Who Can Bring a Wrongful Death Lawsuit in New York?

When a loved one dies in New York as the result of the negligent or wrongful actions of others, a wrongful death lawsuit may be initiated to seek recovery for all damages that are legally compensable as the result of the negligent or wrongful actions.  New York statutes provide that a wrongful death lawsuit can be brought by:

  • A child of the decedent,
  • A parent of the decedent,
  • A spouse of the decedent, and
  • The personal representative for the estate of the decedent.

In general, brothers, sisters, and cousins of a decedent do to have a right to bring a wrongful death lawsuit in New York unless they have also been named as the guardian or personal representative of the decedent  (but they may still not have such right if there is a surviving, spouse, child, or parent of the decedent).

Wrongful Death Suits are Typically Joined with Claims for Pain and Suffering of the Decedent

Wrongful death suits can be thought of as a combination of two different types of lawsuits that are normally joined.

First, in a fatality, the decedent may have a claim for the pain and suffering experienced prior to death.  While claims for pain and suffering in some states are extinguished if a person dies, New York allows these claims to survive the death of the injured person.  As a result, when death occurs, claims for pain and suffering are legally transferred to (and become a part of) the decedent’s estate, which is administered by a personal representative.  A claim for pain and suffering then could be brought by the personal representative for the beneficiaries of the estate, who would then be entitled to this portion of any settlement or verdict.

Second, certain family members and those financially dependent upon the decedent will have a wrongful death claim based upon lost earnings, loss of companionship, and similar damages resulting from their loved one’s death.  Unlike the pain and suffering claim, which is based upon damages to the decedent, the wrongful death claim is based on damages to family members and those financially dependent upon the decedent.

The family members and dependents entitled to receive benefits under the wrongful death claim and the beneficiaries entitled to share in the estate of the decedent may or may not be the same people.  For instance, the sole beneficiary of a decedent’s estate could be an organization, perhaps a foundation to prevent animal cruelty.  This organization would then receive the compensation for the decedent’s pain and suffering.  The decedent’s surviving family members would then receive the compensation for the damages that they suffer as a result of the wrongful death.

In most instances, the two different categories of claims will be joined as one suit for judicial economy, usually with the same lawyers for both sides.

What Must be Shown in New York to Bring a Wrongful Death Claim?

To file a wrongful death suit in New York, you must show that:

  • The act, or negligence, would have entitled the injured person to file an action to recover damages (including pain and suffering) had the death not occurred;
  • There are surviving distributees, children, or dependents of the victim; and
  • Monetary damages have resulted from the decedent’s death.[1] 

There is Nothing Easy About Bringing a Wrongful Death Claim

Usually, family members are experiencing a very difficult time as a result of the unexpected death.  Defendants, their insurance carriers, and their lawyers understand this.  They know that families typically don’t want to go through a long legal process or trial.

As a result, they often work hard to protect their interest, which may include blaming the decedent.  They would prefer that this process be mentally draining on you and your family, ideally so that you will drop your lawsuit or be willing to settle in the early stages for a “low-ball” settlement.

These tactics are wrong.

In a wrongful death lawsuit, we will be with you at every step, working aggressively in seeking full compensation for you and your family.

We provide stability, compassionate understanding and tenacious representation during this difficult and uncertain period.  We are there to obtain for you and your family the financial compensation to which you may be entitled – nothing less.

With decades of legal practice, we are experienced in getting full compensation for our clients, and our representation is usually on a contingency fee basis (no fee unless you recover compensation).

Call us to schedule a free, no-obligation consultation with us to learn about your legal rights at a time that is convenient with your schedule.

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[1] N.Y. Est. Powers & Trusts Law §5-4.3 (Consol. 2002)

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