Bill Text: NY A09232 | 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: Partisan Bill (Democrat 48-1)

Status: (Engrossed) 2024-06-05 - RETURNED TO ASSEMBLY [A09232 Detail]

Download: New_York-2023-A09232-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         9232--B

                   IN ASSEMBLY

                                    February 21, 2024
                                       ___________

        Introduced  by  M.  of  A.  WEINSTEIN, PEOPLES-STOKES, LAVINE, DINOWITZ,
          GLICK, AUBRY, BICHOTTE HERMELYN, BRAUNSTEIN, BURDICK,  BURGOS,  BURKE,
          CARROLL,  CLARK,  COLTON,  COOK,  CRUZ, DICKENS, DILAN, EPSTEIN, FALL,
          GIBBS, HEVESI, HUNTER, HYNDMAN, JACOBSON, JEAN-PIERRE, KIM,  LUNSFORD,
          MAGNARELLI, McMAHON, MEEKS, MITAYNES, NORRIS, PAULIN, REYES, L. ROSEN-
          THAL,  SANTABARBARA,  SHRESTHA,  SIMON, SOLAGES, STECK, STERN, STIRPE,
          TAYLOR, WEPRIN, ZEBROWSKI, RAGA -- Multi-Sponsored  by  --  M.  of  A.
          LUPARDO,  RIVERA -- read once and referred to the Committee on Judici-
          ary --  committee  discharged,  bill  amended,  ordered  reprinted  as
          amended  and  recommitted  to  said committee -- committee discharged,
          bill amended, ordered reprinted as amended  and  recommitted  to  said
          committee -- reported and referred to the Committee on Codes

        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-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02714-09-4
        A. 9232--B                          2

     1  tees] persons for whose benefit an action pursuant to this part  may  be
     2  brought are entitled to have an administrator appointed to prosecute the
     3  action for their benefit.
     4    §  2. Paragraph (a) of section 5-4.3 of the estates, powers and trusts
     5  law, as amended by chapter 100 of the laws of 1982, is amended  to  read
     6  as follows:
     7    (a)  The  damages awarded to the plaintiff may be such sum as the jury
     8  or, where issues of fact are tried without a jury, the court or  referee
     9  deems  to  be  fair  and  just compensation for the [pecuniary] injuries
    10  resulting from the decedent's death to the persons for whose benefit the
    11  action is brought. In every such action, in addition to any other lawful
    12  element of recoverable damages, [the reasonable expenses of medical aid,
    13  nursing and attention incident to  the  injury  causing  death  and  the
    14  reasonable funeral expenses of the decedent paid by the distributees, or
    15  for  the  payment of which any distributee is responsible, shall also be
    16  proper elements of damage]  compensation for the following  damages  may
    17  be  recovered:   (i) reasonable funeral expenses of the decedent paid by
    18  the persons for whose benefit the action is brought, or for the  payment
    19  of  which any persons for whose benefit the action is brought is respon-
    20  sible; (ii) reasonable expenses for medical care incident to the  injury
    21  causing  death, including but not limited to doctors, nursing, attendant
    22  care, treatment, hospitalization of the decedent, and  medicines;  (iii)
    23  grief  or  anguish  caused by the decedent's death; (iv) other pecuniary
    24  injuries, including loss of services, support, assistance, and  loss  or
    25  diminishment  of  inheritance,  resulting from the decedent's death; and
    26  (v) loss of nurture, guidance, counsel, advice, training,  companionship
    27  and  education  resulting  from  the decedent's death. Interest upon the
    28  principal sum recovered by the plaintiff from the date of the decedent's
    29  death shall be added to and be a part of the total sum awarded.
    30    § 3. Section 5-4.4 of the estates, powers and  trusts  law,  paragraph
    31  (a) as amended by chapter 357 of the laws of 1975, and the opening para-
    32  graph of paragraph (a) as amended by chapter 595 of the laws of 1992, is
    33  amended to read as follows:
    34  § 5-4.4 Distribution of damages recovered
    35    (a)  The  damages,  as  prescribed  by  5-4.3, whether recovered in an
    36  action or by settlement without an action, are exclusively for the bene-
    37  fit of the  [decedent's  distributees  and,  when  collected,  shall  be
    38  distributed  to  the  persons  entitled  thereto  under 4-1.1 and 5-4.5,
    39  except that where the decedent is survived by a parent or parents and  a
    40  spouse  and no issue, the parent or parents will be deemed to be distri-
    41  butees for purposes of this  section]  persons  for  whose  benefit  the
    42  action  is  brought,  which  shall  be  defined  as  and  limited to the
    43  decedent's spouse  or  domestic  partner,  decedent's  distributees,  as
    44  defined  by  4-1.1  of  this  chapter and 5-4.5 of this part, any person
    45  standing in loco parentis to the decedent, and to any person to whom the
    46  decedent stood in a position of in loco parentis. An  in  loco  parentis
    47  relationship  shall  be  presumed  when an adult and minor share or have
    48  recently shared a household. The finder of fact shall determine which of
    49  those persons for whose benefit the action is  brought,  as  defined  in
    50  this  paragraph,  are  entitled to damages under this section based upon
    51  the specific circumstances relating to the  person's  relationship  with
    52  the  decedent.   The damages shall be distributed subject to the follow-
    53  ing:
    54    (1)  Such damages shall be distributed by the personal  representative
    55  to  the  persons entitled thereto in proportion to the [pecuniary] inju-
    56  ries suffered by them, such proportions to be determined after  a  hear-
        A. 9232--B                          3

     1  ing,  on application of the personal representative or any [distributee]
     2  persons for whose benefit the action is brought, at  such  time  and  on
     3  notice to all interested persons in such manner as the court may direct.
     4  If  no action is brought, such determination shall be made by the surro-
     5  gate of the county in which letters were issued to the plaintiff; if  an
     6  action  is brought, by the court having jurisdiction of the action or by
     7  the surrogate of the county in which letters were issued.
     8    (2)  The court which determines the  proportions  of  the  [pecuniary]
     9  injuries  suffered  by  the [distributees] persons for whose benefit the
    10  action is brought, as provided in subparagraph (1)  of  this  paragraph,
    11  shall  also  decide  any  question  concerning the disqualification of a
    12  parent, under 4-1.4 of this chapter, or a surviving spouse, under  5-1.2
    13  of this article, to share in the damages recovered.
    14    (b)    The  reasonable  expenses  of  the action or settlement and, if
    15  included in the damages recovered, the reasonable  expenses  of  medical
    16  aid,  nursing and attention incident to the injury causing death and the
    17  reasonable funeral expenses of the decedent may be fixed  by  the  court
    18  which determines the proportions of the [pecuniary] injuries suffered by
    19  the  [distributees]  persons for whose benefit the action is brought, as
    20  provided in subparagraph (1) of this paragraph,  upon  notice  given  in
    21  such  manner  and  to  such  persons  as  the court may direct, and such
    22  expenses may be deducted from the damages recovered.  The commissions of
    23  the personal representative upon the residue may be fixed by the  surro-
    24  gate, upon notice given in such manner and to such persons as the surro-
    25  gate  may  direct  or upon the judicial settlement of the account of the
    26  personal representative, and such commissions may be deducted  from  the
    27  damages recovered.
    28    (c)    In  the  event that an action is brought, as authorized in this
    29  part, and there is no recovery or settlement, the reasonable expenses of
    30  such unsuccessful action, excluding counsel fees, shall be  payable  out
    31  of the assets of the decedent's estate.
    32    (d)  For  the  purposes  of  this section, the term "domestic partner"
    33  shall have the same meaning as defined pursuant to section two  thousand
    34  nine hundred sixty-one of the public health law.
    35    §  4.  Paragraphs  (a) and (b) of section 5-4.6 of the estates, powers
    36  and trusts law, paragraph (a) as amended and paragraph (b) as  added  by
    37  chapter 719 of the laws of 2005, are amended to read as follows:
    38    (a) Within sixty days of the application of an administrator appointed
    39  under  5-4.1  of  this part or a personal representative to the court in
    40  which an action for wrongful act, neglect or default causing  the  death
    41  of a decedent is pending, the court shall, after inquiry into the merits
    42  of  the action and the amount of damages proposed as a compromise either
    43  disapprove the application or approve in writing a compromise  for  such
    44  amount as it shall determine to be adequate including approval of attor-
    45  neys fees and other payable expenses as set forth below, and shall order
    46  the  defendant  to  pay  all sums payable under the order of compromise,
    47  within the time frames set forth in section five thousand three-a of the
    48  civil practice law and rules, to the attorney for the  administrator  or
    49  personal  representative  for  placement  in  an interest bearing escrow
    50  account for the benefit of the [distributees] persons for whose  benefit
    51  the action is brought.  The order shall also provide for the following:
    52    (1)  Upon collection of the settlement funds and creation of an inter-
    53  est bearing escrow  account,  the  attorney  for  the  administrator  or
    54  personal  representative  shall pay from the account all due and payable
    55  expenses, excluding attorneys fees,  approved  by  the  court,  such  as
    56  medical bills, funeral costs and other liens on the estate.
        A. 9232--B                          4

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