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Sharply splitting with its colleagues in Manhattan, the Appellate Division, 2nd Department, ruled Thursday that undocumented aliens involved in workplace accidents can sue for lost wages. The 1st Department ruled late last year that alien workers only could recover wages they would have earned had their work been performed in their home country. In two companion opinions, the 1st Department said that its holding was required by the U.S. Supreme Court’s holding in Hoffman Plastic Compounds v. National Labor Relations Bd., 535 US 137 (2002). The Hoffman ruling held that back wages could not be awarded to workers who were illegal aliens, as such an outcome was incompatible with federal immigration policy. Thursday, however, the 2nd Department found that an award of damages from a civil lawsuit was the result of a private dispute between a worker and an employee, and did not run contrary to Hoffman or federal law. “In our view, the First Department’s interpretation of the Hoffman decision is unduly broad,” Presiding Justice A. Gail Prudenti wrote for the unanimous court in Majlinger v. Cassino Contracting Corp., 2003-09184. She said that under the 1st Department holding, “employers of undocumented aliens would be free to ignore New York law governing workplace safety, labor relations, and the furnishing of workers’ compensation coverage, to retaliate against workers who asserted any of their rights by reporting them to federal immigration authorities, to intimidate them by threatening to do so and, indeed, to withhold wages from employees altogether, with impunity.” She added: “In short, once Hoffman is construed broadly enough to apply to awards of lost wages in state-court personal injury actions, there may be nothing to prevent it from reaching so far as to eliminate all rights and protections to which undocumented aliens would otherwise be entitled.” The 2nd Department’s ruling arrives as one of the 1st Department rulings, Balbuena v. IDR Realty, 13 Ad3d 285, awaits a hearing by the Court of Appeals. The second case, Sanango v. 200 E. 16th St. Hous. Corp., 15 AD3d 36, has settled. The New York State Attorney General’s Office has become an intervenor in Balbuena and also took on that role before the Second Department in Majlinger. The plaintiff, Stanislaw Majlinger, came to the United States from Poland five years ago on a tourist visa and had no documentation that would make him eligible for work. Majlinger allegedly sustained injuries in January 2001 when he fell from a scaffold while installing siding. At the time, he was an employee of J&U Home Improvement. Majlinger’s claims for damages were dismissed on summary judgment by Staten Island Supreme Court Justice Christopher J. Mega, who said sustaining the suit would run contrary to the letter and spirit of the Immigration Reform and Control Act. Prudenti, however, said that allowing an injured alien to seek back wages was in keeping with the intent of the law, as it would deter employers from hiring illegal aliens, rather than giving them “perverse incentive” to do so. “While state courts may not award damages that would interfere with or frustrate federal immigration policy, it is not appropriate for them to augment that policy by imposing upon undocumented aliens an additional penalty not authorized by federal law,” Prudenti wrote. “Furthermore, our own analysis of the preemption issue leaves us firmly convinced that requiring defendants to pay the same damages to all plaintiffs regardless of their immigration status not only does not interfere with, but actually advances, the immigration policy of the United States, as reflected in the applicable federal statutes.” Prudenti directly challenged the 1st Department’s reasoning in Sanango. In Sanango, the 1st Department said, “We are not aware of any other context in which a person who has derived income from an illegal activity is permitted, after a personal injury forces him to abandon that activity, to recover damages based on the lost stream of illegal income through judicial proceedings in a court of law.” In response, Prudenti wrote that remedies have been awarded in analogous cases, such as Noreen v. William Vogel & Bros., 231 NY 317 (1921), in which a minor employed in violation of child labor law, who obtained the job by misrepresenting his age, received Workers’ Compensation benefits after sustaining an injury. She also cited numerous rulings by the National Labor Relations Board, including one that granted back pay to a crane operator who was injured while working without a license. “An undocumented alien performing construction work is not an outlaw engaged in illegal activity, such as bookmaking or burglary,” Prudenti wrote. “Rather, the work itself is lawful and legitimate; it simply happens to be work for which the alien is ineligible or disqualified.” The 2nd Department also held that it was of no consequence if the worker had misrepresented his immigration status to obtain the work. “The Hoffman decision simply does not apply to awards of damages in personal injury actions,” Prudenti wrote. “Therefore, we do not limit our holding to cases in which the plaintiff can prove that he or she has not submitted a fraudulent document in violation of the IRCA or that the employer was aware of his or her immigration status.” Justices Sondra Miller, David S. Ritter and Gloria Goldstein concurred on the ruling. Raymond C. Silverman and Brian J. Isaac of Pollack, Pollack, Isaac & DeCicco represented Majlinger. Reed M. Podell and Edwin L. Smith of Smith & Laquercia represented Cassino Contracting Corp. and Veteran Properties Inc. Also representing the defendants were Scott T. Horn of Mischel & Horn and Henry J. Cernitz of Jacobson & Schwartz. Assistant Attorneys General Michael S. Belohlavek, M. Patricia Smith, Donya Fernandez and Seth Kupferberg appeared for the attorney general’s office.

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