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Each state has laws pertaining to how wrongful death lawsuits proceed.
In the state of New York, there are five elements plaintiffs need to establish a claim for wrongful death. They are the following:
(1) A death (2) that was caused by the defendant’s wrongful or negligent conduct (3) giving rise to a specific cause of action the deceased could have pursued in a lawsuit had he or she not died from the conduct. There must also be (4) survival of at least one person who has suffered some sort of loss due to the death and (5) damages the victim’s estate can recover.
Only the personal representative of the deceased person’s estate may file a wrongful death claim. This differs from many other states, which tend to allow family members to file these claims, as well. The only exception to this rule in New York is if a family member is serving as the deceased’s personal representative.
Through these claims, plaintiffs may seek damages for losses suffered by any heirs, family members or beneficiaries, along with damages suffered by the deceased’s estate. If the court does award damages, the personal representative takes possession of them in a trust and is responsible for distributing them to the deceased’s surviving family members.
Available damages in wrongful death claims
The types of damages awarded in a wrongful death lawsuit in New York depend on the facts that were brought forth in the case. Typically, damages are meant to compensate for losses such as the following:
- Funeral and burial costs
- Various medical, nursing and healthcare expenses related to the final injury or illness suffered by the deceased
- Wages and benefits lost between the time of the final injury or illness and the death of the deceased
- The value of support and other services the deceased had provided to his or her family
- The value of the guidance, nurturing and care the deceased provided to children
- Lost inheritance suffered by the deceased’s surviving children
- Pain and suffering endured by the deceased relating to his or her final injury or illness
- Nine percent calculated interest on all damages rewarded based on the date of death
There are no damages allowed for surviving family members to compensate them for their own pain and suffering damages, mental anguish or loss of consortium or companionship—even if the deceased was a minor child.
All wrongful death claims in New York must be filed within two years of the victim’s passing. Any cases filed outside of this statute of limitations will likely be dismissed.
To learn more about how to proceed with a wrongful death claim, meet with a knowledgeable New York wrongful death attorney at Robinson & Yablon, P.C.