How To File A Wrongful Death Claim In New York

The loss of a loved one is heartbreaking. But the loss can be even more devastating when the death was preventable. When another party causes the death of a family member as a result of negligence or other wrongdoing, wrongful death attorneys help families like yours seek justice.

Seek Legal Advice From a New York Wrongful Death Lawyer

An experienced wrongful death attorney evaluates your case and guides you through the legal process of filing a claim for wrongful death. These cases are governed by laws that can be complex. In New York, the best way to pursue a claim for wrongful death is to work with an attorney.

Determine if You Have a Wrongful Death Claim 

A claim for wrongful death can result from a variety of accidents and situations. In New York, common causes of wrongful deaths include, but are not limited to:

  • Automobile accidents
  • Medical malpractice
  • defective merchandise (product liability claims)
  • Occupational accidents
  • Nursing home maltreatment
  • Acts of violence and criminal conduct
  • slip-and-fall accidents and other claims involving premises liability

Provide your attorney with as many specifics and pieces of evidence regarding the death of your loved one as possible. Writing a narrative to provide to your attorney can be helpful. Additionally, your attorney collects copies of accident reports, medical records, police reports, and coroner’s records.

A wrongful death attorney examines the facts of the case and the applicable law to determine whether the death of your loved one qualifies as a “wrongful death.” 5-4-1 of the New York Estates, Powers, and Trusts Code defines wrongful death as:

  • A person dies due to the negligence or recklessness of another party, which would have given rise to a legal claim had the deceased person survived.
  • And one or more survivors of the deceased have suffered economic losses as a result of the death; AND there are damages that the estate can recover.

As the case progresses, your attorney also works with you to document the financial losses resulting from the demise of a family member. Examples of monetary losses include funeral costs, medical bills, and lost wages. In order to win a wrongful death case, you must prove damages in addition to proving that the defendant caused the death of your loved one.

Determine Who Can File a Wrongful Death Claim 

Surviving family members have the right to file wrongful death claims in many states. Consequently, the surviving spouse and children frequently file lawsuits to seek compensation.

However, New York handles lawsuits for wrongful death differently. In New York, the executor of the deceased’s estate has the right to file a lawsuit for wrongful death.

The personal representative is typically named in the deceased person’s Last Will and Testament. In the absence of a Will, however, a family member may petition the court for appointment as the personal representative.

What Damages Are Available in Wrongful Death Cases?

Damages recoverable in a lawsuit for wrongful death include:

  • Expenses incurred between the time of injury and death
  • Lost wages and prospective earnings
  • Pain and suffering endured by the deceased from the date of injury until the time of death
  • Loss of alliance
  • Funeral and cemetery costs
  • Lost heirlooms
  • Loss of assistance, direction, affection, and love

If the defendant acted with gross negligence or malice, the jury may also award punitive damages to “punish” the defendant.

Even though the estate files a personal injury claim, the funds are distributed to the deceased’s heirs and beneficiaries. The estate holds the funds in escrow until the settlement of the estate.

Can I File a Wrongful Death Claim if My Loved One Was Partially To Blame for the Accident?

The New York law on contributory negligence does not prohibit family members from filing wrongful death claims when a family member was partially responsible for the decedent’s death. Because it reduces the amount of compensation the at-fault party must pay, insurance companies and defence attorneys prefer to place blame on the deceased.

If a jury determines that your loved one contributed to the cause of death, the financial award paid to the estate is reduced by the percentage of fault attributed to your loved one. For instance, if the jury determines that your spouse was 20% at fault for the fatal car accident, the compensation for damages would be decreased by 20%.

File Before the Deadline for Filing Wrongful Death Lawsuits in New York

The New York statute of limitations establishes filing deadlines for civil court actions seeking damages. A wrongful death lawsuit must be filed within two years of the decedent’s death. If you fail to file your lawsuit by the deadline, you forfeit your right to seek compensation for the wrongful death claim.

Contact Our Personal Injury Law Firm

Contact Abrams Law Group for a free consultation if you’ve been hurt in an accident and require legal assistance.

Abrams Law Group
104-70 Queens Boulevard, Suite 502
Forest Hills, NY 11375
(718) 997-9797

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