Opinion
2012-05-30
Mary Jane PAULING–JONES, respondent, v. HEAD START OF ROCKLAND, INC., et al., appellants.
Barry D. Haberman, New City, N.Y. (Jeffrey L. Haberman of counsel), for appellants. Saretsky Katz Dranoff & Glass, LLP, New York, N.Y. (Robert B. Weissman of counsel), for respondent.
Barry D. Haberman, New City, N.Y. (Jeffrey L. Haberman of counsel), for appellants. Saretsky Katz Dranoff & Glass, LLP, New York, N.Y. (Robert B. Weissman of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P., RANDALL T. ENG, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
In an action, inter alia, to recover unpaid pension benefits, the defendants appeal from a judgment of the Supreme Court, Rockland County (Berliner, J.), dated November 18, 2010, which, upon an order of the same court dated September 8, 2010, among other things, granting the plaintiff's motion for summary judgment on her first and second causes of action, awarded the plaintiff the sum of $109.024.44 in unpaid pension benefits and declared that the defendants are obligated to continue making monthly payments of $3,402.08 to the plaintiff for the remainder of her life.
ORDERED that the judgment is affirmed, with costs.
A “top hat” employee pension benefit plan is “unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees” (29 USC § 1101 [a][1]; see Black v. Bresee's Oneonta Dept. Store, Inc. Sec. Plan, 919 F.Supp. 597, 602). Such plans are exempted from certain substantive rights and protections afforded by the Employee Retirement Income Security Act (hereinafter ERISA) (29 USC § 1001 et seq.) ( see29 USCS §§ 1051[2], 1081[a][3]; Kemmerer v. ICI Americas, Inc., 842 F.Supp. 138, 144,affd. in part, appeal dismissed in part, 70 F.3d 281,cert. denied517 U.S. 1209, 116 S.Ct. 1826, 134 L.Ed.2d 931;Carr v. First Nationwide Bank, 816 F.Supp. 1476, 1491), but remain subject to ERISA's enforcement provisions ( see29 USC §§ 1051[2], 1081[a][3]; Black v. Bresee's Oneonta Dept. Store, Inc., Sec. Plan, 919 F.Supp. at 602). “Top hat” plans are treated like unilateral contract offers that are accepted and become irrevocable upon retirement ( see Craig v. Pillsbury Non–Qualified Pension Plan, 458 F.3d 748, 752;Aiena v. Olsen, 69 F.Supp.2d 521, 532–533; Kemmerer v. ICI Americas, Inc., 70 F.3d 281, 287,cert. denied517 U.S. 1209, 116 S.Ct. 1826, 134 L.Ed.2d 931).
The plaintiff established her entitlement to judgment as a matter of law on her first and second causes of action pursuant to ERISA to recover unpaid pension benefits and for a declaration that the defendants are obligated to continue making monthly payments to the plaintiff for the remainder of her life ( see Black v. Bresee's Oneonta Dept. Store, Inc., Sec. Plan, 919 F.Supp. at 602;Kemmerer v. ICI Americas, Inc., 70 F.3d at 286–289). In opposition, the defendants failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572).
The defendants' remaining contentions are either improperly raised for the first time on appeal or without merit.
Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the first and second causes of action.