Wrongful Death Attorneys In New York
The death of a loved one is a devastating event. When a loved one dies in a wrongful death, the grief may also be deeply horrific. The New York lawyers at Parker Waichman LLP have decades of experiencing working with families who have experienced the tragedy of a loved one’s wrongful death. The law in a wrongful death case in New York is complex and our attorneys have the experience, expertise, and compassion to create a solid case against all negligent parties while ensuring your privacy, respect, and grief.
When someone has died due to the wrongful actions of another person or entity, that individual or entity who/that caused the death may be found responsible in a wrongful death action. Wrongful death actions may be brought over construction accidents; medical malpractice; vehicular accidents; airplane accidents; police misconduct; or product liability that involves defective, dangerous products, drugs, and medical devices.
What Governs Wrongful Death Actions in New York?
“The New York Estates, Powers and Trust Laws” (EPTLs) govern New York wrongful death actions. EPTL, Section 5-4.1, which is entitled “Action by personal representative for wrongful act, neglect or default causing death of decedent,” gives the legal representative of the estate the right to bring an action for wrongful death. The right to recover damages for wrongful death is also governed by EPTL under Section 5-4.3, which is entitled “Amount of recovery.”
The statute is a so-called pecuniary (relating to or consisting of money) loss statute. This means that the legal representative of the decedent is required to prove pecuniary loss. This includes loss of support for the decedent’s next of kin due to the loss of the decedent’s earnings. In the case of the death of a parent who leaves a surviving spouse and dependent children, the claim may also be made for the economic loss over which they will suffer.
Economic loss is not limited to loss of earnings and may include loss of services to the decedent’s spouse and loss of parental care and guidance to the decedent’s children. In the case of the death of a child, loss of services to the parents may be claimed under specific circumstances.
What Constitutes Wrongful Death in New York?
Every U.S. state has its own laws governing wrongful death lawsuits. In New York, a wrongful death claim must be filed within two years from the date of the death of the deceased person. This statute of limitation bars wrongful death claims from courts in New York if more than two years have passed between the date of the death and the date of the wrongful death filing.
New York does not “toll,” or stop, the statute of limitations from running should the personal representative of the deceased person be a child or be someone who is legally incapable of filing the claim. When this occurs, the guardian of the child or of the incapable person should file the wrongful death claim instead.
In New York, a wrongful death, according to New York Estates, Powers, and Trusts Code Part 4 mandates proof of five elements to establish a wrongful death claim:
- A death.
- The death must be caused by the wrongful conduct of another individual or entity (the defendant).
- The death gave rise to the cause of action that the deceased party might have been able to pursue if the death had not occurred.
- The death left one or more persons as survivors who suffered a loss due to the death.
- The death resulted in damage the estate may recover.
In New York, following a case in the New York Court of Appeals, wrongful death claims are not recognized should a fetus die before birth, even if the death was caused due to another party’s wrongful act (In Endresz v. Friedberg, 24 N.Y.2d 478, the New York Court of Appeals).
In New York, the responsibility for filing a wrongful death is placed on the so-called “personal representative” of the deceased individual’s estate. In New York, a family member is not able to bring a wrongful death claim unless that family member is also the personal representative of the deceased individual’s estate.
A wrongful death claim may be sought for damages over losses that were suffered by the deceased individual’s heirs, beneficiaries, or devisees (persons to whom real estate is given), as well as damages for losses suffered by the deceased person’s estates. Should damages be awarded, the court treats the personal representative as if he or she holds the damages award in a trust for the surviving family member, or members, to whom those proceedings are due.
Damages In New York Wrongful Death Claims?
When damages are awarded in New York wrongful death cases, specific facts must be demonstrated in court.
Losses in New York may include expenses for funeral and burial; expenses for reasonable medical, nursing, and other health care expenses that are associated with the deceased person’s final injury or illness; lost wages and benefits between the deceased’s individuals final illness or injury and his or her death; lost inheritance that is suffered by the deceased’s surviving children; conscious pain and suffering that was suffered by the deceased individual’s due to the final injury or illness; the value of parental nurturing, care, and guidance to surviving children and that the deceased provided to his or her family members; and nine percent interest on the damages awarded that are counted from the date of the allegedly wrongful death.
New York does not permit surviving family members to recover their damages for pain and suffering, mental anguish, and loss of companionship. This applies even the deceased person is a child. Parents are able to attempt to recover damages for the lost value of services such as household chores performed by the child; however, the amount will be reduced by the reasonable cost of caring for that child until he or she would reach the age of adulthood.
To Determine if You Have A Wrongful Death Lawsuit in New York
The attorneys Parker Waichman have a long history of successfully fighting New York wrongful death cases and recovering compensation for their clients for lost wages, medical expenses, and diminished quality of life. The firm offers legal consultations to individuals with questions about filing a wrongful death lawsuit.
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