To file a wrongful death lawsuit in New York, the officially–appointed personal representative must prepare a verified complaint outlining the claim and submit it to the appropriate Supreme Court. This must be carried out within two years of the date of the death.
Losing a loved one due to someone else’s negligence or intentional actions is a life-altering experience. The grief is palpable, and the sadness can feel overwhelming. However, there’s hope, and a Westbury wrongful death lawyer can help.
In the state of New York, the justice system offers surviving family members a way to pursue justice and compensation through a wrongful death lawsuit. Understanding how to do this is a must for anyone thinking about taking legal action after such a tragic loss.
Definition of Wrongful Death Under New York Law
If you’re wondering how to file a wrongful death lawsuit, it helps to first familiarize yourself with the definition of wrongful death. This occurs when a person dies as a result of either a wrongful act, neglectful behavior, or the default of another person or entity.
The state’s wrongful death statute is outlined in Estates, Powers and Trusts Law (EPTL) § 5-4.1. This lets the legal representative of the deceased person seek damages on behalf of both the surviving family members and the estate.
Wrongful death claims can arise from a number of different situations:
- Car, truck, or motorcycle collisions
- Medical malpractice
- Criminal acts
- Workplace accidents
- Premises liability cases
Statute of Limitations for Wrongful Death Claims in New York
New York imposes a strict two-year statute of limitations when filing a wrongful death claim. This deadline goes into effect on the day the deceased party died. In other words, you have to take legal action within 24 months of the day they passed away, not the date of the incident.
There are exceptions, such as cases where the death resulted from medical malpractice. Also, if a criminal case is pending in connection with the death, the statute of limitations might be paused until the criminal case concludes.
Failing to file before the deadline expires can result in you losing your right to pursue justice altogether, no matter how strong your case may be. That’s why it’s important to contact wrongful death lawyers in Westbury as soon as possible.
Steps Involved in Filing a Wrongful Death Lawsuit
Filing a wrongful death lawsuit in New York involves several legal and procedural steps. Here’s a breakdown of what to expect when you take legal action on behalf of your deceased loved one.
Appointment of a Personal Representative
Before initiating a lawsuit, someone must petition the Surrogate’s Court to be appointed as the personal representative—executor or administrator—of the deceased’s estate.
If the decedent had a will, it may designate an executor already. Without a will, the court will appoint an administrator according to a hierarchy defined by law.
Investigation and Evidence Collection
Once appointed, the representative will need to gather evidence demonstrating the following:
- That the defendant owed the deceased a duty of care
- That the defendant breached that duty
- That the breach directly caused the death
- That the death resulted in financial losses
This evidence could include police reports, medical records, eyewitness accounts, photographic proof, video surveillance, professional testimonies, and more.
Calculation of Damages
Since New York focuses on financial losses, a key part of the claim involves quantifying the damages. This requires reviewing the deceased’s income, occupation, expected work life, and benefits at the time of their passing.
The financial dependence of surviving family members is also taken into consideration. In some cases, economists or financial professionals may be consulted as well.
Filing the Complaint
The wrongful death complaint must be filed in a New York civil court. It should include all relevant allegations, supporting facts, a listing of damages, and identification of all responsible parties.
Once filed, the complaint must be formally served to the defendants. At that point, the defendants have an opportunity to respond.
Discovery Phase
Both sides will enter a period of discovery. This is when evidence and information pertaining to the case are exchanged. This can involve depositions, written interrogatories, document production, and requests for admissions.
The discovery process is an important part of building your case and understanding the defense’s arguments.
Settlement Negotiations or Trial
Many wrongful death cases are resolved through negotiated settlements before trial. However, if the parties cannot reach a fair agreement, the case will proceed to court.
At trial, both sides will present their arguments and share the evidence they have to support their claims. The court or jury will then determine whether the defendant is liable and, if so, how much compensation should be awarded.
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Reach Out to Our Westbury Wrongful Death Law Firm Today
Filing a wrongful death lawsuit after losing a loved one can feel like too much to handle, but you don’t have to do it all on your own. This process can be overwhelming, but a Westbury wrongful death attorney can help.
At the law firm of Levine And Wiss, our attorneys are ready to assist you every step of the way. With over 100 years of combined experience recovering hundreds of millions in compensation, we’re ready and willing to protect your rights as we pursue fair compensation on your behalf.
