New York Wrongful Death Lawyer

Who has the right to bring a wrongful death case in New York?

The personal representative of the estate brings the case. That is the executor named in a will, or an administrator appointed by the Surrogate's Court when there is no will.

The representative files on behalf of the distributees, the close family members who would inherit under state law, such as a spouse, children or parents. Opening the estate can take weeks or months, especially when family members disagree or there is no will, so this step should start right away. Without an appointed representative, no lawsuit can be filed.

What is the difference between a wrongful death claim and a survival claim?

They are two separate claims that are usually brought together. The wrongful death claim compensates the family for its own losses, and the survival claim compensates the estate for what the person suffered before death.

• Wrongful death claim: the family's financial losses, such as lost income and support, the value of household services, and medical and funeral costs
• Survival claim: the person's conscious pain and suffering between the injury and death, plus the person's own medical expenses and lost earnings during that time

Evidence of conscious suffering, such as emergency medical records, witness accounts and time between injury and death, can significantly affect the survival claim.

What damages can a New York family recover?

New York has traditionally limited wrongful death damages to pecuniary, or financial, losses. That includes lost earnings and support, lost services, and the loss of a parent's guidance to children, measured in financial terms.

Grief and emotional loss have historically not been recoverable in the wrongful death claim itself. Proposals to expand those damages have been debated in recent years, so we confirm the current law for every case. Punitive damages may be possible in rare cases of extreme conduct. Proving financial losses usually involves pay records, tax returns, testimony about household roles and, in larger cases, an economist.

How does a criminal case affect the civil case?

They are separate. A criminal prosecution seeks punishment, while the family's case seeks compensation, and the civil case uses a lower standard of proof.

A driver may be acquitted, plead to a lesser charge, or never be charged, and the family can still win. When a criminal conviction does happen, it can help prove fault in the civil case. New York also gives families additional time to file a civil case in some situations tied to a criminal prosecution, but that rule is technical, and families should not wait on it.

How does fault affect a New York wrongful death recovery?

Pure comparative fault applies, so any share of fault assigned to the person who died reduces the recovery without barring it.

Here is an example. A pedestrian crossing mid-block in Brooklyn is struck and killed by a delivery van traveling too fast for a crowded street. The jury values the family's financial losses at $800,000, finds the van driver and company 70% at fault and the pedestrian 30% at fault. The family recovers $560,000. Our pedestrian accident page explains how speed and visibility evidence is gathered.

What deadlines apply to a New York wrongful death claim?

The wrongful death lawsuit generally must be filed within 2 years of the death. Shorter rules apply when a public body is involved.

1. Municipal defendants, including city vehicles, public hospitals and city sidewalks or roads, generally require a notice of claim within 90 days.
2. Claims against the State of New York go to the Court of Claims with their own notice timing.
3. The survival claim can follow a different deadline tied to the underlying injury, such as the medical malpractice clock.

While the estate is being opened, our team can start the investigation. We request police and medical examiner reports, send preservation letters for video and vehicle data, and gather the pay records and household information needed to measure the family's financial loss. Insurers sometimes contact grieving relatives early, and you are not required to give them a statement.

Construction deaths often involve New York's Labor Law protections, explained on our workplace and construction injuries page. Deaths caused by medical errors are discussed on our New York medical malpractice page, and the state's general rules are covered in our New York overview. We offer a free and confidential case review, and you pay no fee unless we recover compensation for your family.