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Undocumented aliens who suffer work-related injuries may sue for lost wages in New York state courts, a Brooklyn judge has ruled. In rejecting a developer’s motion to dismiss a worker’s claim, state Supreme Court Justice David I. Schmidt distinguished the case from a U.S. Supreme Court decision, Hoffman Plastic v. NLRB, 535 US 137, which held that an award of back pay to a foreign worker lacking appropriate status would contravene congressional policy. “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 claim,” Schmidt wrote in Celi v. 42nd Street Development Project, Inc., 37491/01. “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.” In February 2001, while performing demolition work in a building just south of Times Square, Rodolfo Celi fell through an opening in the basement floor, crashing into the sub-basement, according to his complaint. Celi suffered various injuries, including herniated cervical and lumbar discs and a damaged rotator cuff, according to his attorney. In October 2001, Celi filed a suit against the building’s owner and management company, alleging negligence and violations of Labor Law and seeking $5 million, including $26,000 in past lost earning and $900,000 in future lost earnings. The defense argued among other things that under Hoffman, Celi’s undocumented status prevented him from seeking lost earnings. In Hoffman, the U.S. Supreme Court held that the National Labor Relations Board could not award back pay to a foreign worker who had been fired for participating in union activities. The award of such pay, the Court held, would contravene immigration law, as “it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies.” The plaintiffs contended, among other things, that Hoffman does not apply to state court actions and that its facts are readily distinguishable. Schmidt agreed. His decision addressed back and future lost wages separately. For back wages, the fact patterns in Hoffman and Celi are distinguishable, Schmidt wrote. Hoffman concerned “a party who, although physically able to work, sought an award from a federal agency for unpaid wages despite the fact that the payment of such wages violated [federal immigration law].” Here, he said, the claim alleged a physical inability to work due to injuries sustained in the accident. Schmidt added that Hoffman was silent on the issue of future wages and, therefore, “nothing in the Supreme Court’s decision requires the dismissal of plaintiff’s claim for future lost earnings.” New York courts have been slow to address the implications of Hoffman, which the U.S. Supreme Court decided in March 2002. “To date, there is no controlling appellate court authority dealing with Hoffman in New York state court actions,” wrote Schmidt. “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.” The paucity of controlling decisions has turned Hoffman and its potential ramifications into a “nagging concern,” said Daniel Werner, an attorney at the Workers’ Rights Law Center of New York. By limiting the potential breadth of Hoffman, the decision in Celi serves as “a step in the right direction,” said Werner. The worst-case scenario, he said, would apply to a Title VII case where a woman was fired for refusing sexual advances from her boss. “The court finds she’s undocumented and thus not entitled,” said Werner. “The logic of Hoffman certainly could be applied to a situation like that.” Celi’s attorney, Christopher Gorayeb of Gorayeb & Associates, said the decision is “a valuable clarification of the issues that the defense bar has raised on the back of the Hoffman decision.” John Sparling of London Fischer, who represents defendants 42nd Street Development Project Inc. and Empire State, suggested that “the court could have provided more guidance to the bar of New York by dismissing portions of this very questionable lost wage claim.”

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