The Rogak Report: 28 Apr 2005 ** Illegal Aliens - Discovery **
- B.I. PLAINTIFF MUST GIVE DEPOSITION REGARDING HIS IMMIGRATION STATUS
Bakhtadze v. Riddle, NYLJ 4/28/05 (Supreme Court, Richmond County)
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
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."