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What is a Wrongful Death Case in New York?

When a loved one dies because of someone else’s negligence or wrong-doing, the surviving family members are entitled to compensation for their financial and other losses. If the loved one suffered before he died, the surviving family members are also entitled to recover compensation for the pain and suffering he or she endured before death. New York’s wrongful death law has been on the books since 1847. It is antiquated and draconian as you will see after reading the following. It is very difficult for most surviving family members to accept the law in its current form. However, until it is changed we have to live with it.

We get a lot of questions about New York wrongful death claims. Here are the most common ones, with our answers.

What Kind of Compensation Can I Claim for the Wrongful Death of My Family Member?

Estates Powers and Trust Law (EPTL) sections 5-4.1 and 5-4.3 cover everything our courts allow the distributes and surviving family members to recover, which includes medical expenses, lost income, pension, loss of inheritance, funeral expenses, and the medical insurance that was provided by your lost loved one. This is known as “pecuniary loss”. Surviving children also have a claim for loss of parental nurture, care and moral, intellectual and physical guidance. These non-financial losses are often more significant than any financial losses you experience when a loved one suffers a wrongful death. In addition to the “wrongful death” claim itself, the family can bring a claim for compensation for the pain and suffering the deceased endured before he died. This is known in the legal world as a claim for “conscious pain and suffering”. We work hard to claim all these losses in every wrongful death claim we file.

What do You Have to Prove in a Wrongful Death Case? 

The most common legal basis for a wrongful death suit is negligence. To prove that the defendant (the person or entity sued) negligently caused your family member's death, you must generally show four things: (1) The defendant had a duty to the deceased. For example, a car driver has a duty to stop at a stop sign. (2) The defendant breached that duty. For example, he did not stop at the stop sign. (3) The death resulted from the breach of duty. For example, the decedent’s head hit the steering wheel and caused an internal hemorrhage leading to death. (4) The family members suffered some economic loss because of the loved one’s death. For example, the decedent was a working man or woman who supported a family which has lost that support.

Can I Recover Compensation for My Grief and Emotional Suffering?

Unfortunately, New York is one of the few states that does not allow families of wrongful death victims compensation for their “grief”, that is, the emotional suffering. Our firm, along with other lawyers, for years has lobbied the New York legislature to change this harsh and unfair rule. One day, we hope to see New York families find full justice, which must include grief and mental anguish compensation, when their loved ones are killed through the negligence or wrongdoing of others. The way the law works now, the family of wrongful death victims who are children or don’t work (retired people for example) usually end up with very little compensation because they can’t prove any real “pecuniary” loss and New York does not allow any compensation for grief. This is the reason that the wrongful death law is antiquated and draconian. It was enacted at a time when children and older folks were all laborers, primarily agricultural, and even small children contributed to the family income. Chores were expected of them at a young age and older folks worked until they died. So back then the family of wrongful death victim who was a child or a senior could prove “pecuniary” loss because the deceased elder or child, like everyone else in the family, had been bringing in income to help support the family. Unfortunately, New York law has not been amended to reflect the realities of modern day life where children and elders are not expected to work. This law unfairly takes advantage of young children and older folks who do not directly give pecuniary support to family members. It makes their cases less valuable, sometimes almost worthless. The New York law demeans younger and older life. In short, it is wrong in todays’ modern society.

What is the Statute of Limitations for Wrongful Death cases in New York?

In most cases, a wrongful death suit must be brought to suit within two years from the death of the loved one. The “conscious pain and suffering” claim must usually be brought within three years (for ordinary negligence against a non-governmental person or entity). Many exceptions apply but generally speaking it is two years.

What if I can’t afford an attorney?

That’s impossible. A reputable personal injury attorney will not charge you for an initial consultation. We will give you a free consultation. If we decide to represent you, we will charge you on a contingency fee basis, which is usually 1/3 of the net recovery we obtain for you, whether from a settlement or from a jury.

Don’t hesitate to call Michaels & Smolak at 315 253 3293 to discuss a possible claim. If we accept your claim, we will invite you in for a chat. Here’s what to expect:

HOW THE CLAIMS PROCESS WORKS
  1. Getting to know you. Our first meeting will probably take up to an hour. We will thoroughly question you, and examine whatever records you have, to gather all available evidence and leads to evidence. We will also get to know each other and decide whether we want to work together on your case. If we agree to work together, we will both sign our retainer agreement. These types of cases require that an administrator be appointed by the local Surrogate Court to represent the estate and other possible distributees. This may take a little time. Usually around two months. Once you have been appointed we can sign a retainer agreement and move forward.
  2. Gathering records. Medical records are extremely important and will play a big role in proving the “value” of your loved one’s case. Since we need to be sure we get ALL the records, we will have you sign authorizations allowing us to write directly to each of the medical providers who cared for the deceased prior to death. We will similarly gather any records of the deceased past income. We may need to obtain information from their employers. Relax: gathering records is all on us. All you have to do is sign the authorizations.
  3. Getting our ducks lined up. We will also write to all the relevant insurance carriers, defendants, etc. We may also take statements from witnesses at the scene of the accident. We will always need to prove liability and that some pother party was negligent. It is also important to speak with first responders to see of the deceased was alive at the scene to determine if they experienced any conscious pain and suffering. This will ensure we have everything in place for when we eventually make a settlement demand.
  4. Settlement. Once we are done gathering all the records and statements we need, all the lawyers (yes all of us!) will study the file, the medical records, etc., and together we will decide – based on our experience in the courtroom -- what a fair settlement should be. We will then call you back to our office to meet with you and discuss our recommendation. You can accept or reject our recommendation. If you accept it, we will then try to settle the case for MORE or at least as much as we have agreed would be fair. But if the insurance company offers less than the number we agreed on, and negotiations fail to bring them up to our number, we will help you decide whether we should “take them to court” or simply take the last best offer. The decision is always yours, but we provide you will all the information you need to make an informed decision. In a wrongful death case it cannot be settled unless you have court approval by either Surrogate Court or possibly Supreme Court if it has been placed in suit.
The End Result

We have helped hundreds of people just like you get their lives back in order after losing a loved one as result of someone else’s negligence. For example, a few years ago we represented the window and young child of a firefighter who got trapped in a basement and died of smoke inhalation and heat. He got trapped because of the negligence of several other firefighters, including his commander, who failed to properly follow the established chain of command. Chaos developed on the scene, which led to the firefighter’s death. On the eve of trial, after a long battle with the insurance lawyers representing the negligent wrongdoers, we secured a seven figure settlement for his window and young child. It was the first case in New York State where a claim was successfully brought based on firefighters violating the “incident command rule”, which requires firefighters to follow the chain of command and not make decisions on their own outside of the chain of command.

Please note that past case results are no guarantee of future successes. Each case is different. We have described just a few of the hundreds of cases we have brought to successful conclusion just to give you an idea of the many kinds of cases we handle.

Our team is standing by to help you, too. As a matter of fact, we look forward to your call and the chance to serve you as we have served others in our community. While we certainly can’t guarantee any results, we may be the right law firm for you. The best way for us to find out is by calling us at 315-253-3293 to arrange a free consultation.

Yours,
The Michaels & Smolak Team

Client Reviews
★★★★★
He is one of the top lawyers in central New York & has the accolades to show for this, but in my book he's the top lawyer in the country. I am honored to have had the opportunity to work with Mr. Bersani & to have had him on my team! Matthew
★★★★★
I admire the amount of background work he did which was instrumental in getting me a very good settlement. Also, having never been involved in a personal injury lawsuit, Michael was very patient explaining the legal issues. You're in good hands with Michael Bersani and the firm of Michaels & Smolak. Richard
★★★★★
Dave took over my wrongful death case after it was badly messed up by another lawyer. He was dogged in his pursuit of all the information needed to make a solid case, and he succeeded in bringing it to a very satisfactory settlement. He was honest and straightforward, kind and compassionate through meetings, depositions, court appearances. I highly recommend him. Christine
★★★★★
Dave has handled our legal matters for over 20 years. Always there when we needed him. We were so happy with his professionalism and results that we referred him to several friends. If we ever need this type of service again, Dave will be the first and only call we make. Jackie