to construct a pipe bomb using gunpowder extracted from a firecracker. The court dismissed plaintiff's tort action against the nine-year-old defendant who allegedly sold him the firecracker, citing "the public policy consideration that the courts should not lend assistance to one who seeks compensation under the law for injuries resulting from his own acts when they involve a substantial violation of the law." Id. 63 N.Y.2d at 29, 468 N.E.2d at 43, 479 N.Y.S.2d at 206. See also Symone T. v. Lieber, 205 A.D.2d 609, 613 N.Y.S.2d 404 (2d Dep't 1994) (plaintiff would be barred on public policy grounds from recovery in medical malpractice suit if she knowingly and willfully submitted to illegal abortion); Phifer v. New York, 204 A.D.2d 612, 612 N.Y.S.2d 225 (2d Dep't 1994) (dismissing wrongful death claim where claimant's decedent, while intoxicated, stole a state-owned vehicle and crashed it into a tree, sustaining fatal injuries); Tillmon v. New York City Housing Auth., 203 A.D.2d 19, 609 N.Y.S.2d 239 (1st Dep't 1994) (defendant not liable for death of 14-year-old boy who was killed while "elevator surfing" by climbing through escape hatch and riding on roof of elevator car); LaPage v. Smith, 166 A.D.2d 831, 563 N.Y.S.2d 174 (3d Dep't 1990) (estate of decedent killed in auto accident while driving intoxicated at speeds in excess of 100 miles per hour barred from recovery).
The mere commission of an offense, however, does not bar a plaintiff from seeking redress for an injury suffered while engaging therein. Rather, an individual's legal violation precludes an action for injuries caused by a tortfeasor only when plaintiff's own criminal conduct was a "contributing proximate cause" of his or her injuries. Id., 63 N.Y.2d at 30, 468 N.E.2d at 44, 479 N.Y.S.2d at 206-07 (Jasen, J., concurring). Indeed, it is well established under New York law that illegal acts will bar redress only when there is a causal nexus between plaintiff's injury and his or her own misconduct. See Martin v. Herzog, 228 N.Y. 164, 170, 126 N.E. 814, 816 (1920) (Cardozo, J.) ("A plaintiff who [unlawfully] travels without [lights on her vehicle] is not to forfeit the right to damages, unless the absence of lights is at least a contributing cause of the disaster").
Thus, plaintiffs have been permitted to bring causes of action despite their own misconduct, so long as the misconduct "was not of the kind that 'usually results in injury'" or was "'not per se . . . dangerous.'" Barker, 63 N.Y.2d at 31, 468 N.E.2d at 45, 479 N.Y.S.2d at 207 (Jasen, J., concurring) (quoting Platz v. City of Cohoes, 89 N.Y. 219, 223 (42 Am. Rep. 286) (offense of traveling on Sunday for pleasure, while unlawful at the time, did not defeat recovery of traveler injured by defendant's negligence, since "the act of travel is not one which usually results in injury"); and Corbett v. Scott, 243 N.Y. 66, 70, 152 N.E. 467 (1926) (minor injured while driving motorcycle, in violation of law prohibiting persons under 16 years of age from operating motorcycles, permitted to recover for defendant's negligent operation of automobile, since plaintiff's violation was "irrelevant to the result")).
As explained supra, Ford contends that by attempting to repair Mr. Mieczowski's car on his own time, instead of conducting the repair at his place of employment, plaintiff was engaging in an "illegal transaction" or "unlicensed employment" and, as a result, should be barred from recovering damages in this case. Ford's argument is inapposite for two reasons. First, Ford has adduced no evidence to support its contention that plaintiff's agreement with the car owner was in any way illegal. There is no evidence that plaintiff was compensated for working on Mr. Mieczowski's car or that the agreement constituted anything more than a favor for a friend.
Second, even assuming for the sake of argument that plaintiff was working "illegally off the books" at the time of the injury, the fact that plaintiff may have been working illegally, either because he was an illegal alien or because he was receiving money off the books and thus was not paying taxes on that income, did not cause the work to be dangerous and was not a proximate or contributing cause of plaintiff's injuries. Plaintiff may well have been contributorily negligent by using the tire jack rather than his employer's hydraulic lift. That is an issue of fact for the jury to decide, and certainly defendant should be permitted to introduce evidence that plaintiff contributed to his own injury by using the tire jack to repair the vehicle instead of having Mr. Miecskowski bring his car into plaintiff's employer's garage or completing the repair in some other way.
Whatever the cause of plaintiff's injury, however, it was not caused by the fact that plaintiff may have been working "illegally," since working illegally is not, by itself, misconduct of the kind that usually results in injury or is per se dangerous.
As Ford points out, evidence that a plaintiff was working illegally is admissible where it is relevant to the issue of lost wages and future earnings. See Collins v. New York City Health and Hosps. Corp., 201 A.D.2d 447, 448, 607 N.Y.S.2d 387, 387 (2d Dep't 1994) (wages illegal alien decedent might have earned before dying, allegedly due to defendants' negligence and medical malpractice, as well as length of time he might have continued earning wages and the likelihood of his potential deportation, were fact questions for the jury); Public Adm'r of Bronx County v. Equitable Life Assurance Soc'y of the United States, 192 A.D.2d 325, 325, 595 N.Y.S.2d 478, 479 (1st Dep't 1993) (plaintiff "should be permitted to offer any evidence of any wages that his decedent, an alien working in the United States on an apparently illegal basis, might have earned. . . . It is for the jury to weigh defense proof that decedent would have earned those wages, if at all, by illegal activity"). However, plaintiff has stated that he will not seek damages for lost wages or future earnings in this case. Accordingly, evidence that plaintiff was working illegally is irrelevant to the issue of damages in the instant action.
For these reasons, defendant's motion to amend its answer as proposed above is denied. Plaintiff's illegal alien status and alleged "illegal activity" do not constitute cognizable defenses to his claims.
In the alternative, defendant seeks to use the evidence of plaintiff's illegal alien status and alleged misconduct at trial "to challenge plaintiff's propensity to tell the truth." Fed.R.Evid. 611(b) provides, in pertinent part, that "cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness." Fed.R.Evid. 608(b) implements this by providing that specific instances of misconduct may not be proved by extrinsic evidence, but "may, . . . in the discretion of the court, if probative of truthfulness or untruthfulness be inquired into on cross-examination of the witness . . . concerning the witness' character for truthfulness or untruthfulness. . . ." Thus, evidence of prior criminal acts that did not result in conviction may be used to impeach a witness's credibility if such acts tend to impugn that witness's credibility. See United States v. Leonardi, 623 F.2d 746, 757 (2d Cir.), cert. denied, 447 U.S. 928, 65 L. Ed. 2d 1123, 100 S. Ct. 3027 (1980).
Evidence that a witness has made false statements is obviously a matter that tends to impugn a witness's credibility. See United States v. Williams, 986 F.2d 86, 88-89 (4th Cir.) (evidence that defendant had fraudulently obtained a fake driver's license and used it to cash stolen checks was probative of defendant's truthfulness and thus could have been used to impeach him if he had chosen to testify), cert. denied, 509 U.S. 911, 125 L. Ed. 2d 703, 113 S. Ct. 3013 (1993); United States v. Jones, 900 F.2d 512, 520-21 (2d Cir.) (prosecution permitted to cross-examine witness concerning false statements made on applications for employment, an apartment, a driver's license, a loan, membership in NASD and on income tax returns), cert. denied, 498 U.S. 846, 112 L. Ed. 2d 99, 111 S. Ct. 131 (1990).
Here, it is undisputed that plaintiff is a Polish citizen who arrived in this country in 1990 and has remained here after the expiration of his visa.
Ford has cited no authority, and the court is aware of none, to support the conclusion that the status of being an illegal alien impugns one's credibility. Thus, by itself, such evidence is not admissible for impeachment purposes.
According to Ford, plaintiff obtained a social security number and driver's license under false pretenses in order to obtain full-time employment unlawfully. However, Ford has not adduced any specific evidence to support its contention that plaintiff made misrepresentations to anyone about his immigration status. Absent such evidence, defendant's motion for leave to cross-examine plaintiff on these issues is denied.
Finally, plaintiff admits that he has failed to file income tax returns or pay income taxes while in this country. Controlling case law dictates that such conduct bears directly on a plaintiff's propensity for truthfulness and must be admitted for impeachment purposes if plaintiff takes the stand. Chnapkova v. Koh, 985 F.2d 79, 82 (2d Cir. 1993) (evidence that plaintiff failed to file tax returns for eight years could be used to attack her credibility on cross-examination in medical malpractice action).
Accordingly, defendant's motion to cross-examine plaintiff concerning his failure to file tax returns is granted.
Dated: Brooklyn, New York
July 25, 1996
ROBERT M. LEVY
United States Magistrate Judge