Losing someone to another person’s negligence brings immediate decisions about funerals, finances, and family. A legal deadline may not be on anyone’s mind. New York sets one anyway, and a related criminal case can change how it works.
The Two-Year Rule
Under EPTL section 5-4.1, the personal representative of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect, or default that caused the death. The action must be commenced within two years after the decedent’s death.
The count starts on the date of death, not the date of the crash or the injury. When a person survives for days or weeks, the date of death is the date that controls the wrongful death period. Two years can pass quickly while a family handles funeral arrangements, an estate, and grief.
Who Brings the Claim
The statute places the action in the hands of the personal representative, the person appointed to manage the decedent’s estate. A family member can’t simply file on their own behalf. Getting that appointment in place takes time, and if no estate has been opened yet, that step comes first. It is one more reason to start early.
The structure also explains why who can file is a first question. The person with legal authority and the people who lost a loved one are not always the same.
When a Criminal Case Is Involved
Subdivision 2 of the same section addresses cases where a criminal action has been commenced against the same defendant. In that situation, the personal representative has at least one year from the termination of the criminal action, even if the original period has already passed or has less than a year left.
This matters after a fatal crash involving drunk driving or another offense that leads to criminal charges. Criminal cases can run for a long time, and the extension protects the civil claim. It is not a reason to wait, because the civil case needs its own evidence.
Survival Claims Are Separate
A wrongful death action is not the only claim after a fatal injury. The decedent’s own claim for pain and suffering before death is handled differently, and survival actions have their own rules. Families should learn how the two claims work together.
Evidence Worth Securing Early
Evidence from the incident can disappear quickly. Important items include:
- Police and accident reports
- Hospital records and the death certificate
- Photos and video of the scene
- Names and numbers for witnesses
- Employment and financial records for the decedent
Hospital settings raise their own issues. Cases involving delayed diagnosis depend heavily on medical records, which are best requested without delay.
Different Causes of Death Lead to Different Claims
The cause of death shapes who may be responsible. A crash with a car or truck points to drivers and their insurers, and a Manhattan car accident lawyer can review the policies behind the vehicle.
A fatal fall from a scaffold or a crane failure raises employer and contractor questions. Families dealing with those questions can work with a Manhattan construction accident lawyer.
Slip and fall deaths involve property owners and managers. Families can ask a Manhattan slip and fall lawyer to examine who controlled the property and what that party knew.
Choosing Who Reviews the Claim
Families who are unsure whether the two-year period or the criminal case extension applies can ask a Manhattan wrongful death lawyer to review the date of death, the appointment of a representative, and any related criminal charges. Starting that review early leaves time to appoint a representative and gather records.
Paul J. Edelstein graduated from Brooklyn Law School and volunteers as a lawyer with the Trial Lawyers Care 9/11 Project. At The Edelsteins, Faegenburg, & Blyakher LLP, he handles our wrongful death matters.
The two-year period runs from the date of death, and a criminal case may add time. Families in Manhattan who lost someone to negligence can reach out to us, and we’ll go through the timeline and the options with you.