Majlinger v. Cassino Contr.

• Decision Date: 19 September 2005
• Docket Number: 2003-09184.
• Citation: 25 A.D.3d 14,802 N.Y.S.2d 56,2005 NY Slip Op 06785
• Parties: STANISLAW MAJLINGER, Appellant, v. CASSINO CONTRACTING CORP. et al., Respondents, and JACK THAON et al., Defendants and Third-Party Plaintiffs-Respondents, et al., Defendants. ALUM-A-POLE CORP., Third-Party Defendant-Respondent. ELIOT SPITZER, as Attorney General of the State of New York, Intervenor.
• Court: New York Supreme Court — Appellate Division

25 A.D.3d 14

802 N.Y.S.2d 56

2005 NY Slip Op 06785

STANISLAW MAJLINGER, Appellant, v. CASSINO CONTRACTING CORP. et al., Respondents, and JACK THAON et al., Defendants and Third-Party Plaintiffs-Respondents, et al., Defendants ALUM-A-POLE CORP., Third-Party Defendant-Respondent ELIOT SPITZER, as Attorney General of the State of New York, Intervenor.

2003-09184.

Appellate Division of the Supreme Court of the State of New York, Second Department.

September 19, 2005.

APPEAL from an order of the Supreme Court, Richmond County (Christopher J. Mega, J.), entered October 1, 2003. The order granted various defendants' motions for summary judgment dismissing the claim for lost wages in an action to recover damages for personal injuries.

Majlinger v Cassino Contr. Corp., 1 Misc 3d 659, reversed.

Cardali & Cardali, P.C., New York City, and Pollack, Pollack, Isaac & DeCicco (Raymond C. Silverman and Brian J. Isaac of counsel), for appellant.

Smith & Laquercia, LLP, New York City (Reed M. Podell and Edwin L. Smith of counsel), for Cassino Contracting Corp. and another, respondents.

DeCicco Gibbons & McNamara, P.C., New York City, and Mischel & Horn, P.C. (Scott T. Horn of counsel), for Jack Thaon and others, defendants and third-party plaintiffs-respondents.

Jacobson & Schwartz, Rockville Centre (Henry J. Cernitz of counsel), for D & Sons Construction Corp., respondents.

Eliot Spitzer, Attorney General, New York City (Michael S. Belohlavek, M. Patricia Smith, Donya Fernandez, and Seth Kupferberg of counsel), intervenor pro se.

OPINION OF THE COURT

PRUDENTI, P.J.

This appeal requires us to decide whether a New York court's award of damages for lost wages to an undocumented alien injured in a workplace accident is preempted by federal immigration policy. We hold that an employer, general contractor, or property owner whose negligence or violation of New York's workplace safety statutes causes injury to a worker may not avoid liability for the worker's lost wages by virtue of the worker's status as an undocumented alien. Such a rule is not only compatible with, but furthers, Congress's policy of deterring the hiring of undocumented aliens.

The plaintiff, Stanislaw Majlinger, allegedly was injured in January 2001, when he fell from a scaffold while installing siding as an employee of J & C Home Improvement (hereinafter J & C). The plaintiff commenced this action against various entities alleged to be property owners, general contractors, or their agents at the site of the accident. J & C was not named as a defendant, either in the plaintiff's action or in the third-party action brought by three of the defendants. The complaint alleged common-law negligence and violations of Labor Law §§ 200, 240 and 241 (6). In his bill of particulars, the plaintiff asserted that as a result of his injuries he was incapacitated from employment and he was seeking, inter alia, damages for lost earnings.

The plaintiff immigrated to the United States from Poland in November 2000. He testified at his deposition that he was not aware of his immigration status, but he acknowledged that he did not have a Social Security number. By counsel, he disclosed that he was in the United States on an extension of his original tourist visa. In response to a discovery demand made by the defendants Cassino Contracting Corp. (hereinafter Cassino) and Veteran Properties, Inc. (hereinafter Veteran), and enforced by the Supreme Court, the plaintiff acknowledged that he was not in possession of any of the documents enumerated in the federal immigration statutes and regulations (see 8 USC § 1324a [b] [1] [B], [C], [D]; 8 CFR 274a.2 [b] [1] [v]) that would demonstrate his eligibility for employment in the United States.

Cassino and Veteran moved for summary judgment dismissing the plaintiff's lost wages claim on the ground that the plaintiff, as an undocumented alien, was not entitled to recover "unearned past and future lost wages in a personal injury action," pursuant to the Immigration Reform and Control Act of 1986 (8 USC § 1324a et seq. [hereinafter the IRCA]), as interpreted by the United States Supreme Court in Hoffman Plastic Compounds, Inc. v NLRB (535 US 137 [2002]). Cassino and Veteran argued that the plaintiff "cannot be awarded wages that the IRCA prohibits him from earning." The defendants and third-party plaintiffs, Jack Thaon, Celebration, LLC, and New York City Partnership Housing Development Fund Company, the defendant D & Sons Construction Corp., and the third-party defendant separately moved for the same relief.

The Supreme Court granted the motions and, "[o]n constraint of Hoffman," dismissed the claim for lost wages (Majlinger v Cassino Contr. Corp., 1 Misc 3d 659, 662 [2003]). The court reasoned that "sanction[ing] the recovery of lost wages by an undocumented alien for work not performed would run contrary to both the letter and spirit of the IRCA" (id.). The plaintiff appeals.

The Immigration and Nationality Act (8 USC § 1101 et seq. [hereinafter the INA]), inter alia, criminalizes unsanctioned entry into the United States by an alien (see 8 USC § 1325) and provides that any alien who was inadmissible upon entering the United States is deportable (see 8 USC § 1227 [a] [1] [A]). Prior to 1986, the INA evinced "at best . . . a peripheral concern with employment of illegal entrants" (De Canas v Bica, 424 US 351, 360 [1976]). The INA did not "mak[e] it unlawful for an employer to hire an alien who is present or working in the United States without appropriate authorization," and did not "ma[k]e it a separate criminal offense for an alien to accept employment after entering this country illegally" (Sure-Tan, Inc. v NLRB, 467 US 883, 892-893 [1984]).

In 1986 Congress enacted the IRCA, which makes it unlawful to employ any alien who is not authorized to work in the United States (see 8 USC § 1324a [a]). A House Judiciary Committee report accompanying the IRCA explained that "[e]mployment is the magnet that attracts aliens here illegally," and that the statute's primary purpose was to prevent the employment of undocumented aliens by placing the onus on employers to verify their prospective employees' eligibility to work in the United States (HR Rep No. 99-682[I], 99th Cong, 2d Sess, at 45, 46, reprinted in 1986 US Code Cong & Admin News, at 5649, 5650 ["This legislation seeks to close the back door on illegal immigration . . . . The principal means of (doing so) is through employer sanctions," which is "the most humane, credible and effective way to respond to the large-scale influx of undocumented aliens"]). Accordingly, the IRCA requires that every employer, before hiring any person, verify that the person is not an unauthorized alien by examining documents that establish the person's identity and eligibility for employment in the United States (see 8 USC § 1324a [b]). The IRCA establishes civil and criminal penalties for employers who violate the statute (see 8 USC § 1324a [e], [f]). The IRCA also makes it unlawful to submit false or fraudulent documents to a prospective employer in order to satisfy the verification requirements (see 8 USC § 1324c [a]), and an individual who does so is subject to criminal prosecution (see 18 USC § 1546 [b]).

In two cases decided after the enactment of the IRCA, this Court and the Appellate Division, First Department, rejected arguments that the plaintiffs in wrongful death actions should be precluded from recovering the lost wages of alien decedents unlawfully employed in the United States (see Collins v New York City Health & Hosps. Corp., 201 AD2d 447 [1994]; Public Adm'r of Bronx County v Equitable Life Assur. Socy., 192 AD2d 325 [1993]). In Collins, we held that "the record fails to establish as a matter of law that any wages which the decedent might have earned would have been the product of illegal activity. Rather, this question, as well as the length of time during which the decedent might have continued earning wages in the United States, and the likelihood of his potential deportation, are factual issues for resolution by the jury under all of the circumstances of the case as developed by a full trial" (Collins v New York City Health & Hosps. Corp., supra at 448 [citations omitted]). The Court in Public Adm'r of Bronx County permitted the recovery of lost wages since the record in that case did not "support a conclusion, as a matter of law, that decedent's allegedly illegal conduct amounted to serious crimes that directly caused his injuries" (Public Adm'r of Bronx County v Equitable Life Assur. Socy., supra at 326).

In 2002 the United States Supreme Court decided Hoffman Plastic Compounds, Inc. v NLRB (535 US 137 [2002]). In that case, the employee, a native of Mexico who had never been legally admitted to, or authorized to work in, the United States, was hired by the employer after fraudulently presenting the birth certificate of an American-born friend. The employer laid off the employee, and the National Labor Relations Board (hereinafter the NLRB) later determined that the employer had terminated the employee and three other workers "in order to rid itself of known union supporters" in violation of the National Labor Relations Act (hereinafter the NLRA) (id. at 140). To remedy that violation, the NLRB ordered the employer, inter alia, to offer reinstatement and back pay to the employee.

The Supreme Court held that the NLRB lacked the discretion to award back pay to the employee for a period during which he was an alien unauthorized to work in the United States. The Court noted that in a decision predating the IRCA, it had held that the NLRA applied to undocumented aliens and that such an application of the statute did not conflict with then-existing federal immigration laws (see Sure-Tan, Inc. v NLRB, 467 US 883 [1984]). Indeed, the Court noted in Sure-Tan that the purposes of the immigration laws would be well served by extending the protection of the NLRA to undocumented...