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Despite protestations by defendants that a U.S. Supreme Court decision last year bars undocumented workers from bringing negligence claims, New York trial judges recently have upheld the right of such immigrant plaintiffs to seek damages. Judges in Manhattan and Staten Island have rejected defendants’ contentions that the Supreme Court’s March 2002 holding in Hoffman Plastics Compounds v. NLRB, 535 U.S. 137, should be expanded to bar illegal residents from using state courts to seek civil damages for alleged tortious conduct. Manhattan Supreme Court Justice Rosalyn H. Richter last week in Balbuena v. IDR Realty LLC, denied summary judgment to a third-party defendant in a construction accident case who argued that the plaintiff, Gorgonio Balbuena, could not maintain a claim for lost earnings because he was an illegal alien. In Staten Island, a few weeks earlier, Acting Justice Joseph J. Maltese, in Cano v. Mallory Management, denied Con Edison’s motion to dismiss a Costa Rican immigrant’s negligence action, also on the ground he was an illegal alien. Both judges cited decisions from the early 1990s from the Appellate Division in the 1st and 2nd Departments that held that undocumented immigrants were not barred from recovering future lost wages solely because they were not legally employed in the United States. However, those rulings were called into question after the U.S. Supreme Court in its 5-4 Hoffman decision stopped the National Labor Relations Board from awarding backpay to an undocumented worker who was illegally fired for engaging in protected union-organizing activities. In her decision, Justice Richter noted the moving third-party defendant, Taman Management Corp., had argued that Hoffman had made it no longer permissible to award lost wages to undocumented workers. Similarly, Con Edison had tried to persuade Justice Maltese that the Hoffman ruling should bar illegal aliens from maintaining tort claims for damages. Justice Richter distinguished the Hoffman decision, pointing out that no federal statutes were at issue, nor were there any federal constitutional issues in dispute. “Nothing in the Supreme Court decision states, or even implies, that its holding would be applicable to tort actions brought under state common law,” she said. Both judges also observed that since Hoffman, several courts, including federal Judge Whitman Knapp of the Southern District of New York and Eastern District of New York Magistrate Judge Cheryl L. Pollak, had concluded that Hoffman did not stand for the broad proposition that an undocumented worker’s recovery on all claims for wages was barred. In the Balbuena action before Justice Richter, Balbuena was represented by Michael Altman of New York’s Trolman Glaser & Lichtman. Reed M. Podell of New York’s Smith & Laquercia was counsel for Taman Management Corp. In the Cano case, New York’s Hill, Langsam & Moin represented plaintiff Wilbert Cano, and Peter Hagan for Richard Babinecz, general attorney for Con Edison, appeared for the utility.

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