A New York Court Binds a Ukrainian Employee, Who Does Not Read or Speak English, to a Liability Release Contract Written in English
Employers are often required to provide foreign employees with a certified translation of contracts written in English. For example, employers may be required to provide translations to foreign employees to enforce arbitration agreements. See, e,g., Dimas v. Costco Wholesale Corporation, No. 2:21-cv-02006-TLN-JDP (Apr. 18, 2023). And it is most often the case that documents submitted to court that are written in a foreign language must be translated into English. In fact, some states statutorily require the certification of translated documents submitted as evidence. For example, California requires that “[i]f [a] will is in a foreign language, the petitioner shall attach an English language translation. On admission of the will to probate, the court shall certify to a correct translation into English, and the certified translation shall be filed with the will.” Cal. Prob. Code § 8002(b)(2). Likewise, in New York, Civil Practice Law and Rule 2101(b) provides:
Each paper served or filed shall be in the English language which, where practicable, shall be of ordinary usage. Where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate.
Despite these requirements, however, a New York appellate court ruled that a defendant company could enforce a release of liability agreement, written in English, against an injured employee who could not read or speak the English language.
An Injured Ukrainian Employee Files Suit to Recover Damages
Roman Ivasyuk (hereinafter “Ivasyuk”) was a Ukranian worker employed at Elmar Universal Electrical Systems Corp. (hereinafter “Elmar”) in the United States. Ivasyuk v. Raglan, 197 A.D.3d 635, 153 N.Y.S.3d 110, 2021 N.Y. Slip Op. 04706 (2021). While performing work at a renovated property owned by the defendant, Daniel Raglan (hereinafter “Raglan”), Ivasyuk was attempting to install some overhead wires when he fell from a six-foot A-frame ladder and was injured.
Ivasyuk commenced an action against Raglan and other defendants, including M&I Construction & Renovation, Inc. (hereinafter “M&I”), and asserted causes of action for violations of various labor laws and common law negligence in an effort to recover damages for his injuries. Ivasyuk v. Raglan, 197 A.D.3d at 636, 153 N.Y.S.3d at **1. One of the defendants, M&I, moved for summary judgment to dismiss the complaint on the basis that Ivasyuk had executed a liability release in favor of the defendants for all claims arising out of Ivasyuk’s accident. The New York Supreme Court denied the motion and M&I appealed. Ivasyuk v. Raglan, 197 A.D.3d at 635-36, 153 N.Y.S.3d at **1.
The Court Notes Failure to Translate a “Jural” Contract May Be Grounds for Voiding Its Enforceability.
On appeal, the New York Supreme Court reversed the order denying the defendant’s motion for summary judgment. Ivasyuk v. Raglan, 197 A.D.3d at 635-36, 153 N.Y.S.3d at **1. The court acknowledged that “[a] release is a contract, and its construction is governed by contract law” and that “[g]enerally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release.” Ivasyuk v. Raglan, 197 A.D.3d at 636, 153 N.Y.S.3d at **2. Thus, the court held that liability releases are legally binding contracts where the language of the agreement is clear and unambiguous. The court also noted, however, that, like any other written agreement, a liability release may be invalidated if the party can show a traditional basis for setting aside the agreement. These include duress, illegality, fraud, or mutual mistake. Ivasyuk v. Raglan, 197 A.D.3d at 637, 153 N.Y.S.3d at **2. Based on the law regarding the translation of foreign-language agreements, the failure to translate a “jural” contract also may be grounds for voiding its enforceability.
The Plaintiff, Who Did Not Speak or Read the English Language, Executed the English Release Agreement
In Ivasyuk, the court first decided whether the defendant, M&I, sufficiently demonstrated that, by executing the release agreement, Ivasyuk legally released M&I from any claims he made against it with regard to his accident. Ivasyuk v. Raglan, 197 A.D.3d at 637, 153 N.Y.S.3d at **2. To support its claim, M&I submitted a copy of the liability release agreement that Ivasyuk executed before a notary public in December of 2016. The agreement clearly and unambiguously stated that Inasyuk was releasing M&I from, inter alia, all actions, causes of action, and suits. M&I did not include a certified translation of the liability release agreement because the agreement was in English. It did, however, submit the transcripts of the deposition testimony of Ivasyuk and Ivan Kopychak (hereinafter “Kopychak”), who was a principal of M&I. Ivasyuk v. Raglan, 197 A.D.3d at 637, 153 N.Y.S.3d at **2. The deposition transcripts revealed that when the accident occurred, Kopychak and two other persons went to Ivasyuk’s home to discuss the accident. Before Ivasyuk executed the release agreement, which was written in English, Kopychak explained to Ivasyuk in Ukrainian that the release provided that Ivasyuk would have no claims against Kopychak. Kopychak testified that, after their discussion, Ivasyuk stated that he had no complaints against Kopychak, his partner, or M&I, upon which the notary public translated the release agreement for Ivasyuk before he signed it. Ivasyuk v. Raglan, 197 A.D.3d at 637, 153 N.Y.S.3d at **2.
The Court Finds No Basis to Invalidate the Agreement
Ivasyuk agreed that he had executed the release agreement as described, but he opposed the enforcement of the agreement, claiming it was void because the contract was written in English and he did not read or speak the English language. However, the court held that Ivasyuk failed to raise a triable issue of fact as to whether there had been any fraud, duress, or some other fact sufficient to void the contract. Supporting this conclusion, the court reasoned that “[a] person who does not understand the English language is not automatically excused from complying with the terms of a signed agreement, since such person must make a reasonable effort to have the agreement made clear to him or her.” Ivasyuk v. Raglan, 197 A.D.3d at 638, 153 N.Y.S.3d at **2. Here, the court held that the deposition testimony of Ivasyuk and Kopychak demonstrates that “the terms of the release were explained to the injured plaintiff before he executed the document.” Ivasyuk v. Raglan, 197 A.D.3d at 638, 153 N.Y.S.3d at **2.
In addition, the court held that New York Civil Practice Law and Rule 2101(b) did not preclude the consideration and enforcement of the release agreement. Rule 2101(b) provides only that the papers to be “served or filed shall be in the English language” and that “[w]here an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate.” N.Y. Civ. Prac. L. and Rule 2101(b). The court held that because the release was not written in a foreign language but was written in English, Rule 2101 did not require a translation or preclude the enforcement of the liability release contract.
Certified Translation of Liability Release Contract into the Employee’s Language Would Have Protected Both Parties
The purpose of requiring the certified translation of documents and exhibits written in a foreign language is partly to ensure that the court can authenticate and accurately apply the express terms of the contract or document as the parties intended them to be applied. Certified translation also serves the purpose of ensuring that a party who does not read or speak the language in which a contract is written may understand the terms of the contract before assenting to them. Statutes like New York Civ. Prac. L. and Rule 2101(b) and Cal. Prob. Code § 8002(b)(2) serve the purpose of providing reliable translation for the court, but they do nothing to guarantee the protection of a foreign party.
In Ivasyuk, the court ruled that the applicable statute did not require the translation of an English contract for a foreign party. It only required the certified English translation of contracts written in a foreign language. Based on the holding in Ivasyuk, this means foreign to the court, not to the party to the contract. However, the court also based its decision to enforce the contract on the fact that Ivasyuk had a duty to take reasonable steps to understand the contract and, in fact, had the English contract explained to him and read to him in the Ukrainian language. This suggests that if the liability release agreement had not been at least explained to Ivasyuk in his native language, then even though an official translation was not required by statute, the failure to translate the contract for the contracting party under those circumstances might serve as grounds for voiding the contract. Although neither the court nor the statute expressly provides for this, requiring the certified translation of a contract, where a party’s understanding of its terms cannot be shown, serves the dual purpose of a true mandatory-translation policy.
To avoid walking this thin line of reasoning, courts—and employers—should require the certified translation of any contract written in any language that is not adopted by each party to the contract prior to the execution of the contract, not just upon its submission to the court. Having a certified translation of a contract, written in any language, where a party to the contract does not read, speak, or understand the language of the contract better assures the understanding of the parties as well as the court.
Get in touch with the certified legal document translation and deposition interpreting service All Language Alliance, Inc. to obtain certified translation of contracts and agreements with non-English-speaking employees, including certified translation of liability release agreements, into the language of the employee prior to the execution of the contract. Legal interpreter services and certified contract translation services are available from English to any foreign language, including Korean, Russian, Ukrainian, Somali, Amharic, Polish, French, Spanish, Simplified Chinese, Punjabi, Arabic, Traditional Chinese, Hebrew, Vietnamese, Croatian, Thai, Japanese, Mongolian.
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