STATE OF NEW YORK ________________________________________________________________________ 9232--A 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 -- Multi-Sponsored by -- M. of A. LUPARDO, RIVERA -- read once and referred to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02714-07-4
A. 9232--A 2 1 brought are entitled to have an administrator appointed to prosecute the 2 action for their benefit. 3 § 2. Paragraph (a) of section 5-4.3 of the estates, powers and trusts 4 law, as amended by chapter 100 of the laws of 1982, is amended to read 5 as follows: 6 (a) The damages awarded to the plaintiff may be such sum as the jury 7 or, where issues of fact are tried without a jury, the court or referee 8 deems to be fair and just compensation for the [pecuniary] injuries 9 resulting from the decedent's death to the persons for whose benefit the 10 action is brought. In every such action, in addition to any other lawful 11 element of recoverable damages, [the reasonable expenses of medical aid, 12 nursing and attention incident to the injury causing death and the 13 reasonable funeral expenses of the decedent paid by the distributees, or 14 for the payment of which any distributee is responsible, shall also be 15 proper elements of damage] compensation for the following damages may 16 be recovered: (i) reasonable funeral expenses of the decedent paid by 17 the persons for whose benefit the action is brought, or for the payment 18 of which any persons for whose benefit the action is brought is respon- 19 sible; (ii) reasonable expenses for medical care incident to the injury 20 causing death, including but not limited to doctors, nursing, attendant 21 care, treatment, hospitalization of the decedent, and medicines; (iii) 22 grief or anguish caused by the decedent's death; (iv) other pecuniary 23 injuries, including loss of services, support, assistance, and loss or 24 diminishment of inheritance, resulting from the decedent's death; and 25 (v) loss of nurture, guidance, counsel, advice, training, and education 26 resulting from the decedent's death. Interest upon the principal sum 27 recovered by the plaintiff from the date of the decedent's death shall 28 be added to and be a part of the total sum awarded. 29 § 3. Section 5-4.4 of the estates, powers and trusts law, paragraph 30 (a) as amended by chapter 357 of the laws of 1975, and the opening para- 31 graph of paragraph (a) as amended by chapter 595 of the laws of 1992, is 32 amended to read as follows: 33 § 5-4.4 Distribution of damages recovered 34 (a) The damages, as prescribed by 5-4.3, whether recovered in an 35 action or by settlement without an action, are exclusively for the bene- 36 fit of the decedent's [distributees and, when collected, shall be 37 distributed to the persons entitled thereto under 4-1.1 and 5-4.5, 38 except that where the decedent is survived by a parent or parents and a 39 spouse and no issue, the parent or parents will be deemed to be distri- 40 butees for purposes of this section] surviving close family members, 41 which shall be defined as and limited to those persons entitled thereto 42 under 4-1.1 of this chapter and 5-4.5 of this part, except that where 43 the decedent is survived by a parent or parents, or any person standing 44 in loco parentis to the decedent, and a spouse and no issue, the parent 45 or parents or such person standing in loco parentis will be deemed to be 46 close family members for purposes of this section. The finder of fact 47 shall determine which of those close family members, as defined in this 48 paragraph, are entitled to damages under this section based upon the 49 specific circumstances relating to the person's relationship with the 50 decedent. The damages shall be distributed subject to the following: 51 (1) Such damages shall be distributed by the personal representative 52 to the persons entitled thereto in proportion to the [pecuniary] inju- 53 ries suffered by them, such proportions to be determined after a hear- 54 ing, on application of the personal representative or any [distributee] 55 persons for whose benefit the action is brought, at such time and on 56 notice to all interested persons in such manner as the court may direct.
A. 9232--A 3 1 If no action is brought, such determination shall be made by the surro- 2 gate of the county in which letters were issued to the plaintiff; if an 3 action is brought, by the court having jurisdiction of the action or by 4 the surrogate of the county in which letters were issued. 5 (2) The court which determines the proportions of the [pecuniary] 6 injuries suffered by the [distributees] persons for whose benefit the 7 action is brought, as provided in subparagraph (1) of this paragraph, 8 shall also decide any question concerning the disqualification of a 9 parent, under 4-1.4 of this chapter, or a surviving spouse, under 5-1.2 10 of this article, to share in the damages recovered. 11 (b) The reasonable expenses of the action or settlement and, if 12 included in the damages recovered, the reasonable expenses of medical 13 aid, nursing and attention incident to the injury causing death and the 14 reasonable funeral expenses of the decedent may be fixed by the court 15 which determines the proportions of the [pecuniary] injuries suffered by 16 the [distributees] persons for whose benefit the action is brought, as 17 provided in subparagraph (1) of this paragraph, upon notice given in 18 such manner and to such persons as the court may direct, and such 19 expenses may be deducted from the damages recovered. The commissions of 20 the personal representative upon the residue may be fixed by the surro- 21 gate, upon notice given in such manner and to such persons as the surro- 22 gate may direct or upon the judicial settlement of the account of the 23 personal representative, and such commissions may be deducted from the 24 damages recovered. 25 (c) In the event that an action is brought, as authorized in this 26 part, and there is no recovery or settlement, the reasonable expenses of 27 such unsuccessful action, excluding counsel fees, shall be payable out 28 of the assets of the decedent's estate. 29 (d) For the purposes of this section, the term "domestic partner" 30 shall have the same meaning as defined pursuant to section two thousand 31 nine hundred sixty-one of the public health law. 32 § 4. Paragraphs (a) and (b) of section 5-4.6 of the estates, powers 33 and trusts law, paragraph (a) as amended and paragraph (b) as added by 34 chapter 719 of the laws of 2005, are amended to read as follows: 35 (a) Within sixty days of the application of an administrator appointed 36 under 5-4.1 of this part or a personal representative to the court in 37 which an action for wrongful act, neglect or default causing the death 38 of a decedent is pending, the court shall, after inquiry into the merits 39 of the action and the amount of damages proposed as a compromise either 40 disapprove the application or approve in writing a compromise for such 41 amount as it shall determine to be adequate including approval of attor- 42 neys fees and other payable expenses as set forth below, and shall order 43 the defendant to pay all sums payable under the order of compromise, 44 within the time frames set forth in section five thousand three-a of the 45 civil practice law and rules, to the attorney for the administrator or 46 personal representative for placement in an interest bearing escrow 47 account for the benefit of the [distributees] persons for whose benefit 48 the action is brought. The order shall also provide for the following: 49 (1) Upon collection of the settlement funds and creation of an inter- 50 est bearing escrow account, the attorney for the administrator or 51 personal representative shall pay from the account all due and payable 52 expenses, excluding attorneys fees, approved by the court, such as 53 medical bills, funeral costs and other liens on the estate. 54 (2) All attorneys fees approved by the court for the prosecution of 55 the action for wrongful act, neglect or default, inclusive of all 56 disbursements, shall be immediately payable from the escrow account upon
A. 9232--A 4 1 submission to the trial court proof of filing of a petition for allo- 2 cation and distribution in the surrogate's court on behalf of the 3 decedent's estate. 4 (3) The attorney for the administrator or personal representative in 5 the action for wrongful act, neglect or default who receives payment 6 under this section shall continue to serve as attorney for the estate 7 until the entry of a final decree in the surrogate's court. 8 (b) If any of the [distributees] persons for whose benefit the action 9 is brought is an infant, incompetent, person who is incarcerated or 10 person under disability, the court shall determine whether a guardian ad 11 litem is required before any payments are made, in which case the court 12 will seek an immediate appointment of a guardian ad litem by the surro- 13 gate's court or, if the surrogate's court defers, the court shall make 14 such appointment. Any guardian appointed for this purpose shall continue 15 to serve as the guardian ad litem for the person requiring same for all 16 other purposes. 17 § 5. This act shall take effect immediately and shall apply to all 18 causes of action that have accrued on or after January 1, 2021.