Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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POINTERS, CLEANERS & CAULKERS

ANNUITY FUND, PENSION FUND and

WELFARE FUND, JOINT

APPRENTICESHIP TRAINING FUND,

INTERNATIONAL MASONRY

INSTITUTE, BRICKLAYERS

INTERNATIONAL PENSION FUND,

BUILDING RESTORATION INDUSTRY

PROMOTION FUND, and JACK

ARGILA, in his fiduciary capacity as

Trustee, BRICKLAYERS AND ALLIED

REPORT AND

CRAFT WORKERS LOCAL UNION NO.

RECOMMENDATION

1, INTERNATIONAL UNION OF

24-CV-8501 (NCM) (TAM)

BRICKLAYERS AND ALLIED CRAFT

WORKERS and LABOR MANAGEMENT

RELATIONS COMMITTEE,

Plaintiffs,

-against-

AVALANCHE CONSTRUCTION

GROUP, INC. and MICHAEL

JABLONOWSKI,

Defendants.

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TARYN A. MERKL, United States Magistrate Judge:

Plaintiffs Pointers, Cleaners & Caulkers Annuity Fund, Pension Fund and

Welfare Fund, Joint Apprenticeship Training Fund, International Masonry Institute,

Bricklayers International Pension Fund, Building Restoration Industry Promotion Fund,

and Jack Argila, as Trustee for the Bricklayers and Allied Craft Workers Local Union

No. 1, International Union of Bricklayers and Allied Craft Workers (“Local 1” or the

“Union”), and Labor Management Relations Committee, commenced this action against

Defendants Avalanche Construction Group, Inc. (“Avalanche” or the “Corporate

Defendant”) and Michael Jablonowski (“Jablonowski” or the “Individual Defendant”)

on December 12, 2024. Compl., ECF 1. Plaintiffs seek to recover delinquent employer

benefit contributions, union assessments, dues, and related relief, pursuant to the

Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., and

Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. Id. ¶ 1;

id. at 13–15.

Currently pending before the Court is Plaintiffs’ motion for default judgment,

which the Honorable Natasha C. Merle referred to the undersigned Magistrate Judge

for a report and recommendation. See Clerk’s Entry of Default, ECF 11; Pls.’ Mot. for

Default J., ECF 15; July 25, 2025 ECF Order Referring Mot. For the reasons set forth

below, the Court respectfully recommends that Plaintiffs’ motion for default judgment

be granted.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I. Factual Background

Plaintiffs Pointers, Cleaners & Caulkers Annuity Fund (“Annuity Fund”),

Pension Fund (“Pension Fund”) and Welfare Fund (“Welfare Fund”), Joint

Apprenticeship Training Fund (“JAT”), International Masonry Institute (“IMI”), and

Bricklayers International Pension Fund (“IPF”) (collectively, the “ERISA Funds”) are

employee benefit plans and multiemployer plans organized under ERISA. Compl., ECF

1, ¶¶ 4–5. The ERISA Funds are administered in Queens County, New York, which is

within the Eastern District of New York. Id. ¶ 4. Plaintiff Argila is a trustee of the ERISA

Funds and is therefore authorized to bring actions to enforce the Union’s collective

bargaining agreement (“CBA”) under Section 502(d)(1) of ERISA. Id. ¶ 12; 29 U.S.C.

§ 1132(d)(1).

Defendant Avalanche is a party to a CBA with Local 1, which agreement

established the ERISA Funds. Id. ¶¶ 4, 6, 10. Plaintiffs allege that Defendant

Jablonowski is the owner and president of Avalanche and thus “exercises authority or

control respecting the management or disposition of plan assets.” Id. ¶¶ 6–7. The

complaint alleges that Jablonowski is also a fiduciary under ERISA. Id. ¶¶ 45–49.

Under the CBA, Defendant Avalanche agreed to make specified benefit

contributions to the ERISA Funds and to non-ERISA funds, and to remit dues and

assessments to the Union “for all hours worked by its employees” within the Union’s

jurisdiction.1 Compl., ECF 1, ¶ 10; see also 2019–2023 CBA, ECF 15-7, at 21–31. The CBA

also requires Avalanche to submit monthly remittance reports, and to allow the Funds

to audit its books and records to verify the accuracy of the remittance reports and the

employer’s compliance with the CBA. Compl., ECF 1, ¶ 15. Accordingly, an audit was

conducted for the period January 1, 2019, through September 30, 2022 (the “2019–2022

1 Of the funds to which specified benefit contributions are due, counsel affirms that the

ERISA-covered funds are the Welfare Fund, Pension Fund, Annuity Fund, JAT Fund, IMI Fund,

and IPF, and the non-ERISA funds are the Labor Management Relations Fund, Promotion Fund,

BAC Local #1 Defense & Organizing Fund, BAC Local #1 BAC PAC, IPF PPA Special

Assessment, and International BAC PAC. See Straus-Figueroa Suppl. Affirmation., ECF 24, ¶ 4.

The Court notes that Plaintiffs do not explicitly specify whether the Retirement Fund,

delinquent contributions to which Plaintiffs also seek, is an ERISA or non-ERISA fund. See id.; cf.

Payment Schedules, ECF 24-2, at ECF pp. 3–7.

The Court further observes that although counsel’s affirmation avers that the IPF PPA

Special Assessment is not covered by ERISA, Plaintiffs’ calculation of prejudgment interest

categorizes it as an ERISA fund. See Revised Calculations, ECF 24-1 (calculating the ERISA rates

as $31.05 and $32.30, a result which the Court was only able to recreate by including the IPF

PPA Special Assessment rate with the other ERISA rates, contra counsel’s other submissions,

and the Retirement Fund with the non-ERISA rates); see also Bricklayers Ins. & Welfare Fund v.

Alpha Omega Bldg. Corp. (“Alpha Omega Bldg. Corp.”), No. 19-CV-2600 (ERK) (RLM), 2022 WL

18858966, at *7 n.12 (E.D.N.Y. Nov. 10, 2022) (admonishing Plaintiffs for “failing to properly

explain the basis for their inclusion of” the IPF PPA Special Assessment in their submissions).

After a review of the case law — which the Court was “under no obligation” to do, Alpha Omega

Bldg. Corp., 2022 WL 18858966, at *7 n.12 — the Court concludes that the IPF PPA Special

Assessment is covered by ERISA, see Bricklayers Ins. & Welfare Fund v. McGovern & Co., LLC, No.

17-CV-6067 (SJ) (ST), 2019 WL 2271942, at *4 (E.D.N.Y. Mar. 6, 2019) (identifying the IPF PPA

Special Assessment as an ERISA plan), report and recommendation adopted as modified, 2019 WL

1772399 (E.D.N.Y. Apr. 23, 2019); Bricklayers Ins. & Welfare Fund v. Inniss Constr., Inc., No. 19-CV-

7094 (DLI) (LB), 2021 WL 7208994, at *6 (E.D.N.Y. Oct. 5, 2021) (same), report and recommendation

adopted, Oct. 25, 2021 ECF Order Adopting R. & R.

period”), which revealed that Avalanche owed $204,941.00 to the Funds; at some point

later, Avalanche paid $49,000.00, leaving a balance due of $155,941.00. Audit Report,

ECF 22; Pls.’ Mem. in Supp. of Mot. for Default J. (“Pls.’ Mem.”), ECF 15-20, at 3; see

Compl., ECF 1, ¶ 16.2 Per the complaint, Avalanche also failed to provide remittance

reports for the months of December 2023 through February 2024 and September and

October 2024 (the “2023–2024 period”), in violation of the CBA. Id. ¶¶ 26, 36.

Under the terms of the CBA, if the employer fails to submit to an audit, “the

Trustees are permitted to estimate contributions due and owing by using the highest

number of employer’s monthly hours for any month during the twelve (12) preceding

months or during the last twelve (12) months for which contributions reports were

filed, whichever monthly number of hours is greater.” Id. ¶ 27; see CBA, ECF 15-7, Art.

XV § 7. Plaintiffs allege that the month with the highest monthly number of hours in the

relevant 12-month period was October 2023, when 736 hours were reported. Compl.,

ECF 1, ¶ 28. Using the applicable hourly rates for the benefit contributions for the

months at issue, Plaintiffs calculate the total sum owed for the months of December

2023 through February 2024 and September and October 2024 as $129,771.52. Id. ¶¶ 29–

30.

Plaintiffs allege that under §§ 409 and 502 of ERISA and § 185 of the LMRA,

Defendants are liable for (1) $155,941.00 in delinquent contributions and union

assessments for the 2019–2022 period; (2) $129,771.52 in delinquent contributions and

2 The Court notes that in the complaint, Plaintiffs originally alleged that the audit had

revealed a total sum of $210,541.00 due for 2019–2022, of which $49,000.00 had been paid.

Compl., ECF 1, ¶ 16. Although the Court reviews the sufficiency of Plaintiffs’ pleadings based

on the complaint alone, the Court uses the updated damages amount throughout this opinion

for ease of reading.

union assessments for the 2023–2024 period; (3) interest on any unpaid contributions

and assessments at the rate of 10 percent per year; (4) statutory damages totaling 20

percent of the amount of delinquent ERISA contributions; and (5) attorney’s fees and

costs. Id. ¶¶ 19, 30, 35–37, 42, 50; id. at 13–14 (wherefore clause). In their motion for

default judgment, Plaintiffs additionally request that Defendants pay the audit cost of

$5,600.00. See Pls.’ Mem., ECF 15-20, at 9–10; see Straus-Figueroa Aff., ECF 15-3, ¶ 33.

II. Procedural History

As noted above, Plaintiffs filed the complaint in this case on December 12, 2024;

summons was issued that same day. Compl., ECF 1; Summons, ECF 2. On January 27,

2025, Plaintiffs filed proof of service, indicating that Defendant Avalanche was served

via the Secretary of State on January 3, 2025, rendering its answer due January 24, 2025.

Proof of Service, ECF 5. No answer was filed by that date, and on January 28, 2025, the

Court extended Defendant Avalanche’s time to answer to February 18, 2025. Jan. 28,

2025 ECF Order. On February 5, 2025, Plaintiffs filed another proof of service, indicating

that Defendant Jablonowski was served on February 3, 2025, via his sister, A.

Jablonowska, at that Defendant’s residence, rendering his answer due February 24,

2025. Proof of Service, ECF 7. Neither Defendant Jablonowski nor Defendant Avalanche

filed an answer, and on February 25, 2025, Plaintiffs filed a status report indicating their

intent to file a motion for default judgment. Status Report, ECF 8.

No action having been taken, on March 28, 2025, the Court directed Plaintiffs to

initiate default motion practice by April 28, 2025, or risk dismissal for failure to

prosecute under Federal Rule of Civil Procedure 41(b). Mar. 28, 2025 ECF Order. On

April 3, 2025, Plaintiffs requested a certificate of default, which was denied the

following day for lack of a certificate of service under Local Rule 55.1(a)(4). See Req. for

Certificate of Default, ECF 9; Apr. 4, 2025 ECF Notice. On April 4, 2025, Plaintiffs

renewed their request for a certificate of default, which was entered on April 7, 2025.

Req. for Certificate of Default, ECF 10; Clerk’s Entry of Default, ECF 11.

Another three weeks passed without action by Plaintiffs, and on May 1, 2025, the

Court directed Plaintiffs to file their anticipated motion or a status report by May 22,

2025. May 1, 2025 ECF Order. On May 22, 2025, Plaintiffs filed a status report, indicating

their intent to “expand outreach in a last effort to resolve this matter amicably,” and to

move for default judgment no later than June 27, 2025. Status Report, ECF 13. On June

26, 2025, Plaintiffs filed a further letter, advising that they were unsuccessful in

resolving the matter, and requesting an extension to file the default motion, which the

Court granted. Letter, ECF 14; June 30, 2025 ECF Order. On July 24, 2025, Plaintiffs filed

their motion for default judgment. Mot. for Default J., ECF 15.

On July 28, 2025, Plaintiffs moved to seal Exhibit H to their default motion — a

copy of the 2019–2022 period audit report, which inadvertently contained workers’

personal identifying information — and filed a purportedly redacted version of the

audit report. See Mot. to Seal, ECF 16. The Court granted Plaintiffs’ motion to seal and

later entered an order, at Plaintiffs’ request, directing PACER to provide audit trails or

other records regarding the unredacted document. July 29, 2025 ECF Order; Letter, ECF

17; Order, ECF 18.

On October 3, 2025, the Court scheduled a default motion hearing for November

10, 2025, which was later rescheduled to November 17, 2025. Oct. 3, 2025 ECF

Scheduling Order; Oct. 8, 2025 ECF Rescheduling Order. Both scheduling orders were

mailed to Defendants at Avalanche’s last known business address registered with the

New York Secretary of State, which was also Jablonowski’s last known residence. See

Oct. 3, 2025 ECF Scheduling Order; Oct. 8, 2025 ECF Rescheduling Order. Defendants

did not appear at the telephonic default motion hearing on November 17, 2025, and the

Court took Plaintiffs’ motion under advisement. Nov. 17, 2025 ECF Min. Entry & Order.

One month later, the Court discovered that the purportedly redacted version of

the audit report that Plaintiffs had filed with their motion to seal was not, in fact,

properly redacted; when downloaded from PACER, the Court was able to remove the

redactions, revealing personal identifying information. See Dec. 23, 2025 ECF Order. The

Court removed the attachment from the docket and directed Plaintiffs to refile the audit

report with permanent redactions by January 6, 2026, along with a revised request for

total prejudgment interest owed through December 31, 2025, a proposed per diem rate

at which prejudgment interest shall continue to accrue through the date of final

judgment, and an updated calculation as to Plaintiffs’ request for liquidated damages.

Id. On January 5, 2026, Plaintiffs filed the requested documents. See Mots. to Amend,

ECF 22, 23. On January 6, 2026, the Court directed Plaintiffs to file another

supplemental submission, this time identifying the hourly fringe benefit contribution

rates underlying their damages calculation for the entire period for which they request

damages. See Jan. 6, 2026 ECF Order. On January 16, 2026, Plaintiffs filed the requested

supplements. See Mot. to Amend, ECF 24.

DISCUSSION

I. Legal Standards

Federal Rule of Civil Procedure 55 provides a “two-step process” for obtaining a

default judgment. Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011). The

plaintiff must first obtain an entry of default when a defendant “has failed to plead or

otherwise defend” in an action. Fed. R. Civ. P. 55(a). Second, after the certificate of

default is entered, and on the plaintiff’s application, the district court may then enter a

default judgment. Fed. R. Civ. P. 55(a)–(b); see also E.D.N.Y. Loc. Civ. R. 55.2(c). A

“plaintiff is not entitled to a default judgment as a matter of right simply because a

party is in default.” Finkel v. Universal Elec. Corp. (“Universal Elec.”), 970 F. Supp. 2d 108,

118 (E.D.N.Y. 2013). Rather, the decision to grant a motion for default judgment is “left

to the sound discretion of [the] district court because it is in the best position to assess

the individual circumstances of a given case and to evaluate the credibility and good

faith of the parties.”3 Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993).

The district court must also determine whether the plaintiff’s “allegations

establish [the defendant’s] liability as a matter of law.” Finkel v. Romanowicz, 577 F.3d 79,

84 (2d Cir. 2009). In making this determination, the “court is required to accept all of

the . . . factual allegations as true and draw all reasonable inferences in [the plaintiff’s]

favor.” Id. It is “the plaintiff’s burden to demonstrate that those uncontroverted

allegations, without more, establish the defendant’s liability on each asserted cause of

action.” Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 83 (E.D.N.Y. 2012).

Moreover, while a default constitutes an admission of liability as to well-pleaded

allegations, a default is “not considered an admission of damages.” Greyhound

Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). “The district

3 A plaintiff must also establish compliance with the procedural requirements of

E.D.N.Y. Local Civil Rules 7.1, 55.1, and 55.2. Having carefully reviewed the filings in this case,

the Court finds that Plaintiffs’ motion papers comport with these rules. First, Plaintiffs

requested a certificate of default in accordance with Local Rule 55.1(a)(1), which was mailed and

emailed to the last known address for Defendants. See Req. for Certificate of Default, ECF 10;

Certificate of Serv., ECF 10-3 (certifying mailing of Request for Certificate of Default). Second,

Plaintiffs have demonstrated that Defendants have failed to defend the action and that the

pleadings were properly served. Straus-Figueroa Aff., ECF 15-3, ¶ 2 (stating that neither

Defendant is in the military, incompetent, or an infant); see also Affs. of Serv., ECF 5

(establishing service on Corporate Defendant by service on the New York Secretary of State),

ECF 7 (establishing service on the Individual Defendant by person of appropriate age and

discretion at his last known residence). Third, Plaintiffs have certified the mailing of all of the

default motion papers to the Corporate Defendant’s last known business address and

Individual Defendant’s last known residence, in accordance with Local Rule 55.2(a)(3). See

Certificate of Serv., ECF 15-21.

court must instead conduct an inquiry in order to ascertain the amount of damages with

reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d

Cir. 1999). Here, too, the “[p]laintiff bears the burden of presenting proof of damages,

which may take the form of documentary evidence and detailed affidavits.” J & J Sports

Prods., Inc. v. Ahuachapan Corp., 422 F. Supp. 3d 652, 663 (E.D.N.Y. 2019) (citing CIT Bank,

N.A. v. Dambra, No. 14-CV-3951 (SLT) (VMS), 2015 WL 7422348, at *5 (E.D.N.Y. Sept. 25,

2015); Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991)); see also

Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 54 (2d Cir. 1993) (explaining that courts can

assess damages based on “‘detailed affidavits and documentary evidence’” (quoting

Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)); Annuity, Welfare &

Apprenticeship Skill Improvement & Safety Funds of Int'l Union of Operating Eng'rs, Loc. 15,

15A, 15C & 15D v. Trac Constr. Grp., Inc., No. 22-CV-1935 (ENV) (RER), 2022 WL

7810540, at *4 (E.D.N.Y. Oct. 4, 2022) (“In ERISA cases seeking an award of damages

after a finding of liability, Courts frequently rely solely on the affidavits, reports, and

other documentary evidence submitted by [the] plaintiffs.” (quotation marks omitted)),

report and recommendation adopted, Dec. 21, 2022 ECF Order Adopting R. & R. In the

default posture, the moving party is “entitled to all reasonable inferences from the

evidence offered.” Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).

II. Analysis

A. Entry of Default

In determining whether a defendant’s conduct warrants entry of a default

judgment, courts apply the same factors applicable to a motion to set aside entry of a

default. See Enron Oil, 10 F.3d at 96 (noting that “the factors examined in deciding

whether to set aside a default or a default judgment are the same”). These factors

include “1) whether the defendant’s default was willful; 2) whether [the] defendant has

a meritorious defense to [the] plaintiff’s claims; and 3) the level of prejudice the non-

defaulting party would suffer as a result of the denial of the motion for default

judgment.” Mason Tenders Dist. Council v. Duce Constr. Corp. (“Duce Constr. Corp.”), No.

02-CV-9044 (LTS) (GWG), 2003 WL 1960584, at *2 (S.D.N.Y. Apr. 25, 2003); see also Enron

Oil, 10 F.3d at 96. “Other relevant equitable factors may also be considered, for instance,

whether the failure to follow a rule of procedure was a mistake made in good faith and

whether the entry of default would bring about a harsh or unfair result.” Enron Oil, 10

F.3d at 96. In this case, the Court concludes that entry of a default judgment is

appropriate.

1. Willfulness

In the context of default, willfulness “refer[s] to conduct that is more than merely

negligent or careless.” SEC v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998). That said, a

defendant’s “failure to respond to a complaint evinces willful default.” Antoine v.

Brooklyn Maids 26, Inc., 489 F. Supp. 3d 68, 80 (E.D.N.Y. 2020) (citing McNulty, 137 F.3d

at 738–39). Willfulness may also be presumed where, in addition to being properly

served with the complaint, the defendant is notified of court proceedings and yet fails

to respond. See, e.g., United States v. DiPaolo, 466 F. Supp. 2d 476, 482 (S.D.N.Y. 2006);

Antoine, 489 F. Supp. 3d at 81.

Defendants’ failure to respond or otherwise appear in this action supports a

finding of willfulness. The Court notes that Plaintiffs adequately served the Corporate

Defendant by delivering the summons and complaint to the New York Secretary of

State, as permitted by New York law. See Aff. of Serv., ECF 5; N.Y. Bus. Corp. Law

§ 306(b)(1); Fed. R. Civ. P. 4(e)(1) & (h)(1); see also Jean-Louis v. Warfield, 898 F. Supp. 2d

570, 574 (E.D.N.Y. 2012) (explaining that New York law permits service upon a

corporation via the New York Secretary of State). Plaintiffs adequately served the

Individual Defendant via service on a person of suitable age and discretion, his sister, at

his residence. See Aff. of Serv., ECF 7; Fed. R. Civ. P. 4(e)(2)(B). Defendants failed to

respond within 21 days of service. See Affs. of Serv., ECF 5, ECF 7; Straus-Figueroa Aff.,

ECF 15-3, ¶ 6. Defendants likewise failed to respond after Plaintiffs moved for default

judgment and after Defendants were sent notice of the motion both from Plaintiffs and

the Clerk of Court. See Certificate of Serv., ECF 15-21 (certifying service of Plaintiffs’

motion for default judgment, memorandum of law, and supporting declarations and

exhibits, by mail to Defendants); Oct. 3, 2025 Scheduling Order; Oct. 8, 2025

Rescheduling Order; see also Nov. 17, 2025 Min. Entry & Order (indicating that there

was no appearance on Defendants’ behalf at the default motion hearing). In light of

Defendants’ failure to respond, notwithstanding the provision of notice at least three

times regarding this proceeding, the Court weighs this factor in favor of default.

2. Meritorious Defense

“To satisfy the criterion of a ‘meritorious defense,’ the defense need not be

ultimately persuasive at this stage.” Am. All. Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 61 (2d

Cir. 1996). Rather, “‘[a] defense is meritorious if it is good at law so as to give the

factfinder some determination to make.’” Id. (quoting Anilina Fabrique de Colorants v.

Aakash Chems. & Dyestuffs, Inc., 856 F.2d 873, 879 (7th Cir. 1988)). Here, Defendants have

entirely failed to respond to the complaint. In such instances, “courts are unable to

make a determination [of] whether the defendant has a meritorious defense.” Joseph v.

HDMJ Rest., Inc., 970 F. Supp. 2d 131, 143 (E.D.N.Y. 2013). Accordingly, “this factor

weighs in favor of granting a default judgment.” Id.

3. Prejudice

“The final factor the Court must consider is whether the non-defaulting parties

would be prejudiced if the motion for default were to be denied.” Id. at 148. Denying a

motion for default is prejudicial to the plaintiffs where “‘there are no additional steps

available to secure relief.’” Id. (quoting Bridge Oil Ltd. v. Emerald Reefer Lines, LLC, No.

06-CV-14226 (RLC) (RLE), 2008 WL 5560868, at *2 (S.D.N.Y. Oct. 27, 2008)).

In light of Defendants’ failure to respond to both Plaintiffs’ and the Court’s

notices, “there is no indication that requiring Plaintiffs to take further steps . . . would be

effective in eliciting a response from Defendants.” Duce Constr. Corp., 2003 WL 1960584,

at *3. The Court therefore finds that Plaintiffs would be unfairly prejudiced by denial of

the motion for default.

All three factors weigh in favor of default. Seeing no other equitable reason for

denying Plaintiffs’ motion, the Court recommends entering a default judgment.

B. Liability

Plaintiffs have also adequately alleged Defendants’ liability in this matter.

Specifically, Plaintiffs allege that Defendant Avalanche (1) violated its obligations under

the CBA and ERISA by failing to make required contributions to the funds, and

(2) violated the CBA by failing to timely remit reports, contributions, union

assessments, and dues check-offs to the Union. See Compl., ECF 1, ¶¶ 13–19 (January 1,

2019, through September 30, 2022), 25–30 (December 2023 through February 2024 and

September 2024), 36 (December 2023 through February 2024 and September 2024

through October 2024). Plaintiffs further allege that Defendant Jablonowski is

personally liable for these violations as a fiduciary under ERISA. Id. ¶¶ 43–50. The

Court addresses these claims in turn.

1. ERISA Violations4

Plaintiffs allege that Defendant Avalanche, an employer bound by the CBA,

violated ERISA by failing to make required contributions to the ERISA Funds. Under

Section 515 of ERISA,

Every 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, to the extent not inconsistent with

law, make such contributions in accordance with the terms and conditions

of such plan or such agreement.

29 U.S.C. § 1145; see also id. § 1132(g)(2) (stating, inter alia, that if there is a judgment in

favor of a “fiduciary for or on behalf of a plan” seeking to enforce Section 515, “the

court shall award the plan . . . the unpaid contributions,” as well as “interest on the

unpaid contributions [and] liquidated damages” according to the “rate provided under

the plan”). Relatedly, Section 301 of the LMRA provides a federal cause of action for

“violation[s] of contracts between an employer and a labor organization representing

employees . . . or between any such labor organizations.” 29 U.S.C. § 185(a). Where an

employer fails to make required contributions, plan fiduciaries can bring a civil action

to enforce the terms of the CBA. See 29 U.S.C. § 1132(a)(3).

Plaintiffs have adequately demonstrated their entitlement to such relief. In this

case, Plaintiffs allege in the complaint that Defendant Avalanche is an employer as

4 The Court notes that Plaintiffs’ claims are timely. “In lieu of an ERISA-specific

limitations period, courts normally apply the limitations period specified ‘in the most nearly

analogous state limitations statute,’” i.e., New York’s six-year statute of limitations for contract

actions. Landry v. Metro. Life Ins. Co., No. 19-CV-3385 (KPF), 2021 WL 848455, at *7 (S.D.N.Y.

Mar. 5, 2021) (quoting Burke v. PriceWaterHouseCoopers LLP Long Term Disability Plan, 572 F.3d

76, 78 (2d Cir. 2009) (per curiam) (citing N.Y. C.P.L.R. § 213)). The same statute of limitations

applies to ordinary LMRA claims. See O’Hare v. Gen. Marine Transp. Corp., 740 F.2d 160, 167–68

(2d Cir. 1984); see also Del Turco v. Speedwell Design, 623 F. Supp. 2d 319, 338–41 (E.D.N.Y. 2009).

Plaintiffs’ claims fall well within the applicable six-year period.

defined by ERISA.5 Compl., ECF 1, ¶ 6. Plaintiffs further allege that the ERISA Funds

are multi-employer employee benefit plans governed by ERISA to which Avalanche

was obligated to contribute under the CBA. Id. ¶¶ 4, 6. This action was brought by

fiduciaries of the ERISA Funds, i.e., their trustees, as provided for under 29 U.S.C.

§ 1132(a)(3). See id. ¶ 5. Moreover, Plaintiffs have alleged that Defendant Avalanche

failed to submit contributions or reports detailing the number of hours of covered work

performed by Avalanche’s employees during certain periods from January 2019

through October 2024. Id. ¶¶ 15–18 (January 1, 2019, through September 30, 2022), 25–30

(December 2023 through February 2024 and September 2024), ¶ 36 (December 2023

through February 2024 and September 2024 through October 2024). In the absence of

timely and accurate remittance reports, Plaintiffs seek to collect contributions in

accordance with the terms of the CBA. See id. ¶ 27; see also 2019–2023 CBA, ECF 15-7,

Art. XV § 7. In light of Plaintiffs’ allegations that establish their entitlement to relief, the

Court recommends finding Defendant Avalanche liable as to this ERISA claim and

awarding damages, including unpaid contributions, interest, liquidated damages, and

attorney’s fees and costs, as detailed below.

2. Breach of the CBA

As set forth above, Plaintiffs also allege that Defendant Avalanche breached the

CBA by failing to timely submit remittance reports, contributions, union assessments,

5 “An ERISA ‘employer’ is defined as ‘any person acting directly as an employer, or

indirectly in the interest of an employer in relation to an employee benefit plan.’” Silverman v.

Teamsters Loc. 210 Affiliated Health & Ins. Fund, 761 F.3d 277, 285 (2d Cir. 2014) (quoting 29 U.S.C.

§ 1002(5)). “The term ‘multiemployer plan’ means a plan — (i) to which more than one

employer is required to contribute, (ii) which is maintained pursuant to one or more collective

bargaining agreements between one or more employee organizations and more than one

employer, and (iii) which satisfies such other requirements as the Secretary [of Labor] may

prescribe by regulation.” 29 U.S.C. § 1002(37)(A).

and dues check-offs. More specifically, Plaintiffs assert that Defendant Avalanche failed

to remit contributions, union assessments, and dues owed under the CBA from January

2019 onward. See generally Compl., ECF 1. Plaintiffs further assert that from October

2022 onward, Defendant failed to timely submit remittance reports. Id. ¶¶ 11, 26–30.

The LMRA authorizes suits in federal court “for violation[s] of contracts between

an employer and a labor organization[6] representing employees.” 29 U.S.C. § 185(a); see

also Annuity, Pension, Welfare, Training and Lab. Mgmt. Coop. Tr. Funds of Int’l Union of

Operating Eng’rs Loc. 14-14B v. Regal USA Concrete, Inc., No. 23-CV-1208 (FB) (RML),

2023 WL 7413837, at *2 (E.D.N.Y. Sept. 28, 2023), report and recommendation adopted, 2023

WL 6865599 (E.D.N.Y. Oct. 18, 2023). Accordingly, where an employer violates the

terms of a CBA, a “labor organization may sue . . . in behalf of the employees whom it

represents.” 29 U.S.C. § 185(b).

Plaintiffs have adequately alleged entitlement to relief under the LMRA. Per the

allegations in the complaint, the Union is a qualifying labor organization, the CBA is a

contract between the Union and Defendant Avalanche (an employer), and Defendant

Avalanche was bound by the CBA at all relevant times. Compl., ECF 1, ¶¶ 4, 6, 10; see

Straus-Figueroa Affirmation, ECF 15-3, ¶¶ 11, 14; see also CBA Signature Page, ECF 15-

17; see also generally 2019–2023 CBA, ECF 15-7. As alleged in the complaint, under the

CBA, Defendant Avalanche was required to pay specified contributions and to timely

submit remittance reports, as well as payments for contributions to the ERISA and non-

6 A “‘labor organization’ means any organization . . . in which employees participate and

which exists for the purpose, in whole or in part, of dealing with employers concerning

grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”

29 U.S.C. § 152(5).

ERISA funds, union assessments, and dues check-offs. Straus-Figueroa Affirmation,

ECF 15-3, ¶¶ 16–18 (citing 2019–2023 CBA, ECF 15-7, arts. XIV, XV §§ 1, 4, XVI, at 21–22,

24, 30–31). Given the unrebutted allegations in the complaint that Avalanche failed to

timely submit all the required remittance reports, contributions, dues, and other

payments due under the CBA, the Court finds that Plaintiffs have sufficiently

established Defendant Avalanche’s liability for breaching the CBA.

3. Fiduciary Liability

Plaintiffs assert that Defendant Jablonowski is personally liable for the above

violations as a fiduciary of the Fund’s assets. Compl., ECF 1, ¶ 46.

Under ERISA,

Any person who is a fiduciary with respect to a plan who breaches any of

the responsibilities, obligations, or duties imposed upon fiduciaries by this

subchapter shall be personally liable to make good to such plan any losses

to the plan resulting from each such breach, and to restore to such plan

any profits of such fiduciary which have been made through use of assets

of the plan by the fiduciary[.]

29 U.S.C. § 1109(a). The statute explains that “a person is a fiduciary with respect to a

plan to the extent [that] he exercises any discretionary authority or discretionary control

respecting management of such plan or exercises any authority or control respecting

management or disposition of its assets[.]” Id. § 1002(21)(A). To hold Defendant

Jablonowski personally liable as a fiduciary, Plaintiffs must demonstrate “both that

(1) the unpaid contributions were plan assets and (2) [the defendant] exercised a level of

control over those assets sufficient to make him a fiduciary.” In re Halpin, 566 F.3d 286,

289 (2d Cir. 2009); see Bd. of Trs. of Pointers, Cleaners & Caulkers Annuity Fund, Pension

Fund & Welfare Fund v. Harbor Island Contracting, Inc. (“Harbor Island Contracting”), No.

13-CV-6075 (MKB) (RER), 2015 WL 1245963, at *3 (E.D.N.Y. Mar. 16, 2015).

Plaintiffs have demonstrated both elements here. Per the complaint, the CBA and

Declaration of Trust for each of the funds provide that “assets of the Trust Fund shall

not revert or be used for or inure to the benefit of any of the Employers” and that “all

contributions required from an Employer shall, after their due date and until their

payment over in full by the Employer to the Trust Fund[s], be deemed to constitute a

trust fund in the possession of such Employer; and said Employer shall be responsible

and liable therefore as a fiduciary.” Compl., ECF 1, ¶ 45 (quotation marks omitted and

alteration in original). While unpaid contributions are generally not considered plan

assets, the Second Circuit in In re Halpin noted that “parties to an agreement are free to

contractually define unpaid contributions otherwise,” as the parties did here. Sullivan v.

M.A.C. Design Corp., No. 14-CV-1846 (NGG) (VVP), 2015 WL 5518456, at *3 (E.D.N.Y.

Sept. 17, 2015) (discussing In re Halpin); see In re Halpin, 566 F.3d at 289 (holding that, “in

the absence of provisions to the contrary in the relevant plan documents, unpaid

contributions are not assets of the plan”). In Sullivan, a case arising under the same

CBA, the court found that the instant language was “sufficient to designate the unpaid

employer contributions as plan assets.” 2015 WL 5518456, at *2. This reasoning applies

with equal force here. Accordingly, the Court finds that the unpaid contributions are

plan assets.

The complaint further alleges that Defendant Jablonowski “exercised ‘authority

or control respecting management or disposition’” over fund assets; was authorized to

sign checks on behalf of Avalanche, “including checks that should have been submitted

to the Funds”; and determined whether Avalanche would make its required

contributions to the Funds, pay other corporate obligations, or transfer the Funds’ assets

to himself. Compl., ECF 1, ¶ 47 (quoting 29 U.S.C. § 1002(21)(A)). “These allegations,

taken as true, are sufficient to establish [an individual defendant’s] personal liability as

a fiduciary under ERISA.” Harbor Island Contracting, 2015 WL 1245963, at *3; see LoPresti

v. Terwilliger, 126 F.3d 34, 40 (2d Cir. 1997) (finding liability as a fiduciary under ERISA

when the defendants signed checks on the company’s account and determined whether

and how creditors would be paid).

For these reasons, the Court recommends finding Defendant Jablonowski a

fiduciary and personally liable for Defendant Avalanche’s deficient contributions under

ERISA.

III. Damages

Having found that Defendants’ default constitutes an admission of liability with

respect to both of Plaintiffs’ claims and that entry of default is warranted, the Court

now determines the appropriate damages. See Cement & Concrete Workers Dist. Council

Welfare Fund, Pension Fund, Annuity Fund, Educ. & Training Fund & Other Funds v. Metro

Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012) (explaining that although the

allegations in a complaint related to liability are deemed admitted upon entry of a

default judgment, a default “‘is not considered an admission of damages’” (quoting

Greyhound Exhibitgroup, 973 F.2d at 158)). “The court must determine the amount of

damages, actual or statutory, that may be assessed,” and “ensure that there is a

reasonable basis for the damages specified in a default judgment.” Santillan v. Henao,

822 F. Supp. 2d 284, 290 (E.D.N.Y. 2011).

“Section 502 of ERISA sets forth the damages that are recoverable for an

employer’s failure to remit contributions as required by Section 515 of ERISA.” Finkel v.

Colony Elec. Co. (“Colony Elec.”), No. 10-CV-2240 (FB) (LB), 2010 WL 5665042, at *4

(E.D.N.Y. Nov. 8, 2010), report and recommendation adopted, 2011 WL 346738 (E.D.N.Y.

Feb. 1, 2011). Section 502, which was codified at 29 U.S.C. § 1132(g)(2), provides as

follows:

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.

29 U.S.C. § 1132(g)(2). For LMRA claims, plaintiffs may only recover the damages

provided for in the contract itself. See Colony Elec., 2010 WL 5665042, at *4.

Here, Plaintiffs assert that they are entitled to delinquent ERISA contributions

and non-ERISA contributions, prejudgment interest, and liquidated damages.7 Pls.’

Mem., ECF 15-20, at 6–9. Plaintiffs also request auditor’s fees, attorney’s fees, and costs.

Id. at 9–13. Specifically, Plaintiffs assert that they are entitled to the following damages:

$155,941.00, representing the balance of delinquent contributions owed for the 2019–

2022 period; $129,771.52 in estimated contributions owed for the 2023–2024 period;

$50,478.10 in interest on unpaid contributions for the 2019–2022 period; $21,029.59 in

interest on unpaid contributions for the 2023–2024 period; and liquidated damages in

7 The Court notes that Plaintiffs requested various forms of injunctive relief in the

complaint. See Compl., ECF 1, ¶¶ 24, 56; id. at 13–15 (wherefore clause). However, Plaintiffs do

not seek such relief in the default motion papers. See generally Pls.’ Mem., ECF 15-20.

Accordingly, the requests for injunctive relief are deemed abandoned. See Harbor Island

Contracting, 2015 WL 1245963, at *2 n.1.

the amount of $57,142.51. See Revised Statement of Damages, ECF 23 (calculating

interest through Dec. 31, 2025); Revised Proposed Judgment, ECF 23-1. The Court

recommends awarding damages as follows.

A. Delinquent Contributions and Dues

The CBA requires Avalanche “to submit contributions, dues and various

assessments for all employees performing bargaining unit work.” Straus-Figueroa

Affirmation, ECF 15-3, ¶ 16 (citing 2019–2023 CBA, ECF 15-7, arts. XIV, XV, XVI, at 21–

31). For each employee that has authorized the employer to do so, the employer must

deduct “the sum for each hour paid” that the Union has designated as the employees’

dues and “transmit” them to the Union on a monthly basis. 2019–2023 CBA, ECF 15-7,

art. XIV § 1, at 21–22. The employer must remit contributions to the ERISA and non-

ERISA funds “weekly for the pay period immediately preceding, to be mailed on the

same day wages are paid and for the same period.” Id. art. XV, § 2, at 22. Remittance

reports are due by the 15th day of the following month. Id. art. XV, § 4, at 23.

Plaintiffs have submitted a copy of the audit report for Defendant Avalanche’s

accounting and payroll records for the 2019–2022 period, prepared by the Plaintiffs’

auditor, Kobgo Associates, Inc. (“Kobgo”), which is accompanied by the corresponding

schedule of omissions. Audit Report, ECF 22; see Straus-Figueroa Affirmation, ECF 15-3,

¶ 25. The audit found that $204,941.00 in contributions had not been paid, and

Defendant Avalanche thereafter paid $49,000.00 towards the overdue contributions,

leaving a balance of $155,941.00. Straus-Figueroa Affirmation, ECF 15-3, ¶¶ 25–26; see

Straus-Figueroa Suppl. Affirmation, ECF 24, ¶ 7. Plaintiffs have also submitted payment

schedules, which outline the hourly benefit rates for the applicable time periods. See

Payment Schedules, ECF 24-2. Having reviewed the affirmations filed in support of

Plaintiffs’ motion, together with the underlying exhibits submitted in support, the

Court finds that Plaintiffs have established Defendants’ non-payment in the amount of

$155,941.00, representing the unpaid dues and contributions owed for the 2019–2022

period ($204,941.00) minus the payment by Defendant Avalanche ($49,000.00).8 See Bd.

of Trs. of Pointers, Cleaners & Caulkers Welfare Fund, Pension Fund & Annuity Fund v. Super

Eagle Contracting, Inc., No. 12-CV-0399 (KAM) (RER), 2013 WL 802034, at *2 (E.D.N.Y.

Jan. 16, 2013) (finding analogous documentation to provide “a sufficient basis on which

to award unpaid contributions”), report and recommendation adopted, 2013 WL 802847

(E.D.N.Y. Mar. 5, 2013).

Plaintiffs also seek damages in an amount equal to the estimated delinquent

payments for the 2023–2024 period (December 2023 through February 2024 and

September through October 2024). As discussed, if the employer does not submit to an

audit, the CBA allows the Trustees to estimate contributions due “by using the highest

number of employer’s monthly hours for any month during the twelve (12) preceding

8 Courts in the Second Circuit may rely on audits or auditor’s reports for calculating

damages, but must examine whether the auditor’s assumptions and techniques were

“reasonable.” Bricklayers Ins. & Welfare Fund v. Doran Tatrow Assocs., Inc., No. 18-CV-2475 (RJD)

(ST), 2021 WL 7208997, at *4 (E.D.N.Y. Mar. 15, 2021) (quotation marks omitted) (collecting

cases), report and recommendation adopted, Apr. 8, 2021 ECF Order Adopting R. & R., appeal

dismissed, ECF 42. Here, the cover letter for the audit report indicates that the auditor

“performed the agreed-upon procedures, as described in our payroll audit program . . . to

determine the completeness and accuracy of remittance reports filed and contributions paid

under the terms of the” CBA. Audit Report, ECF 22, at ECF p. 1. The Court has performed its

own analysis of certain line entries in the audit report and is satisfied that Kobgo properly

determined the amount of contributions owed. For example, analyzing the delinquent

contributions to the Defense Fund, Kobgo calculated that 248 hours had not been reported for

the period of January 1, 2019, through June 30, 2019. Compare Audit Report, ECF 22, at ECF p. 3

(payroll period “7/1/18–6/30/19”), with id. at ECF p. 5 (adding 96, 96, 24, and 32 delinquent

hours to calculate 248 hours not reported in February and April 2019). The applicable benefit

rate for contributions to the Defense Fund during this period was $0.17. See Payment Schedule,

ECF 24-2, at ECF p. 1. Kobgo correctly assessed the total delinquency associated with that

period as $42.16. Audit Report, ECF 22, at ECF p. 3 (248 x $0.17 = $42.16). See Bricklayers Ins. &

Welfare Fund v. Alpha Omega Bldg. Corp., No. 19-CV-2600 (ERK) (RLM), 2022 WL 18858966, at *7

n.13 (E.D.N.Y. Nov. 10, 2022) (performing selective examination of the auditor’s calculations),

report and recommendation adopted, Nov. 30, 2022 ECF Order Adopting R. & R.

months or during the last twelve (12) months for which contributions reports were

filed, whichever monthly number of hours is greater.” Compl., ECF 1, ¶ 27; see 2019–

2023 CBA, ECF 15-7, art. XV § 7(b), at 24. Here, although Kobgo was able to audit the

2019–2022 timeframe, Defendants have not submitted to an audit or provided

remittance reports for the 2023–2024 pay periods at issue. See Compl., ECF 1, ¶¶ 11, 20–

24, 26. Accordingly, under the terms of the CBA, Plaintiffs are entitled to estimate

delinquent contributions in the manner described. Plaintiffs submit that the number of

hours reported in October 2023, 736, should be used. Compl., ECF 1, ¶ 28. Multiplying

the applicable hourly rates for the benefit contributions for the months at issue,

Plaintiffs calculate the total sum owed for the months of December 2023 through

February 2024 and September 2024 through October 2024 as $129,771.52. Id. ¶¶ 29–30.

Plaintiffs’ submissions illustrate that the applicable hourly benefit rate for

December 2023 through February 2024 was $34.74, while the rate for September and

October 2024 was $36.05. See id. ¶ 29; Payment Schedule, ECF 24-2, at ECF pp. 6 (July 1,

2023 to June 30, 2024; summing the “mechanic hourly fringes” (capitalization

modified)), 7 (July 1, 2024 to June 30, 2025; same). Multiplying these hourly rates by the

number of months these rates applied and the asserted number of delinquent hours, the

Court likewise calculates the damages total as $129,771.52. ([$34.74 x 3 months x 736 =

$76,705.92] + [$36.05 x 2 months x 736 = $53,065.60] = $129,771.52). Accordingly, the

Court recommends awarding Plaintiffs $129,771.52 in estimated delinquent

contributions for 2023–2024.

In light of the foregoing, the Court respectfully recommends awarding Plaintiffs

$285,712.52 in damages, representing the unpaid contributions associated with the

2019–2022 period ($155,941.00) and the 2023–2024 period ($129,771.52).

B. Prejudgment Interest

ERISA states that “interest on unpaid contributions shall be determined by using

the rate provided under the plan,” if any. 29 U.S.C. § 1132(g)(2). The CBA provides that

a delinquent employer is liable for interest at a rate of 10 percent of all unpaid

contributions, “or at the maximum legal rate, whichever is greater.” 2019–2023 CBA,

ECF 15-7, art. XV, § 7(e), at 25. With regard to the non-ERISA funds, dues, and related

assessments, because the LMRA allows labor unions “to sue in federal court for

breaches of state-law labor contracts,” generally, the nine-percent annual interest rate

under N.Y. C.P.L.R. § 5004 is “appropriate” when calculating prejudgment interest on

non-ERISA contributions. Annuity, Pension, Welfare & Training Funds of the Int’l Union of

Operating Eng’rs, Loc. 14-14B v. Superior Site Work, Inc. (“Superior Site Work”), No. 15-CV-

0543 (MKB), 2017 WL 639248, at *8 (E.D.N.Y. Feb. 16, 2017) (citing 29 U.S.C. § 185(a)).

However, where, as here, the parties agreed to award a higher percentage in interest

upon the employer’s failure to remit payment, they should be bound to the terms of

their agreement. See Annuity, Pension, Welfare & Training Funds of I.U.O.E. Loc. 14-14 B v.

Falcon Steel Co., No. 16-CV-0020 (RRM), 2016 WL 8465987, at *6 (E.D.N.Y. Apr. 13, 2016)

(approving award of 15 percent interest on non-ERISA contributions as “the interest

rate to which the parties agreed”), report and recommendation adopted, 2017 WL 945851

(E.D.N.Y. Mar. 9, 2017). Because the CBA here allows an interest rate of 10 percent or

“the maximum legal rate,” the annual 10 percent rate prescribed in the CBA applies to

calculating the interest associated with the delinquent ERISA contributions and non-

ERISA contributions. 2019–2023 CBA, ECF 15-7, art. XV, § 7(e), at 25; see Bricklayers Ins.

& Welfare Fund v. Precise Brick, Inc., No. 08-CV-4362 (CBA) (CLP), 2009 WL 4891821, at

*6–7 (E.D.N.Y. Dec. 17, 2009) (allowing 10 percent prejudgment interest rate on ERISA

and non-ERISA delinquent contributions based on the CBA’s terms).

Plaintiffs have used the following formula to calculate prejudgment interest with

respect to the unpaid balance: (amount due) x (interest rate per month, expressed as

0.1/12 or 0.0083) x (months out from due date). Straus-Figueroa Suppl. Affirmation,

ECF 24, ¶ 10; Straus-Figueroa Affirmation, ECF 15-3, ¶ 31; Revised Calculations, ECF

24-1, at ECF p. 2. For the 2019–2022 period, Plaintiffs assert that the due date was

October 2022, representing when the $155,941.00 balance on the audit became due (in

other words, excluding interest on the $49,000.00 paid by Avalanche), while the due

dates for the months in the 2023–2024 period are calculated as of the first of the month

following the month as to which the estimated payments are associated. See Revised

Calculations, ECF 24-1, at ECF p. 2; 2019–2023 CBA, ECF 15-7, art. XV § 4, at 23. The

number representing “months out” is calculated through December 31, 2025. See Straus-

Figueroa Suppl. Affirmation, ECF 24, ¶ 10. Applying the 10 percent rate from each

contribution period through December 31, 2025, Plaintiffs seek $71,507.69 in interest,

representing $50,478.10 in interest on the 2019–2022 audit balance and $21,029.59 on the

2023–2024 estimated unpaid contributions. See id.; Revised Calculations, ECF 24-1, at

ECF p. 2.

The Court observes that Plaintiffs have made an error in calculating their request

for prejudgment interest by applying the 10 percent interest rate to unpaid ERISA

contributions, non-ERISA contributions, and dues, even though under the terms of the

CBA, the 10 percent interest rate only applies to unpaid ERISA and non-ERISA

contributions. See 2019–2023 CBA, ECF 15-7, art. XV, § 7(e), at 25–26; see also id. §§ 7(h)-

(i), at 27 (distinguishing between contributions owed to the funds and dues owed to the

Union); compare Pls.’ Mem., ECF 15-20, at 8–9 (asserting that Plaintiffs are owed only

interest on the delinquent contributions owed to the funds at the 10 percent rate), with

Straus-Figueroa Affirmation, ECF 15-3, ¶ 22 (asserting that Plaintiff Local 1 is owed

prejudgment interest on unpaid dues “pursuant to the common law and NY CPLR

§§ 5001, 5004”). Because the CBA does not contemplate charging interest on delinquent

dues, the nine percent rate under the N.Y. C.P.L.R. § 5004 is appropriate for calculating

prejudgment interest on dues and assessments owed to the Union, while the 10 percent

interest rate under the CBA is appropriate for the ERISA and non-ERISA contributions.

Superior Site Work, 2017 WL 639248, at *8. Accordingly, the Court recalculates Plaintiffs’

prejudgment interest, using the 10 percent rate for the delinquent ERISA and non-

ERISA contributions, and the nine percent rate for the delinquent dues.

Of the remaining audit balance for the 2019–2022 period, Plaintiffs calculate that

$143,042.00 is attributable to delinquent ERISA contributions, $2,693.35 is attributable to

delinquent non-ERISA contributions, and $10,205.63 is attributable to delinquent dues.9

See Revised Calculations, ECF 24-1. Of the estimated contributions for the 2023–2024

period, $116,104.00 is attributable to estimated ERISA contributions, $2,318.40 is

attributable to estimated non-ERISA contributions, and $11,349.12 is attributable to

estimated dues.10 See Revised Calculations, ECF 24-1; Payment Schedules, ECF 24-2

9 The Court observes a two-cent discrepancy between the total of these three numbers

($143,042.00 + $2,693.35 + $10,205.63 = $155,940.98) and the number Plaintiffs represent as the

total unpaid balance of the 2019–2022 audit report, minus Defendants’ $49,000 payment

($155,941.00). See Straus-Figueroa Suppl. Affirmation, ECF 24, ¶ 7. In the context of a

delinquency of this size and the likelihood that the discrepancy is attributable to rounding

errors, the Court disregards this discrepancy as de minimis, and allocates two cents to the

amount due on ERISA contributions based on the audit throughout this opinion.

10 The Court verified the accuracy of Plaintiffs’ calculations by multiplying the estimated

hours (736) by the sum of the applicable hourly benefit rates for the ERISA funds, non-ERISA

funds, and dues for each month in the 2023–2024 period in which Plaintiffs assert contributions

were not paid, then totaling each category of unpaid contribution. For example, in December

(identifying applicable benefit rates); cf. Straus-Figueroa Suppl. Affirmation, ECF 24, ¶ 4

(segregating ERISA from non-ERISA contributions).

The Court recommends an award of prejudgment interest, using the

methodology Plaintiffs propose, adapted to apply the nine percent rate (expressed as

0.09/365 or 0.00024658) to the delinquent dues, calculated through December 31, 2025.

So recalculated, the Court recommends granting Plaintiffs $66,514.48 in prejudgment

interest. The Court also recommends awarding additional prejudgment interest at a rate

of $77.68 per day,11 calculated from January 1, 2026, through the date that the Clerk of

Court enters final judgment.

C. Liquidated Damages

Plaintiffs also request liquidated damages, as permitted under ERISA. See 29

U.S.C. § 1132(g)(2)(C). ERISA permits an award of liquidated damages in “an amount

equal to the greater of . . . interest on the unpaid contributions,” id. § 1132(g)(2)(C)(i), or

“‘an amount not in excess of 20 percent’” of the unpaid contributions “as of the day the

2023, the sum of the applicable hourly benefit rates for all the ERISA Funds was $31.05. See

Revised Calculations, ECF 24-1, at ECF p. 1. Multiplying $31.05 by 736 hours equals $22,852.80

in estimated unpaid contributions to the ERISA Funds for December 2023. The Court observes,

however, that the inconsistency in Plaintiffs’ submissions, see supra note 1, “caused the [C]ourt

to expend its own time to conduct legal research and calculate interest rates and other figures

accurately,” Trs. of United Teamster Fund v. J.B. Mufflers, Inc., No. 07-CV-1425 (SJ) (RML), 2008

WL 2114955, at *6 (E.D.N.Y. May 19, 2008). Plaintiffs are advised to draft their pleadings and

motions with more precision henceforth.

11 The Court calculates the daily prejudgment rate according to the following table:

Daily Interest Daily Prejudgment

Balance

Rate Interest Amount

Total Delinquent ERISA +

$264,157.77 0.00027397 $72.37

Non-ERISA Contributions

Total Delinquent Dues $21,554.75 0.00024658 $5.31

Total $77.68

action was filed.” Trs. of Pavers & Rd. Builders Dist. Council Welfare, Pension, & Annuity

Funds v. Atl. Steel Sols., LLC, No. 21-CV-2518 (CBA) (JRC), 2022 WL 4642735, at *7

(E.D.N.Y. Sept. 15, 2022) (quoting 29 U.S.C. § 1132(g)(2)(C)(ii)), report and

recommendation adopted, 2022 WL 4662723 (E.D.N.Y. Sept. 30, 2022), supplemented, 2022

WL 11727626 (E.D.N.Y. Oct. 20, 2022). The CBA provides for a 20 percent liquidated

damages award where the employer does not timely remit contributions, an audit

reveals a deficiency, legal counsel assists in collection, and litigation is initiated. See

2019–2023 CBA, ECF 15-7, art. XV, § 7(e), at 25–26. This remedy is within the liquidated

damages allowed under ERISA. See 29 U.S.C. § 1132(g)(2)(C)(ii).

Here, Plaintiffs request liquidated damages equal to 20 percent of the unpaid

ERISA contributions, asserting that this amount is larger than the interest on the ERISA

contributions. Plaintiffs calculate that of the total unpaid contributions, $259,146.02 is

attributable to contributions owed to the ERISA funds only. See Revised Calculations,

ECF 24-1, at ECF pp. 1 ($143,042.02 ERISA audit balance (2019–2022)12 + $116,104.00

estimated ERISA contributions (2023–2024)), 3 (total ERISA); see Straus-Figueroa Suppl.

Affirmation, ECF 24, ¶ 11.

The Court observes that 10 percent interest on the ERISA contributions,

calculated from the date the contributions became due through December 31, 2025,

equals $65,112.61, which is larger than 20 percent of $259,146.02 ($51,829.20). Because

the 10 percent interest owed on the unpaid ERISA contributions is larger than 20

percent of that principal, the Court finds that Plaintiffs have established their

entitlement to liquidated damages on Defendants’ unpaid ERISA contributions in the

12 As discussed supra note 9, the Court adds two cents to the outstanding ERISA

delinquency from this period to address a rounding discrepancy.

amount of $65,112.61.13 29 U.S.C. § 1132(g)(2)(C)(i); see Gesualdi v. Burtis Constr. Co., No.

20-CV-4864 (ARR) (ARL), 2021 WL 6550952, at *4 (E.D.N.Y. Dec. 28, 2021), report and

recommendation adopted, 2022 WL 173548 (E.D.N.Y. Jan. 19, 2022); Trs. of Bldg. Trades

Educ. Benefit Fund v. Laura Elec. Lighting & Maint. Serv. Inc., No. 20-CV-3700 (DRH)

(JMW), 2021 WL 6294391, at *4 (E.D.N.Y. Dec. 14, 2021), report and recommendation

adopted, 2022 WL 59655 (E.D.N.Y. Jan. 6, 2022); Trs. of Bldg. Trades Educ. Benefit Fund v.

Culver Elec., LLC, No. 17-CV-3448 (DRH) (ST), 2021 WL 1911122, at *4 (E.D.N.Y. Apr. 19,

2021), report and recommendation adopted, 2021 WL 1906486 (E.D.N.Y. May 12, 2021).

13 The Court calculates the liquidated damages according to the following table, using

October 1, 2022, as the due date for the 2019–2022 period based on the audit balance, and using

the first of the month after the payments were due as the due date for the estimated periods in

2023 and 2024.

Contribution

Amount Monthly Months Out

(736 hours x Interest as of

Interest through

Contribution Period ERISA contrib. Rate Due Date 12/31/2025

12/31/2025

amount for the (0.1/12 or (months

2023–2024 0.0083) overdue)

periods)

2019–2022 Audit

$143,042.02 0.0083 10/1/2022 39 $46,302.70

Balance

December 2023 $22,852.80 0.0083 1/1/2024 24 $4,552.28

January 2024 $22,852.80 0.0083 2/1/2024 23 $4,362.60

February 2024 $22,852.80 0.0083 3/1/2024 22 $4,172.92

September 2024 $23,772.80 0.0083 10/1/2024 15 $2,959.71

October 2024 $23,772.80 0.0083 11/1/2024 14 $2,762.40

Total $65,112.61

D. Other Awards

1. Attorney’s Fees

Although ERISA mandates the recovery of attorney’s fees in any successful

action to recover delinquent contributions, courts have broad discretion in determining

what constitutes a reasonable attorney’s fee. See 29 U.S.C. § 1132(g)(2)(D); Arbor Hill

Concerned Citizens Neighborhood Ass’n v. County of Albany (“Arbor Hill”), 522 F.3d 182,

183–84, 190 (2d Cir. 2008). In this Circuit, a reasonable attorney’s fee is based on a

number of factors, including the labor and skill required, the difficulty of the issues, the

attorney’s customary hourly rate, awards given in similar cases, and the experience,

reputation, and ability of the attorney. See Arbor Hill, 522 F.3d at 186 n.3, 190. Further,

under the “forum rule,” courts typically assess an attorney’s requested hourly rate by

comparison to other rates awarded in the district in which the reviewing court sits. See

Simmons v. N.Y.C. Transit Auth., 575 F.3d 170, 174–76 (2d Cir. 2009).

Once a court determines the reasonable hourly rate, it must multiply that rate by

the number of hours reasonably expended to determine the presumptively reasonable

fee. See Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (“Both this Court and

the Supreme Court have held that the lodestar — the product of a reasonable hourly

rate and the reasonable number of hours required by the case — creates a

‘presumptively reasonable fee.’” (quoting Arbor Hill, 522 F.3d at 183) (internal quotation

marks omitted)). With very limited exceptions, requests for attorney’s fees in the Second

Circuit “should normally be disallowed unless accompanied by contemporaneous time

records.” Marion S. Mishkin L. Off. v. Lopalo, 767 F.3d 144, 148 (2d Cir. 2014) (quotation

marks omitted); see also Universal Elec., 970 F. Supp. 2d at 127. Whether the hours

expended on a matter are reasonable is a separate inquiry from the reasonableness of

the hourly rate, and should be scrutinized with the same care. See Bay Park Ctr. for

Nursing & Rehab. LLC v. Philipson, 659 F. Supp. 3d 312, 317–18 (E.D.N.Y. 2023).

In this case, counsel seeks $11,722.50 in attorney’s fees, representing 37.5 hours

billed by a partner, Sylvie Straus-Figueroa, and one hour by a senior partner. See Straus-

Figueroa Affirmation, ECF 15-3, ¶ 34; Contemporaneous Time Records, ECF 15-14; see

also Affirmation of Att’y’s Servs., ECF 15-15, ¶ 4 (representing that the total attorney’s

fee for this matter through July 24, 2025, was $10,594.00, contra the totals in counsel’s

Contemporaneous Time Records, ECF 15-14). Plaintiffs’ counsel represents that both her

and the senior partner’s billing rates were $285.00 per hour through May 2024, and

$305.00 per hour through the present. Affirmation of Att’y’s Servs., ECF 15-15, ¶ 3.

Here, the Court respectfully recommends awarding fees based on the requested

hourly rates. First, counsel’s hourly rates are reasonable given similar rates awarded in

this context. “In ERISA cases, attorney’s fees have been awarded in the Eastern District

of New York at an hourly rate of $300.00 to $450.00 for partners, $200.00 to $325.00 for

senior associates, $100.00 to $200.00 for junior associates, and up to $90.00 for non-

attorney support staff.” Trs. of Pavers & Rd. Builders Dist. Council Welfare, Pension, &

Annuity Funds v. IKNA Constr. LLC, No. 24-CV-0561 (CBA) (JAM), 2025 WL 447731, at

*17 (E.D.N.Y. Jan. 15, 2025) (quotation marks omitted), adopted sub nom. Trs. of Pavers &

Rd. Builders Dist. Council Welfare, Pension, & Annuity Funds v. INKA Constr. LLC, 2025

WL 777108 (E.D.N.Y. Mar. 11, 2025); see also Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d

224, 232–33 (2d Cir. 2006) (noting that fee awards must take into account “the current

market rate” in the district). But see Rubin v. HSBC Bank USA, NA, 763 F. Supp. 3d 233,

242–43 (E.D.N.Y. 2025) (noting that attorney’s fees may be adjusted for inflation).

Although counsel did not provide background information about Ms. Straus-Figueroa’s

credentials or expertise, the Court notes that rates of $285 and $305 comport with

previous fee awards that courts in this district have awarded her, taking inflation into

account. See Harbor Island Contracting, 2015 WL 1245963, at *6 (awarding $200 per hour

to Ms. Straus-Figueroa in 2015). Therefore, the Court recommends finding Plaintiffs’

requested hourly rates reasonable, as to Ms. Straus-Figueroa.

Plaintiffs represent that counsel spent 38.5 hours working on this case. The Court

observes that this slightly “exceeds what is typical for similar ERISA-default matters.”

Gesualdi v. Seacost Petrol. Prods., Inc. (“Seacost Petrol. Prods.”), 97 F. Supp. 3d 87, 107–08

(E.D.N.Y. 2015) (collecting cases finding 21.1 to 32.4 hours reasonable, and finding 39.55

hours excessive); see Bakery & Confectionery Union & Indus. Int'l Pension Fund v. Ges Bake

Shop, Inc. (“Ges Bake Shop”), No. 13-CV-0728 (FB) (CLP), 2014 WL 1159821, at *10

(E.D.N.Y. Mar. 21, 2014) (finding 31.2 hours of work reasonable in an ERISA default

case). Additionally, Plaintiffs’ submissions “fail to offer an explanation for the excessive

amount of time spent on [what] appears to be a straightforward and unopposed ERISA-

default case, without any complex factual or legal issues.” Seacost Petrol. Prods., 97 F.

Supp. 3d at 107; see Straus-Figueroa Affirmation, ECF 15-3, ¶¶ 34–39; Contemporaneous

Time Records, ECF 15-14; see also Affirmation of Att’y’s Servs., ECF 15-15.

Moreover, the Court notes that although Ms. Straus-Figueroa did not request an

attorney’s fee award for time spent correcting the redactions issue, that the audit report

was submitted to the Court with workers’ personal identifying information unredacted

or improperly redacted twice suggests that “Plaintiffs’ counsel’s time was not spent

carefully preparing and proofreading the dispositive motion papers that account for the

majority of the work on this case.” Seacost Petrol. Prods., 97 F. Supp. 3d at 107. This

suggestion is underscored by two additional observations. First, Plaintiffs’ initial

submissions were “missing information necessary for the Court to assess Plaintiffs[’]

entitlement to their requested relief,” requiring the Court to issue an order for

supplemental filings. Jan. 6, 2026 ECF Order. Second, both Plaintiffs’ initial and

supplemental filings included ambiguities and inconsistencies, as discussed supra notes

1 and 10, which required that the Court expend its own scarce resources to verify the

accuracy of Plaintiffs’ calculations. Compare Straus-Figueroa Suppl. Affirmation, ECF 24,

¶ 4 (representing that the IPF PPA Special Assessment Fund is not covered by ERISA),

with Revised Calculations, ECF 24-1, at ECF p. 4 (representing that the IPF PPA Special

Assessment Fund is covered by ERISA); see id. at ECF p. 1 (calculating prejudgment

interest on delinquent ERISA contributions by including the IPF PPA Special

Assessment Fund benefit rate). Courts in this district have found similar inconsistencies

to provide an adequate basis for reducing an award of attorney’s fees. See Trs. of United

Teamster Fund v. J.B. Mufflers, Inc., No. 07-CV-1425 (SJ) (RML), 2008 WL 2114955, at *6

(E.D.N.Y. May 19, 2008) (finding a 50 percent reduction sufficient to “account for the

various filing deficiencies”); Gesualdi v. Stallone Testing Lab'ys, Inc., No. 10-CV-0646

(ENV) (LB), 2011 WL 2940606, at *1 (E.D.N.Y. July 19, 2011) (observing that “calculation

errors and poor drafting merit fee reductions by casting doubt on the accuracy of a

party’s submissions to the court and forcing the court to expend resources

unnecessarily as a result”).

The Court observes yet another issue with Plaintiffs’ filings requesting an award

of attorney’s fees. Plaintiffs’ counsel’s contemporaneous time records appear to have

been submitted on behalf of Ms. Straus-Figueroa alone, but also includes a time

summary for one hour expended by a “senior partner.” Affirmation of Att’y’s Servs.,

ECF 15-15, ¶¶ 3, 4 (representing that Ms. Straus-Figueroa consulted with a “Sr.

Partner”); Contemporaneous Time Records, ECF 15-14 (“Contemporaneous Time

Record of Sylvie Straus-Figueroa” (emphasis added)). Counsel’s filings do not identify

this senior partner by their full name, nor offer their credentials. Compare Att’y Billing

Records, ECF 15-13 at ECF pp. 1 (letterhead identifying William Rothberg as an attorney

at the firm Rothberg, Straus & Contrubis), 2 (time summary identifying one billing

professional as “Rothberg”), with Contemporaneous Time Records, ECF 15-14 and

Affirmation of Att’y’s Servs., ECF 15-15. Such omissions have been found to likewise

provide a sufficient basis to reduce the requested fee award. See Prot. One Alarm

Monitoring, Inc. v. Exec. Prot. One Sec. Serv., LLC., 553 F. Supp. 2d 201, 209 (E.D.N.Y.

2008) (“Where the moving party fails to provide information on the attorneys’ and

paralegals’ backgrounds and experience, courts have used their discretion to award fees

at a rate lower than requested.”).

In light of (1) the unexplained deviation from the number of hours courts in this

district typically consider reasonable for an unopposed ERISA default; (2) Plaintiffs’

incomplete and inconsistent submissions; and (3) the failure to submit sufficiently

detailed billing records that would allow the Court to analyze the reasonableness of

each billing professional’s hours, the Court recommends reducing the requested fee

award by 10 percent. Accordingly, the Court recommends an award of $10,550.25 in

attorney’s fees. Ms. Straus-Figueroa is further advised that failure to provide

information regarding the background and qualifications of any billing professionals

involved in future applications may again result in an across-the-board reduction in the

fee award. Ahn v. Sun Cleaners Inc., No. 19-CV-5919 (DLI) (PK), 2022 WL 586022, at *11

(E.D.N.Y. Feb. 18, 2022) (reducing the hourly rate for a billing professional where

counsel did not include a description of the billing professional’s credentials), report and

recommendation adopted, 2025 WL 845552 (E.D.N.Y. Mar. 18, 2025).

2. Costs

“When a prevailing party seeks to recover those costs associated with the

prosecution of an action, the court is permitted to award reasonable expenses incurred

by the attorneys and charged to clients.” Ret. Fund of Loc. 1482 Paint & Allied Prods. Mfrs.

v. N. Adhesives, Inc., No. 19-CV-5609 (MKB) (RER), 2020 WL 6370060, at *5 (E.D.N.Y.

May 27, 2020) (citing Div. 1181 Amalgamated Transit Union–N.Y. Emps. Pension Fund v. D

& A Bus Co., Inc., 270 F. Supp. 3d 593, 628 (E.D.N.Y. 2017)). Here, Plaintiffs request

$769.00 in costs, representing the $405.00 filing fee and $364.00 in fees pertaining to

service of process. Pls.’ Mem., ECF 15-20, at 13; see Service Billing Records, ECF 15-16.

The Court may take judicial notice of the $405.00 filing fee. The Court finds the service

of process costs to be documented and reasonable and, consequently, recommends

awarding $769.00 in costs. See Ges Bake Shop, 2014 WL 1159821, at *11.

3. Audit Costs

Plaintiffs also request that Defendants be charged “‘the full cost of the audit,’”

$5,600.00, alleging that under the CBA, when an employer’s account is “‘substantially

delinquent, said Employer may be charged the full cost of such audit.’” Pls.’ Mem., ECF

15-20, at 9–10 (quoting 2019–2023 CBA, ECF 15-7, art. XV, § 7(j), at 27). Courts routinely

award such fees as a form of “other legal or equitable relief” available under ERISA. 29

U.S.C. § 1132(g)(2)(E); see King v. JCS Enters., Inc., 325 F. Supp. 2d 162, 172–73 (E.D.N.Y.

2004). Accordingly, the Court recommends finding the award of auditor’s fees justified,

and awarding $5,600.00 in audit costs. Sullivan v. A & Z Constr. Co., No. 12-CV-2825

(NGG) (MDG), 2016 WL 4991541, at *9 (E.D.N.Y. Mar. 11, 2016), report and

recommendation adopted, 2016 WL 5061104 (E.D.N.Y. Sept. 16, 2016).

E. Post-Judgment Interest

Although Plaintiffs here did not specifically request post-judgment interest, the

Second Circuit has held that an award of post-judgment interest at the statutory rate

prescribed by 28 U.S.C. § 1961(a) is “mandatory.” Westinghouse Credit Corp. v. D’Urso,

371 F.3d 96, 100 (2d Cir. 2004). Section 1961(a) provides that post-judgment interest

“shall be calculated from the date of the entry of the judgment, at a rate equal to the

weekly average 1-year constant maturity Treasury yield . . . for the calendar week

preceding . . . the date of the judgment.” 28 U.S.C. § 1961(a). “Moreover, post-judgment

interest ‘shall be computed daily [from the date of judgment] to the date of payment.’”

Trs. of Plumbers Loc. Union No. 1 Welfare Fund, Additional Sec. Benefit Fund, Vacation &

Holiday Fund, Trade Educ. Fund, 401(K) Savings Plan v. Temperini Mech. Inc., No. 18-CV-

2596 (AMD) (LB), 2020 WL 571680, at *3 (E.D.N.Y. Jan. 13, 2020) (alteration in original)

(quoting 28 U.S.C. § 1961(b)), report and recommendation adopted, 2020 WL 565410

(E.D.N.Y. Feb. 5, 2020). Accordingly, the Court respectfully recommends that post-

judgment interest be awarded at the rate set forth in 28 U.S.C. § 1961 on all sums

awarded from the date judgment is entered to the date of payment.

CONCLUSION

For the foregoing reasons, the Court respectfully recommends that Plaintiffs’

motion for default judgment be granted. In addition, the Court recommends finding

Defendant Jablonowski personally liable for the final judgment as a fiduciary, and

accordingly holding Defendants jointly and severally liable. Plaintiffs should be

awarded damages as follows: (1) $285,712.52 in unpaid principal, representing the

$155,941.00 audit balance for the 2019–2022 delinquency, and $129,771.52 in estimated

delinquent contributions associated with the 2023–2024 period (inclusive of delinquent

contributions to the ERISA funds ($116,104.00) and non-ERISA funds ($2,318.40), and

delinquent dues ($11,349.12)); (2) $66,514.48, representing 10 percent interest on the

unpaid ERISA and non-ERISA contributions and nine percent interest on the unpaid

dues; (3) $65,112.61 in liquidated damages under ERISA, in an amount equal to 10

percent interest on the unpaid ERISA contributions; (4) $10,550.25 in attorney’s fees;

(5) $769.00 in reimbursable costs and expenses; and (6) $5,600.00 in audit costs, for a

total of $434,258.86. The Court also recommends awarding additional prejudgment

interest at a rate of $77.68 per day through the date that the Clerk of Court enters final

judgment, on the $285,712.52 in outstanding principal. Plaintiffs should also be

awarded post-judgment interest at the rate set forth in 28 U.S.C. § 1961 on the total sum

awarded on the date of judgment, accruing through the date of payment.

This report and recommendation will be filed electronically and a copy sent by

mail to Defendants. As a courtesy, the Court also respectfully directs Plaintiffs to

provide a copy of this report and recommendation to Defendants forthwith and to file

proof of same by February 10, 2026. Objections to this report and recommendation must

be filed, with a courtesy copy sent to the Honorable Natasha C. Merle at 225 Cadman

Plaza East, Brooklyn, New York 11201, within fourteen (14) days of filing. See 28 U.S.C.

§ 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (providing the method for

computing time). Failure to file objections within the specified time waives the right to

appeal both before the district court and appellate courts. See, e.g., Caidor v. Onondaga

County, 517 F.3d 601, 604 (2d Cir. 2008) (explaining that “failure to object timely toa...

report [and recommendation] operates as a waiver of any further judicial review of the

magistrate[ judge’s] decision” (quotation marks omitted)).

SO ORDERED.

Dated: Brooklyn, New York

February 6, 2026 TZ 6.Wwrke

InN A. MERKL

UNITED STATES MAGISTRATE JUDGE

36