Loading ...
Sorry, an error occurred while loading the content.

The Rogak Report: 28 Apr 2005 ** Illegal Aliens - Discovery **

Expand Messages
  • Lawrence Rogak
    B.I. PLAINTIFF MUST GIVE DEPOSITION REGARDING HIS IMMIGRATION STATUS Bakhtadze v. Riddle, NYLJ 4/28/05 (Supreme Court, Richmond County) (GIGANTE, j) In this
    Message 1 of 1 , Apr 28, 2005
    • 0 Attachment
      B.I. PLAINTIFF MUST GIVE DEPOSITION REGARDING HIS IMMIGRATION STATUS

      Bakhtadze v. Riddle, NYLJ 4/28/05 (Supreme Court, Richmond County)
      (GIGANTE, j)

      In this personal injury action, plaintiff claimed to have sustained
      personal injuries when he fell from a roof on which he was working,
      at a certain residence on Staten Island. In his Bill of Particulars,
      plaintiff sought recovery of lost wages of $24,000 to date, and
      accruing.

      Defendant JNM Contracting Inc. moved for a further deposition of
      plaintiff, limited to his immigration status now and at the time of
      his accident, his ability to obtain work legally in the United
      States, and for documentation thereof.

      The Court stated that in 2002, the United States Supreme Court
      decided Hoffman Plastics Compounds Inc. v. NLRB, 535 U.S. 137. In
      Hoffman, the Court reviewed the Immigration Reform and Control Act
      (IRCA), and concluded that any award of back pay to illegal aliens
      would run counter to the purposes of that Act, i.e. to eliminate any
      attractions or benefits for the employment of undocumented immigrants.

      There is some recent New York case on this point. The Appellate
      Division First Department, in two companion cases, Balbuena v. IDR
      Realty LLC, 13 AD3d 285 and Sanango v. 200 East 16th Street Housing
      Corporation, 788 NYS 2d 314, concluded that an undocumented alien is
      not entitled to recover lost earnings as a measure of damages for
      wages he might have earned illegally in the United States. One lower
      court came to the same conclusion (Majlinger v. Cassino Contracting
      Corp., 1 Misc3d 659), and one did not (Celi v. 42nd Street
      Development Project Inc., 5 Misc3d 1023).

      The court mentioned that there is a contrary opinion from the Second
      Department in Collins v. New York City Health and Hospitals Corp.,
      201 AD2d 447, but held that the continued viability of that
      decision "is in serious doubt" and "refuses" to follow it.

      "By logic of reasoning, the plaintiff's immigration status directly
      relates to his claim for lost wages, and defendants are entitled to
      discovery on that issue. He is directed to appear and submit to a
      deposition at a time and place to be agreed upon."

      Larry Rogak
    Your message has been successfully submitted and would be delivered to recipients shortly.