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.