A survival action is the estate’s claim for what the decedent suffered before death. It is separate from the wrongful death action and recovers a different category of damages.
When someone dies as a result of negligence, two claims arise:
Wrongful death (EPTL §5-4): The family’s claim for their pecuniary loss — loss of support, services, parental guidance, and inheritance. Recovery passes to distributees under intestacy.
Survival action (EPTL §11-3.2): The decedent’s own claim for what the decedent suffered before death — conscious pain and suffering, medical expenses incurred before death, lost earnings between the injury and death. Recovery passes through the decedent’s estate under the will or, if no will, under intestacy.
Under §11-3.2, the estate can recover pre-death conscious pain and suffering, medical bills incurred between the injury and the death, lost earnings the decedent would have made between the injury and the death, and property damage sustained by the decedent.
The “conscious” requirement is critical. If the decedent was rendered immediately unconscious and never regained awareness before death, conscious pain and suffering is not recoverable — only the other categories.
This is the load-bearing fact most often missed:
The survival claim is the decedent’s own claim, surviving death. It carries the statute of limitations the decedent would have had if alive — three years for ordinary personal injury (CPLR §214), two years and six months for medical malpractice (CPLR §214-a), measured from the date of the original injury, not the date of death.
The wrongful death claim under EPTL §5-4.1 has a two-year clock from the date of death. When death is delayed (a worker injured in January, dying in November of the following year), the two SOLs run on different timelines. We file each claim against its own deadline.
The conscious-pain element is proved through hospital records (Glasgow Coma Scale entries, sedation administration logs, response to stimuli), first-responder testimony (EMS run reports, fire-department reports, police statements), eyewitness accounts, and treating physician and expert testimony interpreting the medical record. Even a brief period of conscious suffering can support a substantial recovery. We preserve the medical record the day we are retained.
Unlike the wrongful death recovery (which passes under intestacy regardless of the will), the survival recovery passes through the decedent’s estate and is distributed according to the will. If there is no will, intestacy applies. This is a meaningful distinction for blended families, estranged relatives, or testamentary plans that vary from intestacy.
Yes. Immigration status does not bar a Labor Law claim in NY. Communications with us are protected by attorney-client privilege.
In most cases, yes. Workers’ comp covers your employer. The Labor Law claim is against third parties — property owner, GC, subcontractor. The two run in parallel.
Three years from the accident under CPLR §214. If a public entity is involved (NYCHA, a city project), a 90-day Notice of Claim is required under GML §50-e.
That the decedent was conscious for some period between the injury and the death, and that during that period the decedent experienced pain and suffering. Even a brief period of consciousness can support a substantial recovery.
The decedent’s own SOL, surviving death. Three years from injury for ordinary PI (CPLR §214). Two years and six months for medical malpractice (CPLR §214-a). Measured from the date of injury, not from the date of death.
The estate’s personal representative (executor or administrator) controls the action.
Through the decedent’s estate, under the will. If there is no will, by intestacy.
Usually yes, but the two recoveries can pass to different beneficiaries depending on the will and the family structure.
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