By JOSEPH G. LARIOSA

(Journal Group Link International)

C HICAGO (JGLi) – If a party breaks a contract, the non-breaking party may be excused from further enforcing the terms of the contract if the breach is so substantial that it defeats the parties’ objective in the contract.

With this ruling, New York Supreme Court Judge Stephen A. Bucaria did not let the 27 Filipino nurses plus and a physical therapist pay the $25,000 “liquidated damages” that they were supposed to pay their employers for not complying with the provisions of the contract as Bucaria denied the plaintiffs’ (Sentosa Care, LLC’s, et al) motion for summary judgment.

The companion cross motions by two different groups of defendant nurses to dismiss the amended complaint were also denied.

Among the alleged violations of the nurses was leaving their jobs without completing the three-year contract of employment because they charged their employers, led by Sentosa Care, LLC, had committed “multiple breaches of contract.”

In New York, the Supreme Court is a trial court; the Court of Appeals is the state’s highest court.

Among the alleged violations of their employer is the failure to pay them the following: “proper night shift differentials;” “all hours worked;” “promised dental insurance;” and promised malpractice insurance;” and failure to “provide them sick days, vacation days, personal days;” “adequate training;” and “reduction in hours of work depriving nurses of benefits of higher hourly wage.”

Judge Bucaria, however, observed, “neither the employers, nor the nurses, have met their respective burdens.” He said in this “'battle of the breaches,' the parties have submitted conflicting affidavits and arguments to cast their adversary in the role of the primary-contract offender.”

Each party will now have to take each other to a full-blown court trial if they want to get a summary judgment in their favor.

CO-ACCUSED LAWYER ALSO WINS

At the same time, Judge Bucaria also granted the motion of Atty. Felix Vinluan to dismiss the amended complaint for “tortuous interference with contract claims” filed by the nurses’ employers, saying that Vinluan’s “constitutional right to provide legal advice to his clients (nurses) is within the bounds of the law.”

The ruling pointed out, “regardless of whether Vinluan’s legal assessment was accurate, it is objectively reasonable. We cannot conclude that an attorney, who advises a client to take an action that he or she, in good faith, believes to be legal, loses the protection of the First Amendment if his or her advice is later determined to be incorrect.”

Atty. Vinluan and a group of ten nurses were prosecuted in criminal court based on the attorney’s advice to the nurses to resign  simultaneously from the nursing home where they were employed.

Twenty-seven nurses originally filed a complaint against Sentosa Care. The number of complainants rose to 38.

SENTOSA FACES CLASS ACTION SUIT

In his comment, Atty. Vinluan said, this “decision totally vindicates me. I merely advised the nurses back in 2006 what their legal rights were. Sentosa, of course, gratuitously asserted, without any basis, that I advised the nurses to resign. Sentosa argued that I allegedly masterminded their resignations.

“But if these were a chess game, I would characterize the decision as follows: Sentosa – drew one; lost one: Nurses – held to a draw; Vinluan – clear winner.”

Atty. Vinluan also said, “I can now freely represent the nurses in this case.  There will be no more conflict of interest insofar as that issue is concerned.  I would certainly love to be one of the lawyers representing the nurses during trial.

“It also means that I may be filing malicious prosecution case again (NB:  this will be the second one, if ever, since I filed one after the criminal cases against me were dismissed last year) against Sentosa, Philipson and company.  I still have to discuss this with my own lawyers.

“As to other Filipino immigrant workers who paid Sentosa the $25,000 liquidated damages, which is actually a penalty, I would like to ask them to come out and discuss with me and our lawyers.  They may have a case against Sentosa for human trafficking, involuntary servitude, and unjust enrichment, among other possible causes of action.  They may call me at 212-643-2692 for confidential consultations.”

Atty. Vinluan also made an appeal to the new Philippine government, “Please put in place a monitoring system whereby all those contracts that pass the POEA are actually followed to the letter by the foreign employers.”

Rico Foz, executive vice president of the New York city-based National Alliance for Filipino Concerns (NAFCON), congratulated the health workers and Atty. Vinluan for their respective victories as he calls the foreign-educated nurses (FENs), regardless of nationality or former employers, who paid these onerous pre-termination penalties, to contact Atty. Vinluan for possible class action suit against their unscrupulous recruiters/employers and totally end this illegal practice.

 (lariosa_jos@sbcglobal.net) # # #