Practice Areas

Wrongful Death

A wrongful death claim is a suit that arises from the death of an individual that was caused by the conduct of another. A wrongful death suit is different from other types of personal injury claims because the actual victim (the "decedent") is not bringing suit. Rather, it is the surviving family members or the decedent's estate. As such, a wrongful death claim is brought to recover damages for the injuries that the surviving family and/or estate have suffered due to the death of the victim. The wrongful death claim on behalf of the surviving family is usually joined with the claim for conscious pain and suffering of the deceased. Cummins v. County of Onondaga, 84 N.Y.2d 322 (1994). This aspect of the claim is based on the concept that the right of the victim to bring a lawsuit if the victim survived should not be destroyed because the wrongdoer succeeded in eliminating the victim's life. The purpose of a wrongful death suit is to provide relief to family members who have been injured emotionally and financially as a result of the family member's death.

To file a wrongful death suit in New York, you must show that:

  • The act, neglect, or default would have entitled the injured person to file an action to recover damages had the death not occurred;
  • There are surviving distributees, children, or dependants of the victim; and
  • Monetary damages have resulted from the decedent's death. N.Y. Est. Powers & Trusts Law §5-4.3 (Consol. 2002).

Only certain individuals can file wrongful death claims, and those that are allowed to sue do so on behalf of others. In New York, a surviving spouse, child, parent or guardian, or personal representative of the deceased person may file a suit on behalf of the surviving spouse, children, or parents. A personal representative is a person appointed by the state of New York to represent the beneficiaries. Siblings and cousins of the decedent do not have the right to bring the lawsuit unless they have been named as guardian or personal representative of the decedent, in which case they still have no right of recovery so long as there is a surviving spouse, child, or parent of the decedent. If there is no surviving spouse, child or parent, however, siblings may file the suit on behalf of the decedent's estate and may participate in the recovery through the estate. N.Y. Est. Powers & Trusts Law § 4-1.1 (Consol. 2002).

 


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