Opinion
98 Civ. 8163 (LTS)(KNF).
January 23, 2002.
MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION
On October 23, 2001, Magistrate Judge Kevin Nathaniel Fox issued a Report and Recommendation ("Report") recommending that Prompt Maintenance Services, Inc. ("Defendant") be required to pay Michael A. Carney, as President and Business Manager of Local 94-94A-94B, International Union of Operating Engineers, AFL-CIO ("Local 94"), and as Trustee of the Health Benefits, Annuity, Sick Pay, and Training Funds of Local 94, Frank Haley, as Trustee of the Central Pension Fund of the International Union of Operating Engineers, and John and Jane Doe, beneficiaries of the Trust Funds administered by Local 94 and of the Central Pension Fund ("Plaintiffs"), a damages award of $72,437.78, which includes documented delinquent contributions totaling $64,167.28 and attorney's fees and costs associated with the action totaling $8,270.50. None of the parties has filed objections to the Report.
In reviewing the Report and Recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West 1999). "To accept the report and recommendation of a magistrate to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlet, 776 F. Supp. 815, 817 (S.D.N.Y. 1991 (court may accept report if it is "not facially erroneous"). The Court is required to make a de novo determination as to the aspects of the Report to which objections are made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
The Court has thoroughly reviewed Magistrate Judge Fox's comprehensive and well-reasoned Report and has determined that there is no clear error on the face of the record. The Court adopts the Report for the reasons stated therein. Accordingly, Plaintiffs are awarded at total of $72,437.78 in damages.
Magistrate Judge Fox's Report follows.
SO ORDERED.
KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE.
I. INTRODUCTION
In this action, Michael A. Carney, as President and Business Manager of Local 94-94A-94B, International Union of Operating Engineers, AFL-CIO ("Local 94"), and as Trustee of the Health Benefits, Annuity, Sick Pay, and Training Funds of Local 94, Frank Haley, as Trustee of the Central Pension Fund of the International Union of Operating Engineers, and John and Jane Doe, beneficiaries of the Trust Funds administered by Local 94 and of the Central Pension Fund (collectively "the Funds" or "plaintiffs") allege that Prompt Maintenance Services, Inc. ("Prompt" or "defendant") failed to make monetary contributions to the Funds as required by a collective bargaining agreement and the Employee Retirement Insurance Security Act ("ERISA"), 29 U.S.C. § 1001, et seq.
Upon defendant's failure to file an answer or otherwise respond to the complaint, United States District Judge Barbara S. Jones ordered that a default judgment be entered against the defendant. Judge Jones then referred the matter to the undersigned to conduct an inquest and to report and recommend the amount of damages, if any, to be awarded plaintiffs against defendant.
The Court directed plaintiffs to serve and file proposed findings of fact and conclusions of law, and an inquest memorandum setting forth their proof of damages, costs of this action and their attorney's fees. Defendant was directed by the Court to serve and file opposing memoranda, affidavits and exhibits, as well as any alternative findings of fact and conclusions of law it deemed appropriate. Defendant failed to do so.
A hearing was scheduled to determine the amount, if any, of plaintiffs' damages. The date on which the hearing was scheduled to be held was changed at plaintiffs' request. The defendant failed to attend the hearing on the rescheduled date. Moreover, plaintiffs were advised by defendant's counsel that as of March 10, 2000, Prompt was no longer in business.
Plaintiffs' submissions aver that they are entitled to $111,604.54 in unpaid fringe benefit contributions, $55,244.31 in interest, $36,829.32 in statutory damages, $8,120.50 in attorney's fees, and $150.00 in costs.
For the reasons that follow, I recommend that the Funds be awarded $72,437.78.
II. BACKGROUND AND FACTS
Based on submissions by the plaintiffs, the Complaint filed in the instant action — the allegations of which, perforce of defendant's default, must be accepted as true, except those relating to damages,see Cotton v. Slone 4 F.3d 176 , 181 (2d Cir. 1993); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) — the Court's review of the entire court file maintained in this action, and the record generated during the above-referenced hearing, the following findings of fact are made:
The Funds are jointly-administered, multiemployer, labor-management trust funds. (Complaint, ¶ 12, at 3.) The Local 94 Health Benefits, Annuity, Sick Pay, and Training Funds have their business offices at 331-337 West 44th Street, New York, New York. (Id., ¶ 6, at 2.) The Central Pension Fund has its business office at 4115 Chesapeake Street, N.W., Washington, D.C. (Id., ¶ 8, at 2-3.) At the time the instant complaint was filed, Prompt was a for-profit domestic corporation, organized and existing under the laws of New York, with an office at 120 North Main Street, 4th Floor, New City, New York. (Id., ¶ 13, at 3.)
The Funds are established and maintained, pursuant to various collective bargaining agreements, in accordance with section 302(c)(5) of the Taft Hartley Act ( 29 U.S.C. § 186[c][5]). The Funds are employee benefit plans within the meaning of sections 3(1), 3(2), 3(3) and 502 (d)(1) of ERISA ( 29 U.S.C. § 1002[1], [2], [3] and 1132[d][1]), and multiemployer plans within the meaning of sections 3(37) and 515 of ERISA ( 29 U.S.C. § 1002[37] and 1145). The Funds are authorized to maintain suit as independent legal entities under section 502(d)(1) of ERISA ( 29 U.S.C. § 1132[d][1]). John and Jane Doe are beneficiaries of the Funds within the meaning of section 3(8) of ERISA ( 29 U.S.C. § 1002[8]).
At the time the instant complaint was filed, Prompt was an employer within the meaning of sections 3(5) and 515 of ERISA ( 29 U.S.C. § 1002[5] and 1145), and was an employer in an industry affecting commerce within the meaning of section 301 of the Taft-Hartley Act ( 29 U.S.C. § 185).
The purpose of the Funds is to provide medical and other fringe benefits and retirement income to eligible employees on whose behalf employers contribute to the Funds. (Id., ¶¶ 9-10, at 3.) Contributions to the Funds are made pursuant to collective bargaining agreements between employers in the engineering industry and Local 94. (Id.,¶ 16, at 3.)
Prompt executed a series of collective bargaining agreements with Local 94 through which, inter alia, Prompt became obligated to pay the required monetary contributions to the Funds for all work performed by Prompt's employees who were members of Local 94. (Id.) The agreements relevant to this action are those covering the periods January 1, 1992, through December 31, 1994, and January 1, 1995, through December 31, 1997, (collectively the "Agreement"). A third agreement, covering the period January 1, 1998, through December 31, 2000, was submitted by plaintiffs at the time the instant complaint was filed. Although this agreement was not in effect during the period relevant to this action, plaintiffs have relied on its terms in calculating the amount of damages owed to the Funds by defendant.
The 1992 and 1995 agreements were submitted by plaintiffs at the time of the inquest hearing. (See Plaintiffs' Inquest Hearing Exhibits 7, 8.) With the exception of the rate of contribution, for the purposes of this inquest, the terms of the two agreements are identical.
The 1998 agreement is attached to Plaintiffs' Complaint as Exhibit A.
Pursuant to the terms of the Agreement, as a result of work performed by employees of Prompt during the period January 1, 1994, through June 30, 1997, fringe benefit contributions became due and owing to the Funds. (Id., ¶ 18, at 4.) Plaintiffs' assessment of the amount of the fringe benefit contributions owed for the relevant period is based on an audit of Prompt's books and records. (See Plaintiffs' Inquest Hearing Exhibit 3.) Defendant failed to make the required contributions for the relevant period; as a result the Funds were damaged. (Complaint, ¶¶ 19-20, at 4.)
Under the terms of the Agreement, Prompt's failure to pay timely the required contributions to the Funds obligated it to pay interest on the outstanding amount of the contributions. However, the Agreement does not fix a rate of interest to be applied in calculating the amount of interest due. Additionally, although Prompt's failure to make the requisite contribution payments also triggered a liquidated damages provision of the Agreement that required Prompt to pay the Funds liquidated damages on the unpaid contributions, the Agreement is silent on the matter of the rate of liquidated damages to be applied.
The above-referenced audit reflects an interest assessment and a liquidated damages assessment on the amount of the delinquency associated with each employee for whom a monthly contribution was owed to the Funds by Prompt. At the inquest hearing, the Court was advised that plaintiffs, in preparing the audit, had applied a rate of interest of one and one-half percent (1.5%) per month, and a rate of liquidated damages of one percent (1%) per month, pursuant to the terms of the agreement commencing on January 1, 1998. (Tr. 11-12.) Plaintiffs acknowledged that the 1998 agreement was not in effect during the period relevant to this action, but contended that the rates specified in that agreement were properly applied in this case insofar as they were the rates used in the regular course of business. (Tr. 20-26.)
The interest and liquidated damages rates reflected in the 1998 agreement are misprinted. The text of the agreement shows an interest rate of 1% and a liquidated damages rate of 1.5%, when it should have read 1.5% for the rate of interest and 1% for the rate of liquidated damages. At the hearing, the Court was advised that the plaintiffs believed the 1998 agreement had been reprinted to reflect the correct percentages. (Tr. 13-16.)
"Tr." followed by a numeral is a reference to the relevant page of the transcript of the inquest hearing.
Plaintiffs have also submitted a worksheet reflecting their assessment of the amount of delinquent contributions owed as of June 30, 1997, and the amount of interest and liquidated damages owed on unpaid contributions for the thirty-three month period from June 30, 1997, through March 31, 2000. (See Exhibit A to Plaintiffs' Inquest Memorandum.)
III. CONCLUSIONS OF LAW
ERISA section 515 states that "[e]very employer who is obligated to make contributions to a multiemployer plan under the terms of the plan or under the terms of a collectively bargained agreement shall . . . make such contributions in accordance with the terms and conditions of such plan or such agreement." See 29 U.S.C. § 1145.
ERISA Section 502(g)(2) governs the enforcement of section 515. Section 502(g)(2) provides:
In any action under this subchapter by a fiduciary for or on behalf of a plan to enforce section 1145 of this title in which a judgment in favor of the plan is awarded, the court shall award the plan —
(A) the unpaid contributions,
(B) interest on the unpaid contributions,
(C) an amount equal to the greater of —
(i) interest on the unpaid contributions, or
(ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A),
(D) reasonable attorney's fees and costs of the action, to be paid by the defendant, and
(E) such other legal or equitable relief as the court deems appropriate.See 29 U.S.C. § 1132(g)(2).
These provisions were enacted to enable benefit plan participants and beneficiaries to protect their plan's solvency when employers fail to make the requisite financial contributions to the benefit plan(s) and, thereby, do not fulfill their collective bargaining and trust agreement obligations. See Benson v. Brower's Moving Storage, Inc., 907 F.2d 310, 314 (2d Cir. 1990) (stating that "benefit plans must be able to rely on the contribution promises of employers because plans must pay out to beneficiaries whether or not employers live up to their obligations");Trustees of Four Joint Boards v. Penn Plastics, Inc., 864 F. Supp. 342, 346-47 (S.D.N.Y. 1994) (observing that, pursuant to ERISA § 515, "the Circuit Courts of Appeals have consistently held employers to their promises to contribute to multiemployer plans as set forth in written agreements").
The employee benefit plans which are the subject of this litigation are established and maintained pursuant to the trust agreement incorporated by specific reference in Article 1 ("Recognition and Union Security"), Article 4 ("No Strikes or Lockouts"), and Article 11 ("Employer Fund Contributions") of the Agreement executed by Local 94 and Prompt. (See Plaintiffs' Inquest Hearing Exhibit 7 at 2-4, 13, 18-25; Plaintiffs' Inquest Hearing Exhibit 8 at 2-4, 13, 18-25.) These trust agreements govern the terms of the employee benefit plans, the timing of employer contributions to the plans, and the penalties for late payments to the plans.
Defendant has violated the terms of the Agreement by failing to make fringe benefit contributions for the period January 1, 1994, through and including June 30, 1997. Therefore, plaintiffs' submissions establish that defendants violated 29 U.S.C. § 1145.
Unpaid Benefit Contributions
Pursuant to 29 U.S.C. § 1132(g)(2), plaintiffs are entitled to an award representing the amount of unpaid fringe benefit contributions. Plaintiffs contend that Prompt owes the Funds $111,604.54 in unpaid fringe benefit contributions for the period January 1, 1994 through June 30, 1997. (See Exhibit A to Plaintiffs' Inquest Memorandum.) The Court does not agree.
In support of their application, plaintiffs present the above-referenced audit, which tallies the unpaid amounts on a month-by-month basis beginning in January 1994 and concluding in June 1997. The audit provides the names of the employees for whom, in a given month, a contribution became due and, for each employee, a corresponding number of "hours not reported," the amount of contributions due each of the various Funds, a total amount of unpaid contributions, and liquidated damages and interest assessments on that total. Figures representing cumulative monthly totals in each category also are given. According to the audit, the fringe benefit deficiency for the period relevant to this action is $64,167.54, while the total amount of unpaid contributions due, including the interest and liquidated damages assessments, is $111,604.54.
The Agreement states that "to ascertain the amounts payable to the . . . Funds, the Union and/or the Funds . . . shall have the right to inspect and audit the contractor's social security and/or payroll records and all such records shall be made available to the Funds upon request." (See Plaintiffs' Inquest Hearing Exhibit 7, at 4.) The Agreement provides further that "[c]ontributions to the . . . Funds shall be made on a monthly basis and shall be paid by the end of the succeeding month. The Employer agrees to use the lawful forms supplied by the Union." (Id. at 24.)
Plaintiffs have submitted no documentary evidence in the form of defendant's own records, for example, remittance reports or union members' time cards for the period in question, to substantiate the figures provided in the audit or to establish their source. However, at the inquest hearing, Stephen McGahran, Local 94's administrator in charge of delinquent contributions to the Funds, identified the payroll audit and testified that the audit had been prepared by the Funds' accountants. Mr. McGahran also testified that the audit had been prepared pursuant to the terms of the Agreement in the regular course of plaintiffs' business. (T. 10-11) Moreover, the defendant has not challenged plaintiffs' calculation of the amount of delinquent contributions for the period in question. Consequently, the Court finds that plaintiffs' proof as to $64,167.28 of its claim, the amount of unpaid contributions for the period relevant to this action, are sufficiently well supported to allow an award of damages. However, for the reasons set forth below, the Court is not persuaded that plaintiffs are entitled to the interest and liquidated damages portion of the unpaid contributions claimed to be owed to the Funds for the relevant period. Accordingly, based upon the audit provided to the Court, Prompt owes the Funds $64,167.28 in delinquent contributions.
Interest
By statute, plaintiffs have a right to interest on the unpaid fringe benefit contributions, since once it is determined that an employer has failed to make contributions to an employee benefit fund, as required by a collective bargaining agreement, an award of interest is mandatory.See Mason Tenders Dist. Council v. Envirowaste and Transcontractors, Inc., No. 98 Civ. 4040, 1999 WL 370667, at *2 (S.D.N.Y. June 7, 1999) (citing 29 U.S.C. § 1132[g][2][B] [requiring award of interest on unpaid contributions to trust fund that prevails against employer on ERISA § 515 claim]). The interest is to be calculated from the date the payments first became due. See Envirowaste and Transcontractors, Inc., 1999 WL 370667, at *2 (citing Mason Tenders Dist. Council Welfare Fund v. Mackroyce Constr. Corp., No. 96 Civ. 4693, 1998 WL 193075, at *2 [S.D.N.Y. Apr. 22, 1998]).
ERISA section 502(g)(2) states, in pertinent part, that "interest on unpaid contributions shall be determined by using the rate provided under the plan, or, if none, the rate prescribed under section 6621 of Title 26." See 29 U.S.C. § 1132(g)(2). Section 6621 of Title 26 provides, in pertinent part: "The overpayment rate established under this section shall be the sum of . . . the Federal short-term rate determined under subsection (b), plus . . . 2 percentage points." See 26 U.S.C. § 6621(a)(1). Subsection (b) of section 6621 states that "[t]he Secretary shall determine the Federal short-term rate for the first month in each calendar quarter." See 26 U.S.C. § 6621(b). Because the Agreement does not fix a rate of interest, the rate prescribed by 26 U.S.C. § 6621 applies. See Bricklayers Dist. Council Welfare Fund v. Pony Masonry Construction Co., Inc., No. 92 Civ. 1663, 1995 WL 693262, at *2-3 (S.D.N Y Nov. 22, 1995). In order to determine what that rate should be, the Court requires evidence establishing the Federal short-term rate in effect at the time the instant complaint was filed. Since the record before the Court is devoid of such evidence, the Court lacks sufficient information to determine the correct rate of interest to be applied in this case.
26 U.S.C. § 6621(a)(1)(b) was amended in 1998 by Pub.L. No. 105-206, section 3302(a). Subpart (b), which read "2 percentage points," has been rewritten as follows: "3 percentage points (2 percentage points in the case of a corporation)."
At the inquest hearing, the Court was advised that plaintiffs, in calculating the amount of interest due on the unpaid contributions, had applied a rate of one and one half percent (1.5%) per month, pursuant to the terms of the 1998 collective bargaining agreement. Based on this rate, plaintiffs claim interest in the amount of $28,462.36 on the unpaid contributions for the period January 1, 1994, through June 30, 1997. Plaintiffs also claim interest in the amount of $5,244.31 for the thirty-three month period commencing on June 30, 1997. However, since the 1998 collective bargaining agreement was not in effect during the period relevant to this action, its terms cannot be applied in calculating damages in the instant case. Moreover, plaintiffs' contention that the rate specified in the 1998 collective bargaining agreement represents the correct rate of interest to be applied, insofar as it was the rate plaintiffs used in the regular course of business, is unavailing. Plaintiffs are bound by the terms and conditions of the Agreement. They may not arbitrarily substitute the terms of another contract for those to which, in executing the Agreement, they have subscribed.
Based on plaintiffs' failure to provide the Court with satisfactory evidence establishing the correct rate of interest to be applied in this case, Prompt should not be required to pay interest on damages awarded to the plaintiffs.
Liquidated Damages
By statute, plaintiffs are entitled to liquidated damages for defendants' failure to make the required contributions to the Funds. See 29 U.S.C. § 1132(g)(2)(C); Envirowaste and Transcontractors, Inc., 1999 WL 370667, at *2 (citing Iron Workers Dist. Council of Western New York and Vicinity Welfare and Pension Funds v. Hudson Steel Fabricators Erectors, Inc., 68 F.3d 1502, 1506 [2d Cir. 1995] [stating that an award of statutory penalties is mandatory]).
Section 502 of ERISA provides that the amount of statutory damages to be awarded in an action to collect delinquent fringe benefit contributions is equal to the greater of the interest awarded on the unpaid contributions or liquidated damages specified under a fund plan.See 29 U.S.C. § 1132(g)(2). Plaintiffs claim liquidated damages in the amount of $18,974.90 for the period of the delinquency, and liquidated damages in the amount of $36,829.32 for the subsequent thirty-three months. Plaintiffs arrive at these figures by applying a rate of one percent (1%) per month, pursuant to the 1998 collective bargaining agreement. For the reasons stated above, plaintiffs may not rely on the terms of the 1998 collective bargaining agreement in calculating the amount of liquidated damages owed to the Funds. Inasmuch as the Agreement is silent with respect to the applicable rate of liquidated damages and the Court has determined that no award of interest should be made, the defendant should not be required to pay liquidated damages on the unpaid contributions owed to the plaintiffs.
Costs and Attorney's Fees
An award of costs and reasonable attorney's fees, in an action such as this, to recover unpaid union fringe benefit contributions, is mandatory. See 29 U.S.C. § 1132(g)(2); see also, Bricklayers Dist. Council Welfare Fund v. Pony Masonry Construction Co., Inc., 1995 WL 693262, at *3-4 (citations omitted).
When fixing a reasonable rate for attorney fees, it is appropriate for a court to consider and to apply the prevailing market rates in the relevant community for similar legal work of lawyers of reasonably comparable skill, experience and reputation. See Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 1547 n. 11 (1984). In addition, it is permissible for a court to rely upon its own knowledge of private firm hourly rates in deciding what reasonable attorney fees are in the community. Miele v. N.Y. State Teamsters Conf. Pens. Retirement Fund., 831 F.2d 407, 409 (2d Cir. 1987).
In the Second Circuit, a party seeking an award of attorney fees must support that request with contemporaneous time records that show, "for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983). Attorney fee applications that do not contain such supporting data "should normally be disallowed." Id. at 1154. Disallowance is permitted notwithstanding the mandatory language found at 29 U.S.C. § 1132(g)(2)(D). See Plumbers Local No. 371 Joint Plumbing Indus. Bd. Pension Fund v. Frank Liquori Plumbing and Heating, Inc., No. 95 Civ 2892, 1996 WL 445065, at *5 (E.D.N.Y. June 26, 1996).
In prosecuting this action against Prompt, the Funds engaged the service of the law firm Richardson, Mahon, Casey Rooney, LLP. James J. Mahon, Esq., an attorney with that firm, submitted an affidavit to the Court setting forth the names of the attorneys who worked on this matter and the hourly rate at which each was compensated. (See Affidavit of James J. Mahon dated June 4, 1999 ["Mahon Aff."].) Contemporaneous time records for the relevant law firm personnel were submitted to the Court. (See Exhibit C to Plaintiffs' Inquest Memorandum) The time records, as required in this judicial circuit, describe, for each attorney who participated in the prosecution of this action, the date on which the service(s) was provided by the attorney(s); the hours expended by the individual attorney(s); and the nature of the work performed by the attorney(s).
The time records indicate that plaintiff incurred attorney fees through the work performed by the following law firm personnel: Stanley Q. Casey @ $175.00 per hour; James Steinberg @ $165.00 per hour; Jon D. Miller @ $165.00 per hour; and Catherine McVeigh @ $160.00 per hour. Based upon the work performed, the rates requested by plaintiffs are reasonable. Further, plaintiffs' time records demonstrate that counsel used their time efficiently. See Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939-40 (1983) ("Counsel . . . should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary.")
Based on the Court's review of the submissions by the Funds, which outline the services performed by counsel, the Court finds that $8,120.50 in attorney's fees and $150.00 in costs were reasonably incurred by the Funds in connection with prosecuting this action against Prompt. Accordingly, plaintiffs should be awarded a total of $8,270.50 in attorney's fees and costs.
IV. RECOMMENDATION
For the reasons set forth above, I recommend an award to the Funds of $72,437.78: the documented delinquent contributions ($64,167.28) and the attorney's fees and costs associated with the action ($8,270.50).
Plaintiffs shall serve a copy of this Report and Recommendation upon defendant and submit to the Court proof of such service.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also, Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Foley Square, Room 426, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).