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Wrongful death is a legal term used to describe a situation where a person's death is caused by the negligent, careless, intentional, or reckless act of another person or organization, as per the Estates, Powers, and Trusts Law (EPTL), Section 5-4.1. This type of lawsuit is meant to provide compensation for the survivors or the estate of the deceased for losses resulting from the death.

Grounds for a Wrongful Death Claim in New York

It goes without saying that the fundamental premise of a wrongful death claim is that there must be the death of a person. Also, New York does things differently than most states: the claim can only be filed by the personal representative of the deceased's estate. Based on this, this person is known as an “executor” or “administrator”, this person must have been legally appointed to manage the affairs of the person who has passed away. This representative acts on behalf of the beneficiaries or dependents. 

To file a successful claim, you also have to prove a few elements in order to establish the basis of your claim and justify compensation for the death:

Wrongful act, negligence, or default

You must demonstrate that the death was caused by the wrongful act, negligence, or default of the defendant (the person, company, or organization you are suing). This means showing that the defendant had a duty to the deceased, that they breached this duty, and that this breach directly caused the death. For example, in the case of a car accident, you would need to prove that the defendant drove recklessly or negligently, leading to the fatal accident.


There must be a direct link between the defendant's actions and the death of the person. You must prove that the death would not have occurred if not for the defendant's actions.


The lawsuit must specify the damages that resulted from the death, i.e., funeral and burial expenses, medical bills related to the deceased’s final illness or injury, lost wages and benefits the deceased would have earned, pain and suffering experienced by the deceased before death, and the loss of support and inheritance for the survivors.

Surviving beneficiaries or dependents

You need to establish that there are beneficiaries or dependents who have suffered financial or emotional loss due to the death. This may be family members like spouses, children, or parents of the deceased.

Who Can File a Wrongful Death Claim in New York?

If the deceased designated someone the executor of their will, only this person has the legal right to file a fatal accident claim. If there is no will, or if the appointed representative cannot or chooses not to act, the court may appoint a representative​​. 

Again, this rule is quite unique to New York as in majority of states immediate family members such as the deceased's spouse, children (both minors and adults), and parents can sue someone for the accidental death. In New York, although these parties can be beneficiaries of a wrongful death claim, they cannot file the claim directly. 

If there were people financially dependent on the deceased, even if they are not closely-related family, they might be entitled to a portion of any damages awarded. Additionally, if the deceased had a will or other estate plans, specific beneficiaries named therein could benefit from the outcome of the wrongful death claim​​.

If you are the personal representative of the deceased, you can file the claim on behalf of their heirs. This means that any damages awarded as a result of the lawsuit are for the benefit of the deceased’s survivors and not the estate itself, except for specific costs like medical and funeral expenses​​.

Generally, brothers, sisters, and cousins of the decedent do not have a right to bring a “death by negligence” claim in New York unless they have also been named as the guardian or personal representative of the decedent. Pertaining to this, they may still not have such a right if there is a surviving spouse, child, or parent of the decedent

    What Can Cause Wrongful Death (or Death by Negligence)?

    The key aspect of these types of deaths is that they could have been prevented if the responsible party had acted differently. This can happen in any number of ways:

    • Medical malpractice: When health care professionals fail to provide the standard of care, and it results in misdiagnosis, surgical errors, mistakes in dosage, and failure to treat a condition properly.
    • Motor vehicle accidents: Deaths resulting from car, truck, motorcycle, bicycle, or pedestrian accidents due to reckless driving, drunk driving, distracted driving, or failure to follow traffic laws.
    • Workplace accidents: Fatal accidents that occur in the workplace, particularly in high-risk industries like construction, manufacturing, chemical, or mining. These can be due to unsafe working conditions, lack of proper safety equipment, or negligence in maintaining machinery.
    • Defective products: When a consumer dies as a result of using a defective product. This can be due to design flaws, manufacturing errors, or failure to provide adequate warnings or instructions.
    • Criminal acts: Homicides and other illegal situations that result in a person's death. Even if the perpetrator is prosecuted criminally, a wrongful death civil suit can still be pursued.
    • Slip and fall accidents: Fatal injuries resulting from slips, trips, and falls, particularly in public or commercial spaces where the property owner failed to maintain safe conditions.

    Regardless of what caused the death, remember, the burden of proof lies with the plaintiff (the party filing the suit). You must prove that the defendant's actions (or inactions) directly caused your bereavement and that there are measurable damages resulting from the death, such as loss of income, funeral expenses, and loss of companionship.

    What is Pecuniary Loss?  

    One of the most notable aspects of New York's wrongful death laws is that they only allow for the recovery of economic damages, i.e., the damages are limited to the monetary or pecuniary losses suffered by the deceased's survivors. Non-economic damages like pain and suffering, loss of companionship, or emotional distress are not recoverable in these cases.  

    Pecuniary loss quantifies the financial impact of the death on the remaining dependents. For example, let’s say John, a 40-year-old engineer living in New York, who supports his spouse and two children tragically dies in a car crash. John’s family depended on his income for their living expenses, education, and future savings. With John's untimely death, this financial support is gone. He also contributed to his family in non-monetary ways, like home maintenance or childcare. These services now need to be replaced, at a cost.

    John’s family can file a wrongful death lawsuit against the driver at fault and claim pecuniary loss, including the loss of John's future income (calculated until his expected retirement age), the cost to replace the services he provided, and the funeral and medical expenses. The court will determine an amount based on the tangible aspects, like:

    • What John could have reasonably been expected to earn in the future had he not died (potential raises, promotions, and other benefits)
    • Any costs incurred due to John's final illness or injury, and his funeral
    • The economic impact of John’s death on his family

    Suffering of the family, or loss of companionship, while deeply felt, are not included in damages.

      What are the “Zone of Danger” Damages?

      The zone of danger rule in New York is a way for family members who have not been physically injured themselves to seek damages for emotional distress caused by witnessing a traumatic event affecting a loved one. This is not directly applicable to wrongful death claims, but it can be useful to understand if you saw your loved one die or get seriously injured (which later resulted in their death). 

      To claim these damages, you must have been close enough to the accident to have been at risk of physical injury yourself, and you must have seen it firsthand. An example is where a parent witnesses a serious injury or the death of their child. The claimant should have a close familial relationship with the victim, such as being a spouse, parent, or child.

      Who Can Be Held Liable for Wrongful Death?

      Depending on the circumstances surrounding the death, you can potentially sue more than one party. The key is to identify who or what entity is legally responsible for the death due to their wrongful act, negligence, or default:

      • The individual whose actions or negligence led to the death.
      • The company if the death occurred due to their products, services, or during a work-related activity (for example, if the deceased died due to a faulty product or an industrial accident).
      • Doctors, nurses, other healthcare professionals, or the hospital itself in case of medical malpractice.
      • Local, state, or federal government agency or its employee(s) if the death was caused by their negligence.
      • The owner or lessee if the vehicle (in addition to the driver).
      • The property owner or manager or occupier if unsafe property conditions led to the death (like a slip and fall accident).
      • The bar, restaurant, or vendor who provided alcohol to the visibly intoxicated driver, or a host who served alcohol at a social event in case of drunk driving accident (under New York’s Dram Shop laws).

      Survival Action vs. Wrongful Death Lawsuit in New York

      As we discussed earlier, New York only allows you to seek financial or pecuniary damages in wrongful death claims, and not those for pain and suffering. Stemming from this, what you may be able to do is file a survival action lawsuit to continue the legal battle the deceased person could have fought if they had survived. 

      Survival action allows the estate to pursue compensation for the pain and suffering, as well as other losses, that the deceased experienced from the time of injury until their death. Like wrongful death, this claim can also be only filed by the executor of the estate and any recovery will go to the estate and distributed according to the will or New York’s intestacy laws.

      The main goal of these claims is on the pain and suffering endured by the decedent before death. For example, if someone was severely injured in an accident and lived for several days before succumbing to their injuries, the survival action can claim damages for their physical and mental agony during that period. But it can also include other damages the decedent incurred before death, such as medical expenses, lost wages from the time of injury to death, and property damage.

      The Law Offices of Michael S. Lamonsoff
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      If a family member has passed away due to someone else's actions, you only have two years to file a wrongful death lawsuit so time is of the essence. Not to mention New York also follows the concept of comparative negligence, so if the deceased is found to be partially at fault for their death, the amount of damages can be reduced accordingly. 

      To make sure you are not denied justice, please get in touch with us online or call at 212-962-1020. Attorney Michael S. Lamonsoff, also known as “The Bull” among his peers, is well-recognized in NY courts for his relentless dedication towards his clients. With Michael and his team of equally tenacious lawyers on your side, you are in good hands. 

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