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A06770 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6770
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 29, 2021
                                       ___________
 
        Introduced by M. of A. WEINSTEIN, DINOWITZ, ZEBROWSKI, LAVINE, L. ROSEN-
          THAL,  AUBRY, PAULIN, COLTON, PICHARDO, RICHARDSON, HYNDMAN, ABINANTI,
          WEPRIN, JOYNER, SANTABARBARA, TAYLOR,  GRIFFIN,  DE LA ROSA,  CARROLL,
          SAYEGH,  FRONTUS,  JACOBSON,  BURKE, STECK, SIMON, DILAN, EICHENSTEIN,
          FALL, JEAN-PIERRE, SEAWRIGHT, DICKENS, DARLING, SOLAGES, WALLACE, NIOU
          -- Multi-Sponsored by -- M. of A. BRAUNSTEIN, CYMBROWITZ, ENGLEBRIGHT,
          GLICK, GOTTFRIED, LUPARDO, NORRIS, PERRY, SCHMITT  --  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:
 
     1    Section  1.  Paragraph  1  of section 5-4.1 of the estates, powers and
     2  trusts law, as amended by chapter 114 of the laws of 2003, is amended to
     3  read as follows:
     4    1. The personal representative, duly appointed in this  state  or  any
     5  other  jurisdiction, of a decedent [who is survived by distributees] may
     6  maintain an action to recover damages for a  wrongful  act,  neglect  or
     7  default  which  caused  the  decedent's death against a person who would
     8  have been liable to the decedent by reason of such wrongful  conduct  if
     9  death  had  not  ensued.  Such  an action must be commenced within [two]
    10  three years and six months after the decedent's death; provided,  howev-
    11  er, that an action on behalf of a decedent whose death was caused by the
    12  terrorist  attacks on September eleventh, two thousand one, other than a
    13  decedent identified by the attorney general of the United  States  as  a
    14  participant  or  conspirator  in  such attacks, must be commenced within
    15  [two] four years [and six months after the decedent's death].  When  the
    16  [distributees] persons for whose benefit an action pursuant to this part
    17  may  be  brought  do  not  participate  in  the  administration  of  the
    18  decedent's estate under a will appointing an  executor  who  refuses  to
    19  bring  such  action,  the  [distributees]  persons  for whose benefit an
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00015-03-1

        A. 6770                             2
 
     1  action pursuant to this part may be brought  are  entitled  to  have  an
     2  administrator appointed to prosecute the action for their benefit.
     3    §  2. Paragraph (a) of section 5-4.3 of the estates, powers and trusts
     4  law, as amended by chapter 100 of the laws of 1982, is amended  to  read
     5  as follows:
     6    (a)  The  damages awarded to the plaintiff may be such sum as the jury
     7  or, where issues of fact are tried without a jury, the court or  referee
     8  deems  to  be  fair  and  just compensation for the [pecuniary] injuries
     9  resulting from the decedent's death to the persons for whose benefit the
    10  action is brought. In every such action, in addition to any other lawful
    11  element of recoverable damages, [the reasonable expenses of medical aid,
    12  nursing and attention incident to  the  injury  causing  death  and  the
    13  reasonable funeral expenses of the decedent paid by the distributees, or
    14  for  the  payment of which any distributee is responsible, shall also be
    15  proper elements of damage]  compensation for the following  damages  may
    16  be  recovered:   (i) reasonable funeral expenses of the decedent paid by
    17  the persons for whose benefit the action is brought, or for the  payment
    18  of  which any persons for whose benefit the action is brought is respon-
    19  sible; (ii) reasonable expenses for medical care incident to the  injury
    20  causing  death, including but not limited to doctors, nursing, attendant
    21  care, treatment, hospitalization of the decedent, and  medicines;  (iii)
    22  grief  or  anguish  caused by the decedent's death, and for any disorder
    23  caused by such grief or anguish; (iv) loss of love, society, protection,
    24  comfort, companionship, and consortium  resulting  from  the  decedent's
    25  death;  (v)  pecuniary  injuries,  including  loss of services, support,
    26  assistance, and loss or diminishment of inheritance, resulting from  the
    27  decedent's  death;  and (vi) loss of nurture, guidance, counsel, advice,
    28  training, and education resulting from the decedent's death.    Interest
    29  upon  the  principal sum recovered by the plaintiff from the date of the
    30  decedent's death shall be added to and  be  a  part  of  the  total  sum
    31  awarded.
    32    §  3.  Section  5-4.4 of the estates, powers and trusts law, paragraph
    33  (a) as amended by chapter 357 of the laws of 1975, and the opening para-
    34  graph of paragraph (a) as amended by chapter 595 of the laws of 1992, is
    35  amended to read as follows:
    36  § 5-4.4 Distribution of damages recovered
    37    (a) The damages, as prescribed  by  5-4.3,  whether  recovered  in  an
    38  action or by settlement without an action, are exclusively for the bene-
    39  fit  of  the  decedent's  [distributees  and,  when  collected, shall be
    40  distributed to the persons  entitled  thereto  under  4-1.1  and  5-4.5,
    41  except  that where the decedent is survived by a parent or parents and a
    42  spouse and no issue, the parent or parents will be deemed to be  distri-
    43  butees  for  purposes  of  this section] surviving close family members,
    44  which may include, but are not limited to, spouse or  domestic  partner,
    45  issue,  parents,  grandparents, step-parents and siblings. The finder of
    46  fact shall determine which persons are close family members of the dece-
    47  dent under this section based upon the specific  circumstances  relating
    48  to  the  person's  relationship with the decedent.  The damages shall be
    49  distributed subject to the following:
    50    (1)  Such damages shall be distributed by the personal  representative
    51  to  the  persons entitled thereto in proportion to the [pecuniary] inju-
    52  ries suffered by them, such proportions to be determined after  a  hear-
    53  ing,  on application of the personal representative or any [distributee]
    54  persons for whose benefit the action is brought, at  such  time  and  on
    55  notice to all interested persons in such manner as the court may direct.
    56  If  no action is brought, such determination shall be made by the surro-

        A. 6770                             3
 
     1  gate of the county in which letters were issued to the plaintiff; if  an
     2  action  is brought, by the court having jurisdiction of the action or by
     3  the surrogate of the county in which letters were issued.
     4    (2)    The  court  which determines the proportions of the [pecuniary]
     5  injuries suffered by the [distributees] persons for  whose  benefit  the
     6  action  is  brought,  as provided in subparagraph (1) of this paragraph,
     7  shall also decide any question  concerning  the  disqualification  of  a
     8  parent,  under 4-1.4 of this chapter, or a surviving spouse, under 5-1.2
     9  of this article, to share in the damages recovered.
    10    (b)   The reasonable expenses of the  action  or  settlement  and,  if
    11  included  in  the  damages recovered, the reasonable expenses of medical
    12  aid, nursing and attention incident to the injury causing death and  the
    13  reasonable  funeral  expenses  of the decedent may be fixed by the court
    14  which determines the proportions of the [pecuniary] injuries suffered by
    15  the [distributees] persons for whose benefit the action is  brought,  as
    16  provided  in  subparagraph  (1)  of this paragraph, upon notice given in
    17  such manner and to such persons  as  the  court  may  direct,  and  such
    18  expenses may be deducted from the damages recovered.  The commissions of
    19  the  personal representative upon the residue may be fixed by the surro-
    20  gate, upon notice given in such manner and to such persons as the surro-
    21  gate may direct or upon the judicial settlement of the  account  of  the
    22  personal  representative,  and such commissions may be deducted from the
    23  damages recovered.
    24    (c)  In the event that an action is brought,  as  authorized  in  this
    25  part, and there is no recovery or settlement, the reasonable expenses of
    26  such  unsuccessful  action, excluding counsel fees, shall be payable out
    27  of the assets of the decedent's estate.
    28    (d) For the purposes of this  section,  the  term  "domestic  partner"
    29  shall  have the same meaning as defined pursuant to section two thousand
    30  nine hundred sixty-one of the public health law.
    31    § 4. Paragraphs (a) and (b) of section 5-4.6 of  the  estates,  powers
    32  and  trusts  law, paragraph (a) as amended and paragraph (b) as added by
    33  chapter 719 of the laws of 2005, are amended to read as follows:
    34    (a) Within sixty days of the application of an administrator appointed
    35  under section 5-4.1 of this part or a  personal  representative  to  the
    36  court  in  which  an action for wrongful act, neglect or default causing
    37  the death of a decedent is pending, the court shall, after inquiry  into
    38  the merits of the action and the amount of damages proposed as a compro-
    39  mise  either  disapprove the application or approve in writing a compro-
    40  mise for such amount as it shall  determine  to  be  adequate  including
    41  approval  of  attorneys  fees  and  other  payable expenses as set forth
    42  below, and shall order the defendant to pay all sums payable  under  the
    43  order  of  compromise,  within the time frames set forth in section five
    44  thousand three-a of the civil practice law and rules,  to  the  attorney
    45  for  the  administrator  or  personal representative for placement in an
    46  interest bearing escrow account for the benefit  of  the  [distributees]
    47  persons  for  whose benefit the action is brought.  The order shall also
    48  provide for the following:
    49    (1) Upon collection of the settlement funds and creation of an  inter-
    50  est  bearing  escrow  account,  the  attorney  for  the administrator or
    51  personal representative shall pay from the account all due  and  payable
    52  expenses,  excluding  attorneys  fees,  approved  by  the court, such as
    53  medical bills, funeral costs and other liens on the estate.
    54    (2) All attorneys fees approved by the court for  the  prosecution  of
    55  the  action  for  wrongful  act,  neglect  or  default, inclusive of all
    56  disbursements, shall be immediately payable from the escrow account upon

        A. 6770                             4
 
     1  submission to the trial court proof of filing of a  petition  for  allo-
     2  cation  and  distribution  in  the  surrogate's  court  on behalf of the
     3  decedent's estate.
     4    (3)  The  attorney for the administrator or personal representative in
     5  the action for wrongful act, neglect or  default  who  receives  payment
     6  under  this  section  shall continue to serve as attorney for the estate
     7  until the entry of a final decree in the surrogate's court.
     8    (b) If any of the [distributees] persons for whose benefit the  action
     9  is  brought  is  an  infant,  incompetent, person who is incarcerated or
    10  person under disability, the court shall determine whether a guardian ad
    11  litem is required before any payments are made, in which case the  court
    12  will  seek an immediate appointment of a guardian ad litem by the surro-
    13  gate's court or, if the surrogate's court defers, the court  shall  make
    14  such appointment. Any guardian appointed for this purpose shall continue
    15  to  serve as the guardian ad litem for the person requiring same for all
    16  other purposes.
    17    § 5. This act shall take effect immediately and  shall  apply  to  all
    18  pending actions and actions commenced on or after such date.
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