Filing A Wrongful Death Lawsuit In Brooklyn

When a loved one dies, surviving family members may be able to seek compensation in a wrongful death lawsuit. In New York State, strong legal protections allow survivors to pursue legal action after a loved one is killed due to negligence or wrongdoing, including murder. Some families may be eligible to secure significant financial compensation.

Wrongful Death Lawsuits In Brooklyn

The laws that apply to a wrongful death case vary dramatically by jurisdiction. Wrongful death lawsuits are extremely complicated as a matter of New York State law, falling under a specific set of legal codes established by New York’s Estates, Powers and Trusts Law:

“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.”

In this short paragraph, New York’s Estates, Powers and Trusts Law outlines a simple right. When a person is killed due to someone else’s negligence or misconduct, survivors may be eligible to hold the responsible party accountable in civil court. Filing a wrongful death lawsuit in New York, however, is anything but simple.

Who Can File A Brooklyn Death Claim?

In practice, the right to file a wrongful death case belongs not to surviving family members, but to the decedent’s estate, which may or may not be represented by a family member.

Graveyard In Brooklyn

While some states allow any surviving family member to file suit, New York considers the right to civil action after a loved one’s death to be a matter of estate law. As such, only the “personal representative” (commonly known as “executor”) of the deceased’s estate is allowed to file the lawsuit itself. This “personal representative” is usually a close family member who is identified in the decedent’s Last Will and Testament. In some cases, a person will pass away “intestate,” without having left a proper will. Then, a personal representative can be appointed by New York’s Surrogate Court.

Two Lawsuits, Combined

It’s helpful to think of wrongful death lawsuits as two separate claims for compensation that are usually combined to conserve resources.

Claims For Pain & Suffering

On one hand, most cases demand a degree of compensation to reimburse the decedent’s estate. In proper legal terms, this claim is known as a claim for “conscious pain and suffering damages,” which is intended to compensate the estate for the physical pain and suffering experienced by the deceased prior to their death.

Most states don’t allow “pain and suffering” claims to be filed on behalf of people who have passed away. New York is an exception. Instead of deciding that a person’s legal right to compensation is extinguished in death, New York’s legislature chose to pass this right on to the decedent’s estate. As a result, the estate can be compensated for pain and suffering experienced by the decedent, with money that will ultimately be distributed among the estate’s beneficiaries.

Most people decide how the funds left in their estate should be distributed before death, outlining the desired process in their Last Will and Testament. Where a decedent does not draft a proper will, New York’s Law of Intestacy takes precedence. This law defines the order in which surviving family members should receive their loved one’s remaining property after death. In the majority of cases, the damages from a successful pain and suffering claim are distributed to the decedent’s spouse and children.

Claims For Wrongful Death

The second claim included in most wrongful death lawsuits is made on behalf of surviving family members, usually a spouse and children who were financially dependent on the deceased. This claim for damages is properly known as a “wrongful death” claim and the people who receive compensation are called the decedent’s distributees.

While New York allows a person’s estate to recover damages for pain and suffering, the same right does not fall to the person’s distributees. Instead, the lawsuit can only claim damages that are explicitly financial in nature, like funeral and burial expenses. As you might expect, wrongful death damages can differ widely from one case to another. That being said, many lawsuits claim damages that seek to reimburse family members for the financial loss left in the wake of a loved one’s death:

  • wages that the deceased was unable to earn because of their final injury or illness
  • inheritance that was lost due to the decedent’s untimely death
  • the monetary value of household services and parental care that the decedent could have provided, if not for their death

New York also allows survivors to claim damages to cover the direct medical and nursing expenses incurred during their loved one’s final illness or injury.

How To Prove Wrongful Death

In order to secure damages, the lawsuit must prove that the decedent was killed due to the “wrongful act, neglect or default” of another person.

Technically, wrongful death lawsuits are not personal injury lawsuits, even though New York allows a decedent’s estate to claim certain damages that relate specifically to the pain and suffering experienced by an individual. Even so, many wrongful death claims hinge on a concept that is central to nearly every personal injury lawsuit: negligence.

What Is Negligence?

Negligence is a crucial legal theory. Thankfully, it’s pretty easy to understand. Most of us already recognize negligence as a basic ethical principle. In short, some people (along with legal entities like corporations) owe other people a special duty to avoid causing harm whenever reasonably possible.

Physicians, for instance, owe their patients a duty to diagnose and treat medical conditions using reasonable care. Drivers have the legal responsibility of following the “rules of the road,” so as not to put others in harm’s way. We all understand these duties implicitly. New York State law, however, makes these duties explicit, allowing people who are injured due to someone else’s negligence, their violation of a duty of care, to pursue compensation. When a doctor’s careless mistake causes harm, for example, they can be held accountable in court for medical malpractice.

Wrongful death lawsuits are often based in a theory of negligence, but they need not be. In fact, many cases are filed after criminal trials involving murder, a criminal charge that usually requires a finding of predetermination.

How To Prove Wrongful Death

Every successful wrongful death lawsuit hinges on five facts:

  1. a death occurred
  2. the death was the result of a defendant’s improper conduct (“wrongful act, neglect or default”)
  3. the decedent would have been able to pursue a personal injury lawsuit based on the same cause of action, if he or she had survived
  4. the decedent is survived by at least one dependent who has experienced a loss due to the death
  5. the decedent’s loss resulted in specific financial damages

As we’ve already discussed, the monetary damages that can be demanded in a wrongful death lawsuit fall into two distinct categories, those allegedly owed to the decedent’s estate and those owed to the decedent’s surviving financial dependents.

How Long Do We Have To File Suit?

As in every other state, New York has established a “statute of limitations” to limit the amount of time an estate’s personal representative has to file a wrongful death lawsuit. To complicate matters, New York uses two different statutes of limitations to control civil lawsuits filed after a loved one’s death, one for the “conscious pain and suffering” claim and another for the “wrongful death” claim.

  • Conscious Pain & Suffering Claim – filed on behalf of decedent’s estate – three years from the date of actual negligence or misconduct or one year from the date of death, whichever time limit gives the estate more time to file suit
  • Wrongful Death Claim – filed on behalf of the decedent’s distributees – two years from the date of death

In either case, the statute of limitations will be strictly observed; file after the time limit has run out and your case will almost certainly be dismissed. While most wrongful death claims will be controlled by the two-year statute of limitations, there are three exceptions defined by New York State law:

  • claims filed on behalf of people who died due to the terrorist attacks of September 11 can be filed up to 2.5 years (30 months) after the date of death
  • when criminal proceedings have begun against the same defendant for the same misconduct, surviving family members have up to 1 year from the completion of criminal proceedings to bring a civil action for financial compensation
  • where the deceased only has one distributee, and that person is a minor, the statute of limitations can be “tolled” (or paused”) until the distributee turns 18 years old, or until a legal guardian is appointed, whichever date comes first

It should go without saying that most wrongful death lawsuits filed in Brooklyn will not be eligible to benefit from these exceptions.