There are few things more difficult than losing a loved one suddenly and unexpectedly. When their death was caused by another person, it can be even harder to comprehend. In these situations, it may be possible to bring a wrongful death claim against the negligent party.
Through a wrongful death lawsuit, the survivors of a deceased person (decedent) can seek financial compensation for the losses that they have suffered. Under New York law, however, only certain survivors can file a claim. A skilled wrongful death attorney can help you determine your rights and the best options for moving forward with a case.
At The Odierno Law Firm, we are dedicated to helping accident victims and their families get the money that they deserve for their losses. We advocate for our clients in all types of personal injury claims, from slip and falls to car accidents to construction accidents. If you would like to learn more about filing a wrongful death action, reach out today to schedule a free, no-obligation legal consultation.
Who Can File a Wrongful Death Lawsuit on Behalf of the Deceased?
Wrongful death claims are governed by the NY wrongful death statute. Under this law, certain family members can file a wrongful death action if they died because of another person’s negligence. Generally, if they can show that the negligent act would have entitled the deceased person to file a claim had they survived, that the decedent had survivors and that the survivors suffered financial losses as a result, they can seek compensation from the negligent party.
A wrongful death claim can only be filed by a relative of the deceased person or a representative of the estate. Typically, these personal injury lawsuits are filed by the deceased’s children, parents, spouse, or a representative of the estate.
The ability to file a wrongful death action is based on the situation of the decedent at the time of their death. Generally, the ability to file a wrongful death claim is based on NY’s intestate succession laws (i.e., how an estate is divided if a person dies without a will). If they had:
- A spouse and children, spouse and children may seek wrongful death damages.
- A spouse but no children, the spouse can file a claim.
- No spouse or children, the parents may pursue an action.
- No spouse, children, or surviving parents, the siblings may file a claim.
- No spouse, children, surviving parents, or siblings, the grandparents may file a claim.
Alternatively, a personal representative or guardian may file a wrongful death lawsuit on behalf of the estate.
Through a lawsuit, the deceased’s survivors can recover financial compensation for their losses. This may include funeral and burial costs, medical expenses prior to the victim’s death, loss of inheritance, loss of services, pain, and suffering endured by the decedent prior to their death, and loss of consortium (society and companionship). For example, if a young father dies as the result of medical malpractice, his surviving spouse and children could file a lawsuit to seek compensation for burial expenses, the loss of income and benefits that the deceased would have provided, and even the value of the loss of services that he would have provided as a husband and father.
These lawsuits can be complicated, particularly when it comes to figuring out who can file a wrongful death lawsuit in NY. A skilled wrongful death lawyer can work with you to help you understand your rights – and fight for your right to maximum compensation for your losses after a fatal accident or injury.
How to File a Wrongful Death Lawsuit in New York
If your loved one has died in an accident that was caused by someone else’s negligence, you may be wondering what your rights are as a surviving family member. The best way to find out what your rights are – and whether you are eligible to file a claim – is by consulting with a seasoned personal injury attorney. During a free initial consultation, your lawyer will listen to your story and offer legal advice about your options for moving forward with a case.
The first step in any wrongful death claim is to find the right lawyer for your case. A good attorney will help you determine whether you are able to file a claim and the best way to proceed.
Once you have consulted with a lawyer, the next step is to start gathering documentation. Your attorney will give you a checklist, but you will typically need a death certificate along with information related to the fatal accident. This may include police reports, medical records, medical bills, and other documents. In addition, pay stubs and other documents are important to start building a case for damages.
Like other types of personal injury claims, wrongful death cases are governed by a statute of limitations. This means that you have a time limit – typically 2 years – to file a claim. Wrongful death attorneys will be aware of this limitation and will ensure that your claim is filed in a timely manner. Because of this limit, it is important to consult with a lawyer as soon as possible.
Once your attorney has all of the necessary information, they will start to build a case by investigating the underlying facts of the accident, researching New York law, and developing a case for damages. From there, they will draft a demand letter that will be sent to the at-fault party’s insurance company. A demand letter sets out the facts of the case, the legal reason that the insured is liable, and makes a demand for damages (compensation).
Once the insurer receives the demand letter, they will typically make a counter offer and the parties will begin to negotiate the case. The vast majority of personal injury cases – including wrongful death actions – are resolved outside of court. Having an experienced wrongful death attorney can help to ensure that you get top dollar for your case.
However, if the insurance company refuses to offer you a fair settlement, then it may be necessary to take the case to court. At trial, your attorney will make arguments, present evidence, and testimony, and ask the jury to return a verdict in your favor. Working with a highly experienced, aggressive wrongful death lawyer can often reduce the likelihood of going to trial – because the insurance companies know that your attorney can and will take them to court.
Financial compensation won’t make you whole again after a loved one’s untimely death. However, it can help to ease the strain that many families experience during these times. On Long Island and the surrounding areas, reach out to the Odierno Law Firm to talk to one of our compassionate wrongful death lawyers about your case.
How We Can Help
After a family member dies in an accident, it can be hard to know what to do or where to turn for help. A wrongful death lawsuit can help you seek justice on behalf of your loved one and allow you to move forward after a painful loss.
The Odierno Law Firm advocates for the rights of injury victims and their families throughout Long Island. If you have been hurt in an accident or lost a loved one due to negligence, we can help. Give us a call at (631) 651-6246 or fill out our online contact form to schedule a free consultation with a New York wrongful death lawyer.
What Is a Conscious Pain and Suffering Claim?
In New York, survivors can file a wrongful death lawsuit on behalf of a loved one to recover financial compensation for their losses. They may also be able to file a claim for the deceased person’s “conscious pain and suffering” between the accident and their death. The idea is that this is a lawsuit that the decedent could have filed if they had survived – and so the survivors can file it on behalf of the deceased person.
These types of claims can be challenging. If you have questions about whether you can add a claim for conscious pain and suffering, give the Odierno Law Firm a call to schedule a free consultation with a NY wrongful death lawyer.
Do I Need a Lawyer for a Wrongful Death Claim?
Yes. New York laws on wrongful death actions are complicated, and it can be difficult to know what you are entitled to without the advice of counsel. Perhaps more importantly, if you don’t have legal representation, the negligent party’s insurance company will almost certainly try to settle the case for pennies on the dollar – leaving you without the money that you need to move forward with your life.
A skilled wrongful death attorney can ensure that every possible claim is included in your case, that it is properly supported by evidence, and that it is filed on time. To learn more, reach out to the Odierno Law Firm today to schedule a no-cost, no-obligation consultation with a member of our legal team.
Can I Seek Compensation for My Pain and Suffering in a NY Wrongful Death Claim?
Unfortunately, NY wrongful death laws do not allow the family of a deceased person to claim compensation for their own emotional pain and suffering after they lose a loved one in a fatal accident. This is true for all types of cases, from a small child killed in a drunk driving accident to an elderly person who died as a result of a dog bite. In any wrongful death case, the survivors cannot recover money for their grief, emotional pain, loneliness, and/or heartache.
Because damages are limited in wrongful death actions, it is incredibly important to work with a highly experienced personal injury lawyer who can fight for your right to full compensation for allowable losses. In Long Island, contact the Odierno Law Firm to schedule a free initial consultation with a New York wrongful death lawyer.