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Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C.

Available 24/7   Free Consultation   No Fee Until We Win   212-689-5000

Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C.

Available 24/7 | Free Consultation | No Fee Until We Win

Manhattan: 212-689-5000
Long Island: 516-535-6666
Brooklyn/Queens/Bronx/Staten Island:
718-SERIOUS (737-4687)

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Ira M. Perlman & Robert D. Rosen

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  4.  → The Law Controlling A Wrongful Death Case

Wrongful Death Laws In New York

Under traditional “common law” wrongful death actions did not exist. It was thought that the claim of the victim of a wrongful death died with that person. Fortunately, the various legislatures in the United States realized that this rule failed to compensate family members and others who suffered certain economic and non-economic losses due to a person’s death, and a result, wrongful death laws were enacted in order to rectify this injustice and unfairness.

Below we provide an overview of New York’s wrongful death law. To learn more about how this impacts you or your specific case, do not hesitate to contact the Law Offices of Ira M. Perlman, P.C. & Robert D. Rosen, P.C. for a free initial consultation. Call 212-689-5000 or reach out online to get started.

New York’s Wrongful Death Law

A. Monetary Damages

In the State of New York, the award of damages in a wrongful death action is limited to fair and just compensation for the monetary (also known as pecuniary) losses resulting from the decedent’s death to the persons for whose benefit the lawsuit is brought. Such damages include loss of support, voluntary assistance, possible inheritance, as well as medical expenses incidental to the death and funeral expenses. The right to seek these damages is a result of statutory law under Section 5-4.3 of the Estates, Powers and Trusts Law of the State of New York. As explained in paragraph “F” below, there is often a separate right to bring an additional claim for pre-death pain and suffering in the same lawsuit.

In order to establish a right to monetary damages, the Plaintiff (the representative of the Estate of the deceased) pursuing a wrongful death action need only show that one or more survivors (also known as distributees) had a reasonable expectation of support from the decedent and, therefore, a monetary loss. Once this showing is made, the determination of the amount of damage is a question for the jury.

Unfortunately, the law in the State of New York is still somewhat harsh and archaic due to the fact that pecuniary injuries do not include any mental anguish, grief, sorrow or the loss of companionship of a deceased spouse or a deceased child. However, pecuniary injuries do include loss of parental nurture and care and loss of physical, moral and intellectual training by a parent. Therefore, evidence that a deceased grandparent who provided services to his or her adult, financially independent grandchildren is sufficient to demonstrate pecuniary damages on behalf of an adult child.

B. Necessary Elements to Pursue a Cause of Action for Wrongful Death

Under Section 5-4.1 of the Estates, Powers and Trusts Law of the State of New York, the essential elements to be pleaded and proved in a wrongful death action are:

  1. A death;
  2. Caused by the wrongful act, neglect or default of defendant;
  3. Giving rise to a cause of action that could have been maintained, at the moment of death, by the decedent if the death had not occurred;
  4. Survival by distributees who have suffered pecuniary loss by reason of the death; and
  5. Appointment of a personal representative of the decedent.

C. The Various Considerations in Determining a Monetary Award Due to Wrongful Death

There are a number of factors which have been identified as appropriate for consideration in order to determine what is fair and just compensation for monetary injuries resulting from a person’s death. These include the age, health and life expectancy of the decedent at the time of the injury; the decedent’s work habits and present position; the decedent’s future earning capacity and potential for career advancement; and the number of distributees left by the decedent, their respective ages and life expectancy.

Usually, evidence of the decedent’s gross income at the time of death is used as a standard in order to measure the value of income already lost and to measure the loss of future earnings. However, increased earnings that the decedent would have received may be taken into account as long as the increases were expected to take place had the decedent lived. Sometimes the court may hear evidence concerning what others actually earned or could earn in order to use a fair basis of comparison when proving a decedent’s future earnings.

If the decedent was a homemaker, then recovery may include the monetary value of the services provided by the decedent whereby a value can be fixed by taking into account the various circumstances in the household. In other words, in order to fix a monetary value of a mother or father who is a homemaker, consideration of the services that she or he would have performed in the house for his or her spouse and children in the care and management of the family home, finances and health, in addition to the intellectual, moral and physical guidance and assistance given to the children, will be extremely relevant. In fixing the monetary value of the decedent to the survivor and/or children, a jury would be able to consider what it would cost to pay for a substitute or the decedent’s services considering the ages and life expectancy of the spouse and each of the children.

Where the decedent is a child, the monetary loss of the parent is measured by the services of the child during his or her minority less the cost of the child’s maintenance and education during that period. In fact, there is case law in the State of New York where even though the decedent was too young to have demonstrated any disposition or ability to support his or her surviving parents, an award for the wrongful death of the decedent child of tender years was nevertheless appropriate where the parents and the decedent child were part of an intact family unit which furnishes a basis for the expectation that the parents would have become the objects of the decedent child’s generosity had he or she lived.

D. Who Are Considered Distributees

A distributee is a person entitled to take or share in the property of a decedent under the statutes governing descent and distribution. In New York, “distributees” are persons who are designated under the law as having the primary right to receive a decedent’s estate where a person dies without a Will. When a person dies without a Will, his or her distributees (next of kin) inherit as the statutes provide. Basically, the order of priority is the spouse and children, parents and brothers and sisters. An action for wrongful death belongs to the decedent’s immediate family members who are often called “distributees”. The most common distributees are surviving spouses and children and sometimes parents. According to Section 5-4.1 of the Estates, Powers and Trusts Law of the State of New York, the proper plaintiff in a wrongful death action is the “personal representative” of the decedent. No other individual must be named as a plaintiff in the lawsuit. However, the named plaintiff is the holder of any proceeds in the suit as a statutory trustee for distribution of the funds to those survivors and/or distributees who are entitled to take proceeds pursuant to the law.

E. When the Lawsuit Must be Started (Statute of Limitations)

The statute of limitations on a wrongful death claim is usually two years which is measured from the date of the death pursuant to the State’s Powers and Trusts Law Section 5-4.1, but a thorough investigation of all other applicable law must be conducted inasmuch as other applicable statutes in a wrongful death action may affect the two year period of time. This is especially true where the defendant is a municipality or an agency or subsidiary thereunder such as the City of New York, New York City Transit Authority or the New York City Health and Hospitals Corporation which operates a number of city hospitals in the five boroughs.

Sometimes the limitations period may be tolled (extended) where the decedent’s only distributee is a minor (child). In this regard, the limitations period will be tolled until a guardian is appointed or the distributee reaches majority (18 years of age), whichever first occurs. It is also important to realize that the toll is usually not available when the estate of the decedent also has a separate claim for personal injuries sustained by the decedent which is separate and apart from any wrongful death action. Of course, there are other facts and circumstances which may change and alter the amount of time one has in order to commence a lawsuit for wrongful death. This is why it is extremely important to contact a knowledgeable attorney as soon as possible so that a proper investigation and all necessary steps are undertaken at the onset to preserve any and all claims you may have as a result of the unfortunate death of a loved one.

F. Separate Claim for Conscious Pain and Suffering

In addition to any claim being brought due to the wrongful death of a loved one, there is a separate right to bring a claim for any pre-death conscious pain and suffering which occurred from the moment of injury to the moment of death. Conscious pain and suffering means pain and suffering of which there is some level of awareness by the decedent. In addition, there is the right to recover reasonable expenses that were paid or incurred by either the decedent or the decedent’s estate for medical aid, nursing and other care required to treat the decedent’s injuries prior to death and an amount for the loss of earnings that the decedent would have earned between the date of injury and the date of death had he or she not been injured.

There is no recovery for post-accident or malpractice pain and suffering prior to death that is allowed if there is no evidence that the decedent was conscious at any time after the occurrence or incident. However, testimony that tends to prove pain is usually sufficient to support a verdict giving rise to monetary compensation. Additionally, New York courts have recognized an injured person’s “pre-impact terror” as an element of conscious pain and suffering where there is some evidence from which one might imply an awareness of the danger and therefore infer pre-impact terror. In this instance, there is a basis for inferring that the decedent was aware of his or her own impending death.

If there is a surviving spouse in a lawsuit where there is a claim for wrongful death as well as a claim for conscious pain and suffering, the surviving spouse, individually, may properly seek damages for any loss of services suffered between the date of the decedent’s injury and death. This derivative or separate claim can be joined with the wrongful death and conscious pain and suffering claims.

If you have lost a loved one in a fatal accident or the result of malpractice, do not hesitate to reach out to us. We are here to help you and your loved ones. Call 212-689-5000 to speak with one of our attorneys, or contact us online to schedule your free consultation.