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What's Hot in Workers' Comp

The Appellate Division reversed and remanded a trial court order denying the plaintiffs’ motion to amend their complaint and dismissed their matter with prejudice.

Estate of Alfredo Pabatao, et al. v. Palisades Med. Ctr., et al., No. A-1740-22 (Apr. 24, 2024)

June 1, 2024

by Kiara K. Hartwell

The plaintiffs had filed a complaint for survival and wrongful death against the defendants, asserting the defendants caused the decedents to become infected with COVID-19 and pass away in March 2020.

In October 2022, some of the defendants filed a motion to dismiss for failure to state a claim upon which relief can be granted, which the judge granted, without prejudice, in November 2022. In November 2022, the other defendants also filed a motion to dismiss the complaint for the same basis. One month later, the plaintiffs filed a cross-motion to amend their complaint to all defendants. In January 2023, the judge granted the defendants’ motion to dismiss the complaint, with prejudice, and denied the plaintiffs’ motion to file an amended complaint. The motion judge stated in an oral opinion that Alfredo Pabatao was compensated under workers’ compensation law and there was no showing of an intentional act. As to Mrs. Pabatao, the judge indicated, while there may be some issue of reusing a mask and then becoming infected, it would go “even further outside the realm of possibility and proximate cause” to say his wife got it from him.

The plaintiffs appealed, arguing the trial court committed a reversible error by denying their motion before discovery was completed. The Appellate Division agreed, indicating the plaintiffs should be allowed to file a motion to amend their complaint. Specifically, it was noted that, despite the immunities per the workers’ compensation and COVID-19 statutes, there may be a viable cause of action. With regard to Mrs. Pabatao, the plaintiffs asserted she was impermissibly excluded from the employees provided with face masks; thus, she contracted COVID-19 and passed away. They claimed the defendants’ conduct was so egregious as to nullify the statutes. 

As such, the Appellate Division reversed and remanded the trial court order denying the plaintiffs’ motion to amend the complaint. 

 

What’s Hot in Workers’ Comp, Vol. 28, No. 6, June 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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