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

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

Download: New_York-2023-S08485-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          8485

                    IN SENATE

                                    February 5, 2024
                                       ___________

        Introduced  by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
          when printed to be committed 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
     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.
    22    § 2. Paragraph (a) of section 5-4.3 of the estates, powers and  trusts
    23  law,  as  amended by chapter 100 of the laws of 1982, is amended to read
    24  as follows:
    25    (a) The damages awarded to the plaintiff may be such sum as  the  jury
    26  or,  where issues of fact are tried without a jury, the court or referee
    27  deems to be fair and just  compensation  for  the  [pecuniary]  injuries
    28  resulting from the decedent's death to the persons for whose benefit the

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02714-04-3
        S. 8485                             2

     1  action is brought. In every such action, in addition to any other lawful
     2  element of recoverable damages, [the reasonable expenses of medical aid,
     3  nursing  and  attention  incident  to  the  injury causing death and the
     4  reasonable funeral expenses of the decedent paid by the distributees, or
     5  for  the  payment of which any distributee is responsible, shall also be
     6  proper elements of damage]  compensation for the following  damages  may
     7  be  recovered:   (i) reasonable funeral expenses of the decedent paid by
     8  the persons for whose benefit the action is brought, or for the  payment
     9  of  which any persons for whose benefit the action is brought is respon-
    10  sible; (ii) reasonable expenses for medical care incident to the  injury
    11  causing  death, including but not limited to doctors, nursing, attendant
    12  care, treatment, hospitalization of the decedent, and  medicines;  (iii)
    13  grief  or  anguish  caused  by  the decedent's death; (iv) loss of love,
    14  society, protection, comfort, companionship,  and  consortium  resulting
    15  from  the  decedent's  death;  (v) pecuniary injuries, including loss of
    16  services, support, assistance, and loss or diminishment of  inheritance,
    17  resulting from the decedent's death; and (vi) loss of nurture, guidance,
    18  counsel,  advice,  training, and education resulting from the decedent's
    19  death.  Interest upon the principal sum recovered by the plaintiff  from
    20  the  date of the decedent's death shall be added to and be a part of the
    21  total sum awarded.
    22    § 3. Section 5-4.4 of the estates, powers and  trusts  law,  paragraph
    23  (a) as amended by chapter 357 of the laws of 1975, and the opening para-
    24  graph of paragraph (a) as amended by chapter 595 of the laws of 1992, is
    25  amended to read as follows:
    26  § 5-4.4 Distribution of damages recovered
    27    (a)  The  damages,  as  prescribed  by  5-4.3, whether recovered in an
    28  action or by settlement without an action, are exclusively for the bene-
    29  fit of the  decedent's  [distributees  and,  when  collected,  shall  be
    30  distributed  to  the  persons  entitled  thereto  under 4-1.1 and 5-4.5,
    31  except that where the decedent is survived by a parent or parents and  a
    32  spouse  and no issue, the parent or parents will be deemed to be distri-
    33  butees for purposes of this section]  surviving  close  family  members,
    34  which  shall be limited to decedent's spouse or domestic partner, issue,
    35  foster-children, step-children, and step-grandchildren, parents,  grand-
    36  parents,  step-parents, step-grandparents, siblings or any person stand-
    37  ing in loco parentis to the decedent. The finder of fact shall determine
    38  which persons are entitled to damages as close  family  members  of  the
    39  decedent under this section based upon the specific circumstances relat-
    40  ing  to  the person's relationship with the decedent.  The damages shall
    41  be distributed subject to the following:
    42    (1)  Such damages shall be distributed by the personal  representative
    43  to  the  persons entitled thereto in proportion to the [pecuniary] inju-
    44  ries suffered by them, such proportions to be determined after  a  hear-
    45  ing,  on application of the personal representative or any [distributee]
    46  persons for whose benefit the action is brought, at  such  time  and  on
    47  notice to all interested persons in such manner as the court may direct.
    48  If  no action is brought, such determination shall be made by the surro-
    49  gate of the county in which letters were issued to the plaintiff; if  an
    50  action  is brought, by the court having jurisdiction of the action or by
    51  the surrogate of the county in which letters were issued.
    52    (2)  The court which determines the  proportions  of  the  [pecuniary]
    53  injuries  suffered  by  the [distributees] persons for whose benefit the
    54  action is brought, as provided in subparagraph (1)  of  this  paragraph,
    55  shall  also  decide  any  question  concerning the disqualification of a
        S. 8485                             3

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

     1    (b) If any of the [distributees] persons for whose benefit the  action
     2  is  brought  is  an  infant,  incompetent, person who is incarcerated or
     3  person under disability, the court shall determine whether a guardian ad
     4  litem is required before any payments are made, in which case the  court
     5  will  seek an immediate appointment of a guardian ad litem by the surro-
     6  gate's court or, if the surrogate's court defers, the court  shall  make
     7  such appointment. Any guardian appointed for this purpose shall continue
     8  to  serve as the guardian ad litem for the person requiring same for all
     9  other purposes.
    10    § 5. This act shall take effect immediately and  shall  apply  to  all
    11  causes  of  action  that  accrue on or after July 1, 2018, regardless of
    12  when filed.