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Marquez v. Trustees of Columbia University in City of New York

Sup Ct, New York County

April 5, 2013

TEODORO MARQUEZ, Plaintiff,
v.
TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, Defendant. Index No. 104744/09

Unpublished Opinion

JOAN A. MADDEN, J.

In this action arising out of a construction site accident, defendant Trustees of Columbia University in the City of New York (Columbia) moves, by order to show cause, for an order (i) granting leave to renew and reargue this court's decision and order dated June 25, 2012 ("the original decision"), denying its motion to preclude plaintiff from introducing evidence concerning past and future lost earnings "stemming from his illegal employment in the United

States, " and precluding any expert testimony regarding plaintiffs life care costs, future medical expenses and treatment and other anticipated expenses or, in the alternative, (ii) granting leave to renew and reargue its request to compel plaintiff to provide documentary evidence concerning his identity and immigration status and ordering a further deposition of plaintiff regarding his immigration status. Plaintiff opposes the motion, which is denied.

Background

Plaintiff was allegedly injured on November 3, 2008, while performing plastering work at a construction site located at 606 West 116th Street in Manhattan. Plaintiff fell from an unsecured A-frame ladder while working in an apartment on the 11th floor of the building.

Columbia was the owner of the construction site. Plaintiff was an employee of Izzo Construction Corp. (Izzo), which was hired by Columbia to perform plastering work. Plaintiff is known by four names: Teodoro Marquez, Teodoro Quispe, Fernando Teodoro Marquez, and Teordoro Fenando Marquez Quispe.

Plaintiff commenced the instant action on April 6, 2009, asserting the following claims; (1) common-law negligence; (2) violation of Labor Law § 200; (3) violation of Labor Law § 240 (1); and (4) violation of Labor Law § 241 (6).

Plaintiff filed his note of issue on August 28, 2010. On or about September 21, 2010, plaintiff moved for partial summary judgment on the issue of liability under Labor Law § 240 (1) against Columbia. Columbia opposed the motion and cross moved to dismiss the complaint. By decision and order dated November 29, 2011, this court granted plaintiffs motion and denied Columbia's cross motion. Columbia appealed, and on May 10, 2012, the court's decision and order was affirmed by the Appellate Division, First Department.

On May 7, 2012, Columbia submitted an order to show cause seeking various relief, including precluding plaintiff from introducing evidence concerning past and future lost earnings stemming from his "illegal employment" in the United States, and precluding certain expert testimony relevant to future costs and expenses, or, in the alternative requiring plaintiff to produce certain evidence regarding, inter alia, his immigration status, his identity, and lost earnings claims.

Plaintiff opposed the motion, pointing out that the note of issue was filed almost two years ago, and that plaintiff has already been deposed, and testified that he did not have a green card or social security number, and that plaintiff came to the United States from Peru in 2002 and has been in this county continuously ever since and is not a United States citizen. Plaintiff also argued that his immigration status is irrelevant since, under New York law, an undocumented worker is entitled to lost earnings in connection with a personal injury action, unless the worker supplied his employer with a false social security card and the employer relied on it, and that there is no evidence that these circumstances exist in the instant case.

Plaintiff also sought a protective order regarding recent discovery demands served by Columbia and submits various discovery orders showing that plaintiff complied with orders directing that he produce records relevant to earnings, including authorizations for W-2's from his employer, Izzo and attaches W-2's issued by Izzo to plaintiff for 2006-2008.

In its original decision, the court denied Columbia's motion except with respect to permitting it to depose plaintiff with respect to his medical condition and treatment between the time of this last deposition and the present and as to any known future medical treatment, and life care costs. The court granted plaintiff a protective order with respect to the other discovery sought. The court specifically rejected Columbia's argument that it was entitled to discovery as to plaintiffs immigration status or that plaintiff should be precluded from concerning past and future lost earnings. In this regard the court wrote that:

There is no dispute that plaintiff is not a United States citizen, does not have a green card or a social security number. More significantly, it is well established that although he is not a United States citizen, plaintiff has a right to recover lost earnings arising out of violation of the Labor Law. See Balbuena v. IDR Realty LLC. 6 N.Y.3d 338 (2005)(holding that unauthorized worker is entitled to recovery damages for his lost earnings due to a violation of Labor Law §§ 240, 241(6), and § 200); Macedo v. J.D. Posillico. Inc., 68 A.D.2d 508, 511 (1st Dept 2009)(holding that undocumented worker was entitled to lost earnings even assuming he submitted a false social security card to his employer where there is no evidence that the employer sought to comply with his employment verification obligations). In fact, the only apparent exception to this rule is when an employee submits a false social security number to an employer and the employer obtained verifying documentation as required ...

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