Bill Text: NY S06636 | 2023-2024 | General Assembly | Introduced

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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 (Democrat 33-10)

Status: (Introduced) 2023-06-06 - SUBSTITUTED BY A6698 [S06636 Detail]

Download: New_York-2023-S06636-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

            S. 6636                                                  A. 6698

                               2023-2024 Regular Sessions

                SENATE - ASSEMBLY

                                       May 2, 2023
                                       ___________

        IN  SENATE  -- Introduced by Sens. HOYLMAN-SIGAL, ADDABBO, BAILEY, BRIS-
          PORT, BROUK, CLEARE, COMRIE, COONEY,  GALLIVAN,  GIANARIS,  GOUNARDES,
          GRIFFO, HARCKHAM, HELMING, HINCHEY, JACKSON, KAVANAGH, KENNEDY, KRUEG-
          ER,  LANZA,  LIU,  MANNION, MATTERA, MAY, MAYER, MYRIE, ORTT, PALUMBO,
          PARKER, PERSAUD, RAMOS, RIVERA,  RYAN,  SALAZAR,  SANDERS,  SEPULVEDA,
          SERRANO,  SKOUFIS, STAVISKY, TEDISCO, THOMAS -- read twice and ordered
          printed, and when printed to be committed to the Committee on  Judici-
          ary

        IN  ASSEMBLY -- Introduced by M. of A. WEINSTEIN, PEOPLES-STOKES, DINOW-
          ITZ, ZEBROWSKI, LAVINE, GLICK, L. ROSENTHAL,  AUBRY,  PAULIN,  COLTON,
          HYNDMAN, WEPRIN, JOYNER, SANTABARBARA, TAYLOR, CARROLL, SAYEGH, JACOB-
          SON,  BURKE, STECK, SIMON, DILAN, FALL, JEAN-PIERRE, DICKENS, DARLING,
          SOLAGES, WALLACE, CRUZ,  COOK,  RAJKUMAR,  BENEDETTO,  BURGOS,  STERN,
          MITAYNES,  LUNSFORD, HUNTER, SILLITTI, HEVESI, MAMDANI, STIRPE, GIBBS,
          McMAHON, EPSTEIN, SEAWRIGHT, BURDICK, MAGNARELLI, KIM,  MEEKS,  ANDER-
          SON, TAPIA -- Multi-Sponsored by -- M. of A. BICHOTTE HERMELYN, BRAUN-
          STEIN,  CLARK,  GONZALEZ-ROJAS, LUPARDO, RIVERA, WILLIAMS -- read once
          and referred to the Committee on Judiciary

        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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02714-04-3
        S. 6636                             2                            A. 6698

     1  death had not ensued. Such an action  must  be  commenced  within  [two]
     2  three  years  after  the  decedent's  death[; provided, however, that an
     3  action on behalf of a decedent whose death was caused by  the  terrorist
     4  attacks  on  September eleventh, two thousand one, other than a decedent
     5  identified by the attorney general of the United States as a participant
     6  or conspirator in such attacks, must be commenced within two  years  and
     7  six  months after the decedent's death]. When the [distributees] persons
     8  for whose benefit an action pursuant to this part may be brought do  not
     9  participate  in the administration of the decedent's estate under a will
    10  appointing an executor who refuses to bring such action, the  [distribu-
    11  tees]  persons  for whose benefit an action pursuant to this part may be
    12  brought are entitled to have an administrator appointed to prosecute the
    13  action for their benefit.
    14    § 2. Paragraph (a) of section 5-4.3 of the estates, powers and  trusts
    15  law,  as  amended by chapter 100 of the laws of 1982, is amended to read
    16  as follows:
    17    (a) The damages awarded to the plaintiff may be such sum as  the  jury
    18  or,  where issues of fact are tried without a jury, the court or referee
    19  deems to be fair and just  compensation  for  the  [pecuniary]  injuries
    20  resulting from the decedent's death to the persons for whose benefit the
    21  action is brought. In every such action, in addition to any other lawful
    22  element of recoverable damages, [the reasonable expenses of medical aid,
    23  nursing  and  attention  incident  to  the  injury causing death and the
    24  reasonable funeral expenses of the decedent paid by the distributees, or
    25  for the payment of which any distributee is responsible, shall  also  be
    26  proper  elements  of damage]  compensation for the following damages may
    27  be recovered:  (i) reasonable funeral expenses of the decedent  paid  by
    28  the  persons for whose benefit the action is brought, or for the payment
    29  of which any persons for whose benefit the action is brought is  respon-
    30  sible;  (ii) reasonable expenses for medical care incident to the injury
    31  causing death, including but not limited to doctors, nursing,  attendant
    32  care,  treatment,  hospitalization of the decedent, and medicines; (iii)
    33  grief or anguish caused by the decedent's  death;  (iv)  loss  of  love,
    34  society,  protection,  comfort,  companionship, and consortium resulting
    35  from the decedent's death; (v) pecuniary  injuries,  including  loss  of
    36  services,  support, assistance, and loss or diminishment of inheritance,
    37  resulting from the decedent's death; and (vi) loss of nurture, guidance,
    38  counsel, advice, training, and education resulting from  the  decedent's
    39  death.   Interest upon the principal sum recovered by the plaintiff from
    40  the date of the decedent's death shall be added to and be a part of  the
    41  total sum awarded.
    42    §  3.  Section  5-4.4 of the estates, powers and trusts law, paragraph
    43  (a) as amended by chapter 357 of the laws of 1975, and the opening para-
    44  graph of paragraph (a) as amended by chapter 595 of the laws of 1992, is
    45  amended to read as follows:
    46  § 5-4.4 Distribution of damages recovered
    47    (a) The damages, as prescribed  by  5-4.3,  whether  recovered  in  an
    48  action or by settlement without an action, are exclusively for the bene-
    49  fit  of  the  decedent's  [distributees  and,  when  collected, shall be
    50  distributed to the persons  entitled  thereto  under  4-1.1  and  5-4.5,
    51  except  that where the decedent is survived by a parent or parents and a
    52  spouse and no issue, the parent or parents will be deemed to be  distri-
    53  butees  for  purposes  of  this section] surviving close family members,
    54  which shall be limited to decedent's spouse or domestic partner,  issue,
    55  foster-children,  step-children, and step-grandchildren, parents, grand-
    56  parents, step-parents, step-grandparents, siblings or any person  stand-
        S. 6636                             3                            A. 6698

     1  ing in loco parentis to the decedent. The finder of fact shall determine
     2  which  persons  are  entitled  to damages as close family members of the
     3  decedent under this section based upon the specific circumstances relat-
     4  ing  to  the person's relationship with the decedent.  The damages shall
     5  be distributed subject to the following:
     6    (1)  Such damages shall be distributed by the personal  representative
     7  to  the  persons entitled thereto in proportion to the [pecuniary] inju-
     8  ries suffered by them, such proportions to be determined after  a  hear-
     9  ing,  on application of the personal representative or any [distributee]
    10  persons for whose benefit the action is brought, at  such  time  and  on
    11  notice to all interested persons in such manner as the court may direct.
    12  If  no action is brought, such determination shall be made by the surro-
    13  gate of the county in which letters were issued to the plaintiff; if  an
    14  action  is brought, by the court having jurisdiction of the action or by
    15  the surrogate of the county in which letters were issued.
    16    (2)  The court which determines the  proportions  of  the  [pecuniary]
    17  injuries  suffered  by  the [distributees] persons for whose benefit the
    18  action is brought, as provided in subparagraph (1)  of  this  paragraph,
    19  shall  also  decide  any  question  concerning the disqualification of a
    20  parent, under 4-1.4 of this chapter, or a surviving spouse, under  5-1.2
    21  of this article, to share in the damages recovered.
    22    (b)    The  reasonable  expenses  of  the action or settlement and, if
    23  included in the damages recovered, the reasonable  expenses  of  medical
    24  aid,  nursing and attention incident to the injury causing death and the
    25  reasonable funeral expenses of the decedent may be fixed  by  the  court
    26  which determines the proportions of the [pecuniary] injuries suffered by
    27  the  [distributees]  persons for whose benefit the action is brought, as
    28  provided in subparagraph (1) of this paragraph,  upon  notice  given  in
    29  such  manner  and  to  such  persons  as  the court may direct, and such
    30  expenses may be deducted from the damages recovered.  The commissions of
    31  the personal representative upon the residue may be fixed by the  surro-
    32  gate, upon notice given in such manner and to such persons as the surro-
    33  gate  may  direct  or upon the judicial settlement of the account of the
    34  personal representative, and such commissions may be deducted  from  the
    35  damages recovered.
    36    (c)    In  the  event that an action is brought, as authorized in this
    37  part, and there is no recovery or settlement, the reasonable expenses of
    38  such unsuccessful action, excluding counsel fees, shall be  payable  out
    39  of the assets of the decedent's estate.
    40    (d)  For  the  purposes  of  this section, the term "domestic partner"
    41  shall have the same meaning as defined pursuant to section two  thousand
    42  nine hundred sixty-one of the public health law.
    43    §  4.  Paragraphs  (a) and (b) of section 5-4.6 of the estates, powers
    44  and trusts law, paragraph (a) as amended and paragraph (b) as  added  by
    45  chapter 719 of the laws of 2005, are amended to read as follows:
    46    (a) Within sixty days of the application of an administrator appointed
    47  under  section  5-4.1  of  this part or a personal representative to the
    48  court in which an action for wrongful act, neglect  or  default  causing
    49  the  death of a decedent is pending, the court shall, after inquiry into
    50  the merits of the action and the amount of damages proposed as a compro-
    51  mise either disapprove the application or approve in writing  a  compro-
    52  mise  for  such  amount  as  it shall determine to be adequate including
    53  approval of attorneys fees and  other  payable  expenses  as  set  forth
    54  below,  and  shall order the defendant to pay all sums payable under the
    55  order of compromise, within the time frames set forth  in  section  five
    56  thousand  three-a  of  the civil practice law and rules, to the attorney
        S. 6636                             4                            A. 6698

     1  for the administrator or personal representative  for  placement  in  an
     2  interest  bearing  escrow  account for the benefit of the [distributees]
     3  persons for whose benefit the action is brought.  The order  shall  also
     4  provide for the following:
     5    (1)  Upon collection of the settlement funds and creation of an inter-
     6  est bearing escrow  account,  the  attorney  for  the  administrator  or
     7  personal  representative  shall pay from the account all due and payable
     8  expenses, excluding attorneys fees,  approved  by  the  court,  such  as
     9  medical bills, funeral costs and other liens on the estate.
    10    (2)  All  attorneys  fees approved by the court for the prosecution of
    11  the action for wrongful  act,  neglect  or  default,  inclusive  of  all
    12  disbursements, shall be immediately payable from the escrow account upon
    13  submission  to  the  trial court proof of filing of a petition for allo-
    14  cation and distribution in  the  surrogate's  court  on  behalf  of  the
    15  decedent's estate.
    16    (3)  The  attorney for the administrator or personal representative in
    17  the action for wrongful act, neglect or  default  who  receives  payment
    18  under  this  section  shall continue to serve as attorney for the estate
    19  until the entry of a final decree in the surrogate's court.
    20    (b) If any of the [distributees] persons for whose benefit the  action
    21  is  brought  is  an  infant,  incompetent, person who is incarcerated or
    22  person under disability, the court shall determine whether a guardian ad
    23  litem is required before any payments are made, in which case the  court
    24  will  seek an immediate appointment of a guardian ad litem by the surro-
    25  gate's court or, if the surrogate's court defers, the court  shall  make
    26  such appointment. Any guardian appointed for this purpose shall continue
    27  to  serve as the guardian ad litem for the person requiring same for all
    28  other purposes.
    29    § 5. This act shall take effect immediately and  shall  apply  to  all
    30  causes  of  action  that  accrue on or after July 1, 2018, regardless of
    31  when filed.