S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
     S. 6636                                                  A. 6698
 
                        2023-2024 Regular Sessions
 
                       S E N A T E - A S S E M B L Y
 
                                May 2, 2023
                                ___________
 
 IN  SENATE  -- Introduced by Sens. HOYLMAN-SIGAL, ADDABBO, BAILEY, BRIS-
   PORT, BROUK, CLEARE, COMRIE, COONEY,  GALLIVAN,  GIANARIS,  GOUNARDES,
   GRIFFO, HARCKHAM, HELMING, HINCHEY, JACKSON, KAVANAGH, KENNEDY, KRUEG-
   ER,  LANZA,  LIU,  MANNION, MATTERA, MAY, MAYER, MYRIE, ORTT, PALUMBO,
   PARKER, PERSAUD, RAMOS, RIVERA,  RYAN,  SALAZAR,  SANDERS,  SEPULVEDA,
   SERRANO,  SKOUFIS, STAVISKY, TEDISCO, THOMAS -- read twice and ordered
   printed, and when printed to be committed to the Committee on  Judici-
   ary
 
 IN  ASSEMBLY -- Introduced by M. of A. WEINSTEIN, PEOPLES-STOKES, DINOW-
   ITZ, ZEBROWSKI, LAVINE, GLICK, L. ROSENTHAL,  AUBRY,  PAULIN,  COLTON,
   HYNDMAN, WEPRIN, JOYNER, SANTABARBARA, TAYLOR, CARROLL, SAYEGH, JACOB-
   SON,  BURKE, STECK, SIMON, DILAN, FALL, JEAN-PIERRE, DICKENS, DARLING,
   SOLAGES, WALLACE, CRUZ,  COOK,  RAJKUMAR,  BENEDETTO,  BURGOS,  STERN,
   MITAYNES,  LUNSFORD, HUNTER, SILLITTI, HEVESI, MAMDANI, STIRPE, GIBBS,
   McMAHON, EPSTEIN, SEAWRIGHT, BURDICK, MAGNARELLI, KIM,  MEEKS,  ANDER-
   SON, TAPIA -- Multi-Sponsored by -- M. of A. BICHOTTE HERMELYN, BRAUN-
   STEIN,  CLARK,  GONZALEZ-ROJAS, LUPARDO, RIVERA, WILLIAMS -- read once
   and referred 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

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02714-04-3
              

 S. 6636                             2                            A. 6698
 
 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
 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-
 S. 6636                             3                            A. 6698
 
 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
 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
 S. 6636                             4                            A. 6698
 
 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.
   (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.