Can an Undocumented Immigrant File a Personal Injury Lawsuit in New York?

One of the most common reasons injured people in New York never call a lawyer has nothing to do with their case. They are worried that asking about their rights will draw attention to their immigration status. That fear is understandable, and it is also the reason a great many valid claims quietly go away.

New York law is clearer on this point than most people expect.

Immigration Status Does Not Bar a Personal Injury Claim in New York

New York courts are open to injured people regardless of immigration status. A person who is undocumented can file a personal injury lawsuit, can pursue a claim for a construction site injury, a car accident or a fall on someone else’s property, and can seek the same categories of damages as anyone else, including medical expenses, pain and suffering and lost earnings.

This is not an argument or an interpretation. It is settled New York law. In Balbuena v. IDR Realty LLC, decided by the New York Court of Appeals in 2006, the state’s highest court held that undocumented workers may recover lost earnings in a personal injury action based on New York Labor Law violations. The case arose from construction site injuries and involved Labor Law sections 200, 240(1) and 241(6), the same provisions that protect any construction worker in the state.

The defendants argued that federal immigration law, specifically the Immigration Reform and Control Act, should block that recovery. The Court of Appeals rejected the argument. It found that federal law does not preempt New York from allowing an injured worker to recover, and it observed that working without documentation is not itself a federal crime. Allowing recovery, the court reasoned, supports rather than undermines the purposes of the federal statute, because a rule that made undocumented workers cheaper to injure would give employers an incentive to hire them and cut corners on safety.

The One Distinction the Court Drew

The court did draw a line, and it is worth understanding accurately rather than in rumor form.

The decision distinguished an earlier federal case, Hoffman Plastic Compounds, in which the worker had criminally submitted false work documents to obtain the job. In Balbuena, there was no allegation that the plaintiffs had produced false work papers, and that distinction mattered to the outcome. Where false documents were tendered to get hired, the analysis of a lost earnings claim can be different.

That nuance affects one category of damages. It does not change the basic point that an injured person can bring the claim, and it does not affect medical expenses or pain and suffering. Anyone whose situation involves this issue should discuss it candidly with an attorney rather than assume the worst, because the specific facts drive the answer.

Labor Law Protections Apply on the Job Site

New York’s construction protections are among the strongest in the country, and they are written around the work, not around the worker’s paperwork.

• Section 240(1), the Scaffold Law, covers elevation related hazards such as falls from scaffolds, ladders and roofs, and injuries from falling objects. Owners and general contractors can be held responsible even when they were not personally careless.
• Section 241(6) ties responsibility to violations of specific New York Industrial Code rules covering matters like fall protection, trench safety and debris removal.
• Section 200 reflects the general duty to provide a reasonably safe place to work.

Workers’ compensation is also generally available to injured workers in New York without regard to immigration status. It covers authorized medical treatment and a portion of lost wages, and it is normally the only claim available against your own employer. A separate claim against a property owner, a general contractor, another subcontractor or an equipment manufacturer can cover what workers’ compensation does not, including pain and suffering.

What About Being Asked About Immigration Status in the Case?

This is usually the real question behind the first one. Defendants sometimes try to raise immigration status in litigation, and New York courts have long been alert to the fact that doing so can be used to intimidate rather than to prove anything relevant. Courts have authority under the Civil Practice Law and Rules to limit or condition discovery that is being used to harass, and requests aimed at a plaintiff’s immigration status are frequently contested on exactly that basis. How it is handled depends on the case and on what damages are actually in dispute, and it is something to raise with an attorney early rather than to worry about alone.

Practical Steps After an Injury

• Report the accident in writing. On a job site, written notice to your employer creates a dated record. New York generally requires notice to the employer within 30 days for workers’ compensation purposes.
• Get medical attention promptly. Delay is the first thing used to argue an injury was not serious or came from somewhere else.
• Photograph everything. The scene, the equipment, the condition that caused the fall and your injuries. Job sites change within days.
• Keep documents. Accident reports, medical records, pay records and anything an insurer sends you.
• Do not give a recorded statement to another party’s insurance company before speaking with an attorney.
• Watch the deadlines. Most New York injury lawsuits must be started within three years. If a city agency or other public entity may be responsible, a written Notice of Claim is generally required within 90 days.

Getting Advice Without Committing to Anything

A first conversation with a lawyer is a conversation, not a filing. At Caesar & Napoli consultations are free, most personal injury cases are handled on a no-win, no-fee basis, and the firm works in English and Russian. If you were hurt on a construction site, in a motor vehicle accident, or through a workplace injury, you can contact the firm or call (888) 235-6766 to talk it through.

This article is general information about New York law and is not legal advice. How these rules apply depends on the facts of an individual case.

Image note: photographs accompanying our blog articles are illustrative and digitally created. They do not depict actual clients, actual attorneys of this firm, or actual events.