Who Can File a Wrongful Death Lawsuit in New York?
There are many cases where a person suffers harm due to another’s negligence yet cannot take legal action to recover damages because they are deceased. Consider someone killed in a car accident caused by a drunk driver or a nursing home resident who dies due to abuse or neglect on the part of the facility. These victims obviously suffered the worst loss imaginable, yet as a matter of law the dead cannot file a civil lawsuit to recover damages.
This is where New York’s wrongful death laws come into play. Wrongful death is a special type of personal injury claim that addresses the unlawful killing of a person, whether by negligence or intentional act. In essence, a wrongful death lawsuit is the personal injury claim that the victim could have brought had they survived the defendant’s actions.
The Role of the Personal Representative
When a New York resident dies, upon application the Surrogate’s Court will appoint a personal representative to oversee that decedent’s probate estate. If the decedent left a valid last will and testament, the court typically appoints the person nominated in that will to serve as personal representative. Otherwise, the court names an administrator to fill the same role as the personal representative. The administrator is generally a relative of the decedent, with priority given to the decedent’s surviving spouse or adult children, if any.
It is the personal representative’s responsibility to file a wrongful death lawsuit. Any damages recovered, however, are held by the personal representative “exclusively for the benefit” of the decedent’s surviving relatives (or “distributees.”) Typically, this again means any surviving spouse or children. If the decedent had no spouse or children, however, then the wrongful death proceeds would be distributed to their next-of-kin, such as parents or siblings.
Even in cases where someone is both a distributee and the person entitled to be named personal representative (or administrator) of a wrongful death victim’s estate, they still need to obtain a proper appointment from the Surrogate’s Court before filing a lawsuit.
For instance, the Appellate Division, Second Department recently upheld the dismissal of a wrongful death lawsuit arising from the death of a woman in a nursing home. The plaintiff in this case, Estate of Moore v. Nassau Operating Co., LLC, was the daughter of the deceased. But she had not been appointed as administrator of her mother’s estate. The Appellate Division said that meant the daughter “lacked capacity to bring this action,” although she could re-file the case if she obtained a proper appointment from the Surrogate’s Court within six months.
Contact a New York City Nursing Home Abuse Lawyer
If you have recently lost a spouse, parent, or close family member due to someone else’s wrongful acts, you no doubt have many questions about your legal options for holding the wrongdoer accountable in court. Our New York City nursing home abuse attorneys can help you in finding answers. Contact the Law Offices of Jaroslawicz & Jaros, PLLC, at 212-227-2780 to schedule a consultation. We serve clients throughout New York City and Long Island.
Source:
scholar.google.com/scholar_case?case=17302232334440416690