New York Wrongful Death: Attorney Answers FAQ

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Having practiced law for nearly 25 years, Ira Slavit, a New York wrongful death lawyer is frequently asked questions about how NY wrongful death lawsuits work, what is the statute of limitations for filing a suit, what type of experts are used, who can obtain medical records and more. Here are answers to some of those FAQ:

Question: How do NY wrongful death lawsuits work?

Answer: The process of filing a New York wrongful death lawsuit requires meeting the statute of limitations and having the legal capacity to bring the claim. It generally consists of two parts:

  1. The first part is a cause of action for wrongful death, which is a creation of statute, specifically the Estates Powers and Trusts Law (EPTL) of the State of New York. Article 5 (Family Rights), Part 4 of the EPTL establishes who can collect and recover and it also establishes the types of damages that can be recovered for the harm or damage that’s caused by the fact that someone has died.
  2. The second part of the action is to recover for the conscious pain and suffering of the deceased, which is a common law right of action that can also be pursued by the estate on behalf of the deceased.

For additional information about the process, please click here.

Question: What is the statute of limitations for filing a NY wrongful death lawsuit?

Answer: For a wrongful death action, there is a two year statute of limitations that starts to run from the date of death. However, there is a requirement for a notice of claim to be filed much sooner than that’ usually within 90 days from the date of death’ when a municipality is involved.

Question: What types of experts are generally used in New York wrongful death lawsuits?

Answer: It’s important to remember that wrongful death itself can occur in many different contexts, so in a sense it’s similar to a personal injury case’ except that the person hasn’t survived. So, if it’s liability at a construction site, you might need an engineer. Certainly for medical malpractice you’re going to need medical experts as well as medical proof connecting the injury to the death in some cases. It’s different in every case.

Question: Are financial experts and economists used to calculate what the decedent’s future potential earning might have been?

Answer: You need an economist as an expert to calculate those types of things such as a loss of earnings, health insurance benefits or 401(k) earnings. New York State statutes discuss pecuniary losses and using economists is the best way to maximize a client’s recovery.

Question: How do privilege laws affect obtaining medical records?

Answer: Privilege laws still apply to the extent that you don’t see hospitals and doctors just giving out medical records simply because a stranger asks for them. Certainly privacy issues still apply to people who are deceased.

One of the things that can slow things down in a wrongful death case is getting records because certain medical facilities will not provide them until they can see proof from the Surrogates Court that someone has been appointed to represent the estate. However, it’s important to note that in the case where there is no legal representative of the estate, the law does provide that the next of kin has a right to request the records. For additional information on obtaining medicals, please click here.

Question: What advice would you give to a New Yorker whose loved one has died due to the negligence of someone else, but is unsure about whether to file a lawsuit?

Answer: I think that if you have a situation where the person who passed away was a wage earner and provided financial support to a lot of people, then you have to ask who is going to replace that and why shouldn’t it come from the party who was responsible for the loss? Plus, we work on a contingency fee and always provide a free initial consultation, so discussing the situation with an experienced attorney doesn’t cost anything.

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