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July 25, 1996

ROBERT MISCHALSKI, Plaintiff, against FORD MOTOR COMPANY, DISCOUNT LIMOUSINE BROKERAGE, INC., and JOHN DOES 1-10, Defendants. FORD MOTOR COMPANY, Third-Party Plaintiff, -against- PIOTR MIECZKOWSKI, Third-Party Defendant.

The opinion of the court was delivered by: LEVY

 LEVY, United States Magistrate Judge:

 Defendant and Third-Party Plaintiff Ford Motor Company ("defendant" or "Ford") moves for leave to amend its answer to add a twelfth affirmative defense and for an order in limine permitting it to introduce evidence at trial of plaintiff Robert Mischalski's "alien status" and related "illegal conduct." For the reasons stated below, defendant's motion is denied in part and granted in part.

 The proposed amended answer is attached as Exhibit A to Ford's motion papers; the purported new affirmative defense is as follows:

Upon information and belief, at the time of the occurrence alleged in the complaint, plaintiff was an illegal alien or was then and there engaged in an illegal transaction or unlicensed employment.
Upon information and belief, by reason of the foregoing, plaintiff is estopped from seeking damages herein or, alternatively, plaintiff is barred from seeking future compensatory damages of any nature and/or plaintiff's future compensatory damages should be calculated on the basis of the currency value of the country of his national origin.

 As Ford necessarily concedes, a plaintiff's illegal alien status is not a bar to recovery in federal court. See, e.g., Rios v. Enterprise Ass'n Steamfitters Local Union 638 of U.A., 860 F.2d 1168, 1173 (2d Cir. 1988) (Title VII applies to undocumented workers); Local 512, Warehouse and Office Workers' Union v. National Labor Relations Bd., 795 F.2d 705, 718 (9th Cir. 1986) (undocumented workers entitled to back pay for employers' violations of the Fair Labor Standards Act); Torrez v. State Farm Mutual Automobile Ins. Co., 705 F.2d 1192, 1202-03 (10th Cir. 1982) (illegality not a defense to wrongful death claim by estate of illegal alien killed in auto accident); Hagl v. Jacob Stern & Sons, Inc., 396 F. Supp. 779, 783-84 (E.D. Pa. 1975) ("every alien, whether in this country legally or not, has a right to sue those who physically injure him"); People of Saipan v. United States Dep't of Interior, 356 F. Supp. 645, 652 (D. Haw. 1973) (plaintiffs' status as nonresident aliens did not detract from their standing to sue under the National Environmental Policy Act). See also Catalanotto v. Palazzolo, 46 Misc. 2d 381, 383-84, 259 N.Y.S.2d 473, 476 (Sup.Ct., N.Y. County 1965) ("There can be no doubt that an alien illegally present in the country has the right to sue in our courts"). Thus, plaintiff's illegal alien status is, by itself, irrelevant, and cannot be used to prevent plaintiff from recovering compensatory damages in this case. Accordingly, Ford may not assert plaintiff's status as a defense to this action.

 However, Ford also contends that plaintiff suffered his alleged injury while engaged in the perpetration of an illegal act. Defendant apparently intends to adduce evidence at trial to establish that plaintiff was working illegally as an auto mechanic and was "engaged in an illegal transaction working off the books on his own time" when he was injured attempting to replace an air suspension in a 1990 Lincoln Town Car owned by third-party defendant Piotr Mieczkowski. According to Ford, plaintiff's employer had hydraulic lifts that were routinely used to conduct air suspension repairs. However, since plaintiff allegedly was "working off the books" on his own time, he did not use the hydraulic lifts, but instead used the tire jack that caused his injury. Ford thus asserts that plaintiff's "illegal conduct" was a direct cause of the accident and seeks to introduce evidence of this "compounded illegality" in order to preclude any recovery of damages.

 Ford's motion relies on the widely recognized principle that a person should not be permitted to take advantage of his or her own wrongdoing by predicating a legal or equitable claim on the person's own fraudulent, immoral or illegal conduct. This principle is most frequently asserted as a defense against the enforcement of illegal contracts (see, e.g., Spivak v. Sachs, 16 N.Y.2d 163, 211 N.E.2d 329, 263 N.Y.S.2d 953 (1965); McConnell v. Commonwealth Pictures Corp., 7 N.Y.2d 465, 166 N.E.2d 494, 199 N.Y.S.2d 483 (1960)) *fn1" or against recovery of insurance proceeds made payable by the criminal act of a beneficiary (see, e.g., Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889); Boatwright v. Hartford Ins. Group, 64 A.D.2d 262, 409 N.Y.S.2d 860 (4th Dep't 1978)), but is also applicable to actions arising in tort, under the theory that one should not be rewarded for voluntary participation in an illegal act or profit from his or her own wrongdoing. Barker v. Kallash, 63 N.Y.2d 19, 468 N.E.2d 39, 479 N.Y.S.2d 201 (1984).

 Under this theory, a plaintiff who has engaged in activities prohibited by law will not be permitted to recover damages if the plaintiff's conduct constituted a serious violation of the law and the injuries for which the plaintiff seeks recovery were the direct result of the plaintiff's knowing and voluntary participation in that violation. Id., 63 N.Y.2d at 24, 468 N.E.2d at 41, 479 N.Y.S.2d at 203. For example, in Barker v. Kallash, the 14-year-old plaintiff was injured while attempting 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. *fn2" Whatever the ...

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