Alien's Lost Wages Limited to Earnings in Native Land

Sunday, July 17, 2005 | 0

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 section 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."

by NY attorney Lawrence Rogak.

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