Wrongful death claims in New York are governed under New York Estates, Powers, and Trusts Code Part 4. In order for someone to file a wrongful death claim, the statutes provide that the injured parties must prove the following:
- That a death occurred
- That the death was as a result of an action by the named defendant
- That the decedent would have had grounds for a personal injury suit had they survived
- That the decedent has one or more heirs have suffered losses as a result of the death
- That the defendant has assets the estate is eligible to recover
Who May File a Wrongful Death Claim?
New York law requires suits for wrongful death to be filed by the estate of the decedent’s personal representative. Only when a family member is the personal representative may they actually file a suit for wrongful death. If the decedent had no will, the courts will appoint a representative to the estate. When an attorney successfully obtains a wrongful death award, the representative is obligated to distribute the award to the heirs and beneficiaries of the decedent.
Time Limits on Filing Claims
Like most states, New York has a statute of limitations that govern when a lawsuit may be filed. If a wrongful death case is not filed within two years of a death, the estate forfeits their right to file a suit. In the event the personal representative or heir of an estate is a minor child, the guardian of the child would be expected to file a wrongful death claim on their behalf.
Awards in Wrongful Death Cases
While New York does not allow for damages for non-monetary awards for loss of companionship or mental anguish of survivors there are a broad range of expenses that can be recovered in wrongful death lawsuit including:
- Cost of funeral and burial
- Medical expenses including nursing, surgical or other expenses that were incurred during the final injury
- Loss of wages and benefits from the date of injury through death
- Loss of monetary support and services provided to family members
- Loss of guidance and care to dependent children
- Value of inheritance lost by minor children
- Decedent’s pain and suffering
- Interest on the award beginning from the date of death to the date of the award
Generally, the courts will determine the final award based on the decedent’s health at the time of their death, their age as well as their future earning capacity.
Proving Wrongful Death
In some cases, it is fairly easy to prove that you have wrongful death claim. For example, if your loved one was a pedestrian and struck in a crosswalk by a drunk driver, the process of proving fault is relatively simple. However, in other cases, like construction accidents, automobile accidents, and motorcycle accidents, proving fault is not always as straightforward. When you hire an attorney to pursue a wrongful death claim, they will launch their own independent investigation into the cause of the death of your loved one. This will involve getting specific information from you regarding the circumstances of the incident that resulted in death. Witness statements will be obtained when available and statements from the decedent’s health care team will be necessary to determine the end cause of death as well as the level of pain and suffering of the decedent.
Wrongful death attorneys understand that no amount of money will ever compensate for the loss of a loved one. However, when you lose the companionship of a loved one, you are also losing the financial support that person provided to your family. If your loved one was the primary breadwinner in the family, the monetary losses can be even more significant. While you may have to suffer the loss of your loved one, you should not have to suffer financially, especially when their death could have been prevented if the defendant had acted in a responsible manner.
Because of the time limits that are inherent to the wrongful death statutes, it is imperative that you speak with an attorney immediately after losing a loved one. You will need a strong advocate to fight for your rights under New York’s wrongful death statutes.
Contact attorney Paul Giannetti today for a free consultation of your legal options.