S 5-4.1 Action by personal representative for wrongful act, neglect or
default causing death of decedent
1. The personal representative, duly appointed in this state or any
other jurisdiction, of a decedent who is survived by distributees may
maintain an action to recover damages for 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. Such an action must be commenced within two years
after the decedent`s death; provided, however, that an action on behalf
of a decedent whose death was caused by the terrorist attacks on
September eleventh, two thousand one, other than a decedent identified
by the attorney general of the United States as a participant or
conspirator in such attacks, must be commenced within two years and six
months after the decedent`s death. When the distributees do not
participate in the administration of the decedent`s estate under a will
appointing an executor who refuses to bring such action, the
distributees are entitled to have an administrator appointed to
prosecute the action for their benefit.
2. Whenever it is shown that a criminal action has been commenced
against the same defendant with respect to the event or occurrence from
which a claim under this section arises, the personal representative of
the decedent shall have at least one year from the termination of the
criminal action as defined in section 1.20 of the criminal procedure law
in which to maintain an action, notwithstanding that the time in which
to commence such action has already expired or has less than a year
remaining.
S 5-4.2 Trial and burden of proof of contributory negligence
On the trial of an action accruing before September first, nineteen
hundred seventy-five to recover damages for causing death the
contributory negligence of the decedent shall be a defense, to be
pleaded and proved by the defendant.
S 5-4.3 Amount of recovery
(a) The damages awarded to the plaintiff may be such sum as the jury
or, where issues of fact are tried without a jury, the court or referee
deems to be fair and just compensation for the pecuniary injuries
resulting from the decedent`s death to the persons for whose benefit the
action is brought. In every such action, in addition to any other
lawful element of recoverable damages, the reasonable expenses of
medical aid, nursing and attention incident to the injury causing death
and the reasonable funeral expenses of the decedent paid by the
distributees, or for the payment of which any distributee is
responsible, shall also be proper elements of damage. Interest upon the
principal sum recovered by the plaintiff from the date of the decedent`s
death shall be added to and be a part of the total sum awarded.
(b) Where the death of the decedent occurs on or after September
first, nineteen hundred eighty-two, in addition to damages and expenses
recoverable under paragraph (a) above, punitive damages may be awarded
if such damages would have been recoverable had the decedent survived.
(c) (i) In any action in which the wrongful conduct is medical
malpractice or dental malpractice, evidence shall be admissible to
establish the federal, state and local personal income taxes which the
decedent would have been obligated by law to pay.
(ii) In any such action tried by a jury, the court shall instruct the
jury to consider the amount of federal, state and local personal income
taxes which the jury finds, with reasonable certainty, that the decedent
would have been obligated by law to pay in determining the sum that
would otherwise be available for the support of persons for whom the
action is brought.
(iii) In any such action tried without a jury, the court shall
consider the amount of federal, state and local personal income taxes
which the court finds, with reasonable certainty, that the decedent
would have been obligated by law to pay in determining the sum that
would otherwise be available for the support of persons for whom the
action is brought.
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Introduction to Wills
Introduction to Trusts
S 5-4.4 Distribution of damages recovered (a) The damages, as prescribed by 5-4.3, whether recovered in an action or by settlement without an action, are exclusively for the benefit of the decedent`s distributees and, when collected, shall be distributed to the persons entitled thereto under 4-1.1 and 5-4.5, except that where the decedent is survived by a parent or parents and a spouse and no issue, the parent or parents will be deemed to be distributees for purposes of this section. The damages shall be distributed subject to the following: (1) Such damages shall be distributed by the personal representative to the persons entitled thereto in proportion to the pecuniary injuries suffered by them, such proportions to be determined after a hearing, on application of the personal representative or any distributee, at such time and on notice to all interested persons in such manner as the court may direct. If no action is brought, such determination shall be made by the surrogate of the county in which letters were issued to the plaintiff; if an action is brought, by the court having jurisdiction of the action or by the surrogate of the county in which letters were issued. (2) The court which determines the proportions of the pecuniary injuries suffered by the distributees, as provided in subparagraph (1), shall also decide any question concerning the disqualification of a parent, under 4-1.4, or a surviving spouse, under 5-1.2, to share in the damages recovered. (b) The reasonable expenses of the action or settlement and, if included in the damages recovered, the reasonable expenses of medical aid, nursing and attention incident to the injury causing death and the reasonable funeral expenses of the decedent may be fixed by the court which determines the proportions of the pecuniary injuries suffered by the distributees, as provided in subparagraph (1), upon notice given in such manner and to such persons as the court may direct, and such expenses may be deducted from the damages recovered. The commissions of the personal representative upon the residue may be fixed by the surrogate, upon notice given in such manner and to such persons as the surrogate may direct or upon the judicial settlement of the account of the personal representative, and such commissions may be deducted from the damages recovered. (c) In the event that an action is brought, as authorized in this part, and there is no recovery or settlement, the reasonable expenses of such unsuccessful action, excluding counsel fees, shall be payable out of the assets of the decedent`s estate. S 5-4.5 Non-marital children For the purposes of this part, a non-marital child is the distributee of his father and paternal kindred and the father and paternal kindred of a non-marital child are that child`s distributees to the extent permitted by 4-1.2. S 5-4.6 Application to compromise action (a) Upon the application of an administrator appointed under 5-4.1 or a personal representative to the court in which an action for wrongful act, neglect or default causing the death of a decedent is pending, the court may, after inquiry into the merits of the action and the amount of damages proposed as a compromise: (1) Approve in writing a compromise for such amount as it shall determine to be adequate and, except for good cause shown, transfer the action to the surrogate`s court which issued the letters for determination of the issues of allocation and distribution of proceeds and related matters; or (2) Disapprove the application. (b) The written approval by such court of the compromise is conclusive evidence of the adequacy of the compromise in any proceeding in the surrogate`s court for the final settlement of the account of such administrator or personal representative.