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Practice Areas / Wrongful Death & Survivor

Survivor & Estate Claims in New York.

When someone dies due to another party’s negligence, the estate has a separate right to recover for everything the deceased experienced before death — the pain, the suffering, the medical bills, and the lost earnings between injury and death. This claim belongs to the estate, not the family directly. Handling it correctly alongside a wrongful death action can significantly change the total recovery.

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01 — Two Claims

Two parallel actions, governed by different statutes.

New York splits a death-by-negligence case into two claims, with different damages, different beneficiaries, and different proof.
Wrongful Death Action — EPTL §5-4.1
Brought by the personal representative of the estate on behalf of the distributees — generally the spouse, children, and parents. Compensates the family for the pecuniary loss they suffered because the person died. Forward-looking — what the family lost going forward.
Survival Action — EPTL §11-3.2
Brought by the estate. Compensates for what the deceased experienced before death — conscious pain and suffering, medical bills between injury and death, and lost wages during that interval. Backward-looking — the claim the person could have brought themselves if they had survived.
“The two claims are typically filed together, valued together, and settled together. But they have different beneficiaries, different proof, and different damages models. A serious wrongful death practice treats them as the separate cases they are.”
02 — Pecuniary Loss

What the wrongful death claim covers.

The wrongful death claim does NOT compensate the family for grief, emotional suffering, or loss of the relationship in the abstract. New York wrongful death damages are restricted to pecuniary loss — the financial support, services, and inheritance the family lost. That includes:
  • Financial support — the deceased would have provided over their working life.
  • Household services — the deceased provided — childcare, home maintenance, family management — valued at replacement cost.
  • Parental guidance, instruction, and intellectual and moral training — the children lost.
  • Loss of inheritance — the spouse and children would have received from the deceased's future earnings.
The pecuniary-loss limitation is one of the most criticized features of New York wrongful death law. It is also the framework. Building the damages case requires economic-loss modeling, often with a forensic economist, and a careful record of what the deceased contributed financially and otherwise.
03 — Common Causes

Underlying liability theories.

Wrongful death claims in our practice typically arise out of:
Medical Malpractice
Certificate of Merit required
Premises Liability
Falls, fires, building collapses
Auto / Truck Collision
PIP + BI + UM/UIM stacking
Construction Fatality
Coordinated with construction practice
Negligent Security
Criminal acts on premises
Defective Products
Manufacturer liability
Each underlying cause has its own evidentiary playbook. The damages framework above is constant.
04 — Statute of Limitations

Two years from the date of death.

Under EPTL §5-4.1, the wrongful death action must be filed within two years from the date of death. This is shorter than the three-year statute that applies to most personal injury claims under CPLR §214. Families often assume they have three years and find out otherwise too late.
Watch for the 90-day Notice of Claim trap
If a public entity is responsible — a city hospital, NYCHA, the MTA, a school district — a 90-day Notice of Claim is ALSO required under General Municipal Law §50-e. The 90 days runs from the date the cause of action accrued, which for wrongful death is the date of death. Two clocks running at once.
Distributee disputes can also complicate the timeline. Recoveries are distributed among the distributees according to NY intestacy rules — even where there is a will. The will controls the deceased’s property; the wrongful death recovery follows EPTL §4-1.1 distribution. We have handled cases where the distributee question itself becomes a separate negotiation.

05 — How We Work

No fee unless we recover.

01
Free consultation

In person at 1 WTC, by phone, by video, or at your hospital bed. Same day for new matters.

02
Contingency fee

Percentage of recovery. No upfront costs. Disclosed in writing.

03
Direct attorney access

Bob personally represents Amparo’s clients.

04
Trilingual

English · Español · فارسی — directly by the principals.

Prior results do not guarantee a similar outcome.

06 — FAQ

Questions families ask.

The personal representative of the estate — usually the executor named in the will, or the administrator appointed by Surrogate’s Court if there is no will. Beneficiaries (distributees) do not bring the action directly; they receive their share through the estate.
New York does not currently permit recovery of “grief” damages in a wrongful death claim. The recovery is limited to pecuniary loss. The survival claim can compensate for the deceased’s pre-death conscious pain and suffering, which sometimes captures the weight of what happened in a different doctrinal frame.
Medical malpractice wrongful death cases have specific procedural requirements — a Certificate of Merit, expert affidavits, and a heightened evidentiary standard. The two-year wrongful death statute still controls the filing deadline.
No. Immigration status does not bar a wrongful death claim in New York. The economic-loss model considers actual earning history. We have represented immigrant families and conducted the case the same way as any other.
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Talk to Bob about your case.

Free, confidential consultation. English · Español · فارسی. No fee unless we recover.

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Call (212) XXX-XXXX