Macedo v J.D. Posillico, Inc. (2008 NY Slip Op 51787(U))

Macedo v J.D. Posillico, Inc.

2008 NY Slip Op 51787(U) [20 Misc 3d 1138(A)]

Decided on August 13, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.

The case before the Court addresses a prevailing issue of our time: the rights of undocumented aliens.

This action arises out of an alleged construction site accident which occurred on June 20, 2005 on the Long Island Beach Bridge in Nassau County, New York. Plaintiff, Jonas Macedo, claims that he was injured during the course of his employment with third-party defendant, Carabie Corp. ("third-party defendant"), and that defendants J.D. Posillico, Inc. ("JD") and URS Corporation violated New York State Labor Law § 200, 240 and 241(6).^[FN1] In turn, JD seeks indemnification against third-party defendant on the grounds that third-party defendant maintained and controlled the accident location and that third-party defendant's negligence caused plaintiff's injury.

According to his bill of particulars dated November 6, 2007, plaintiff earned "approximately $42/$48 per hour regular time, $63/$72 per hour overtime; with weekly earnings of approximately $2,000 to $2,500 per week" at the time of the accident. Plaintiff asserts that he [*2]has been incapacitated since early November 2005 and will remain incapacitated into the future, resulting in "loss of earnings" in the approximate amount of "$325,000.00 to date and continuing for remainder of plaintiff's work life expectancy. . . ."

Third-party defendant now moves for partial summary judgment pursuant to CPLR 3212, dismissing plaintiff's lost wage claim as he obtained his employment through the use of fraudulent documents.

Plaintiff's Deposition Testimony

On June 7, 2007, a deposition of the plaintiff was held through the assistance of an interpreter. Plaintiff testified that he was born in Brazil, is a Brazilian citizen and he came to the United States in January of 1995 (Pages 13-14). Plaintiff testified that he is living here illegally and that he has not taken any steps towards applying for citizenship. Plaintiff's testimony continued as follows:

Q. Is this a number that was given to you by immigration for the purposes of filing taxes?

A. At my work, a person gave me this number because I needed this number to work there.

At a second deposition on January 30, 2008 held by third-party defendant, plaintiff further [*3]testified as follows:

A. I think it is XXX-XX-XXXX. I am not totally sure, but that is what I remember.

Relying on the United States Supreme Court's decision in Hoffman Plastic Compounds, Inc. v N.L.R.B.,^[FN3] and the Court of Appeals' decision in Balbuena v IDR Realty LLC,^[FN4] defendant argues that under the Immigration Reform and Control Act of 1986 ("IRCA"), plaintiff cannot maintain a claim for lost wages given that he provided false documents to gain employment.

In support, third-party defendant submits an affidavit of its Chief Operating Officer, Joann Miano ("Miano"), wherein she states that "[p]rior to hiring plaintiff," third-party defendant "requested documentation as to his work eligibility status." In response, plaintiff provided "a copy of a Social Security Card" bearing the numbers testified to at plaintiff's deposition. Plaintiff also provided a copy of a Florida driver's license, "which was allegedly issued on July 5, 2001 and expired on September 18, 2007." Third-party defendant believed that the documents provided by plaintiff were true and accurate, and relied on the validity of these documents as part of the basis for hiring plaintiff. Further, "[i]n connection with his employment" with third-party defendant, plaintiff also completed an Employment Eligibility Verification Form (I-9 Form)" (the "Eligibility Form") and an Employee's Withholding Allowance Certificate (W-4 Form) for 2005.

Third-party defendant argues that the circumstances herein are distinguishable from those [*4]in Balbuena, where the Court of Appeals declined to preclude two undocumented aliens from recovering lost wages. Third-party defendant points out that the Court of Appeals in Balbuena distinguished the United States Supreme Court decision in Hoffman, which foreclosed an award of back pay to an undocumented alien, since there was no allegation that the Balbuena plaintiffs submitted false documents or that the employers verified the Balbuena plaintiffs' eligibility to work.

It is argued that unlike the employers in Balbuena, third-party defendant inquired about plaintiff's eligibility to work when he was hired, in compliance with IRCA. Furthermore, unlike the plaintiffs in Balbuena, the documents tendered by plaintiff herein were false. Plaintiff testified that he received his social security number from a co-worker, Miguel, in 1995, the same year he came to the United States illegally, and used this number in order to obtain employment. Yet, a comprehensive search regarding this number reveals that it was issued between 1963-1965, thirty years before plaintiff allegedly came to the United States.

Given that plaintiff provided false documentation to third-party defendant in order to gain employment, and plaintiff is unable to provide authorization from federal immigration authorities to work in the United States, plaintiff's lost wage claim should be dismissed based on his violation of IRCA.^[FN5]

Plaintiff's Opposition

Plaintiff argues that he did not obtain employment by submitting false documentation to third-party defendant or by committing fraud in connection therewith. Plaintiff points out that he testified that he was hired by third-party defendant through his union; provided his driver's license, union card, and tax identification number; filled out an employment application in order to work with third-party defendant; and was not required to provide any other documentation. Plaintiff's tax identification number was lawfully obtained and utilized by plaintiff to pay his taxes which he paid throughout his entire employment in the United States. Plaintiff did not use the social security number to obtain employment with third-party defendant in 2005, but testified that he used the social security number to obtain employment in 1995 with another company.

Plaintiff also asserts that third-party defendant failed to provide the Court with a copy of his employment application, which presumably sheds light as to whether it inquired into plaintiff's immigration status and plaintiff's response thereto. Further, third-party defendant could not have relied upon the Eligibility Form in hiring the plaintiff; the Eligibility Form, which is required to be completed by the employer prior to plaintiff's hiring and submitted to the Department of Justice, Immigration and Naturalization Service, was completed on October 14, 2005, after plaintiff was hired in May. Moreover, plaintiff did not complete the section of the Eligibility Form which requires that he indicate whether he is a citizen, lawful permanent resident, or alien authorized to work. Thus, plaintiff did not make any representation that he was legally authorized to obtain work in the United States.

Plaintiff also notes that although Miano signed the "Certification" section of the Eligibility Form, indicating that she "examined the document(s) presented by [plaintiff], that the . . . document(s) appear to be genuine and . . . the employee is eligible to work in the United [*5]States," no such documents are listed in the Eligibility Form. In the absence of any documents listed on the Eligibility Form, it is obvious that third-party defendant did absolutely nothing, with the exception of fraud, in connection with verifying plaintiff's employment status. Apparently, third-party defendant submitted false documentation to the Department of Justice, Immigration and Naturalization Service, by failing to examine the government-issued documentation for eligibility.

Furthermore, Miano's affidavit does not indicate that third-party defendant inquired about plaintiff's eligibility to work. Miano does not state that she ever asked plaintiff what his work eligibility status was. Nor does she state that plaintiff made any representations in connection therewith. Finally, she also fails to articulate why the Eligibility Form was completed on October 14, 2005 instead of plaintiff's May 2005 date of employment.

As the Court of Appeals had articulated in Balbuena, tort deterrence principles provide a compelling reason to allow an award of such damages to injured, undocumented aliens such as plaintiff, especially since plaintiff's employer committed fraud by failing to verify plaintiff's employment eligibility. In the absence of proof that plaintiff tendered false work authorization documents, IRCA does not bar plaintiff's claim for lost wages.

Third-Party Defendant's Reply

Although plaintiff claims that he did not submit false documentation to gain employment with third-party defendant, plaintiff fails to explain how third-party defendant obtained an admittedly fraudulent social security card from the plaintiff. Plaintiff's argument that his filing of taxes enables him to collect lost wages is unsupported by case law on the issue. Balbuena requires an inquiry as to which documents were requested by the employer, and what documents the employee provided in response. According to the Balbuena Court, the critical points established by Hoffman were that the alien tendered false documentation - a clear violation of IRCA, and whether the employer failed to inquire into plaintiff's immigration status and employment eligibility. Here, third-party defendant complied with IRCA, while plaintiff violated it.

Further, plaintiff's deposition testimony is inaccurate as to the documents he provided third-party defendant at the time he sought employment. Plaintiff failed to provide a copy of his taxpayer identification card or other documentation demonstrating his authorization to work, and the tax returns plaintiff provided lack his signature.

Further, the Eligibility Form was completed by plaintiff in connection with his employment, not to gain employment, and the fact that the Eligibility Form was completed after plaintiff began his employment is irrelevant. The documents provided to third-party defendant and attached to the Miano affidavit make clear that third-party defendant inquired as to plaintiff's eligibility to work in the United States.

The portion of the Eligibility Form completed by third-party defendant was signed by Miano on October 14, 2005 while plaintiff was still working for third-party defendant. Although Miano did not fill in the date that plaintiff's work began, she did attest that plaintiff's work eligibility was confirmed. And, acceptable documents used to demonstrate authorization include a social security card coupled with a driver's license. The fact that Miano did not state which documents she examined is of no moment, as an employer may retain copies of the documents provided for the "purpose of complying with the requirements of" IRCA's employment verification provision. Nor does IRCA set a time frame within which the employer must complete an Eligibility Form. Plaintiff's claim that third-party defendant never inquired about his work status is entirely false and has no basis in fact. The claim that plaintiff only used the social security number in 1995 does not [*6]explain how third-party defendant was provided with the very same social security number that plaintiff testified was given to him by an individual named Miguel.

As the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR 3212[b]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v St. Claire's Hosp., 82 NY2d 738, 739 [1993]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). 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 at 853; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Silverman v Perlbinder, 307 AD2d 230, 762 NYS2d 386 [1st Dept 2003]).

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, 49 NY2d at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]).

Simply stated, 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, 535 US at 147). 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 . . . ."^[FN6] Subsection (b) sets forth an "Employment verification system" whereby:

Under section (B), the documents establishing both employment authorization and identity consist of "(i) United States passport; or (ii) resident alien card, alien registration card, or other document designated by the Attorney General . . . ." [*7]

Under section (C), evidence of an individual's authorization for employment includes (i) "social security account number card" or (ii) "other documentation evidencing authorization of employment in the United States."

Under section (D), documents establishing the identity of an individual include a "driver's license" or "similar document issued for the purpose of identification by a State."

Compliance "in good faith with the requirements of subsection (b) of this section" is "an affirmative defense that the person or entity has not violated paragraph (1)(A) with respect to such hiring" (8 U.S.C. § 1324a). However, employers who violate IRCA are punished by civil fines, § 1324a(e)(4)(A), and may be subject to criminal prosecution (§ 1324a(f)(1)).

With respect to the undocumented alien, IRCA prohibits aliens from using or attempting to use "any forged, counterfeit, altered, or falsely made document" or "any document lawfully issued to or with respect to a person other than the possessor" for purposes of obtaining employment in the United States (§§ 1324c(a)(1)-(3)). Aliens who use or attempt to use such documents are likewise subject to fines and criminal prosecution (18 USC § 1546(b)).

In Hoffman, the leading Supreme Court case involving the application of IRCA, an undocumented alien who admittedly gained employment by presenting false work authorization documents was awarded back pay by the National Labor Relations Board (the "NLRB") on a finding that his employer impermissibly terminated him for engaging in union-organizing activities. After discussing the obligations imposed by IRCA upon both the employer and the unauthorized alien, and IRCA's employment verification system, the Supreme Court concluded that it "is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies. Either the undocumented alien tenders fraudulent identification, which subverts the cornerstone of IRCA's enforcement mechanism, or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations" (Hoffman, 535 US at 148). It appears from the decision that whether the employer "verified" the employment status of the undocumented alien was not an issue; it is stated in the opinion that he "presented documents that appeared to verify his employment;" the employer "learned" of his "illegal status" four and one-half years after the employee's discharge; and the only sanctions noted by the Supreme Court in acknowledging that the employer did not "get[] off scot-free" were sanctions arising from violating the NLRA.^[FN7] After noting that IRCA made it criminally punishable for an alien to obtain employment with false documents, the Supreme Court concluded that IRCA precluded the award.

Four years later, the New York Court of Appeals in Balbuena ruled on the issue of whether plaintiffs' status as aliens who are not legally authorized to work in the United States precluded their recovery of lost earnings. The employers in Balbuena moved to dismiss plaintiffs' lost wage claims for their violations of IRCA. The Court noted that IRCA does not "penalize an alien for attaining employment without having proper work authorization, unless the alien engages in fraud, such as presenting false documentation to secure the employment" (6 NY3d at 354). The Court then distinguished Hoffman, finding that the "Labor Law [ ] applies to all workers in qualifying employment situations—regardless of immigration status—and nothing [*8]in the relevant statutes or our decisions negates the universal applicability of this principle" (6 NY3d at 358). The Balbuena Court found that:

Following Balbuena, a New York State Supreme Court in Gomez v F & T Int'l (Flushing, NY) LLC, (16 Misc 3d 867 [Acosta, J.]), precluded defendants' attempt to obtain discovery related to an injured alien's immigration status. Plaintiffs, who suffered work-related injuries at a construction site, each testified that they did not have to fill out an application, show any type of documentation, were not asked for social security numbers, were always paid in cash, and were never given W-2 forms. The Court opined that the onus is on the employer to ensure that it is hiring a person authorized to work. Based on the record, the Court concluded that as there was no indication that plaintiffs used false documents to obtain employment, and that the employer required no documentation whatsoever, plaintiffs were entitled to pursue a lost wage claim. Further, since the injuries of one of the plaintiffs prevented him from working in the future, there was no need for him to establish that he obtained or was in the process of obtaining work authorization. As such, his alien status was "irrelevant" and defendants were precluded from questioning him on that issue. Since the production of false documents is subject to criminal penalties under IRCA, there was apparently no violation of IRCA by the employees, where the employees did not produce any documents.

Based on IRCA and the principles shaped by the cases noted above, in order to prevail on its motion to dismiss plaintiff's claim of lost wages based on plaintiff's violation of IRCA, third-party defendant must demonstrate that plaintiff provided false documentation in order to obtain employment with the third-party defendant. Under IRCA, 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. Here, the undocumented alien's compliance with IRCA falls short.

It is uncontested that plaintiff used a certain social security number to obtain employment, albeit with another employer, Keystone, in 1995. However, this same social security number was attested to as being plaintiff's social security number in plaintiff's Verified Bill of Particulars.^[FN8] Additionally, this fraudulent number appears on plaintiff's 2005 W-4 "Employee's Withholding Allowance Certificate," signed by plaintiff in connection with his employment with third-party defendant. Further, this social security number, with the exception of one digit, also appears on the portion of the Eligibility Form, in an area located above plaintiff's signature. Directly above his signature appears the following language: "I am aware that federal law provides for [*9]imprisonment and/or fines for false statements or use of false documents in connection with the completion of this form." Furthermore, the social security number to which he testified at his deposition is the same number appearing on a copy of the social security card third-party defendant received in connection with plaintiff's employment.

According to the affidavit of third-party defendant's Chief Operating Officer, Miano, third-party defendant received a copy of the social security card bearing the same social security number plaintiff used to obtain prior employment. Miano specifically attests that third-party defendant obtained the subject social security card from plaintiff. However, nowhere in plaintiff's opposition to defendant's motion does plaintiff deny or dispute that he provided third-party defendant with the subject social security number. While given the opportunity to do so, plaintiff failed to submit any affidavit or point to any other evidence disputing the asserted fact that plaintiff provided third-party defendant with this social security card.

Although plaintiff points out that Miano never "asked plaintiff what his work eligibility status was" or that plaintiff "made any representations in connection therewith," there is no requirement that third-party defendant's inquiry into an individual's identity and work eligibility take such form. It is sufficient that third-party defendant "examine" the required documents. Furthermore, it is not what the affidavit does not state that matters; what matters is what it does state, and that what it states remains uncontested.

Also lacking in merit is plaintiff's counsel's argument that by not completing the portion of the Eligibility Form indicating whether plaintiff was a citizen, lawful permanent resident or alien authorized to work, plaintiff "did not make any representation . . . that he was legally authorized to work in the United States." However, in the same Eligibility Form, plaintiff's fraudulent social security number appears in the same section above plaintiff's signature.

This Court agrees that under IRCA, the onus is on the employer to ensure that it is hiring a person authorized to work in the United States. Further, the Court acknowledges that the Eligibility Form does not list the documents on which third-party defendant allegedly relied prior to hiring plaintiff, and that said document was not executed by third-party defendant until after the plaintiff's accident.^[FN9] However, the Court cannot overlook the undisputed facts that (1) plaintiff admitted to using a false social security number for work, (2) the third-party defendant came into possession of the social security card bearing the number plaintiff testified to using and bearing plaintiff's name, (3) plaintiff failed to explain the presence of the same social security number in his own Verified Bill of Particulars, and most importantly (4) plaintiff failed to submit any affidavit denying the Miano's assertion that plaintiff produced the subject social security card, a copy of which is attached to defendant's moving papers.

This is not a case where there is no allegation that the undocumented alien produced false documents (cf. Balbuena, 845 NE2d at 1260), or that the illegal employment relationship is attributable solely to the wrongful conduct of persons other than the undocumented worker (cf. Madeira v Affordable Housing Foundation, Inc., 469 F 3d 219 [2006] [finding that IRCA did not preclude an injured, undocumented alien from recovering lost wages under New York's [*10]workplace safety statutes, and that the award of lost United States earnings to an injured undocumented alien did not stand as an obstacle to the full purposes and objectives of Congress as stated in IRCA]).

Further, any failure by third-party defendant to adequately or timely complete the Eligibility Form, as required by IRCA, does not undermine the fact that the ultimate source of the social security number used in connection with hiring the plaintiff was the plaintiff himself. The resulting penalties against an employer for violating IRCA are sanctions and/or fines as mandated by IRCA; the penalty is not, however, the right of an undocumented employee, who uses fraudulent information to obtain work, to pursue a lost wage claim. Therefore, this Court concludes that plaintiff's violation of IRCA, by producing a false social security number in order to obtain employment, bars his claim for lost wages.

ORDERED that defendant's motion for partial summary judgment dismissing plaintiff's claim for lost wages is granted; and it is further

ORDERED that defendant 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: August 13, 2008_______________________________________