Alvarez v. Sanchez

Order unanimously affirmed, with costs. Memorandum: Plaintiff, a Mexican national, commenced this action against defendants Bonifacio and *1115Tomasa Sanchez for underpayment and nonpayment of wages under the Fair Labor Standards Act (US Code, tit 29, § 201 et seq.) In her complaint plaintiff claimed that Bonifacio Sanchez requested that she travel from Mexico to Brockport, New York to accept a position in his home as a domestic service employee. Plaintiff further alleged that she worked for defendants from September 15,1980 to June 22,1981, during which she received wages below the statutory minimum and, at times, no wages at all. Defendants deny that plaintiff was employed by them and interpose an affirmative defense contending that plaintiff is an illegal alien and therefore has no right to recover for the work allegedly performed.

Special Term properly dismissed defendants’ affirmative defense and paragraph 7 of defendants’ demand for a verified bill of particulars, seeking plaintiff’s citizenship status. Illegal aliens are entitled to maintain civil actions in our courts (Nizamuddowlah v Bengal Cabaret, 69 AD2d 875, mot for lv to app dsmd 48 NY2d 883; Catalanotto v Palazzolo, 46 Misc 2d 381). Since the Federal Labor Standards Act does not define the term “employee” to expressly exclude illegal aliens, plaintiff’s status does not preclude her from recovering under the statute (see Sure-Tan, Inc. v National Labor Relations Bd., 467 US _, 104 S Ct 2803; Nizamuddowlah v Bengal Cabaret, supra). (Appeal from order of Supreme Court, Monroe County, Patlow, J. — dismiss affirmative defense.) Present — Callahan, J. P., Doerr, Denman, Boomer and O’Donnell, JJ.