Opinion
Index No. 654772/2022 MOTION SEQ. No. 002
01-08-2024
THE BUILDING SERVICE 32BJ HEALTH FUND, THE BUILDING SERVICE 32BJ PENSION FUND, THE THOMAS SHORTMAN TRAINING &SCHOLARSHIP AND SAFETY FUND, THE BUILDING SERVICE 32BJ LEGAL SERVICES FUND, THE BUILDING SERVICE 32BJ SUPPLEMENTAL RETIREMENT AND SAVINGS PLAN Petitioner, v. ALL CLEAN BUILDING SERVICES, INC., Respondent.
Unpublished Opinion
MOTION DATE 1/08/2024
PRESENT: HON. SABRINA KRAUS, Justice
DECISION + ORDER ON MOTION
SABRINA KRAUS, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 16, 17, 18, 19, 20, 21, 22, 23, 24 were read on this motion to/for CONTEMPT.
BACKGROUND
A Judgment Decision and Order on Motion was previously rendered by the Court in this proceeding on July 14, 2023. The judgment order granted the Petitioners' Petition to Confirm the Arbitration Award dated August 11, 2022. The Court also ordered the Respondent to produce some missing documents that were directed to have been produced as part of the arbitration award. Petitioner alleges that Respondent has failed to produce most of the documents directed and now moves for contempt.
ALLEGED FACTS
Counsel For movants alleged that they have communicated with Joe Manfredo ("Manfredo") regarding the required document production many times since the arbitration award was issued, and that Manfredo continually promised to comply but failed to do so. Manfredo is the President of Respondent and has been personally served with this order to show cause, but Respondent has failed to appear in this proceeding to date.
On September 21, 2023, Respondent uploaded two documents to the audit firm's secure link, Earnings for the time period of: 12/1/2017 - 6/30/2018 and state wages lists (NJ, WR-30) for 4th quarter 2017 through 2nd quarter 2018. Petitioner asserts this a small percentage of the production required for the order.
The documents ordered to be produced were:
For the Audit Period July 1, 2017 through the date of the Arbitration Award, the following documents were to have been produced:
Individual earnings records (payroll history records); and
Weekly payroll journals; and
Timesheets; and Quarterly Federal and State payroll tax returns; and
W-2s; and
Employee Roster (including job descriptions, work locations, hire, leave, and termination dates); and
General Ledger/Cash Disbursement journal; and Employees' 401(k) enrollment forms.
DISCUSSION
Section 753 of the Judiciary Law of the New York CPLR grants the court of record the authority to punish in civil contempt. The resources for punishment include fines and imprisonment, or both. To prevail upon a motion to punish for civil contempt, the movant must demonstrate the violation of a clear and unequivocal Court Order, thereby prejudicing a right of another party to the litigation. See Moore v. Davidson, 57 A.D.3d 862 (NYAD 2d Dept. 2008) citing to Goldsmith v. Goldsmith, 261 A.D.2d 576 (NYAD 2nd Dept. 1999); McCain v. Dinkins, 84 N.Y.2d 216 (NY 1994).
Section 773 of the Judiciary Law states that when actual loss or injury to an aggrieved party is not shown, the amount of the fine should be the costs and expenses of the aggrieved, plus $250.00.
Corporate officers are individually punishable for their contemptive acts on behalf of their corporate entities. See Schreiber v. Garden, 152 AD 817 (NYAD 1st Dept. 1912); citing to In re Westminster Realty Corp, 123 AD 797 (NYAD 2d Dept. 1908). However, the Order to Show Cause filed by Petitioner did not indicate on its face that Petitioner sought to hold Manfredo in contempt as well as Respondent.
Section 773 also explicitly states that these fines may be awarded against a corporation.
Respondent's failure to comply with the arbitration award and this Court's order have prejudiced Petitioner as payroll compliance audits are the method whereby the Trustees meet their fiduciary obligations to ensure that all employees, who should have benefit contribution made into the Funds for them, were in fact correctly reported by the various employers to the Funds, and to find and collect all contributions due to the Funds, which is the Funds' property.
Petitioner seeks $3,993.75 in legal fees incurred in connection with this order to show cause and has provided a detailed breakdown for said amount. The court finds the hours expended and the rate charged to be reasonable.
Accordingly, it is hereby:
ORDERED that the motion of Petitioner to hold Respondent in contempt of court is granted; and it is further
ORDERED AND ADJUDGED that the conduct of Respondent was willfully contemptuous of this court and was calculated to and did defeat, impair, impede, or prejudice the rights of Petitioner; and it is further
ORDERED that Petitioner shall serve a copy of this order with notice of entry upon Respondent, by Federal Express or Overnight Mail, within 10 days of receipt thereof; and it is further
ORDERED that Respondent shall be fined pursuant to Judiciary Law § 773, to the extent that they shall pay to Petitioner the sum of $250.00 plus the attorneys' fees and costs incurred by Petitioner in moving to hold Respondent in contempt in the sum of $4,243.75; and it is further
ORDERED that the Clerk shall enter an award in favor of the Petitioner, and against Respondent in the total sum of $4,243.75
This constitutes the Decision, Order, and Judgment of the court.