By Dansker & AspromonteMarch 20, 2016
Every state in the U.S. has its own wrongful death governing laws and New York is no different. A wrongful death is defined as the negligence or wrongdoing – misconduct – of a person, company or entity resulting in the death of an individual. If you are a New York resident and have a family member you believe died as a direct result of the negligence or wrongdoing of someone, you may want to know how to start a wrongful death lawsuit in NY.Check out average wrongful death settlement in New York
How does New York, defines “wrongful death” and what are some key elements of state laws? Who can file a lawsuit and take it to court? And, what damages can be recovered upon successful outcomes and what are the time limits involved?
To establish a claim, New York Estates, Powers and Trusts Code Part 4 requires a plaintiff provide proof of five elements.
1. A death occurred.2. The death was caused directly from the wrongdoing of the defendant.3. If not for death occurring, the deceased could have pursued a personal injury case in court.4. One or more people suffering from the loss directly due to the death survive the deceased.5. There are recoverable damages by the estate.
As an FYI, the New York Court of Appeals – Endresz v. Friedberg, 24 N.Y.2d 478 – held that New York does not recognize the wrongful death of a fetus before birth. –
Wrongful Death Claims – Who Can File?
Personal Representative – Filing a wrongful death claim in New York, is responsibility of the deceased person’s estate. In other words, only the family member – spouse, child or parent – who is the estate’s personal representative may file a wrongful death claim in New York State. However, there are inclusions for surviving family members to recover damages as part of the claim brought forth.
• Heirs• Beneficiaries• Devisees
Upon winning the case, the court treats the personal representative as holding the damages award in trust for the surviving family members.
New York Wrongful Death Claims Recoverable DamagesDepending on the specific facts of a wrongful death case proven in court, damages awarded can vary. For example, types of damages recovered in NY are:
• Reasonable nursing, medical and other healthcare related expenses associated with the deceased person’s illness or final injury.• Funeral and burial expenses incurred by the family.• Lost wages and/or benefits lost by the wrongful death of the decease person.• The value of services and support by the deceased person for the surviving family members.• The value of care, guidance and parental nurturing by the deceased person for the surviving children.• A lost inheritance for the surviving children.• Pain and suffering the deceased endured as a direct cause from the illness or final injury.• A 9% interest, calculated from the date of death on all damages awarded.
The claims New York State does not allow the deceased’s family members to recover damages for, are in pain and suffering, loss of companionship and mental anguish. A pain and suffering claim is for the deceased only.
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Filing a Wrongful Death Claim in New York State – Strict Time Limits
In New York State, a wrongful death claim must be filed within two years from the deceased person’s date of death. This is called a statute of limitations and prohibits wrongful death claims in New York State courts of deaths occurring more than two years prior of a filing date. This also means, New York State does not stop, or toll, the statute of limitations from running in the case of a child or a person incapable of filing a claim is the personal representative for the estate. If such a situation occurs, then it would be the child’s or incapable person’s guardian who would need to file a wrongful death claim on their behalf. A Personal Injury Lawyer can help you with this.Wrongful Death of a Family Member Has Occurred – What now?
In New York State, wrongful death lawsuits are complex, and the surviving family members may not know where to start. But an experienced New York wrongful death attorney will recover the settlement your loved one deserves. Contact Dansker & Aspromonte LLP Associates today and let us explain how we can help you.
Call or text (212) 732-2929 or complete a Free Case Evaluation form