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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

SULLIVAN et al v. KHAN CONSTRUCTION, INC. et al

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Case Number: 
1:14-cv-06579 Search Pacer
ACE Group party(s): 
Opposing Party: 
Jeremiah Sullivan
Court Type: 
Federal
US District Court: 
Eastern District of New York
Date Filed: 
Nov 7 2014

Plaintiffs, by their attorneys, HOLM & O’HARA LLP, as and for their Complaint
against the Defendants, allege the following:
NATURE OF ACTION
1. This is an action arising under the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), 29 U.S.C. § 1001, et seq., the Labor Management
Relations Act (“LMRA”), 29 U.S.C. § 141, et seq.. and common law.
JURISDICTION AND VENUE
2. Jurisdiction over the causes of action alleged herein is conferred upon this
Court by 28 U.S.C. §§ 1331 and 1337; by 29 U.S.C. §§ 185(c), 1109(a), 1132(a)(2), 1132(a)(3),
1132(d), 1132(e)(1) and 1132(f).
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3. Venue is properly placed in the Eastern District of New York under 29
U.S.C. §§ 185(a) and 1132(e)(2) in that the subject plans are administered and maintain their
principal office in the County of Queens, New York, and Bricklayer and Allied Craftworkers
Local Union No. 1 has its principal place of business in the County of Queens, New York.
PARTIES
4. Plaintiffs, Pointers, Cleaners & Caulkers Welfare, Pension & Annuity
Funds and Bricklayers Joint Apprentice Training Funds (“PCC Funds”) are jointly trusteed
“multiemployer plans” established pursuant to a collective bargaining agreement and by trust
indentures. The PCC Funds are employee benefit plans within the meaning of 29 U.S.C. §§
1002(2), (3), and 1132(d)(1) and multiemployer plans within the meaning of 29 U.S.C. §§
1002(37) and 1145. The PCC Funds are the administrator of all of the ERISA Plans and the
Non-ERISA Plans (the “Plans”). Under the collective bargaining agreements, signatory
employers, including the defendant company, are required to remit the required contributions, as
well as summaries of their payroll records. The PCC Funds are authorized to maintain suit as an
independent legal entity under 29 U.S.C. § 1132(d)(1). The PCC Funds are administered and
maintain an office located at 66-05 Woodhaven Boulevard, Rego Park, New York 11374.
5. In addition, the PCC Funds collect assessments from certain employees
covered by the collective bargaining agreements who authorize their employers to deduct from
their wages union dues and assessments due to the union (“Union Amounts”).
6. The PCC Funds also collect, in accordance with the collective bargaining
agreements, contributions due to the following non-ERISA plans: the Labor Management
Relations Fund and the Promotion Fund (“non-ERISA Plans”). Together, the Union Amounts
and the amounts owed to the non-ERISA Plans are referred to as the “Non-ERISA
contributions.” The contributions to the ERISA Plans and the non-ERISA contributions are
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collectively referred to as “Contributions.”
7. Plaintiff, Bricklayers & Trowel Trades International Pension Fund (“IPF”)
by its employer and employee representatives and Trustees, James Boland, Henry Kramer,
Gerald O’Malley, Gerard Scarano, Tim Driscoll, Eugene George, Robert Hoover, Matthew
Aquiline, Gregory R. Hess, William McConnell, Fred Kinateder and John Trendell (hereinafter
the “International IPF Trustees”) is a multi-employer, labor-management trust fund, organized
and operated pursuant to various collective bargaining agreements in accordance with 29 U.S.C.
§ 186(c)(5). The IPF is an employee benefit plan within the meaning of 29 U.S.C. §§ 1002(2),
(3), and 1132(d)(1) and multiemployer plans within the meaning of 29 U.S.C. §§ 1002(37) and
1145. The Trustees of the IPF, in their respective capacities as fiduciaries, bring this action of,
and for the benefit of, the participants and beneficiaries of the IPF. The IPF is administered and
maintained at its office located at 620 F Street, NW, 9th Floor, Washington, DC 20004.
8. The IPF is also authorized to effect collections on behalf of the plaintiff
International Masonry Institute (“IMI”) pursuant to a written Assignment of Claims and the
Collection Procedures o f the Central Collection Unit o f the Bricklayers and Allied Craftworkers
(“Collection Procedures”).
9. Plaintiff, IMI, by its employer and employee representatives and Trustees,
Jim Allen, Matthew Aquiline, James Boland, Don Brown, Ted Champ, Bruce Dexter, Tim
Driscoll, Eugene George, Gregory Hess, Robert Hoover, Fred Kinateder, Mark King, Henry
Kramer, Ken Kudela, Dan Kwiatkowski, Tim Miller, William McConnell, Jim O’Connor,
Charles Raso, Mark Rose, Kevin Ryan, Gerard Scarano, Michael Schmerbeck, Joseph Speranza,
Jeremiah Sullivan, Jr., Richard Tolson, and John Trendell (hereinafter the “International IMI
Trustees”), is a multi-employer, labor-management trust fund, organized and operated pursuant
to various collective bargaining agreements in accordance with 29 U.S.C. § 186(c)(5). The IMI
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is an employee benefit plan within the meaning of 29 U.S.C. §§ 1002(2), (3), and 1132(d)(1) and
multiemployer plan within the meaning of 29 U.S.C. §§ 1002(37) and 1145. The Trustees of the
IMI, in their respective capacities as fiduciaries, bring this action on behalf of, and for the benefit
of, the beneficiaries of the IMI. The IMI is administered and maintained at its office located at
620 F Street, NW, 9th Floor, Washington, DC 20004.
10. Plaintiff Bricklayers and Allied Craftworkers Local Union No. 1,
B.A.C.I.U., AFL-CIO (“LOCAL 1”) is an association under the laws of the State of New York
and a labor organization within the meaning of 29 U.S.C. § 185 that represents employees in an
industry affecting commerce as defined in 29 U.S.C. § 142(1) and 29 U.S.C. § 1002(12).
LOCAL l ’s membership includes the pointing, cleaning and caulking trade and the bricklaying
trade. LOCAL 1 maintains offices located at 4 Court Square, Long Island City, New York
11101.
11. Plaintiff Jeremiah Sullivan is a Trustee of the PCC Funds and President of
LOCAL 1 and this lawsuit is brought in his capacity and in the Board of Trustees of the IPF
FUND’S and IMI FUND’S (collectively “INTERNATIONAL FUNDS”) capacity as fiduciaries
of their respective funds within the meaning of ERISA 29 U.S.C. §1002 (21).
12. Upon information and belief, defendant, Khan Construction, Inc.
(“KHAN”), was a domestic corporation organized under, and existing by virtue of, the laws of
the State of New York, with its offices and principal places of business located at 78 Avenue T,
Brooklyn, New York 11233.
13. Upon information and belief, KHAN was an “employer,” within the
meaning of 29 U.S.C. §§ 1002(5) and 1145 at all times relevant to this action, and is engaged in
the construction business which qualifies KHAN as an “employer engaged in an industry
affecting commerce,” within the meaning of 29 U.S.C. § 185.
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14. Upon information and belief, defendant, Mehdi Khan (“MEHDI”), a
natural person, has been, at all material times relevant to this action, an officer of KHAN and the
last known residence for MEHDI is 78 Avenue T, Brooklyn, New York 11223.
15. Upon information and belief, MEHDI was an “employer,” within the
meaning of 29 U.S.C. §§ 1002(5) and 1145 at all times relevant to this action, and is engaged in
the construction business which qualifies MEHDI as an “employer engaged in an industry
affecting commerce,” within the meaning of 29 U.S.C. § 185.
16. Upon information and belief, defendant MEHDI is a “fiduciary,” with
respect to the FUNDS, within the meaning of ERISA, 29 U.S.C. § 1002(21 )(A) and Article 3-A
of the New York Lien Law.
17. Upon information and belief, MEHDI exercised authority or control with
respect to the management or disposition of plan assets that should have been held in trust by
KHAN and remitted to the PCC Funds and INTERNATIONAL FUNDS (collectively,
“FUNDS”).
18. Upon information and belief, MEHDI exercised unauthorized dominion or
control with respect to the management or disposition of union dues and assessments
(collectively, “dues and assessments”) that should have been held in trust by KHAN and remitted
to LOCAL 1, in a manner that interfered with LOCAL l ’s legal title or superior right of
possession of said dues and assessments.
19. Upon information and belief, defendant John and/or Jane Doe Fiduciary
(“DOE Fiduciary”) is a fiduciary with respect to the FUNDS, within the meaning of ERISA, 29
U.S.C. § 1002(21)(A) and Article 3-A of the New York Lien Law.
20. Upon information and belief, DOE Fiduciary exercised authority or
control with respect to the management or disposition of plan assets that should have been held
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in trust by KHAN and remitted to the FUNDS.
21. Upon information and belief, DOE Fiduciary exercised unauthorized
dominion or control with respect to the management or disposition of dues and assessments that
should have been held in trust by KHAN and remitted to LOCAL 1, in a manner that interfered
with LOCAL 1 ’s legal title or superior right of possession of said dues and assessments.
22. Upon information and belief, defendant ANSU Construction, Inc.
(“ANSU”) was and is a corporation organized under, and existing by virtue of, the laws of the
state of New York with its office and principal place of business located at 40-47 72nd Street,
Woodside, NY 11377.
23. Upon information and belief, defendant Doe General Contractor (“DOE
Contractor”) was and is a corporation organized under, and existing by virtue of, the laws of the
state of New York.
24. Upon information and belief, at all relevant times herein, defendant
Westchester Fire Insurance Co. (“WESTCHESTER”) was and is an insurance company duly
authorized and licensed to issue insurance policies in the State of New York by the Insurance
Department of the State of New York with offices and principal places of business at 436 Walnut
Street, Philadelphia, PA 19105; 140 Broadway, New York, NY 10005; and 10 Exchange Place,
13th Floor, Jersey City, NJ 07302.
25. Upon information and belief, at all relevant times herein, defendant Doe
Surety Company (“DOE Surety”) was and is an insurance company duly authorized and licensed
to issue insurance policies in the State of New York by the Insurance Department of the State of
New York.
PRELIMINARY STATEMENT
26. MEHDI, on behalf of himself and KHAN, executed the Collective
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Bargaining Memorandum of Agreement (“MOA”) between LOCAL 1 and the Building
Restoration Contractors Association (“BRCA”) for the period July 1, 2012 through June 30,
2015 (“’12 MOA”).
27. MEHDI, on behalf of himself and KHAN, executed the Collective
Bargaining Agreement between LOCAL 1 and the BRCA for July 1,2012 through June 30,2015
(the “’12 CBA”).
28. The ’12 MOA and the ’ 12 CBA state that the individual signing on behalf
of the employer “affixes his signature in a dual capacity both on behalf of himself and on behalf
of the Employer and represents by his signature his authority to bind himself, the Employer and
the principals and members thereof. The person signing on behalf of the Employer also agrees to
be personally bound by and to assume all obligations of the Employer provided for in the
Agreement.”
29. On the signature pages of the ’12 CBA and the ’12 MOA, MEHDI signed
once as the officer of KHAN, and once as an individual.
30. On the signature page of the ’ 12 CBA and the ’ 12 MOA, MEHDI included
KHAN’s corporate address, telephone number, and federal identification number.
31. On the signature page of the ’12 CBA, MEHDI included his individual
address and social security number.
32. On the signature page of the ’12 MOA, MEHDI included his individual
address and individual telephone number.
33. MEHDI, having executed the ’12 MOA and the ’12 CBA, is bound
personally for all liability arising under the ’12 MOA and ’12 CBA (collectively,
“AGREEMENT”).
34. At all times relevant to the allegations of this Complaint, KHAN and
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MEHDI (collectively “EMPLOYER”) and LOCAL 1 have been parties to and bound by the
AGREEMENT, which governs the rates of pay and the working conditions of individuals
employed by KHAN within the jurisdiction of LOCAL 1.
35. KHAN employed individuals to perform work that is covered under the
AGREEMENT.
36. KHAN submitted some monthly payroll remittance reports to the PCC
Funds.
37. The AGREEMENT, including, but not limited to Articles I, IV, V, VI and
VII, defines: (a) the employees covered by the AGREEMENT; and (b) the work covered by the
AGREEMENT.
38. Article XXIV of the AGREEMENT binds EMPLOYER, whether as an
individual, partner, or employee of a partnership or as an officer, director, stockholder, or
employee of a corporation, to the terms of the AGREEMENT whether doing business as an
individual under another trade name, or as a partner or employee of another partnership, or as an
officer, director, stockholder, or employee of another corporation, or as a joint-venturer.
39. Article XX, Sections 2 and 4(i) of the AGREEMENT binds to the
AGREEMENT any other entity formed or acquired by EMPLOYER or any entity in which
EMPLOYER has an interest.
40. Articles XIV, Section 1, XV, Section 1, and XVI, Section 1 of the
AGREEMENT require EMPLOYER to pay wage and wage supplements in the form of fringe
benefit contributions to the FUNDS for all employees employed by KHAN and covered by the
AGREEMENT from the first day of employment forward at the rates specified in Articles XIII
and XVIII of said AGREEMENT.
41. Articles XIV and XVI of the AGREEMENT require EMPLOYER to
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deduct and remit to LOCAL 1 a portion of its employees’ wages in the form of dues and various
assessments for all employees performing work covered by the AGREEMENT at rates specified
in said AGREEMENT.
42. Article XV, Section 5 of the AGREEMENT requires EMPLOYER to be
bound by the written terms of the FUNDS’ Trust Agreements.
43. Article XV, Section 4 of the AGREEMENT requires EMPLOYER to
submit monthly payroll remittance reports regardless of whether the employer performed work
covered by the AGREEMENT for the month.
44. Article XV, Section 7 of the AGREEMENT requires EMPLOYER: 1) to
turn over all books and records requested by the FUNDS’ auditors pursuant to a periodic review
and audit designed to ensure that all contributions owed pursuant to the AGREEMENT are paid
in full; and 2) to pay the costs of the audit if EMPLOYER is found delinquent.
45. Article XV, Section 7 of the AGREEMENT requires EMPLOYER to
retain for a period of six (6) years payroll and related records necessary for a proper audit.
46. In the event EMPLOYER refuses to turn over the books necessary to
conduct a proper audit, Article XV, Section 7 paragraph (b) of the AGREEMENT permits the
Trustees to determine that EMPLOYER’S monthly hours subject to contributions for each month
of the audit period are the highest number of hours for any month during the twelve (12)
preceding months audited or during the last twelve (12) months for which reports were filed,
whichever monthly number of hours is greater.
47. Article XV, Section 7 of the AGREEMENT gives the FUNDS the right to
seek a court order permanently enjoining EMPLOYER and their agents from failing to submit
monthly payroll remittance reports, pay the required contributions, and cooperate in an audit.
Further, EMPLOYER agrees not to raise any defense or counterclaim to the FUNDS’ application
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for such order.
48. Article XV, Section 7 of the AGREEMENT entitles the FUNDS to simple
interest at a rate of not less than ten percent (10%) per annum on all contributions owed by
EMPLOYER.
49. Article XV, Section 7 of the AGREEMENT provides that the FUNDS are
entitled to liquidated damages of twenty percent (20%), interest, costs, and attorneys’ fees
pursuant to the civil enforcement provisions of ERISA.
50. Since on or about July 1, 2012 to date, KHAN has failed to submit full
payment of fringe benefit contributions to the FUNDS, and dues and assessments to LOCAL 1
for employees performing work covered by the AGREEMENT.
Labor and Material Payment Bond for PS 2010 PROJECT
51. Upon information and belief, ANSU and the New York City School
Construction Authority (“SCA”) entered into an agreement to perform work at P.S. 201 located
in Queens, New York (“PS 201Q”).
52. Upon information and belief, ANSU entered into a subcontract agreement
with KHAN to perform construction work on the PS 201Q project (“PS 201Q Sub-Contract”).
53. On behalf of ANSU, WESTCHESTER issued a payment bond (no.
K08653458) to the SCA on June 13, 2013, through Gina Grandville, Attomey-in-Fact, (“PS
201Q BOND”), for $3.690.000.00. with respect to the PS 201Q project.
54. The PS 201Q BOND defines ANSU as the “Principal” and
WESTCHESTER as the “Surety.”
55. The PS 201Q BOND states a claimant is defined as one having a direct
contract with the Principal or with a Subcontractor of the Principal for labor, material, or both,
used or reasonably required for use in the performance of the contract, labor and material being
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construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or
rental of equipment directly applicable to the contract.
56. The PS 201Q BOND states that the obligations under the bond remain in
full force and effect unless the Principal promptly makes payment to all claimants for all labor
and material used or reasonably required for use in the performance of the contract.
57. The terms of the AGREEMENT bind KHAN to LOCAL 1 and the
FUNDS and govern all amounts justly due to the employees of KHAN performing work within
the terms of the AGREEMENT.
58. Pointing, cleaning, and caulking work on the PS 20IQ project was
performed by employees of KHAN who are members of LOCAL 1 and/or participants in the
FUNDS.
59. WESTCHESTER is obligated under the PS 201Q BOND, NY State
Finance Law §137, NY Labor Law §220-g and the common law to pay “such sum or sums as
may be justly due” under the AGREEMENT to employees represented by LOCAL 1 and/or
participants in the FUNDS for work performed by said employees under the PS 201Q Sub-
Contract.
60. Under the terms of the PS 201Q BOND, WESTCHESTER and ANSU are
jointly and severally liable for all claims under the PS 201Q BOND. Further, upon information
and belief, ANSU agreed to indemnify WESTCHESTER for all claims against the PS 20IQ
BOND.
61. Pursuant to the PS 20IQ BOND, WESTCHESTER and ANSU are
required to pay all amounts due the FUNDS and LOCAL 1 to the extent KHAN defaults in its
obligation to pay wages and wage supplements for LOCAL 1 members and/or FUNDS’
participants employed by KHAN who performed work at the PS 20IQ project.
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Labor and Material Payment Bond for PS 197K PROJECT
62. Upon information and belief, ANSU and the SCA entered into an
agreement to perform work at P.S. 197 located in Brooklyn, New York (“PS 197K”).
63. Upon information and belief, ANSU entered into a subcontract agreement
with KHAN to perform construction work on the PS 197K project (“PS 197K Sub-Contract”).
64. On behalf of ANSU, WESTCHESTER issued a payment bond (no.
K08653379) to the SCA on March 20, 2013, through Gina Grandville, Attomey-in-Fact, (“PS
197K BOND”), for $1.558.000.00. with respect to the PS 197K project.
65. The PS 197K BOND defines ANSU as the “Principal” and
WESTCHESTER as the “Surety.”
66. The PS 197K BOND states a claimant is defined as one having a direct
contract with the Principal or with a Subcontractor of the Principal for labor, material, or both,
used or reasonably required for use in the performance of the contract, labor and material being
construed to include that part of water, gas, power, light, heat, oil, gasoline, telephone service or
rental of equipment directly applicable to the contract.
67. The PS 197K BOND states that the obligations under the bond remain in
full force and effect unless the Principal promptly makes payment to all claimants for all labor
and material used or reasonably required for use in the performance of the contract.
68. The terms of the AGREEMENT bind KHAN to LOCAL 1 and the
FUNDS and govern all amounts justly due to the employees of KHAN performing work within
the terms of the AGREEMENT.
69. Pointing, cleaning, and caulking work on the PS 197K project was
performed by employees of KHAN who are members of LOCAL 1 and/or participants in the
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FUNDS.
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70. WESTCHESTER is obligated under the PS 197K BOND, NY State
Finance Law §137, NY Labor Law §220-g and the common law to pay “such sum or sums as
may be justly due” under the AGREEMENT to employees represented by LOCAL 1 and/or
participants in the FUNDS for work performed by said employees under the PS 197K Sub-
Contract.
71. Under the terms of the PS 197K BOND, WESTCHESTER and ANSU are
jointly and severally liable for all claims under the PS 197K BOND. Further, upon information
and belief, ANSU agreed to indemnify WESTCHESTER for all claims against the PS 197K
BOND.
72. Pursuant to the PS 197K BOND, WESTCHESTER and ANSU are
required to pay all amounts due the FUNDS and LOCAL 1 to the extent KHAN defaults in its
obligation to pay wages and wage supplements for LOCAL 1 members and/or FUNDS’
participants employed by KHAN who performed work at the PS 197K project.
Labor and Material Payment Bond for FORD HAM UNIVERSITY PROJECT
73. Upon information and belief, DOE Contractor and Fordham University
entered into an agreement to perform work at Fordham University’s McMahon Hall located at
155 West 60th Street, New York, NY 11023 (“FORDHAM”).
74. Upon information and belief, DOE Contractor entered into a subcontract
agreement with KHAN to perform construction work on the FORDHAM project (“FORDHAM
Sub-Contract”).
75. Upon information and belief, on behalf of DOE Contractor, DOE Surety
issued a payment bond to Fordham University with respect to the FORDHAM project
(“FORDHAM BOND”).
76. Upon information and belief, the FORDHAM BOND defines DOE
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Contractor as the “Principal” and DOE Surety as the “Surety.”
77. Upon information and belief, the bond remains in full force and effect
unless the Principal promptly pays all monies due to all persons furnishing labor or materials to it
or its subcontractors in the prosecution of work provided for under the terms of the FORDHAM
BOND.
78. Upon information and belief, the FORDHAM BOND incorporates the
language of Section 137 of the New York State Finance Law, which provides that all persons
who have performed labor, rendered services or furnished materials and supplies, as aforesaid,
shall have a direct right of action against the Principal and his, its, or their successors and
assigns, the Surety herein, or against either or both or any of them and their successors and
assigns. Such persons may sue in their own name, and may prosecute the suit to judgment and
execution without the necessity of joining with any other person as party plaintiff.
79. The terms of the AGREEMENT bind KHAN to LOCAL 1 and the
FUNDS and govern all amounts justly due to the employees of KHAN performing work within
the terms of the AGREEMENT.
80. Pointing, cleaning, and caulking work on the FORDHAM project was
performed by employees of KHAN who are members of LOCAL 1 and/or participants in the
FUNDS.
81. Upon information and belief, DOE Surety is obligated under the
FORDHAM BOND, NY State Finance Law §137, NY Labor Law §220-g and the common law
to pay all monies due to all persons furnishing labor to DOE Contractor or its subcontractors in
the prosecution of work provided for in the FORDHAM Sub-Contract.
82. Upon information and belief, under the terms of the FORDHAM BOND,
DOE Surety and DOE Contractor are jointly and severally liable for all claims under the
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FORDHAM BOND. Further, upon information and belief, DOE Contractor agreed to indemnify
DOE Surety for all claims against the FORDHAM BOND.
83. Upon information and belief, pursuant to the FORDHAM BOND, DOE
Surety and DOE Contractor are required to pay all amounts due the FUNDS and LOCAL 1 to
the extent KHAN defaults in its obligation to pay wages and wage supplements for LOCAL 1
members and/or FUNDS’ participants employed by KHAN who performed work at the
FORDHAM project.
Notification to the EMPLOYER
84. At the direction of the Trustees, the FUNDS’ auditor, Kobgo Associates,
Inc. (“Kobgo”), performed an audit examination of KHAN for the period July 1, 2012 through
July 31, 2014.
85. Based on a review of shop steward reports and employer payroll records,
Kobgo issued an audit report dated November 4, 2014 (“Audit”), which reported a delinquency
due to PLAINTIFFS by KHAN in an amount not less than $117,295.25 for the period July 1,
2012 through July 31, 2014. The projects listed in the audit are: FORDHAM ($31,542.95), I.S.
73 located in Queens, New York (“IS 73Q”) ($2,182.28), I.S. 77 located in Queens, New York
(“IS 77q») ($203.84), PS 197K ($10,704.60), PS 20IQ ($67,999.91), P.S. 222 located in
Brooklyn, New York (“PS 222K”) ($4,640.22), and P.S. 17 located in Brooklyn, New York (“PS
17K”) ($21.45) projects.
86. By certified letter dated November 5, 2014 with return receipt requested,
H&O informed WESTCHESTER, KHAN, and ANSU that contributions, dues and assessments
are due and owing to PLAINTIFFS for the PS 201Q and PS 197K projects.
87. To date, KHAN owes the FUNDS unpaid contributions, dues and
assessments in an amount not less than $117,295.25 for the period July 1, 2012 through July 31,
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2014. The amount of contributions owed to the Funds is $108,937.44 and the amount of dues
and assessments owed to Local 1 is $8,357.81.
Violations of the AGREEMENT. ERISA, Common Law, and New York State Lien Law
88. Pursuant to the AGREEMENT, ERISA and common law, the FUNDS are
entitled to an Order requiring EMPLOYER to produce a complete set of books and records for
review by the FUNDS’ auditor for the period July 1, 2012 to date.
89. In violation of the AGREEMENT and ERISA, EMPLOYER has failed to
remit delinquent contributions to the FUNDS for the period July 1, 2012 to date, in an amount
estimated to be not less than $108,937.44, based upon the Audit for the period July 1, 2012
through July 31,2014.
90. Pursuant to 29 U.S.C. § 1132(g)(2) and the AGREEMENT, the FUNDS
are entitled to recover: (a) all remaining delinquent contributions for the period July 1, 2012 to
date and continuing throughout the pendency of this action, in an amount not less than
$108,937.44; (b) liquidated damages of twenty percent (20%) on all delinquent contributions; (c)
interest at the rate of ten percent (10%) per annum on all delinquent contributions (as defined in
the AGREEMENT); (d) audit costs; (e) reasonable attorney’s fees, costs, and expenses; (f) along
with such other legal and equitable relief as the Court deems appropriate.
91. In violation of the AGREEMENT, EMPLOYER failed to remit dues and
assessments to LOCAL 1 for the period July 1, 2012 to date and continuing throughout the
pendency of this action, in an amount not less than $8,357.81.
92. Pursuant to the AGREEMENT and New York C.P.L.R. 5001 and 5004,
LOCAL 1 is entitled to recover all delinquent dues and assessments, for the period July 1, 2012
to date and continuing throughout the pendency of this action, in an amount not less than
$8,357.81, and prejudgment interest at nine percent (9%) per annum from the date due to the
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date paid.
Fiduciary Claims against MEHDI and DOE Fiduciary
93. New York Lien Law, Article 3-A, Section 70 imposes a trust upon all
funds dedicated to an improvement of a parcel of real property.
94. New York Lien Law, Article 3-A also imposes a fiduciary duty on
MEHDI and/or DOE Fiduciary, to distribute the proceeds of the trust in accordance with the
priority scheme set forth therein.
95. Article XV, Section 7(e) of the AGREEMENT binds, personally, the
officers, partners, directors, stockholders and/or employees of KHAN who are vested with
authority and control over the submission of reports and/or the payments of contributions to the
FUNDS, to submit the required reports and to pay the required contributions to the FUNDS.
96. Article XV, Section 5 of the AGREEMENT binds EMPLOYER directly
to the provisions of the Agreement and Declaration of Trust for each of the FUNDS (Welfare,
Pension and Annuity, individually), as though the Employer had actually signed the individual
documents, and further binds the Employer to all actions taken by the Trustees of each of the
FUNDS pursuant to said Agreements and Declarations of Trust, as amended, and their respective
Plans, as amended.
97. The Agreement and Declaration of Trust for each of the FUNDS provides,
in relevant part, under Article II, Section 2 that: “The assets of the Trust Fund shall not revert or
be used for or inure to the benefit of any of the Employers.. . . ”
98. The Agreement and Declaration of Trust for each of the FUNDS provides,
in relevant part, under Article III, Section 3 that: “[a]ll contributions required from an Employer
shall, after their due date and until their payment over in full by the Employer to the Trust Fund,
be deemed to constitute a trust fund in the possession of such Employer; and said Employer shall
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be responsible and liable therefore as a fiduciary.”
99. Upon information and belief, MEHDI and/or DOE Fiduciary, exercised
dominion and control respecting the management or disposition of the FUNDS’ plan assets (i.e.
contributions) by signing checks on behalf of EMPLOYER and submitted them to the FUNDS.
100. Upon information and belief, MEHDI and/or DOE Fiduciary, diverted
contributions due the FUNDS, to other entities and individuals, in order to avoid their fiduciary
obligations.
101. In violation of the AGREEMENT and ERISA, MEHDI and/or DOE
Fiduciary, failed to remit all contributions for the period July 1, 2012 to date and continuing
throughout the pendency of this action in an amount not less than $108,937.44.
102. Pursuant to 29 U.S.C. § 1109(a) and the AGREEMENT, the FUNDS are
entitled to recover from MEHDI and/or DOE Fiduciary, the following: (a) all delinquent
contributions found due and owing from July 1, 2012 to date and continuing throughout the
pendency of this action in an amount not less than $108,937.44; (b) interest at ten percent (10%)
per annum on all delinquent contributions (as defined in the AGREEMENT); (c) audit costs; and
(d) reasonable attorney’s fees, costs and expenses.
103. Pursuant to Article XIV of the AGREEMENT, EMPLOYER must deduct
union dues and assessments from employees’ wages and was required to remit union dues and
assessments on a monthly basis to LOCAL 1 for each member of LOCAL 1 in the employ of
KHAN.
104. By signing checks on behalf of KHAN, MEHDI and/or DOE Fiduciary
exercised dominion and control respecting the management or disposition of union dues and
assessments that should have been held in trust by EMPLOYER and remitted to LOCAL 1.
105. MEHDI and/or DOE Fiduciary failed to remit union dues and assessments
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due and owing to LOCAL 1 for employees of KHAN for July 1, 2012 to date and continuing
throughout the pendency of this action in an amount not less than $8,357.81.
106. Upon information and belief, MEHDI and/or DOE Fiduciary diverted dues
and assessments due to LOCAL 1 to other entities and/or individuals in order to avoid their
fiduciary obligations.
107. MEHDI and/or DOE Fiduciary interfered with plaintiff LOCAL l ’s right
to possess and control those dues and assessments under common law and Article 3-A of the
New York Lien Law.
108. Pursuant to common law and Article 3-A of the New York Lien Law,
LOCAL 1 is entitled to recover from MEHDI and/or DOE Fiduciary the union dues and
assessments for July 1, 2012 to date and continuing throughout the pendency of this action in an
amount not less than $8,357.81.
Injunctive Relief
109. EMPLOYER’S failure to abide by the AGREEMENT will result in the
FUNDS being required to deny the employee-beneficiaries for whom required contributions
have not been made the benefits provided thereunder, thereby causing to such employeebeneficiaries
substantial and irreparable damage.
110. Further, the FUNDS will be required to provide to employees of
EMPLOYER benefits provided for under the AGREEMENT, notwithstanding EMPLOYER’S
failure to make required contributions, thereby reducing the corpus of such funds administered
by the FUNDS and endangering the rights of employee-beneficiaries thereunder on whose behalf
contributions are being made, all to their substantial and irreparable injury.
111. The FUNDS are without an adequate remedy at law and the employeebeneficiaries
of the FUNDS and the members of LOCAL 1 will suffer immediate, continuing,
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and irreparable injury, loss, and damage unless EMPLOYER is ordered to perform specifically
all of their obligations to the FUNDS and to LOCAL 1 under the terms of the AGREEMENT
and are restrained from continuing their refusal to perform.
AS AND FOR PLAINTIFF FUNDS’ FIRST CLAIM
FOR RELIEF AGAINST EMPLOYER
112. Plaintiffs FUNDS repeat and reallege paragraphs “1” through “111”
hereof with the same force and effect as if such were fully set forth herein.
113. EMPLOYER’S failure to submit contributions due and owing the FUNDS,
as set forth in paragraphs “84” through “87” herein, constitutes a violation of 29 U.S.C. §§ 1132
and 1145.
114. Accordingly, pursuant to 29 U.S.C. § 1132(g)(2), the FUNDS are entitled
to recover the following: (a) all unpaid contributions found due and owing for the period July 1,
2012 to date, and continuing throughout the pendency of this action, in an amount not less than
$108,937.44; (b) liquidated damages in the amount of twenty percent (20%) on all unpaid
contributions; (c) simple interest at ten percent (10%) per annum on all unpaid contributions (as
defined in the AGREEMENT); (d) audit costs; (e) reasonable attorney’s fees, expenses and costs
of the action; and (f) such other legal and equitable relief as the Court deems appropriate.
AS AND FOR PLAINTIFF FUNDS’ SECOND CLAIM
FOR RELIEF AGAINST EMPLOYER
115. Plaintiff FUND S repeat and reallege paragraphs “ 1 ” through “114” hereof
with the same force and effect as if such were set forth here in full.
116. EMPLOYER’S failure to submit contributions due and owing to the
FUNDS for the period July 1, 2012 to date, in an amount not less than $108,937.44, as set forth
in paragraphs “84” through “87” herein, constitutes a violation of the AGREEMENT.
117. Accordingly, the AGREEMENT entitles the FUNDS to receive from
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EMPLOYER the following: a) all unpaid contributions for the period July 1, 2012 to date and
continuing throughout the pendency of this action, in an amount not less than $108,937.44; b)
audit costs; c) full damages pursuant to ERISA, including liquidated damages of twenty percent
(20%), interest at ten percent (10%) per annum (as defined in the AGREEMENT), reasonable
attorney’s fees, expenses and costs of the action.
AS AND FOR PLAINTIFF FUNDS’ THIRD CLAIM
FOR RELIEF AGAINST EMPLOYER
118. Plaintiff FUNDS repeat and reallege each and every allegation contained
in paragraphs “1” through “117” hereof with the same force and effect as if such were fully set
forth herein.
119. The EMPLOYER’S failure to provide a complete set of books and records
for the audit as set forth in paragraphs “84” through “87” herein, constitutes a violation of the
AGREEMENT and 29 U.S.C. §§ 1132 and 1145.
120. Accordingly, the FUNDS, pursuant to the common law and the
AGREEMENT, are entitled to estimate the total contributions due and owing, and pursuant to 29
U.S.C. § 1132 are entitled to pre-judgment interest on the estimated contributions owed,
liquidated damages of twenty percent (20%) on the estimated contributions, audit costs,
reasonable attorney’s fees, costs, and expenses, along with such other legal and equitable relief
as the court deems appropriate.
AS AND FOR PLAINTIFF LOCAL l ’S FIRST CLAIM
FOR RELIEF AGAINST EMPLOYER
121. Plaintiff LOCAL 1 repeats and realleges each and every allegation
contained in paragraphs “1” through “120” hereof with the same force and effect as if fully set
forth herein.
122. EMPLOYER’S failure to remit dues and assessments to LOCAL 1 for the
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period July 1, 2012 to date, in an amount not less than $8,357.81, as set forth in paragraphs “84”
through “87” herein, constitutes a violation of Article XIV of the AGREEMENT.
123. Accordingly, EMPLOYER is liable to LOCAL 1 for the following: (a)
unremitted dues and assessments for the period July 1, 2012 to date, and continuing throughout
the pendency of this action, in an amount not less than $8,357.81; and (b) accrued prejudgment
interest of nine percent (9%) per annum on said dues and assessments from the due date to the
date of payment.
AS AND FOR THE PLAINTIFF FUNDS’ CLAIM
FOR RELIEF AGAINST DEFENDANT MEHDI AS A FIDUCIARY
124. Plaintiff FUNDS repeat and reallege each and every allegation contained
in paragraphs “1” through “123” of this Complaint as if fully set forth herein.
125. EMPLOYER is required to make contributions to the FUNDS.
126. To the extent that MEHDI signed checks on behalf of EMPLOYER,
MEHDI constitutes a fiduciary under ERISA, 29 U.S.C. §1002(21)(A), with respect to the
FUNDS, as he exercised authority or control respecting the management or disposition of the
FUNDS’ assets on behalf of EMPLOYER.
127. Similarly, MEHDI is a fiduciary under New York Lien Law, Article 3-A,
Section 70, to the extent that he controls/controlled the proceeds received by KHAN for work
performed in connection with an improvement of real property.
128. MEHDI’s failure to submit contributions due and owing from
EMPLOYER to the FUNDS, as set forth in paragraphs “84” through “87” herein, constitutes a
violation of ERISA fiduciary duties, 29 U.S.C. § 1104, and the fiduciary duties imposed by New
York Lien Law, Article 3-A.
129. Pursuant to ERISA, 29 U.S.C. § 1109(a), MEHDI is personally liable to
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make good any losses to the FUNDS resulting from each such breach and to restore any profits
which would have been made through use of assets of the FUNDS.
130. Accordingly, pursuant to 29 U.S.C. §§ 1109 and 1132(g)(1), the FUNDS
are entitled to recover from MEHDI personally: (a) all of EMPLOYER’S unpaid contributions
for the period July 1, 2012 to date, and continuing through the pendency of this action, in an
amount not less than $108,937.44; (b) accrued prejudgment interest of ten percent (10%) per
annum on said unpaid contributions (as defined in the AGREEMENT); (c) audit costs; (d)
reasonable attorney’s fees, expenses and the cost of the action; and (e) such other legal and
equitable relief as the Court deems appropriate.
AS AND FOR THE PLAINTIFF LOCAL l ’S CLAIM
FOR RELIEF AGAINST DEFENDANT MEHDI AS A FIDUCIARY
131. Plaintiff LOCAL 1 repeats and realleges each and every allegation
contained in paragraphs “1” through “130” hereof with the same force and effect as if fully set
forth herein.
132. In violation of the AGREEMENT, MEHDI failed to remit dues and
assessments to LOCAL 1 for members employed by EMPLOYER for the period July 1, 2012 to
date, in an amount not less than $8,357.81, as set forth in paragraphs “84” through “87” herein.
133. Pursuant to Article XIV, Section 1(a) of the AGREEMENT, EMPLOYER
deducted union dues and assessments from employees’ wages and was required to remit union
dues and assessments on a monthly basis to LOCAL 1 for each member of LOCAL 1 in the
employ of EMPLOYER.
134. MEHDI exercised dominion and control respecting the management or
disposition of union dues and assessments by signing checks on behalf of EMPLOYER.
135. MEHDI was obligated to hold dues and assessments in trust and remit
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them to LOCAL 1.
136. MEHDI interfered with plaintiff LOCAL l ’s right to possess and control
those dues and assessments.
137. Pursuant to common law, MEHDI is personally liable to make good any
losses to LOCAL 1 from any breach of his duty to remit dues and assessments due and owing
LOCAL 1.
138. Accordingly, pursuant to common law, LOCAL 1 is entitled to recover
from MEHDI personally: (a) all unpaid dues and assessments found due and owing for the
period July 1, 2012 and continuing throughout the pendency of this action, in an amount not less
than $8,357.81; and (b) prejudgment interest on said dues and assessments from the date the
cause of action accrued.
AS AND FOR THE PLAINTIFF FUNDS’ CLAIM
FOR RELIEF AGAINST DEFENDANT DOE AS A FIDUCIARY
139. Plaintiff FUNDS repeat and reallege each and every allegation contained
in paragraphs “1” through “138” of this Complaint as if fully set forth herein.
140. EMPLOYER is required to make contributions to the FUNDS.
141. To the extent that DOE signed checks on behalf of EMPLOYER, DOE
constitutes a fiduciary under ERISA, 29 U.S.C. §1002(21)(A), with respect to the FUNDS, as he
exercised authority or control respecting the management or disposition of the FUNDS’ assets on
behalf of EMPLOYER.
142. Similarly, DOE is a fiduciary under New York Lien Law, Article 3-A,
Section 70, to the extent that he controls/controlled the proceeds received by KHAN for work
performed in connection with an improvement of real property.
143. DOE’s failure to submit contributions due and owing from EMPLOYER
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to the FUNDS, as set forth in paragraphs “84” through “87” herein, constitutes a violation of
ERISA fiduciary duties, 29 U.S.C. § 1104, and the fiduciary duties imposed by New York Lien
Law, Article 3-A.
144. Pursuant to ERISA, 29 U.S.C. § 1109(a), DOE is personally liable to
make good any losses to the FUNDS resulting from each such breach and to restore any profits
which would have been made through use of assets of the FUNDS.
145. Accordingly, pursuant to 29 U.S.C. §§ 1109 and 1132(g)(1), the FUNDS
are entitled to recover from DOE personally: (a) all of EMPLOYER’S unpaid contributions for
the period July 1, 2012 to date, and continuing through the pendency of this action, in an amount
not less than $108,937.44; (b) accrued prejudgment interest of ten percent (10%) per annum on
said unpaid contributions (as defined in the AGREEMENT); (c) audit costs; (d) reasonable
attorney’s fees, expenses and the cost of the action; and (e) such other legal and equitable relief
as the Court deems appropriate.
AS AND FOR THE PLAINTIFF LOCAL l ’S CLAIM
FOR RELIEF AGAINST DEFENDANT DOE AS A FIDUCIARY
146. Plaintiff- LOCAL 1 repeats and realleges each and every allegation
contained in paragraphs “1” through “145” hereof with the same force and effect as if fully set
forth herein.
147. In violation of the AGREEMENT, DOE failed to remit dues and
assessments to LOCAL 1 for members employed by EMPLOYER for the period July 1, 2012 to
date, in an amount not less than $8,357.81, as set forth in paragraphs “84” through “87” herein.
148. Pursuant to Article XIV, Section 1(a) of the AGREEMENT, EMPLOYER
deducted union dues and assessments from employees’ wages and was required to remit union
dues and assessments on a monthly basis to LOCAL 1 for each member of LOCAL 1 in the
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employ of EMPLOYER.
149. DOE exercised dominion and control respecting the management or
disposition of union dues and assessments by signing checks on behalf of EMPLOYER.
150. DOE was obligated to hold dues and assessments in trust and remit them
to LOCAL 1.
151. DOE interfered with plaintiff LOCAL l ’s right to possess and control
those dues and assessments.
152. Pursuant to common law, DOE is personally liable to make good any
losses to LOCAL 1 from any breach of his duty to remit dues and assessments due and owing
LOCAL 1.
153. Accordingly, pursuant to common law, LOCAL 1 is entitled to recover
from DOE personally: (a) all unpaid dues and assessments found due and owing for the period
July 1, 2012 and continuing throughout the pendency of this action, in an amount not less than
$8,357.81; and (b) prejudgment interest on said dues and assessments from the date the cause of
action accrued.
AS AND FOR PLAINTIFF FUNDS’ AND PLAINTIFF LOCAL l ’S
FIRST JOINT CLAIM FOR RELIEF AGAINST EMPLOYER
154. Plaintiff FUNDS and Plaintiff LOCAL 1 repeat and reallege each and
every allegation contained in paragraphs “1” through “153” hereof with the same force and effect
as if fully set forth herein.
155. As described in paragraphs “84” through “87” herein, EMPLOYER has
failed to do the following, thereby breaching its obligations under ERISA and common law: a)
timely pay fringe benefit contributions to the FUNDS; and b) submit dues and assessments to
LOCAL 1. EMPLOYER’S conduct demonstrates a significant likelihood that it will continue to
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breach its obligations under ERISA and common law.
156. Plaintiffs FUNDS and LOCAL 1 have no adequate remedy at law to
ensure that EMPLOYER will adhere to its obligations under ERISA and common law.
157. Participants of the FUNDS and members of LOCAL 1 will suffer
immediate and irreparable injury unless EMPLOYER, its officers, agents, servants, employees
and all persons in active concert or participation with it are enjoined from failing to pay the
required contributions and dues and assessments pursuant to the AGREEMENT.
158. Accordingly, plaintiffs FUNDS and LOCAL 1 request that this Court
enjoin permanently EMPLOYER, its officers, agents, servants, employees and all persons in
active concert or participation with it from failing to do the following as required by the
AGREEMENT: a) pay contributions timely to the FUNDS; and b) pay dues and assessments
timely to LOCAL 1. Plaintiffs are entitled to such relief pursuant to the ERISA and common
law.
AS AND FOR PLAINTIFF FUNDS’ AND LOCAL I S FIRST
JOINT SUPPLEMENTAL CLAIM FOR RELIEF
AGAINST DEFENDANT ANSU FOR THE
PS 2010 and PS 197K PROJECTS
159. Plaintiffs FUNDS and LOCAL 1 repeat and reallege each and every
allegation contained in paragraphs “1” through “158” hereof with the same force and effect as if
such were fully set forth herein.
160. Plaintiffs FUNDS’ and LOCAL l ’s joint supplemental claim for relief
against ANSU is a state law claim based on the same underlying facts and circumstances as the
ERISA claim against KHAN contained herein.
161. Upon information and belief, at all times herein mentioned, defendant
ANSU was the general contractor for work performed at the PS 201Q and PS 197K projects,
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whereby ANSU entered into contracts with the SCA and agreed to furnish labor and material for
construction on the PS 201Q and PS 197K projects, in accordance with the SCA’s requirements
and specifications.
162. Upon information and belief, WESTCHESTER was, at all times herein
mentioned, the surety for the PS 201Q and PS 197K projects pursuant to the SCA’s requirements
and specifications, and furnished labor and material payment bonds to ANSU covering the labor
and materials to be furnished for work performed and to be performed at the PS 201Q and PS
197K projects.
163. Under the PS 201Q BOND and the PS 197K BOND (collectively
“WESTCHESTER BONDS”), defendants WESTCHESTER and ANSU are jointly and severally
liable for all payments to all persons having a direct relationship with KHAN, a subcontractor of
ANSU, for labor, material and/or both to be furnished for work performed and to be performed at
the PS 201Q and PS 197K projects pursuant to the terms of the PS 201Q BOND and the PS
197K BOND.
164. Pursuant to the WESTCHESTER BONDS, ANSU is liable “for such sum
or sums as may be justly due” for claimant’s work or labor to the extent that KHAN refuses or
fails to make payment to claimant for work performed by claimant.
165. Accordingly, the FUNDS and LOCAL 1 are entitled to judgment against
ANSU for all amounts found due and owing by KHAN to the FUNDS and LOCAL 1 pertaining
to work performed by KHAN at the PS 201Q and PS 197K projects including interest, damages,
audit costs, attorney’s fees, costs and expenses.
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AS AND FOR PLAINTIFF FUNDS’ AND LOCAL l'S FIRST
JOINT SUPPLEMENTAL CLAIM FOR RELIEF
AGAINST DEFENDANT DOE CONTRACTOR FOR THE
FORDHAM PROJECT
166. Plaintiffs FUNDS and LOCAL 1 repeat and reallege each and every
allegation contained in paragraphs “1” through “165” hereof with the same force and effect as if
such were fully set forth herein.
167. Plaintiffs FUNDS’ and LOCAL l ’s joint supplemental claim for relief
against DOE Contractor is a state law claim based on the same underlying facts and
circumstances as the ERISA claim against KHAN contained herein.
168. Upon information and belief, at all times herein mentioned, defendant
DOE Contractor was the general contractor for work performed at the FORDHAM project,
whereby DOE Contractor entered into a contract with Fordham University and agreed to furnish
labor and material for construction on the FORDHAM project, in accordance with Fordham
University’s requirements and specifications.
169. KHAN performed work at the FORDHAM project.
170. Upon information and belief, DOE Surety was, at all times herein
mentioned, the surety for the FORDHAM project pursuant to Fordham University’s
requirements and specifications, and furnished a labor and material payment bond to DOE
Contractor covering the labor and materials to be furnished for work performed and to be
performed at the FORDHAM project.
171. Upon information and belief, under the FORDHAM BOND, defendants
DOE Surety and DOE Contractor are jointly and severally liable for all payments to all persons
having performed work for KHAN, a subcontractor of DOE Contractor, at the FORDHAM
project.
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172. Upon information and belief, pursuant to the FORDHAM BOND, DOE
Contractor is liable for all monies due to all persons furnishing labor to it in the prosecution of
the work provided for in the contract with Fordham University for the FORDHAM project.
173. Accordingly, the FUNDS and LOCAL 1 are entitled to judgment against
DOE Contractor for all amounts found due and owing by KHAN to the FUNDS and LOCAL 1
pertaining to work performed by KHAN at the FORDHAM project including interest, damages,
audit costs, attorney’s fees, costs and expenses.
AS AND FOR PLAINTIFF FUNDS’ AND LOCAL l ’S
JOINT SUPPLEMENTAL CLAIM FOR RELIEF
AGAINST DEFENDANT WESTCHESTER
FOR THE PS 2010 and PS 197K PROJECTS
174. Plaintiffs FUNDS and LOCAL 1 repeat and reallege each and every
allegation contained in paragraphs “1” through “173” hereof with the same force and effect as if
such were fully set forth herein.
175. Plaintiffs FUNDS’ and LOCAL l ’s joint supplemental claim for relief
against WESTCHESTER is a state law claim based on the same underlying facts and
circumstances as the ERISA claim against KHAN contained herein.
176. Pursuant to the WESTCHESTER BONDS, NY State Finance Law §137,
and NY Labor Law §220-g, WESTCHESTER is liable “for such sum or sums as may be justly
due” the FUNDS and LOCAL 1 pursuant to the AGREEMENT to the extent that KHAN refuses
or fails to make payment to the FUNDS and LOCAL 1 for work performed.
177. Accordingly, the FUNDS and LOCAL 1 are entitled to judgment against
WESTCHESTER for all amounts found due and owing by KHAN to the FUNDS and LOCAL 1
pertaining to work performed by KHAN at the PS 201Q and the PS 197K projects including
interest, damages, audit costs, attorney’s fees, costs and expenses.
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AS AND FOR PLAINTIFF FUNDS’ AND LOCAL l'S
JOINT SUPPLEMENTAL CLAIM FOR RELIEF
AGAINST DEFENDANT DOE SURETY FOR THE
FORDHAM PROJECT
178. Plaintiffs FUNDS and LOCAL 1 repeat and reallege each and every
allegation contained in paragraphs “1” through “177” hereof with the same force and effect as if
such were fully set forth herein.
179. Upon information and belief, Plaintiffs FUNDS’ and LOCAL l ’s joint
supplemental claim for relief against DOE Surety is a state law claim based on the same
underlying facts and circumstances as the ERISA claim against KHAN contained herein.
180. Upon information and belief, pursuant to the FORDHAM BOND, NY
State Finance Law §137, and NY Labor Law §220-g, DOE Surety is liable for all monies due to
all persons furnishing labor to DOE Contractor or its subcontractors in the prosecution of work
provided for in the contract with Fordham University for the FORDHAM project.
181. Accordingly, the FUNDS and LOCAL 1 are entitled to judgment against
DOE Surety for all amounts found due and owing by KHAN to the FUNDS and LOCAL 1
pertaining to work performed by KHAN at the FORDHAM project including interest, damages,
audit costs, attorney’s fees, costs and expenses.
WHEREFORE, plaintiffs FUNDS and LOCAL 1 hereby request judgment as
follows:
a. against EMPLOYER, for all outstanding past due contributions in an amount not
less than $108,937.44 to the FUNDS for the period July 1, 2012 to date, and
continuing throughout the pendency of this action;
b. against EMPLOYER, for payment of all outstanding dues and assessments in an
amount not less than $8,357.81 for the period of July 1, 2012 to date, and
continuing throughout the pendency of this action;
c. against EMPLOYER, for interest of ten percent (10%) on all unpaid contributions
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found to be due and owing under the AGREEMENT, in accordance with ERISA
and the AGREEMENT;
d. against EMPLOYER, for accrued prejudgment interest on all unpaid dues and
assessments found to be due and owing under the AGREEMENT;
e. against EMPLOYER, for statutory liquidated damages of twenty percent (20%)
on all unpaid contributions found due and owing under the AGREEMENT, in
accordance with ERISA and the AGREEMENT;
f. against EMPLOYER, for all audit costs;
g. against EMPLOYER, for reasonable attorney’s fees, costs and expenses, in
accordance with ERISA and the AGREEMENT;
h. against EMPLOYER, permanently enjoining EMPLOYER, its officers, agents,
servants, employees and all persons in active concert or participation with them,
from failing to do the following: a) timely pay contributions to the FUNDS; and
b) timely pay dues and assessments to LOCAL 1;
i. against EMPLOYER, in the form of an Order under 29 U.S.C. § 1132 and
common law, permitting the FUNDS the right to estimate and enter judgment on
the total amount of EMPLOYER’S contributions due and owing and to assess
prejudgment interest of ten percent (10%) per annum (as defined in the
AGREEMENT) on said contributions from the date due to the date paid,
liquidated damages of twenty percent (20%) on said contributions, audit costs,
reasonable attorney’s fees, costs and expenses;
j. against EMPLOYER, in the form of an Order under 29 U.S.C. § 1132 and
common law requiring EMPLOYER to produce all of its books and records
deemed necessary by the FUNDS’ auditors to complete the audit of EMPLOYER;
k. against MEHDI and DOE Fiduciary, for all outstanding past due contributions in
an amount not less than $108,937.44 to the FUNDS for the period July 1, 2012 to
date, and continuing throughout the pendency of this action in accordance with
ERISA;
l. against MEHDI and DOE Fiduciary, for payment of all unpaid dues and
assessments in an amount not less than $8,357.81 due and owing LOCAL 1 for
the period July 1, 2012 to date, and continuing throughout the pendency of this
action;
m. against MEHDI and DOE Fiduciary, for accrued prejudgment interest on all
outstanding past due contributions to the FUNDS;
n. against MEHDI and DOE Fiduciary, for accrued prejudgment interest on
outstanding dues and assessments to LOCAL 1;
32
Case l:14-cv-06579-CBA-VVP Document 1 Filed 11/07/14 Page 33 of 34 PagelD #: 33
o. against MEHDI and DOE Fiduciary, for audit costs, attorney’s fees, costs and
expenses from this action, in accordance with ERISA;
p. against ANSU for all amounts due the FUNDS and LOCAL 1 pursuant to the
AGREEMENT with EMPLOYER to the extent the EMPLOYER refuses or fails
to make payment to the FUNDS and LOCAL 1 for employees who performed
work at the PS 201Q and PS 197K projects;
q. against DOE Contractor for all amounts due the FUNDS and LOCAL 1 pursuant
to the AGREEMENT with EMPLOYER to the extent the EMPLOYER refuses or
fails to make payment to the FUNDS and LOCAL 1 for employees who
performed work at the FORDHAM project;
r. against WESTCHESTER for all amounts due the FUNDS and LOCAL 1 pursuant
to the AGREEMENT with EMPLOYER to the extent the EMPLOYER refuses or
fails to make payment to the FUNDS and LOCAL 1 for employees who
performed work at the PS 201Q and PS 197K projects;
s. against DOE Surety for all amounts due the FUNDS and LOCAL 1 pursuant to
the AGREEMENT with EMPLOYER to the extent the EMPLOYER refuses or
fails to make payment to the FUNDS and LOCAL 1 for employees who
performed work at the FORDHAM project; and
t. for such other and further relief as the Court deems just and proper.
Dated: New York, New York
November 7, 2014

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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