They left for work like they always did, maybe with a quick kiss goodbye. But then came the phone call no one ever wants to receive — a crash, a hospital, an unthinkable loss. How do you go on when someone’s negligence stole the most precious person in your life?
Losing someone close is always incredibly hard. But when their death could have been avoided, when someone's negligence or intentional harm causes it, it feels even more unfair. In New York, surviving family members have the legal right to seek compensation through a wrongful death claim.
In this guide, we will discuss the process of filing a wrongful death lawsuit in New York, helping you understand your legal rights and options during this difficult time.
What Is a Wrongful Death Lawsuit? A wrongful death lawsuit is a civil action that allows certain family members or representatives to seek compensation when someone dies due to another person's negligence, recklessness, or intentionally harmful actions. While no amount of money can truly compensate for the loss of life, these claims serve two important purposes:
They provide financial support to family members who may be facing economic hardship after losing a loved one's income and support. They hold responsible parties accountable for their actions. In New York, wrongful death claims are governed by specific statutes that determine who can file, what damages can be recovered, and the timeframe for taking legal action.
Who Can File a Wrongful Death Lawsuit in New York? Unlike some states, which allow family members to file directly, New York law requires a wrongful death claim to be filed by the personal representative of the deceased person's estate. This representative is typically named in the decedent's will or appointed by the court if no will exists.
While the personal representative files the lawsuit, they do so on behalf of:
The surviving spouse Children of the deceased Parents of the deceased (if no spouse or children survive) Other dependent family members It's important to note that while the representative files the lawsuit, any compensation recovered is distributed to the eligible surviving family members according to their degree of loss, not necessarily according to inheritance laws.
Proving a Wrongful Death Case in New York To succeed in a wrongful death lawsuit, you must establish four key elements:
1. Duty of Care You must show that the defendant owed a duty of care to the deceased. For example, drivers have a duty to follow traffic laws, doctors have a duty to provide competent medical care, and manufacturers have a duty to produce safe products.
2. Breach of Duty You must prove the defendant breached their duty through negligence, recklessness, or intentional actions. This breach might involve a driver texting while driving, a doctor failing to order appropriate tests, or a manufacturer ignoring safety standards.
3. Causation You must demonstrate that the defendant's breach directly caused the death. This often requires expert testimony to establish the link between the defendant's actions and the fatal outcome.
4. Damages You must show that the death resulted in financial and emotional damages to the surviving family members. These damages might include medical expenses before death, funeral costs, lost income, and loss of support and guidance.
We’ll Hold the Negligent Drivers Accountable. All You Need to Do Is Call. The team at Tomkiel & Tomkiel has a proven track record of handling wrongful death cases in New York, and we're here to support you. Contact us for a confidential consultation!
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How to File Wrongful Death Claims in New York Filing a wrongful death lawsuit involves several important steps. Following them carefully helps ensure your claim is properly handled:
1. Consult with Our Wrongful Death Attorneys Before taking any legal action, consult with a wrongful death attorney who focuses their practice on New York personal injury law. They can:
Evaluate the merits of your case Explain the legal process Help gather necessary evidence Determine potential compensation Handle communications with insurance companies Represent your interests in court if necessary At Tomkiel & Tomkiel , we offer a free initial consultation and work on a contingency fee basis, meaning we only get paid if you receive compensation. This allows you to have top-notch representation without any risk.
2. Establish the Estate and Appoint a Personal Representative As mentioned, New York law requires that wrongful death claims be filed by the personal representative of the deceased person's estate. If the deceased had a will, it typically names this representative. If not, the court will need to appoint someone, usually a close family member.
This requires opening a probate proceeding in the Surrogate's Court in the county where the deceased person lived. Your attorney can help with this process.
3. Gather Evidence Building a strong wrongful death case requires substantial evidence. Your attorney will help collect:
Death certificate Accident reports Medical records related to the fatal injury Witness statements Expert opinions Employment and income records Evidence of the relationship between family members and the deceased The specific evidence needed will depend on the circumstances of the death and the type of claim being filed.
4. File the Complaint Your attorney will prepare and file a formal complaint with the appropriate court. This document outlines:
The parties involved How the defendant breached their duty of care How this breach caused the death The damages being sought Filing this complaint officially begins the lawsuit process and must be done within the statute of limitations period.
5. Serve the Defendant After filing, the complaint must be properly served to the defendant(s), notifying them of the legal action against them. This must be done according to specific legal procedures. Failure to serve the defendant within the allotted timeframe can result in the case being dismissed. Proof of service must be filed with the court to validate that the defendant has been properly notified.
6. Discovery Process During discovery, both sides exchange information and evidence related to the case. This may include:
Written questions (interrogatories) Requests for documents Depositions (sworn testimony) This process helps both sides understand the strengths and weaknesses of the case.
7. Negotiation and Settlement Many wrongful death claims are resolved through settlement negotiations rather than trial. Your attorney will work to negotiate a fair settlement that addresses all applicable damages. If a reasonable settlement cannot be reached, the case proceeds to trial. Settlement agreements will involve a release of liability, meaning you cannot pursue further legal action related to the death after accepting the settlement. Tax implications of settlement awards should also be considered and discussed with tax experts.
8. Trial If settlement negotiations fail, your case will go to trial, where a judge or jury will determine liability and damages. Your attorney will present evidence, question witnesses, and make legal arguments on your behalf. The trial process can be lengthy and emotionally taxing, and the outcome is not guaranteed. It is important to remember that New York is a comparative negligence state, which means that the amount of awarded damages can be reduced by the percentage of fault attributed to the deceased.
9. Distribution of Damages If compensation is awarded, either through settlement or trial verdict, the funds are distributed to eligible family members according to their degree of loss and New York law. The Surrogate's Court must approve the distribution of damages, and a formal accounting of how the funds will be allocated is required. Specific guidelines exist regarding which family members qualify for compensation and the proportion they are entitled to receive.
How Long Does a Wrongful Death Lawsuit Take in NY? A wrongful death lawsuit in New York can take anywhere from several months to several years to resolve. The length of time depends on the case's specifics, including the evidence's complexity and whether the case settles or goes to trial.
Expect the initial filing to take a few months and the distribution of damages to take additional months after a settlement or verdict is reached. While highly variable, many wrongful death lawsuits in New York reach resolution within two to three years, though complex cases can extend significantly beyond this timeframe.
Damages Recoverable in New York Wrongful Death Claims New York law allows recovery of both economic and non-economic damages in wrongful death cases:
Economic Damages Medical expenses related to the fatal injury Funeral and burial costs Lost wages and benefits the deceased would have earned Lost inheritance Value of services the deceased would have provided Lost health insurance and pension benefits Non-Economic Damages Unlike many states, New York's wrongful death statute limits non-economic damages to the conscious pain and suffering experienced by the deceased before death. Survivors generally cannot recover damages for their own grief, mental anguish, or loss of companionship.
Punitive Damages In cases involving especially egregious conduct, punitive damages may be awarded to punish the defendant and deter similar behavior. These are relatively rare and require proof of willful or wanton negligence.
Statute of Limitations for Wrongful Death Lawsuits in New York In New York, wrongful death claims must generally be filed within two years from the date of death. However, there are important exceptions:
Medical malpractice: The deadline may be extended to 2.5 years.Claims against government entities: Notice must be filed within 90 days, with the lawsuit filed within one year and 90 days.Criminal cases: The statute may be extended if a criminal case is pending.Missing these deadlines typically means losing your right to seek compensation, which is why consulting with an attorney promptly is crucial.
Difference Between Wrongful Death Claims and Survival Actions It's important to understand that New York law distinguishes between wrongful death claims and survival actions:
Wrongful death claims focus on the losses suffered by surviving family members due to the death, such as lost financial support.Survival actions address the deceased person's own losses before death, such as conscious pain and suffering, medical expenses, and lost wages between injury and death.These two types of claims are often filed together but serve different purposes and compensate different parties.
Tomkiel & Tomkiel: Proven Results that Change Lives Filing a wrongful death lawsuit involves navigating complex legal procedures and understanding specific deadlines. It's a process aimed at securing compensation for the financial and emotional losses suffered by surviving family members. The legal complexities of a wrongful death lawsuit in New York demand a lot of effort, but it's a way to hold those responsible accountable and secure your family's future.
Our firm has been helping devastated families for three generations. Let our decades of New York personal injury experience work to secure you and your family after this horrible loss. As Julie, one of our past clients, said, "Wow! Awesome company, handled my mum's affairs with efficiency, dignity and respect, friendly, personable and very timely, can't recommend these guys enough!".
If you've lost a loved one due to someone else's negligence or wrongful actions, contact Tomkiel & Tomkiel today for a free consultation. Our team can help you take the necessary legal steps with care and diligence.
