawal liability,’” and the plan sponsor may bring suit to collect the funds. Id.
(citing Bakery & Confectionary Union & Industrial Pension Fund v. Mt. Rose Ravioli & Macaroni
Co, 2011 WL 6130975, at *2).
Plaintiff has sufficiently alleged that Defendant withdrew from the plan under the meaning
of the statute. Dkt. No. 1 ¶¶ 19-20. A complete “[w]ithdrawal from a multiemployer pension plan
occurs when an employer ‘permanently ceases to have an obligation to contribute under the plan,
or permanently ceases all covered operations under the plan.’” 	Daniello v. Planned Sys.
Integration, No. 07-CV-1729 (RRM) (VVP), 2009 WL 2160536, at *2 (E.D.N.Y. July 17, 2009)
(quoting 29 U.S.C. § 1383). 	Defendant’s actions fall within this definition, as the Complaint
alleges that Defendant permanently closed its business and was therefore no longer obligated to
the Funds. Dkt. No. 1 ¶ 19-20.
Second, Plaintiff has sufficiently alleged that Defendant notified Plaintiff of their
withdrawal liability and demanded payment according to a schedule by issuing a letter on January
6, 2025 (the “Notice and Demand”). Dkt. No. 1 ¶¶ 22, 26-29. Section 1382 of ERISA provides
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that in the event of an employer withdrawal, the plan sponsor must, “(1) determine the amount of
the employer's withdrawal liability, (2) notify the employer of the amount of the withdrawal
liability, and (3) collect the amount of the withdrawal liability from the employer.” 29 U.S.C. §
1382. 	Section 1399 of ERISA provides that this notification must provide “the schedule for
liability payments” and “demand payment in accordance with the schedule.” 29 U.S.C. § 1399.
Plaintiff established that he complied with these requirements by providing Defendant with a
Notice and Demand and a Default Letter. See Dkt. Nos. 14-14; 14-15. The Notice and Demand
letter allowed Defendant the option to pay the amount owed in “112 monthly payments of $9,445
and a final (113th ) payment of 6,070.” Dkt. No. 14-14 at 1.
Moreover, Defendants failed to dispute the liability through arbitration within the 90-day
period afforded by statute. Dkt. No 15 at 17; 29 U.S.C. § 1399(b)(2). Indeed, “[i]f an employer
fails to initiate the arbitration process to contest the amount of withdrawal liability assessed against
it, the employer has waived its right to arbitration, and a federal court will not make an independent
determination that the plan sponsor’s assessment was unreasonable.” Vacca v. Bridge Chrysler
Jeep Dodge, Inc., No. 06-CV-3543 (ERK) (AKT), 2008 WL 4426875 (E.D.N.Y. Sept. 4, 2008).
Defendants failed to dispute the liability within the designated period, Dkt. No., 14-45, so the
liability is fixed. 	Ferrara v. Happy Time Trucking, LLC, 436 F. Supp. 3d 606, 615 (E.D.N.Y.
2020) (collecting cases) (“If an ERISA employer fails to initiate arbitration, it waives its rights to
challenge the amount of withdrawal liability against it and fixes the amount of withdrawal
liability.”); see also Bd. of Trs. of United Furniture Pension Fund A v. Premier Restoration Techs.,
No. 21-CIV-9172 (VEC) (GWG), 2022 WL 2312329, at *3 (S.D.N.Y. June 28, 2022), report and
recommendation adopted, No. 21-CV-9172, 2022 WL 3294825 (S.D.N.Y. Aug. 11, 2022) (same)
(maintaining that “[b]ecause Premier failed to make any of the required payments and failed to
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challenge its liability through arbitration, it may not contest the liability assessment calculated by
the Fund.”).
Third, Plaintiff has sufficiently alleged that Defendant failed to make payments by
February 1, 2025, as requested by the Notice and Demand and then subsequently failed to pay in
the 60-day period specified in the Default Letter. Dkt. No. 14 ¶ 37. In support of their assertion,
Plaintiff attested to defendant’s failure to pay in a declaration, including the Default Letter and the
Notice and Demand as an exhibit. Dkt No. 14 ¶¶ 42-45; Dkt. No. 14-14; Dkt. No. 14-15. Plaintiff’s
allegations are sufficient to establish liability under sections 4201 and 4211 of ERISA, 29 U.S.C.
§§ 1381 and 1391, and that he has complied with the procedures mandated by Sections 1382 and
1399 in order to collect these sums in court. In cases such as this, so long as “the factual allegations
in the Complaint, accepted as true,” meet the requirements for a finding of liability under ERISA,
the basis for the defendant’s liability will be established. Bricklayers Ins. & Welfare Fund v. Verse
Inc., No. 12-CV-4271 (FB) (JMA), 2013 WL 4883966, at *4 (E.D.N.Y. Sept. 11, 2013); Div. 1181
Amalgamated Transit Union-New York Emps. Pension Fund v. D & A Bus Co., 270 F. Supp. 3d
593, 609 (E.D.N.Y. 2017) (noting that well-pleaded factual allegations establish defendant’s
liability at pleading stage in ERISA case).
For the reasons stated above, the undersigned respectfully recommends that the Court grant
Plaintiff’s motion for default judgment as to liability under ERISA.
VI. 	Damages
Pursuant to “502(a)(3) and (g)(2), 515, 4219(c)(6), and 4301(b) and (e) of ERISA, 29
U.S.C. §§ 1132(a)(3) and (g)(2), 1145, 1399(c)(6), and 1451(b) and (e), the regulations thereunder,
including 29 C.F.R. § 4219.33,” the CBA, the Trust Agreements, and the Collections Policy,
Plaintiff alleges that Defendant is liable for the unpaid withdrawal liability, the interest due on the
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unpaid withdrawal liability, and liquidated damages equal to the greater of (a) interest assessed on
the unpaid principal, or (b) 20% of the principal withdrawal liability, post-judgment interest, and
attorneys’ fees and costs. Dkt. No. 1 ¶ 32; Dkt. No. 14-21. Plaintiff has submitted declarations
from his attorney in support of his motion for default judgment that offer support for his claims
for damages. See Dkt. No. 14.
“[A] party’s default is deemed to constitute a concession of all well pleaded allegations of
liability” but “is not considered an admission of damages.” 	Greyhound Exhibitgroup, Inc. v.
E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). Therefore, although Defendant’s liability
has been established, the Court must “conduct an inquiry in order to ascertain the amount of
damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151,
155 (2d Cir. 1999) (citing Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109
F.3d 105, 111 (2d Cir.1997)); see also Balhetchet v. Su Caso Mktg. Inc., No. 19-CV-4475 (PKC)
(SJB), 2020 WL 4738242, at *3 (E.D.N.Y. Aug. 14, 2020). “Although requests for damages are
usually established by the plaintiff in an evidentiary hearing, the court can make such a
determination 	without 	a 	hearing 	when 	supported 	by 	sufficiently 	detailed 	affidavits 	and
documentary evidence.” 	J & J Sports Prods., Inc. v. LX Food Grocery Inc., No. 15-CV-6505
(NGG) (PK), 2016 WL 6905946, at *2 (E.D.N.Y. Nov. 23, 2016) (citing Transatlantic Marine,
109 F.3d at 111).
In an action brought “by a fiduciary for or on behalf of a plan to enforce section 1145[,]” a
court must award the plan:
(A) the unpaid contributions, (B) interest on the unpaid contributions, (C) an
amount equal to the greater of[] [the] interest on the unpaid contributions, or
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 [unpaid contributions]; (D) reasonable attorneys’ fees and costs . . . , and (E)
such other legal or equitable relief as the court deems appropriate.
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See 29 U.S.C. § 1132(g)(2). Plaintiff is a fiduciary of the Funds. See 29 U.S.C. § 1002(21); Dkt.
No. 1 ¶ 18.
A. 	Unpaid Withdrawal Liability
“In any action under this section to compel an employer to pay withdrawal liability, any
failure of the employer to make any withdrawal liability payment within the time prescribed shall
be treated in the same manner as a delinquent contribution (within the meaning of section 1145
[515] of this title).” 29 U.S.C.A. § 1451. Therefore, fiduciaries who bring suit to recover unpaid
withdrawal liability under ERISA may recover it much the same as they can any other delinquent
contribution covered by ERISA. 29 U.S.C. § 1132(g)(2)(A). Indeed, “[i]n ERISA cases seeking
an award of damages after a finding of liability, Courts frequently rely on the affidavits, reports,
and other documentary evidence filed by plaintiffs.” 	Annuity, Welfare & Apprenticeship Skill
Improvement & Safety Funds of Int’l Union of Operating Eng’rs Loc. 15, 15A, 15C & 15D, AFL-
CIO by Callahan v. PETK, Inc., No. 22-CV-3559 (LDH) (LB), 2022 WL 19520880, at *4
(E.D.N.Y. Oct. 13, 2022); see also Bricklayers Ins. & Welfare Fund v. McGovern & Co., LLC,
No. 17-CV-6067 (SJ) (ST), 2019 WL 2271942, at *3 (E.D.N.Y. Mar. 6, 2019), report and
recommendation adopted, 2019 WL 1772399 (E.D.N.Y. Apr. 23, 2019) (listing documentary
evidence supporting plaintiffs’ damages request.).
Here, Plaintiff seeks to recover $809,533 in unpaid withdrawal liability. Dkt. No. 1 at 6.
Plaintiff has provided documentation of the withdrawal liability amount, including an actuary
report detailing the calculations used. Dkt. No. 14-16. Plaintiff has also provided the terms of the
Trust Agreement, which detail the procedures for determining withdrawal liability pursuant to
ERISA. Dkt. No. 14 ¶ 26; Dkt. No. 14-12 at 30-32.
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Upon reviewing Plaintiff’s supporting documents, including the Trust Agreement and the
actuary’s report, Plaintiff has sufficiently established the amount Defendant owes in unpaid
withdrawal liability in light of Defendant’s waiver of its right to challenge the liability and the
figure. See Vacca, 2008 WL 4426875, at *7; Amalgamated Lithographers of America v. Unz &
Co., Inc., 2009 WL 4016482, *6 (S.D.N.Y. Nov.3, 2009); Mt. Rose Ravioli & Macaroni Co., 2011
WL 6130975, at *3 (noting that defendant’s failure to contest existence of and sum of withdrawal
liability during the proscribed time meant that it had waived its right to do so); D & A Bus Co.,
270 F. Supp. 3d at 614 (holding that “a detailed actuarial report setting forth the manner and means
by which the total withdrawal liability figure of $575,545.00 was calculated” established the
amount due in damages).
Therefore, the undersigned respectfully recommends that Plaintiff be awarded $809,533 in
unpaid withdrawal liability.
B. 	Interest
Plaintiff is entitled to interest on the unpaid withdrawal liability. 	See 29 U.S.C. §
1132(g)(2)(B) (“In any action under this subchapter by a fiduciary for or on behalf of a plan to
enforce Section 1145 of this title in which a judgment in favor of the plan is awarded, the court
shall award the plan—[] interest on the unpaid contributions.”). ERISA Section 1399(c)(5) also
provides that employers are entitled to “accrued interest on the total outstanding liability from the
due date of the first payment which was not timely made.” 29 U.S.C. § 1399(c)(5). Similarly,
plan sponsors “[s]hall assess interest on overdue withdrawal liability payments from the due date,
as defined in . . . this section, until the date paid . . . and . . . [i]n the event of a default, may assess
interest on any accelerated portion of the outstanding withdrawal liability from the due date, as
defined in . . . this section, until the date paid.” § 4219.32. ERISA also provides that “interest on
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unpaid contributions shall be determined by using the rate provided under the plan, or, if none, the
rate prescribed under section 6621 of title 26.” Id. at § 1132(g)(2).
Under the Collection Policy, “the employer shall be responsible for a monthly interest rate
of 8 per cent” on all delinquent contributions.4 Dkt. No.1 ¶ 14; Dkt. No. 14-13 at 8. Plaintiff now
seeks interest upon the unpaid withdrawal liability of $29,098.83, which was calculated according
to the rate in the Trust Agreement, that accrued from “February 1, 2025 through July 15, 2025.”
Dkt. No. 15 at 18; Dkt. No. 18. 5
Here, “[D]efendant failed to make any payments whatsoever and the acceleration of the
entire amount became due on the date of the default,” making defendant liable for interest assessed
on the amount due on the date “of the first payment which was not timely made” pursuant to
Section 4219(c)(5) of ERISA. Traymore Chemists, 2014 WL 4207589, at *9. The sum calculated
by Plaintiff for the aforementioned period is in accordance with the 8% interest rate authorized in
4 Per 29 U.S.C.A. § 1451, in actions to recover withdrawal liability, delinquent withdrawal liability
payments are treated the same as other delinquent contributions. Id.
5 Plaintiff’s motion provides a spreadsheet detailing the computation of interest on the amount of unpaid
withdrawal liability. Dkt. No. 14-17. Plaintiff initially utilized a compound interest formula to calculate
how much interest had accrued between February through July of 2025 and determined that $28,483.08 in
interest was owed. Id. Plaintiff determined that the five months at issue constituted .4 of a compound
period, presumably because interest compounds annually. See id. As noted above, however, the Court
found that the calculations did not appear to match the amount of interest sought and ordered Plaintiff to
supplement his motion. See Text Order dated September 26, 2025. Plaintiff now admits that his initial
proposal did not feature the proper equation for the interest calculation in this case; accordingly, the
undersigned did not rely on this equation in calculating interest. 	Dkt. No. 18. 	Plaintiff explained that
counsel “inadvertently used a compounding interest formula in calculating interest,” instead of a simple
interest formula. Id. Plaintiff’s letter provided a simple interest formula and explained how interest was
calculated according to that formula. Id. Plaintiff’s documentation showed that to reach his updated interest
calculation of $29,098.83, he first found the per diem interest rate. Id. Plaintiff reached this figure by
multiplying the principal balance of $809,533 by the interest rate of 8% and then dividing by 365, resulting
in a rate of $177.43, which he multiplied by the 164 days in the period from February 1, the date payment
of the full sum of the withdrawal liability was due, to July 15, 2025, the date of plaintiff’s initial interest
calculation. Id.; Dkt. No. 14-7; 14-15. Plaintiff also requests interest on the unpaid withdrawal liability
from July 16, 2025, though the date of payment. Dkt. 14-21. Plaintiff’s calculations reflect an accurate
calculation of simple interest on the principal balance of $809,533 for the relevant period from the due date
of the principal until the initial calculation of interest.
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the Collection Policy, and as discussed above, is an accurate calculation. 	Dkt. 14-13 at 8.
Therefore, having reviewed Plaintiff’s calculations and supporting documents, the undersigned
finds that plaintiff’s interest calculations are correct and respectfully recommends that Plaintiff be
awarded a total of $29,098.83 in interest on the withdrawal liability in accordance with the updated
equation proffered for February 1, 2025 through July 15, 2025.
Plaintiff also requests an award of post-judgment interest. Dkt. No. 14-21. “The award of
post-judgment interest is mandatory on awards in civil cases as of the date judgment is entered.”
Trustees of the Local 7 Tile Indus. Welfare Fund v. Richard’s Improvement Bldg. Inc., No. 15-
CV-3898, 2016 WL 6110455, at *11 (E.D.N.Y. Aug. 1, 2016) (internal quotation marks omitted)
(quoting Lewis v. Whelan, 99 F.3d 542, 545 (2d Cir. 1996)), report and recommendation adopted,
2016 WL 4764909 (E.D.N.Y. Sept. 12, 2016); see also Schipani v. McLeod, 541 F.3d 158, 165
(2d Cir. 2008). The rate of post-judgment interest in an ERISA action is calculated pursuant to 28
U.S.C. § 1961(a). Id.
Interest has continued to accrue after Plaintiff’s initial interest calculation on July 15 and
will continue to accrue. Indeed, interest will continue to be assessed up until judgment, at which
point post-judgment interest begins to accrue. 	Traymore Chemists, 2014 WL 4207589, at *9.
Regarding post-judgment interest, 28 U.S.C. § 1961 provides that “[i]nterest shall be allowed on
any money judgment in a civil case recovered in a district court” and that it “shall be calculated
from the date of the entry of the judgment.” 28 U.S.C. § 1961. Thus, in addition to the interest
that has accrued between the date of plaintiff’s initial interest calculation and the issuance of final
judgment, interest will continue to accrue after the issuance of final judgment. 	Therefore, the
undersigned further respectfully recommends additional interest on delinquent payments from
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February 1, 2025 through July 15, 2025 to the date of judgment, and post-judgment interest in
accordance with 28 U.S.C. § 1961.
C. 	Liquidated Damages
Plaintiff also seeks liquidated damages. Dkt. No. 1 ¶ 32. “Section 502 of ERISA provides
for liquidated damages . . . as provided in the collective bargaining and trust agreements.” Sullivan
v. Marble Unique Corp., No. 10-CV-3582 (NGG) (LB), 2011 WL 5401987, at *6 (E.D.N.Y. Aug.
30, 2011), report and recommendation adopted, 2011 WL 5402898 (E.D.N.Y. Nov. 4, 2011); see
also 29 U.S.C. § 1132(g)(2)(C). In ERISA withdrawal liability cases, courts must always award
plaintiffs withdrawal liability when a judgment is made in favor of the plan; in these cases,
liquidated damages are a “mandatory remedy.” Durso v. Barsyl Supermarkets Inc., No. 17-CV-
6754 (JS) (ARL), 2021 WL 4222645, at *3 (E.D.N.Y. Sept. 16, 2021) (citation omitted); Durso v.
Tirrenio, Inc., No. 23-CV-7136 (ERK) (AYS), 2025 WL 2145963, at *4 (E.D.N.Y. July 29, 2025).
Pursuant to the Trust Agreement, liquidated damages shall be “equal to the greater of (a)
the amount of interest charged on the unpaid balance, or (b) 20% of the unpaid amount awarded.”
Dkt. No. 1 ¶ 11; Dkt. No 14-12 at 18. Accordingly, Plaintiff seeks liquidated damages for “the
greater of (a) the foregoing amount of interest, or (b) $161,906 (20% of the withdrawal liability
owed),” Dkt. No. 1 at 6. Durso as Trs. of Loc. 305 CIO's Pension Fund v. Casa Bella Contracting,
Inc., No. 23-CV-7107 (EK) (AYS), 2025 WL 2496082, at *4 (E.D.N.Y. Aug. 12, 2025), report
and recommendation adopted, 2025 WL 2494317 (E.D.N.Y. Aug. 29, 2025) (granting plaintiff
liquidated damages in a withdrawal liability case in accordance with both ERISA and Trust
Agreement provisions). 	In this case, “interest assessed on the unpaid principal is $[29,098.83],
whereas 20% of the principal withdrawal liability is $161,906.60.” Dkt. No. 15 at 14; Dkt. No.
18. Thus, the greater of the two figures is $161,906.60, so for the purposes of this case, liquidated
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damages will be 20% of the unpaid amount awarded rather than the amount of interest charged on
the unpaid balance.
Therefore, because liquidated damages are a mandatory remedy in such cases, the
undersigned respectfully recommends that, pursuant to the policy in the Trust Agreement, Plaintiff
be awarded $161,906.60 in liquidated damages.
D. 	Attorneys’ Fees
Pursuant to Section 502 of ERISA, where an action is brought by a fiduciary to enforce
Section 515 of ERISA, the court “shall award . . . reasonable attorney’s fees . . . to be paid by the
defendant.” 29 U.S.C. § 1132(g)(2)(D);6 see also Finkel v. Triple A Grp., Inc., 708 F. Supp. 2d
277, 290 (E.D.N.Y. 2010) (“[u]pon a finding that defendants have been delinquent in paying
contributions, liability for attorney’s fees under § 1132(g)(2) is mandatory.”); Guidice as Tr. for
I.B.E.W. Loc. 1049 Craft Annuity Fund v. All Reliable Servs., Inc., No. 23-CV-7575 (NJC) (JMW),
2025 WL 521144, at *2 (E.D.N.Y. Feb. 18, 2025) (awarding attorneys’ fees); Durso, 2025 WL
2496082, at *5 (E.D.N.Y. Aug. 12, 2025) (noting that “[p]ursuant to ERISA Section 502(g)(2)(D),
29 U.S.C. § 1132(g)(2)(D), plaintiffs are typically entitled to payment of their reasonable
attorneys’ fees and costs incurred in a successful action to obtain withdrawal liability.”). Trs. of
Loc. 813 Pension Tr. Fund v. Rizzo Env’t Servs. Corp., No. 19-CV-6622 (RPK) (CLP), 2020 WL
7249289, at *9 (E.D.N.Y. Oct. 31, 2020), report and recommendation adopted, 2020 WL 7021595
(E.D.N.Y. Nov. 30, 2020) (awarding attorneys’ fees in an ERISA action seeking withdrawal
liability).
In 	determining 	attorneys’ 	fee 	due 	as 	part 	of 	the 	costs, 	courts 	must 	ascertain 	a
“presumptively reasonable fee,” calculated by multiplying the reasonable number of hours worked
6 Per 29 U.S.C. § 1451, in actions to recover withdrawal liability, delinquent withdrawal liability payments
are treated the same as other delinquent contributions. Id.
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by a reasonable hourly rate. Arbor Hill Concerned Citizens Neighborhood Assoc. v. Cty. of Albany,
522 F.3d 182, 183-84 (2d Cir. 2008); see also Agudath Israel of Am. v. Hochul, No. 22-38, 2023
WL 2637344, at *1 (2d Cir. Mar. 27, 2023) (“Courts award attorney’s fees according to the
‘presumptively reasonable fee’ (or ‘lodestar’) method, calculated as the product of the reasonable
number of hours worked and a reasonable hourly rate.”). A “reasonable hourly rate” is the “rate a
paying client would be willing to pay . . . bear[ing] in mind that a reasonable, paying client wishes
to spend the minimum necessary to litigate the case effectively.” Arbor Hill, 522 F.3d 182 at 190.
“The party seeking reimbursement of attorney’s fees bears the burden of proving the
reasonableness and the necessity of the hours spent and rates charged.” 	Fermin v. La Delicias
Peruanas Rest., Inc., 93 F. Supp. 3d 19, 51 (E.D.N.Y. 2015); Trs. of N. Atl. States Carpenters
Health, Pension, Annuity, Apprenticeship, & Lab. Mgmt. Cooperation Funds v. Greenebuild LLC,
No. 24-CV-05060 (NCM) (LGD), 2025 WL 850476, at *4 (E.D.N.Y. Mar. 18, 2025), report and
recommendation adopted, No. 2:24-CV-05060 (NCM) (LGD), 2025 WL 1476458 (E.D.N.Y. May
22, 2025). 	The party must “support the hourly rates it claims with, for example, evidence of
counsel’s expertise and prevailing market rates.” Gesualdi v. Bestech Transp., LLC, No. 14-CV-
1110 (JS) (ARL), 2022 WL 866853, at *2 (E.D.N.Y. 2022); see also Hennessy v. 194 Bedford Ave
Rest. Corp., No. 21-CV-5434 (FB) (RML), 2022 WL 4134502, at *6 (E.D.N.Y. Aug. 8, 2022)
(“To determine a reasonable hourly rate, courts consider market rates prevailing in the community
for similar services by lawyers of reasonably comparable skill, experience, and reputation.”)
(internal quotations and citation omitted).
Plaintiff’s counsel alleges that they have incurred attorneys’ fees and costs of $4,854.36.
See Dkt. No. 14 ¶ 72. 	This figure was based on attorneys’ fees at a rate of $410 per hour for
partners, and legal assistant fees at a rate of $155 per hour, in addition to costs incurred throughout
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the litigation, totaling $555.36. See Dkt. No. 14-18; Dkt. No 14 ¶ 71. The attorney and her legal
assistants purportedly worked a total of 12.6 hours on this matter. Dkt. No 14-18; Dkt. No. 14 ¶
17.
1. 	Hourly Rate
Plaintiff seeks attorneys’ fees from one attorney: Ms. Adrianna R. Grancio, a partner at
Virginia & Ambinder. Dkt. No. 14 ¶ 64. Ms. Grancio graduated from St. John’s University School
of Law in 2016 and joined Virginia & Ambinder in 2019. Id. Since joining the firm, Ms. Grancio
has “regularly represented multiemployer benefit plans in ERISA litigation.” 	Id. 	Ms. Grancio
billed her time at a rate of $410 per hour. Id; Dkt. No 14-18. Plaintiff also seeks fees associated
with work completed by three of the firm’s legal assistants: Ms. Abigail Frankel, Ms. Eva Keating,
and Ms. Alice Gaalswyk. Id. ¶ ¶ 65-67. The firm billed all three legal assistants at a rate of $155
per hour “for work performed in connection with this action.” Id.; Dkt. No. 14-18.
The ordinary rates for attorneys in the Eastern District of New York are “approximately
$300-$450 per hour for partners, $200-$300 per hour for senior associates, and $100-$200 per
hour for junior associates.” Cape Mount Heavy, 2023 WL 5830338, at *11.; see also Cidoni v.
Woodhaven Ctr. of Care, No. 21-CV-03654 (JMA) (JMW), 2023 WL 2465167, at *4 (E.D.N.Y.
Mar. 10, 2023) (“[i]n this district, hourly rates ‘generally range from $300.00 to $450.00 for
partner-level attorneys, and $200.00 to $325.00 for those with less experience.”) (citing
Williamsburg Climbing Gym Co. LLC v. Ronit Realty LLC, No. 20-CV-2073 (FB) (RML), 2023
WL 1072952, at *4 (E.D.N.Y. Jan. 9, 2023), report and recommendation adopted, 2023 WL
1070615 (E.D.N.Y. Jan. 27, 2023)); Greenebuild, 2025 WL 850476, at *5 (E.D.N.Y. Mar. 18,
2025) (awarding an associate attorney from Virginia & Ambinder $275 per hour).
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In ERISA cases, attorneys’ fees “have been awarded in the Eastern District of New York
at an hourly rate of $300.00 to $450.00 for partners, $200.00 to $325.00 for senior associates,
$100.00 to $200.00 for junior associates, and up to $90.00 for non-attorney support staff.”
Trustees of Plumbers Loc. Union No. 1 Welfare Fund, Additional Sec. Benefit Fund, Vacation &
Holiday Fund, Trade Educ. Fund, 401(k) Sav. Plan v. Tri-C Mech. Inc., No. 22-CV-1590 (AMD)
(PK), 2024 WL 4290823, at *15 (E.D.N.Y. Sept. 10, 2024), report and recommendation adopted,
2024 WL 4287353 (E.D.N.Y. Sept. 25, 2024) (citing Noboa v. Quality Homes USA, Inc., No. 21-
CV-7134 (JMA) (LGD), 2023 WL 35030, at *2 (E.D.N.Y. Jan. 4, 2023)) (citation and quotation
marks omitted).
Here, there are several recent opinions in this district in which Ms. Grancio has been
awarded less than what she has requested in the instant case for her work in ERISA actions. See,
e.g., Trs. of Pavers & Rd. Builders Dist. Council Welfare, Pension, & Annuity Funds v. Rici Corp,
No. 24-CV-6632 (RPK) (MMH), 2025 WL 2682626, at *10 (E.D.N.Y. Sept. 19, 2025) (granting
an award for Ms. Grancio of a $333.00 hourly rate); Trs. of Pavers & Rd. Builders Dist. Council
Welfare, Pension, & Annuity Funds v. Toros Bros. Constr. Corp., No. 24-CV-537 (FB) (MMH),
2025 WL 819918, at *9 (E.D.N.Y. Mar. 16, 2025), report and recommendation adopted, 2025
WL 953135 (E.D.N.Y. Mar. 31, 2025) (same); Trs. of Pavers & Rd. Builders Dist. Council
Welfare, Pension, & Annuity Funds v. IKNA Constr. LLC, No. 24-CV-561 (CBA) (JAM), 2025
WL 447731, at *17 (E.D.N.Y. Jan. 15, 2025), report and recommendation adopted, 2025 WL
777108 (E.D.N.Y. Mar. 11, 2025) (same); Trs. of Pavers & Rd. Builders Dist. Council Welfare,
Pension, Annuity & Loc. 1010 Apprenticeship, Skill Improvement & Training Funds v. PCM
Contracting Corp., No. 20-CV-1834 (FB) (SJB), 2022 WL 584536, at *9 (E.D.N.Y. Feb. 3, 2022),
report and recommendation adopted, 2022 WL 580959 (E.D.N.Y. Feb. 24, 2022) (granting Ms.
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Grancio an award of $250 per hour for work that she did as an associate); Finkel v. O.H. & M.
Elec., Corp., No. 23-CV-1076 (LDH) (JRC), 2024 WL 4648136, at *6 (E.D.N.Y. Jan. 19, 2024)
(finding that Grancio’s proposed “rate of $410 per hour is excessive for this straightforward case”
and opting instead for rate of $310 per hour based on her experience level and the nature of the
case.).
Accordingly, the undersigned finds that Ms. Grancio’s hourly rate of $410 per hour as a
partner at Virginia & Ambinder is excessive, especially given the nature of this case. Rici Corp,
2025 WL 2682626, at *10 (granting Ms. Grancio $333.00 per hour of legal work); Toros Bros.
Constr. Corp., 2025 WL 819918, at *9 (same); Finkel, 2024 WL 4648136, at *6. Moreover, Ms.
Grancio offers no reason why her rate in this case should be increased. 	In keeping with recent
cases in which Ms. Grancio was awarded attorneys’ fees in this district, the undersigned
respectfully recommends that her time be billed at an hourly rate of $330.00 per hour.
The undersigned also finds that the $155 hourly rate for legal staff members Ms. Keating,
Ms. Frankel, and Ms. Gaalswyk, respectively, is on the high end of rates typically awarded in this
district. Ms. Keating graduated from Fordham University in 2014, Ms. Frankel graduated from
Cornell University in 2021, and Ms. Gaalswyk graduated from Fordham University in 2025. Dkt.
No. 14 ¶¶ 65-67. Plaintiff’s declaration notes that Ms. Keating, the firm’s director of operations
and former senior paralegal, has worked extensively in ERISA litigation since joining the firm in
2014, while Ms. Frankel has worked in ERISA litigation since joining the firm in January 2022.
Id. at ¶ 66. Despite the distinction in experience, all three billed at the same $155 hourly rate. Id.
at ¶¶ 65-67. Courts in the EDNY and SDNY generally consider hourly rates ranging from $70 to
$150 to be reasonable for paralegals. See, e.g., Rubin v. HSBC Bank USA, NA, 763 F. Supp. 3d
233, 244 (E.D.N.Y. 2025) (adjusting rates in this district for inflation and market conditions and
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determining that $100-$150 for paralegals is reasonable); Jaramillo v. Latino Regal Corp., No.
19-CV-3104 (HG) (CLP), 2024 WL 4648135, at *20 (E.D.N.Y. Sept. 4, 2024) (collecting cases);
Allied 100, LLC v. Chadha, No. 20-CV-3493 (AMD) (PK), 2021 WL 7184241, at *12 (E.D.N.Y.
July 26, 2021) (same); Rosales v. Gerasimos Enters. Inc., No. 16-CV-2278 (RA), 2018 WL
286105, at *2 (S.D.N.Y. Jan. 3, 2018) (same).
Accordingly, the undersigned recommends a reduction for the proposed hourly rate of the
three legal assistants at Virginia & Ambinder from $155.00 per hour to $120.00 per hour in
accordance with relevant case law in this district. See, e.g., Greenebuild 2025 WL 850476, at *5
(finding $120 per hour an appropriate rate for legal assistants in a case Ms. Frankel worked on);
Trs. of Pavers & Rd. Builders Dist. Council Welfare, Pension, & Annuity Funds v. Regimental
Contracting, LLC, No. 22-CV-3757 (ENV) (RML), 2023 WL 2969471, at *6 (E.D.N.Y. Feb. 27,
2023) (approving a $115 legal assistant rate on a case that both Ms. Keating and Ms. Frankel
worked on). 	Tri-C Mech. Inc., 2024 WL 4290823 at *15 (reducing the legal assistants’ hourly
rates to $90.00); Trs. of New York City Dist. Council of Carpenters Pension Fund, Welfare Fund,
Annuity Fund, & Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Architectural
Metal Concept LLC, 636 F. Supp. 3d 459, 467 (S.D.N.Y. 2022) (approving a rate of $120 per hour
for legal assistants in a case brought by Virginia and Ambinder); Trustees of United Union of
Roofers, Waterproofers & Allied Workers Loc. 154 Welfare, Pension, Annuity, & Apprenticeship
& Training Funds v. Related Servs., LLC, No. 23-CV-9075 (HG) (AYS), 2024 WL 4250361, at
*2 (E.D.N.Y. July 29, 2024) (finding the hourly rate of $100 billed by Ms. Keating and Ms. Frankel
for a combined total of 8.2 hours to be reasonable); see also Irving v. G. & G. Instrument Corp.,
No. 19-CV-1597 (JMA) (ARL), 2020 WL 1536325, at *5 (E.D.N.Y. Mar. 31, 2020) (allowing
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plaintiff to recoup attorneys' fees at $95 per hour for work completed by paralegal on ERISA matter).
The undersigned respectfully recommends a finding that Ms. Grancio's rate of $410.00 per hour should be reduced to $330.00 per hour instead. The three legal staff members' rates should be reduced to $120.00 per hour, respectively.
2. Hours Billed
The Court next looks to the reasonableness of the number of hours billed. Attorneys must submit contemporaneous records with their fee applications to document the hours reasonably billed. See Scott v. City of New York, 626 F.3d 130, 133 (2d Cir. 2010); Hershkowitz v. ARstrat, LLC, No. 21-CV-6093 (EK) (TAM), 2023 WL 2311429, at *2 (E.D.N.Y. Jan. 25, 2023), report and recommendation adopted, 2023 WL 2306071 (E.D.N.Y. Feb. 28, 2023) ("With very limited exceptions, contemporaneous time records are a prerequisite for attorney's fees in this Circuit.") (citations omitted). The "critical inquiry is 'whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures."" Maldonado v. La Nueva Rampa, Inc., No. 10-CV-8195, 2012 WL 1669341, at *13 (S.D.N.Y. May 14, 2012) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)).
Plaintiff requests attorneys' fees for a total of 12.6 hours of work on this case. Dkt. No. 15 at 21. Specifically, Plaintiff seeks compensation for the following hours worked by each firm member:
Firm Member
Role
Hours
Ms. Adrianna R. Grancio
Attorney
9.2
Ms. Alice Gaalswyk
Legal Assistant
0.1
Ms. Abigail Frankel
Legal Assistant
2.2
Ms. Eva Keating
Director
of
1.1
Operations/Former Senior Paralegal
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See generally Dkt. No. 14-18 (calculating hours expended on the instant litigation).
These hours are well within the range of hours expended in similar default judgment cases
involving claims brought under ERISA. See Trs. of Plumbers Loc. Union No. 1 Welfare Fund,
Additional Sec. Benefit Fund, Vacation & Holiday Fund, Trade Educ. Fund, 401(k) Sav. Plan v.
Temperini Mech. Inc., No. 18-CV-2596 (AMD) (LB), 2020 WL 571680, at *6 (E.D.N.Y. Jan. 13,
2020), report and recommendation adopted, 2020 WL 565410 (E.D.N.Y. Feb. 5, 2020) (finding
49.8 hours of work on an ERISA default in which Ms. Grancio contributed reasonable); Gesualdi
v. Seacost Petroleum Prods., Inc., 97 F. Supp. 3d 87, 108 (E.D.N.Y. 2015) (“recommend[ing] [in
a case involving a claim for withdrawal liability] to Judge Spatt that, under the circumstances, a
40 percent reduction in Plaintiff's counsel's billed hours, from 39.55 to 23.73 is both reasonable
and warranted”); Bakery & Confectionery Union v. Mrs. Maxwell's Bakery, Inc., No. 21-CV-308-
RPK-SJB, 2022 WL 18107257, at *14 (E.D.N.Y. Dec. 6, 2022) (finding that 34.25 hours expended
in a similar case, though higher than average, was still reasonable). Atl. Steel Sols., LLC, 2022
WL 4642735, at *11 (finding Ms. Grancio’s 22.9 hours spent on ERISA default reasonable); IKNA
Constr., 2025 WL 447731, at *19 (finding 25.4 hours worked on an ERISA default case by Ms.
Grancio and another attorney reasonable); Gesualdi v. Interstate Masonry Corp., No. 12-CV-0383
(NGG) (VMS), 2014 WL 1311709, *13 (E.D.N.Y. March 25, 2014) (finding 23 hours spent on an
ERISA default reasonable and collecting cases). The undersigned accordingly recommends that
the hours expended are reasonable.
3. 	Total Recommended Attorneys’ Fees Award
The undersigned respectfully recommends the following awards for each firm member:
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Firm Member
Role
Recommen ded Hourly Rate
Hours
Recommended Award
Ms. Adrianna Grancio
Attorney
$330
9.2
$3,036.00
Ms. Alice Gaalswyk
Legal Assistant
$120
0.1
$12.00
Ms. Abigail Frankel
Legal Assistant
$120
2.2
$264.00
Ms. Eva Keating
Legal Assistant
$120
1.1
$132.00
See generally Dkt. No. 14-18 (calculating hours expended on the instant litigation).
In sum, the undersigned respectfully recommends awarding Plaintiff's counsel $3,444 in attorneys' fees.
E. Costs
Plaintiff seeks $555.36 in costs, including filing fees, service, research fees, and postage. See generally Dkt. No. 14 1 71; Dkt. No. 14-18 at 5. Plaintiff is entitled to recover "those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (quotations and citation omitted). Only those costs that are tied to "identifiable, out-of-pocket disbursements" are recoverable. Moon v. Gab Kwon, No. 99-CV-11810 (GEL), 2002 WL 31512816, at *8 (S.D.N.Y. Nov. 8, 2002) (quoting Kuzma v. I.R.S., 821 F.2d 930, 933-34 (2d Cir. 1987)). To recover these costs, Plaintiff must "submit adequate documentary evidence in support." Tacuri v. Nithin Constr. Co., No. 14- CV-2908 (CBA) (RER), 2015 WL 790060, at *14 (E.D.N.Y. Feb. 24, 2015).
Plaintiff seeks to recover (i) $405.00 for the ECF filing fee; (ii) $136.50 for the cost of service on Defendant; (iii) $10.44 for the cost of postage, and (iv) $3.42 for costs related to legal research. Dkt. No. 14-18 at 5. Plaintiff is entitled to these costs under ERISA, which mandates an award of "reasonable attorney's fees and costs of the action, to be paid by the defendant[.]" 29 U.S. Code § 1132(g)(2)(D); see Tri-C Mech. Inc., 2024 WL 4290823, at *14.
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Additionally, the Trust Agreement entitles Plaintiff to recover costs incurred in actions
involving withdrawal liability. Dkt. 14-12 at 32. Plaintiff is therefore entitled to reimbursement
of the $405 filing fee, as the docket confirms this payment. Dkt. No. 1. Plaintiff has supported
other costs incurred in this litigation by providing postage rates, a service invoice, and research
invoices. Dkt. 14-19. Although Plaintiff does not provide postage receipts, their contemporaneous
billing records indicate that pleadings were served on Defendant, through Salvia, their General
Agent, via mail. Dkt. No. 14-18 at 5. This is sufficient to support the postage costs. USA Roofing
Co. Corp., No. 22-CV-5053 (FB) (PK), 2023 WL 6318618, at *10 (E.D.N.Y. Sept. 12, 2023),
report and recommendation adopted, 2023 WL 6308085 (E.D.N.Y. Sept. 28, 2023); see Teamsters
Loc. 814 Welfare Fund v. Dahill Moving & Storage Co., 545 F. Supp. 2d 260, 269 (E.D.N.Y.
2008) (“Costs relating to filing fees, process servers, postage, and photocopying are ordinarily
recoverable
Accordingly, the undersigned respectfully recommends that Plaintiff be awarded costs in
the amount of $555.36.
VII. 	Conclusion
Accordingly, for the reasons set forth above, the undersigned respectfully recommends that
Plaintiff’s motion for default judgment be granted in part and denied in part, to wit, withdrawal
liability in the principal amount of $809,533; interest in the amount of $29,098.83 through July
15, 2025; liquidated damages in the amount of $161,906.60; attorneys’ fees in the amount of
$3,444; costs in the amount of $555.36; continued interest on the principal withdrawal liability of
$809,533 from July 16, 2025 through the date of payment at the monthly rate of 8%; and post-
judgment interest on the balance of the judgment amount at the statutory rate.
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A copy of this Report and Recommendation is being electronically served on counsel. This
Court directs Plaintiff’s counsel to serve a copy of this Report and Recommendation by overnight
mail and first-class mail to Defendant by November 4, 2025. Plaintiff shall file proof of service
by November 4, 2025.
Any objections to this Report and Recommendation must be filed within 14 days after
service of this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
See also Fed. R. Civ. P. 6(a) & (d) (addressing computation of days). Any requests for an extension
of time for filing objections must be directed to Judge Merle. Failure to file objections within this
period designating the particular issues to be reviewed waives the right to appeal the district court’s
order. 	See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); Wagner & Wagner, LLP v. Atkinson,
Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); Kotlyarsky
v. United States Dep’t of Just., No. 22-2750, 2023 WL 7648618 (2d Cir. Nov. 15, 2023); see also
Thomas v. Arn, 474 U.S. 140 (1985).
Dated: 	Brooklyn, New York
November 3, 2025 	SO ORDERED.
/s/ Joseph A. Marutollo
JOSEPH A. MARUTOLLO
United States Magistrate Judge
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