Balbuena v. IDR Realty LLC

13 A.D.3d 285, 787 N.Y.S.2d 35, 2004 N.Y. App. Div. LEXIS 15627

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 2004
• Status: Published

Opinions

Order, Supreme Court, New York County (Rosalyn Richter, J.), entered May 16, 2003, which, insofar as appealed from, denied the motion by third-party defendant Taman Management Corp. for partial summary judgment dismissing plaintiff Gorgonio Balbuena’s claim for lost earnings, modified, on the law, to grant such motion to the extent of dismissing such claim to the extent it seeks damages based on the wages that plaintiff Balbuena might have earned illegally in the United States, and otherwise affirmed, without costs.

As more fully discussed in the decision in Sanango v 200 E. 16th St. Hous. Corp. (13 AD3d 349 [2004]) in light of the federal Immigration Reform and Control Act of 1986 (IRCA) (8 USC § 1324a et seq., as added by Pub L 99-603, 100 US Stat 3359, as amended) and the recent decision of the United States Supreme Court in Hoffman Plastic Compounds, Inc. v National Labor Relations Bd. (535 US 137 [2002]), it is our view that plaintiff, as an admitted undocumented alien, is not entitled to recover lost earnings damages based on the wages he might have earned illegally in the United States. Rather than simply dismiss the lost earnings claim, however, we limit plaintiffs recovery for lost earnings to the wages he would have been able to earn in his home country, since an award based on a prevailing foreign wage would not offend any federal policy. Concur—Nardelli, J.E, Tom, Lerner and Friedman, JJ.