Bill Text: NY A09232 | 2023-2024 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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: (Enrolled) 2024-12-12 - delivered to governor [A09232 Detail]

Download: New_York-2023-A09232-Introduced.html

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                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  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.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02714-04-3
        A. 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,
    10  nursing and attention incident to  the  injury  causing  death  and  the
    11  reasonable funeral expenses of the decedent paid by the distributees, or
    12  for  the  payment of which any distributee is responsible, shall also be
    13  proper 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  be
    37  distributed  to  the  persons  entitled  thereto  under 4-1.1 and 5-4.5,
    38  except that where the decedent is survived by a parent or parents and  a
    39  spouse  and no issue, the parent or parents will be deemed to be distri-
    40  butees 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  an
        A. 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.