Jack Argila, in his fiduciary capacity as a Trustee for the Pointers, Cleaners & Caulkers Welfare, Pension & Annuity Funds, the Bricklayers Joint Apprentice Training Fund, the Labor Management Fund, and the Promotion Fund; and as President of the Bricklayers and Allied Craftworkers Local Union No. 1, B.A.C.I.U., AFL-CIO; and the Trustees of the Bricklayers and Trowel Trades International Pension Fund and the International Masonry Institute v. S&N Builders, Inc. and Sakander Raja
CourtDistrict Court, E.D. New York
Date FiledOctober 8, 2026
Docket1:22-cv-03324
StatusUnknown
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Full Opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------X
JACK ARGILA, in his fiduciary capacity
as a Trustee for the POINTERS,
CLEANERS & CAULKERS WELFARE,
PENSION & ANNUITY FUNDS, the
BRICKLAYERS JOINT APPRENTICE
TRAINING FUND, the LABOR
MANAGEMENT FUND, and the
PROMOTION FUND; and as President of
the BRICKLAYERS AND ALLIED
CRAFTWORKERS LOCAL UNION NO.
1, B.A.C.I.U., AFL-CIO; and the
TRUSTEES of the BRICKLAYERS AND MEMORANDUM
TROWEL TRADES INTERNATIONAL AND ORDER
PENSION FUND and the 22-CV-3324 (TAM)
INTERNATIONAL MASONRY
INSTITUTE,
Plaintiffs,
-against-
S&N BUILDERS, INC. and SAKANDER
RAJA,
Defendants.
----------------------------------------------------------X
TARYN A. MERKL, United States Magistrate Judge:
On June 6, 2022, Jack Argila, as a Trustee for the Pointers, Cleaners & Caulkers
Welfare, Pension & Annuity Funds, the Bricklayers Joint Apprentice Training Fund, the
Labor Management Fund, and the Promotion Fund (the “PCC Funds”), and as
President of the Bricklayers and Allied Craftworkers Local Union No. 1, B.A.C.I.U.,
AFL-CIO (“Local 1”), as well as the Trustees of the Bricklayers and Trowel Trades
International Pension Fund and the International Masonry Institute (the “International
Funds” and, collectively with the PCC Funds, the “Funds”) (Local 1 and the Funds
collectively, “Plaintiffs”), commenced this action against Defendants S&N Builders, Inc.
(“S&N” or “S&N Builders”), Sakander Raja (“Raja”) (collectively, “Defendants”), Doe
General Contractor, and Doe Surety Company. See generally Compl., ECF 1. On March
28, 2023, Plaintiffs filed an amended complaint, naming Defendant Endurance
Assurance Corp. in place of Doe Surety Company. See generally Am. Compl., ECF 25. On
November 15, 2024, Plaintiffs filed a second amended complaint, adding Defendants
North American Specialty Insurance Company and QBE Insurance Corporation as
parties.1 See generally Second Am. Compl., ECF 53. The second amended complaint
seeks delinquent benefit contributions, dues, and assessments, as well as related relief
under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq.,
the Labor Management Relations Act (“LMRA”),2 29 U.S.C. § 141, et seq., the New York
Lien Law, N.Y. Lien L. § 70, et seq., and common law.
1 On April 22, 2025, Plaintiffs and Defendant Endurance Assurance Corporation filed a
stipulation of dismissal, which the Court entered on April 25, 2025. See Stipulation of Dismissal,
ECF 70; Apr. 25, 2025 ECF Order & ECF 71. On July 1, 2025, Plaintiffs filed a notice of voluntary
dismissal as to Defendant QBE Insurance Corporation. Notice of Voluntary Dismissal, ECF 74.
On November 26, 2025, Plaintiffs and Defendant North American Specialty Insurance Company
(n/k/a Swiss Re Corporate Solutions America Insurance Corporation) filed a stipulation of
dismissal, which the Court entered on December 2, 2025. Stipulation of Dismissal, ECF 83; Dec.
2, 2025, ECF Order & ECF 84. Accordingly, only Defendants S&N Builders and Sakander Raja
remain.
2 The Court notes that Plaintiffs refer to the LMRA by name only once in their second
amended complaint and do not cite the statute in connection with any of their causes of action.
Second Am. Compl., ECF 53, ¶ 1; see generally id. However, because Plaintiffs’ claims involving
alleged violations of the CBAs “involve interpretation of the CBA[s], [their] claims are governed
by” the LMRA rather than state contract law. Arnold v. Beth Abraham Health Services, Inc., No. 09-
CV-6049 (DLC), 2009 WL 5171736, at *2 (S.D.N.Y. Dec. 30, 2009), aff’d on other grounds sub nom.
Arnold v. 1199 SEIU, 420 F. App’x 48 (2d Cir. 2011) (summary order); see, e.g., Brown v. Nat’l
Football League, 219 F. Supp. 2d 372, 378 (S.D.N.Y. 2002) (“It is well established . . . that [the
LMRA] completely preempts state law claims . . . that involve the interpretation and application
of a CBA” and “an action that in substance charges a violation of a CBA may be removed to
Plaintiffs and Defendants S&N Builders and Sakander Raja have each moved for
summary judgment. Pls. Mot. for Summ. J. (“Pls. Mot.”), ECF 87; Defs. Cross-Mot. for
Summ. J. (“Defs. Mot.”), ECF 94. For the reasons discussed below, the Court grants in
part Plaintiffs’ motion for summary judgment and denies Defendants’ cross-motion for
summary judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Factual Background
The Funds are “jointly trusteed multiemployer plans established and maintained
pursuant to collective bargaining agreements.” Pls. Rule 56.1 Statement (“Pls. 56.1”),
ECF 87-1, ¶ 1 (quotation marks omitted). But see Defs. Counter Rule 56.1 Statement, ECF
92, ¶ 1 (noting that “Defendants are without knowledge to either admit or deny” and
that the statement is “not one of material facts”); Defs. Counter Rule 56.1 Statement
(“Defs. Counter-56.1”), ECF 94, ¶ 1 (same).3 The Funds are union funds that “represent
employee participants that perform work within the scope of” Local 1’s collective
bargaining agreement. Pls. 56.1, ECF 87-1, ¶ 1. As relevant here, Plaintiffs represent
federal court, even though the complaint itself did not include a federal cause of action” (citing
United Steelworkers of Am. v. Rawson, 495 U.S. 362, 368–69 (1990); Allis-Chalmers v. Lueck, 471 U.S.
202, 214 (1985))); Cespuglio v. Ward, No. 03-CV-8603 (SAS), 2004 WL 1088235, at *3 (S.D.N.Y. May
13, 2004) (finding that LMRA “preemption applies in any case that raises questions about the
construction of, or rights and responsibilities under, a collective bargaining agreement,
regardless of whether the plaintiff’s claims sound in tort or contract”); Int’l Brotherhood of Elec.
Workers Loc. 106 v. Marker Elec. Contracting, Inc., No. 16-CV-932-FPG, 2018 WL 4327815, at *4
(W.D.N.Y. Sept. 10, 2018).
3 The Court notes that Defendants submitted duplicative filings. As relevant here, ECF
92 and ECF 94 (Defendants’ response to Plaintiffs’ Rule 56.1 Statement) are identical to one
another, as are ECF 92-2 and ECF 94-2 (Defendants’ Rule 56.1 Statement). See generally Defs.
Counter Rule 56.1 Statement, ECF 92; Defs. Counter-56.1, ECF 94; Defs. 56.1, ECF 92-2; Defs.
56.1, ECF 94-2. For the purposes of recounting the parties’ statements and counterstatements,
the Court cites to ECF 94 and ECF 94-2.
workers who engaged in pointing, cleaning, and caulking work for Defendants on a
number of projects for the New York City Housing Authority (“NYCHA”).
More specifically, from 2015 through 2019, Defendant S&N Builders “submitted
competitive bids and was awarded six (6) public works construction projects by” the
NYCHA. Defs. Rule 56.1 Statement (“Defs. 56.1”), ECF 94-2, ¶ 1 (citing Raja
Affirmation, ECF 94-3, ¶ 3); Pls. Counter Rule 56.1 Statement (“Pls. Counter-56.1”), ECF
93-1, ¶ 1. Defendant Raja “is the President and Chief Executive Officer of S&N.” Pls.
56.1, ECF 87-1, ¶ 7 (citing Morgan Decl., ECF 90, ¶ 5 (citing Entity Information, Ex. GG
to Morgan Decl., ECF 90-1)); Defs. Counter-56.1, ECF 94, ¶ 7; see also Defs. 56.1, ECF 94-
2, ¶ 7; Pls. Counter-56.1, ECF 93-1, ¶ 7.
For each of these six NYCHA projects, Defendant S&N Builders “provided
payment and performance bonds from an insurance company surety.” Defs. 56.1, ECF
94-2, ¶ 2 (citing Raja Affirmation, ECF 94-3, ¶ 5; Payment Bonds, Ex. HH to Morgan
Decl., ECF 90-2); Pls. Counter-56.1, ECF 93-1, ¶ 2. The payment bonds each provided
that:
All persons who have performed labor, rendered services or furnished
materials and supplies, as aforesaid, shall have a direct right of action
against the Principal [S&N] and his, its or their successor[s] [a]nd assigns,
and the Surety herein, or against either or both of any of them and their
successors and assigns. Such persons may sue in their own name, and
may prosecute the suit to judgment and execution without the necessity of
joining with any other person as party plaintiff.
Defs. 56.1, ECF 94-2, ¶ 24 (quoting Payment Bonds, Ex. HH to Morgan Decl., ECF 90-2);
Pls. Counter-56.1, ECF 93-1, ¶ 24. Each payment bond for the six NYCHA projects was
issued between April 30, 2015, and July 11, 2019. Defs. 56.1, ECF 94-2, ¶ 23 (citing
Payment Bonds, Ex. HH to Morgan Decl., ECF 90-2); Pls. Counter-56.1, ECF 93-1, ¶ 23.
Defendant Raja signed the payment bonds for all but one of the projects, and signed
some of the checks for contributions, dues, and assessments.4 Pls. 56.1, ECF 87-1, ¶ 8
(citing Payment Bonds, Ex. HH to Morgan Decl., ECF 90-2; Argila Aff., ECF 88, ¶¶ 38,
40, 45, 48, 50, 56, 76; Exs. L–Q, V to Argila Aff., ECF 88-12, 88-13, 88-14, 88-15, 88-16, 88-
17, 88-22); Defs. Counter-56.1, ECF 94, ¶ 8.
Moreover, “[a]s a condition of being awarded each of the NYCHA construction
contracts,” Defendant S&N Builders “was required to execute a Letter of Assent
agreeing to be bound by the terms of the” Project Labor Agreement (“PLA”).5 Defs. 56.1,
ECF 94-2, ¶ 6 (citing Raja Affirmation, ECF 94-3, ¶ 7); Pls. Counter-56.1, ECF 93-1, ¶ 6.
The Letters of Assent were executed by Defendant Raja in his official capacity as
President of S&N Builders, not in his individual capacity. Defs. 56.1, ECF 94-2, ¶¶ 7–8
(citing Ex. D to Argila Aff., ECF 88-4); Pls. Counter-56.1, ECF 93-1, ¶¶ 7–8. Plaintiffs
assert that Defendant Raja, as President of Defendant S&N Builders, executed a Letter
of Assent to the PLA for NYCHA projects and that Defendant S&N Builders
“performed work on a total of 17 different NYCHA” projects. Pls. 56.1, ECF 87-1, ¶ 11
(citing Argila Aff., ECF 88, ¶ 8; Ex. D to Argila Aff., ECF 88-4; Duravcevic Aff., ECF 89,
¶ 39; Ex. FF to Duravcevic Aff., ECF 89-10). Defendants do not contest that Defendant
Raja, as President of Defendant S&N Builders, executed Letters of Assent for only six
NYCHA projects, “Various Development Site Wide Specific, Various Development
4 The Court notes that the referenced checks are all from Defendant S&N Builders, but
the Court is unable to independently discern who signed each check on behalf of Defendant
S&N Builders as the signature line simply reads “Authorized Signature” rather than the name
of Defendant Raja or another company agent. See Exs. L–Q, V to Argila Aff., ECF 88-12, 88-13,
88-14, 88-15, 88-16, 88-17, 88-22.
5 The PLA was “entered into by NYCHA . . . and the signatory affiliated Local Unions,”
including Local 1, to “provide for the cost efficient, safe, quality, and timely completion of
certain rehabilitation and renovation work.” Ex. C to Argila Aff., ECF 88-3, at 1, 2.
Citywide, Sotomayor Houses, Monroe Houses, Morris Houses[,] and Ingersoll
Houses[,] and that S&N performed work at those projects.” Defs. Counter-56.1, ECF 94,
¶ 11. In addition, “[t]he PLA was applicable to each of the NYCHA projects at issue in
this action.” Defs. 56.1, ECF 94-2, ¶ 5 (citing Argila Aff., ECF 88, ¶¶ 5–11); Pls. Counter-
56.1, ECF 93-1, ¶¶ 3–5.6
While Plaintiffs contend that the PLA incorporates Plaintiffs’ collective
bargaining agreements (“CBAs”), Defendants only admit that the PLA provides that
Defendant S&N Builders “[a]grees to be bound by the legally established collective
bargaining agreements and local trust agreements as set forth in the Project Labor
Agreement and this Agreement but only to the extent of Program Work and as required
by the PLA.” Defs. Counter-56.1, ECF 94, ¶ 13 (quotation marks omitted); Pls. 56.1, ECF
87-1, ¶ 13 (citing Argila Aff., ECF 88, ¶¶ 6, 8–10; Ex. C to Argila Aff, ECF 88-3, art. 2(4);
Ex. D to Argila Aff., ECF 88-4); see also Defs. 56.1, ECF 94-2, ¶ 9; Pls. Counter-56.1, ECF
93-1, ¶ 9. Defendant Raja did not execute a CBA or local trust agreement in his
individual capacity. Defs. 56.1, ECF 94-2, ¶ 10; Pls. Counter-56.1, ECF 93-1, ¶ 10.
For the NYCHA projects, Defendant S&N Builders “submitted signed certified
payroll records to NYCHA” and each included either a statement certifying “‘that the
above information represents wages and supplemental benefits paid to all persons
employed by my firm for construction work on the above project during the period
6 At oral argument, the parties agreed that the discrepancy between the six versus
seventeen NYCHA projects at issue is not a material dispute as this discrepancy stems from a
distinction between projects and locations, respectively. The delinquency at issue concerns “six
projects,” and the “auditor’s summary . . . only cites to the six projects.” Hr’g Tr., ECF 97, at
41:8–9; see id. at 41:20–23 (Defendants’ counsel noting that the “17 versus 6” is “just semantics”
and not “a material fact” because Plaintiffs are “only claiming six projects where the benefits
were past due); id. at 42:6–11 (Plaintiffs’ counsel concurring).
shown’” or a box that is checked off that states, “‘[i]n addition to the basic hourly wage
rates paid to each laborer or mechanic, listed in the above referenced payroll, payments
of fringe benefits as listed in the contract have been or will be made to appropriate
programs for the benefit of such employees.’” Pls. 56.1, ECF 87-1, ¶ 12 (quoting
Duravcevic Aff., ECF 89, ¶ 40 (quoting Ex. FF to Duravcevic Aff., ECF 89-10)); Defs.
Counter-56.1, ECF 94, ¶ 12. The payroll reports submitted by Defendant S&N Builders
“set forth the name of the employees working on the NYCHA projects, the worker
classification, the hours worked that week and the applicable rate of pay.” Defs. 56.1,
ECF 94-2, ¶ 11 (citing Raja Affirmation, ECF 94-3, ¶ 12; Ex. A to Raja Affirmation, ECF
94-4; Duravcevic Aff., ECF 89, ¶ 40; Ex. FF to Duravcevic Aff., ECF 89-10); see Pls.
Counter-56.1, ECF 93-1, ¶ 11 (clarifying that the exhibits cited are samples, not a
representation of all payroll reports for all work performed by Defendant S&N Builders,
and that Plaintiffs’ auditor “issued several audits with scope limitations due to their
inability to review the full set of certified payroll records”). These payroll reports were
submitted “for[] Sakander Raja” as “President” of Defendant S&N, but signed by
Defendant S&N Builders’ project manager, Deven Butala. Ex. FF to Duravcevic Aff.,
ECF 89-10, at ECF pp. 2, 3, 6, 15 (capitalization altered); see Defs. 56.1, ECF 94-2, ¶ 17
(citing Ex. FF to Duravcevic Aff., ECF 89-10; Ex. A to Raja Affirmation, ECF 94-4); Pls.
Counter-56.1, ECF 93-1, ¶ 17. The payroll reports also include a certification that “I,
Sakander Raja[,] President” “do hereby state” that “I pay or supervise the payment of
the persons employed by S & N Builders, Inc.” Ex. FF to Duravcevic Aff., ECF 89-10, at
ECF pp. 5, 8, 10, 12, 14. This certification is also signed by Deven Butala “[f]or Sakander
Raja, President.” Id.
Pursuant to the CBAs, “the employer must submit monthly employer remittance
reports setting out the hours worked by its employees and the amount of contributions
and dues and assessments due for each employee, which ‘shall be remitted by
Employer not later than the fifteenth (15th) day of the following month.’” Pls. 56.1, ECF
87-1, ¶ 17 (quoting Argila Aff., ECF 88, ¶ 16; 2015–2019 CBA, Ex. A to Argila Aff., ECF
88-1, art. XV, at 27 (providing that “[a] monthly report on a form prepared by the
Trustees shall be remitted by each Employer not later than the fifteenth (15th) day of the
following month”); 2019–2023 CBA, Ex. B to Argila Aff., ECF 88-2, art. XV, at 28 (same));
Defs. Counter-56.1, ECF 94, ¶ 17. Under the CBAs, these “remittance reports must be
submitted each month regardless of whether the employer performed work covered by
the CBAs for that month.” Pls. 56.1, ECF 87-1, ¶ 17 (citing Argila Aff., ECF 88, ¶ 16;
2015–2019 CBA, Ex. A to Argila Aff., ECF 88-1, art. XV, at 27; 2019–2023 CBA, Ex. B to
Argila Aff., ECF 88-2, art. XV, at 28); Defs. Counter-56.1, ECF 94, ¶ 17. Additionally, the
PLA provides:
[T]he Contractors agree to be bound by the written terms of the legally
established jointly trusteed Trust Agreements specifying the detailed basis
on which payments are to be paid into, and benefits paid out of, such
Trust Funds but only with regard to Program Work done under this
Agreement and only for those employees to whom this Agreement
requires such benefit payments.
Pls. 56.1, ECF 87-1, ¶ 19 (quoting PLA, Ex. C to Argila Aff., ECF 88-3, at 25) (citing
Argila Aff., ECF 88, ¶¶ 10–11; Ex. D to Argila Aff, ECF 88-4); Defs. Counter-56.1, ECF
94, ¶ 19 (admitting that this language appears in the PLA). Moreover, pursuant to the
Trust Agreements, “a) the ‘assets of the Trust Fund shall not revert or be used for or
inure to the benefit of any of the Employers,’” and “b) ‘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, 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.’” Pls. 56.1, ECF 87-1, ¶ 20 (quoting Argila Aff., ECF 88, ¶ 25 (internal
quotation marks omitted)) (citing Exs. F–I of Argila Aff., ECF 88-6, 88-7, 88-8, 88-9, art.
II, § 2, art. III, § 3); Defs. Counter-56.1, ECF 94, ¶ 20. The CBAs further provide that
“‘[t]he Employer recognizes that once the contributions become due and owing to the
Fringe Benefit Funds, the contributions are assets of the Fringe Benefit Funds, and
Employer acts as a fiduciary of those fund assets until they are paid over to the Fringe
Benefit Funds.’” Pls. 56.1, ECF 87-1, ¶ 21 (quoting Argila Aff., ECF 88, ¶ 26 (citing Exs.
A–B to Argila Aff., ECF 88-1, 88-2, art. XV(7)(e)); Defs. Counter-56.1, ECF 94, ¶ 21.
Defendants “submitted periodic payment requisitions to NYCHA which
attached the certified payroll reports.” Defs. 56.1, ECF 94-2, ¶ 15 (citing Raja
Affirmation, ECF 94-3, ¶ 11; Ex. A to Raja Affirmation, ECF 94-4); Pls. Counter-56.1, ECF
93-1, ¶ 15 (noting that “S&N does not specify when exactly they submitted the periodic
payment requisitions or that such requisitions were timely” (quotation marks omitted)).
Additionally, Defendant S&N submitted “remittance reports to Plaintiffs setting forth
the Local No. 1 employee hours worked and the contributions payable pursuant to the
PLA.” Defs. 56.1, ECF 94-2, ¶ 16 (citing Raja Affirmation, ECF 94-3, ¶ 14; Ex. B to Raja
Affirmation, ECF 94-5); Pls. Counter-56.1, ECF 93-1, ¶ 16 (clarifying that the evidence
presented does not “establish that S&N submitted remittances each month or when
exactly they were submitted”). As noted above, at least some of these certified payroll
reports were signed by Defendant S&N’s project manager, Deven Butala. Defs. 56.1,
ECF 94-2, ¶ 17 (citing Ex. FF to Duravcevic Aff., ECF 89-10; Ex. A to Raja Affirmation,
ECF 94-4); Pls. Counter-56.1, ECF 93-1, ¶ 17 (clarifying that the proffered exhibits are a
sample and not a representation of all certified payroll reports for all work performed
by Defendant S&N on NYCHA projects).
The PLA “allowed Plaintiffs to designate a working journey person as shop
steward for the NYCHA projects” and “provided that the shop steward would have the
right to receive employee complaints or grievances and assist in their adjustment with
the contractor’s appropriate supervisor.” Defs. 56.1, ECF 94-2, ¶¶ 12–13; Pls. Counter-
56.1, ECF 93-1, ¶¶ 12–13. While Defendants contend that “[f]or all NYCHA projects
performed by S&N, Local No. 1 had a shop steward present who maintained his/her
own record of hours worked,” Defs. 56.1, ECF 94-2, ¶ 14, Plaintiffs admit only “that
there were shop stewards on at least some of S&N’s NYCHA projects, as the auditor did
review some shop steward reports in connection with the audit for the period January
1, 2016 through March 31, 2019,” Pls. Counter-56.1, ECF 93-1, ¶ 14 (citing Duravcevic
Aff., ECF 89, ¶¶ 8, 13). Moreover, the PLA provides that:
To the extent consistent with procurement regulations of the United States
Department of Housing and Urban Development, and in consideration of
the unions’ waiver of their rights to withhold labor from a contractor or
subcontractor delinquent in the payment of fringe benefits contributions
(“Delinquent Contractor”); NYCHA agrees that where any such union
and/or fringe benefit fund shall notify NYCHA, the General Contractor,
and the Delinquent Contractor in writing with back-up documentation
that the Delinquent Contractor has failed to make fringe benefit
contributions to it as provided herein and the Delinquent Contractor shall
fail, within ten (10) calendar days after receipt of such notice, to furnish
either proof of such payment or notice that the amount claimed by the
union and/or fringe benefit fund is in dispute, NYCHA shall withhold
from amounts then or thereafter becoming due and payable to the General
Contractor an amount equal to that portion of such payment due to the
General Contractor that relates solely to the work performed by the
Delinquent Contractor which the union or fringe benefit fund claims to be
due it, and shall remit the amount when and so withheld to the fringe
benefit fund and deduct such payment from the amounts then otherwise
due and payable to the General Contractor, which payment shall, as
between the General Contractor and NYCHA, be deemed a payment by
NYCHA to the General Contractor; provided however, that in any month,
such withholding shall not exceed the amount contained in the General
Contractor’s monthly invoice for work performed by the Delinquent
Contractor. The union or its employee benefit funds shall include in its
notification of delinquent payment of fringe benefits only such amount it
asserts the Delinquent Contractor failed to pay on the specific project
against which the claim is made and the union or its employee benefit
funds may not include in such notification any amount such Delinquent
Contractor may have failed to pay on any other NYCHA or non-NYCHA
project.
Defs. 56.1, ECF 94-2, ¶ 18 (quoting Ex. C to Argila Aff., ECF 88-3, art. 11, § 2(C))
(emphasis omitted); Pls. Counter-56.1, ECF 93-1, ¶ 18. Furthermore, the PLA also states:
In the event the General Contractor or Delinquent Contractor shall notify
NYCHA as above provided that the claim of the union or fringe benefit
fund is in dispute, NYCHA shall withhold from amounts then or
thereafter becoming due and payable to the General Contractor an
amount equal to that portion of such payment due to the General
Contractor that relates solely to the work performed by the Delinquent
Contractor which the union and/or fringe benefit fund claims to be due it,
and deposit such amount when and so withheld in a separate interest-
bearing account pending resolution of the dispute pursuant to the union’s
Schedule A agreement, and the amount so deposited together with the
interest thereon shall be paid to the party or parties ultimately determined
to be entitled thereto, or held until the Delinquent Contractor and union
or fringe benefit fund shall otherwise agree as to the disposition thereof;
provided however, that such withholding shall not exceed the amount
contained in the General Contractor’s monthly invoice for work
performed by the Delinquent Contractor.
Defs. 56.1, ECF 94-2, ¶ 19 (quoting Ex. C to Argila Aff., ECF 88-3, art. 11, § 2(D))
(emphasis omitted); Pls. Counter-56.1, ECF 93-1, ¶ 19.
In a letter dated January 5, 2023, Plaintiffs “notified NYCHA of an alleged
delinquency of $693,602.83 on various projects and attached a spreadsheet detailing the
delinquencies for each project,” quoting “Article 11, Section 2(C) of the PLA in
requesting that NYCHA withhold monies against the projects.” Defs. 56.1, ECF 94-2,
¶ 20 (citing Raja Affirmation, ECF 94-3, ¶ 30; Ex. C to Raja Affirmation, ECF 94-6); Pls.
Counter-56.1, ECF 93-1, ¶ 20. NYCHA withheld the money as requested by Plaintiffs.
Defs. 56.1, ECF 94-2, ¶ 21 (citing Raja Affirmation, ECF 94-3, ¶ 30); Pls. Counter-56.1,
ECF 93-1, ¶ 21. On October 19, 2023, NYCHA issued payment to Plaintiffs in the
amount of $723,813.21, and on February 13, 2025, issued an additional payment of
$237,003.77. Defs. 56.1, ECF 94-2, ¶ 22 (citing Argila Aff., ECF 88, ¶ 57; Ex. R to Argila
Aff., ECF 88-18; Ex. S to Argila Aff., ECF 88-197); Pls. Counter-56.1, ECF 93-1, ¶ 22
(adding citation to Argila Aff., ECF 88, ¶ 67).
In 2019, Plaintiffs engaged an auditor to conduct an audit of Defendant S&N
Builders’ projects. Pls. 56.1, ECF 87-1, ¶ 22 (citing, inter alia, Duravcevic Aff., ECF 89,
¶¶ 7, 22–24). For the audit period spanning from January 1, 2016, through March 31,
2019 (the “’19–’21 Audit Period”), Plaintiffs’ auditor, Kobgo, issued an audit report on
February 26, 2021, “showing a delinquency in the amount of $491,991.02 for work
performed on various NYCHA Projects.” Pls. 56.1, ECF 87-1, ¶ 23 (citing Duravcevic
Aff., ECF 89, ¶¶ 7–13; Ex. Y to Duravcevic Aff., ECF 89-3); Defs. Counter-56.1, ECF 94,
¶ 23 (noting that “Defendants are without knowledge to either admit or deny”); cf. Defs.
56.1, ECF 94-2, ¶ 28 (noting that the February 26, 2021 audit “identified $157,247.48 in
allegedly past due Pointers contributions for the period July 1, 2015 to June 30, 2016 and
$201,450.58 for the period July 1, 2016 to June 30, 2017”); Pls. Counter-56.1, ECF 93-1,
¶ 28 (denying Defendants’ statement, and specifying that if Defendants are only
tallying amounts due to Pointers, then the correct amount “for the July 1, 2015 to June
30, 2016 period is $164,949.94 and for the July 1, 2016 through June 30, 2017 period is
$211,321.57”). Following the February 26, 2021 audit report, Defendant S&N worked
with Plaintiffs to “negotiate a settlement of sums claimed due and made periodic
payment[s] in furtherance of those negotiations” in order to attempt to resolve the
delinquency identified in the audit report. Pls. 56.1, ECF 87-1, ¶ 24; Defs. Counter-56.1,
7 The Court notes that Exhibit S to the Argila Affidavit indicates that the February 13,
2025 NYCHA payment noted in Defendants’ Rule 56.1 statement appears to have in fact paid on
February 3, 2025. Compare Defs. 56.1, ECF 94-2, ¶ 22 (asserting that NYCHA issued an
additional payment “on February 13, 2025”) with Ex. S to Argila Aff., ECF 88-19 (NYCHA
checks indicating a payment date of February 3, 2025).
ECF 94, ¶ 24. More specifically, Defendant “S&N submitted check no. 13909, dated
March 17, 2021, in the amount of $49,118.45, as well as checks in April, June, July, and
August 2021, each in the amount of $38,246.75.” Pls. 56.1, ECF 87-1, ¶ 25 (citing Argila
Aff., ECF 88, ¶¶ 38, 40; Ex. L to Argila Aff., ECF 88-12; Ex. M to Argila Aff., ECF 88-13);
Defs. Counter-56.1, ECF 94, ¶ 25. Following a meeting in April 2025, Defendant S&N
submitted objections and supporting documentation to the audit report for the ’16–’19
Audit Period. Pls. 56.1, ECF 87-1, ¶ 51; Defs. Counter-56.1, ECF 94, ¶ 51. Following the
objections, on July 10, 2025, Kobgo issued a revised audit report for the ’16-’19 Audit
Period, “which revealed a revised delinquency of $433,522.97 and, after application of
various payments, a net delinquency of $21,737.22”; Defendant S&N paid the remaining
delinquency on July 16, 2025, leaving a balance of $0.00 for the ’16–’19 Audit Period. Pls.
56.1, ECF 87-1, ¶ 52; Defs. Counter-56.1, ECF 94, ¶ 52.
At the end of 2021 and into the beginning of 2022, Kobgo and Plaintiffs began
working with Defendant S&N and NYCHA to obtain records for the audit period
spanning from April 1, 2019, through March 19, 2023 (the “’19–’23 Audit Period”). Pls.
56.1, ECF 87-1, ¶¶ 22, 26; Defs. Counter-56.1, ECF 94, ¶¶ 22, 26. On January 12, 2022,
Kobgo issued a Delinquency and Omissions Schedule (“Delinquency Schedule”) for
Defendant S&N “for the period March 29, 2021 through November 21, 2021, showing a
delinquency due and owing to the Funds in the amount of $728,918.32” for four
NYCHA projects, which was provided to Defendant S&N. Pls. 56.1, ECF 87-1, ¶ 27;
Defs. Counter-56.1, ECF 94, ¶ 27. Defendant S&N and Plaintiffs attempted to reach a
global resolution for the delinquencies identified in the February 26, 2021 audit report
and the Delinquency Schedule; however, “settlement terms were never agreed upon
and no settlement agreement was ever entered into by the parties.” Pls. 56.1, ECF 87-1,
¶ 28; Defs. Counter-56.1, ECF 94, ¶ 28. Nevertheless, between September 2021 and May
2023, Defendant S&N submitted eleven payments towards the deficiencies. Pls. 56.1,
ECF 87-1, ¶¶ 29 (citing Argila Aff., ECF 88, ¶ 45; Ex. N to Argila Aff., ECF 88-14), 31, 35,
39; Defs. Counter-56.1, ECF 94, ¶¶ 29, 31, 35, 39.
According to Plaintiffs, on May 16, 2023, Kobgo issued an audit report of
Defendant S&N for the ’19–’23 Audit Period, which showed “a delinquency of
$1,125,249.18, plus audit costs of $11,950.00.” Pls. 56.1, ECF 87-1, ¶ 38; Defs. Counter
56.1, ECF 94, ¶ 38 (noting that “Defendants are without knowledge to either admit or
deny”); cf. Defs. 56.1, ECF 94-2, ¶ 30 (stating that the May 16, 2023 audit “revealed an
alleged delinquency of $1,125,249.18”) (citing Duravcevic Aff., ECF 89, ¶ 24; Ex. BB to
Duravcevic Aff., ECF 89-6); Pls. Counter-56.1, ECF 93-1, ¶ 30. Defendant S&N submitted
objections to the ’19–’23 audit report; following a review of the objections, Kobgo issued
a revised audit report on October 24, 2023, “which revealed a revised delinquency of
$331,444.74 and, after application of two payments . . . , a net delinquency of
$210,322.51, plus audit costs of $14,275.00.” Pls. 56.1, ECF 87-1, ¶ 41; Defs. Counter-56.1,
ECF 94, ¶ 41; see also Defs. 56.1, ECF 94-2, ¶¶ 31–32; Pls. Counter-56.1, ECF 93-1, ¶¶ 31–
32. However, Defendant S&N Builders provided objections to the revised audit report
as well, and on May 3, 2024, Kobgo issued a further revised audit of the ’19–’23 Audit
Period, “which revealed a revised delinquency of $323,302.19, and a net delinquency of
$202,179.96, plus $16,450.00 in audit costs.” Pls. 56.1, ECF 87-1, ¶ 44; Defs. Counter-56.1,
ECF 94, ¶ 44. Defendant S&N submitted additional objections, and Kobgo issued
another revised audit report on November 11, 2025, “which revealed a revised
delinquency of $318,180.43, and a net delinquency of $4,446.34,” in addition to audit
costs. Pls. 56.1, ECF 87-1, ¶ 53; Defs. Counter-56.1, ECF 94, ¶ 53. However, as detailed in
Defendants’ 56.1 statement, and not disputed by Plaintiffs, “[a]ll contributions claimed
due by Plaintiffs under the Second Amended Complaint have been paid in full.” Defs.
56.1, ECF 94-2, ¶ 40; Pls. Counter-56.1, ECF 93-1, ¶ 40; see Hr’g Tr., ECF 97, at 3:3–4:2
(Plaintiffs’ counsel confirming at the oral argument that “there are no contributions due
and owing”).
Defendants S&N Builders and Raja have “not paid any interest, liquidated
damages, audit costs, or attorney’s fees and expenses associated with the delinquencies
as demanded by Plaintiffs.” Pls. 56.1, ECF 87-1, ¶ 54; Defs. Counter-56.1, ECF 94, ¶ 54.
Plaintiffs contend that the total damages amount is $915,237.42, which consists of
(1) “remaining unpaid contributions, dues and assessments in the amount of
$4,446.33”8; (2) “interest on the delinquent contributions for the ’16-’19 Audit Period in
the amount of $246,934.96, and for the ’19-’23 Audit Period in the amount of
$74,186.55”; (3) “interest on the dues and assessments for the ’16-’19 Audit Period in the
amount of $16,608.20, and for the ’19-’23 Audit Period in the amount of $6,401.47”;
(4) “additional interest on the contributions in the amount of $321,121.51 (since that
amount is greater than 20% liquidated damages on the contributions)”; (5) “audit costs
in the amount of $35,120.00”; (6) “attorney’s fees in the amount of $209,639.50”; and
(7) “costs and expenses in the amount of $778.91.” Pls. 56.1, ECF 87-1, ¶ 56. But see Defs.
Counter-56.1, ECF 94, ¶ 56 (asserting that “Defendants are without knowledge to either
admit or deny other than to deny that there are remaining unpaid contributions, dues
and assessments in the amount of $4,446.33”).
8 As noted above, however, Plaintiffs have since acknowledged that there is no
outstanding delinquency based on unpaid contributions. Defs. 56.1, ECF 94-2, ¶ 40; Pls.
Counter-56.1, ECF 93-1, ¶ 40; Hr’g Tr., ECF 97, at 3:3–4:2 (Plaintiffs’ counsel confirming that
“there are no contributions due and owing”).
II. Procedural History
As noted above, Plaintiffs initiated this action on June 6, 2022. See generally
Compl., ECF 1. On July 22, 2022, Defendants filed an answer to the complaint. See
generally Answer, ECF 14.9
On October 25, 2023, the parties filed a motion requesting a settlement
conference before the Court. Joint Mot. for Hr’g, ECF 36. Following a pre-settlement
status conference, however, the Court directed the parties to continue settlement
discussions amongst themselves, including any further analysis of the revised audit
report. Nov. 1, 2023 ECF Min. Entry & Order. The parties were unable to resolve the
matter through settlement and proceeded with discovery. Status Report, ECF 42; June
25, 2024 ECF Order.
On November 15, 2024, with leave of court, Plaintiffs filed a second amended
complaint. See Second Am. Compl., ECF 53; Nov. 13, 2024 ECF Order. On August 1,
2025, Plaintiffs filed a motion for a pre-motion conference, requesting leave to file a
motion for summary judgment against Defendants S&N Builders and Raja. Pls. Mot. for
Pre-Mot. Conference, ECF 76. On August 12, 2025, Defendants S&N Builders and Raja
also filed a motion for a pre-motion conference, requesting leave to file a motion for
summary judgment against Plaintiffs. Defs. Mot. for Pre-Mot. Conference, ECF 77. On
September 9, 2025, the Court held a pre-motion conference regarding the anticipated
motions for summary judgment and set a briefing schedule for the parties’ respective
motions. Sept. 9, 2025 ECF Min. Entry & Order. Following numerous extensions of the
9 On July 29, 2022, the parties consented to magistrate judge jurisdiction. See Consent to
Jurisdiction, ECF 16; Consent to Jurisdiction, ECF 17.
deadline to submit the parties’ motions, on March 9 and 10, 2026, the parties filed their
bundled motion papers. See Pls. Mot., ECF 87; Defs. Mot., ECF 94; see generally Docket.
On March 10, 2026, Plaintiffs filed a letter asserting that Defendants’ reply
memorandum violates Local Rule 7.1(c) and impermissibly raises new issues. Pls.
Letter, ECF 95. The Court scheduled a conference to discuss. Mar. 11, 2026 ECF
Scheduling Order. At the conference, the Court took the parties’ motions and associated
papers under advisement as filed and noted Plaintiffs’ objection. Mar. 18, 2026 ECF
Min. Entry & Order.
On September 15, 2026, the Court held oral argument on the parties’ motions for
summary judgment. See Sept. 15, 2026 ECF Min. Entry & Order; Hr’g Tr., ECF 97; see
also Sept. 4, 2026 ECF Scheduling Order. Following the hearing, the Court permitted the
parties to “provide supplemental authority concerning the issues discussed at the
hearing.” Sept. 15, 2026 ECF Min. Entry & Order. On September 22, 2026, both parties
filed letters providing supplemental authority. See Defs. Letter, ECF 98; Pls. Letter, ECF
99.
DISCUSSION
I. Legal Standard: Summary Judgment
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Darnell v. Pineiro, 849 F.3d 17, 22 (2d Cir. 2017).
“A fact is ‘material’ for these purposes if it ‘might affect the outcome of the suit under
the governing law.’” Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Further, a factual dispute is “genuine” if
“‘the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 113–14 (2d Cir. 2017)
(quoting Anderson, 477 U.S. at 248). The Court must “view all facts in this case in the
light most favorable to the non-movant, resolving all ambiguities in [the non-movant’s]
favor.” Borley v. United States, 22 F.4th 75, 78 (2d Cir. 2021). “Put another way, summary
judgment is appropriate only where the record taken as a whole could not lead a
rational trier of fact to find for the non-movant.” Id. (alterations and quotation marks
omitted).
“The movant bears the burden of ‘demonstrat[ing] the absence of a genuine issue
of material fact.’” Nick’s Garage, Inc., 875 F.3d at 114 (alteration in original) (quoting
Celotex Corp., 477 U.S. at 323). Once the moving party has satisfied their burden, “‘the
nonmoving party must come forward wi