COMMERCIAL LITIGATION ISSUES OF INTEREST by jennyyingdi

VIEWS: 3 PAGES: 11

									                                                                                                                     June 2006




                                                                                                         June 2006


   MEMBERS OF THE                         COMMERCIAL LITIGATION ISSUES OF INTEREST
        BOARD                                                    Submitted by Paul Savad, Esq.
  ROCKLAND COUNTY                                     Chair, Commercial and Corporate Law Committee;
   BAR ASSOCIATION                           Susan Cooper, Esq. and Nadine Parkes, Esq., of Paul Savad & Associates
     Bridget M. Casey
          President                           Your client, while walking down the street, was unknowingly photographed
        David Klein                 by a famous professional photographer, who then showed the photograph in art
       President Elect
                                    museums and galleries, where prints sold for between $20,000 and $30,000 each.
      Marilyn P. Davis
      Vice President                You filed a complaint for an injunction, an accounting and compensatory damages,
     Andrew DePodwin                pursuant to New York’s privacy laws (Civil Rights Law §50 and §51). The
        Treasurer                   photographer claims that the photograph of your client is “art” and is, therefore,
      Stephen B. Lowe               exempt from the protection of privacy laws, because it is protected free speech under
        Secretary                   the United States and New York State Constitutions.
     Sandria P. Garvin                        Can the court grant your application to extend the period of duration of the
     Executive Director             lis pendens for another three years?
                                              Will you be able to defeat the photographer’s motion for summary judgment
           Directors:
       Alden B. Smith               to dismiss your complaint?
     Glenn W. Kelleher                        The answer is No.
      Lynne S. Hilowitz                       In Nussenzweig v. DiCorcia, 11 Misc.3d 1051(A) (Sup. Ct.N.Y.Co. Feb
    Lawrence A. Codispoti           2006), DiCorcia, a famous artist, took an unauthorized photograph of Nussenzweig
      Alan E. Goldstein
     Alan G. Rosenblatt             while he was walking in Times Square. Photographs by DiCorcia were shown in
      Patrick T. Burke              defendant Pace’s gallery, which sold 10 additional prints of the photograph from
      Robert D. Fenster             between $20,000 and $30,000 a piece.
      Cassandra Bilotta                       Nussenzweig is an Orthodox Hasidic Jew and a member of the Klausenberg
        Larry Gantt
                                    Sect, a Sect that was almost destroyed during the Holocaust. He holds a deep
                                    religious conviction that the use of his image for commercial and public purposes
                                    violates the second commandment prohibition against graven images.
                                              When Nussenzweig first discovered the photograph of this image, he
       Inside This Issue
                                    immediately contacted DiCorcia and Pace Gallery to object. DiCorcia responded that
1-2 Article of Interest by          the photographs were not being used for either “advertising” or “trade” and that he
    Paul Savad, Esq.                believed he was within his legal rights to continue to use the photograph as he had
    Advertising                     been doing.
3-7 Siegel’s Highlights,
                                              Nussenzweig filed an action in Supreme Court, New York County, for an
    New Members, FYI, Ads,          accounting, compensatory damages, exemplary damages, and a permanent injunction
    CLE Calendar                    pursuant to Civil Rights Law § 50 and § 51.
                                              Civil Rights Law §51 provides a right of an action for injunction and for
  8 Article of Interest by
    Isaac Steinfeld
                                    damages in favor of any person whose picture is used for advertising purposes or for
                                    the purposes of trade, without the person’s written consent. Civil Rights Law §50
9-10 Advertising & Article of       makes it a misdemeanor to use a person’s picture for advertising or trade without
     Interest by Itamer J. Yeger,   written permission.
     Esq.
                                              Between 1999 and 2001, DiCorcia, who has been exhibited in fine art
11-12 Classifieds & CLE             museums worldwide, created a series of photographs, which he entitled ”HEADS”,
      Registration                  consisting of candid, un-staged images of people in Times Square, including
                                    Nussenzweig, as they passed by a particular location. DiCorcia did not seek or obtain
                                    consent to photograph any of the people whose likenesses were included in his
                                    collection. The photograph of Nussenzweig is readily recognizable.

                                                                                 Continued on Page 2…


                                                                                                                             1
              Commercial Litigation Continued…

              The “HEADS” collection was exhibited at the Pace Gallery from September 6, 2001, through October 13, 2001. The Pace
    Gallery exhibit was open to the public and was advertised and reviewed in local and national media, including the New York
    Times and the Village Voice. Reviews were also published in national art periodicals.
              Nussenzweig argued that the photograph is not art and that the defendants’ intended purposes was to sell the photograph
    and reproductions, which is a commercial use that is actionable under the privacy laws.
              The defendants conceded the essential facts, but argued that the photograph of Nussenzweig was not used for
    “advertising” or “trade” purposes. They argued that the photograph is “art” and cannot constitutionally be within the protection of
    New York’s privacy laws, because it is constitutionally protected speech under the First Amendment of the U.S. Constitution, and
    Article 1, Section 8, of New York State’s Constitution. Nussenzweig also argued that: 1) he needs discovery to find out the extent
    to which the defendants are pursuing a commercial use of his likeness; and 2) freedom of expression is not an absolute guaranty,
    but requires the trier of the facts to weigh Nussenzweig’s constitutional rights to privacy and his right to practice his religion,
    against the defendants’ competing interests.
              Judge Gische first ruled that the complaint should be dismissed, because the action was brought more than one year after
    the first publication, beyond the one-year statute of limitations governing Civil Rights law § 50 and § 51. However, the Court also
    noted that there is a split of authority among the four judicial departments about whether the cause of action accrues upon the first
    publication, or upon each successive re-publication. The court was bound to follow the First Department’s “single publication”
    rule, but noted that the issue of when the cause of action accrues is still open for interpretation by the Court of Appeals.
              The court went on to determine whether the photograph was used for advertising or trade purposes, noting that New
    York’s privacy laws were enacted to strike a balance between the right to privacy on the one hand and the right to first amendment
    free speech on the other (citing Arrington v. New York Times, 55 N.Y.2d 433 [1982]).
              In Arrington, the Court of Appeals ruled that a picture illustrating a matter of public interest is not used “for the purpose
    trade or advertising” unless the picture has no real relationship to the article of public interest, or unless the article was
    advertisement in disguise. In Arrington, the plaintiff had no right of action against the New York Times Magazine for publication
    of his picture, without his consent, in connection with an article about the black middle class. The picture portrayed what one
    might expect an upper “middle class” man of good taste and attire to look like, even though the plaintiff was ashamed of being
    connected to the author’s offensive view point.
              As long as the primary purpose is newsworthy, said Judge Gisch, incidental commercial use of the image does not turn its
    use into an unprotected use, citing Messenger v. Gruner, 94 N.Y.2d 436 (2000), where a model brought an action against the
    magazine for use of a photograph to illustrate a sexual advice column about a teenage girl who had sexual intercourse with
    multiple partners. The Court of Appeals held that “newsworthiness” includes articles about social concerns and any subject of
    public interest. There was no liability under Civil Rights privacy laws, even though there might have been a false implication that
    could have been reasonably drawn from the use of her photograph.
              Judge Gische took note of Costlow v. Kusimano, 34 A.D.2d 194 (4th Dept), where the court held that the parents of
    children who died by suffocation when they trapped themself in the refrigerator, could not assert a privacy claim to prevent the
    defendant from publishing an article with photographs of the premises and the deceased children, because the article was
    “newsworthy”.
               In Altbach v. Kulon, 302 A.D.2d 655 (3rd Dept, 2003), relied on by Judge Gische, an artist’s caricatured parody of a town
    justice was protected, as was the publication of the painting with a copy of the justice’s photograph. Use of the justice’s name and
    photograph were part of, or ancillary to artistic expression.
              Judge Gische held that the defendants had demonstrated a prima facia case that the photograph was art. DiCorcia had a
    general reputation in the international artistic community and described the creative process he used to shoot, edit and select the
    photographs for exhibition and review by the artistic community. The limited number of photographs sold for profit did not
    convert art into trade.
              The court held that although Nussenzweig found the use of the photograph deeply and spiritually offensive, his distress
    was not redressable in a court of civil law, noting that courts have uniformly upheld constitutional First Amendment protections,
    even in the face of deeply offensive use of someone’s likeness. The Court granted summary judgment to the defendants and
    dismissed the complaint for failure to state a cause of action.
              The Lesson?
              Constitutional exceptions to statutory privacy rights will be upheld, notwithstanding that the speech or art may have
    unintended devastating consequences on the subject, or may even be repugnant. That is the price every person must be prepared
    to pay in a society in which information and opinion flow freely.




       Rockland County Bar Association, 337 North Main Street, Suite 1, New City, NY 10956. Ph. (845) 634-2149 Fax. (845) 634-1055, E-Mail www.office@rocklandbar.org
2
                                Highlights from Siegel’s Spring 2006 Civil Practice Update



       New rule creates commercial parts in a number of counties, and regulates them in detail
       Recent developments on removal of cases to federal court
       Rigorous Court of Appeals attitude about laxness extended to process service
       Several key holdings on notices of claim statute, GML § 50-e
       Kinds of dismissals that equal neglect to prosecute and hence don’t get any time extension
       Strict construction of commencement statute, rejecting index number of earlier proceeding for
       use in later one
       Pitfalls in Election Law proceedings
       Resolution about proper return date to set in special proceeding
       Detailed steps on effecting change of venue to different county
       New rule on sending judges reminder letters about time for rendering decisions
       More on intervention by health insurer into insured’s
       Rulings rejecting supposedly binding settlement stipulations
       When may wherefore clause include specific sum and when it may not
       Continued problem of identifying experts in medical malpractice cases
       Circumventing 120-day limit on summary judgment motions
       Amendment of CPLR 3211 (e) addressing plaintiff’s pleading burden when faced with
       dismissal motion
       Settlements: Effect of party’s death and validity of settlement made in chambers
       Inconsistencies between order and judgment
       Supervising electronic discovery
       Consequence of plaintiff not taking prompt steps to enter default
       Avoiding dismissal for neglect to prosecute
       Interest on money claims in summary proceedings
       Amendment increasing exemption for residence in enforcement proceedings
       Court of Appeals decision on how to determine whether an arbitration is governed by federal
       act
       Differences between federal and state arbitration applications
       Making provisional remedies available in foreign as well as domestic arbitrations
       Method of securing use of lis pendens in arbitration proceedings
       Legal malpractice for failing to get arbitration award confirmed
       Insured’s obligations when insurer disclaims
       Effect of change in administrative determination on which judgment based
       Enforcement devices, including major case on installment payment orders and issues of
       attorneys’ liens
       State’s liability when clerk fails to file order of attachment
       Letter of engagement issues: forfeiting fee; retaining fee already paid
       Procedure under rule 137 for seeking de novo review of arbitration in attorneys’ fees case
       and many more……….




Rockland County Bar Association, 337 North Main Street, Suite 1, New City, NY 10956. Ph. (845) 634-2149 Fax. (845) 634-1055, E-Mail www.office@rocklandbar.org
                                                                                                                                                                 3
                                                                                                                    ATTENTION NEW LAWYERS:
                                                                                                      The New Lawyers Committee of the Rockland County Bar
                                                                                                     Asssociation has only one purpose: to be a resource. The New
                                                                                                        Lawyers Committee only exists to support its members
                                                                                                       socially, professionally and to help with employment and
                                                                                                                         REAL ESTATE
                                                                                                                             research needs.

                                                                                                   The committee is also here for you if you have questions about
                                                                                                                        **Piermont***
                                                                                                                 law procedures Sale, Route Judge.
                                                                                                   1 Bedroom Condo for or a particular 9W, Piermont
                                                                                                 Lovely – Lower level 1 Bedroom Unit. Mint condition,
                                                                                                      windows and Committee open to Common of the
                                                                                                 newThe New Lawyershardwoodisfloors. all members charges
                                                                                                   Rockland County Bar Association who have been admitted to
                                                                                                  include heat, water and gas. Laundry and storage.
                                                                                                    practice to the Bar ten years or less. If you would like to join
                                                                                                  Quiet area. Asking $245,000. Call the Association,
                                                                                                     or re-join the New Lawyers Committee please call the Bar
                                                                                                                          (845) 634-2149
                                                                                                                  Association Office @ 845-634-2149.




                                                                                                                    Congratulations
                                                                                                                                      To
                                                                                                                 Sandy & Mike
                                                                                                                         On their nuptials
                                                                                                                      May 20, 2006



                                                                                                                      SAVE THE DATE
         MEMORIAL SERVICE
                In Rememberance of                                                                     GENERAL DINNER MEETING
                                                                                                  Join Us for our General Meeting and the Swearing In of
    Honorable George M. Bergerman                                                                 David M. Klein, president, and the officers and directors
                                                                                                       of the Bar Association for fiscal year 2006/07.

                 DATE: June 15, 2006                                                                    Guest Speaker: Hon. A. Gail Prudenti
                                                                                                              DATE: Tuesday, June 13, 2006
                    TIME: 10:00 A.M.                                                                      TIME: 6:00 p.m. Cocktails (Cash Bar)
                                                                                                                  7:00 p.m. DINNER
                                                                                                    PLACE: The Nyack Seaport, 21 Burd Street, Nyack
           PLACE: Courtroom I                                                                              ADMISSION: $40.00 Per Person in
       Thurgood Marshall Courtroom                                                                                 ADVANCE ONLY*
                                                                                                                     $60.00 Walk Ins
                                                                                                    Reservations are necessary since seating is limited.




     Rockland County Bar Association, 337 North Main Street, Suite 1, New City, NY 10956. Ph. (845) 634-2149 Fax. (845) 634-1055, E-Mail www.office@rocklandbar.org
4
Workers’ Compensation                               Elder Law                                              RCBA Welcomes New Members
Marc J. Wachtell                                    Lee A. Hoffman, Jr.
Christopher E. Rao                                                                                                 Nicole M. Harris
Dan L. Wugman
                                                                                                                   Timothy O’Shea
                                                                                                                  John Michael Mrsich
 HOFFMAN, WACHTELL, KOSTER & MAIER
                        ATTORNEYS AT LAW                                                                                     Einwohner
                                                                                                                  Stewart G. Einwohner
                   82 Maple Avenue – P.O. Box 88                                                                   David M. Ascher
                        New City, NY 10956
                           845-634-8169
                                                                                                                          Fequiere-
                                                                                                                  Karlyne Fequiere-Pierre
                                                                                                  We look forward to seeing you at CLE’s and other events.
                                                                                                                        **********
                                                                                             Do you have a colleague or know someone in a law firm or
                                                                                              legal department that is not a member of the Rockland
                                                                                               County Bar Association, we invite them to apply. Our
Michael Zall                                                                                        downloadable application is on our website
___________________________                                                                   www.rocklandbar.org or you may call Leslie @ the Bar
                                                                                                           Association, (845) 634-2149.
ATTORNEY
                                          Two Yorkshire Drive
PATENTS                               Suffern, New York 10901
TRADEMARKS                                      Tel. (845) 357-6800                                               James Sexton, Esq.,
COPYRIGHTS                                     Fax: ( 845) 357-4616
                                                                                                           Is pleased to announce that
                                      E-Mail: Mike@Zall-Law.com
                                                                                                         Daniel G. Walsh, Esq.
            MOVIN’ IN, OUT & UP                                                                                    &
                    Eric Ole Thorsen, Esq.,                                                              Peter L. Jameson, Esq.
                                &                                                                 Have become associated with the firm.
                  Kathryn Berit Thorsen, Esq.,
                    Has moved their office to
                     5 South Little Tor Road
                   New City, New York 10956                                                      Need a Place to Meet in New City?
            Tel# (845) 638-2726 Fax# (845) 638-1125
                                &
                    Laurie Dorsainvil, Esq.,                                                     RCBA Conference Rooms Available for Rent
                         Has relocated to
              407 North Highland Ave (Route 9W)                                                   First Two Hours free for members of RCBA
                    Upper Nyack, NY 10960
                                                                                                               Member Prices
            Tel# (845) 358-9700 Fax# (845) 358-9707
                                        &                                                                 $60 half day/ $120 full day
                     Mark S. Swartz, Esq.,                                                                  Non – Member Prices
                         Has relocated to                                                                 $75 half day/ $135 full day
                  20 Squadron Blvd – Suite 101                                                    ** Please call (845) 634-2149 in advance for rental**
                          P.O. Box 825
                      New City, NY 10956
            Tel# (845) 634-4673 Fax# (845) 634-4670                                            The CLE Committee would like to thank all of
                                                                                                the moderators, speakers and attendees who
                                                                                                 supported our Continuing Legal Education
                                                                                                    Seminars this season. We look forward
                             ADVERTISING                                                          to seeing you and some new faces when we
    If you wish your ad to run again next month, call the Association @
 (845) 634-2149 BEFORE the printing deadline of the 18th of the month. I                                     resume in September.
we do not hear from you we will assume you have rented the space or found                                DO YOU HAVE CREDITS?
                               employment.

    Rockland County Bar Association, 337 North Main Street, Suite 1, New City, NY 10956. Ph. (845) 634-2149 Fax. (845) 634-1055, E-Mail www.office@rocklandbar.org
                                                                                                                                                                     5
                                                                                                       FOR YOUR INFORMATION

                                                                                                         Calendar of Bar Events

                                                                                                                Thursday, June 15, 2006
                                                                                                                     CLE Meeting
                                                                                                                      5:30 p.m. @
                                                                                                                 Bar Association Office

                                                                                                               Monday, June 26, 2006
                              June 6, 2006                                                                  Grievance Committee Meeting
                CLE: Nursing Home Litigation &                                                                       7:00 p.m. @
              Assisted Living Reform Act (ALRA)                                                                 Bar Association Office
                     Time: 6:00 p.m– 9:00 p.m.
               Level: Transitional/Non-Transitional                                                      Monday, June 26, 2006
           Place: BOCES, Instructional Services Bldg                                        Insurance, Negligence & Compensation Committee
           Credits: 3 (2.5 Professional Practice; .5 Ethics)                                                     Meeting
                                                                                                               5:30 p.m. @
                             June 14, 2006                                                               Bar Association Office
       CLE: Practical Explanation of Tax Deferred Sales
           of Business Property Under IRC § 1031
                 Time: 12:00 p.m– 2:00 p.m.
        Registration and lunch orders will start @ 11:30 a.m.                             GRIEVANCE
                Level: Transitional/Non-Transitional
            Place: LaTerrazza, 291 Main St, New City
                                                                                          DISCIPLINARY LAW
           Credits: 2 (1.5 Professional Practice; .5 Ethics)                              (914) 682-0037

                                                                                                             RICHARD E. GRAYSON
                  Watch the mail for your                                                                     ATTORNEY AT LAW
                     CLE Brochure!
         **Kosher Meals are dependant on the delivery service                                              175 MAIN STREET, SUITE 307
         available from the caterer. All kosher meals must be                                             WHITE PLAINS, NEW YORK 10601
          ordered in advance and require an extra charge of
         $10.00. Call the Association and place an order for a                                                 www.richardgraysonesq.com
         kosher meal. Please give us at least one weeks notice.

               Credit is not given for partial attendance.
       Make sure your blue evaluation forms are completed and
       turned in to CLE Coordinator to receive your certificate.
                                                                                                             Make A Motion For Help
                                                                                            It’s not easy to admit there is a problem. It’s even
                   Prices for the above Seminars:                                          harder when you think no one notices. But they do.
                 Cost: $75.00 Members of RCBA;                                             Asking for help could be difficult. Knowing there is
              $95.00 Non-Members; $85.00 Walk-Ins                                         help available makes it a little easier. Understanding
                  $30.00 Students and Paralegals                                            the unique needs of our colleagues is crucial that’s
                                                                                                           why we’re here for you.
                                                                                                                  Contact us:
                                                                                                     LAWYERS HELPING LAWYERS
                                                                                                        Ben Selig, Esq., (845) 942-2222
                                                                                                       Barry Sturtz, Esq., (845) 369-3000
                                                                                                     Paul Goldhamer, Esq., (845) 356-2570



    Rockland County Bar Association, 337 North Main Street, Suite 1, New City, NY 10956. Ph. (845) 634-2149 Fax. (845) 634-1055, E-Mail www.office@rocklandbar.org
6
                                     COLLABRATIVE LAW: A NEW WAY OF DIVORCING
                                                    Submitted by Marilyn Davis, Esq.
                                                    Co-Chair Family Law Committee
Discontent with the litigation model of divorce has spurred the development of a smarter, cheaper, gentler mode of severing the ties
that bind. Collaborative Law is the name and a less adversarial approach is the game. The goal is to complete a divorce, plan for the
welfare of the children and the parties, and divide the assets and debt in a respectful and dignified framework.

The old “My lawyer can beat up your lawyer!” way of thinking is passé. The role of the lawyer as guide, mentor and font of legal
information supplants the High Noon, shootum-up way of divorcing. There are no contentious court proceedings. In its place are
planned meetings, open discovery, attorneys and clients bound to deal honestly and transparently and thoughtfully plan for the future.

Couples are self selecting for this process. They have heard or read about the concept or are introduced to the possibility by their
lawyers. Usually they have spoken to one another about proceeding Collaboratively, have chosen attorneys trained in the theories and
methods of this form of dispute resolution and are willing to discuss possibilities and plan intelligently. Spouses agree in advance not
to litigate and they actually enter in to a written agreement prohibiting them from going forward with their hired lawyers if the
negotiations break down and they choose to litigate in Court. In that event both attorneys are required to resign from the case.

The cost of Collaborative Law is remarkably less expensive not only in dollars but in aggravation, stress, punitive behavior, court time
and emotional upheaval. Children are beneficiaries of the non-combative atmosphere and parents also reap the rewards of
maintaining civility and respect toward one another. The Collaborative divorce fosters a willingness to listen, to think and to consider
other perspectives. The conclusion is a divorce that meets the needs of the entire family and leaves intact an ability to communicate
and plan further for the future. For more information go to the Association of Collaborative Law of Rockland-Westchester at the
following address: www.collaborativelaw-ny.org.




    Rockland County Bar Association, 337 North Main Street, Suite 1, New City, NY 10956. Ph. (845) 634-2149 Fax. (845) 634-1055, E-Mail www.office@rocklandbar.org
                                                                                                                                                                     7
                                                     An Introduction to Digital Documentation

    OCR, Digital Filing, Document Management, Documents Imaging, PDFs, ADF Scanners…

    What do all these terms mean? How can they be used to make my practice run more efficiently and cut back on
    administrative overhead?

    In the next few articles, I’d like to focus on the advances in technology (and affordability) in the area of digital
    documentation. The term often bandied about to describe this phenomena is “The Paperless Office”. Others
    refer to it as digital scanning & imaging or simply “Document Management”, which while not synonymous, is
    certainly related.

    While the concept of the “paperless office” is not new & has been around for a quite some time, most
    professionals (attorney’s included) simply find it to be an overwhelming & daunting challenge to implement.
                                                                    RC
    Firstly, there is the lack of knowledge of the processes involved; then there is the perceived unsuitability of
    digital documents to annotating and filing. Certainly, there is the concern that digital files do not carry the same
    weight in a court of law as originals. Finally there is the valid concern that digital files are more susceptible to
    corruption and accidental loss. You can’t compare the sense of security to when you are holding a hard-copy
    piece of paper in your hand.

    As we explore this topic, it is important to emphasize that this is not an all or nothing objective. It is conducive
    to view this subject as a process that can be developed and enhanced over time, more than an absolute goal to
    go totally paperless. While much of this discussion may be familiar to you already, we will try to provide a
    comprehensive presentation of this topic that will cover many facets that might not always be intuitive.

    What are the benefits of replacing some of you paper documentation processes with digital files?

    There is the obvious benefit of not having to stuff scores of file cabinets and even leased storage facilities with
    data, for the retention periods that are required by legal mandates & personal preference. You can also
    effortlessly purge aged documents that are past their retention period, to prevent them from becoming a
    potential liability to you.

    Another attractive feature is the ability to electronically generate statements, or other time sensitive documents
    to be instantaneously delivered to a client or associate’s email box. Or the ability to generate PDF files from
    Microsoft Office or Word Perfect documents for clients without access to these programs. Or think about how
    much time you can save by being able to scan a large document into a high-volume scanner, and having it
    converted to a Word or Word Perfect, instead of having to manually transcribe it. For that matter, you can now
    have your computer instantly search for text or keywords throughout the document.

    However, the biggest advantage (IMHO) is the ease with which you can effortlessly & effectively retrieve data
    from client matters that have already been filed and placed into long-term storage. Everything is neatly
    organized and accessible with a few keystrokes. Besides being able to simply search by file names or metadata
    (more about that later) that have been logically assigned, you can also use OCR to convert the paper into fully
    searchable text. You can then use a professional search engines to immediately search for specific keywords
    found within documents.

    Again, all of this is not new. In the next article we will explore some of the technologies that come together to
    make this work. A workgroup scanner (attached to a dedicated scan station) and Adobe Acrobat will go along
    way in getting you started at a nominal cost.

    This article has been submitted by Isaac Steinfeld, MCSE, of Rockland Computer Specialists. He is available to
    respond to any questions relating to this article or other technology related matters. Isaac can be reached at 845
    367-1441 or at rocklandcs@hotmail.com. Suggestions for future articles are always welcome.

    Rockland County Bar Association, 337 North Main Street, Suite 1, New City, NY 10956. Ph. (845) 634-2149 Fax. (845) 634-1055, E-Mail www.office@rocklandbar.org
8
    Illegal Immigrants Injured On The Job Are Entitled to Labor Law Protections, Including Recovery for Lost Wages.
                                                     By Itamar J. Yeger, Esq.1
          May an illegal immigrant recover under New York’s Labor Laws for personal injuries sustained at a jobsite? The Court
of Appeals answered “yes” in Balbuena v. IDR Realty LLC.2 The decision resolves a conflict among the Appellate Divisions,
where the First Department disallowed such recoveries and the Second Department allowed them. The facts are similar in the two
cases the Court of Appeals reviewed - undocumented aliens working at jobs sites were injured and sued in tort under Labor Law
§§ 240, 241 and common law negligence for various damages including past and future lost wages.3 As the Court of Appeals
acknowledged, the answer turns upon the scope of a related United States Supreme Court decision, Hoffman Plastic Compounds,
Inc. v. N.L.R.B.4
          The Court of Appeals, in the decision by Judge Graffeo, tackled case law interpretation and the interplay between Federal
and New York law, as well as preemption principles.5 Judge Graffeo began by charting the history of federal laws relating to
undocumented aliens.6 After years of declining to address the issue of illegal immigrants working in the United States, Congress
passed the Immigration Reform and Control Act of 1986 (“IRCA”).7 The Act provided for a system of employment verification to
discourage illegal immigrants from seeking employment in the United States and provided for civil and criminal penalties against
the employer and the undocumented alien for violations. It specifically criminalized the providing of fraudulent documents by an
illegal immigrant to a potential employer.8
          The Balbuena Court then addressed the United States Supreme Court’s Hoffman decision.9 The Supreme Court was
called upon to decide whether undocumented aliens who violated the Act could recover when an employer committed an unfair
labor practice under federal labor laws. An illegal immigrant who provided false documentation in order to obtain employment
was fired when he tried to organize workers at the plant where he worked.10 The Supreme Court ruled in Hoffman that the illegal
alien could not recover back pay even though the employer violated the Nation Labor Relations Act (“NLRA”) because to allow
such recovery “trivializes the immigration laws[, and] condones and encourages future violations.”11
          In Balbuena, the defendants, some of whom were not direct employers but merely the owners of the properties where the
torts occurred, made two related arguments. First, that the IRCA prevented recovery because state personal injury and Labor Law
claims amount to a penalty on the employer and are unlawful pursuant to the IRCA. Second, that the Federal regulatory scheme
with regard to employer-employee relations preempts state action and allowing such recovery would contravene the IRCA’s
policy underpinnings.12 In response, the plaintiffs and the New York Attorney General as intervenor argued that shielding
employers from paying undocumented aliens for Labor Law violations would have the opposite effect of that intended by
Congress and the IRCA by making it cheaper (from both salary and liability perspectives) to hire illegal aliens, and that state
action preventing such an outcome is therefore not preempted.13
          The Balbuena Court began its analysis with a short treatise on various preemption doctrines, discarding each as a basis to
prevent personal injury recovery under New York law. It quickly rejected express preemption and the first type of implied
preemption, known as field preemption, as bases for disallowing personal injury recovery to illegal immigrants.14
          The balance of the majority opinion resolves the difficult question of conflict preemption. This occurs when a lesser
municipality’s laws, as applied, conflict with the superior municipality’s laws.15 The opinion recognizes that the Supreme Court’s


1
  Mr. Yeger is a research and writing consultant specializing in complex motion and appellate practice. He can be reached at (845)
721-8833 and via email at ttomy@aol.com.
2
  2006 N.Y. Slip Op. 1248 (N.Y. February 21, 2006).
3
  Id. at *2-4.
4
  535 U.S. 137, 122S.Ct. 1275 (2002).
5
  There is a presumption against preemption. Id. at *13-14
6
  Balbuena at *4-7.
7
  8 U.S.C. §§ 1324a et seq.
8
  8 U.S.C. §§ 1324c (a).
9
  Balbuena at *7.
10
   Hoffman.
11
   Id, 535 U.S. at 150-51.
12
   Balbuena at *7.
13
   Id. at *7-8.
14
   Id. at *8-9. Express preemption exists when a statute passed by a greater municipality, in this case the Federal Government,
acted pursuant to its Constitutional Authority, forbids by statute lesser municipalities, here the State of New York, from legislating
on the subject matter. Field preemption exists when greater municipality legislates so intensively in an area that a lesser
municipality is foreclosed from legislating even though the precise proposed legislation does not exist in the greater municipality’s
statutory scheme.
15
   Id. at *9-14.

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 Hoffman decision has generated great debate as to its scope.16 The Balbuena Court notes that even Hoffman recognizes a state’s
 right to protect workers via legislation, and that the Labor Law schemes, including the statutes at issue in this case, promoted a
 policy to protect workers by making the employer responsible for worker safety.17
            Further, limiting an illegal alien’s ability to recover in tort for lost wages is poor policy, and the IRCA’s legislative
 history specifically distances its reach from that result, at least in the context of labor tort protections.18 Any other result would
 reward employers who could deliberately hire undocumented aliens knowing that they would not be afforded labor law
 protections. This would contravene the IRCA’s intent and result in increase employment opportunities for illegal aliens.19
            The Balbuena majority opinion takes great pains to distinguish the Supreme Court’s Hoffman decision on the basis that
 the illegal worker there tendered fraudulent documents, while there was no allegation in the Balbuena cases that the illegal
 immigrants seeking personal injuries recoveries ever presented false documentation.20 Further, the injured persons’ status as
 illegal aliens does not foreclose recovery because their injuries, and even their employment, cannot be directly tied to their illegal
 status, given that the work they were performing was lawful.21 The Court of Appeals majority therefore allowed the plaintiffs to
 pursue their negligence and Labor Law claims.
            The Balbuena dissent by Judge R.S. Smith (joined by Judge Read) would have disallowed recovery under two theories.
 Under New York law, recovery should be barred because the claim was the result “of an illegal transaction.”22 At bottom, the
 employment relationships between the plaintiffs and the defendants were unlawful because they violated the Federal IRCA.23 The
 courts should not act to benefit either side of an illegal transaction because “courts show insufficient respect for themselves and
 for the law when they help a party to benefit from illegal activity.”24 While the plaintiffs were not seeking to enforce any actual
 contract, their claims did arise from their illegal contracts, namely, their employment that violated Federal law, and their claims
 were not based upon quantum meruit.25
            The Balbuena dissent also takes issue with the majority’s proposed mitigation scheme because it makes the courts
 complicit in promoting illegality by allowing a jury to award less or more damages based on a particular illegal immigrant’s
 ability to work while avoiding detection by Federal authorities.26 Thus, the better course would be to disallow recovery in tort.
            Further, even if New York law did not bar recovery, the Supreme Court’s Hoffman decision did.27 The majority
 unjustifiably limited Hoffman’s scope by demanding that an undocumented alien must commit a crime related to the employment
 before wage or tort recovery would be barred.28 The Balbuena dissent would disallow recovery based upon this Supreme Court
 precedent.
            This case could yet be appealed to the Supreme Court. Until then, at least under New York law, hiring illegal aliens does
 not shield an employer from tort suits.




 16
    Id. at *9 and n.5.
 17
    Id. at *10.
 18
    Id. at *10-11. This is apparently in contrast to Hoffman’s holding that wage statutes do not protect illegal aliens. But see Id. at
 *10 n.5 (citing case law demonstrating that workers compensation statutes may apply to those illegally in a state).
 19
    Id. at *11.
 20
    Id. at *12.
 21
    Id. at *12-13. The Court did allow, for mitigation purposes only, for the jury to consider the plaintiffs’ status as illegal aliens.
 Id. at *13.
 22
    Balbuena v. IDR Realty LLC, 2006 N.Y. Slip Op. 1248 at *14-19 (R.S. Smith, J., dissenting).
 23
    Id. at * 14.
 24
    Id. at * 15-16.
 25
    Id. at * 16-17. The doctrine of quantum meruit means “‘imposed by law for the purpose of bringing about justice without
 reference to the intention of the parties,’” Rand Products Co., Inc. v. Mintz, 72 Misc.2d 621, 622 (App. Term, 1st Dep’t 1973)
 (quoting 1 Williston, Contracts, 3rd ed., Section 3A, p.13). In this context, the doctrine would allow wage recovery for work
 performed but not paid due to the illegal immigrants’ status.
 26
    Id. at 17.
 27
    Id.
 28
    Id. at 18-9

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