Lima v Montauk Rug & Carpet Corp.

[*1] Lima v Montauk Rug & Carpet Corp. 2009 NY Slip Op 51174(U) [23 Misc 3d 1137(A)] Decided on May 26, 2009 Supreme Court, New York County Edmead, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 26, 2009
Supreme Court, New York County

Mauro Lima, Plaintiff,

against

Montauk Rug & Carpet Corp., Defendant.



115582-2007

Carol R. Edmead, J.

MEMORANDUM DECISION

Plaintiff, Mauro Lima ("plaintiff"), commenced this action against defendant Montauk Rug and Carpet Corp. ("defendant") alleging that defendant hired him, paid him as an independent contractor rather than as an employee, and deducted amounts from his earnings for "Workers' Compensation Insurance," which was never obtained and for which it had no right to charge. Plaintiff also alleges that defendant's supervisory personnel made deductions from his compensation for their personal benefit.

Plaintiff now moves for partial summary judgment for an order determining that (i) he is entitled to a determination by a referee as to the benefits he would be entitled to as an employee, which were wrongly denied by defendant from 2004 through 2007 (the "Relevant Period"), and (ii) he be awarded reimbursement for all deductions made by defendant during said period for alleged Workers' Compensation Insurance contributions.

Factual Background

In 2001, plaintiff, identifying himself as "Marcelo Gomez" was hired by defendant's salesman, Gary Blasco ("Blasco") to install carpet. Upon his hire, plaintiff provided defendant with an invalid Social Security Number. In late 2003 or early 2004, when defendant's office manager discovered that the Social Security Number supplied by plaintiff was invalid, plaintiff was told that he could not work there. Plaintiff then provided another Social Security Number, this time belonging to Leanna Queiroz, plaintiff's then girlfriend ("Leanna"). Defendant then began issuing checks in payment for plaintiff's installation work in Leanna's name. In keeping with the parties' practice, the checks were made payable to Leanna and cashed by defendant, and after deductions were made to account for, inter alia, plaintiff's Workers' Compensation Insurance premiums; plaintiff received the net amount in the form of cash. Defendant issued 1099s to Leanna in 2004, 2005, and 2006.

When plaintiff and Leanna's relationship ended in 2006, plaintiff and Blasco discussed how plaintiff would be able to continue his employment with defendant. According to plaintiff, he applied for and received a tax identification number and provided defendant with his tax identification number in January of 2007. [*2]

Defendant issued a final IRS 1099 Form in Leanna's name for 2007 in the amount of $1000.00. Defendant also issued a final IRS 1099 Form in 2007 to "Mauro Lima" in the amount of $31,133.30 using plaintiff's tax identification number.

Plaintiff's Motion

Plaintiff argues that as a matter of law, he was an employee of defendant. Despite defendant's statements to the contrary, plaintiff was not an independent contractor of defendant. Plaintiff provided services to defendant routinely as a carpet installer exclusively under the direction of one or two of defendant's managing personnel. Defendant provided plaintiff with specific instructions on each job and supervised his work. Except for a few small hand tools that plaintiff supplied himself, defendant provided all the necessary tools and equipment required for each particular job. The locations where plaintiff performed his services were always at the direction of defendant's personnel. Defendant also had exclusive control over plaintiff's compensation scheme, depending upon the particular requirements of each job. Further, plaintiff never worked at his own convenience, but rather was instructed by defendant's personnel to be at various locations at particular dates and times.

Moreover, plaintiff was placed on defendant's pay records, albeit under an assumed name, where his name was later substituted for that of Leanna in an effort to provide the illusion that defendant was complying with federal employment laws. When plaintiff's relationship with Leanna ended, defendant still issued an IRS 1099 Form in 2007 under Leanna's name. Because there is no dispute concerning whether defendant exercised the requisite control over plaintiff, such that plaintiff was an employee of defendant and not an independent contractor, the Court should refer this matter to a referee for a determination on the issue of damages owed to plaintiff.

Plaintiff further contends that caselaw permits the reimbursement of payments that an undocumented employee would have otherwise earned had such contributions not been unlawfully deducted by defendant. Plaintiff is entitled to recover the 20 percent of his earnings which were deducted from his salary during the Relevant Period. Where an employer makes deductions on behalf of a worker for insurance premiums, but later fails to provide such insurance, plaintiff is entitled to obtain reimbursement for those deductions. Plaintiff was never provided with any formal records issued by defendant for the deductions made from his earnings. Defendant admitted to making deductions for Workers' Compensation Insurance at the rate of 20 percent of plaintiff's earnings for the Relevant Period. Despite these deductions, insurance coverage was never provided to plaintiff, even though all of defendant's carpet installers were required to have such coverage.

Further, any claim by defendant that Leanna became plaintiff's boss when plaintiff supplied defendant with Leanna's Social Security Number is belied by the fact that Leanna never provided defendant with any services, had no employment arrangement with the defendant, was never accountable to the defendant, and was never covered by defendant's Workers' Compensation Insurance. Further, any such claim is inconsistent with the fact that defendant issued two separate IRS 1099 Forms to plaintiff and Leanna in 2007.

Plaintiff argues that his use of an invalid Social Security Number at the time of his hire in 2001 do not preclude recovery. Caselaw permits the recovery of wages regardless of a worker's employment ineligibility. An absence of due diligence by an employer in demonstrating compliance with federal employment laws fails to relieve an employer of liability. The Federal [*3]Immigration Reform and Control Act of 1986 does not preempt New York State Law. Limiting the ability of workers to recover damages would only serve to undermine the protections afforded by New York's Labor Law and essentially reward unscrupulous employers. Even assuming that defendant could establish that it had been induced to hire plaintiff on being presented with false employment eligibility documents - a defense which is noticeably absent in this case - defendant nevertheless violated Federal Law when it continued to employ plaintiff in late 2003 or 2004 until after becoming aware of his employment ineligibility, and further acquiesced, and encouraged this behavior while several members of management facilitated this ongoing ruse. Because the issue concerning an employer's liability under federal law is undisputed, defendant should not be permitted to be relieved of liability to provide its workforce with certain Workers' Compensation insurance protections, and, equally appalling, cheat these same workers of 20 percent of their earnings, which were allegedly deducted for such premiums. To hold otherwise, does away with the important deterrent effect which is aimed at protecting workers.

Defendant's Opposition

Defendant maintains that plaintiff was retained as an independent contractor. Whether plaintiff is an employee is question of fact that can only be determined after weighing several factors, of which no one factor is determinative. The weight of the different factors varies, depending on the circumstances, such as whether the employee status is sought for purposes of achieving a certain income-tax classification or, as here, whether there is liability for payment of Workers' Compensation Insurance. Plaintiff testified that the location at which he performed his work varied constantly, depending on which of defendant's customers needed carpet installation at the time, and that he had to travel by public transportation. At trial, defendant will show that the tools supplied by defendant were so bulky that plaintiff could not have brought them to the worksite. Plaintiff also admits that he worked on several different jobs in rapid succession, so that the fact that he was paid weekly, agglomerating payments for the different work he performed during any given week, cannot be considered as an indicium of the sort of periodic payment that is characteristic of an employee. Since plaintiff was paid by the yard, never by the hour, as an employee would have been paid, and defendant charged its customer by the yard, the installer is considered an independent contractor.

Plaintiff even paid his helper himself, which shows that he was an independent contractor. Plaintiff's use of a tax identification number further indicates that he was never defendant's employee; a tax identification number could be sufficient for an independent contractor, but a social security number is required for an employee.

Naturally, he would be directed to where the most urgent installation had to be performed -a criterion about which he could not make any decisions because he had no knowledge of the competing urgency of the different installations that defendant had to perform. Since defendant was aware that plaintiff had to travel by public transportation to reach the location of the installations he was to perform, defendant accommodated him by allowing him to use heavy equipment belonging to defendant. Nor did defendant have exclusive control over plaintiff's compensation scheme. Plaintiff could have rejected defendant's offer and sought work elsewhere. It is also irrational for plaintiff to insist that he was defendant's employee and hire his own assistants for help. As a true employee, he would have had no such authority but would be directed to work alongside of whatever other employee defendant would have selected for [*4]assistance on any particular job.

As an independent contractor, plaintiff was not entitled to "benefits" from defendant. To the extent that Workers' Compensation Insurance might be termed a "benefit" he was provided with such coverage when he was not falsely alleging that he had obtained it on his own.

Defendant also faults plaintiff for failing to provide copies of his income-tax returns, which could indicate whether he was an employee by showing how his social-security taxes were paid. Defendant also points out that even if he had been treated as an employee by defendant, it would have been Marcelo Gomez who had been hired, not plaintiff.

Defendant insisted that the payee of the checks be the same person whose social security number was being used so that plaintiff could be considered as a subcontractor, working for, if not employed by, Leanna. Since Leanna did not carry on a big business subcontracting carpet installers, defendant also was justified in making sure that adequate contributions were made.

As an independent contractor, plaintiff would be responsible for his own Workers' Compensation Insurance, and defendant would be obligated to provide his Workers' Compensation Insurance only if he did not provide his own. Plaintiff must prove that any deductions taken from his earnings were without justification and that defendant did not intend to use such deductions for anything except their own personal benefit and that plaintiff himself did nothing to prevent deductions to be used for Workers' Compensation Insurance. Defendant discovered that plaintiff's claim that he was paying his own Workers' Compensation Insurance was false.

Furthermore, the deposition transcripts cannot be used to establish facts since they are not sworn to by the witness and the witness has not been subjected to cross-examination or rebuttal testimony. Further, the conclusory and self-serving affidavit of plaintiff misconstrues and contradicts the deposition testimony, and its substantive allegations are controverted by defendant's Vice-President, Paul Grayson ("Grayson"), which raises substantive questions of fact on all significant issues.

And, since Leanna was being paid for carpet installation during most of 2004 to 2007, if anyone were to be adjudged by this Court to be an employee of defendant during that period, it would be Leanna, not plaintiff. Defendant's records show that any work that plaintiff did was under the aegis of Leanna; and it was she, not defendant, who was obligated to obtain Workers' Compensation Insurance for plaintiff.

Defendant was obligated to render a statement to anyone to whom it paid taxable income, and since Leanna was obviously not an employee, IRS Form 1099 was the proper form to use to inform the payee of the total taxable amount that was paid over each taxable year. The use of that Form was not intended to conceal that defendant had hired plaintiff because it had not hired plaintiff, who was not defendant's employee as long as Leanna was receiving periodic payments.

In any event, since deductions were taken from plaintiff's earnings and plaintiff prevented their utilization for the stated purpose, plaintiff is not entitled to reimbursement of the amounts deducted. Plaintiff made it impossible for any Worker's Compensation Insurance to be obtained in his name. Plaintiff's first contact with defendant was fraudulent, as he gave them a false name and a false social security number, and falsified his immigration status and work history. While he was performing services under a false name, he could not have obtained Worker's Compensation Insurance in his own name, and coverage obtained under his assumed name would [*5]not redound to his benefit at all.

Moreover, Workers' Compensation Insurance was provided by defendant. The only question is its cost. Deductions were taken to offset the cost of Workers' Compensation Insurance, when Leanna was on defendant's own Workers' Compensation Insurance policy, in the amount of ten percent (10%) of the gross, later increased to 15% after defendant was audited by the State Insurance Fund and required to pay a higher premium. Plaintiff should not be entitled to ex post facto coverage by defendant when he had falsely represented to defendant that he had his own Workers' Compensation Insurance policy and defendant later discovered that the policy number he supplied was fraudulent.

Plaintiff's status as an undocumented alien renders him ineligible for reimbursement. The cases relied on by plaintiff address an entirely different issue-whether a worker who is injured on the job can recover lost wages. Plaintiff was never injured, and the issue herein is not lost wages, since plaintiff was never an employee and thus did not receive "wages." Even if his compensation were to be considered as wages, the question is not one of any wages having been lost; he was paid for the work he did. What plaintiff seeks is reimbursement for the deductions that were made, during certain period of his relationships with defendant for the cost of the Workers' Compensation Insurance which both parties agree should have been provided. There are serious questions of fact over who was required to provide the insurance and whether it was being provided at all, as well as at what cost. Both of those questions are independent of the fact that plaintiff is, was, and always has been an illegal immigrant. Thus, summary judgment cannot be awarded.

It should be noted that at no time did plaintiff, under his own name or under any

pseudonym, ask for any accounting, which he now complains that he did not receive.

Reply

Simply stating that plaintiff is the culpable party, in the absence of evidence, is not sufficient for defendant to sustain its burden on summary judgment. Grayson's statements, such as, "as can be shown by the bookkeeping records maintained and kept by Defendant" to calculate various Workers' Compensation deductions at various different rates over a period of years," without any underlying documentation are insufficient.

Defendant also failed to provide any credible evidence that plaintiff was an independent contractor. Specifically, there is no evidence to support defendant's claim that it accommodated plaintiff by allowing him to use heavy equipment belonging to defendant is unsupported.

Further, defendant's arguments that Leanna was a subcontractor is inconsistent with the record established in this case. Defendant became aware of plaintiff's true identity in at least as early as 2004. Defendant's claim that plaintiff called "himself Leanna Queiroz" and took "money in her name" is inconsistent with its argument that Leanna was a subcontractor. If the latter is true, a question is raised as to why defendant was taking any deductions at all on behalf of plaintiff in connection with Workers' Compensation contributions, since under defendant's theory, the obligation to provide plaintiff with insurance would have rested with Leanna and not defendant. Further, there is also no evidence to support defendant's claim that Leanna did not carry on a big business subcontracting carpet installers.

New York courts do not assess an employees' right to recover Workers' Compensation related wages on the basis of their status as legal documented workers. And, under federal law (8 [*6]U.S.C.A. § 1324a(4); 8 C.F.R. § 274a. 10), even in the case of independent contractors, an employer is still liable for penalties if it "knowingly" used a contract, subcontract or exchange to obtain the services of an unauthorized alien. Accordingly, defendant cannot be excused of its culpable conduct, i.e. continued employment, once it became aware of plaintiff's status as an undocumented illegal alien in early 2004.

Further, the overwhelming testimony of both parties which makes clear that plaintiff

was an employee of defendant, and the caselaw cited by defendant is factually distinguishable.

Analysis

To obtain summary judgment, the movant must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor (CPLR § 3212 [b]). This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Winegrad v New York Univ Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Silverman v Perlbinder, 307 AD2d 230, 762 NYS2d 386 [1st Dept 2003]; Thomas v Holzberg, 300 AD2d 10, 11, 751 NYS2d 433, 434 [1st Dept 2002]). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions" (CPLR § 3212 [b]). A party can prove a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman, supra ; Prudential Securities Inc. v Rovello, 262 AD2d 172[1st Dept 1999]).

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR §3212 [b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so (Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; Zuckerman v City of New York, supra , 49 NY2d at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (Zuckerman, supra at 562). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v Steward M. Muller Constr. Co, 46 NY2d 276, 281-82, 413 NYS2d 309 [1978]; Plantamura v Penske Truck Leasing, Inc., 246 AD2d 347, 668 NYS2d 157 [1st Dept 1998]).

It is undisputed that an independent contractor is responsible to provide for his own Workers' Compensation Insurance, and that independent contractors are not employees covered by the workers compensation law (Commissioner of State Ins. Fund v Golden, 6 Misc 3d 1038, 800 NYS2d 344 [N.Y.City Civ.Ct.,2005] citing Commissioners of State Insurance Fund v Fox Run Farms, Inc., 195 AD2d 372, 600 NYS2d 239). Further, as defendant contends, a contractor would be obligated to provide Workers' Compensation Insurance on the independent contractor's behalf where the independent contractor failed to provide his own (Commissioner of State Ins. Fund v Golden, supra [Workers Compensation Law § 56 "makes a contractor responsible for the payment of workers compensation to an employee of a subcontractor if the subcontractor failed [*7]to carry the required worker's compensation insurance"]; see generally, De Stefano v Consolidated Tile Co., 284 AD 817, 132 NYS2d 360 [3d Dept 1954], affd 308 NY 721 [where subcontractor did not carry compensation insurance covering certain employee, Workers' Compensation Board had authority to make an award against general contractor]).

In considering plaintiff's threshold argument that he was hired as an "employee" of the defendant, it must be noted that two distinct tests have been devised for determining whether an employer/employee relationship exists, and courts have employed a combination of the factors in both tests when confronted with Workmen's Compensation questions (see Commissioners of State Ins. Fund v Lindenhurst Green & White Corp., 101 AD2d 730, 475 NYS2d 42 [1st Dept 1984]). One test, the common law "control" test, involves four factors: (1) direct evidence of the owner's right to or exercise of control; (2) the method of payment; (3) the extent to which the owner furnishes equipment; and (4) whether the owner retains the right to discharge (Commissioners of State Ins. Fund v Lindenhurst Green & White Corp, supra , citing Matter of Mace v Morrison & Fleming, 267 AD 29, 44 NYS2d 672, and Matter of Beach v Velzy, 238 NY 100; Larson on Workmen's Compensation, Section 44.00). As stated in In re Morton (284 NY 167 [1940]): The distinction between an employee and an independent contractor has been said to be the difference between one who undertakes to achieve an agreed result and to accept the directions of his employer as to the manner in which the result shall be accomplished, and one who agrees to achieve a certain result but is not subject to the orders of the employer as to the means which are used. "What then is the test of this distinction between a servant and an independent contractor? The test is the existence of the right of control over the agent in respect of the manner in which his work is to be done. A servant is an agent who works under the supervision and direction of his employer; an independent contractor is one who is his own master. The servant is a person engaged to obey his employer's orders from time to time; an independent contractor is a person engaged to do certain work, but to exercise his own discretion as to the mode and time of doing it he is bound by his contract but not by his employer's orders."

The other, the "relative nature of the work" test considers the following factors: (1) the character of the claimant's work; (2) how much of a separate calling that work is from the owner's occupation; (3) whether it is continuous or intermittent; (4) whether it is expected to be permanent; (5) its importance in relation to the owners business; and (6) its character in relation to whether or not the claimant should be expected to carry his own accident insurance burden (Commissioners of State Ins. Fund v Lindenhurst Green & White Corp, supra , citing Matter of Gordon v New York Life Ins. Co., 300 NY 652and Matter of Paly v Lane Brush Co., 6 AD2d 50, 54, 174 NYS2d 205; Rayhill v United States, 364 F2d 347 [1966]; Commissioner of State Ins. Fund v Golden, 6 Misc 3d 1038, 800 NYS2d 344 [NY City Civ Ct 2005] [In determining whether an employer-employee relationship exists, for workers compensation purposes, the Court considers "the right to control the work, the method of payment, the right to discharge and the relative nature of the work"]). An employer/employee relationship has been found when but a few, and sometimes even only one, of these factors are satisfied (Commissioners of State Ins. Fund v Lindenhurst Green & White Corp., supra ). [*8]

Plaintiff's submissions fail to establish that he was employee of defendant as a matter of law. Plaintiff states that he installed carpet (1) "exclusively under the direction of one or two of defendant's managing personnel," (2) under defendant's specific instructions and supervised, (3) with tools and equipment supplied by defendant (except for a few small hand tools that plaintiff supplied himself), (4) at locations at the direction of defendant's personnel, (5) and pursuant to a compensation scheme over which defendant had exclusive control, and (6) at various locations at particular dates and times directed by defendant, and never at his own convenience.

Plaintiff's claim that he installed carpet under the direction, instruction and supervision of one or two of defendant's managing personnel, is insufficient. The record does not establish that these individuals exercised the right to control the manner in which plaintiff installed carpet, or supervised his installations, but merely provided the locations at which plaintiff was to install carpet. In fact, when plaintiff was asked at his deposition, "And who would instruct you how to install the carpet?" plaintiff replied, "At the job site, it would be me." (EBT Nov. 12, 2008, p. 44). Further, consistent with plaintiff's ability to control the manner in which he installed the carpet, plaintiff hired a "helper to do the job" and paid the worker with money he received from Montauk (EBT, Nov. 12, 2008, p. 46). That defendant provided plaintiff with the locations where plaintiff performed his services is not dispositive, since both employees and independent contractors are advised as to where their services are needed. And, that plaintiff "never worked at his own convenience, but rather was instructed by defendant's personnel to be at various locations at particular dates and times" is a factor equally applicable to independent contractors, who, pursuant to agreement, might be required to perform its services on particular dates and times, at locations requested by the party with whom it contracts. And, defendant maintains that plaintiff was paid per assignment based on yards installed, and not hours worked. And it does not appear from the record that plaintiff was compelled to work at the times and dates proposed, or that his services would be terminated in the event he was unavailable to install carpet on the dates and times required of defendant; defendant's submissions indicate that plaintiff was not prevented from obtaining outside employment (see e.g., Estate of W. Scott v R.M. Steveson Motors, Inc., 127 AD2d 953, 512 NYS2d 557 [Where a worker furnished his own tools, worked when time and work schedule permitted, no payment was due until the repairs were completed, there was no withholding for any purpose, the worker was not listed as an employee, and the work performed was of a specialized nature the court held the worker to be an independent contractor]; Stamoulis v Anorad Corp., 292 AD2d 657, 738 NYS2d 754 [where the worker is to provide his own tools and the project owner does not direct or control the manner in which the work is done, the worker is held to be an independent contractor]).

The Court also notes that plaintiff (and Leanna) were issued 1099s for several years, which tends to establish that defendant treated plaintiff (and Leanna) as an independent contractor (see State Ins. Fund v Circus Man Ice Cream Corp., 186 Misc 2d 907, 721 NYS2d 717 [Sup Ct Nassau County 2001] [Where the worker has been issued a 1099 coupled with other factors such as, the supply of his tools and materials, the independent nature of the contractor's business, the method of payment, the worker has been held to be an independent contractor]). Furthermore, defendant expected plaintiff (and Leanna) to obtain Workers' Compensation Insurance on plaintiff's behalf, even though defendant ultimately obtained such insurance when it believed that neither plaintiff nor Leanna were providing for such coverage. That defendant [*9]furnished substantial equipment in order for plaintiff to complete installations is not dispositive.Accordingly, plaintiff failed to establish, as a matter of law, that he was an employee of defendant (Mailepors v Dutchess County Dept Of Mental Hygiene, 85 AD2d 884, 466 NYS2d 476 [In the absence of conclusive evidence of hiring as an employee, there is no basis for a presumption that continual utilization of a professional's services destroys an original independent contractor status]).

The Court observes that plaintiff's status as an undocumented alien who illegally sought employment in violation of the Immigration Reform and Control Act of 1986 ("IRCA") does not preclude him from seeking recovery in this action.

As this Court stated before,[FN1] IRCA prohibits the employment of unauthorized aliens in the United States, and IRCA establishes an extensive "employment verification system," in order to deny such employment (Hoffman Plastic Compounds v National Labor Relations Bd. (535 US 137, 147 [2002]). With respect to the employer, IRCA initially renders it unlawful "to hire ... an alien knowing the alien is an unauthorized alien ..." or "to hire ... an individual without complying with ... subsection (b) of this section...." IRCA also renders it "unlawful for a person or other entity, after hiring an alien for employment ... to continue to employ the alien ... knowing the alien is (or has become) an unauthorized alien with respect to such employment" (8 U.S.C. § 1324(a)(2)). Essentially, "each side of the employment relationship has a concomitant burden, and each side is subject to penalties for its respective violations of IRCA. The employer has an obligation to verify that a potential employee is authorized to work in the United States; the alien must not produce false documents in order to obtain employment.

As noted by Majlinger v Cassino Contracting Corp. (25 AD3d 14, 802 NYS2d 56 [2d Dept 2005]), the Supreme Court in Hoffman Plastic Compounds v National Labor Relations Bd. (535 US 137, 150) "viewed the award of back pay as a reward for the employee's flagrant violation of the IRCA's anti-fraud provision, concluding that such a remedy, under the circumstances of that case, would trivialize the immigration laws, condone past IRCA violations, and encourage future violations . . . ."

However, although the plaintiff herein was, and is not presently authorized to work in the United States, any recovery of monies wrongfully withheld as deductions from wages for Workers Compensation Insurance, which were allegedly not utilized for such purpose, is "no more a reward for illegal conduct than are the wages the plaintiff has earned in this country" (Majlinger v Cassino Contracting Corp., 25 AD3d 14, 802 NYS2d 56 [2d Dept 2005]). It has been held that the Workers' Compensation Law was "designed to provide a swift and sure source of benefits to injured employees in exchange for the loss of the common-law tort claim in which greater benefits might be obtained,'" and is the exclusive remedy for unintentional employment-related injuries (Maas v Cornell Univ., 253 AD2d 1, 683 NYS2d 634 [3d Dept 1999] citing O'Rourke v Long, 41 NY2d 219, 222, 391 NYS2d 553; Burlew v American Mut. Ins. Co., 63 NY2d 412 [1984]), regardless of plaintiff's status as an undocumented alien (Amoah v Mallah Mgmt., LLC, 57 AD3d 29, 866 NYS2d 797 [3d Dept 2008] [declining to disturb a decision by the Workers' Compensation Board which held that claimant's use of fraudulent documentation did not preclude the award of benefits]; Coque v Wildflower Estates Developers, [*10]Inc., 58 AD3d 44, 867 NYS2d 158 [2d Dept 2008] [concluding that "where an employer violates the IRCA in hiring an employee, such as by failing to properly verify the employee's eligibility for work, the employee is not precluded, by virtue of his submission of a fraudulent document to the employer, from recovering damages for lost wages as a result of a workplace accident"]). In the event plaintiff is found to have been an employee of defendant, his undocumented alien status does not affect his entitlement to "wages" as an employee, and as no court has held that an undocumented alien may be deprived of "wages" for work performed (Pineda v Kel-Tech Const., Inc., 15 Misc 3d 176, 832 NYS2d 386 [Sup Ct New York County 2007] [undocumented workers may seek unpaid wages for work they have already performed even if they allegedly proffered fraudulent documents to obtain employment]). Defendant concedes that Workers' Compensation Insurance should have been provided to plaintiff (Defendant's Memorandum of Law, p. 16), and submits documents raising an issue as of fact as to the amounts paid.[FN2] And, as defendant points out, there is an issue of fact as to whether plaintiff was an employee for whom defendant would be obligated to provide such insurance.

Since plaintiff failed to establish that he was an employee of defendant for whom defendant was obligated to obtain Workers' Compensation Insurance, and that defendant's deduction from plaintiff's wages amounts for Workers' Compensation Insurance were not utilized for this purpose, plaintiff's motion for summary judgment is denied.

Conclusion

Based on the foregoing, it is hereby

ORDERED that the plaintiff's motion for partial summary judgment for an order determining that (i) he is entitled to a determination by a referee as to the benefits he would be entitled to as an employee and (ii) he be awarded reimbursement for all deductions made by defendant during said period for alleged Workers' Compensation Insurance contributions, is denied; and it is further

ORDERED that plaintiff serve a copy of this order with notice of entry upon all parties within 20 days of entry.

This constitutes the decision and order of the Court.

Dated: May 26, 2009__________________________________________

Hon. Carol Robinson Edmead, J.S.C.

In accordance with the accompanying Memorandum Decision, it is hereby

ORDERED that the plaintiff's motion for partial summary judgment for an order determining that (i) he is entitled to a determination by a referee as to the benefits he would be entitled to as an employee and (ii) he be awarded reimbursement for all deductions made by defendant during said period for alleged Workers' Compensation Insurance contributions, is denied; and it is further

ORDERED that plaintiff serve a copy of this order with notice of entry upon all parties within 20 days of entry.

This constitutes the decision and order of the Court. Footnotes

Footnote 1: Macedo v J.D. Posillico, Inc., 20 Misc 3d 1138, 872 NYS2d 691 [2008].

Footnote 2: According to Grayson's affidavit, during the initial phase of his relationship with Montauk, deductions for the added payments defendant made to cover plaintiff's Workers' Compensation Insurance were made at the rate of ten percent (10%). During the entire period (mid-2001 to mid-2003) when he was identifying himself as "Gomez," "these deductions totaled sixteen thousand five hundred sixty-eight and 27-100 dollars ($16,568.27)." For the checks made payable to Queiroz (2004 - 2006), the total of all such deductions was $6,824.41. For the year 2006 alone, defendant was paying for Workers' Compensation Insurance at the rate of 6.56% of the installer's total compensation, for a total of $5,317.26. Defendant maintains that since "the total deducted amount of $6,824.41 was spread out over much more than one year, it is clear that, far from [defendant] owing reimbursement to [plaintiff] for excess deductions, it is plaintiff who should be paying restitution to [defendant] for the excess premiums that [defendant] paid when [plaintiff] said he was covered by Workers' Compensation Insurance but was not.