1.  What qualifies as a wrongful death case in New York? 
 When someone dies because of another person’s negligence or wrongdoing (for example, a car crash, construction site accident or medical malpractice), the decedent’s family or legal representatives may bring a wrongful death lawsuit. 
 

2.  Who can bring a wrongful death lawsuit in NY? 
 An executor or administrator of the deceased’s estate usually brings the claim on behalf of the surviving spouse, children, and/or other distributees. The law (Estate, Powers & Trusts Law §5‑4.1) sets out who qualifies as a distributee. 
 

3. How long do I have to file a wrongful death claim in New York? 
 A wrongful death lawsuit must be filed within two (2) years of the decedent’s date of death. 
 

4. What kinds of damages can survivors recover in wrongful death cases? 
 The only damages recoverable in a wrongful death lawsuit are pecuniary, i.e. economic damages such as funeral and burial costs and loss of the deceased’s earnings, both past and future. Damages for minor children may also include loss of parental guidance. Unfortunately, non‑economic damages such as grief and loss of companionship are not recoverable. 
 

5. Does the statute of limitations start on the date of death or the date of the accident/injury? 
 It starts on the date of death. Even if the event which caused the death happened earlier, what matters is the date the person died. 
 

6. Do I need to worry about wrongful death cases involving government entities having special rules? 

Yes. If a government agency is a defendant, you often must first file a Notice of Claim within a short period (usually within 90 days), before suing. After the Notice of Claim is filed, a lawsuit must still be filed within two (2) years of the date of the individual’s death. 

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7. How long will a wrongful death case take to resolve in NY? 
 It depends. Some wrongful death claims are straightforward and can be resolved in a matter of months. Others are more complicated and can take years to resolve, especially if there are disputes as to liability and damages, or if the case proceeds to trial. And before any wrongful death lawsuit can be filed, there needs to be a duly-appointed representative of the estate which can further prolong the process. 

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8. How much does it cost to bring a wrongful death case? 
 Most attorneys who handle wrongful death lawsuits work on a contingency fee basis meaning there’s only a fee if there’s a recovery (whether by settlement or jury verdict). The attorney’s fee, which is typically one-third (1/3) of the recovery, is always subject to Court approval. 
 

9. What evidence is needed in a wrongful death case? 
 In addition to the evidence necessary to establish fault on the part of the defendant, a plaintiff in a wrongful death lawsuit will need evidence causally connecting the incident with the decedent’s death including medical records, an autopsy report and, oftentimes, expert medical testimony. Evidence will also be needed to prove pecuniary damages, including income tax returns, W-2s, union benefit records and employment records.

 

10. Can I sue for wrongful death if the death was partly my loved one’s fault? 
 Yes. New York is a pure comparative fault jurisdiction which means that even if the decedent was partially at fault for the incident causing his or her death, the surviving distributees are still entitled to a recovery, albeit one that it reduced by the deceased’s proportion of fault.

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