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Law Office of Cohen & Jaffe, LLP

Immigrant Injury Rights

Immigrants, including those without documentation, work in some of the most dangerous jobs in the United States…Construction work, carpentry, bricklaying, ironworking, and demolition, as well as painting at various elevations, can be very dangerous, and such dangers have no regard for whether someone is in this country legally or not.

Immigrants and Accidents Involving Cars

Many immigrants find employment in New York in the City area’s enormous restaurant business. For those who work to deliver food in the five boroughs, a bicycle is a necessity. Unfortunately, cars often speed or drive carelessly, posing a real danger to workers on bicycles. If a bicycle deliveryman is struck and injured by a car, he is not only entitled to receive workers compensation benefits, he may also sue the driver and/or owner of the car that hit him. In the event the deliveryman is killed, not only can his family receive workers compensation death benefits, his surviving spouse and/or other relatives may sue the driver and/or owner of the car directly.

Immigrants Accidents Involving Dangerous Machines

Community members who work in commercial bakeries and factories are often required to use dangerous machinery and equipment. For example, dough mixing machines and metal polishers have powerful motors and rapidly moving blades or grinding wheels. Too often these machines do not come with the appropriate guards or safety features, such as emergency shut-off switches. A worker’s hand, arm or even head may become trapped and injured in these machines. Conveyor belts also pose a real danger of injury.

Immigrants, properly or improperly documented, have the same rights as any other person in the United States to make a claim or sue to recover money damages for injuries sustained by reason of an accident caused by the negligence of another. This right is guaranteed by the Constitution of the United States.

Immigrants’ Rights are Confirmed by the Courts

In a case by the name of Balbuena v. IDR Realty, decided by New York’s highest court, the Court of Appeals, the plaintiff successfully argued for the overturning of the Appellate Division’s decision barring undocumented workers from recovering for certain categories of damages based upon their undocumented status. The Court of Appeals’ decision, which confirmed the right of undocumented workers to fully recover for their injuries, has been cited by courts around the country, in many periodicals, and numerous scholastic and legal journals. If you are someone you know is an undocumented worker who has been injured, know that we fight to preserve the rights of all undocumented workers and would like to have the opportunity to do so for you personally.

Post-Balbuena Cases

Balbuena is good news for plaintiffs’ lawyers in personal injury cases. It means that a person’s immigration status is not an automatic death knell for recovering damages. But immigration issues will still be litigated as one factor in determining the amount of damages the plaintiff should receive.

For example, in Barahona v. Trustees of Columbia University, 11 Misc. 3d 1035, 816 N.Y.S.2d 851, 2006 N.Y. Misc. LEXIS 441 (N.Y. Sup. Ct. Mar. 10, 2006), a construction worker was injured while working at Columbia University. He sued. Attorneys for the defendants demanded all documents pertaining to the plaintiff’s immigration status. They claimed that such information was relevant because it directly affected the plaintiff’s claim for future lost earnings.

Attorneys for the plaintiff objected, maintaining that the defendants were not entitled to discovery because the plaintiff’s immigration status has no relevance to any of the issues in this case. Plaintiff argued that defendants were simply looking to go on a fishing expedition with documents containing plaintiff’s sensitive and personal information, which could potentially be prejudicial to plaintiff.

The court ordered the discovery. Relying on the Court of Appeals’ decision in Balbuena, the state Supreme Court noted that a jury may consider immigration status as one factor in its determination of the damages, if any. The court noted that in calculating the amount of future lost earnings, a jury may consider the likelihood that plaintiff will remain in this country.

In Coque v. Wildflower Estates Developers, Inc., 31 A.D.3d 484, 818 N.Y.S.2d 546, 2006 N.Y. App. Div. LEXIS 9152 (N.Y. App. Div. 2d Dep’t July 11, 2006), the plaintiff worker, who was an undocumented construction worker, was hurt when roofing tiles fell and collapsed the scaffolding on which he was working. He sued the roofer and a developer. The developer argued that the plaintiff was not entitled to recover lost wages because he lacked legal immigration status. The Second Department Court rejected that argument, ruling that under Balbuena, an award for lost wages was not preempted by immigration law simply because the worker was an undocumented alien. The court noted that lost wages could be precluded if the worker had submitted false documentation to his employer, but that no evidence of that existed in the record.

The moral of Barahona and Coque: expect discovery requests from defendants concerning what documentation a worker gave his employer to prove his eligibility to work. If the worker submitted false documentation, recovery for lost wages might be precluded. Otherwise, under Balbuena, a worker’s immigration status is only one factor to consider in determining damages.

Finally, in Hernandez v. 151 Sullivan Tenant Corp., 30 A.D.3d 187, 819 N.Y.S.2d 490, 2006 N.Y. App. Div. LEXIS 7513 (N.Y. App. Div. 1st Dep’t June 8, 2006), appeal denied, 2006 N.Y. LEXIS 2653 (N.Y. Sept. 19, 2006), the plaintiff was an undocumented alien working on a roofing project. The hoist to which he had attached his safety rope toppled over and pulled him onto a sidewalk bridge, 50 feet below, causing multiple severe and debilitating injuries. He sued the owner of the property, the general contractor and the subcontractor. The defendants argued that the worker was not entitled to recover past and future lost wages in a personal injury action because he lacked immigration status, citing IRCA and Hoffman Plastics. The First Department rejected that argument, relying on Balbuena. The court upheld awards of $2.5 million for past pain and suffering and $3 million for future pain and suffering.

Immigration Status, Accidents or Injuries, and Your Rights

Let’s look at a typical situation, in which a person whose immigration status is questionable is involved in an accident and is injured in New York. This person may be working or not working, and is without adequate documentation. The immigrant worker could be crippled, disabled and confined to a hospital.

Furthermore, he or she is probably without income, being harassed by bill collectors, unable to speak English, and tragically unaware that he has the right to retain a lawyer who can secure all of the same benefits that a US citizen is entitled to under the same circumstances. Immigrant workers in this situation are often gripped by a powerful fear that making a claim will result in immediate deportation. However, the fact of the matter is, that as explained above, such a fear is far from the truth.

The Supreme Court of the United States, the highest Court in this land and charged with interpreting the Constitution, has ruled that all persons, including immigrants ( legal or illegal), have the right to sue and recover money damages in all United States Courts.

Court Examples of Aliens who Have Received Money Damages for Injuries due to Accidents or Negligence

In a reported case, an illegal alien was injured as the result of a fall on a defective stairway in an apartment building, sustaining very severe injuries. The owner of the building argued in the State Court that since the tenant was in the country illegally, he was not entitled to sue and recover a money award. The Court ruled favorably on behalf of the injured alien. This Court was required to follow the holding of the Supreme Court that illegal aliens were protected by the law and could not be discriminated against.

In another case, a welder, who was an undocumented alien, fell into an open pit that was used to collect waste in a factory. The alien was severely injured, and brought suit in a U.S. Court — the claim being that the open pit was inadequately guarded. The Company argued that the alien had no right to bring a case in the Federal Court because of his alien status. Again, this Court ruled that the illegal alien enjoyed all of the same privileges as those enjoyed by United States citizens. The Court then affirmed a generous award which had been rendered on behalf of the injured alien.

This protection applies to lawsuits to recover an award on behalf of the Estate of an alien whose death is caused by reason of the negligence of another. A lawsuit may be successfully brought in the United States to recover for the wrongful death of an undocumented alien, even though none of his family or relatives reside here. Usually, the lawyer who is retained can arrange for the appointment of a proper person to represent the interests of the immediate family, without any monetary loss to the heirs.

It has been our experience that the fear of deportation resulting from the bringing a lawsuit to recover money damages is unwarranted. Furthermore, it is our judgment that it has never been established that there is any link between bringing a claim and subsequent action taken by immigration authorities against an undocumented alien.

If you or a member of your family are undocumented and have been injured by reason of a accident, your right to make a claim is protected by Law. Get in touch with a lawyer experienced in handling accident cases as soon as possible.

For questions about this or any other aspect of the law, please Feel free to contact me directly or call 516-358-6900.

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