Practice Areas / Wrongful Death & Survivor

Wrongful Death Actions in New York.

When someone dies because of another party’s negligence, New York law gives the family a direct claim for the financial loss the death caused. This is separate from the pain and suffering the deceased experienced before death. Most families do not know the difference — and that difference can determine how much they recover.

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01 — Two Claims

Two parallel actions, governed by different statutes.

New York splits a death-by-negligence case into two claims, with different damages, different beneficiaries, and different proof.

Wrongful Death Action — EPTL §5-4.1

Brought by the personal representative of the estate on behalf of the distributees — generally the spouse, children, and parents. Compensates the family for the pecuniary loss they suffered because the person died. Forward-looking — what the family lost going forward.

Survival Action — EPTL §11-3.2

Brought by the estate. Compensates for what the deceased experienced before death — conscious pain and suffering, medical bills between injury and death, and lost wages during that interval. Backward-looking — the claim the person could have brought themselves if they had survived.

“The two claims are typically filed together, valued together, and settled together. But they have different beneficiaries, different proof, and different damages models. A serious wrongful death practice treats them as the separate cases they are.”

02 — Pecuniary Loss

What the wrongful death claim covers.

The wrongful death claim does NOT compensate the family for grief, emotional suffering, or loss of the relationship in the abstract. New York wrongful death damages are restricted to pecuniary loss — the financial support, services, and inheritance the family lost. That includes:

The pecuniary-loss limitation is one of the most criticized features of New York wrongful death law. It is also the framework. Building the damages case requires economic-loss modeling, often with a forensic economist, and a careful record of what the deceased contributed financially and otherwise.

03 — Common Causes

Underlying liability theories.

Wrongful death claims in our practice typically arise out of:

Medical Malpractice

Certificate of Merit required

Premises Liability

Falls, fires, building collapses

Auto / Truck Collision

PIP + BI + UM/UIM stacking

Construction Fatality

Coordinated with construction practice

Negligent Security

Criminal acts on premises

Defective Products

Manufacturer liability

Each underlying cause has its own evidentiary playbook. The damages framework above is constant.

04 — Statute of Limitations

Two years from the date of death.

Under EPTL §5-4.1, the wrongful death action must be filed within two years from the date of death. This is shorter than the three-year statute that applies to most personal injury claims under CPLR §214. Families often assume they have three years and find out otherwise too late.

Watch for the 90-day Notice of Claim trap

If a public entity is responsible — a city hospital, NYCHA, the MTA, a school district — a 90-day Notice of Claim is ALSO required under General Municipal Law §50-e. The 90 days runs from the date the cause of action accrued, which for wrongful death is the date of death. Two clocks running at once.

Distributee disputes can also complicate the timeline. Recoveries are distributed among the distributees according to NY intestacy rules — even where there is a will. The will controls the deceased’s property; the wrongful death recovery follows EPTL §4-1.1 distribution. We have handled cases where the distributee question itself becomes a separate negotiation.

05 — How We Work

No fee unless we recover.

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Bob personally represents Amparo’s clients.

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English · Español · فارسی — directly by the principals.

Prior results do not guarantee a similar outcome.

06 — FAQ

Questions families ask.

Who can bring a wrongful death action in NY?

The personal representative of the estate — usually the executor named in the will, or the administrator appointed by Surrogate’s Court if there is no will. Beneficiaries (distributees) do not bring the action directly; they receive their share through the estate.

Can I recover for my own grief and emotional suffering?

New York does not currently permit recovery of “grief” damages in a wrongful death claim. The recovery is limited to pecuniary loss. The survival claim can compensate for the deceased’s pre-death conscious pain and suffering, which sometimes captures the weight of what happened in a different doctrinal frame.

What if my family member died in a hospital?

Medical malpractice wrongful death cases have specific procedural requirements — a Certificate of Merit, expert affidavits, and a heightened evidentiary standard. The two-year wrongful death statute still controls the filing deadline.

Does immigration status matter?

No. Immigration status does not bar a wrongful death claim in New York. The economic-loss model considers actual earning history. We have represented immigrant families and conducted the case the same way as any other.

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