S T A T E   O F   N E W   Y O R K
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                                   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.