S T A T E O F N E W Y O R K
________________________________________________________________________
127
2013-2014 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 9, 2013
___________
Introduced by M. of A. CUSICK -- read once and referred to the Committee
on Judiciary
AN ACT to amend the estates, powers and trusts law, in relation to
wrongful death actions
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative purpose and findings. The legislature finds and
declares that when the wrongful act of another causes the death of a
person, the wrongdoer incurs liability. It is an important and compel-
ling state interest to safeguard the rights of the family of an unborn
child fatally injured while in utero and to allow them some measure of
recovery. The legislature further finds that all states, including New
York, currently allow recovery for prenatal injuries if a child is
subsequently born alive, and that thirty-six states allow recovery for
the wrongful death of a child who dies in the womb.
S 2. Section 5-4.1 of the estates, powers and trusts law, as amended
by chapter 95 of the laws of 1983 and paragraph 1 as amended by chapter
114 of the laws of 2003, is amended to read as follows:
S 5-4.1 Action by personal representative for wrongful act, neglect or
default causing death of decedent
1. 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 against a person who would
have been liable to the decedent by reason of such wrongful conduct if
death had not ensued. Such an action must be commenced within two years
after the decedent's death; provided, however, that an action on behalf
of a decedent whose death was caused by the terrorist attacks on Septem-
ber eleventh, two thousand one, other than a decedent identified by the
attorney general of the United States as a participant or conspirator in
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00779-01-3
A. 127 2
such attacks, must be commenced within two years and six months after
the decedent's death. When the distributees do not participate in the
administration of the decedent's estate under a will appointing an exec-
utor who refuses to bring such action, the distributees are entitled to
have an administrator appointed to prosecute the action for their bene-
fit.
2. Whenever it is shown that a criminal action has been commenced
against the same defendant with respect to the event or occurrence from
which a claim under this section arises, the personal representative of
the decedent shall have at least one year from the termination of the
criminal action as defined in section 1.20 of the criminal procedure law
in which to maintain an action, notwithstanding that the time in which
to commence such action has already expired or has less than a year
remaining.
3. FOR PURPOSES OF THIS SECTION, THE WORD "DECEDENT" SHALL HAVE THE
SAME MEANING AS PROVIDED IN SUBDIVISION TWO OF SECTION FORTY-THREE
HUNDRED OF THE PUBLIC HEALTH LAW WHICH INCLUDES A FETUS.
S 3. This act shall take effect immediately and shall apply to actions
for wrongful death occurring on or after such effective date.