• Overview of New York wrongful death lawsuits
  • Wrongful death in the workplace — New York workers’ compensation
  • Key differences between a criminal case and civil wrongful death case
  • What to do if you suspect a wrongful death in New York

• Finding an Attorney for a Wrongful Death Case
  • What to look for in an wrongful death attorney
  • What to bring to a legal consultation

• Pursuing a Wrongful Death Lawsuit in New York
  • Statute of limitations for a New York wrongful death lawsuit
  • Dealing with insurance companies
  • Valuing a wrongful death case in New York
  • Elements of a New York wrongful death lawsuit
  • Common evidence in a wrongful death case
  • Comparative fault in New York wrongful death lawsuits
  • Distribution of damages in a New York wrongful death lawsuit
  • The litigation process
  • Settling a New York wrongful death lawsuit

• New York Wrongful Death FAQs

Overview of New York wrongful death lawsuits

Under New York’s Estates, Powers & Trusts Law (“EPTL”) Sec. 5-4.1, a wrongful death is one caused by the “wrongful act, neglect, or default” of another. A wide range of events involving intentional or negligent behavior can form the basis of a wrongful death lawsuit, including (but not limited to):

• Medical malpractice;
• Nursing home abuse or neglect;
• Auto, truck, and motorcycle accidents; 
• Accidents related to defective or dangerous products (product liability);
• Slip and fall accidents;
• Construction and workplace accidents;
• Police brutality; and
• Crimes, including intentional violence 

Regardless of the cause, a wrongful death lawsuit often includes two separate claims: a survivorship claim and a wrongful death claim. Throughout this guide, these two claims are referred to together as a “wrongful death lawsuit.” 

Both claims are generally for the benefit of the victim’s survivors (usually the spouse and/or children). These parties who are entitled to compensation in the lawsuit are called the “beneficiaries.” However, both claims must be filed by the personal representative of the victim’s estate. That is, the personal representative will be the plaintiff, regardless of whether they are a beneficiary of the lawsuit. 

The sections below include a brief overview of each type of claim. For more detailed information about pursuing a wrongful death lawsuit in New York, including the types and distribution of damages for each claim, see Chapter 3: Pursuing a Wrongful Death Lawsuit in New York.

Survivorship actions in New York

Under EPTL 11-3.2(b), any personal injury action that a victim could have filed prior to death may still be initiated or maintained after the victim’s death by the personal representative of the victim’s estate. This is called a “survivorship action.” 

In a wrongful death lawsuit, the survivorship action is intended to recover compensation for the victim’s losses prior to death, such as medical bills and conscious pain and suffering. These damages will become part of the victim’s estate and distributed in accordance with the victim’s will. If the victim didn’t leave a will, the damages will be distributed in accordance with New York’s intestacy laws set forth in EPTL Sec. 4-1.1. Under these laws, the victim’s spouse and children, if any, will receive priority. 

Wrongful death actions in New York

Under EPTL Sec. 5-4.1 and Sec. 5-4.3, the personal representative of the victim’s estate may also file an action seeking compensation for the financial losses (or “pecuniary injuries”) suffered by the victim’s “distributees” in connection with a victim’s wrongful death. This is called a “wrongful death action.” 

The “distributees” are those who are entitled to share in the victim’s estate under New York’s intestacy laws. This generally includes the victim’s spouse and children, if any. Examples of pecuniary injuries suffered by distributees may include:

• Medical, funeral, and burial expenses
• Loss of the victim’s future earnings and financial support
• Loss of fringe benefits, such as medical coverage
• Loss of the victim’s nurturing, care, and parental guidance (even for adult children)
• Loss of inheritance for the victim’s children
• Loss of household services the victim would have provided to the family (such as childcare, cooking, and cleaning)

Notably, distributees cannot recover for their own grief, mental anguish, or similar emotional damages, as such losses are not considered “pecuniary.” 

Your attorney, with the help of financial experts, will calculate the types and amounts of losses to seek in a wrongful death action for each distributee. The appropriate amount will depend on various factors such as:

• The victim’s age, general health, and life expectancy
• The victim’s future earning capacity and potential for career advancement 
• Each distributee’s age, life expectancy, and level of dependency on the victim 

Unlike survivorship action damages, wrongful death action damages do not pass through the victim’s estate. Instead, under EPTL Sec. 5-4.4, the personal representative distributes the damages to the distributees in proportion to their pecuniary losses.

Wrongful death in the workplace — New York workers’ compensation

Certain jobs, such as those in construction and heavy industry, are inherently more risky than others. But deaths can also occur in “safe” workplaces (for example, a slip and fall fatality in an office). If your loved one died as a result of workplace injuries, it may be possible to recover compensation through New York’s workers’ compensation system. 

New York’s workers’ compensation is a no-fault system. This means that benefits for a workplace fatality should be paid out regardless of who was at fault. Generally, only the surviving spouse, minor children, and certain other dependants are entitled to survivor benefits. 

Survivor benefits for the spouse, minor children, and certain other dependents include weekly cash benefits equal to two-thirds of the victim’s average weekly wage (calculated based on the 52 weeks prior to the workplace accident leading to death). This amount is subject to a maximum established by the Workers’ Compensation Board. 

If the victim didn’t leave behind a surviving spouse, minor children, or other dependents, the victim’s parents may be entitled to a payment of $50,000. Workers’ compensation also covers funeral or memorial expenses of up to $10,500 ($12,500 in New York City and certain other counties).

In exchange for receiving the benefits described above, you generally give up the right to pursue a wrongful death lawsuit against the employer. However, it is still possible to pursue claims against third parties other than the employer. 

Note that only employees are covered under the workers’ compensation system — not independent contractors. If the business issued a W-2 to a worker, it means they’ve categorized that worker as an employee. If they issued a 1099 to a worker, it means they’ve categorized the worker as an independent contractor. However, employers sometimes miscategorize workers, either intentionally or unintentionally. An attorney can help you determine the proper classification of your loved one. 

Even if your loved one was properly classified as an employee, consulting an attorney is still a good idea. Your attorney can help make sure you’re receiving the full amount of compensation that you’re entitled to under workers’ compensation laws. They can also help you investigate all other possible sources of compensation and navigate the complex interaction between different types of claims. 

Key differences between a criminal case and civil wrongful death case 

Sometimes, the wrongful death of a person may result in both a criminal case and a civil wrongful death case. Although these cases are based on the same events, there are several key differences in how they’re handled. 

A criminal case is brought in criminal court by a government attorney called a prosecutor. Based on the evidence, the prosecutor is responsible for deciding which charges to bring against the defendant, such as manslaughter or murder. They are also responsible for preparing and litigating the case. 

To win the case, the prosecutor must prove that the defendant is guilty “beyond all reasonable doubt.” This means that if the jury has any reasonable doubt that the defendant is guilty based on the evidence presented at trial, then they must find the defendant not guilty. If the defendant is found guilty, they may face criminal penalties such as imprisonment, probation, and/or fines. This is why the standard of proof is very high.

A civil case, on the other hand, is brought in civil court by a plaintiff. In the case of a wrongful death civil suit, the plaintiff will be the personal representative of the victim’s estate. The plaintiff’s attorney is responsible for building and litigating the case. 

To win, the plaintiff’s attorney must prove that the defendant is “more likely than not” responsible for the death and the resulting losses. Whereas in a criminal case the jury must be near 100% certain of the defendant’s guilt, here, they must only be greater than 50% certain. If the defendant is found liable, they’ll be obligated to pay monetary damages to the plaintiff. 

The burden of proof is lower in a civil case compared to a criminal case. This means that it’s possible for the defendant to be found not guilty in the criminal case, yet liable in the civil case. Typically the civil case will follow the criminal case, as the evidence produced in the criminal trial can be helpful for the civil case. 

What to do if you suspect a wrongful death in New York

When you’re grieving the death of a loved one, it can be difficult to focus on anything else. Unfortunately, however, the steps you take early on can have a significant impact on your ability to recover compensation later. If you suspect your loved one died as a result of someone else’s intentional or negligent act, you should take the steps below as soon as you can.

• Start the process of appointing a personal representative. Under New York law, only the personal representative can formally file a survivorship action on behalf of the estate and/or a wrongful death action on behalf of the victim’s distributees. Sometimes, the personal representative is named in the victim’s will. But if the victim didn’t leave a will, the court will have to appoint a personal representative. This can take time, so it’s best to start the process sooner rather than later.

• Get copies of the death certificate and, if available, the autopsy and police reports. Proving how and why the victim died is an important part of any wrongful death lawsuit. This means that the death certificate (which states the official cause of death) is a key piece of evidence. If an autopsy was performed, you should get a copy of the autopsy report as well. In addition, if the police were involved, the police report can help establish exactly what happened. Gathering these documents is a good starting point for any wrongful death case. 

• Gather other evidence, such as medical records, photos/video, and financial information. A successful wrongful death lawsuit typically requires a variety of other evidence, too. Such evidence may include the medical records of your loved one, especially in cases of medical malpractice. It’s also a good idea to gather any photos or videos you have of your loved one’s injuries or the scene of the accident. If you have other physical evidence, take care to preserve it as well. 

Proving financial damages is also a big part of a wrongful death lawsuit. This means you’ll need documents such as pay stubs, tax returns, and receipts for injury- or death-related expenses. All of this evidence can take time to gather, so it’s best to begin early. 

• Gather witness information. Credible witness testimony can have a meaningful impact on your case. So if anyone witnessed your loved one’s injuries or death or can otherwise provide potentially helpful information, try to get their contact information. As you start to build a case, your attorney will help determine whose testimony might be helpful and contact them for interviews.

• Record your personal account of events. Preparing and litigating a wrongful death case can take a long time. And it’s possible that you may begin to forget key details. To make sure you don’t forget important information, write down your account of events as soon as possible. Even small details can have a big impact, so try to be thorough. Your account will be helpful when it comes time to explain what happened to a lawyer and begin building your case.

• Consult a New York wrongful death lawyer. The most important step you can take if you suspect a wrongful death is contacting an attorney. Your attorney will guide you through the entire legal process, including all of the steps above, and advocate on your behalf for maximum compensation. You should not delay this step, as there are strict deadlines for wrongful death lawsuits. If you miss any of these deadlines, you may not be able to recover any compensation at all. (See Chapter 2: Finding an Attorney for a Wrongful Death Case and Chapter 3: Pursuing a Wrongful Death Lawsuit in New York — Statute of limitations for a New York wrongful death lawsuit.)

Finding an Attorney for a Wrongful Death Case

As noted in Chapter 1, getting the help of a New York wrongful death attorney is one of the first steps you should take if you suspect a loved one’s death was the result of another’s negligent or intentional act. If you delay engaging an attorney, you risk making mistakes that damage your case. You may even miss legal deadlines and lose out on compensation completely.

By having the right attorney on your side, you’ll have someone experienced to guide you through the entire legal process and fight on your behalf for full and fair compensation. In particular, your attorney will:

• explain your rights and identify your options;
• conduct thorough investigations;
• identify all possible defendants;
• determine the types and amounts of potential damages;
• conduct negotiations and handle all other communications;
• identify and gather evidence;
• identify and interview witnesses;
• engage experts to provide testimony in support of your case; and
• navigate complicated court procedures and legal requirements.

If you’re concerned about the cost of hiring an attorney, you should know that it’s standard for wrongful death attorneys to provide free initial consultations and to take cases on contingency. This means that you won’t have to pay any attorneys’ fees up front. Instead, the attorneys fees’ will only get paid out of any settlement or verdict your attorney wins for you. 

It’s also standard practice for wrongful death attorneys to advance other litigation-related fees, such as expert or deposition fees. These fees will be reimbursed from any damages the attorney wins for you as well.

What to look for in an wrongful death attorney

The quality of your attorney can have a significant impact on the outcome of your case, so you should choose carefully. Most importantly, your attorney should have experience successfully handling New York wrongful death lawsuits. Your consultation is a good opportunity to ask about their experience. 

You should also choose an attorney with adequate resources in terms of both finances and personnel. This is because wrongful death cases can cost a significant amount of time and money to prepare and litigate. Even settlements can take years to reach. And as mentioned above, the attorney will typically be responsible for advancing expenses. This is another topic you should feel free to discuss during your consultation. 
Overall, you’ll want to choose an attorney that you’re comfortable with as well. You’ll be working with your attorney closely during this difficult time, so it’s important that they’re compassionate and responsive. For more guidance on choosing the right lawyer for you, click here.

How to Choose a Personal Injury or Wrongful Death Attorney

The quality of your attorney can significantly impact the outcome of your case, so you should choose one carefully. Here are a few things to look for when hiring a personal injury or wrongful death lawyer:

• Experience. The attorney you choose should have experience with similar cases, including dealing with the insurance system and all relevant laws. During your initial consultation, it’s a good idea to ask about the attorney’s specific experience, including how long they’ve been practicing and how many cases they’ve handled. 

• Results. You’ll likely have plenty of choices when looking for an attorney. But even among experienced lawyers, some are able to achieve better results than others. This is why it’s also a good idea to ask for a short list of an attorney’s biggest settlements and verdicts. If an attorney can show a strong record of successful verdicts, that will tell you that they’re not afraid of bringing a case to trial. This is important, because sometimes going to trial is necessary to get fair compensation. 

• Resources. Preparing, negotiating, and litigating any lawsuit is time-consuming and expensive. That’s true even if a case settles, and a settlement is never guaranteed. That’s why the attorney you choose should have the financial resources and support to handle the case all the way through trial, if needed. They should also have connections with high-quality experts. When meeting with an attorney, you can get a sense of their resources by asking about their average expenditures on similar cases. You can also ask about the most they’ve ever spent to bring a case to verdict.

• Attentiveness. Having an attorney who doesn’t pay attention to your case can make an already-stressful situation even more stressful. An inattentive attorney may also miss crucial details that could affect the outcome of the case. To avoid these kinds of problems, you’ll want to get a sense of how an attorney will respond to you before you hire them. Ask them during the initial consultation how you can communicate with them, as well as how long they’ll typically take to return your messages. 

• Fees. Hiring an attorney for your personal injury or wrongful death case is almost always a worthwhile investment. But you also don’t want to be surprised by unexpected fees. For this reason, don’t be afraid to ask about a lawyer’s fee structure before hiring them. Keep in mind that it’s standard for personal injury and wrongful death attorneys to take cases on contingency. That means you shouldn’t have to pay anything up front. The attorney will only get paid if they win money for you in a settlement or at trial. Their fee will be a percentage of your award. 

When choosing a lawyer, you should also be wary of any attorney who claims they can get you money fast. While getting compensation quickly sounds great, this may not be in your best interest. 

A lawyer who says they can resolve a case quickly isn’t necessarily a good lawyer. And a case taking several years, like many cases do, doesn’t mean that the attorney is bad. In fact, the best way to ensure maximum compensation is to thoroughly prepare and negotiate a case. 

Unfortunately, there are many law firms who are more interested in quick payouts than getting maximum compensation. Instead of aggressively advocating on behalf of their clients, they quickly resolve cases for smaller amounts. The smaller amounts are acceptable to these law firms because they can make up the fees by taking on a larger volume of cases. But that only benefits them, and not you, as the client. If you come across a law firm that settles a lot of cases quickly, you should consider it a red flag.

Looking for the best personal injury or wrongful death lawyer in New York or New Jersey?

At Rosenblum Law, we recognize how stressful and intimidating it can be to pursue a personal injury or wrongful death lawsuit. If you believe you have a personal injury or wrongful death case, we’ll thoroughly evaluate your situation with compassion and determine the best course of action for your particular circumstances. If we’re able to take on your case, we’ll guide you through the entire process and fight on your behalf for maximum compensation. We also have relationships with experts who we can bring on to support your case if needed.

In addition, if we’re not the right law firm for you, we can provide guidance in selecting a law firm for your case. We have a large network with dozens of law firms that we have pre-screened to ensure that you’ll get the best law firm for your specific case.

For a free consultation, call us today at 888-235-9021 or contact us through our website at www.rosenblumlaw.com/contact. We’re passionate about helping all our clients get the compensation they’re owed — and we won’t take a fee unless we win a settlement or verdict for you.]

What to bring to a legal consultation 

As noted above, it’s standard for wrongful death attorneys to provide an initial consultation free of charge. A consultation is a chance for you to get to know an attorney and decide if you’d like to work with them. The attorney will also ask you questions and review any available evidence to determine if they can help you. 

When meeting with a potential wrongful death attorney, it’s helpful to bring any evidence you have with you, such as:

• medical records
• the death certificate
• the autopsy report
• the police report and/or police accident report 
• photos or videos relating to your loved one’s injury or death
• contact information for any witnesses
• your own written account of the circumstances surrounding your loved one’s death
• any other relevant information or documents

This evidence can help the attorney better understand what happened. But even if you haven’t yet gathered a lot of evidence, you shouldn’t wait to schedule a consultation. If you and the attorney decide to work together, your attorney will conduct a more thorough investigation on your behalf and assist in identifying and gathering evidence. 

Looking for the best wrongful death lawyer in New York?

At Rosenblum Law, we understand that pursuing a lawsuit while grieving the loss of a loved one is one of the most difficult things a person can go through. But it’s also often a big step towards achieving financial security and closure for those left behind. 

If you believe your loved one died as the result of someone else’s negligent or intentional behavior, we’ll help you evaluate your options and determine the best path forward. And if we’re able to take on your case, we’ll guide you through the entire process with compassion and fight on your behalf for maximum compensation. Our recent wrongful death lawsuit successes in New York include:

• A $700,000 wrongful death settlement award in a case against a state psychiatric center for the wrongful death of a long-term patient who suffered from neglect leading to fatal infection and sepsis. 

• A $3.9 million settlement award against a delivery company and its insurer for the wrongful death of a 46-year-old Albany woman who was struck and killed by a van.

In addition, if we’re not the right law firm for you, we can provide guidance in selecting a law firm for your wrongful death case. We have a large network with dozens of law firms that we have pre-screened to ensure that you’ll get the best law firm for your specific case.
For a free consultation, call us today at 888-235-9021 or contact us through our website at www.rosenblumlaw.com/contact. We’re passionate about helping all our clients get the compensation they’re owed — and we won’t take a fee unless we win a settlement or verdict for you.

Pursuing a Wrongful Death Lawsuit in New York

If you decide to pursue a New York wrongful death lawsuit in New York, below is an overview of what you can expect. However, it’s best to get the help of an experienced attorney as early in the process as possible. This will help ensure that you meet all legal requirements and deadlines and build the strongest case possible. 

Statute of limitations for a New York wrongful death lawsuit

The “statute of limitations” is a law that sets the deadline for filing a legal claim. Under New York’s Civil Practice Law & Rules (“CPLR”) Sec. 210(a) and Sec. 214(5), the deadline for filing the survivorship claim part of a wrongful death lawsuit is the later of three years from date of the victim’s injury, or one year from the victim’s death. 

Under EPTL Sec. 5-4.1, the deadline for the wrongful death claim part of the lawsuit is generally two years from the date of death. However, there are certain exceptions, including the following:

• If the individual responsible for the death has a criminal case pending that’s related to the death, the deadline is one year from the date the criminal case ends (even if two years have already passed since the victim’s death).

• If the victim died as a result of the 9/11 terrorist attacks, the deadline is two and half years from the date of death.

While the above deadlines may seem like plenty of time, you should not delay starting your case for several reasons.

First, it’s possible that shorter deadlines may apply to your case. For example, if you’re pursuing a wrongful death case against a government entity, under New York’s Public Authorities Law Sec. 2980 and New York’s General Municipal Law Sec. 50-E, a notice of claim must generally be filed within 90 days of the appointment of the personal representative. Insurance policies may also have shorter deadlines, and if you miss them, you may lose out on a valuable source of compensation. 

Second, the strongest evidence is typically available early on. If you delay taking action, valuable evidence could become lost or destroyed. It may also become more difficult to locate and interview witnesses.

Finally, it can take longer than you think to choose the right attorney and conduct a thorough investigation. If a legal deadline is quickly approaching, you and your attorney will need to rush the investigatory process to avoid missing it. As a result, the margin for error will be much greater. By beginning the process early, you’ll be in the best position to build the strongest case possible. 

If you miss the deadline set forth in the statute of limitations that applies to your case, you’ll be barred from pursuing a lawsuit. However, even if you think the statute of limitations has passed, it’s worth it to at least consult a wrongful death attorney. The attorney can confirm the appropriate statute of limitations that applies to your case and whether any exceptions apply. 

Dealing with insurance companies

If the defendant has insurance covering wrongful death, the insurance company may take over the defense. In this case, the insurer may contact you. If this happens, you should decline to speak to them. Instead, refer them to your attorney. 

This is important because the top priority of any insurance company is to protect their bottom line. This means you cannot rely on them to be forthcoming with you about your rights or to offer a fair amount of compensation for your losses. 

In fact, adjusters will often use high pressure or manipulative tactics to get you to settle for a much smaller amount than you actually deserve. They’re also often experienced negotiators, and it’s easy for someone less experienced to fall prey to their tactics. 

If an insurance company contacts you, you should assume that they’re looking for information that they can use against you. This is true even if they seem friendly or sympathetic. By declining to speak to them and referring them to your attorney, you can be sure that you won’t accidently make statements that harm your case. 

You also should not sign anything an insurance company gives you without first consulting your lawyer. Doing so can have a serious impact on your rights and your ability to pursue compensation. 

Valuing a wrongful death case in New York

As noted in Chapter 1, a wrongful death lawsuit usually includes two separate claims: a survivorship action and a wrongful death action. The value of each claim is highly fact-dependent, and no two cases are alike. 

Your attorney, with the help of experts, will be responsible for identifying the types and amounts of damages to seek, as described in more detail in the sections below. Your attorney will also advise on whether any settlement offer is reasonable. This is why it’s best to work with an attorney who is experienced with wrongful death cases. An experienced attorney will have a much better sense of the types and amounts of damages that are possible and can advise you accordingly. 

If the case ends up going all the way through trial, the judge or jury will determine the final damages.

Survivorship action damages

For the survivorship action part of the lawsuit, the damages are generally the same as those the victim would have received in a personal injury lawsuit prior to death. This may include economic damages, such as medical bills and other injury-related expenses, and non-economic damages, such as for conscious pain and suffering.

Non-economic damages such as conscious pain and suffering can be especially difficult to quantify. The court will typically consider the time between injury and death, the severity of the pain, the victim’s knowledge of the impending death, and the length of suffering. 

Generally, the longer and more severe the suffering, the higher the damages will be. If there’s no evidence that the victim consciously suffered, it’s unlikely damages for pain and suffering will be awarded. 

In Cummins v. County of Onondaga, for example, the victim lost control of her car, causing her to veer off a county road, flip over, and come to rest upside down in a pond. The jury found that the county was negligent for failing to install a guardrail on the road and awarded $400,000 in pain and suffering at trial. 

However, the trial court vacated the award, which was upheld by both the Appellate Division and the Court of Appeals. In reaching its decision, the Court of Appeals noted as “[t]here was no evidence presented by plaintiff at trial from which the jury could infer that decedent was conscious.”

Punitive damages may be available in a survivorship action as well. However, courts rarely award punitive damages, as they are not meant to compensate the plaintiff. Instead, they’re intended to punish the defendant for their conduct and deter similar behavior in the future. This means they’re only awarded in cases involving especially egregious conduct. 

Interest will also be added to survivorship action damages awarded at trial. Such interest is calculated from the time of death. 

Wrongful death action damages

Under EPTL Sec. 5-4.3, damages for the wrongful death action part of the lawsuit will solely be based on financial losses (or “pecuniary injuries”) of the victim’s distributees. As noted in Chapter 1, the “distributees” are those who are entitled to share in the victim’s estate under New York’s intestacy laws, which generally includes the victim’s spouse and children, if any. 

Examples of pecuniary injuries suffered by distributees may include:

• Medical, funeral, and burial expenses
• Loss of the victim’s future earnings and financial support
• Loss of fringe benefits, such as medical coverage
• Loss of the victim’s nurturing, care, and parental guidance (even for adult children)
• Loss of inheritance for the victim’s children
• Loss of household services the victim would have provided to the family (such as childcare, cooking, and cleaning)

Damages for the distributees’ emotional losses (such as grief or mental anguish) are not recoverable, as such losses are not considered “pecuniary.” Punitive damages are possible, but they’re rarely awarded for the reasons described in the section above. Interest will also be added to wrongful death action damages awarded at trial, calculated from the time of death. 

When assigning a value to each distributee’s pecuniary injuries, the court will look at various factors such as:

• The victim’s age, general health, and life expectancy
• The victim’s future earning capacity and potential for career advancement 
• The distributee’s age, life expectancy, and level of dependency on the victim 

Unfortunately, this means that a high-earning victim who was financially supporting the family will be treated much differently than children, elderly retirees, and other non-wage earners. 

In Odom v. Byrne, for example, the evidence revealed that the victim had not lived with his wife and children for many years prior to his death. He also failed to provide any significant support. In addition, his children were 19 and 20, which meant they were within two years of the end of their rights to support. He had not seen his family for two years prior to his death, and they didn’t know where he was living or whether he was earning any income. 

Based on these facts, the Appellate Court held that the pecuniary injuries to the victim’s family were minimal. The trial court’s award of $90,000 was therefore reduced to $10,000. This amount was reduced even further by 50% due to the victim’s comparative fault. (See the section below titled Comparative fault in New York wrongful death lawsuits.)

As the Odom case shows, proving damages in wrongful death lawsuits involving non-wage earners (including children or elderly retirees) can be difficult. However, it is possible. This is another reason why it’s important to get the help of an experienced wrongful death attorney. Even if the victim was not earning income, the family may still be able to recover other types of damages, such as for household services and parental guidance.

Elements of a New York wrongful death lawsuit

As noted above, a wrongful death lawsuit includes two separate claims: a survivorship action and a wrongful death action. To win either claim, you generally have to prove the following four elements:

• Duty. This refers to the defendant’s “duty of care” to the victim. The exact nature of this duty depends on the facts, but everyone has a general duty to act with reasonable care under the circumstances so as to not injure others. 

• Breach. Once you identify the nature of the duty, you have to prove that the defendant breached that duty. The breach may be an intentional act or a negligent act. “Negligence” refers to a failure to take reasonable care under the circumstances. 

• Causation. A mere breach of duty is not enough to win a case. You also have to prove that the breach of duty caused the victim’s injuries (in the case of the survivorship claim) and death (in the case of the wrongful death claim). Proving causation generally requires that you show that if it weren’t for the defendant’s actions or failure to act, the victim would not have been injured or died. Autopsy reports and medical records can be especially valuable evidence for this element.

• Damages. Finally, you have to prove the extent of the damages. For the survivorship claim, this includes economic and non-economic losses incurred by the victim prior to death. For the wrongful death claim, there must be surviving distributees (usually the spouse and/or children) who sustained pecuniary losses as the result of the victim’s death. See the section above titled Valuing a wrongful death case for more information.

If your case goes to trial, the judge or jury will be responsible for deciding if you’ve sufficiently proved each of the elements above. If you don’t meet certain legal requirements, the judge may dismiss your case. 

Common evidence in a wrongful death case

To prove each of the elements described in the section above, you’ll have to work with your attorney to identify and gather a variety of evidence. The specific types of evidence will depend on the facts of your case, but some common examples include:

• Medical records
• Police and/or incident reports
• Death certificate 
• Autopsy report
• Photos/video of your loved one’s injuries or the scene of the accident
• Witness statements/testimony
• Details regarding the victim’s income and benefits
• Evidence of other economic losses, such as receipts and bills

You should be aware that some of the most valuable evidence can disappear over time. Witnesses may also become more difficult to locate, or they may forget key details. This is yet another reason why it’s so critical to engage an attorney as soon as possible. This way, your attorney can help you identify and collect evidence and build the strongest case possible. 

Your attorney will also engage experts to provide testimony on any special issues in your case. For example, medical experts can help establish the cause of death and the length of conscious pain and suffering. Accident reconstruction experts can provide valuable insight into how an accident occurred and why. And financial experts can help establish the value of pecuniary losses incurred by distributees. Unfortunately, not having the right experts can seriously damage your case. 

In Merola v. Catholic Medical Center of Brooklyn & Queens, Inc., for example, the husband was awarded $250,000 at trial for past and future pecuniary losses. However, he did not produce expert testimony or other evidence to support the value of lost services. As a result, on appeal the award was reduced to $50,000. The awards of the victim’s daughters were similarly reduced.

Given the importance of experts in the outcome of a case, you should choose a lawyer with access to highly qualified experts. The defense will also have experts testifying for them, so you’ll need quality experts to counter such testimony. The more qualified the expert is, the more likely the judge or jury will value their testimony during the trial. 

Comparative fault in New York wrongful death lawsuits

Sometimes, more than one party is responsible for the victim’s death. In fact, a common defense in a wrongful death lawsuit is that the victim was partially or completely at fault for their own death. However, even if they were partially at fault, it’s still possible to file a lawsuit and recover damages.

In these cases, under CPLR Sec. 1411, New York courts will apply the comparative fault rule. Under this rule, the jury will assign a percentage of fault to each party based on the evidence presented at trial. They’ll also determine the total amount of damages. If the victim was partially at fault, then the damages will be reduced by their percentage of fault. 

As an example, if there were $100,000 in total damages, and the jury finds the victim was 60% at fault for their injuries/death, then the resulting damages would be reduced to $40,000, or 40% of the total damages. 

This rule will also affect settlement negotiations, and insurance companies will apply this rule when evaluating claims. However, allocating fault is not an exact science, so it’s best not to make any assumptions about how fault will be allocated in your case. Instead, engage an experienced attorney. Your attorney, with the help of experts, will be able to help make sure fault is properly assigned in your case.

Distribution of damages in a New York wrongful death lawsuit

Although the personal representative of the victim’s estate will be responsible for filing the lawsuit, they may not necessarily recover any damages personally. Damages are distributed differently for the survivorship action and the wrongful death action, as described below.

Distribution of survivorship action damages

For the survivorship action, damages are recovered on behalf of the estate of the victim. This means that they’ll be distributed according to the will, if there was one. For example, if the victim’s will left everything to the spouse, then the spouse will recover all of the damages — even if the victim also had children. 

If the victim died without a will, then the survivorship action damages will be distributed according to EPTL Sec. 4-1.1 as follows:

• If there’s a spouse and no children, the spouse receives everything.
• If there are children and a spouse, the spouse receives $50,000 and half of the remaining balance, and the other half is divided equally among the children.
• If there are children but no spouse, the damages are divided equally among the children.
• If there are no children and no spouse, the settlement goes to the victim’s parents.

Note that because survivorship action damages become part of the victim’s estate, third parties may put a “lien” on them. A “lien” means that a third party is claiming a legal right to a portion of the damages to satisfy a debt owed to them by the victim or as reimbursement for amounts they paid on behalf of the victim. 

In a wrongful death case, common liens include Medicare, Medicaid, and ERISA liens. However, sometimes parties assert inappropriate liens, so it’s important to have your attorney review any such claims. 

Survivorship claim damages, as part of the victim’s estate, are also subject to federal and state estate taxes.

Distribution of wrongful death action damages

For the wrongful death claim, damages are recovered on behalf of the victim’s distributees who suffered pecuniary injuries as a result of the victim’s death. Distributees are generally those entitled to share in the victim’s estate under EPTL Sec. 4-1.1 as described in the section above (typically the spouse and/or children).

Unlike survivorship action damages, wrongful death action damages do not pass through the victim’s estate. The will, if any, is irrelevant. Instead, under EPTL Sec. 5-4.4, the personal representative distributes the damages to the distributees in proportion to their pecuniary losses.

Since wrongful death action damages do not pass through the victim’s estate, they are generally not subject to liens or estate taxes.

The litigation process

If you’ve never dealt with the legal system before, going through a wrongful death lawsuit can seem complicated and intimidating. Fortunately, your attorney will manage the process on your behalf. This includes all filings and paperwork, negotiations and other communications, and, of course, preparing and going to trial. 

A general overview of the legal process can be found here. You’ll have to participate in many aspects of the legal process, but your attorney should help you understand what to expect and guide you through each step. 

However, it’s difficult for even the best attorney to predict how long a wrongful death lawsuit will take. The length of any lawsuit depends on many factors, such as the unique issues in the case, the willingness of the defendant and other parties to cooperate, and the court’s calendar. 

As discussed in the section below, reaching a settlement agreement can help shorten the process. But a settlement can still take many months or even years to reach, and there’s no guarantee a settlement will be reached at all. If a case goes all the way through trial, it can also take several years to resolve.

Understanding the Litigation Process

If you and your attorney decide to proceed with a lawsuit, below is a general overview of what you can expect. While this may seem intimidating, your attorney will manage the entire process on your behalf and guide you every step of the way. 

• Summons and Complaint. To formally begin the lawsuit, you must file and serve what is known as the Summons and Complaint. The Complaint is a document that lays out the facts supporting each element of your claim and the compensation that you’re seeking. Your attorney will prepare and file the Complaint on your behalf, which will officially begin your lawsuit. A copy of the Complaint must also be delivered (or “served”) to the defendant, along with an official notice of the lawsuit called a “Summons.” 

• Defendant’s Answer. Once the defendant receives the Complaint, they’ll have to file an official response called an “Answer.” In their Answer, they’ll admit or deny the allegations in the Complaint. The Answer will also include any defenses and counterclaims. 

• Discovery. After the Summons, Complaint and Answer are filed, the discovery process will begin. During discovery, both sides will gather documents, information, and other evidence to build their cases and arguments. They’ll also engage expert witnesses and schedule “depositions” with various parties. Depositions are sworn, out-of-court testimonies in the form of question-and-answer sessions with the attorneys.

• Motions. Throughout the process, attorneys may make various requests to the court called “motions.” Examples include motions to dismiss (throw out the case because of a legal deficiency), compel discovery (order the other side to respond to a discovery request), or change venue (move the case to a court in another location).

• Trial. If the parties don’t reach a settlement agreement, after discovery the case will proceed to trial. However, a settlement can still be reached any time before the judge or jury makes a decision. During the trial, both attorneys will give opening statements, present all evidence, call witnesses (including experts), and conclude their cases with closing arguments. The judge or jury will then decide who wins the case and the amount of damages, if any (called the “verdict”).

• Appeal. Once the trial is over, the losing side may decide to “appeal” to a higher court. An appeal is basically asking the higher court to review the actions of the trial court and make sure the law was properly applied. By winning an appeal, it may be possible to reverse the decision of the trial court.

The amount of time it takes to go through the litigation process varies from case to case. It will depend on how complicated the case is, how busy the court is, and how willing the parties are to cooperate and negotiate. While some cases settle, if a case goes through a full trial, it can take several years to resolve.

If you believe you may have a personal injury or wrongful death claim, call Rosenblum Law today at 888-235-9021 or contact us through our website at www.rosenblumlaw.com/contact for a free consultation. If we’re able to take on your case, we’ll guide you through the entire legal process and fight on your behalf for the best possible outcome. We’re passionate about helping all our clients get the compensation they’re owed — and we won’t take a fee unless we win a settlement or verdict for you.]

Settling a New York wrongful death lawsuit

As noted above, part of the wrongful death lawsuit process involves negotiating with the defendants to resolve the case out of court. This is called a “settlement agreement.” Reaching a settlement is often preferred by both sides, as going through trial can take a lot of time and money, and the outcome is always uncertain. 

Settlements can be reached directly, or through a process called mediation. If the parties agree to mediation, a neutral third-party, called the mediator, helps the plaintiff and defendant reach a settlement. 

Whatever the method, reaching an agreement that both sides are satisfied with can be difficult. This is often true in a wrongful death lawsuit, where the stakes are especially high. The defendant will want to pay out as little as possible, and as a result, may resist offering an amount that’s fair in light of your losses. “Lowball” offers are especially common early in the process. 

You should never accept a settlement agreement without first consulting your attorney. Once you agree to a settlement, you’ll be barred from pursuing further claims against the defendant relating to your loved one’s death. Your attorney can help evaluate the pros and cons of accepting any settlement offer. 

Settlements in a Personal Injury or Wrongful Death Case

Throughout the entire legal process, your attorney will negotiate with the other side to try to resolve the case out of court. Resolving a case out of court is called a “settlement.” Both sides to a lawsuit usually prefer to settle, because it helps avoid the lengthy, expensive, and uncertain trial process. But defendants and their insurers also want to pay out as little as possible, and sometimes they may not offer a fair settlement. This is especially true early in the process, so it’s best not to rush settlement negotiations. In general, the faster you settle, the lower the settlement amount — sometimes for much less than your case is worth. 

You should also never accept a settlement offer until you’ve consulted with an attorney. Once you accept a settlement, you give up your rights to pursue the claim any further. Your attorney will review all evidence and engage the right experts to confirm a fair value for your case. They’ll also conduct settlement negotiations on your behalf. If your attorney can’t reach a fair settlement, they should be prepared and willing to go to trial. 

Note that a settlement may be reached through direct negotiations, or the parties may agree to mediation. Mediation is a proceeding where a neutral third-party, called the mediator, helps the plaintiff and defendant reach a settlement. Mediators are often retired judges, attorneys, or other court personnel. 

There are no set rules for mediation. Instead, it’s usually guided by the mediator’s own style and method. The mediator will listen to both sides and make sure everyone gets a chance to tell their story and ask questions. The idea is that this process will help both sides come to an understanding and fair compromise. Of course, sometimes that isn’t possible. If you can’t reach a compromise through mediation, you can still proceed with your case in court.
If you believe you have a personal injury or wrongful death claim, call Rosenblum Law today at 888-235-9021 or contact us through our website at www.rosenblumlaw.com/contact for a free consultation. We’re passionate about helping all our clients get the compensation they’re owed — and we won’t take a fee unless we win a settlement or verdict for you.]

New York Wrongful Death FAQs

If you believe your loved one died as the result of another’s intentional or negligent conduct, you likely have many questions about your case. Below are answers to some common questions about wrongful death in New York. However, every case is unique. If you want more information about your specific case, you should consult an experienced New York wrongful death attorney.  

Disclaimer 

This publication is intended as a general education guide to wrongful death lawsuits in New York. This publication does not constitute legal advice. Each case is unique and must be considered based on its own specific details. This publication is for informational purposes only and is based upon New York law at the time it was published. Subsequent changes in the law may or may not affect your rights. For specific legal advice regarding your case, it is advisable to consult an experienced New York wrongful death lawyer who will be able to review your situation and the specific details of your case and provide custom-tailored legal advice. © 2022 Rosenblum Law. All reproductions must credit Rosenblum Law. This publication may not be sold or used commercially without the written consent of Rosenblum Law.