Trustees of the Pavers and Road Builders District Council Welfare, Pension, and Annuity Funds v. Toros Brothers Construction Corp.

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

TRUSTEES OF THE PAVERS AND

ROAD BUILDERS DISTRICT

COUNCIL WELFARE, PENSION,

AND ANNUITY FUNDS, AND THE MEMORANDUM AND ORDER TRUSTEES OF THE LOCAL 1010 Case No. 24-CV-537 APPRENTICESHIP, SKILL IMPROVEMENT, AND TRAINING FUND,

Plaintiffs,

-against-

TOROS BROTHERS CONSTRUCTION CORP.,

Defendant. For the Plaintiffs: MARLENA SMITH ADRIANNA R. GRANCIO Virginia & Ambinder, LLP 40 Broad Street, 7th Floor New York, NY 10004

BLOCK, Senior District Judge: On May 6, 2024, the Court referred a motion for default judgment by Trustees of the Pavers and Road Builders District Council Welfare, Pension, and Annuity Funds and The Trustees of the Local 1010 Apprenticeship, Skill Improvement, and Training Fund (collectively, the “Funds” or “Plaintiffs”) against Toros Brothers Construction Corp. (“Defendant”) to Magistrate Judge Marcia M. Henry.

On March 16, 2025, Magistrate Judge Henry issued a Report and Recommendation (“R&R”) recommending the Court grant in part the motion for default judgment against Defendant and enter judgment in a total amount of

$276,891.56, including $197,666.40 in unpaid benefits contributions, $7,822.97 in Union Assessments for the period January 2023 through November 2023, $13,623.46 in accrued interest on unpaid contributions calculated through April 12, 2024, any accrued interest of $54.18 per day from April 13, 2024 until the date

judgment is entered, $4,684.91 in late payment interest for the periods of November 2021 and April 2022 through December 2022, $19,766.64 in liquidate damages on the unpaid ERISA contributions, $14,639.70 in attorneys’ fees,

$483.00 in costs, and post-judgment interest at the statutory rate set forth in 28 U.S.C. § 1961. See R&R at 24–25, ECF No. 17. The R&R gave the parties fourteen days to file objections, i.e., until March 31, 2025, and warned that “[i]f a party fails to object timely to this Report and

Recommendation, it waives any right to further judicial review[.]” Id. at 25. No objections have been filed. If clear notice has been given of the consequences of failing to object, and there are no objections, the Court may adopt the R&R without

de novo review. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015) (“Where parties receive clear notice of the consequences, failure to timely object to a magistrate’s report and recommendation

operates as a waiver of further judicial review of the magistrate’s decision.” (citations omitted)). The Court will, however, excuse the failure to object and conduct de novo review if it appears that the magistrate judge may have committed

plain error. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000). No error, plain or otherwise, appears on the face of the R&R. Accordingly, the Court adopts the R&R without de novo review. The Court enters judgment for

Plaintiffs against Defendant for a total of $276,891.56, including $197,666.40 in unpaid benefits contributions, $7,822.97 in Union Assessments for the period January 2023 through November 2023, $13,623.46 in accrued interest on unpaid

contributions calculated through April 12, 2024, any accrued interest of $54.18 per day from April 13, 2024 until the date judgment is entered, $4,684.91 in late payment interest for the periods of November 2021 and April 2022 through December 2022, $19,766.64 in liquidate damages on the unpaid ERISA contributions, $14,639.70 in

attorneys’ fees, $483.00 in costs, and post-judgment interest at the statutory rate set forth in 28 U.S.C. § 1961. The Clerk shall enter judgment in accordance with this opinion, amending Plaintiffs’ proposed default judgment accordingly. See Proposed J. Ex. R, ECF No.

14-7. SO ORDERED. _/S/ Frederic Block___________ FREDERIC BLOCK Senior United States District Judge Brooklyn, New York March 31, 2025