UNITED STATES DISTRICT COURT ECF Case

SOUTHERN DISTRICT OF NEW YORK

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ADRIAN HUFF, as Chairman of the Board of Trustees of

TEAMSTERS LOCAL 445 FREIGHT DIVISION

PENSION FUND,

 Plaintiff, 

- against -

MID-HUDSON STEEL CORP., GRAMMAR, DEMPSEY

& HUDSON, INC., BRIDGEPORT STEEL CO., BUELL

SPECIALTY STEEL CO., PABRICO STEEL

FABRICATORS INC., ZINC CONSTRUCTION CORP.,

and AIROTRAX, INC.,

Defendants.

Civil Action No. 07 Civ. 5926

(CLB)(MDF)

RULE 56.1 STATEMENT IN

SUPPORT OF PLAINTIFF’S

MOTION FOR SUMMARY

JUDGMENT

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Pursuant to Fed.R.Civ.P. R. 56.1, Plaintiff alleges as its concise Statement of Material Facts

that are not in dispute, as follows:

1. Defendant Mid-Hudson Steel Corp. (“Mid-Hudson”) entered into and was subject

to a collective bargaining agreement (CBA) with Local Union No. 445, International Brotherhood

of Teamsters of annexed AFL-CIO (the Union) wherein it was obligated to make contributions to

Plaintiff, the Teamsters Local 445 Freight Division Pension Fund (the Fund), which is a third-party

beneficiary under the CBA. See Exh. 1 of Affidavit of William D. Frumkin, Esq. In Support of

Plaintiff’s Motion for Summary Judgment (“Frumkin Aff.”).

2. In or around August 2004, the Fund determined that Mid-Hudson completely

withdrew from the Fund because it had permanently ceased to have an obligation to contribute to

the Fund. See Frumkin Aff., Exh. 3 at ¶ 39. 

3. The Fund assessed withdrawal liability against Mid-Hudson in the amount of

$300,296.56. See Frumkin Aff., Exh. 3 at ¶¶ 40-41.

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4. On or about December 21, 2004, pursuant to §§ 4202(2) and 4219(b)(1) of ERISA,

29 U.S.C. §§ 1382(2) and 1399(b)(1), the Fund sent a “Demand for Payment of Withdrawal

Liability” to Mid-Hudson advising it that the Fund determined that the it had effected a complete

withdrawal from the Fund in or around August 2004 and requesting Mid-Hudson to pay a

withdrawal liability of $300,296.56. See Frumkin Aff., Exh. 2; Frumkin Aff., Exh. 3 at ¶¶ 40-41.

The Fund notified Mid-Hudson that, in accordance with §§ 4219(c)(1)(E)(2) and (3) of the MPPAA,

Mid-Hudson’s withdrawal liability was payable to the Fund in 160 equal monthly installments, each

in the amount of $2,817.70, followed by a final payment of $1,366.98. The first payment was due

by January 31, 2005. Id.

5. Mid-Hudson admitted that it received the December 21, 2004 letter. See Frumkin

Aff., Exh. 4 at ¶ 41; Frumkin Aff., Exh. 4 at ¶ 41.

6. Mid-Hudson remitted twenty-four monthly withdrawal liability payments, each in

the amount of $2,817.70. The last payment was received on or about January 18, 2007. The last

payment satisfied Mid-Hudson’s monthly withdrawal liability payment for December 2006. See

Frumkin Aff, Exh. 9; Frumkin Aff., Exh. 5.

7. Mid-Hudson failed to remit its twenty-fifth and twenty-sixth monthly withdrawal

liability payments, in the amounts of $2,817.70 each, due January 31, 2007 and February 28, 2007,

for a total amount of $5,635.40. See Frumkin Aff., Exh. 3 at ¶ 50; Frumkin Aff., Exh. 4 at ¶ 50. 

8. Mid-Hudson admitted that it did not remit the twenty-fifth and twenty-sixth monthly

withdrawal liability payments. Id.

9. On or about March 8, 2007, the Fund notified Mid-Hudson of its overdue withdrawal

liability payment, and that it would be in statutory default if it failed to remit payment in full of its

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total withdrawal liability remaining due, or remit its twenty-fifth and twenty-sixth monthly

withdrawal liability payments, in the amounts of $2,817.70 each, within sixty days after receiving

the late-payment notice letter. In addition, the Fund notified Mid-Hudson that its failure to pay its

withdrawal liability remaining due as prescribed therein would entitle the Fund to demand from

Mid-Hudson immediate payment of the outstanding amount of the withdrawal liability, plus accrued

interest on the total outstanding liability from the due date of the first payment which is untimely

paid. See Frumkin Aff., Exh. 3 at ¶ 51; Frumkin Aff., Exh. 6.

10. Mid-Hudson admitted that the March 8, 2007 letter was sent. See Frumkin Aff., Exh.

4 at ¶ 51. 

11. Mid-Hudson did not remit the overdue payments within sixty days of receiving the

March 8, 2007 letter. See Frumkin Aff., Exh. 3 at ¶¶ 52-53.

12. Mid-Hudson admitted that the overdue payments were not made. See Frumkin Aff.,

Exh. 4 at ¶¶ 52-53.

13. On or about April 26, 2007, the Fund notified Mid-Hudson of its overdue withdrawal

liability payment, and that it would be in statutory default if it failed to remit payment in full of its

total withdrawal liability remaining due, or remit its twenty-seventh monthly installment payment

in the amount of $2,817.70 due March 31, 2007, within sixty days after receiving the late-payment

notice letter. In addition, the Fund notified Mid-Hudson that its failure to pay its withdrawal liability

remaining due as prescribed herein would entitle the Fund to demand from Mid-Hudson immediate

payment of the outstanding amount of the withdrawal liability, plus accrued interest on the total

outstanding liability from the due date of the first payment which is untimely paid. See Frumkin

Aff., Exh. 3 at ¶ 54; Frumkin Aff., Exh. 7.

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14. Mid-Hudson admitted that it did not remit its twenty-seventh monthly installment

payment. See Frumkin Aff., Exh. 3 at ¶ 55; Frumkin Aff.; Exh. 4 at ¶ 55. 

15. Mid-Hudson did not remit the overdue payment within sixty days of receiving the

March 8, 2007 letter. See Frumkin Aff., Exh. 3 at ¶ 72; Frumkin Aff., Exh. 4 at ¶ 72. 

16. Mid-Hudson admitted that it did not remit the overdue payments. Id.

17. Grammar, Dempsey & Hudson (“GDH”) has made withdrawal liability payments

on behalf of Mid-Hudson on or about September 29, 2006, November 1, 2006, December 6,

2006, and January 5, 2007. See Frumkin Aff., Exh. 9.

18. GDH was the owner of Mid-Hudson at all relevant times. See Frumkin Aff., Exh.

8 at pp. 20:24-21:3; 58:2-6. 

19. James F. Hudson and J. Morgan Hudson both have 50% ownership interests in

GDH. See Frumkin, Aff., Exh. 8 at pp. 59:25-60:5.

20. Defendants Bridgeport Steel Co. (“Bridgeport”), Buell Specialty Steel Co.

(“Buell”), and Pabrico Steel Fabricators, Inc. (“Pabrico”), are wholly-owned subsidiaries of

GDH. See Frumkin, Aff., Exh. 8 at pp. 69:4-77:5. 

21. James F. Hudson and J. Morgan Hudson are officers and owners of Defendants

Mid-Hudson, GDH, Bridgeport, Buell, and Pabrico. See Frumkin, Aff., Exh. 8 at pp. 69:4-77:5;

29:8-14; 60:23-25. 

22. To date, Mid-Hudson did not remit payment in full of its total withdrawal liability

remaining due, or remit its twenty-fifth, twenty-sixth, twenty-seventh, twenty-eighth, twenty-ninth,

thirtieth, thirty-first, thirty-second, thirty-third, thirty-fourth, thirty-fifth, thirty-sixth, thirty-seventh,

thirty-eighth, thirty-ninth, or fortieth monthly withdrawal liability payments, in the amounts of

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$2,817.70 each. See Frumkin Aff., Exh. 9; Frumkin Aff., Exh. 8 at p. 40:8-20.

Dated: White Plains, New York Respectfully submitted,

June 30, 2008

SAPIR & FRUMKIN LLP

By: /s/ William D. Frumkin 

William D. Frumkin (WF2173)

Attorneys for Plaintiff

399 Knollwood Road, Suite 310

White Plains, New York 10603

(914) 328-0366

F:\APPLICAT\WP\TEAMSTER\Mid Hudson Steel Corp\Litigation\Summary Judgment-Mid Hudson - 06-2008\Rule 56.1 Statement.wpd\rlh

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CERTIFICATE OF SERVICE

I hereby certify that on June 30, 2008, a copy of Rule 56.1 Statement in Support of Plaintiff’s

Motion for Summary Judgment was filed electronically. Notice of this filing will be sent by

operation of the Court’s electronic filing system to all parties indicated on the electronic filing

receipt including:

Keith R. McMurdy, Esq.

Fox Rothschild, LLP

 100 Park Avenue, Suite 1500

New York, New York 10017

Parties may access this filing through the Court’s electronic filing system

 /s/ Rachel L. Horton 

Rachel L. Horton

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