NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A9232B
SPONSOR: Weinstein (MS) TITLE OF BILL:
An act to amend the estates, powers and trusts law, in relation to the
payment and distribution of damages in wrongful death actions
PURPOSE:
This bill would permit surviving close family members of wrongful death
victims to recover compensation for grief and anguish caused by the
decedent's death.
SUMMARY OF PROVISIONS OF BILL:
Section 1 amends EPTL section 5-4.1 to extend the time permitted to
bring a wrongful death action by one year.
Section 2 amends EPTL section 5-4.3, to permit recovery of damages for
grief and anguish when a tortfeasor is found liable for causing a death.
Current law allows recovery of pecuniary loss only, thus making it
impossible for close family members to receive any compensation for
their non-economic loss.
Section 3 amends EPTL section 5-4.4 to permit recovery by close family
members.
Section 4 amends EPTL section 5-4.6 to replace distributees with persons
for whose benefit the action is brought.
Section 5 states that the act shall take effect immediately and shall
apply to all causes of action that accrue on or after January 1, 2021,
JUSTIFICATION:
New York families who suffer the loss of a loved one must endure a
second blow, when they discover the state's civil justice system is
unable to compensate them for their emotional loss. New York's wrongful
death statute is over 175 years old, and it is unfortunately out of step
with nearly every other state because the New York's laws prohibit
grief-stricken families from recovering damages for their emotional
suffering from the death of their loved one. The current law, which
awards compensation for pecuniary loss only, impacts most harshly on
children, seniors, women and people of color; people who often have no
income or significantly less income, or have been traditionally under-
valued in our society. For many years, the courts have struggled to
overcome the current law's narrow and inhumane language, which measures
the worth of loved family members solely by their value as wage earners.
Currently, the grief and anguish of grieving family members counts for
nothing.
As distinguished from prior versions of this legislation vetoed by the
Governor, this bill narrowly defines and limits the "surviving close
family members" who may potentially claim grief and suffering damages as
distributees under current law, with the limited exception of where the
decedent is survived by a parent or parents, or any person standing in
loco parentis to the decedent, and a spouse and no issue, the parent or
parents or such person standing in loco parentis is deemed to be a
surviving close family member. And importantly, the finder of fact shall
determine which close family members are-or are not-entitled to damages
based upon the specific circumstances relating to the person's relation-
ship with the decedent. To further address concerns raised by the
Governor, this version of the bill has shortened the proposed retroac-
tive effect of the legislation by three years. It now only applies to
causes of action that accrue on or after January 1, 2021.
Forty-eight other states compensate family members for emotional loss in
wrongful death cases. This bill will not only better address and more
fully right the wrong to the family of the deceased, but it will also
deter negligent, reckless, sometimes criminal behavior that leads to
needless deaths. It is ironic and contrary to public policy that
currently a wrongdoer may take advantage of the law that makes it cheap-
er to kill someone than to seriously injure them. New Yorkers have wait-
ed since 1847 to reform this outdated, noxious and discriminatory law.
It stands as an injustice today as it did when it limited the families
of the women killed in the Triangle Shirtwaist Factory fire to a paltry
$75.00 in compensation. This bill is immediately needed to correct the
harsh anomaly of the current wrongful death law.
LEGISLATIVE HISTORY:
2023-24: A.6690/S.6636 - Passed Both Houses, Vetoed, Memo 151.
2021-22: A.6770/S.74 - Passed Both Houses, Vetoed, Memo 192.
2019-20: A.5612/S.4006- A.Cal./S.Fin
2017-18: A.1386/S.411 - A.Cal/S.Judi
2015-16: A.164/S.336 - A.Judi/S. Judi
2013-14: A.1001/S.551 -A. Judi/S. Judi
2011-12: A.4851/S.2540 - A. Judi/S.Judi
2009-10: A.2872/S.6420 - A. Judi/S. Judi
2007-08: A.6420/S.1266 - A.Judi/S. Judi
2005-06: A.5856/S.54 - A. Judi/S. Rules
2003-04: A.6637/S.2294 - A.Judi/S. Rules
2002: A.7789/S.793 - A.Rules/S. Rules
2001: A.7789/S.793 - A.Judi /S. Judi
1999-2000: A.8013 - A. Judi
1998: A.4553-A - A. Rules
1997: A.4553-A - PA
1996: A.3224 - A. Rules
1995: A.3224 - A. Cal.
1994: A.11792 - A. Rules
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
This act shall take effect immediately and shall apply to all causes of
action that have accrued on or after January 1, 2021.
STATE OF NEW YORK
________________________________________________________________________
9232--B
IN ASSEMBLY
February 21, 2024
___________
Introduced by M. of A. WEINSTEIN, PEOPLES-STOKES, LAVINE, DINOWITZ,
GLICK, AUBRY, BICHOTTE HERMELYN, BRAUNSTEIN, BURDICK, BURGOS, BURKE,
CARROLL, CLARK, COLTON, COOK, CRUZ, DICKENS, DILAN, EPSTEIN, FALL,
GIBBS, HEVESI, HUNTER, HYNDMAN, JACOBSON, JEAN-PIERRE, KIM, LUNSFORD,
MAGNARELLI, McMAHON, MEEKS, MITAYNES, NORRIS, PAULIN, REYES, L. ROSEN-
THAL, SANTABARBARA, SHRESTHA, SIMON, SOLAGES, STECK, STERN, STIRPE,
TAYLOR, WEPRIN, ZEBROWSKI, RAGA -- Multi-Sponsored by -- M. of A.
LUPARDO, RIVERA -- read once and referred to the Committee on Judici-
ary -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- committee discharged,
bill amended, ordered reprinted as amended and recommitted to said
committee -- reported and referred to the Committee on Codes
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-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02714-09-4
A. 9232--B 2
1 tees] persons for whose benefit an action pursuant to this part may be
2 brought are entitled to have an administrator appointed to prosecute the
3 action for their benefit.
4 § 2. Paragraph (a) of section 5-4.3 of the estates, powers and trusts
5 law, as amended by chapter 100 of the laws of 1982, is amended to read
6 as follows:
7 (a) The damages awarded to the plaintiff may be such sum as the jury
8 or, where issues of fact are tried without a jury, the court or referee
9 deems to be fair and just compensation for the [pecuniary] injuries
10 resulting from the decedent's death to the persons for whose benefit the
11 action is brought. In every such action, in addition to any other lawful
12 element of recoverable damages, [the reasonable expenses of medical aid,
13 nursing and attention incident to the injury causing death and the
14 reasonable funeral expenses of the decedent paid by the distributees, or
15 for the payment of which any distributee is responsible, shall also be
16 proper elements of damage] compensation for the following damages may
17 be recovered: (i) reasonable funeral expenses of the decedent paid by
18 the persons for whose benefit the action is brought, or for the payment
19 of which any persons for whose benefit the action is brought is respon-
20 sible; (ii) reasonable expenses for medical care incident to the injury
21 causing death, including but not limited to doctors, nursing, attendant
22 care, treatment, hospitalization of the decedent, and medicines; (iii)
23 grief or anguish caused by the decedent's death; (iv) other pecuniary
24 injuries, including loss of services, support, assistance, and loss or
25 diminishment of inheritance, resulting from the decedent's death; and
26 (v) loss of nurture, guidance, counsel, advice, training, companionship
27 and education resulting from the decedent's death. Interest upon the
28 principal sum recovered by the plaintiff from the date of the decedent's
29 death shall be added to and be a part of the total sum awarded.
30 § 3. Section 5-4.4 of the estates, powers and trusts law, paragraph
31 (a) as amended by chapter 357 of the laws of 1975, and the opening para-
32 graph of paragraph (a) as amended by chapter 595 of the laws of 1992, is
33 amended to read as follows:
34 § 5-4.4 Distribution of damages recovered
35 (a) The damages, as prescribed by 5-4.3, whether recovered in an
36 action or by settlement without an action, are exclusively for the bene-
37 fit of the [decedent's distributees and, when collected, shall be
38 distributed to the persons entitled thereto under 4-1.1 and 5-4.5,
39 except that where the decedent is survived by a parent or parents and a
40 spouse and no issue, the parent or parents will be deemed to be distri-
41 butees for purposes of this section] persons for whose benefit the
42 action is brought, which shall be defined as and limited to the
43 decedent's spouse or domestic partner, decedent's distributees, as
44 defined by 4-1.1 of this chapter and 5-4.5 of this part, any person
45 standing in loco parentis to the decedent, and to any person to whom the
46 decedent stood in a position of in loco parentis. An in loco parentis
47 relationship shall be presumed when an adult and minor share or have
48 recently shared a household. The finder of fact shall determine which of
49 those persons for whose benefit the action is brought, as defined in
50 this paragraph, are entitled to damages under this section based upon
51 the specific circumstances relating to the person's relationship with
52 the decedent. The damages shall be distributed subject to the follow-
53 ing:
54 (1) Such damages shall be distributed by the personal representative
55 to the persons entitled thereto in proportion to the [pecuniary] inju-
56 ries suffered by them, such proportions to be determined after a hear-
A. 9232--B 3
1 ing, on application of the personal representative or any [distributee]
2 persons for whose benefit the action is brought, at such time and on
3 notice to all interested persons in such manner as the court may direct.
4 If no action is brought, such determination shall be made by the surro-
5 gate of the county in which letters were issued to the plaintiff; if an
6 action is brought, by the court having jurisdiction of the action or by
7 the surrogate of the county in which letters were issued.
8 (2) The court which determines the proportions of the [pecuniary]
9 injuries suffered by the [distributees] persons for whose benefit the
10 action is brought, as provided in subparagraph (1) of this paragraph,
11 shall also decide any question concerning the disqualification of a
12 parent, under 4-1.4 of this chapter, or a surviving spouse, under 5-1.2
13 of this article, to share in the damages recovered.
14 (b) The reasonable expenses of the action or settlement and, if
15 included in the damages recovered, the reasonable expenses of medical
16 aid, nursing and attention incident to the injury causing death and the
17 reasonable funeral expenses of the decedent may be fixed by the court
18 which determines the proportions of the [pecuniary] injuries suffered by
19 the [distributees] persons for whose benefit the action is brought, as
20 provided in subparagraph (1) of this paragraph, upon notice given in
21 such manner and to such persons as the court may direct, and such
22 expenses may be deducted from the damages recovered. The commissions of
23 the personal representative upon the residue may be fixed by the surro-
24 gate, upon notice given in such manner and to such persons as the surro-
25 gate may direct or upon the judicial settlement of the account of the
26 personal representative, and such commissions may be deducted from the
27 damages recovered.
28 (c) In the event that an action is brought, as authorized in this
29 part, and there is no recovery or settlement, the reasonable expenses of
30 such unsuccessful action, excluding counsel fees, shall be payable out
31 of the assets of the decedent's estate.
32 (d) For the purposes of this section, the term "domestic partner"
33 shall have the same meaning as defined pursuant to section two thousand
34 nine hundred sixty-one of the public health law.
35 § 4. Paragraphs (a) and (b) of section 5-4.6 of the estates, powers
36 and trusts law, paragraph (a) as amended and paragraph (b) as added by
37 chapter 719 of the laws of 2005, are amended to read as follows:
38 (a) Within sixty days of the application of an administrator appointed
39 under 5-4.1 of this part or a personal representative to the court in
40 which an action for wrongful act, neglect or default causing the death
41 of a decedent is pending, the court shall, after inquiry into the merits
42 of the action and the amount of damages proposed as a compromise either
43 disapprove the application or approve in writing a compromise for such
44 amount as it shall determine to be adequate including approval of attor-
45 neys fees and other payable expenses as set forth below, and shall order
46 the defendant to pay all sums payable under the order of compromise,
47 within the time frames set forth in section five thousand three-a of the
48 civil practice law and rules, to the attorney for the administrator or
49 personal representative for placement in an interest bearing escrow
50 account for the benefit of the [distributees] persons for whose benefit
51 the action is brought. The order shall also provide for the following:
52 (1) Upon collection of the settlement funds and creation of an inter-
53 est bearing escrow account, the attorney for the administrator or
54 personal representative shall pay from the account all due and payable
55 expenses, excluding attorneys fees, approved by the court, such as
56 medical bills, funeral costs and other liens on the estate.
A. 9232--B 4
1 (2) All attorneys fees approved by the court for the prosecution of
2 the action for wrongful act, neglect or default, inclusive of all
3 disbursements, shall be immediately payable from the escrow account upon
4 submission to the trial court proof of filing of a petition for allo-
5 cation and distribution in the surrogate's court on behalf of the
6 decedent's estate.
7 (3) The attorney for the administrator or personal representative in
8 the action for wrongful act, neglect or default who receives payment
9 under this section shall continue to serve as attorney for the estate
10 until the entry of a final decree in the surrogate's court.
11 (b) If any of the [distributees] persons for whose benefit the action
12 is brought is an infant, incompetent, person who is incarcerated or
13 person under disability, the court shall determine whether a guardian ad
14 litem is required before any payments are made, in which case the court
15 will seek an immediate appointment of a guardian ad litem by the surro-
16 gate's court or, if the surrogate's court defers, the court shall make
17 such appointment. Any guardian appointed for this purpose shall continue
18 to serve as the guardian ad litem for the person requiring same for all
19 other purposes.
20 § 5. This act shall take effect immediately and shall apply to all
21 causes of action that have accrued on or after January 1, 2021.
