STATE OF NEW YORK
________________________________________________________________________
4423
2025-2026 Regular Sessions
IN SENATE
February 4, 2025
___________
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
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:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07457-01-5
S. 4423 2
1 (a) The damages awarded to the plaintiff may be such sum as the jury
2 or, where issues of fact are tried without a jury, the court or referee
3 deems to be fair and just compensation for the [pecuniary] injuries
4 resulting from the decedent's death to the persons for whose benefit the
5 action is brought. In every such action, in addition to any other lawful
6 element of recoverable damages, [the reasonable expenses of medical aid,
7 nursing and attention incident to the injury causing death and the
8 reasonable funeral expenses of the decedent paid by the distributees, or
9 for the payment of which any distributee is responsible, shall also be
10 proper elements of damage] compensation for the following damages may
11 be recovered: (i) reasonable funeral expenses of the decedent paid by
12 the persons for whose benefit the action is brought, or for the payment
13 of which any persons for whose benefit the action is brought is respon-
14 sible; (ii) reasonable expenses for medical care incident to the injury
15 causing death, including but not limited to doctors, nursing, attendant
16 care, treatment, hospitalization of the decedent, and medicines; (iii)
17 grief or anguish caused by the decedent's death; (iv) other pecuniary
18 injuries, including loss of services, support, assistance, and loss or
19 diminishment of inheritance, resulting from the decedent's death; and
20 (v) loss of nurture, guidance, counsel, advice, training, companionship
21 and education resulting from the decedent's death. Interest upon the
22 principal sum recovered by the plaintiff from the date of the decedent's
23 death shall be added to and be a part of the total sum awarded.
24 § 3. Section 5-4.4 of the estates, powers and trusts law, paragraph
25 (a) as amended by chapter 357 of the laws of 1975, and the opening para-
26 graph of paragraph (a) as amended by chapter 595 of the laws of 1992, is
27 amended to read as follows:
28 § 5-4.4 Distribution of damages recovered
29 (a) The damages, as prescribed by 5-4.3, whether recovered in an
30 action or by settlement without an action, are exclusively for the bene-
31 fit of the [decedent's distributees and, when collected, shall be
32 distributed to the persons entitled thereto under 4-1.1 and 5-4.5,
33 except that where the decedent is survived by a parent or parents and a
34 spouse and no issue, the parent or parents will be deemed to be distri-
35 butees for purposes of this section] persons for whose benefit the
36 action is brought, which shall be defined as and limited to the
37 decedent's spouse or domestic partner, decedent's distributees, as
38 defined by 4-1.1 of this chapter and 5-4.5 of this part, any person
39 standing in loco parentis to the decedent, and to any person to whom the
40 decedent stood in a position of in loco parentis. An in loco parentis
41 relationship shall be presumed when an adult and minor share or have
42 recently shared a household. The finder of fact shall determine which of
43 those persons for whose benefit the action is brought, as defined in
44 this paragraph, are entitled to damages under this section based upon
45 the specific circumstances relating to the person's relationship with
46 the decedent. The damages shall be distributed subject to the follow-
47 ing:
48 (1) Such damages shall be distributed by the personal representative
49 to the persons entitled thereto in proportion to the [pecuniary] inju-
50 ries suffered by them, such proportions to be determined after a hear-
51 ing, on application of the personal representative or any [distributee]
52 persons for whose benefit the action is brought, at such time and on
53 notice to all interested persons in such manner as the court may direct.
54 If no action is brought, such determination shall be made by the surro-
55 gate of the county in which letters were issued to the plaintiff; if an
S. 4423 3
1 action is brought, by the court having jurisdiction of the action or by
2 the surrogate of the county in which letters were issued.
3 (2) The court which determines the proportions of the [pecuniary]
4 injuries suffered by the [distributees] persons for whose benefit the
5 action is brought, as provided in subparagraph (1) of this paragraph,
6 shall also decide any question concerning the disqualification of a
7 parent, under 4-1.4 of this chapter, or a surviving spouse, under 5-1.2
8 of this article, to share in the damages recovered.
9 (b) The reasonable expenses of the action or settlement and, if
10 included in the damages recovered, the reasonable expenses of medical
11 aid, nursing and attention incident to the injury causing death and the
12 reasonable funeral expenses of the decedent may be fixed by the court
13 which determines the proportions of the [pecuniary] injuries suffered by
14 the [distributees] persons for whose benefit the action is brought, as
15 provided in subparagraph (1) of this paragraph, upon notice given in
16 such manner and to such persons as the court may direct, and such
17 expenses may be deducted from the damages recovered. The commissions of
18 the personal representative upon the residue may be fixed by the surro-
19 gate, upon notice given in such manner and to such persons as the surro-
20 gate may direct or upon the judicial settlement of the account of the
21 personal representative, and such commissions may be deducted from the
22 damages recovered.
23 (c) In the event that an action is brought, as authorized in this
24 part, and there is no recovery or settlement, the reasonable expenses of
25 such unsuccessful action, excluding counsel fees, shall be payable out
26 of the assets of the decedent's estate.
27 (d) For the purposes of this section, the term "domestic partner"
28 shall have the same meaning as defined pursuant to section two thousand
29 nine hundred sixty-one of the public health law.
30 § 4. Paragraphs (a) and (b) of section 5-4.6 of the estates, powers
31 and trusts law, paragraph (a) as amended and paragraph (b) as added by
32 chapter 719 of the laws of 2005, are amended to read as follows:
33 (a) Within sixty days of the application of an administrator appointed
34 under 5-4.1 of this part or a personal representative to the court in
35 which an action for wrongful act, neglect or default causing the death
36 of a decedent is pending, the court shall, after inquiry into the merits
37 of the action and the amount of damages proposed as a compromise either
38 disapprove the application or approve in writing a compromise for such
39 amount as it shall determine to be adequate including approval of attor-
40 neys fees and other payable expenses as set forth below, and shall order
41 the defendant to pay all sums payable under the order of compromise,
42 within the time frames set forth in section five thousand three-a of the
43 civil practice law and rules, to the attorney for the administrator or
44 personal representative for placement in an interest bearing escrow
45 account for the benefit of the [distributees] persons for whose benefit
46 the action is brought. The order shall also provide for the following:
47 (1) Upon collection of the settlement funds and creation of an inter-
48 est bearing escrow account, the attorney for the administrator or
49 personal representative shall pay from the account all due and payable
50 expenses, excluding attorneys fees, approved by the court, such as
51 medical bills, funeral costs and other liens on the estate.
52 (2) All attorneys fees approved by the court for the prosecution of
53 the action for wrongful act, neglect or default, inclusive of all
54 disbursements, shall be immediately payable from the escrow account upon
55 submission to the trial court proof of filing of a petition for allo-
S. 4423 4
1 cation and distribution in the surrogate's court on behalf of the
2 decedent's estate.
3 (3) The attorney for the administrator or personal representative in
4 the action for wrongful act, neglect or default who receives payment
5 under this section shall continue to serve as attorney for the estate
6 until the entry of a final decree in the surrogate's court.
7 (b) If any of the [distributees] persons for whose benefit the action
8 is brought is an infant, incompetent, person who is incarcerated or
9 person under disability, the court shall determine whether a guardian ad
10 litem is required before any payments are made, in which case the court
11 will seek an immediate appointment of a guardian ad litem by the surro-
12 gate's court or, if the surrogate's court defers, the court shall make
13 such appointment. Any guardian appointed for this purpose shall continue
14 to serve as the guardian ad litem for the person requiring same for all
15 other purposes.
16 § 5. This act shall take effect immediately and shall apply to all
17 causes of action that have accrued on or after January 1, 2022.
