Expatriate Owl

A politically-incorrect perspective that does not necessarily tow the party line, on various matters including but not limited to taxation, academia, government and religion.

Wednesday, September 10, 2008

I Needed This Number to Work There

The 19 July 2007 posting discusses the case of Gomez v. F & T Int'l (Flushing, NY) LLC, 2007 NY Slip Op 27269, 2007 N.Y. Misc. LEXIS 4646, 16 Misc. 3d 867; 842 N.Y.S.2d 298 (Sup. Ct. N.Y. Co. 2007). In Gomez, you will recall, Justice Acosta nixed a former employer's motion for discovery of an injured former employee's income tax returns and immigration status because the ex-employer paid the ex-employee off the books and made no attempt to comply with the Immigration Reform and Control Act of 1986 ("IRCA") provisions requiring verification of the employee's eligibility to work in the United States. I applauded Judge Acosta's decision because it sends the signal to employers that they, too, must do their part if this tide of illegal aliens is to be reversed.

But what if the employer makes a colorable attempt to comply with IRCA, but the employee is an illegal who submits forged and fraudulent documents and credentials?

Justice Acosta's sister jurista on the New York County Supreme Court bench, Carol Robinson Edmead, was confronted with just such a fact pattern in Macedo v J.D. Posillico, Inc., 2008 NY Slip Op 51787(U), N.Y.L.J., 8 September 2008, p. 18, col. 1 (Sup. Ct. N.Y. Co. 2008).

[Disclosure: Before she ascended to the bench, Carol provided me some much appreciated assistance and facilitation in obtaining a major professional career credential.].

Some of the dialogue from Macedo is quite telling:

Q. What is your social security number?
A. 189—- I don't have the social number. I use this number to work.
* * *

Q. Is this a number that was given to you by immigration for the purposes of filing taxes?
A. No.

Q. What is the purpose of the number you just provided?
A. At my work, a person gave me this number because I needed this number to work there.

* * *

Q. Who gave you this number?
A. In 95, somebody with whom you work, I think his name was Miguel.

* * *

Q. You also have a tax identification number?
A. Yes.

Q. What is your tax identification number?
A. I don't know it by heart. It's probably in my files.

Q. When was the last time you saw your tax identification number?
A. I just use it when I have to file taxes.

Justice Edmead ruled that "plaintiff's violation of IRCA, by producing a false social security number in order to obtain employment, bars his claim for lost wages." This decision is also to be applauded.

I only hope that Justice Edmead's Macedo decision is not overturned on appeal. Even the best of trial court judges are occasionally overruled, and Carol Edmead is no exception. Specifically, in Barry & Sons, Inc. v. Instinct Productions, LLC, 5 Misc. 3d 172, 783 N.Y.S.2d 225, 2004 NY Slip Op 24261 (Sup. Ct. N.Y. Co. 2004), Justice Edmead presided over litigation in connection with the death in a Bahamas airplane crash on 25 August 2001 of singer, actress and teen entertainment icon Aaliyah. The family corporation that was Aaliyah's business promotion agent alleged that Aaliyah was Blackground's principal artist and its principal asset. Justice Edmead allowed the claim for negligence in destroying the asset to go forward. The Appellate Division, however, disagreed:

"The concept that a person is a property asset of another is, of course, abhorrent to modern day thinking. Courts almost universally reject the antiquated proprietary view of the master/servant relationship."

Barry & Sons, Inc. v. Instinct Productions, LLC, 15 A.D.3d 62, 69, 788 N.Y.S.2d 71, 76, 2005 NY Slip Op 00096 (1st Dept. 2005).

Justice Carol Robinson Edmead happens to be an African-American. What kind of flak would have been flying if a white judge had authored the same trial court decision?

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