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Who Can File a Wrongful Death Action?

Dec 9, 2020 | Personal Injury

If you lost a loved one due to the negligence, recklessness, or carelessness of another, you understandably want justice. Although no amount of money can compensate you for your loss, filing a wrongful death lawsuit can hold the responsible party accountable for their actions — or in some cases, their inaction.

The accident victim may have many family members and friends who are enduring unbearable grief. However, it’s important to understand that not just anyone can pursue a wrongful death action.

Although the victim might have several dependents entitled to recovery for pecuniary loss, there is generally only one plaintiff named in a wrongful death lawsuit — the personal representative of the estate.

Who Can Be a Personal Representative?

Under New York law, the responsibility for filing a wrongful death action is on the “personal representative.” This individual may be designated in a will or appointed by the Surrogate’s Court.  

Regardless of whether the decedent had a will, the spouse, child, or other next of kin can’t automatically file a wrongful death action in court — even if there is a will, letters testamentary must first be obtained from the Surrogate’s Court. Typically, the person closest to the decedent would petition for Letters of Administration and request to be appointed as the personal representative of the estate if the victim didn’t leave a will.

A personal representative isn’t always eligible to be awarded damages unless they’re also a distributee, such as the accident victim’s spouse or child. If the personal representative is a trusted family friend designated by a will, they would have a duty to prosecute the action and distribute the damages, but they would not be entitled to receive them. However, a personal representative may receive a commission fee as compensation for their work, even if they aren’t a distributee.  

Survivorship Actions

While a wrongful death claim can compensate for economic loss, a survivorship action may also provide financial recovery for the conscious pain and suffering the victim experienced. Even though a survivorship cause of action is distinct from a wrongful death cause of action, it may also be commenced at the same time by the personal representative of the estate.

How Long Do I Have to File a Wrongful Death Lawsuit?

When you’re going through the pain of having lost a loved one, filing a lawsuit may not be the first thing on your mind. However, it’s critical to be aware that you only have a limited time to commence a wrongful death action — this is why you shouldn’t delay seeking appointment as personal representative.

In New York, you have two years to file a wrongful death lawsuit from the date your loved one passed. Although you have some time to file the action, you shouldn’t wait too long. If you miss the statute of limitations by just a day, your claim may be barred forever.

There are also other specific deadlines you should be aware of that are associated with a wrongful death lawsuit, depending on the facts of your case.  

For instance, if a municipality such as the City of New York — or a city authority, agency, or department — should be named as a party in the action, you need to file a Notice of Claim before you can file a lawsuit.

In a wrongful death action, you have 90 days from the date the personal representative of the decedent’s estate is appointed to put a municipality on notice. However, if you’re also filing a survivorship claim on behalf of the victim, the 90-day time frame to file the Notice of Claim begins on the date of the victim’s death.

It’s important to note that the statute of limitations to file a wrongful death lawsuit against the City of New York is only one year and 90 days.

Additionally, if the victim’s death arose from a car accident, you only have thirty days to file a no-fault application with the insurance company in order to get no-fault death benefits. 

Contact an Experienced New York City Wrongful Death Attorney

If you’ve lost a loved one in an accident that arose due to another’s negligence, it’s crucial to seek the counsel of a wrongful death attorney right away. A proficient wrongful death attorney who understands the complexities associated with litigating wrongful death claims in New York can help you secure the maximum amount of recovery you’re entitled to receive under the law. With our skill and acumen, we have helped families obtain millions in compensation for their tragic losses, even in the most challenging cases.  

The Edelsteins, Faegenburg & Brown LLP have extensive experience fighting for the rights of injured workers, accident victims, and their families to ensure they get the maximum compensation they deserve. Located in Manhattan, we have been handling personal injury and wrongful death cases throughout New York City since 1937. Call (212) 425-1999 to schedule a free consultation today.




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