Case 1:22-cv-03433-DG-RML Document 1 Filed 06/10/22 Page 1 of 7 PageID #: 1
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`DEALY SILBERSTEIN & BRAVERMAN, LLP
`Marc D. Braverman (MB 2534)
`225 Broadway, Suite 1405
`New York, New York 10007
`(212) 385-0066
`Attorneys for Plaintiffs Daniel Kane, Jr.,
`Charles Machadio, Leo Servedio, Anthony Rosa,
`Myra Gordon, Vincent Pacifico, Andrew Roy and
`Nigel J. Coelho as Trustees of the United Teamster
`Fund
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`----------------------------------------------------------------------X
`DANIEL KANE JR., CHARLES MACHADIO, LEO
`SERVEDIO, ANTHONY ROSA, MYRA GORDON,
`VINCENT PACIFICO, ANDREW ROY and
`NIGEL COELHO as TRUSTEES OF THE
`UNITED TEAMSTER FUND,
`
`
`
`- against -
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`Plaintiffs,
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`MENDEZ INTERNATIONAL TROPICAL
`FOODS, INC.
`
`
`Defendants.
`----------------------------------------------------------------------X
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`Case No.:
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`COMPLAINT
`ECF ACTION
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`Plaintiffs, DANIEL KANE JR., CHARLES MACHADIO, LEO SERVEDIO, ANTHONY
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`ROSA, MYRA GORDON, VINCENT PACIFICO, ANDREW ROY and NIGEL COELHO as
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`TRUSTEES OF THE UNITED TEAMSTER FUND (collectively, the “Plaintiffs” and/or the
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`“Trustees”) by their attorneys, Dealy Silberstein & Braverman, LLP, complaining of Defendant
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`Mendez International Tropical Foods, Inc. (“Mendez”), hereby allege as follows:
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`NATURE OF THE ACTION AND JURISDICTION
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`1.
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`This is a civil action brought against the Defendant pursuant to the Employee Retirement
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`1
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`DEALY SILBERSTEIN & BRAVERMAN, LLP
`Marc D. Braverman (MB 2534)
`225 Broadway, Suite 1405
`New York, New York 10007
`(212) 385-0066
`Attorneys for Plaintiffs Daniel Kane, Jr.,
`Charles Machadio, Leo Servedio, Anthony Rosa,
`Myra Gordon, Vincent Pacifico, Andrew Roy and
`Nigel J. Coelho as Trustees of the United Teamster
`Fund
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`----------------------------------------------------------------------X
`DANIEL KANE JR., CHARLES MACHADIO, LEO
`SERVEDIO, ANTHONY ROSA, MYRA GORDON,
`VINCENT PACIFICO, ANDREW ROY and
`NIGEL COELHO as TRUSTEES OF THE
`UNITED TEAMSTER FUND,
`
`
`
`- against -
`
`Plaintiffs,
`
`MENDEZ INTERNATIONAL TROPICAL
`FOODS, INC.
`
`
`Defendants.
`----------------------------------------------------------------------X
`
`
`
`
`
`
`
`
`
`
`Case No.:
`
`
`
`
`COMPLAINT
`ECF ACTION
`
`
`
`
`
`
`
`
`
`
`
`
`
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`
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`Plaintiffs, DANIEL KANE JR., CHARLES MACHADIO, LEO SERVEDIO, ANTHONY
`
`ROSA, MYRA GORDON, VINCENT PACIFICO, ANDREW ROY and NIGEL COELHO as
`
`TRUSTEES OF THE UNITED TEAMSTER FUND (collectively, the “Plaintiffs” and/or the
`
`“Trustees”) by their attorneys, Dealy Silberstein & Braverman, LLP, complaining of Defendant
`
`Mendez International Tropical Foods, Inc. (“Mendez”), hereby allege as follows:
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`NATURE OF THE ACTION AND JURISDICTION
`
`1.
`
`This is a civil action brought against the Defendant pursuant to the Employee Retirement
`
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`1
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`Case 1:22-cv-03433-DG-RML Document 1 Filed 06/10/22 Page 2 of 7 PageID #: 2
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`Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. §§ 1132(a)(3), 1132(e)(1),
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`1132(f), 1145; and the Labor Management Relations Act of 1947, as amended (“LMRA”),
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`29 U.S.C. § 185(a), by a multiemployer welfare fund.
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`2.
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`This action seeks to recover, inter alia, delinquent health and welfare contributions which
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`are owed to the Welfare Fund by Defendant Mendez on behalf of former Mendez employee
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`Pedro Luis Ramirez Gil for the month of October 2021 in the amount of $1,324.96; interest
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`on the unpaid contributions; liquidated damages at the rate of interest on the unpaid
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`contributions, or twenty (20%) percent of all of the unpaid contributions, whichever is
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`greater; reasonable attorneys’ fees; and the costs of this action.
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`3.
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`Jurisdiction of this Court is invoked under the following statutes:
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`a)
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`ERISA, in sections codified as 29 U.S.C. §§ 1104(a)(1), 1109(a),
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`1132(e)(1), 1132(f) and 1145;
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`LMRA, in section codified as 29 U.S.C. § 185(a);
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`28 U.S.C. § 1331 (federal question); and
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`28 U.S.C. § 1337 (civil actions arising under Act of Congress regulating
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`b)
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`c)
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`d)
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`commerce).
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`VENUE
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`4.
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`Venue properly lies in this district pursuant to Section 502(e)(2) of ERISA (29 U.S.C. §
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`1132(e)(2)). Service of process may be made on Defendant Mendez in any other district
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`in which it may be found, pursuant to Section 502(e)(2) of ERISA (29 U.S.C. §1132(e)(2)).
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`5.
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`At all relevant times, Plaintiffs, the Trustees, have administered the United Teamster Fund
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`THE PARTIES
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`2
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`Case 1:22-cv-03433-DG-RML Document 1 Filed 06/10/22 Page 3 of 7 PageID #: 3
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`(the “Welfare Fund”).
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`6.
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`The Welfare Fund was established pursuant to collective bargaining agreements in 1949
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`by Declarations of Trust, which have been amended from time to time (the “Trust
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`Agreements”).
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`7.
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`The Welfare Fund is an “employee benefit plan” established pursuant to Section 302(c)(5)
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`of the LMRA, 29 U.S.C. § 186(c)(5), within the meanings of Sections 3(1), 3(2), and 3(3),
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`and 502(d)(1) of ERISA, 29 U.S.C. §§ 1002(1), 1002(2), 1002(3) and 1132(d)(1) and is a
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`multi-employer plan within the meaning of sections 3(37) and 515 of ERISA (29 U.S.C.
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`§§ 1002(37) and 1145).
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`8.
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`The Welfare Fund is administered at 2137-2147 Utica Avenue, Brooklyn, New York,
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`11234.
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`9.
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`The purpose of the Welfare Fund is to provide various fringe benefits to eligible employees
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`on whose behalf employers contribute to the Welfare Fund, pursuant to collective
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`bargaining agreements between employers in the food and produce industry and Local 202,
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`International Brotherhood of Teamsters, AFL-CIO, (the “Union”). The Welfare Fund
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`receives contributions from, inter alia, employers who are parties to collective bargaining
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`agreements with the Union, invest and maintain those monies, and distribute health and
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`welfare benefits to employees and to beneficiaries eligible to receive them pursuant to the
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`Welfare Fund’s plan.
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`10.
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`The Union is a local labor organization composed of approximately 3,000 active members
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`representing, inter alia, fruit and produce employees in and around the Greater New York
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`City area.
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`3
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`Case 1:22-cv-03433-DG-RML Document 1 Filed 06/10/22 Page 4 of 7 PageID #: 4
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`11.
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`Upon information and belief, Defendant Mendez is a corporation duly organized under the
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`laws of the State of New York, with its principal place of business located at 161 New
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`York City Terminal Market, Bronx, New York 10474.
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`FACTS
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`12.
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`At all relevant times, Defendant Mendez has been a party to a collective bargaining
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`agreement with the Union (the “CBA”) which covers, inter alia, the wages, fringe benefits,
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`terms, and conditions of employment for its employees who are working in covered
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`employment.
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`13.
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`Pursuant to the CBA, at all relevant times, Defendant Mendez was obligated to remit
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`monthly health and welfare contributions and reports to the Welfare Fund on behalf of all
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`its employees working in covered employment on or before the tenth (10th) day of each
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`month, for all employees covered by the CBA.
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`14.
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`Pursuant to the CBA, at all relevant times, Defendant Mendez was similarly obligated to
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`submit monthly contribution reports to the Welfare Fund describing the hours and days
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`worked by each of its employees working in covered employment.
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`15.
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`Defendant Mendez has failed and refused to remit its required contributions and reports to
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`the Welfare Fund for the month of October 2021.
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`16.
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`By letter dated March 23, 2022, the Welfare Fund, through counsel, demanded that
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`Defendant Mendez remit to the Welfare Fund its delinquent contributions and reports for
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`the month of October 2022.
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`17.
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`Thereafter, having failed to cure its default, the Welfare Fund, through counsel, sent a
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`follow up letter dated May 10, 2022 demanding that Mendez remit to the Welfare Fund its
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`4
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`Case 1:22-cv-03433-DG-RML Document 1 Filed 06/10/22 Page 5 of 7 PageID #: 5
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`delinquent contributions and reports for the month of October 2021.
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`18.
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`No response to the March 23, 2022 or the May 10, 2022 letter was received by the Welfare
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`Fund or its counsel.
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`19.
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`Accordingly, Defendant Mendez has willfully failed to remit the required health and
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`welfare contributions to the Welfare Fund on behalf of former Mendez employee Pedro
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`Luis Ramirez Gil for the month of October 2021 in the amount of $1,324.96.
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`20.
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`By willfully failing to remit the health and welfare contributions and reports to the Welfare
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`Fund, Defendant Mendez has violated the terms of the CBA, the Trust Agreements and
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`ERISA.
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`AS AND FOR A FIRST CAUSE OF ACTION AGAINST DEFENDANT MENDEZ -
`VIOLATIONS OF CBA, TRUST AGREEMENTS,
`AND PROVISIONS OF ERISA
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`21.
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`Plaintiffs repeat and reallege each and every allegation contained in Paragraphs 1 through
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`20 of the Complaint, as if fully set forth herein.
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`22.
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`Defendant Mendez has failed and refused to remit its required contributions and reports to
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`the Welfare Fund on behalf of former Mendez employee Pedro Luis Ramirez Gil for the
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`month of October 2021 in the amount of $1,324.96.
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`23.
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`Said failure and refusal by Defendant Mendez to report and make contributions for its
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`employees constitutes a violation of Defendant Mendez’s obligations pursuant to the CBA
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`and the Trust Agreements, and constitutes a violation of the provisions of ERISA and the
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`LMRA. Plaintiffs seek enforcement of
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`those provisions pursuant
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`to Sections
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`502(a)(3)(b)(ii) and 515 of ERISA, 29 U.S.C. § 1132(a)(3)(b)(ii) and 29 U.S.C. § 1145,
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`and Section 301(a) of the LMRA, 29 U.S.C. § 185(a).
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`5
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`Case 1:22-cv-03433-DG-RML Document 1 Filed 06/10/22 Page 6 of 7 PageID #: 6
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`24.
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`As a result of Defendant Mendez’ violations of the CBA, the Trust Agreements, and
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`ERISA, the Welfare Fund may be required to deny benefits provided under the Welfare
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`Fund’s benefit plans to employees of Defendant Mendez working in covered employment
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`for whom contributions have not been made, thereby causing said employee beneficiaries
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`substantial and irreparable damage.
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`25.
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`Furthermore, the Welfare Fund may be required to provide said employee beneficiaries
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`with benefits, notwithstanding Defendant Mendez’s failure to make its required
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`contributions, thereby reducing the corpus of the Welfare Fund and endangering the rights
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`of the employee beneficiaries on whose behalf contributions are properly being made, all
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`to their substantial and irreparable injury.
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`26.
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`The Trust Agreements, referred to above, provide for the assessment of interest and
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`liquidated damages, as well as the expenses incurred in collecting such delinquent
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`contributions, including attorneys’ fees.
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`27.
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`Additionally, Section 502 of ERISA, 29 U.S.C. § 1132, provides for the award of unpaid
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`contributions, interest on the unpaid contributions, liquidated damages, reasonable
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`attorneys’ fees and the costs of the action and such other legal or equitable relief that the
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`Court deems appropriate.
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`28.
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`By reason of the foregoing, Plaintiffs have been damaged by Defendant Mendez and
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`Defendant Mendez is liable to Plaintiffs for the delinquent health and welfare contributions
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`owed on behalf of former Mendez employee Pedro Luis Ramirez Gil for the month of
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`October 2021 in the amount of $1,324.96, plus interest on the unpaid contributions;
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`liquidated damages at the rate of interest on the unpaid contributions, or twenty (20%)
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`6
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`Case 1:22-cv-03433-DG-RML Document 1 Filed 06/10/22 Page 7 of 7 PageID #: 7
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`percent of all of the unpaid contributions, whichever is greater; audit fees; reasonable
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`attorneys’ fees; and the costs of this action.
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`RELIEF REQUESTED
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`WHEREFORE, Plaintiffs respectfully request Judgment against Defendant as follows:
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`ON THE FIRST CAUSE OF ACTION, that the Court:
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`a)
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`Award judgment in favor of Plaintiffs and against Defendant Mendez for the
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`delinquent health and welfare contributions owed on behalf of former Mendez
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`employee Pedro Luis Ramirez Gil for the month of October 2021 in the amount of
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`$1,324.96;
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`b)
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`Award interest on the unpaid contributions;
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`c)
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`Award liquidated damages at the rate of interest on the unpaid contributions, or
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`20% of all of the unpaid contributions, whichever is greater; and
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`d)
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`Award Plaintiffs their reasonable attorneys’ fees, accounting fees, and the costs of
`this action.
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`Dated: New York, New York
`June 9, 2022
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`DEALY & SILBERSTEIN, LLP
`
`
`By: /s/
`Marc D. Braverman (MB 2534)
`
`
`
`
`225 Broadway, Suite 1405
`New York, New York 10007
`(212) 385-0066
`Attorneys for Plaintiffs Daniel Kane, Jr.,
`Charles Machadio, Leo Servedio, Anthony Rosa,
`Myra Gordon, Vincent Pacifico, Andrew Roy and
`Nigel Coelho as Trustees of the United Teamster
`Fund
`
`
`
`7
`
`
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