Every U.S. state has its own laws governing  wrongful death cases, and New York is no different. In the sections below, we'll look at some key aspects of these laws, starting with how the state defines a "wrongful death" and who may bring this kind of lawsuit to court. We'll also look at the damages available if a wrongful death case succeeds, and the time limits for getting the case started.

Defining a "Wrongful Death" in New York

New York Estates, Powers, and Trusts Code Part 4  requires proof of five elements to establish a claim for wrongful death:

• a death,
• caused by the wrongful conduct of the defendant,
• giving rise to a cause of action the deceased could have pursued in court if death had not occurred
• survival by one or more persons who have suffered a loss as the result of the death, and
• damages the estate can recover.

Note: In  Endresz v. Friedberg, 24 N.Y.2d 478, the New York Court of Appeals held that New York does not recognize wrongful death claims when a fetus dies before birth, even if the death was caused by the wrongful act of another party.

Who May File a New York Wrongful Death Claim?

New York places the responsibility for filing a wrongful death claim on the shoulders of the "personal representative" of the deceased person's estate. Unlike many other states, New York will not allow a family member to bring a wrongful death claim to court unless that family member is also the personal representative of the deceased person's estate.

However, the wrongful death claim may seek damages for losses suffered by the deceased person's heirs, beneficiaries, or devisees in addition to damages for any losses suffered by the deceased person's estate. If damages are awarded, the personal representative is treated by the court as if he or she holds the damages award in trust for the surviving family members to whom the proceeds belong.

Damages in New York Wrongful Death Claims

Damages  awarded in New York wrongful death cases depend on the specific facts that are demonstrated in court. However, damages have been awarded in New York wrongful death cases for losses like:

• funeral and burial expenses
• reasonable medical, nursing, and other health care expenses related to the deceased person's final injury or illness
• wages and benefits lost between the deceased person's final injury or illness and his or her death
• the value of support and services the deceased provided to family members
• the value of parental nurturing, care, and guidance to surviving children
• lost inheritance suffered by surviving children
• conscious pain and suffering endured by the deceased due to the final injury or illness, and
• nine percent interest on the damages award, calculated from the date of death.

However, New York does not allow surviving family members to recover their own  damages for pain and suffering, mental anguish, or loss of companionship, even if the deceased person is a child. Parents may recover damages for the lost value of services, like household chores, performed by the child, but this amount is reduced by the reasonable cost of caring for the child until he or she reached adulthood.

Time Limits for Filing a New York Wrongful Death Claim

A wrongful death claim in New York must be filed within  two years  of the date of the deceased person's death. This rule, known as a statute of limitations, bars wrongful death claims from being filed in New York courts if more than two years have passed between the date of death and the date of filing.

New York does not "toll," or stop, the statute of limitations from running if the personal representative of the deceased person is a child or is legally incapable of filing the claim. In these cases, the guardian of the child or incapable person is expected to file the wrongful death claim instead.