Bill Text: NY S08485 | 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: Moderate Partisan Bill (Republican 8-1)

Status: (Introduced) 2024-06-05 - SUBSTITUTED BY A9232B [S08485 Detail]

Download: New_York-2023-S08485-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         8485--B
            Cal. No. 1399

                    IN SENATE

                                    February 5, 2024
                                       ___________

        Introduced by Sens. HOYLMAN-SIGAL, ASHBY, GALLIVAN, LANZA, MURRAY, ORTT,
          PALUMBO,  TEDISCO,  WEBER  -- read twice and ordered printed, and when
          printed to be committed to the  Committee  on  Judiciary  --  reported
          favorably  from  said  committee  and  committed  to  the Committee on
          Finance -- committee discharged, bill amended,  ordered  reprinted  as
          amended  and  recommitted to said committee -- reported favorably from
          said committee, ordered to first and second report, ordered to a third
          reading, amended and ordered reprinted, retaining  its  place  in  the
          order of third reading

        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.
                                                                   LBD02714-10-4
        S. 8485--B                          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) other pecuniary
    21  injuries, including loss of services, support, assistance, and  loss  or
    22  diminishment  of  inheritance,  resulting from the decedent's death; and
    23  (v) loss of nurture, guidance, counsel, advice, training,  companionship
    24  and  education  resulting  from  the decedent's death. Interest upon the
    25  principal sum recovered by the plaintiff from the date of the decedent's
    26  death shall be added to and be a part of the total sum awarded.
    27    § 3. Section 5-4.4 of the estates, powers and  trusts  law,  paragraph
    28  (a) as amended by chapter 357 of the laws of 1975, and the opening para-
    29  graph of paragraph (a) as amended by chapter 595 of the laws of 1992, is
    30  amended to read as follows:
    31  § 5-4.4 Distribution of damages recovered
    32    (a)  The  damages,  as  prescribed  by  5-4.3, whether recovered in an
    33  action or by settlement without an action, are exclusively for the bene-
    34  fit of the  [decedent's  distributees  and,  when  collected,  shall  be
    35  distributed  to  the  persons  entitled  thereto  under 4-1.1 and 5-4.5,
    36  except that where the decedent is survived by a parent or parents and  a
    37  spouse  and no issue, the parent or parents will be deemed to be distri-
    38  butees for purposes of this  section]  persons  for  whose  benefit  the
    39  action  is  brought,  which  shall  be  defined  as  and  limited to the
    40  decedent's spouse  or  domestic  partner,  decedent's  distributees,  as
    41  defined  by  4-1.1  of  this  chapter and 5-4.5 of this part, any person
    42  standing in loco parentis to the decedent, and to any person to whom the
    43  decedent stood in a position of in loco parentis. An  in  loco  parentis
    44  relationship  shall  be  presumed  when an adult and minor share or have
    45  recently shared a household. The finder of fact shall determine which of
    46  those persons for whose benefit the action is  brought,  as  defined  in
    47  this  paragraph,  are  entitled to damages under this section based upon
    48  the specific circumstances relating to the  person's  relationship  with
    49  the  decedent.   The damages shall be distributed subject to the follow-
    50  ing:
    51    (1)  Such damages shall be distributed by the personal  representative
    52  to  the  persons entitled thereto in proportion to the [pecuniary] inju-
    53  ries suffered by them, such proportions to be determined after  a  hear-
    54  ing,  on application of the personal representative or any [distributee]
    55  persons for whose benefit the action is brought, at  such  time  and  on
    56  notice to all interested persons in such manner as the court may direct.
        S. 8485--B                          3

     1  If  no action is brought, such determination shall be made by the surro-
     2  gate of the county in which letters were issued to the plaintiff; if  an
     3  action  is brought, by the court having jurisdiction of the action or by
     4  the surrogate of the county in which letters were issued.
     5    (2)    The  court  which determines the proportions of the [pecuniary]
     6  injuries suffered by the [distributees] persons for  whose  benefit  the
     7  action  is  brought,  as provided in subparagraph (1) of this paragraph,
     8  shall also decide any question  concerning  the  disqualification  of  a
     9  parent,  under 4-1.4 of this chapter, or a surviving spouse, under 5-1.2
    10  of this article, to share in the damages recovered.
    11    (b)   The reasonable expenses of the  action  or  settlement  and,  if
    12  included  in  the  damages recovered, the reasonable expenses of medical
    13  aid, nursing and attention incident to the injury causing death and  the
    14  reasonable  funeral  expenses  of the decedent may be fixed by the court
    15  which determines the proportions of the [pecuniary] injuries suffered by
    16  the [distributees] persons for whose benefit the action is  brought,  as
    17  provided  in  subparagraph  (1)  of this paragraph, upon notice given in
    18  such manner and to such persons  as  the  court  may  direct,  and  such
    19  expenses may be deducted from the damages recovered.  The commissions of
    20  the  personal representative upon the residue may be fixed by the surro-
    21  gate, upon notice given in such manner and to such persons as the surro-
    22  gate may direct or upon the judicial settlement of the  account  of  the
    23  personal  representative,  and such commissions may be deducted from the
    24  damages recovered.
    25    (c)  In the event that an action is brought,  as  authorized  in  this
    26  part, and there is no recovery or settlement, the reasonable expenses of
    27  such  unsuccessful  action, excluding counsel fees, shall be payable out
    28  of the assets of the decedent's estate.
    29    (d) For the purposes of this  section,  the  term  "domestic  partner"
    30  shall  have the same meaning as defined pursuant to section two thousand
    31  nine hundred sixty-one of the public health law.
    32    § 4. Paragraphs (a) and (b) of section 5-4.6 of  the  estates,  powers
    33  and  trusts  law, paragraph (a) as amended and paragraph (b) as added by
    34  chapter 719 of the laws of 2005, are amended to read as follows:
    35    (a) Within sixty days of the application of an administrator appointed
    36  under 5-4.1 of this part or a personal representative to  the  court  in
    37  which  an  action for wrongful act, neglect or default causing the death
    38  of a decedent is pending, the court shall, after inquiry into the merits
    39  of the action and the amount of damages proposed as a compromise  either
    40  disapprove  the  application or approve in writing a compromise for such
    41  amount as it shall determine to be adequate including approval of attor-
    42  neys fees and other payable expenses as set forth below, and shall order
    43  the defendant to pay all sums payable under  the  order  of  compromise,
    44  within the time frames set forth in section five thousand three-a of the
    45  civil  practice  law and rules, to the attorney for the administrator or
    46  personal representative for placement  in  an  interest  bearing  escrow
    47  account  for the benefit of the [distributees] persons for whose benefit
    48  the action is brought.  The order shall also provide for the following:
    49    (1) Upon collection of the settlement funds and creation of an  inter-
    50  est  bearing  escrow  account,  the  attorney  for  the administrator or
    51  personal representative shall pay from the account all due  and  payable
    52  expenses,  excluding  attorneys  fees,  approved  by  the court, such as
    53  medical bills, funeral costs and other liens on the estate.
    54    (2) All attorneys fees approved by the court for  the  prosecution  of
    55  the  action  for  wrongful  act,  neglect  or  default, inclusive of all
    56  disbursements, shall be immediately payable from the escrow account upon
        S. 8485--B                          4

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