The law that applies to your claim
EPTL §5-4.1 — two years from the date of death
Shorter than the three years for an ordinary injury claim. If a public entity is involved, a notice of claim within 90 days is generally required on top of it.
Only a personal representative may sue
A wrongful death action is brought by the representative of the decedent’s estate, not by family members individually. Surrogate’s Court must appoint that person, and the appointment takes time — which is why the two-year period is tighter in practice than it reads.
EPTL §5-4.3 — what New York allows
New York compensates pecuniary injuries to the distributees: lost financial support, lost parental guidance, medical and funeral expenses. It does not compensate grief, sorrow or loss of companionship. That is narrower than most states, and families are rightly surprised by it.
EPTL §11-3.2(b) — the survival claim
Separately, the estate may bring the claim the decedent could have brought — including conscious pain and suffering between injury and death. Where there was an interval of awareness, this is often the larger part of the case.
The two claims, and why both matter
The wrongful death claim belongs to the distributees and compensates what they lost financially. The survival claim belongs to the estate and compensates what the decedent endured before dying.
They are proved differently. Pecuniary loss turns on earnings, benefits, services and life expectancy, usually with an economist. Conscious pain and suffering turns on the medical record and on witnesses to the interval — whether the person was aware, and for how long.
Where these claims arise
- Motor vehicle and truck collisions
- Construction falls and struck-by incidents
- Medical errors and failures to diagnose
- Nursing home neglect
- Defective products and machinery
- Fires, drownings and unsafe premises
What to preserve, and what not to sign
Insurers approach families early, sometimes within days. Do not give a recorded statement and do not sign a release while you are making funeral arrangements.
Preserve the vehicle or product, photographs, phone records and the complete medical chart. If an autopsy has not been performed, that decision may be irreversible and worth discussing with counsel before it is made.
How long you have to act
- Three years from the date of the accident for most negligence claims (CPLR §214).
- Two years for wrongful death (EPTL §5-4.1).
- 90 days to serve a notice of claim where a city, county, school district, transit authority or other public body is involved (General Municipal Law §50-e), with suit generally within one year and 90 days.
The 90-day rule is the one that quietly ends otherwise strong cases. If a public entity may be involved, that is the first thing to check — not the last.
What it costs
Nothing up front. These cases are handled on contingency: there is no fee unless we win, and the consultation is free. You will be told the percentage and how expenses are handled, in writing, before you sign anything.
Common questions
Who receives the recovery?
Distributees under New York’s intestacy rules — typically a spouse and children — in shares reflecting each one’s pecuniary loss. Surrogate’s Court approves the allocation.
My family member died months after the accident. Which deadline applies?
The wrongful death period runs two years from the date of death. The survival claim carries the deadline that applied to the underlying injury. Both need checking together.
We cannot afford to bring a case right now.
These are handled on contingency — no fee unless there is a recovery, and expenses are advanced. Cost should not be what decides whether the claim is investigated.
