Opinion
102490/03.
Decided October 7, 2004.
This motion arises from an action to recover damages for personal injuries sustained by plaintiff Marco Llerena (Mr. Llerena) at the construction site of defendant 302 West 12th Street Condominium (302 West) on June 21, 2001. During the course of his employment, Mr. Llerena fell ten feet from the first story to the ground below when a safety line untied and became loose. Mr. Llerena commenced the instant lawsuit against 302 West alleging negligence and violations of New York Labor Law. Pursuant to CPLR § 3042, 302 West seeks to compel Mr. Llerena to produce documentary evidence "relating to his citizenship and U.S. residency, including but not limited to his passport, entry visa, any and all documentation from the Immigration and Naturalization Service and/or Department of Homeland Security, and tax returns for 1992 through 2003" (Order to Show Cause, p. 1). 302 West contends that relief for lost wages is foreclosed by federal immigration policy under the Immigration Reform and Control Act of 1986 (IRCA).
Mr. Llerena opposes on grounds that first, the order was not timely served; and second, that barring recovery of lost wages on the basis of citizenship is contrary to precedent and public policy. The parties do not dispute Mr. Llerena's non-U.S. citizenship nor his claim for lost wages. Mr. Llerena's opposition on procedural grounds is denied and this Court will consider the motion to compel on the merits.
302 West states that the instant motion requesting discovery of Mr. Llerena's undocumented status should be granted on the basis of relevance, regardless of whether Mr. Llerena's claim for lost wages is at issue (Affirmation in Reply, ¶ 4). With respect to lost wages, 302 West cites authority that the jury should weigh whether wages would have been earned by illegal activity ( Public Administrator of Bronx County v. Equitable Life Ins., 192 AD2d 325).
302 West relies on Hoffman Plastic Compounds Inc., v. N.L.R.B., 535 U.S. 137 (2002) in support of its extensive demand for Mr. Llerena's documents and tax returns. Hoffman barred the National Labor Relations Board from awarding post-termination back pay under the National Labor Relations Act (NLRA) to an undocumented worker on grounds that this ran afoul of IRCA ( Hoffman v. N.L.R.B., supra, 535 U.S. at 151).
However, Hoffman does not preclude undocumented immigrants from seeking commonlaw remedies, such as lost earnings, under state law (Vilensky Sapir, Undocumented Aliens' Rights to Recover From Lost Earnings, Outside Counsel, N.Y.L.J. 12/19/03, p. 4, col. 4; Madeira v. Affordable Housing Foundation Inc., 315 F. Supp2d 504, 507). Since Hoffman, New York courts have held that undocumented immigrant plaintiffs may establish that their earning capacity has been diminished as the result of an accident ( Madeira, supra, at 507). Indeed, the New York Attorney General concludes that ". . . Hoffman does not prevent the Department [of Labor] from enforcing the State's wage payment laws on behalf of illegal immigrants where 'no federal statute is at issue, nor is there any federal Constitutional issue in dispute'" (Formal Opinion No. 2003-F3, NY Op. Atty. Gen. No. F3, 2003 WL 22522840, at 5 (N.Y.A.G. October 21, 2003), citing to Balbuena v. IDR Realty, LLC, NY L.J. May 28, 2003 (Sup.Ct. NY County May 16, 2003). The Attorney General also concludes that Hoffman does not preclude the award of non-wage monetary payments available under New York's wage payment laws ( supra, at 5). New York's public policy does not bar back pay awards for undocumented workers wounded in the course of work at a construction site (Madeira, supra, at 507).
Because Hoffman is limited to resolving the conflict between IRCA and the federal NLRA with respect to NLRA's authority to order back pay for undocumented workers, this court declines to extend Hoffman to the matter at bar. No federal statute is at issue nor is any provision of the federal Constitution in dispute ( Balbuena, supra; Kirby v. Equitable Life Assurance Society, 192 AD2d 325 [1st Dept 1993]; Asgar-Ali v. Hilton Hotels Corp., NYLJ, Sept. 24, 2004, at 18, col.1; Madeira, supra). The instant action is limited to state labor law and tort remedies and does not implicate the concerns articulated in Hoffman. Further, the in terrorem effect of compelling disclosure clearly outweighs its limited probative value (Flores v. Amigon 233 F. Supp. 2d 462, 463; Liu v. Donna Karan 207 F. Supp. 2d 191, 192; Cano v. Mallory Management, 195 Misc 2d 666,669).
Accordingly, 302 West's motion is denied since 302 West has not established that Mr. Llerena's immigrant status is "material and necessary" to the defense. 302 West may renew its application at a later stage in the underlying matter if 302 can demonstrate that discovery would be relevant, and more relevant than harmful ( Asgar-Ali, supra). Mr. Llerena's immigration status "does not prevent him from recovering compensatory damages for defendant's [alleged] violation of New York Labor Law" ( Madeira, supra, at 507, citing Public Admin. Of Bronx County v. Equitable Life Assurance Society of U.S., 192 AD2d 325 [1st Dept 1993]; Cano, supra; Mazur v. Rock-McGraw Inc. 246 AD2d 515 [2d Dept 1998]).
This constitutes the decision and order of this court.