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The Rogak Report: 01 July 2005 ** Illegal Aliens - Lost Wages **

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  • Lawrence Rogak
    ILLEGAL ALIEN S LOST WAGES ARE LIMITED TO WHAT HE COULD HAVE EARNED IN HIS NATIVE COUNTRY Sanango v. 200 East 16 Street Housing Corporation, 15 A.D.3d 36, 788
    Message 1 of 1 , Jun 30, 2005
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      ILLEGAL ALIEN'S LOST WAGES ARE LIMITED TO WHAT HE COULD HAVE EARNED
      IN HIS NATIVE COUNTRY

      Sanango v. 200 East 16 Street Housing Corporation, 15 A.D.3d 36, 788
      N.Y.S.2d 314 (1st Dept 2004)

      Plaintiff, an "undocumented alien," brought this personal injury
      action against a work site owner to recover for injuries that he
      sustained in a fall from a ladder. The site owner brought a third-
      party indemnification action against contractor that had employed
      laborer. A Supreme Court, New York County jury verdict awarded
      plaintiff $2,452,000 for pain and suffering and $96,000 for lost
      earnings. The site owner and contractor appealed.

      The Appellate Division held that, "Although we otherwise affirm
      plaintiff's judgment, we find that the appeal has merit insofar as it
      seeks reversal of the award for lost earnings. It is conceded that
      plaintiff is entitled, without regard to his immigration status, to
      recover damages for items such as pain and suffering and medical
      expenses. The issue presented here, however, is whether, in light of
      the federal Immigration Reform and Control Act of 1986 (IRCA) (8 USC
      ยง 1324a) and the recent decision of the United States Supreme Court
      in Hoffman Plastic Compounds v. NLRB, 535 U.S. 137, 122 S.Ct. 1275,
      152 L.Ed.2d 271 [2002], plaintiff's status as an undocumented alien
      bars or limits his recovery for lost earnings.

      "The clear implication of Hoffman is that a remedy based on the wages
      plaintiff might have earned unlawfully in the United States 'would
      unduly trench upon explicit statutory prohibitions critical to
      federal immigration policy, as expressed in IRCA'."

      Defendant's Motions at trial "to exclude plaintiff's evidence on the
      issue of lost earnings should have been granted to the extent of
      limiting the evidence admissible on that issue to proof of the wages
      that, but for his injuries, plaintiff would have been able to earn in
      his country of origin. Accordingly, we vacate the award for lost
      earnings, and remand for a new trial, consistent with this opinion,
      solely on that issue."

      Larry Rogak
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