Bill Text: NY S08485 | 2023-2024 | General Assembly | Amended

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Bill Title: Provides for the types of damages that may be awarded to the persons for whose benefit an action for wrongful death is brought.

Spectrum: Moderate Partisan Bill (Republican 8-1)

Status: (Introduced) 2024-05-29 - AMENDED ON THIRD READING 8485B [S08485 Detail]

Download: New_York-2023-S08485-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         8485--A

                    IN SENATE

                                    February 5, 2024
                                       ___________

        Introduced by Sens. HOYLMAN-SIGAL, ASHBY, GALLIVAN, LANZA, MURRAY, ORTT,
          PALUMBO,  TEDISCO,  WEBER  -- read twice and ordered printed, and when
          printed to be committed to the  Committee  on  Judiciary  --  reported
          favorably  from  said  committee  and  committed  to  the Committee on
          Finance -- committee discharged, bill amended,  ordered  reprinted  as
          amended and recommitted to said committee

        AN  ACT  to amend the estates, powers and trusts law, in relation to the
          payment and distribution of damages in wrongful death actions

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Paragraph  1  of section 5-4.1 of the estates, powers and
     2  trusts law, as amended by chapter 114 of the laws of 2003, is amended to
     3  read as follows:
     4    1. The personal representative, duly appointed in this  state  or  any
     5  other  jurisdiction, of a decedent [who is survived by distributees] may
     6  maintain an action to recover damages for a  wrongful  act,  neglect  or
     7  default  which  caused  the  decedent's death against a person who would
     8  have been liable to the decedent by reason of such wrongful  conduct  if
     9  death  had  not  ensued.  Such  an action must be commenced within [two]
    10  three years after the decedent's  death[;  provided,  however,  that  an
    11  action  on  behalf of a decedent whose death was caused by the terrorist
    12  attacks on September eleventh, two thousand one, other than  a  decedent
    13  identified by the attorney general of the United States as a participant
    14  or  conspirator  in such attacks, must be commenced within two years and
    15  six months after the decedent's death]. When the [distributees]  persons
    16  for  whose benefit an action pursuant to this part may be brought do not
    17  participate in the administration of the decedent's estate under a  will
    18  appointing  an executor who refuses to bring such action, the [distribu-
    19  tees] persons for whose benefit an action pursuant to this part  may  be
    20  brought are entitled to have an administrator appointed to prosecute the
    21  action for their benefit.
    22    §  2. Paragraph (a) of section 5-4.3 of the estates, powers and trusts
    23  law, as amended by chapter 100 of the laws of 1982, is amended  to  read
    24  as follows:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02714-08-4
        S. 8485--A                          2

     1    (a)  The  damages awarded to the plaintiff may be such sum as the jury
     2  or, where issues of fact are tried without a jury, the court or  referee
     3  deems  to  be  fair  and  just compensation for the [pecuniary] injuries
     4  resulting from the decedent's death to the persons for whose benefit the
     5  action is brought. In every such action, in addition to any other lawful
     6  element of recoverable damages, [the reasonable expenses of medical aid,
     7  nursing  and  attention  incident  to  the  injury causing death and the
     8  reasonable funeral expenses of the decedent paid by the distributees, or
     9  for the payment of which any distributee is responsible, shall  also  be
    10  proper  elements  of damage]  compensation for the following damages may
    11  be recovered:  (i) reasonable funeral expenses of the decedent  paid  by
    12  the  persons for whose benefit the action is brought, or for the payment
    13  of which any persons for whose benefit the action is brought is  respon-
    14  sible;  (ii) reasonable expenses for medical care incident to the injury
    15  causing death, including but not limited to doctors, nursing,  attendant
    16  care,  treatment,  hospitalization of the decedent, and medicines; (iii)
    17  grief or anguish caused by the decedent's death;  (iv)  other  pecuniary
    18  injuries,  including  loss of services, support, assistance, and loss or
    19  diminishment of inheritance, resulting from the  decedent's  death;  and
    20  (v)  loss of nurture, guidance, counsel, advice, training, and education
    21  resulting from the decedent's death.   Interest upon the  principal  sum
    22  recovered  by  the plaintiff from the date of the decedent's death shall
    23  be added to and be a part of the total sum awarded.
    24    § 3. Section 5-4.4 of the estates, powers and  trusts  law,  paragraph
    25  (a) as amended by chapter 357 of the laws of 1975, and the opening para-
    26  graph of paragraph (a) as amended by chapter 595 of the laws of 1992, is
    27  amended to read as follows:
    28  § 5-4.4 Distribution of damages recovered
    29    (a)  The  damages,  as  prescribed  by  5-4.3, whether recovered in an
    30  action or by settlement without an action, are exclusively for the bene-
    31  fit of the  decedent's  [distributees  and,  when  collected,  shall  be
    32  distributed  to  the  persons  entitled  thereto  under 4-1.1 and 5-4.5,
    33  except that where the decedent is survived by a parent or parents and  a
    34  spouse  and no issue, the parent or parents will be deemed to be distri-
    35  butees for purposes of this section]  surviving  close  family  members,
    36  which  shall be defined as and limited to those persons entitled thereto
    37  under 4-1.1 of this chapter and 5-4.5 of this part,  except  that  where
    38  the  decedent is survived by a parent or parents, or any person standing
    39  in loco parentis to the decedent, and a spouse and no issue, the  parent
    40  or parents or such person standing in loco parentis will be deemed to be
    41  close  family  members for purposes of this section.  The finder of fact
    42  shall determine which of those close family members, as defined in  this
    43  paragraph,  are  entitled  to  damages under this section based upon the
    44  specific circumstances relating to the person's  relationship  with  the
    45  decedent.  The damages shall be distributed subject to the following:
    46    (1)   Such damages shall be distributed by the personal representative
    47  to the persons entitled thereto in proportion to the  [pecuniary]  inju-
    48  ries  suffered  by them, such proportions to be determined after a hear-
    49  ing, on application of the personal representative or any  [distributee]
    50  persons  for  whose  benefit  the action is brought, at such time and on
    51  notice to all interested persons in such manner as the court may direct.
    52  If no action is brought, such determination shall be made by the  surro-
    53  gate  of the county in which letters were issued to the plaintiff; if an
    54  action is brought, by the court having jurisdiction of the action or  by
    55  the surrogate of the county in which letters were issued.
        S. 8485--A                          3

     1    (2)    The  court  which determines the proportions of the [pecuniary]
     2  injuries suffered by the [distributees] persons for  whose  benefit  the
     3  action  is  brought,  as provided in subparagraph (1) of this paragraph,
     4  shall also decide any question  concerning  the  disqualification  of  a
     5  parent,  under 4-1.4 of this chapter, or a surviving spouse, under 5-1.2
     6  of this article, to share in the damages recovered.
     7    (b)   The reasonable expenses of the  action  or  settlement  and,  if
     8  included  in  the  damages recovered, the reasonable expenses of medical
     9  aid, nursing and attention incident to the injury causing death and  the
    10  reasonable  funeral  expenses  of the decedent may be fixed by the court
    11  which determines the proportions of the [pecuniary] injuries suffered by
    12  the [distributees] persons for whose benefit the action is  brought,  as
    13  provided  in  subparagraph  (1)  of this paragraph, upon notice given in
    14  such manner and to such persons  as  the  court  may  direct,  and  such
    15  expenses may be deducted from the damages recovered.  The commissions of
    16  the  personal representative upon the residue may be fixed by the surro-
    17  gate, upon notice given in such manner and to such persons as the surro-
    18  gate may direct or upon the judicial settlement of the  account  of  the
    19  personal  representative,  and such commissions may be deducted from the
    20  damages recovered.
    21    (c)  In the event that an action is brought,  as  authorized  in  this
    22  part, and there is no recovery or settlement, the reasonable expenses of
    23  such  unsuccessful  action, excluding counsel fees, shall be payable out
    24  of the assets of the decedent's estate.
    25    (d) For the purposes of this  section,  the  term  "domestic  partner"
    26  shall  have the same meaning as defined pursuant to section two thousand
    27  nine hundred sixty-one of the public health law.
    28    § 4. Paragraphs (a) and (b) of section 5-4.6 of  the  estates,  powers
    29  and  trusts  law, paragraph (a) as amended and paragraph (b) as added by
    30  chapter 719 of the laws of 2005, are amended to read as follows:
    31    (a) Within sixty days of the application of an administrator appointed
    32  under 5-4.1 of this part or a personal representative to  the  court  in
    33  which  an  action for wrongful act, neglect or default causing the death
    34  of a decedent is pending, the court shall, after inquiry into the merits
    35  of the action and the amount of damages proposed as a compromise  either
    36  disapprove  the  application or approve in writing a compromise for such
    37  amount as it shall determine to be adequate including approval of attor-
    38  neys fees and other payable expenses as set forth below, and shall order
    39  the defendant to pay all sums payable under  the  order  of  compromise,
    40  within the time frames set forth in section five thousand three-a of the
    41  civil  practice  law and rules, to the attorney for the administrator or
    42  personal representative for placement  in  an  interest  bearing  escrow
    43  account  for the benefit of the [distributees] persons for whose benefit
    44  the action is brought.  The order shall also provide for the following:
    45    (1) Upon collection of the settlement funds and creation of an  inter-
    46  est  bearing  escrow  account,  the  attorney  for  the administrator or
    47  personal representative shall pay from the account all due  and  payable
    48  expenses,  excluding  attorneys  fees,  approved  by  the court, such as
    49  medical bills, funeral costs and other liens on the estate.
    50    (2) All attorneys fees approved by the court for  the  prosecution  of
    51  the  action  for  wrongful  act,  neglect  or  default, inclusive of all
    52  disbursements, shall be immediately payable from the escrow account upon
    53  submission to the trial court proof of filing of a  petition  for  allo-
    54  cation  and  distribution  in  the  surrogate's  court  on behalf of the
    55  decedent's estate.
        S. 8485--A                          4

     1    (3) The attorney for the administrator or personal  representative  in
     2  the  action  for  wrongful  act, neglect or default who receives payment
     3  under this section shall continue to serve as attorney  for  the  estate
     4  until the entry of a final decree in the surrogate's court.
     5    (b)  If any of the [distributees] persons for whose benefit the action
     6  is brought is an infant, incompetent,  person  who  is  incarcerated  or
     7  person under disability, the court shall determine whether a guardian ad
     8  litem  is required before any payments are made, in which case the court
     9  will seek an immediate appointment of a guardian ad litem by the  surro-
    10  gate's  court  or, if the surrogate's court defers, the court shall make
    11  such appointment. Any guardian appointed for this purpose shall continue
    12  to serve as the guardian ad litem for the person requiring same for  all
    13  other purposes.
    14    §  5.  This  act  shall take effect immediately and shall apply to all
    15  causes of action that have accrued on or after January 1, 2021.