Celi v 42nd St. Dev. Project, Inc.
Annotate this CaseDecided on November 9, 2004
Supreme Court, Kings County
Rodolfo Celi, et ano., Plaintiffs,
against
42nd Street Development Project, Inc., and Empire State Development Corp., , Defendants.
37491/01
David I. Schmidt, J.
Upon the foregoing papers, defendants 42nd Street Development Project, Inc. and Empire State Development Corp. ("defendants") move, by order to show cause, for an order striking plaintiff Rodolfo Celi (plaintiff) complaint and/or precluding plaintiff from introducing evidence at trial as to his loss of earnings claim due to his failure to provide court-ordered discovery. Defendants further move for an order dismissing plaintiff's loss of earnings claim due to plaintiff's status as an unauthorized alien.
On February 20, 2001, injured plaintiff sustained various injuries while performing demolition work in a building owned by defendants. By summons and complaint dated October 9, 2001, plaintiff brought the instant action against defendants alleging violations of Labor Law §§ 240 [*2](1), 241 (6), 200, as well as common-law negligence.[FN1] In a bill of particulars dated January 7, 2002, plaintiff alleged past lost earnings of $26,000.00 and future lost earnings of approximately $900,000.00. In an order dated August 15, 2002, Justice Howard Ruditzky of this court directed plaintiff to provide authorizations for his income tax returns and W-2 forms for the period of 1999, 2000, and 2001. Although these authorizations were provided and subsequently forwarded to the Internal Revenue Service (the IRS), to date, the IRS has not provided defendants with these documents. The instant motion is now before the court.
Discovery Issue
Defendants move, pursuant to CPLR 3126, for an order striking plaintiff's complaint and/or precluding plaintiff from introducing evidence at trial as to his loss of earnings claim due to his failure to comply with Justice Ruditzky's August 15, 2002 discovery order. In particular, defendants maintain that the reason why the IRS has not provided the relevant tax returns and W-2 forms is that plaintiff provided a false social security number on the authorization forms. In support of this claim, defendants have submitted an affidavit by a licensed private investigator who conducted a search and determined that the social security number provided by plaintiff actually belongs to a different person. Under the circumstances, defendants reason that they are entitled to a preclusion order or an order striking plaintiff's pleadings since plaintiff has willfully failed to comply with the court's discovery order and has thereby prevented defendants obtaining evidence vital to their defense of plaintiff's lost earnings claim.
In opposition to this branch of defendants' motion, plaintiff maintains that he did not violate the underlying discovery order since he provided the authorizations as required under the order. Plaintiff also argues that the issue is a moot point given his previous admission at deposition that he did not file tax returns. Plaintiff further maintains that, although he did not file tax returns, he paid taxes during the subject period and has submitted a W-2 form for the year 2000 as well as his pay-stub from the week of the accident which indicates that his employer withheld taxes from his paycheck. Finally, plaintiff argues that he has provided defendants with authorizations for his employment and union records which are sufficient to establish his claim for past and future lost earnings.
"Tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources" (Latture v Smith, 304 AD2d 534, 536 [2003]). Here, defendants have failed to make such a "strong showing." In fact, it appears that plaintiff has provided authorizations for other documentation which will be adequate to provide the necessary information regarding his lost earnings claim. In any event, it is clear that the tax returns sought by defendants do not exist given plaintiff's failure to file during the relevant time period. Accordingly, that branch of defendants' motion which seeks an order striking plaintiff's complaint and/or precluding plaintiff from introducing evidence at trial as to his loss of earnings claim due to failure to provide court-ordered discovery is denied.
Plaintiff's Lost Earnings Claim
Defendants move to dismiss plaintiff's lost earnings claim due to his status as an unauthorized alien. In support of this branch of their motion, defendants rely upon the United States [*3]Supreme Court's determination in Hoffman Plastic v NLRB (535 US 137 [2002]). In Hoffman, the Court ruled the NLRB could not award back-pay to an alien worker who was wrongfully terminated from his employment due to his participation in union activities. Specifically, the Court found that the award of such pay would contravene the purposes of the Immigration Reform and Control Act (IRCA) inasmuch as "[u]nder the [IRCA] regime, it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional polies" (Hoffman at 148). Given the ruling in Hoffman and plaintiff's status as an undocumented alien, defendants reason that his lost wages claim must be dismissed.
In opposition to this branch of defendants' motion, plaintiff maintains that Hoffman has no applicability to state court actions. In this regard, plaintiff points out that New York courts have long recognized that a plaintiff's immigration status may not act as a bar to his or her bringing a personal injury action or seeking to collect for lost wages. In the alternative, plaintiff argues that even if Hoffman is applicable to state court actions, its facts are readily distinguishable from those in the instant case. In particular, plaintiff argues Hoffman only dealt with back pay, and therefore, does not apply to his claim for future lost wages. Plaintiff also argues that Hoffman does not apply to his claim for lost back wages because, unlike the aggrieved party in Hoffman, he was physically unable to work after the accident due to his injuries.
To date, there is no controlling appellate court authority dealing with the applicability of Hoffman in New York state court actions. Lower courts and federal courts applying New York state law have split on the question of whether Hoffman precludes or otherwise limits undocumented aliens from seeking lost wages in personal injury actions (see e.g. Majlinger v Cassino Contr. Corp., 1 Misc 3d 659 [Sup Ct, Richmond County 2003] [Hoffman requires the dismissal an undocumented alien's claim for lost wages]; Madeira v Affordable Hous. Found., 315 F Supp2d 504 [US Dist Ct, SD NY 2004] [Hoffman does not preclude an undocumented alien from seeking lost wages under New York state law]; Cano v Mallory Mgt., 195 Misc 2d 666 [Sup Ct, Richmond County 2003] [Hoffman does not require dismissal of undocumented alien's complaint, but alien's immigration status may be presented to jury on the issue of lost wages]).
Prior to Hoffman, it was improper for a court to dismiss an undocumented aliens' lost wages claims based a finding at law that such wages would be the product of illegal activity (Collins v New York Health and Hosp. Corp., 201 AD2d 447 [1994]; Public Adm'r of Bronx County v Equitable Life Assur. Socy. of US, 192 AD2d 325 [1993]). Instead, the question of whether any wages earned by the plaintiff would be illegal, "as well as the length of time during which the [plaintiff] might continue earning wages in the United States, and the likelihood of his potential deportation, [were] factual issues for resolution by the jury under all of the circumstances of the case as developed by a full trial" (Collins at 448).
In the court's view, Hoffman does not mandate a change in New York law so as to require the dismissal of plaintiff's lost earnings claims. Instead, the plaintiff's immigration status is merely a relevant factor for the jury to consider in determining whether he is entitled to any future lost wages. Hoffman only dealt with the issue of lost back wages. Accordingly, nothing in the Supreme Court's decision requires the dismissal of plaintiff's claim for future lost earnings (Madeira, 315 F Supp2d at 507). Nor does Hoffman require the dismissal of plaintiff's claim for back wages. Here, plaintiff's claim for back wages is based upon an alleged physical inability to work due to injuries sustained in the underlying accident. In contrast, Hoffman involved a party who, although physically [*4]able to work, sought an award from a federal agency for unpaid wages despite the fact that the payment of such wages violated the IRCA.
Summary
Accordingly, defendants' motion is denied in its entirety.
This constitutes the decision and order of the court.
E N T E R,
J. S. C.
Footnotes
Footnote 1: The complaint also contained a derivative claim asserted by plaintiff's wife, Fani Celi. However, that claim was voluntarily withdrawn.
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