Bill Text: NY A09232 | 2023-2024 | General Assembly | Introduced
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: (Introduced) 2024-02-21 - referred to judiciary [A09232 Detail]
Download: New_York-2023-A09232-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 9232 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, SEAWRIGHT, SHRESTHA, SIMON, SOLAGES, STECK, STERN, STIRPE, TAYLOR, WEPRIN, ZEBROWSKI -- Multi-Sponsored by -- M. of A. LUPARDO, RIVERA -- read once and referred to the Committee on Judici- ary 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 an11action on behalf of a decedent whose death was caused by the terrorist12attacks on September eleventh, two thousand one, other than a decedent13identified by the attorney general of the United States as a participant14or conspirator in such attacks, must be commenced within two years and15six 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-19tees] 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. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02714-04-3A. 9232 2 1 § 2. Paragraph (a) of section 5-4.3 of the estates, powers and trusts 2 law, as amended by chapter 100 of the laws of 1982, is amended to read 3 as follows: 4 (a) The damages awarded to the plaintiff may be such sum as the jury 5 or, where issues of fact are tried without a jury, the court or referee 6 deems to be fair and just compensation for the [pecuniary] injuries 7 resulting from the decedent's death to the persons for whose benefit the 8 action is brought. In every such action, in addition to any other lawful 9 element of recoverable damages, [the reasonable expenses of medical aid,10nursing and attention incident to the injury causing death and the11reasonable funeral expenses of the decedent paid by the distributees, or12for the payment of which any distributee is responsible, shall also be13proper elements of damage] compensation for the following damages may 14 be recovered: (i) reasonable funeral expenses of the decedent paid by 15 the persons for whose benefit the action is brought, or for the payment 16 of which any persons for whose benefit the action is brought is respon- 17 sible; (ii) reasonable expenses for medical care incident to the injury 18 causing death, including but not limited to doctors, nursing, attendant 19 care, treatment, hospitalization of the decedent, and medicines; (iii) 20 grief or anguish caused by the decedent's death; (iv) loss of love, 21 society, protection, comfort, companionship, and consortium resulting 22 from the decedent's death; (v) pecuniary injuries, including loss of 23 services, support, assistance, and loss or diminishment of inheritance, 24 resulting from the decedent's death; and (vi) loss of nurture, guidance, 25 counsel, advice, training, and education resulting from the decedent's 26 death. Interest upon the principal sum recovered by the plaintiff from 27 the date of the decedent's death shall be added to and be a part of the 28 total sum awarded. 29 § 3. Section 5-4.4 of the estates, powers and trusts law, paragraph 30 (a) as amended by chapter 357 of the laws of 1975, and the opening para- 31 graph of paragraph (a) as amended by chapter 595 of the laws of 1992, is 32 amended to read as follows: 33 § 5-4.4 Distribution of damages recovered 34 (a) The damages, as prescribed by 5-4.3, whether recovered in an 35 action or by settlement without an action, are exclusively for the bene- 36 fit of the decedent's [distributees and, when collected, shall be37distributed to the persons entitled thereto under 4-1.1 and 5-4.5,38except that where the decedent is survived by a parent or parents and a39spouse and no issue, the parent or parents will be deemed to be distri-40butees for purposes of this section] surviving close family members, 41 which shall be limited to decedent's spouse or domestic partner, issue, 42 foster-children, step-children, and step-grandchildren, parents, grand- 43 parents, step-parents, step-grandparents, siblings or any person stand- 44 ing in loco parentis to the decedent. The finder of fact shall determine 45 which persons are entitled to damages as close family members of the 46 decedent under this section based upon the specific circumstances relat- 47 ing to the person's relationship with the decedent. The damages shall 48 be distributed subject to the following: 49 (1) Such damages shall be distributed by the personal representative 50 to the persons entitled thereto in proportion to the [pecuniary] inju- 51 ries suffered by them, such proportions to be determined after a hear- 52 ing, on application of the personal representative or any [distributee] 53 persons for whose benefit the action is brought, at such time and on 54 notice to all interested persons in such manner as the court may direct. 55 If no action is brought, such determination shall be made by the surro- 56 gate of the county in which letters were issued to the plaintiff; if anA. 9232 3 1 action is brought, by the court having jurisdiction of the action or by 2 the surrogate of the county in which letters were issued. 3 (2) The court which determines the proportions of the [pecuniary] 4 injuries suffered by the [distributees] persons for whose benefit the 5 action is brought, as provided in subparagraph (1) of this paragraph, 6 shall also decide any question concerning the disqualification of a 7 parent, under 4-1.4 of this chapter, or a surviving spouse, under 5-1.2 8 of this article, to share in the damages recovered. 9 (b) The reasonable expenses of the action or settlement and, if 10 included in the damages recovered, the reasonable expenses of medical 11 aid, nursing and attention incident to the injury causing death and the 12 reasonable funeral expenses of the decedent may be fixed by the court 13 which determines the proportions of the [pecuniary] injuries suffered by 14 the [distributees] persons for whose benefit the action is brought, as 15 provided in subparagraph (1) of this paragraph, upon notice given in 16 such manner and to such persons as the court may direct, and such 17 expenses may be deducted from the damages recovered. The commissions of 18 the personal representative upon the residue may be fixed by the surro- 19 gate, upon notice given in such manner and to such persons as the surro- 20 gate may direct or upon the judicial settlement of the account of the 21 personal representative, and such commissions may be deducted from the 22 damages recovered. 23 (c) In the event that an action is brought, as authorized in this 24 part, and there is no recovery or settlement, the reasonable expenses of 25 such unsuccessful action, excluding counsel fees, shall be payable out 26 of the assets of the decedent's estate. 27 (d) For the purposes of this section, the term "domestic partner" 28 shall have the same meaning as defined pursuant to section two thousand 29 nine hundred sixty-one of the public health law. 30 § 4. Paragraphs (a) and (b) of section 5-4.6 of the estates, powers 31 and trusts law, paragraph (a) as amended and paragraph (b) as added by 32 chapter 719 of the laws of 2005, are amended to read as follows: 33 (a) Within sixty days of the application of an administrator appointed 34 under section 5-4.1 of this part or a personal representative to the 35 court in which an action for wrongful act, neglect or default causing 36 the death of a decedent is pending, the court shall, after inquiry into 37 the merits of the action and the amount of damages proposed as a compro- 38 mise either disapprove the application or approve in writing a compro- 39 mise for such amount as it shall determine to be adequate including 40 approval of attorneys fees and other payable expenses as set forth 41 below, and shall order the defendant to pay all sums payable under the 42 order of compromise, within the time frames set forth in section five 43 thousand three-a of the civil practice law and rules, to the attorney 44 for the administrator or personal representative for placement in an 45 interest bearing escrow account for the benefit of the [distributees] 46 persons for whose benefit the action is brought. The order shall also 47 provide for the following: 48 (1) Upon collection of the settlement funds and creation of an inter- 49 est bearing escrow account, the attorney for the administrator or 50 personal representative shall pay from the account all due and payable 51 expenses, excluding attorneys fees, approved by the court, such as 52 medical bills, funeral costs and other liens on the estate. 53 (2) All attorneys fees approved by the court for the prosecution of 54 the action for wrongful act, neglect or default, inclusive of all 55 disbursements, shall be immediately payable from the escrow account upon 56 submission to the trial court proof of filing of a petition for allo-A. 9232 4 1 cation and distribution in the surrogate's court on behalf of the 2 decedent's estate. 3 (3) The attorney for the administrator or personal representative in 4 the action for wrongful act, neglect or default who receives payment 5 under this section shall continue to serve as attorney for the estate 6 until the entry of a final decree in the surrogate's court. 7 (b) If any of the [distributees] persons for whose benefit the action 8 is brought is an infant, incompetent, person who is incarcerated or 9 person under disability, the court shall determine whether a guardian ad 10 litem is required before any payments are made, in which case the court 11 will seek an immediate appointment of a guardian ad litem by the surro- 12 gate's court or, if the surrogate's court defers, the court shall make 13 such appointment. Any guardian appointed for this purpose shall continue 14 to serve as the guardian ad litem for the person requiring same for all 15 other purposes. 16 § 5. This act shall take effect immediately and shall apply to all 17 causes of action that accrue on or after July 1, 2018, regardless of 18 when filed.
