Opinion
INDEX NO. 150770/2016
01-14-2019
ANGEL INAMAGUA, Plaintiff, v. 68-74 CHARLTON ST. COMPANY, LLC, CHARLTON STREET OWNER, LLC, and T.G. NICKEL & ASSOCIATES, LLC, Defendants.
NYSCEF DOC. NO. 150 Motion Sequence 003
DECISION AND ORDER
SHERRY KLEIN HEITLER, J.S.C.
This is a Labor Law personal injury action. The plaintiff, Angel Inamagua ("Plaintiff"), alleges that he was struck and injured by a falling formwork panel that was being passed between two floors of a construction site. The construction site was owned by defendant 68-74 Charlton Street Company, leased to defendant Charlton Street Owner, LLC, and was under the supervision of defendant T.G. Nickel & Associates (collectively, "Defendants"). Plaintiff was employed by non-party Structure Tech, New York, Inc.
The court has already denied motions by both the Plaintiff and the Defendants for summary judgment. The Defendants now move to preclude Plaintiff's lost wage claim in its entirety, arguing that Plaintiff was working in the United States illegally; fraudulently induced Structure Tech into hiring him using a false social security number; failed to provide any verifiable source of income; and does not meet the "reasonably certain" burden to support an award for future lost earnings. Defendants further move pursuant to CPLR 3124 for an order compelling Plaintiff to provide responses to Defendants' outstanding discovery requests relating to Plaintiff's immigration and employment records, applications for citizenship, and legal status.
See order dated August 22, 2018 (NYSCEF Doc. 146).
During his April 11, 2017 deposition Plaintiff testified that he first came to the United States in or about 2009. From then until about 2014 he worked a number of odd jobs. To date Plaintiff has not identified any of his employers during this six-year time period. In or about June of 2014 Plaintiff was hired by Advanced Contracting Solutions. He worked there for approximately six months until December of 2014. In April of 2015 Plaintiff applied to work for and was hired by Structure Tech. Plaintiff has admitted that he was not a United States Citizen and did not have a Social Security Card when he applied to work for Advanced Contracting Solutions or Structure Tech. He did however have a pending application for citizenship, based upon the citizenship of his wife whom he married in April of 2015, when he applied to work for Structure Tech.
See Defendants' exhibit P (Inamagua Dep).
Inamagua Dep. pp. 13-14 (Inamagua Dep); Defendants' Notice to Admit, exhibit FF.
Inamagua Dep, p. 11.
Defendants assert that Plaintiff unlawfully obtained his employment in the United States using up to three false Social Security and tax identification numbers. Plaintiff denies Defendants' accusations of fraud, identity theft, and misrepresentation. Plaintiff has nonetheless withdrawn his lost wage claim from November 6, 2015, the date of his accident, through June 1, 2018, the date on which he claims to have obtained a valid Green Card. Plaintiff argues that he is entitled to seek damages for lost wages starting on the date he obtained legal resident status.
At a recent compliance conference, the court ordered Plaintiff to provide Defendants' with an authorization to obtain a copy of Plaintiff's green card directly from the United States government.
The issue on this motion is whether Plaintiff's alleged fraudulent activities bar him from seeking lost wages regardless of his status as a Green Card holder. At the court's request, the parties briefed this issue in the context of the Supreme Court case Hoffman Plastic Compounds, Inc. v. NLRB, 535 US 137 (2002) and the New York Court of Appeals case Balbuena v IDR Realty, LLC, 6 NY3d 338 (2006). The court heard oral argument, on the record, on October 15, 2018.
Hoffman Plastic involved an undocumented alien employee, not legally authorized to work in the United States, who was awarded backpay after the National Labor Relations Board found that his employer unlawfully terminated him for union activity. The Supreme Court reversed the NLRB's decision, holding that awarding backpay to an illegal alien ran counter to the Immigration Reform and Control Act of 1986, which prohibits the employment of illegal aliens (id. at 140):
[The IRCA] makes it a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents . . . an offense that [plaintiff] committed when obtaining employment with petitioner. Thus, allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.In reaching its decision the Hoffman court explained that the plaintiff could only qualify for backpay by remaining in the United States illegally and could not mitigate his damages by obtaining new employment because this would trigger new IRCA violations. Id. at 150-151.
In 2006 the Court of Appeals decided Balbuena, which addressed personal injury lawsuits brought by two individuals who lacked status to work in the United States when they were injured. Gorgonio Balbuena, a Mexico native, was employed at a construction site in 2000 when he fell from a ramp and sustained severe head trauma which rendered him unable to work. Stanislaw Majlinger came to the United States on a valid travel visa from Poland but remained here after it expired. In 2001 he was injured at work when the scaffold he was using collapsed. Both Balbuena and Stanislaw filed claims under New York's Labor Law.
Relying upon its prior decision in Sanango v 200 E. 16th St. Hous. Corp., 15 AD3d 36 (1st Dept 2005), the First Department held that an alieh not authorized to work is precluded by Hoffman from claiming lost wages derived from income earned in the United States. The Second Department reached the opposite conclusion, finding that state tort law is not preempted by federal immigration law and that neither the IRCA nor Hoffman prohibits an undocumented alien from recovering lost wages in a personal injury action.
Balbuena, 13 AD3d 285 (1st Dept 2004).
Majlinger, 25 AD3d 14 (2d Dept 2005).
The Court of Appeals essentially adopted the position of the Second Department. Among other things, the Court held that the "Labor Law . . . applies to all workers in qualifying employment situations--regardless of immigration status--and nothing in the relevant statutes or our decisions negates the universal applicability of this principle." Balbuena, 6 NY3d at 358. To have ruled otherwise would "lessen an employer's incentive" to provide its employees with a safe workplace and "improvidently reward employers who knowingly disregard the employment verification system" by purposefully hiring illegal aliens. Id. at 359.
The Balbuena court cited with approval Rosa v Partners in Progress, Inc., 152 NH 6 (2005), a decision from the New Hampshire Supreme Court which held that an undocumented worker could not seek lost wages in a personal injury suit unless the employer knew of the worker's status or did not reasonably rely upon fraudulent documentation hiring the worker.
What distinguishes Balbuena from this case is Defendants' allegation that Mr. Inamagua provided his employer with fraudulent papers. There was no allegation in Balbuena that either plaintiff produced false work documents. For whatever reason, the Court did not specify what the consequences would have been had either Mr. Balbuena or Mr. Majlinger violated the IRCA, but in dicta the Court suggested that an undocumented worker could still pursue future lost wages at trial if he/she received or was in the process of receiving authorization to work in the United States legally (id at 362):
An undocumented alien plaintiff could, for example, introduce proof that he had subsequently received or was in the process of obtaining the authorization documents required by IRCA and, consequently, would likely be authorized to obtain future employment in the United States. Conversely, a defendant in a Labor Law action could, for example, allege that a future wage award is not appropriate because work authorization has not been sought or approval was sought but denied. In other words, a jury's analysis of a future wage claim proffered by an undocumented alien is similar to a claim asserted by any other injured person in that the determination must be based on all of the relevant facts and circumstances presented in the case.
These issues were deconstructed further in the post-Balbuena case Coque v Wildflower Estates Developers, Inc., 58 AD3d 44, 52 (2d Dept 2008). In Coque the Second Department held that even if Hoffman and/or Balbuena stood for the proposition that the submission of a fraudulent document served as a sufficient basis to deny a plaintiff damages for lost wages, the defendant would still have to prove that plaintiff's employer was "duped by fraudulent documentation into believing that the employee is a United States citizen or otherwise eligible for employment" (Coque, 58 AD3d at 52) and that such documentation was necessary to him/her obtaining employment. In other words, "[i]f the employer was, or should have been, aware of the plaintiff's immigration status, and nonetheless hired the plaintiff 'with a wink and a nod' (Hoffman, 535 US at 156 [Breyer, J., dissenting]), the false document was not necessary 'to obtain employment.'" Coque, 58 AD3d at 53. Indeed, the Balbuena decision suggests that Plaintiff's right to seek lost wages "is affected by the employer's knowledge of (or willful blindness to) the plaintiff's undocumented status. Id. quoting Balbuena, 6 NY3d at 362 (emphasis added) ("Moreover, there is no evidence in the records before us that plaintiffs (like the alien worker in Hoffman) tendered false documentation in violation of IRCA or that their employers satisfied their duty to verify plaintiffs' eligibility to work").
The proposition that injured undocumented workers may recover lost wages is supported by several other New York decisions. See Hernandez v 151 Sullivan Tenant Corp., 30 AD3d 187, 188 (1st Dept 2006) (Balbuena's holding is that "undocumented aliens may recover" lost earnings); Matter of Amoah v Mallah Mgt., LLC, 57 AD3d 29, 34 (3d Dept 2008) (Injured undocumented worker who obtained employment through the use of fraudulent documents may receive workers' compensation benefits).
In Macedo v J.D. Posillico, Inc., 68 AD3d 508, 511 (1st Dept 2009) the First Department adopted Coque's rationale and analyzed when an employer should know whether a potential hire is undocumented. For example, the Macedo plaintiff admitted he had a false Social Security number, but did not forfeit his right to recover lost wages since there was no evidence the employer was induced to hire him because of the false documentation (id at 511):
"it is undisputed that [defendant] did not complete or have plaintiff sign an 1-9 Form until months after the accident took place. Accordingly, even assuming that plaintiff had submitted his social security card at the time of his hire, it is clear that [defendant] failed to comply with its employment verification obligations in good faith. Thus, it cannot be concluded that plaintiff induced [defendant] to hire him based on his social security card.
The current state of New York law thus appears to be that an undocumented worker injured on the job may seek damages for future lost wages if the worker was in the process of obtaining legal status when he/she was injured or subsequently received legal status, unless the worker used fraudulent means to obtain employment and the employer both relied upon the fraudulent papers in hiring the undocumented worker and took reasonable steps to validate his/her employment.
The first prong appears to be satisfied in that Plaintiff has produced a Green Card, which, if valid, would make him a legal United States resident as of June 1, 2018. However, there is also substantial evidence that Plaintiff engaged in fraudulent activities when applying to work for ACS and Structure Tech. In this regard, Plaintiff admitted that he did not have a Social Security number when he applied to work for ACS, and yet the evidence shows that he submitted a Permanent Resident Card and Social Security Card as part of his employment application. Later, when the Plaintiff applied to work for Structure Tech, he filled out a W-4 form which required him to list a Social Security number. Structure Tech used this information to generate a W-2. Mr. Galligan, Structure Tech's project manager, avers that neither he nor anyone else affiliated with Structure Tech filled out Plaintiff's new hire paperwork or provided him or any other employee with a Social Security or tax identification number. Defendants have since discovered that the Social Security number used by Mr. Inamagua on his Structure Tech affidavit belongs to Mr. Daniel Gonzalez, a resident of Los Angeles, California who does not know Mr. Inamagua and never authorized him to use his Social Security number. On the other hand, it is unclear what specific steps ACS and Structure Tech undertook to validate Mr. Inamagua's legal status
To the extent not already provided, Plaintiff is directed to provide Defendants with an authorization to obtain a copy of his Green Card directly from the United States Government.
See Affidavit of Patrick Murphy, Defendants' exhibit VV (Murphy Affidavit).
See Affidavit of Mark Galligan, Defendants' exhibit XX (Galligan Affidavit).
See Defendants' exhibit YY.
Affidavit of Daniel Gonzalez, Defendants' exhibit ZZ.
Given these particular facts and circumstances, the court finds that there are triable issues of fact whether Structure Tech was induced to hire Plaintiff because he submitted false documentation. In reaching this decision, the court notes that there is no evidence to show that Structure Tech completed an Employment Eligibility Verification (I-9) form. As such it is unclear whether Structure Tech satisfied its duty to verify Plaintiff's status before hiring him. See Macedo, 68 AD3d at 511; Coque, 58 AD3d at 54. Moreover, since ACS' affiant, Mr. Murphy, only purchased became involved in the company after purchasing its assets out of bankruptcy in 2018, it is evident that he has no personal knowledge as to ACS' policies and procedures in 2014, including whether ACS actually took the necessary steps to verify Plaintiff's status or whether it turned a blind eye to his alleged false Social Security and permanent resident cards. Neither he nor Mr. Galligan from Structure Tech have been deposed. The court would be remiss to accept their affidavits as fact without giving Plaintiff an opportunity to cross-examine them at trial. This way a jury can weigh their testimony against Plaintiff's own testimony and the evidence of Plaintiff's alleged wrongdoing when considering whether or not to award damages for lost wages. See Asabor v Archdiocese of N.Y., 102 AD3d 524, 527 (1st Dept 2013); Dollas v W.R. Grace & Co., 225 AD2d 319, 321 (1st Dept 1996). Defendants' motion to preclude is therefore denied.
As a condition of Plaintiff being able to move forward with his lost wage claim at trial, Plaintiff must comply with all outstanding discovery requests related to his immigration status and citizenship. Just as the jury has a right to consider whether Plaintiff's employer was induced into hiring him when contemplating whether to award lost wages, so too should the jury be able to consider Plaintiff's immigration status and alleged fraudulent activities. See Balbuena, 6 NY3d at 362; Angamarca v New York City Partnership Housing Development Fund, Inc., 87 AD3d 206, 209 (1st Dept 2011); Barahona v Trustees of Columbia Univ. in City of New York, 11 Misc. 3d 1035, 1038 (Sup. Ct. Kings Co. Mar. 10, 2005, Kurtz, J.); Wilkowski v New York City Tr. Auth., 2011 NY Misc. LEXIS 2418, *6 (Sup Ct. NY County, May 20, 2003, Stallman, J.). The court therefore directs Plaintiff to produce authorizations for Plaintiff's complete IRS records, copies of any tax identification cards in his possession, a fully executed Department of Homeland Security G-639 Form, copies of Plaintiff's visas and passports, and any other relevant documentation.
The court will reserve decision oh whether to order the Plaintiff to appear for a further deposition on the subject of his immigration status until such document discovery is complete.
In light of the foregoing, it is hereby
ORDERED that Defendants' motion to preclude Plaintiff from seeking damages for lost future wages is denied; and it is further
ORDERED that Defendants' motion to compel Plaintiff to provide discovery relating to his immigration status is granted as set forth herein; and it is further
ORDERED that Defendants are directed to serve Plaintiff's counsel with an updated discovery notice consistent with this decision and order within 15 days from the date of entry hereof; and it is further
ORDERED that Plaintiff provide full and complete responses thereto within 30 days of such service.
Counsel for both parties are directed to appear in Part 30 for a compliance conference on Monday, February 4, 2019 at 9:30AM. This constitutes the decision and order of the court.
DATED: 1-14-19
/s/ _________
SHERRY KLEIN HEITLER, J.S.C.