Reviewed by Laurence P. Banville, Esq.Frequently asked questions
Who can file a wrongful death lawsuit in New York?
In New York, only the personal representative (administrator or executor) of the deceased person’s estate may file a wrongful death claim under EPTL § 5-4.1. The damages recovered are then distributed to eligible distributees, which typically include a spouse, children, and parents. If no estate has been opened, a family member must be appointed by the Surrogate’s Court before filing suit.
Can I sue on behalf of a living family member who is incapacitated?
Yes. If a family member suffers a serious injury that leaves them mentally or physically incapacitated, a court may appoint a guardian or guardian ad litem to pursue a personal injury claim on their behalf under New York’s Mental Hygiene Law. The appointed person acts in the incapacitated individual’s legal interest throughout the litigation.
Can a parent sue on behalf of an injured child in New York?
Yes. A parent or legal guardian can bring a personal injury lawsuit as the “next friend” or guardian ad litem on behalf of a minor child in New York. Notably, the statute of limitations is tolled (paused) while the child is under 18, meaning the three-year period under CPLR § 214 typically does not begin running until the child’s 18th birthday — though medical malpractice cases follow different rules.
What is the deadline to file a lawsuit on behalf of a family member in New York?
New York’s general personal injury statute of limitations is three years under CPLR § 214. For wrongful death claims, the family has two years from the date of death under EPTL § 5-4.1. These deadlines can be strictly enforced, so it’s critical to consult an attorney as soon as possible after the injury or death occurs.