Summary
holding that plaintiff administrator should be permitted to offer evidence of any wages that decedent, an alien working in the United States on an apparently illegal basis, might have earned, and that it is for the jury to weigh defense proof that decedent would have earned those wages, if at all, on an illegal basis
Summary of this case from Hocza v. City of New YorkOpinion
April 1, 1993
Appeal from the Supreme Court, Bronx County (Anita Florio, J.).
We agree that the plaintiff administrator should be permitted to offer evidence of any wages that his decedent, an alien working in the United States on an apparently illegal basis, might have earned. Any pertinent evidence is competent unless prohibited by statute (see, Freeman v Corbin Ave. Bus Co., 60 A.D.2d 824, 825, lv denied 44 N.Y.2d 649). It is for the jury to weigh defense proof that decedent would have earned those wages, if at all, by illegal activity (see, Spadaccini v Dolan, 63 A.D.2d 110, 124).
In tort cases, beginning with Barker v Kallash ( 63 N.Y.2d 19, 24-25), the criminal nature of an act has been held to preclude recovery of damages based on the consequences of that act only where the act is a serious crime that directly caused the injuries (see also, Izzo v Manhattan Med. Group, 164 A.D.2d 13, 18, amended 169 A.D.2d 428, lv dismissed 77 N.Y.2d 989).
No different result is required by the public policy disfavoring enforcement of contracts for illegal activity (see, McConnell v Commonwealth Pictures Corp., 7 N.Y.2d 465, 469). The record does not support a conclusion, as a matter of law, that decedent's allegedly illegal conduct amounted to serious crimes that directly caused his injuries. To the extent that Collins v New York City Health Hosps. Corp. ( 151 Misc.2d 266 [Sup Ct, Queens County], adhered to on rearg 151 Misc.2d 270) is inconsistent, we decline to follow it.
Concur — Sullivan, J.P., Kupferman, Asch and Kassal, JJ.