When Jashar Maliqi, 43, left Kosovo and entered the United States in 2003 via Canada, he possessed no valid documents authorizing him to be in this country. In other words, he was here illegally. And he was here to seek political asylum.
Immigration proceedings eventually began. They continued as he brought a personal injury case resulting from an accident he suffered while employed as a painter at 17 East 89th St. in Manhattan. Maliqi claimed a large mail cart was negligently handled by a building porter and fell on him causing serious back and neck injuries requiring major cervical surgery.
As Maliqi pursued his claim, the immigration case and the personal injury suit became intertwined. According to plaintiff's lawyer, the immigration issue became the focus of the civil case with defendants referring unfavorably to Maliqi's name and making references to Sept. 11, 2001.
Justice Dominic Massaro of New York State Supreme Court in the Bronx, described the case of Maliqi v 17 East 89th Street Tenants In., as having "a backdrop of political intrigue" which formed the basis of his federal application for asylum. During the war following the dissolution of the former Yugoslavia, according to court records, Maliqi, an ethnic Albanian, was arrested, threatened and beaten by Serbs. Eventually forced from Kosovo, Maliqi relocated temporarily to Albania. His father, who remained in Kosovo, was killed. Maliqi then returned to Kosovo under the protection of NATO but was again persecuted because of his political activities. He fled to the United States.
Although Kosovo eventually became an independent nation, under the Albanian majority factionalism is rampant, according to Brooklyn Justice Gustin Reichbach who served as a judge in Kosovo under the auspices of the United Nations.
Injured and Undocumented
The issue of worker lawsuits claiming future damages had not before been raised in the context of political asylum. The question of whether juries could award future lost wages to injured, but undocumented, workers had previously been settled in 2006 by the state's highest court, the Court of Appeals in Balbuena v. IDR Realty LLC. In that case, intermediate appellate courts had come to opposite conclusions, with the one in Manhattan ruling undocumented workers could not be compensated for future wages lost, while the Brooklyn court ruled they could. The highest court agreed with theBrooklyn ruling.
"The primary purpose of civil recovery in a personal injury action . . . is to compensate the worker for injuries proximately caused by negligence or the violation of statutory safety standards," the court said.
The defendants in Balbuena had argued that an award of past and future wages to an undocumented alien worker expressly conflicts with federal immigration law and implicitly undermines the objectives that Congress sought to achieve when it adopted the nation's current immigration policies.
The top court rejected that theory saying, "New York's Labor Law applies to all workers in qualifying employment situations, regardless of immigration status. Limiting a lost wages claim by an injured undocumented alien would lessen an employer's incentive to comply with the Labor Law and supply all of its workers the safe workplace, the legislature demands. ... Precluding lost earnings damages for undocumented workers would undermine the State of New York's critical interest in promoting safety for all workers."
Since that decision, the law in this state is that undocumented workers are entitled to compensation for workplace injuries. In Maliqi's case, the defendant building owners argued that plaintiff's injuries were pre-existing and were not caused by them. They did not want jurors to hear evidence of the plaintiff's projected future lost wages and medical expenses. They argued that, if Maliqi's asylum petition was ultimately denied and he was deported to Kosovo, he would not have access to the lost income or the expense of costly medical bills he would have had in this country. On the other hand, the plaintiff did not want evidence before the jury implying that he was here illegally or working illegally.
The Judge's Instructions
Massaro concluded that under existing immigration law while his asylum plea was active, the plaintiff was legally present in the U.S. and legally employed. He invoked Homeland Security regulations that permit asylum seekers to work while their applications are pending, "to alleviate financial hardship." Massaro determined, "Under no circumstances may defendant assert that plaintiff was working illegally at the time of the accident."
The defendants also were barred from arguing that Maliqi's status prevented the jury from awarding future damages. But, at the same time, the jury was instructed that plaintiff's immigration status is not illegal, they also were told that it is nevertheless relevant.
Massaro did allow the jury to consider what economic effects the injury would have on Maliqi if he returned to Kosovo -- if his asylum petition is denied and he is deported. The court instructed the jury that immigration status was relevant in the sense that the jury could consider "the economic realities if plaintiff is ultimately not permitted to remain in the U.S." So, for example, the jury was allowed to "consider the effect on plaintiff's wage earning ability and required medical costs in the event he is required to return to his homeland."
The jury then would be expected to consider whether Maliqi would be returning to his home country. Apparently they concluded that he would be denied political asylum here and would be deported because they reached a verdict in his favor, but awarded damages only for the past and not the future, giving him $1.68 million with no future damages.
The defendant's counsel, Patrick J. Crowe of Crowe & Fassberg called the award "excessive" and has asked the judge to reduce it. According to Crowe, awarding no future damages was a proper result even though he conceded that Maliqi "will not be able to do painting or heavy lifting again" and does not have language skills for more sedentary jobs.
Plaintiff's counsel, Albert Dauti, of The Dauti Law Firm, said that, even if the jury believed that Maliqi would be leaving this country and so rejected the future wage claims, they should have made an award for future pain and suffering, because "he will be in pain wherever he is."
Emily Jane Goodman is a New York State Supreme Court Justice