The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   74--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by Sens. HOYLMAN, ADDABBO, BAILEY, BENJAMIN, BIAGGI, COMRIE,
   GALLIVAN, GAUGHRAN, GIANARIS, GOUNARDES, HARCKHAM, JACKSON,  KAMINSKY,
   KAPLAN, KENNEDY, KRUEGER, LIU, MYRIE, PARKER, PERSAUD, RAMOS, SALAZAR,
   SANDERS,  SAVINO,  SEPULVEDA, SERRANO, SKOUFIS, STAVISKY -- read twice
   and ordered printed, and when printed to be committed to the Committee
   on Judiciary -- committee discharged, bill amended, ordered  reprinted
   as amended and recommitted to said committee
 
 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 AND SIX MONTHS after the decedent's death; provided,  howev-
 er, 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] FOUR 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  [distributees]  PERSONS  FOR WHOSE BENEFIT AN
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD00015-02-1

 S. 74--A                            2
 
 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, AND FOR ANY DISORDER
 CAUSED BY SUCH GRIEF OR ANGUISH; (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 MAY INCLUDE, BUT ARE NOT LIMITED TO, SPOUSE OR  DOMESTIC  PARTNER,
 ISSUE,  PARENTS,  GRANDPARENTS, STEP-PARENTS AND SIBLINGS. THE FINDER OF
 FACT SHALL DETERMINE WHICH PERSONS ARE CLOSE FAMILY MEMBERS OF THE DECE-
 DENT 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 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-

 S. 74--A                            3
 
 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
 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

 S. 74--A                            4
 
 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
 pending actions and actions commenced on or after such date.