S T A T E   O F   N E W   Y O R K
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                                  2136

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 11, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- 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
  payment of damages in wrongful death action

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. 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 distri-
butees, or for the payment of  which  any  distributee  is  responsible,
shall  also  be  proper  elements  of  damage] DAMAGES SHALL INCLUDE THE
FOLLOWING:
  (1) EMOTIONAL LOSS AND MENTAL ANGUISH WHICH MAY INCLUDE COMPANIONSHIP,
GUIDANCE AND ADVICE OF THE DECEDENT;
  (2) COMPENSATION FOR
  (I) REASONABLY EXPECTED PECUNIARY LOSS AND
  (II) THE LOSS OF SERVICES, PROTECTION, AFFECTION, CARE AND  ASSISTANCE
PROVIDED BY THE DECEDENT;
  (3)  EXPENSES FOR THE CARE, TREATMENT AND HOSPITALIZATION OF THE DECE-
DENT INCIDENT TO THE INJURY RESULTING IN DEATH; AND
  (4) REASONABLE FUNERAL EXPENSES.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08807-01-9

S. 2136                             2
              

  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.
  S 2. Section 5-4.3 of the estates, powers and trusts law is amended by
adding a new paragraph (a-1) to read as follows:
  (A-1) DAMAGES ENUMERATED IN SUBPARAGRAPH (1) OR CLAUSE (II) OF SUBPAR-
AGRAPH  (2)  OF  PARAGRAPH  (A) WHICH ARE AWARDED BY A JUDGE OR JURY, OR
APPROVED BY THE COURT PURSUANT TO 5-4.6, SHALL SPECIFY BOTH  THE  AMOUNT
AND THE PERSON FOR WHOSE BENEFIT THE DAMAGES ARE AWARDED OR APPROVED.
  S  3.  The  opening paragraph of paragraph (a) of section 5-4.4 of the
estates, powers and trusts law, as amended by chapter 595 of the laws of
1992, is amended to read as follows:
  [The] EXCEPT AS PROVIDED IN PARAGRAPH (A-1), damages, as prescribed by
5-4.3, whether recovered in  an  action  or  by  settlement  without  an
action,  are  exclusively for the benefit of the decedent's distributees
and, when collected, shall be distributed to the persons entitled there-
to 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 distributees for  purposes  of  this  section.  The
damages shall be distributed subject to the following:
  S 4. Section 5-4.4 of the estates, powers and trusts law is amended by
adding a new paragraph (a-1) to read as follows:
  (A-1)  NOTWITHSTANDING  ANY  PROVISION OF LAW TO THE CONTRARY, DAMAGES
AWARDED PURSUANT TO PARAGRAPH (A-1) OF 5-4.3 SHALL BE DISTRIBUTED TO THE
PERSON FOR WHOSE BENEFIT SUCH DAMAGES ARE AWARDED.
  S 5. This act shall take effect April 1, 2010 and shall apply to caus-
es of action arising on or after such date.