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New York Statute of Limitations – Wrongful Death

In this post, I’m going to go over what the statute of limitations is for a wrongful death lawsuit under New York law. As a refresher, a “statute of limitations” is the time period within a lawsuit has to be commenced. If you miss this time period — even by a day — and file your lawsuit late, you could have the most perfect lawsuit (e.g. the best evidence, multiple independent witnesses, an admission by the defendant, etc) and you could still lose just because you filed your suit too late. There are certain situations in which a statute of limitations is paused (aka “tolled” in lawyer-speak if you want to google it), but those are the exception rather than the rule. Tolling is also beyond the scope of this particular post, although I may address it in a future post.

The relevant NY statute on the topic of the statute of limitations in a wrongful death civil lawsuit is New York Estates Powers & Trusts Law section 5-4.1(1)), which states:

“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 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 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 are entitled to have an administrator appointed to prosecute the action for their benefit.” (emphasis added)

Two items of note here:

  • First, the normal statute of limitations for wrongful death is “within two years after the decedent’s death.”That’s the first part that I’ve bolded and underlined above.
  • Second, if the death, however, was caused by the September 11, 2001 attacks, then the statute of limitations for wrongful death is “within two years and six months after the decedent’s death.” If you have followed it on the news, many first responders to the 9/11 attacks contracted a variety of ailments (e.g. cancer). Some lived for quite a while (e.g. 10 years, 20 years, etc) before passing away.

Section 5-4.1(2) of the Estates Powers and Trusts Law also addresses the situation in which the decedent’s death was the result of criminal activity. In such a circumstance, there is a one-year time period within which a civil suit for wrongful death can be filed that starts once the criminal proceedings conclude.

“Whenever it is shown that a criminal action has been commenced against the same defendant with respect to the event or occurrence from which a claim under this section arises, the personal representative of the decedent shall have at least one year from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to maintain an action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining.”

The manner of death is relevant here also. What I’ve described above so far is for strict “wrongful death”. In other words, a situation where — for lack of a better term — the decedent “died instantly.” As I described above, the statute of limitations in New York for a civil suit in that circumstance is generally 2 years. On the other hand, suppose that that same decedent was injured, but did not pass away instantly. Instead, they survived for a time before passing away. For instance, suppose they made it to the hospital, but died in the emergency room or died in surgery. During that time, the decedent was conscious and aware of what had happened to them, where they were, and could feel the pain of their injuries. In those situations, an additional claim can be made for survivorship or more commonly referred to as a “survival action.”

I bring all of this up because, under New York law, a different statute of limitations applies to survival actions versus wrongful death actions. As explained above, the statute of limitations for wrongful death is generally 2 years. For survival actions, the statute of limitations is generally 3 years (see NY CPLR section 214(5))  which begins on the date of the decedent’s injury.

As always, I hope this post was helpful. It was not meant to be a comprehensive or exhaustive discussion of the topics presented. I only mentioned survival actions briefly, for instance, so I certainly did not go over all there is to say about them. If you are going to rely on the information presented above, please do your own research first as it is entirely possible that the law cited above might have changed in the time between when I wrote this post and when you’re reading it. Hopefully the links included above help you with your research. If you do have a situation involving a wrongful death case, please do find a lawyer in your area with whom you can discuss your situation.

Lastly, because this is a post regarding New York, I have to include my usual disclaimer: I am licensed to practice law in New York, but as of the date of this post, do not have a physical office in New York state. Thus, under New York Judiciary Law section 470, I currently can’t represent clients in New York state. Things change over time, of course, so it’s entirely possible that I might have an office in New York state by the time you’re reading this. Please check the contact info section on my site to be sure. Even if I can’t personally take your case, though, I do know several lawyers in New York state so I’m happy to make a referral if I can.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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