NY Wrongful Death: What Is It & How Do File a Lawsuit?
UPDATED: March 4, 2020
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Wrongful death generally refers to the death of somebody as a result of the negligence of another party such as the driver of a motor vehicle, a doctor or hospital in a medical malpractice situation or by someone at a construction site. The process of filing a lawsuit requires meeting the statute of limitations and having the legal capacity to bring the claim. Our New York legal expert provides the details.
NY Wrongful Death Attorney Ira Slavit
Ira Slavit, a New York lawyer whose practice represents the families of wrongful death victims, says that when a wrongful death lawsuit is brought in New York, it usually consists of two different parts. He explained:
The first part is a cause of action for wrongful death, which is a creation of statute, specifically the Estates Powers and Trusts Law (EPTL) of the State of New York. Article 5 (Family Rights), Part 4 of the EPTL establishes who can collect and recover and it also establishes the types of damages that can be recovered for the harm or damage that’s caused by the fact that someone has died.
The second part of the action is to recover for the conscious pain and suffering of the deceased, which is a common law right of action that can also be pursued by the estate on behalf of the deceased.
The Process of Filing a New York Wrongful Death Lawsuit
In addition to meeting the statutes of limitationand filing requirements, Slavit says that you must obtain the legal capacity to bring the lawsuit – a next of kin can’t just show up in court, file a lawsuit, and say, “I’m representing the estate.” He explained:
Proceedings have to be brought in the Surrogates Court of the county the decedent resided in at the time of his or her death so that a proper representative can be appointed. How that gets accomplished varies depending upon whether the decedent had a Will or not.
If the decedent did have a Will, then the Will is offered for probate and there will usually be a designation in the Will naming the executor of the estate. If the person dies without a Will, then Letters of Administration have to be issued by the Surrogates Court. As a matter of practice, if the family comes to us and nothing has been done in terms of having a proceeding in Surrogates Court instituted, we usually will handle that for the family so that we’re able to get things set up and then proceed with the lawsuit.
Once an executor has been appointed and they have standing to sue, then they’re really in the position of any other plaintiff of someone who was alive. So, at that point, Slavit says, assuming that the case is ready to be put into suit and that the time limits are met, then an action is commenced on behalf of an estate in the name of either the executor or the administrator of the estate.
Dealing with wrongful death issues is difficult for any family who's lost a loved one – especially understanding what types of damages are available, when the statute of limitations begins tolling and who can file a lawsuit on behalf of the deceased. For additional information on frequently asked questions about New York wrongful death, please click here.