Each state has different laws in place when it comes to filing lawsuits. These laws define many things, including the time limit for a person to file a lawsuit—this is called the statute of limitations. The statute of limitations varies depending on what type of lawsuit a person is looking to file.
In New York, the statute of limitations for a wrongful death lawsuit is two years from the date of the decedent's death. However, this only applies to cases where the liable party is a private entity. If the claim is being filed against a public entity (ex: town, city, county), a Notice of Claim must be given to the potential defendant within at least 90 days of the appointment of a personal representative.
If the person who plans on filing the wrongful death claim fails to do so within the time frame, they will be prohibited from seeking compensation.
Are There Exceptions to the Wrongful Death Statute of Limitations?
Although quite rare, there are some instances where you may be granted an extension of time when filing a wrongful death claim. These exceptions are in cases of:
- Medical malpractice - New York has a separate statute of limitations for medical malpractice claims, which is two years and six months. If your loved one's death was the result of medical malpractice, such as misdiagnosis, you may qualify for an extended statute of limitations.
- Criminal process - If the defendant of a wrongful death lawsuit is also the subject of a pending criminal case, then you have one year from the conclusion of the criminal case to file a claim.
- Beneficiary is a minor - In cases where the sole beneficiary of the wrongful death case is under the age of 18, New York law allows for the wrongful death claim to be delayed until the minor comes of age, or a legal guardian can be appointed for them.
An experienced New York wrongful death attorney from Salenger, Sack, Kimmel & Bavaro, LLP can review your case during a free consultation and explain if any of these exceptions apply.
What is a Wrongful Death?
According to the New York's legal code, wrongful death defined as a: “wrongful act, neglect or default which caused the decedent's death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued.”
Wrongful deaths common occur as a result of:
- Car, motorcycle, and semi-truck accidents
- Bicycle and pedestrian accidents
- Medical malpractice
- Construction accidents
- Maritime accidents
- Railroad/FELA accidents
Who Can File for Wrongful Death in New York?
A personal representative, also called an executor, is required in New York to file a wrongful death lawsuit. A personal representative is usually defined in the deceased person’s will. If a person passes without a will, the court will appoint a personal representative to handle the decedent's financial affairs. For someone to serve as a personal representative or executor, a person must be:
- 18 years old or older
- Of sound mind (not deemed incapacitated by a court)
- Free of felony convictions
A personal representative can also be rejected in court if they are deemed unfit to serve due to dishonesty or substance abuse.
What Damages are Available in a Wrongful Death Claim?
Damages are the sum of compensation that a plaintiff is awarded from the defendant following a lawsuit. The amount of damages awarded depends on the situation and severity of the case. Some damages a plaintiff can recover include:
- Funeral expenses
- Healthcare expenses related to the decedent’s injuries/death
- Loss of financial support
- The value of support the decedent would have contributed to the family, including parental care or guidance if applicable
- Loss of protection
Right now, families cannot seek emotional damages, like pain and suffering, loss of companionship, and mental anguish in a wrongful death claim. However, the Grieving Families Act aims to change that. You can read more about it here.
Frequently Asked Questions
Who gets what when the settlement is paid out?
While the personal representative handles the wrongful death claim, the payout is usually distributed among the decedent’s relatives if beneficiaries are not named. Depending on the survivors, the typical payout follows these rules:
- The decedent’s spouse would receive the full settlement if they left behind no children.
- If children and a spouse are left behind, the spouse will receive $50,000, and then the rest of the settlement is divided among the children and spouse. Each child will receive the same amount.
- If there are children but no spouse, the settlement is then divided equally amongst the children.
- The decedent's parents would receive the total amount if they did not leave behind a spouse or children. If the parents are divorced, both will get 50% of the settlement.
Do I have a wrongful death case?
If a family member of yours has passed away due to the negligence of another person or party, you may have a wrongful death claim on your hands. However, it’s best to get an opinion from a legal expert to know if you have grounds for a lawsuit.
How Do I Start a Wrongful Death Claim in New York?
When you are ready, we recommend you give our experienced wrongful death attorneys here at Salenger, Sack, Kimmel & Bavaro, LLP. We understand just how difficult the aftermath of an unexpected loss can be, and we’re here to get you the care you need to heal and recover from this loss.
We offer free initial consultations and contingency fees, so you don’t have to worry about paying upfront unless we recover compensation for you. To get in touch with our office, call us at (800) 572-7246 or fill out a consultation request form here.