Moore v. New York Concrete Corp.

OPINION & ORDER Plaintiffs, trustees of three multiemployer benefit funds, bring this action against defendants New York Concrete Corporation (“NYCC”), New Leaf Development, LLC (“New Leaf”), John Russo, and Donna Marie Russo (together with NYCC and New Leaf, “defendants”), alleging delinquent employer contributions under Sections 502 and 515 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§1132 and 1145 (“ERISA”), and Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. §185. Pending now is John Russo’s motion to dismiss the seventh cause of action, pursuant to Federal Rule of Civil Procedure 12(b)(6).¹ In that claim, plaintiffs allege that John Russo and Donna Marie Russo are principal officers of NYCC and are individually liable for NYCC’s alleged ERISA violations because they used an alter ego company to fraudulently underreport contributions due under various collective bargaining agreements. For the reasons that follow, the Court denies Russo’s motion.I. Factual BackgroundA. Facts²Plaintiffs are trustees for three multiemployer benefit funds,³ established to benefit workers represented by three construction unions: the Local 46 Metallic Lathers and Reinforcing Ironworkers Union (“Local 46″), the Cement and Concrete Workers District Council, LIUNA (“Cement & Concrete Workers”), and Cement Masons Local 780 (“Local 780,” and, together with Local 46 and the Cement & Concrete Workers, the “Unions”). Employers bound by collective bargaining agreements with the Unions are required to remit contributions to the Funds pursuant to those agreements.Defendant NYCC is one such employer. It is a construction firm specializing in excavation, concrete foundation, and concrete superstructure work in the New York City area. FAC 27. It is also a member of the Cement League, a multiemployer bargaining unit that is a party to successive collective bargaining agreements with the Unions. Id. 11. As a member of the Cement League, NYCC is bound by those collective bargaining agreements. Id. Pursuant to these contracts, NYCC agrees that various kinds of specified construction work are to be performed solely by individuals represented by the Unions. Id.

13, 18, 23. NYCC is further obligated to make payments to the Funds for every hour of specified work performed on its behalf or on behalf of any alter ego, whether or not that work is performed by members of the Unions. Id.