Reviewed by Laurence P. Banville, Esq.Frequently asked questions
Can I sue someone who has died in New York?
Yes. In New York, you sue the deceased person’s estate, not the person directly. Under EPTL §11-3.2, personal injury and negligence claims survive the death of the wrongdoer. If no estate representative has been appointed yet, you (or your attorney) may need to petition Surrogate's Court to have one appointed. The personal injury lawsuit itself is then filed in Supreme Court against that appointed executor or administrator.
What is the deadline to sue a deceased person’s estate in NY?
New York's standard personal injury statute of limitations is three years under CPLR §214. Importantly, CPLR §210(b) tolls this clock for 18 months following the defendant's death, giving you time to identify or wait for an estate representative to be appointed — the toll only applies if your original filing deadline hadn't already expired before the defendant died. However, if no estate has been opened, you may need to petition to have one appointed before you can serve process, which can add procedural delay — so acting quickly is critical.
What happens if the deceased person had no estate or assets?
If the defendant died with no assets, recovering a judgment can be difficult. However, many defendants carry liability insurance, and insurance policies typically remain in effect after death. An attorney can investigate whether insurance coverage exists and file a claim against the policy even if the estate has no other assets.
Can a deceased person’s family sue on their behalf in New York?
Yes. Under EPTL §11-3.2, a personal injury claim the deceased person had against someone else also survives their death and can be pursued by the estate. Additionally, if the death was caused by another’s negligence, the family may bring a separate wrongful death action under EPTL §5-4.1 within two years of the date of death.