MEMORANDUM OPINION AND ORDER The plaintiffs, fiduciaries of the Local 338 Retirement Fund, brought this lawsuit to collect unpaid withdrawal liability allegedly owed by the defendants-Store 173 Food Corp., Owners’ Kids Food Corp., J. W. G. F. Food Corp., and F G W J Food Corp.-pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §1001 et seq., as amended by the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. §1381 et seq.The plaintiffs moved for summary judgment, arguing that the defendants failed to arbitrate the issue of withdrawal liability as required by ERISA, and are therefore automatically liable for the amount alleged. The defendants filed a cross motion for summary judgment, contending that arbitration was not required in this case and that they do not owe withdrawal liability under ERISA as a matter of law. The plaintiffs’ motion for summary judgment is granted and the defendants’ motion for summary judgment is denied.I.The Standard for granting summary judgment is well established. “The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F. 3d 1219, 1223 (2d Cir. 1994). “[T]he trial court’s task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo, 22 F. 3d at 1224. The moving party bears the initial burden of “informing the district court of the basis for its motion” and identifying the matter that “it believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary Judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible.” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998). When there are cross motions for summary judgment, the Court must assess each of the motions and determine whether either party is entitled to judgment as a matter of law. Admiral Indem. Co. v. Travelers Cas. & Sur. Co. of Am., 881 F. Supp. 2d 570, 574 (S.D.N.Y. 2012); see also Elastic Wonder, Inc. v. Posey, 179 F. Supp. 3d 307, 310 (S.D.N.Y. 2016).II.A.The plaintiffs are fiduciaries of the Local 338 Retirement Fund (“the Fund”), a multiemployer employee benefit plan under ERISA, 29 U.S.C. §1002(3), (27). Pls.’ 56.1 Stmt. 1. The defendants either are or were businesses under common control1 and parties to a series of collective bargaining agreements obligating them to contribute to the Fund. Id. 22; Falzone Cert. 6. Store 173 and J. W. G. F. went out of business around April 2015 and April 2016, respectively. Falzone Cert.
2-3. Owners’ Kids and F G W J remain in business and continue to contribute to the Fund under the collective bargaining agreements. Id.
