Wrongful Death Lawyer in New York

Who can bring the claim and who receives the recovery in New York

In New York the family members do not file the wrongful death claim in their own names. It is brought by the personal representative of the estate on their behalf. If the person left a will, the executor named in it serves once the Surrogate's Court issues letters testamentary. If there was no will, the Surrogate's Court of the county where the person lived appoints an administrator and issues letters of administration. We prepare and file that petition, because nothing can be filed or settled until the letters exist.

The recovery is for the distributees, the people who would inherit under New York's intestacy rules: the surviving spouse and children first, and the parents if there is no spouse or child. It is divided among them in proportion to the financial loss each one suffered rather than in equal shares, and the Surrogate's Court reviews the division so that a minor child's share is protected and set aside for the child.

The survival claim is a separate asset of the estate. It passes under the will or the intestacy rules, so the people who receive it can differ from those who share in the wrongful death recovery. Both claims are pursued together in one lawsuit by the same representative, and the settlement papers allocate the money between the two. The Surrogate's Court approves that allocation, which matters for liens, for taxes and for the children.

Families ask whether a spouse who was separated, a child from an earlier relationship, an unmarried partner, or a parent who had been estranged has any share. The answer turns on the intestacy rules and on who actually suffered a financial loss, not on the family's feelings about it, and an unmarried partner generally is not a distributee. We explain how those rules apply to your family before anything is filed, so there are no surprises later.

What a New York wrongful death claim can recover

New York has traditionally measured a wrongful death claim by pecuniary loss, meaning the financial value of what the distributees lost. That includes the income the person would have earned and contributed over a working lifetime, the value of the household services the person provided, the medical and funeral expenses paid on the person's behalf, and, for children, the loss of a parent's nurture, care and guidance, which New York treats as a pecuniary loss even though it was never paid in dollars.

The value is built from the person's life: pay records and tax returns, the years the person would likely have worked, the care a parent gave to young children, the help a grown child gave aging parents. We work with an economist to project those figures over the years the family would have had them. A stay at home parent of small children and a retiree who cared for grandchildren both had a financial value far larger than a paycheck shows.

The survival claim is measured differently. It covers what the person experienced between the crash and the death: conscious pain and suffering, including the fear the person felt in the moments before the impact, along with the medical bills and lost wages during that period. When a person survived for hours or days at a trauma center, the survival claim can be substantial. When the death was immediate it is smaller, but not always zero, and it is still evaluated.

No fault coverage under Insurance Law 5102 pays the medical bills from the crash regardless of fault, so the family is not left holding the hospital bill while the claim is pending, and under Insurance Law 5106 those benefits are due within 30 days of proof of claim. No fault coverage also carries a death benefit payable to the estate. Death is one of the serious injury categories in Insurance Law 5102(d), so the threshold in Insurance Law 5104 does not block the survival claim for pain and suffering.

Insurance sets the practical ceiling. A minimum policy pays its limit no matter how great the loss, which is why we search for every source: the owner's policy if the driver borrowed the car, an employer's policy, a trucking company's coverage, a for hire vehicle's required coverage, a rideshare company's commercial policy, and the family's own supplementary underinsured motorist coverage. We do not quote a number on the first call. Past results do not guarantee a similar outcome.

What if the insurer delays, denies or lowballs a New York wrongful death claim

Insurers know a grieving family is not thinking about litigation, and some use that. The adjuster may call within days, express condolences and offer to resolve things quickly. A fast offer in a death case is almost never a fair one. It is an attempt to close the file before the family understands what it lost or has spoken with a lawyer. You do not have to take that call, and once we are retained the insurer speaks only to us.

The most common argument in a New York death case is shared fault. Under CPLR 1411 the person's own negligence reduces the recovery by their percentage, and because the person cannot tell their side, the insurer's version of the crash can go unanswered unless someone answers it. We do, with the collision investigation file, the vehicles' event data, footage from traffic cameras, buses and storefronts, and the witnesses.

The second argument is value. Insurers argue that a retiree, a student or a stay at home parent had little pecuniary value, or that a young person's future earnings are too speculative to count. New York law does not accept either position, and neither do we. Household services, parental guidance and the support a person would have provided have a value an economist can calculate and a jury can understand.

Delay is the third tactic, and it counts on the deadline. When the insurer will not pay fairly, we file suit in the Supreme Court of the county where the crash happened or where a party lives and use discovery to put the driver, the company and the experts on the record. Most death cases still settle, and a settlement involving minor children is reviewed and approved by the court. They settle for more when the insurer knows a jury is the alternative.

How long a New York family has to file

A New York wrongful death action must be brought by the personal representative within two years of the death under EPTL 5-4.1. The clock runs from the death, not the crash, and it does not wait for the estate to be opened. The letters must be issued and the lawsuit filed inside the same two years. When a person survived in the hospital for weeks, the two dates differ and we calendar both.

The survival claim for the person's own injuries generally follows the three year personal injury deadline under CPLR 214, measured from the crash. We do not rely on the longer period. Both claims are filed together inside the two year wrongful death window so nothing is at risk. Families who first call near the anniversary of a death sometimes find there is barely enough time to open the estate and file, which is why an early call matters.

Public entities have a much shorter fuse. If an MTA or New York City Transit bus, a police car, a sanitation truck, a county vehicle, or a road or signal a municipality maintained played a part in the crash, General Municipal Law 50-e requires a notice of claim within 90 days. In a death case that period runs from the appointment of the personal representative, but we do not lean on that. We open the estate and serve the notice early, because a late or defective notice can end the claim against that entity regardless of fault.

Insurance deadlines run sooner still. The no fault application is generally due within 30 days of the crash, and under Insurance Law 5106 the carrier must pay within 30 days of proof of claim. The family's own uninsured and underinsured motorist coverage requires that the carrier be notified before any settlement with the at fault driver. If the driver fled and was never found, a claim through MVAIC has its own short notice periods. These are the deadlines that quietly cost families money, and they are the first ones we handle.

What to do in the first weeks after a fatal New York crash

Take care of your family first. Nothing here has to happen the week of the funeral, and once we are retained we handle nearly all of it. The steps are listed so you know what is coming and why. The one thing to do early is to say no to the insurance adjuster. You are not required to give a recorded statement or to sign a release, a medical authorization or any advance payment paperwork, and the adjuster who calls in the first days is looking for a fault argument, not offering help.

Open the estate. The Surrogate's Court of the county where the person lived issues the letters that authorize a representative to act, and nothing can be filed or settled without them. Obtain several certified copies of the death certificate from the funeral director or the city or county registrar; the court, the insurers and the banks all require originals. If there is a will, locate it. If there is not, we prepare the petition for letters of administration so the claim can move.

Preserve the evidence. A fatal crash is reconstructed by the police for the criminal file, but that file can take months to be released and was not built to answer the civil questions. The vehicles hold event data about speed, braking and seat belts, and a tow yard or an insurer will crush or auction a car within weeks unless told not to. We send preservation letters immediately to the tow yards, the trucking or bus company, the businesses with cameras along the road, and the city agencies whose traffic cameras may have recorded the crash.

Keep the paper. Funeral and burial invoices, the hospital bills, the person's most recent pay stubs and tax returns, and a list of the household work the person did and who does it now. Those documents become the financial picture of the claim. Funeral expenses are recoverable, and the no fault coverage and its death benefit are the first places we look so the family is not carrying those costs alone.

What Your Claim Can Cover

• Funeral and burial expenses
• Lost financial support for dependents
• Loss of guidance, care and companionship where allowed
• Conscious pain and suffering of the deceased before death
• Claims against drivers, carriers and government entities