S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8485
 
                             I N  S E N A T E
 
                             February 5, 2024
                                ___________
 
 Introduced  by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
   when printed to be committed to the Committee on Judiciary
 
 AN ACT to amend the estates, powers and trusts law, in relation  to  the
   payment and distribution of damages in wrongful death actions
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Paragraph 1 of section 5-4.1 of  the  estates,  powers  and
 trusts law, as amended by chapter 114 of the laws of 2003, is amended to
 read as follows:
   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]
 THREE  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  September eleventh, two thousand one, other than a decedent
 identified by the attorney general of the United States as a participant
 or conspirator in such attacks, must be commenced within two  years  and
 six  months after the decedent's death]. When the [distributees] PERSONS
 FOR WHOSE BENEFIT AN ACTION PURSUANT TO THIS PART MAY BE BROUGHT do  not
 participate  in the administration of the decedent's estate under a will
 appointing an executor who refuses to bring such action, the  [distribu-
 tees]  PERSONS  FOR WHOSE BENEFIT AN ACTION PURSUANT TO THIS PART MAY BE
 BROUGHT are entitled to have an administrator appointed to prosecute the
 action for their benefit.
   § 2. Paragraph (a) of section 5-4.3 of the estates, powers and  trusts
 law,  as  amended by chapter 100 of the laws of 1982, is amended to read
 as follows:
   (a) The damages awarded to the plaintiff may be such sum as  the  jury
 or,  where issues of fact are tried without a jury, the court or referee
 deems to be fair and just  compensation  for  the  [pecuniary]  injuries
 resulting from the decedent's death to the persons for whose benefit the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02714-04-3
 S. 8485                             2
 
 action is brought. In every such action, in addition to any other lawful
 element of recoverable damages, [the reasonable expenses of medical aid,
 nursing  and  attention  incident  to  the  injury causing death and the
 reasonable funeral expenses of the decedent paid by the distributees, or
 for  the  payment of which any distributee is responsible, shall also be
 proper elements of damage]  COMPENSATION FOR THE FOLLOWING  DAMAGES  MAY
 BE  RECOVERED:   (I) REASONABLE FUNERAL EXPENSES OF THE DECEDENT PAID BY
 THE PERSONS FOR WHOSE BENEFIT THE ACTION IS BROUGHT, OR FOR THE  PAYMENT
 OF  WHICH ANY PERSONS FOR WHOSE BENEFIT THE ACTION IS BROUGHT IS RESPON-
 SIBLE; (II) REASONABLE EXPENSES FOR MEDICAL CARE INCIDENT TO THE  INJURY
 CAUSING  DEATH, INCLUDING BUT NOT LIMITED TO DOCTORS, NURSING, ATTENDANT
 CARE, TREATMENT, HOSPITALIZATION OF THE DECEDENT, AND  MEDICINES;  (III)
 GRIEF  OR  ANGUISH  CAUSED  BY  THE DECEDENT'S DEATH; (IV) LOSS OF LOVE,
 SOCIETY, PROTECTION, COMFORT, COMPANIONSHIP,  AND  CONSORTIUM  RESULTING
 FROM  THE  DECEDENT'S  DEATH;  (V) PECUNIARY INJURIES, INCLUDING LOSS OF
 SERVICES, SUPPORT, ASSISTANCE, AND LOSS OR DIMINISHMENT OF  INHERITANCE,
 RESULTING FROM THE DECEDENT'S DEATH; AND (VI) LOSS OF NURTURE, GUIDANCE,
 COUNSEL,  ADVICE,  TRAINING, AND EDUCATION RESULTING FROM THE DECEDENT'S
 DEATH.  Interest upon the principal sum recovered by the plaintiff  from
 the  date of the decedent's death shall be added to and be a part of the
 total sum awarded.
   § 3. Section 5-4.4 of the estates, powers and  trusts  law,  paragraph
 (a) as amended by chapter 357 of the laws of 1975, and the opening para-
 graph of paragraph (a) as amended by chapter 595 of the laws of 1992, is
 amended to read as follows:
 § 5-4.4 Distribution of damages recovered
   (a)  The  damages,  as  prescribed  by  5-4.3, whether recovered in an
 action or by settlement without an action, are exclusively for the bene-
 fit of the  decedent's  [distributees  and,  when  collected,  shall  be
 distributed  to  the  persons  entitled  thereto  under 4-1.1 and 5-4.5,
 except that where the decedent is survived by a parent or parents and  a
 spouse  and no issue, the parent or parents will be deemed to be distri-
 butees for purposes of this section]  SURVIVING  CLOSE  FAMILY  MEMBERS,
 WHICH  SHALL BE LIMITED TO DECEDENT'S SPOUSE OR DOMESTIC PARTNER, ISSUE,
 FOSTER-CHILDREN, STEP-CHILDREN, AND STEP-GRANDCHILDREN, PARENTS,  GRAND-
 PARENTS,  STEP-PARENTS, STEP-GRANDPARENTS, SIBLINGS OR ANY PERSON STAND-
 ING IN LOCO PARENTIS TO THE DECEDENT. THE FINDER OF FACT SHALL DETERMINE
 WHICH PERSONS ARE ENTITLED TO DAMAGES AS CLOSE  FAMILY  MEMBERS  OF  THE
 DECEDENT UNDER THIS SECTION BASED UPON THE SPECIFIC CIRCUMSTANCES RELAT-
 ING  TO  THE PERSON'S RELATIONSHIP WITH THE DECEDENT.  The damages shall
 be distributed subject to the following:
   (1)  Such damages shall be distributed by the personal  representative
 to  the  persons entitled thereto in proportion to the [pecuniary] inju-
 ries suffered by them, such proportions to be determined after  a  hear-
 ing,  on application of the personal representative or any [distributee]
 PERSONS FOR WHOSE BENEFIT THE ACTION IS BROUGHT, at  such  time  and  on
 notice to all interested persons in such manner as the court may direct.
 If  no action is brought, such determination shall be made by the surro-
 gate of the county in which letters were issued to the plaintiff; if  an
 action  is brought, by the court having jurisdiction of the action or by
 the surrogate of the county in which letters were issued.
   (2)  The court which determines the  proportions  of  the  [pecuniary]
 injuries  suffered  by  the [distributees] PERSONS FOR WHOSE BENEFIT THE
 ACTION IS BROUGHT, as provided in subparagraph (1)  OF  THIS  PARAGRAPH,
 shall  also  decide  any  question  concerning the disqualification of a
 S. 8485                             3
 
 parent, under 4-1.4 OF THIS CHAPTER, or a surviving spouse, under  5-1.2
 OF THIS ARTICLE, to share in the damages recovered.
   (b)    The  reasonable  expenses  of  the action or settlement and, if
 included in the damages recovered, the reasonable  expenses  of  medical
 aid,  nursing and attention incident to the injury causing death and the
 reasonable funeral expenses of the decedent may be fixed  by  the  court
 which determines the proportions of the [pecuniary] injuries suffered by
 the  [distributees]  PERSONS FOR WHOSE BENEFIT THE ACTION IS BROUGHT, as
 provided in subparagraph (1) OF THIS PARAGRAPH,  upon  notice  given  in
 such  manner  and  to  such  persons  as  the court may direct, and such
 expenses may be deducted from the damages recovered.  The commissions of
 the personal representative upon the residue may be fixed by the  surro-
 gate, upon notice given in such manner and to such persons as the surro-
 gate  may  direct  or upon the judicial settlement of the account of the
 personal representative, and such commissions may be deducted  from  the
 damages recovered.
   (c)    In  the  event that an action is brought, as authorized in this
 part, and there is no recovery or settlement, the reasonable expenses of
 such unsuccessful action, excluding counsel fees, shall be  payable  out
 of the assets of the decedent's estate.
   (D)  FOR  THE  PURPOSES  OF  THIS SECTION, THE TERM "DOMESTIC PARTNER"
 SHALL HAVE THE SAME MEANING AS DEFINED PURSUANT TO SECTION TWO  THOUSAND
 NINE HUNDRED SIXTY-ONE OF THE PUBLIC HEALTH LAW.
   §  4.  Paragraphs  (a) and (b) of section 5-4.6 of the estates, powers
 and trusts law, paragraph (a) as amended and paragraph (b) as  added  by
 chapter 719 of the laws of 2005, are amended to read as follows:
   (a) Within sixty days of the application of an administrator appointed
 under  SECTION  5-4.1  OF  THIS PART or a personal representative to the
 court in which an action for wrongful act, neglect  or  default  causing
 the  death of a decedent is pending, the court shall, after inquiry into
 the merits of the action and the amount of damages proposed as a compro-
 mise either disapprove the application or approve in writing  a  compro-
 mise  for  such  amount  as  it shall determine to be adequate including
 approval of attorneys fees and  other  payable  expenses  as  set  forth
 below,  and  shall order the defendant to pay all sums payable under the
 order of compromise, within the time frames set forth  in  section  five
 thousand  three-a  of  the civil practice law and rules, to the attorney
 for the administrator or personal representative  for  placement  in  an
 interest  bearing  escrow  account for the benefit of the [distributees]
 PERSONS FOR WHOSE BENEFIT THE ACTION IS BROUGHT.  The order  shall  also
 provide for the following:
   (1)  Upon collection of the settlement funds and creation of an inter-
 est bearing escrow  account,  the  attorney  for  the  administrator  or
 personal  representative  shall pay from the account all due and payable
 expenses, excluding attorneys fees,  approved  by  the  court,  such  as
 medical bills, funeral costs and other liens on the estate.
   (2)  All  attorneys  fees approved by the court for the prosecution of
 the action for wrongful  act,  neglect  or  default,  inclusive  of  all
 disbursements, shall be immediately payable from the escrow account upon
 submission  to  the  trial court proof of filing of a petition for allo-
 cation and distribution in  the  surrogate's  court  on  behalf  of  the
 decedent's estate.
   (3)  The  attorney for the administrator or personal representative in
 the action for wrongful act, neglect or  default  who  receives  payment
 under  this  section  shall continue to serve as attorney for the estate
 until the entry of a final decree in the surrogate's court.
 S. 8485                             4
 
   (b) If any of the [distributees] PERSONS FOR WHOSE BENEFIT THE  ACTION
 IS  BROUGHT  is  an  infant,  incompetent, person who is incarcerated or
 person under disability, the court shall determine whether a guardian ad
 litem is required before any payments are made, in which case the  court
 will  seek an immediate appointment of a guardian ad litem by the surro-
 gate's court or, if the surrogate's court defers, the court  shall  make
 such appointment. Any guardian appointed for this purpose shall continue
 to  serve as the guardian ad litem for the person requiring same for all
 other purposes.
   § 5. This act shall take effect immediately and  shall  apply  to  all
 causes  of  action  that  accrue on or after July 1, 2018, regardless of
 when filed.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8485--B
     Cal. No. 1399
 
                             I N  S E N A T E
 
                             February 5, 2024
                                ___________
 
 Introduced by Sens. HOYLMAN-SIGAL, ASHBY, GALLIVAN, LANZA, MURRAY, ORTT,
   PALUMBO,  TEDISCO,  WEBER  -- read twice and ordered printed, and when
   printed to be committed to the  Committee  on  Judiciary  --  reported
   favorably  from  said  committee  and  committed  to  the Committee on
   Finance -- committee discharged, bill amended,  ordered  reprinted  as
   amended  and  recommitted to said committee -- reported favorably from
   said committee, ordered to first and second report, ordered to a third
   reading, amended and ordered reprinted, retaining  its  place  in  the
   order of third reading
 
 AN  ACT  to amend the estates, powers and trusts law, in relation to the
   payment and distribution of damages in wrongful death actions
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Paragraph  1  of section 5-4.1 of the estates, powers and
 trusts law, as amended by chapter 114 of the laws of 2003, is amended to
 read as follows:
   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]
 THREE 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 September eleventh, two thousand one, other than  a  decedent
 identified by the attorney general of the United States as a participant
 or  conspirator  in such attacks, must be commenced within two years and
 six months after the decedent's death]. When the [distributees]  PERSONS
 FOR  WHOSE BENEFIT AN ACTION PURSUANT TO THIS PART MAY BE BROUGHT do not
 participate in the administration of the decedent's estate under a  will
 appointing  an executor who refuses to bring such action, the [distribu-
 tees] PERSONS FOR WHOSE BENEFIT AN ACTION PURSUANT TO THIS PART  MAY  BE
 BROUGHT are entitled to have an administrator appointed to prosecute the
 action for their benefit.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD02714-10-4
 S. 8485--B                          2
 
   §  2. Paragraph (a) of section 5-4.3 of the estates, powers and trusts
 law, as amended by chapter 100 of the laws of 1982, is amended  to  read
 as follows:
   (a)  The  damages awarded to the plaintiff may be such sum as the jury
 or, where issues of fact are tried without a jury, the court or  referee
 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. In every such action, in addition to any other lawful
 element of recoverable damages, [the reasonable expenses of medical aid,
 nursing and attention incident to  the  injury  causing  death  and  the
 reasonable funeral expenses of the decedent paid by the distributees, or
 for  the  payment of which any distributee is responsible, shall also be
 proper elements of damage]  COMPENSATION FOR THE FOLLOWING  DAMAGES  MAY
 BE  RECOVERED:   (I) REASONABLE FUNERAL EXPENSES OF THE DECEDENT PAID BY
 THE PERSONS FOR WHOSE BENEFIT THE ACTION IS BROUGHT, OR FOR THE  PAYMENT
 OF  WHICH ANY PERSONS FOR WHOSE BENEFIT THE ACTION IS BROUGHT IS RESPON-
 SIBLE; (II) REASONABLE EXPENSES FOR MEDICAL CARE INCIDENT TO THE  INJURY
 CAUSING  DEATH, INCLUDING BUT NOT LIMITED TO DOCTORS, NURSING, ATTENDANT
 CARE, TREATMENT, HOSPITALIZATION OF THE DECEDENT, AND  MEDICINES;  (III)
 GRIEF  OR  ANGUISH  CAUSED BY THE DECEDENT'S DEATH; (IV) OTHER PECUNIARY
 INJURIES, INCLUDING LOSS OF SERVICES, SUPPORT, ASSISTANCE, AND  LOSS  OR
 DIMINISHMENT  OF  INHERITANCE,  RESULTING FROM THE DECEDENT'S DEATH; AND
 (V) LOSS OF NURTURE, GUIDANCE, COUNSEL, ADVICE, TRAINING,  COMPANIONSHIP
 AND  EDUCATION  RESULTING  FROM  THE DECEDENT'S DEATH. Interest upon the
 principal sum recovered by the plaintiff from the date of the decedent's
 death shall be added to and be a part of the total sum awarded.
   § 3. Section 5-4.4 of the estates, powers and  trusts  law,  paragraph
 (a) as amended by chapter 357 of the laws of 1975, and the opening para-
 graph of paragraph (a) as amended by chapter 595 of the laws of 1992, is
 amended to read as follows:
 § 5-4.4 Distribution of damages recovered
   (a)  The  damages,  as  prescribed  by  5-4.3, whether recovered in an
 action or by settlement without an action, are exclusively for the bene-
 fit of the  [decedent's  distributees  and,  when  collected,  shall  be
 distributed  to  the  persons  entitled  thereto  under 4-1.1 and 5-4.5,
 except that where the decedent is survived by a parent or parents and  a
 spouse  and no issue, the parent or parents will be deemed to be distri-
 butees for purposes of this  section]  PERSONS  FOR  WHOSE  BENEFIT  THE
 ACTION  IS  BROUGHT,  WHICH  SHALL  BE  DEFINED  AS  AND  LIMITED TO THE
 DECEDENT'S SPOUSE  OR  DOMESTIC  PARTNER,  DECEDENT'S  DISTRIBUTEES,  AS
 DEFINED  BY  4-1.1  OF  THIS  CHAPTER AND 5-4.5 OF THIS PART, ANY PERSON
 STANDING IN LOCO PARENTIS TO THE DECEDENT, AND TO ANY PERSON TO WHOM THE
 DECEDENT STOOD IN A POSITION OF IN LOCO PARENTIS. AN  IN  LOCO  PARENTIS
 RELATIONSHIP  SHALL  BE  PRESUMED  WHEN AN ADULT AND MINOR SHARE OR HAVE
 RECENTLY SHARED A HOUSEHOLD. THE FINDER OF FACT SHALL DETERMINE WHICH OF
 THOSE PERSONS FOR WHOSE BENEFIT THE ACTION IS  BROUGHT,  AS  DEFINED  IN
 THIS  PARAGRAPH,  ARE  ENTITLED TO DAMAGES UNDER THIS SECTION BASED UPON
 THE SPECIFIC CIRCUMSTANCES RELATING TO THE  PERSON'S  RELATIONSHIP  WITH
 THE  DECEDENT.   The damages shall be distributed subject to the follow-
 ing:
   (1)  Such damages shall be distributed by the personal  representative
 to  the  persons entitled thereto in proportion to the [pecuniary] inju-
 ries suffered by them, such proportions to be determined after  a  hear-
 ing,  on application of the personal representative or any [distributee]
 PERSONS FOR WHOSE BENEFIT THE ACTION IS BROUGHT, at  such  time  and  on
 notice to all interested persons in such manner as the court may direct.
 S. 8485--B                          3
 
 If  no action is brought, such determination shall be made by the surro-
 gate of the county in which letters were issued to the plaintiff; if  an
 action  is brought, by the court having jurisdiction of the action or by
 the surrogate of the county in which letters were issued.
   (2)    The  court  which determines the proportions of the [pecuniary]
 injuries suffered by the [distributees] PERSONS FOR  WHOSE  BENEFIT  THE
 ACTION  IS  BROUGHT,  as provided in subparagraph (1) OF THIS PARAGRAPH,
 shall also decide any question  concerning  the  disqualification  of  a
 parent,  under 4-1.4 OF THIS CHAPTER, or a surviving spouse, under 5-1.2
 OF THIS ARTICLE, to share in the damages recovered.
   (b)   The reasonable expenses of the  action  or  settlement  and,  if
 included  in  the  damages recovered, the reasonable expenses of medical
 aid, nursing and attention incident to the injury causing death and  the
 reasonable  funeral  expenses  of the decedent may be fixed by the court
 which determines the proportions of the [pecuniary] injuries suffered by
 the [distributees] PERSONS FOR WHOSE BENEFIT THE ACTION IS  BROUGHT,  as
 provided  in  subparagraph  (1)  OF THIS PARAGRAPH, upon notice given in
 such manner and to such persons  as  the  court  may  direct,  and  such
 expenses may be deducted from the damages recovered.  The commissions of
 the  personal representative upon the residue may be fixed by the surro-
 gate, upon notice given in such manner and to such persons as the surro-
 gate may direct or upon the judicial settlement of the  account  of  the
 personal  representative,  and such commissions may be deducted from the
 damages recovered.
   (c)  In the event that an action is brought,  as  authorized  in  this
 part, and there is no recovery or settlement, the reasonable expenses of
 such  unsuccessful  action, excluding counsel fees, shall be payable out
 of the assets of the decedent's estate.
   (D) FOR THE PURPOSES OF THIS  SECTION,  THE  TERM  "DOMESTIC  PARTNER"
 SHALL  HAVE THE SAME MEANING AS DEFINED PURSUANT TO SECTION TWO THOUSAND
 NINE HUNDRED SIXTY-ONE OF THE PUBLIC HEALTH LAW.
   § 4. Paragraphs (a) and (b) of section 5-4.6 of  the  estates,  powers
 and  trusts  law, paragraph (a) as amended and paragraph (b) as added by
 chapter 719 of the laws of 2005, are amended to read as follows:
   (a) Within sixty days of the application of an administrator appointed
 under 5-4.1 OF THIS PART or a personal representative to  the  court  in
 which  an  action for wrongful act, neglect or default causing the death
 of a decedent is pending, the court shall, after inquiry into the merits
 of the action and the amount of damages proposed as a compromise  either
 disapprove  the  application or approve in writing a compromise for such
 amount as it shall determine to be adequate including approval of attor-
 neys fees and other payable expenses as set forth below, and shall order
 the defendant to pay all sums payable under  the  order  of  compromise,
 within the time frames set forth in section five thousand three-a of the
 civil  practice  law and rules, to the attorney for the administrator or
 personal representative for placement  in  an  interest  bearing  escrow
 account  for the benefit of the [distributees] PERSONS FOR WHOSE BENEFIT
 THE ACTION IS BROUGHT.  The order shall also provide for the following:
   (1) Upon collection of the settlement funds and creation of an  inter-
 est  bearing  escrow  account,  the  attorney  for  the administrator or
 personal representative shall pay from the account all due  and  payable
 expenses,  excluding  attorneys  fees,  approved  by  the court, such as
 medical bills, funeral costs and other liens on the estate.
   (2) All attorneys fees approved by the court for  the  prosecution  of
 the  action  for  wrongful  act,  neglect  or  default, inclusive of all
 disbursements, shall be immediately payable from the escrow account upon
 S. 8485--B                          4
 
 submission to the trial court proof of filing of a  petition  for  allo-
 cation  and  distribution  in  the  surrogate's  court  on behalf of the
 decedent's estate.
   (3)  The  attorney for the administrator or personal representative in
 the action for wrongful act, neglect or  default  who  receives  payment
 under  this  section  shall continue to serve as attorney for the estate
 until the entry of a final decree in the surrogate's court.
   (b) If any of the [distributees] PERSONS FOR WHOSE BENEFIT THE  ACTION
 IS  BROUGHT  is  an  infant,  incompetent, person who is incarcerated or
 person under disability, the court shall determine whether a guardian ad
 litem is required before any payments are made, in which case the  court
 will  seek an immediate appointment of a guardian ad litem by the surro-
 gate's court or, if the surrogate's court defers, the court  shall  make
 such appointment. Any guardian appointed for this purpose shall continue
 to  serve as the guardian ad litem for the person requiring same for all
 other purposes.
   § 5. This act shall take effect immediately and  shall  apply  to  all
 causes of action that have accrued on or after January 1, 2021.