 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Oro v. 23 East 79th Street Corp.11/9/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.
PRESENT : PATTERSON, J.P., RIOS and BELEN, JJ.
Order, insofar as appealed from, unanimously modified by striking the provision of the order barring inquiry into plaintiff Geovanny Oro's immigration status in the United States. The discovery with regard thereto shall be completed within 60 days of the date of the order hereon and proceed at a time and place to be fixed in a written notice of not less than 10 days, to be given by third-party defendant Kirsch, or at such other time and place as the parties may agree. The notice shall be served within five days after service upon plaintiffs of a copy of the order hereon. Order, as so modified, affirmed without costs.
In this personal injury action, the court below properly denied third-party defendant's motion to dismiss, inter alia, for failure to comply with discovery demands, as third-party defendant failed to show that plaintiffs' noncompliance was willful and contumacious, especially given that much of the alleged noncompliance concerned matters that are only discoverable in narrow circumstances (see e.g. Kay v Kay, 223 AD2d 684 [tax returns discoverable in circumstances before court, in which party failed to provide any income documentation]). Tax returns, sought herein, are not generally discoverable in civil litigation (id.), and the court properly adhered to this rule in the present action, as plaintiffs provided employment records and IRS authorizations, as well as copies of plaintiff Geovanny Oro's pay stubs, and third-party defendant failed to make the required showing that the information sought was unavailable from these or other sources (see Nanbar Realty Corp. v Pater Realty Co., 242 AD2d 208 ; Consentino v Schwartz, 155 AD2d 640 ).
However, information regarding plaintiff Geovanny Oro's immigration status in the United States is material to his lost earnings claim, and thus the defense was entitled to reasonable inquiry into this area (see Vasquez v Sokolowski, 277 AD2d 370 ; Gomez v Long Is. R.R., 201 AD2d 455 ). It should be noted that specific rulings on disputed areas of questioning were not sought below and no issue is raised with regard thereto upon this appeal. This court will therefore limit its ruling concerning the protective order to striking the provision thereof barring inquiry into Geovanny Oro's immigration status.
Although the court below did not directly address the issue in the branch of its decision and order denying third-party defendant's motion to dismiss the lost earnings claim, third-party defendant raised in the motion, and the parties contested below and upon this appeal, the issue of whether the lost wages claim should be dismissed as barred by the decision of the U.S. Supreme Court in Hoffman Plastic Compounds, Inc. v National Labor Relations Board (535 US 137 ). In Hoffman, the Supreme Court ruled that undocumented workers were not entitled to so-called "back pay" awards, covering periods that they were not working due to wrongful termination for union activities, under the National Labor Relations Act (29 USC § 158 et seq.). The stated rationale was that the National Labor Relations Act requires mitigation of damages (i.e., wrongfully terminated workers must seek employment), which for undocumented workers meant imposing a duty that could only be fulfilled by breaking U.S. immigration law (Hoffman, 535 US at 150-151). This holding has reopened the previously well-settled issue of entitlement to lost wages awards in state statute-based or common-law tor
Page 1 2 3 New York Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|