State file: New York

Wrongful Death Attorneys in New York: Your Complete Legal Guide

7 min read

2 years General deadline in the table of this guide. The same row names another period for some deaths: read it before relying on this number.

New York’s wrongful death statute compensates “pecuniary injuries”: the economic losses the death causes to the family members who are the person’s distributees. The personal representative brings the case within two years of the death, and a criminal case against the same defendant can extend that time. When a city, county, town or school district is responsible, a sworn notice of claim must be served within 90 days, counted from the appointment of the estate’s representative. The court, not a fixed formula, divides the recovery in proportion to each distributee’s pecuniary injuries.

New York Wrongful Death at a Glance

Question New York answer
Who files? The personal representative of a person survived by distributees (EPTL 5-4.1)
Deadline Two years after death; at least one year after a related criminal action ends (5-4.1)
Damages Fair and just compensation for pecuniary injuries, plus medical and funeral expenses, interest from the date of death, and punitive damages the person could have recovered (5-4.3)
Who receives it? The distributees, in proportion to their pecuniary injuries, as the court determines after a hearing (5-4.4)
The person's own claim Survives and may be brought by the personal representative (EPTL 11-3.2)
Local government Notice of claim within 90 days of the representative's appointment; suit within two years of the death (Gen. Mun. Law 50-e, 50-i)
The State Claim or notice of intention within 90 days of appointment; claim within two years of the death (Court of Claims Act 10)
Fault Does not bar recovery; damages reduced proportionately, including for the person's own conduct (CPLR 1411)

Who Brings the Case

“The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death” (EPTL 5-4.1(1)).

If an executor named in a will refuses to bring the action, and the distributees are not taking part in administering the estate, the distributees “are entitled to have an administrator appointed to prosecute the action for their benefit.”

The Deadline

The action “must be commenced within two years after the decedent’s death” (EPTL 5-4.1(1)).

A related criminal case. “Whenever it is shown that a criminal action has been commenced against the same defendant with respect to the event or occurrence,” the personal representative has “at least one year from the termination of the criminal action” to bring the wrongful death action, even if the two years have run or less than a year remains (5-4.1(2)).

What Can Be Recovered

The jury may award “such sum as … [it] deems to be fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought” (EPTL 5-4.3(a)). The statute adds:

  • the reasonable expenses of medical aid, nursing and attention for the injury that caused death, and reasonable funeral expenses paid by, or owed by, the distributees;
  • interest on the principal sum from the date of death; and
  • for deaths on or after September 1, 1982, punitive damages “if such damages would have been recoverable had the decedent survived” (5-4.3(b)).

In medical and dental malpractice cases, evidence of the income taxes the person would have paid is admissible and must be considered in determining what would have been available to support the family (5-4.3(c)).

The statute’s measure is pecuniary injury. It does not list grief or loss of companionship as recoverable elements.

How the Recovery Is Divided

The damages are “exclusively for the benefit of the decedent’s distributees” and are distributed to the persons entitled under New York’s intestacy provisions. Where the person is survived by a spouse and a parent or parents but no children or other issue, the parents are also treated as distributees for this purpose (EPTL 5-4.4(a)).

The personal representative distributes the damages “in proportion to the pecuniary injuries suffered by them,” with the proportions set after a hearing by the court handling the action, or by the surrogate if no action is brought. The same court decides whether a parent or spouse is disqualified from sharing. The reasonable expenses of the action or settlement, medical and funeral expenses included in the recovery, and the representative’s commissions may be deducted (5-4.4).

The Person’s Own Claim

“No cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed. For any injury an action may be brought or continued by the personal representative of the decedent” (EPTL 11-3.2(b)).

Claims Against Local Governments and the State

Cities, counties, towns, villages, fire districts and school districts. A sworn written notice of claim must be served “within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent’s estate.” The notice states the claimant’s name and address, the nature of the claim, when, where and how it arose, and the damages claimed, and is served personally or by registered or certified mail (Gen. Mun. Law 50-e). At least 30 days must pass after service before suit, and “wrongful death actions shall be commenced within two years after the happening of the death” (50-i).

The State. An executor’s or administrator’s claim for a death caused by the State must be filed and served on the attorney general “within ninety days after the appointment of such executor or administrator,” unless a written notice of intention to file a claim is served within that time, in which case the claim must be filed and served within two years after the death. “In any event such claim shall be filed and served upon the attorney general within two years after the death” (Court of Claims Act 10(2)).

How Fault Affects the Claim

In an action for wrongful death, “the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery.” Damages are reduced in proportion to that culpable conduct (CPLR 1411(a)).

The firm listings below are separate from the legal information above. Statements about the law in a firm description are not part of this guide’s legal review.

Top 3 Wrongful Death Attorneys in New York

1. Block O’Toole & Murphy

This firm dominates in fatal construction accidents – especially under New York’s strict Scaffold Law – and commercial auto crashes. Because NY courts forbid grief and companionship damages, Block O’Toole & Murphy employs world-class economists to calculate staggering, multi-million dollar projections of lost future earnings and services, consistently securing some of the highest verdicts in the state.

2. Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf

A legendary, top-tier Manhattan trial firm that handles the most catastrophic medical malpractice and negligence cases in New York. They are absolute masters of the NY Survival Action. Since they cannot sue for the family’s emotional grief, they utilize top medical experts to prove exactly how much conscious pain and terror the victim experienced before dying, turning that into massive financial liability for the defendant through the survival action.

3. Kramer, Dillof, Livingston & Moore

Consistently ranked as one of the best medical malpractice firms in the United States, with over 150 verdicts exceeding $1 million. When a fatal medical error occurs in New York, their deep medical-legal knowledge allows them to aggressively prove liability and maximize the strict pecuniary framework imposed by the state’s wrongful death statute.

Frequently Asked Questions

Does the 90-day notice period start on the date of death?

For a wrongful death claim against a local government, the 90 days run from the appointment of a representative of the estate. For a claim against the State, the 90 days also run from the appointment of the executor or administrator.

Can the parents share in the recovery if the person left a spouse?

Yes, if the person left a spouse and parents but no children or other issue. In that case the parents are treated as distributees for the wrongful death recovery.

What if the defendant is being prosecuted?

If a criminal action has been commenced against the same defendant for the same event, the personal representative has at least one year after the criminal action ends to bring the wrongful death case.

How is each family member’s share set?

By the court, after a hearing, in proportion to the pecuniary injuries each distributee suffered.

Sources and Last Review

New York Estates, Powers and Trusts Law sections 5-4.1, 5-4.3, 5-4.4 and 11-3.2; General Municipal Law sections 50-e and 50-i; Civil Practice Law and Rules section 1411; Court of Claims Act section 10. Official text: EPTL 5-4.1. Legal information reviewed October 2026. This page is general information about New York law, not legal advice about a specific death.