13 F.3d 51 (2nd Cir. 1993), 601, Tamarin v. Adam Caterers, Inc.
|Docket Nº:||601, Docket 93-7634.|
|Citation:||13 F.3d 51|
|Party Name:||Cas. 2147 Henry TAMARIN, as Chairman of the Board of Trustees of the Local 100 Vacation Fund, Plaintiff-Appellee, v. ADAM CATERERS, INC., Defendant-Appellant.|
|Case Date:||December 27, 1993|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Nov. 8, 1993.
Ronald Cohen, New York City (Michael K. Benimowitz, of counsel), for appellant.
Joseph E. Gulmi, New York City, for appellee.
Before: CARDAMONE, JACOBS and GOODWIN [*], Circuit Judges.
GOODWIN, Circuit Judge:
Adam Caterers, Inc. appeals a summary judgment awarding unpaid ERISA benefit contributions, interest, costs, and fees to the plaintiff trustee of a local union vacation fund, contending that material questions of fact exist which require either trial or further discovery and documentary proof.
Henry Tamarin, Chairman of the Board of Trustees of the Local 100 Vacation Fund (Hotel Employees and Restaurant Employees, AFL/CIO), sued to compel payment of delinquent contributions as required by a collective bargaining agreement. The terms of the agreement were not disputed, nor was the fact that a demand had been made upon Adam Caterers for payment and for payroll records.
The plaintiff filed an affidavit and an accountant's report based upon a fragmentary record of the number of employees covered by the bargaining agreement and the hours the plaintiff said they had worked. Adam Caterers denied the accuracy of the plaintiff's affidavit and accounting summary, but failed to provide its own records to dispute specific items of the claim.
The court took at face value the accountant's projection of the amount of the alleged underpayment on the theory that the defendant had both the opportunity and the duty to produce complete business records, and that in the absence of complete records, the plaintiff's accounting projections were entitled to the benefit of the doubt. After argument and further suggestions from the court that Adam Caterers had not made a factual response to the claim, the court entered a judgment for Tamarin in the amount of principal and interest, collection costs and fees pursuant to the terms of the collective bargaining agreement and the payroll review submitted by plaintiff.
Adam Caterers, Inc. had denied in its affidavit that all the workers listed by the plaintiff were covered employees, or that all the workers actually were sent out on the jobs alleged by the plaintiff, but failed to state specifically which employees were listed in error. The only substantial issue on appeal is whether the trial court correctly treated the defendant's answering affidavit as inadequate to forestall summary judgment.
The district court first overruled Adam Caterers' objection that the accountant's payroll review is inadmissible...
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