What Legal Requirements Exist for a Wrongful Death Lawsuit?
Wrongful death is a legal term that indicates a party’s unlawful actions caused a death to occur. Obviously, not every death is a wrongful death. What makes a death wrongful in the eyes of New York State law?
What Elements Are Necessary for a NY Wrongful Death Lawsuit?
To bring a wrongful death case in New York, the following elements are necessary:
- An individual died (New York State law does not recognize a fetus that dies before birth as an individual, even if a wrongful act killed the fetus)
- The person died as a result of another's wrongful act, neglect or failure to fulfill a legal obligation
- If the person had lived, he or she would have been able to take legal action against the person who was responsible for the harm
- The person who died must be survived by one or more persons who suffered loss as a result of the death
- Damages exist that can be recovered by the estate
- The court has assigned a personal representative, and that person is the only one who can file the lawsuit on behalf of the surviving beneficiaries (exception below)
- When a personal representatives refuses to bring a wrongful death lawsuit, the surviving family may have an administrator appointed to prosecute the wrongful death on their behalf
If a criminal action was brought against the same defendant with regards to the wrongful death, the personal representative has at least one year from the termination of the criminal action to file a wrongful death lawsuit even if the two year statute of limitations has expired or if there is less than a year remaining before the statue would expire.
(Reference: New York Estates Powers and Trusts Law, Article 5, Part 4 Rights of Members of Family Resulting from Wrongful Act, Neglect or Default Causing Death of Decedent)
At Sackstein Sackstein & Lee, LLP, we offer a free initial consultation to talk about wrongful death and determine whether grounds exist to pursue a lawsuit.