There is no version of this page that makes the loss any smaller. What it can do is explain how New York handles these claims, because the rules are unusual, they surprise almost every family, and two of them are time-sensitive.
Attorney Jordan Stern handles these cases personally. He has represented injured New Yorkers and their families for over 30 years, across Nassau and Suffolk County, from the firm's office in Freeport.
The consultation is free, and there is no fee unless we recover.
Who is allowed to bring the claim?
Not the family directly. New York permits only the personal representative of the estate to file — the person holding Letters Testamentary or Letters of Administration, ordinarily issued by the Surrogate's Court here, though an appointment made in another jurisdiction can also serve. (EPTL § 5-4.1)
The people who ultimately receive the recovery are the decedent's distributees — generally the spouse, children, or parents — but they cannot file in their own names, even where there is one obvious heir and no disagreement at all.
This matters because appointment takes time, and the deadline does not pause while the Surrogate's Court works. Families sometimes discover months have passed while an estate was being opened. Where a claim looks likely, the two things should proceed together.
What can a family actually recover?
This is the part that lands hardest, and it is better heard early than late.
New York limits wrongful death damages to pecuniary injuries — financial losses. (EPTL § 5-4.3) In practice that includes:
- The financial support the person would have provided over their working life
- The value of services they provided to the household
- Loss of parental guidance and nurture, where children survive
- Medical expenses before death, and reasonable funeral costs
- Interest running from the date of death
What New York does not allow is any recovery for the family's own grief, emotional suffering, or loss of companionship. The pecuniary-loss framework dates to 1847 and has never been changed on this point, through every recodification since. Most other states permit those damages. New York does not.
That is not a comment on what was lost. It is a description of what the statute measures.
Is there a claim for what my family member went through?
Yes, and it is separate.
A survival action belongs to the estate rather than to the family, and it covers what the decedent themselves experienced between the injury and death — principally conscious pain and suffering. (EPTL § 11-3.2) It is brought by the same personal representative and is almost always filed alongside the wrongful death claim.
The distinction matters for where the money goes. Wrongful death proceeds pass to the distributees. Survival action proceeds are estate assets, which means the estate's debts are paid from them first.
How long do we have?
Two years from the date of death. (EPTL § 5-4.1)
Two details catch people out. The clock runs from the date of death, not the date of the injury — if someone is hurt and dies months later, the two years start at death. And appointment of the personal representative does not extend it.
If a government entity may be responsible — a municipality, a public authority, a public hospital — there are two clocks running at once, and they start at different moments. The notice of claim is generally due within 90 days after the estate representative is appointed. The lawsuit itself must still be commenced within two years after the death. (General Municipal Law §§ 50-e, 50-i)
Waiting for the estate process to finish before anyone looks at the claim is how that second deadline gets missed.
What about the Grieving Families Act?
It is not law.
The bill would have allowed families to recover for grief and emotional loss and would have extended the filing period. It passed the Legislature four times and was vetoed each time, most recently in December 2025. Versions of it are expected to return.
Anyone telling you that New York now compensates a family's grief is describing a bill, not the statute. Until that changes, cases are valued under the pecuniary framework above — which makes how thoroughly the economic loss is documented far more consequential here than in most states.
If the death was caused by a crash
One question resolves itself. In an ordinary motor vehicle injury claim, a person has to clear New York's serious injury threshold before recovering for pain and suffering. Death is itself one of the statutory categories, so that hurdle does not arise. (Insurance Law § 5102(d))
The second is worth stating carefully. New York's 2026 comparative fault amendment was written for personal injury actions subject to the no-fault law, and it bars recovery where a claimant's share of the fault exceeds that of the party sued, or the combined share of all parties sued. (CPLR § 1411(b)) The wrongful death cause of action is expressly named in the general comparative fault provision and not in the new exception, so a wrongful death claim remains under the general rule — fault reduces the recovery rather than eliminating it.
Where a survival claim is brought alongside it — the claim for what the decedent themselves endured between injury and death — that claim is analyzed separately, and the answer can differ. A survival claim is the decedent's own personal injury cause of action, continued by the estate. (EPTL § 11-3.2(b)) Where the decedent was covered by the no-fault article, that makes it the kind of action the 2026 exception was written for, so the same fault bar can apply to it.
The practical consequence is that one lawsuit can carry two claims that are treated differently: the wrongful death claim reduced in proportion to the decedent's share of the fault, and the survival claim barred outright if that share is greater than the share of the party sued. It is one of the reasons fault is worth contesting hard in these cases even where liability looks mostly settled.
What happens to the recovery?
Any settlement or verdict requires court approval, and the allocation between the wrongful death claim and the survival claim has to be approved as well. How the wrongful death proceeds are divided among distributees is determined by law rather than by the will.
That process is procedural, but it is not automatic, and getting the allocation right can matter a great deal to the people involved.
If you've lost a family member, the consultation is free and there's no obligation.
Speak with Jordan Stern directly. The consultation is free, and there is no fee unless we recover.
Common questions
The Surrogate's Court resolves that question. It doesn't have to be fully settled before initial steps are taken to protect the claim, but it needs attention early given the two-year deadline described above.
Not for who can bring the wrongful death claim — that's always the personal representative, regardless of the will. A will affects estate administration generally, which is worth discussing alongside the claim itself.
A separate wrongful death and survival claim against a third party — a property owner, a contractor, another driver — may exist alongside any workers' compensation death benefit. See our construction accident page for how that works on a job site specifically.
There's no fixed dollar cap, but the recovery is limited to the pecuniary categories described above. It's less a cap and more a limitation on which kinds of loss the law recognizes.
Speak with Jordan Stern
If you have lost a family member on Long Island and want to understand where things stand, the consultation is free and the conversation is confidential. There is no obligation, and no pressure to decide anything.
Stern & Stern · 49 West Merrick Road, Freeport, NY 11520
516-634-0345 · jstern@jordansternlaw.com · Se habla español
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