S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4423
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                             February 4, 2025
                                ___________
 
 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
 
 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:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07457-01-5
              

 S. 4423                             2
 
   (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.
 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
 S. 4423                             3
 
 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
 submission to the trial court proof of filing of a  petition  for  allo-
 S. 4423                             4
 
 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, 2022.