To recover damages for a person’s death in New York State, there are two distinct causes of action: survivorship and wrongful death. Attorneys must be familiar with what is and is not recoverable under each.

Kevin G. Faley and Andrea M. Alonso, New York Law Journal

September 15, 2020

To recover damages for a person’s death in New York State, there are two distinct causes of action: survivorship and wrongful death. While the survivorship cause of action belongs to the estate for the decedent’s pain and suffering prior to death, the wrongful death cause of action compensates those statutory distributes who have suffered pecuniary loss as a result of the decedent’s death. Consequently, there may be more than one plaintiff in a death case as well as separate statutes of limitations for each cause of action. Due to these distinctions, an attorney must assess each action independently of the other.


A survivorship action is brought by the decedent’s estate for pre-death pain and suffering. Unlike a wrongful death claim, where the settlement or award passes by statute, a survivorship claim is distributed pursuant to a will (or, if the decedent dies intestate, pursuant to the intestate statute). The statute of limitations for a survivorship claim is three years from the date of the accident or one year from the date of death, whichever is longer. A survivorship claim for pre-death pain and suffering requires evidence that the decedent experienced “cognitive awareness,” which is defined as consciousness after the occurrence. McDougald v. Garber, 73 N.Y.2d 246 (N.Y. 1989). Consciousness may be evinced where decedent screams, moans in pain, or otherwise visibly suffers.

Evidence of conscious pain and suffering may also be inferred where a medical expert testifies that the decedent sustained injuries that did not cause instantaneous death or loss of consciousness but did likely cause pain. Vargas v. Crown Container Co., Inc., 65 N.Y.S.3d 567 (2d Dept. 2016). By contrast, testimony that the decedent appeared unconscious immediately following an accident, coupled with corroborating paramedic reports and a coroner’s conclusion that death was instantaneous, is sufficient to dismiss a survivorship claim. McKenna v. Reale, 29 N.Y.S.3d 596 (3d Dept. 2016).

The courts also recognize “pre-impact terror” as a sub-category of conscious pain and suffering. Pre-impact terror requires evidence that a decedent was aware of his own impending death. For example, in In re 91st Street Crane Collapse Litigation, 62 N.Y.S.3d 11 (1st Dept. 2017) where a crane collapsed off of a high-rise, evidence strongly supported a finding of pre-impact terror for the crane operator who was trapped inside the crane when it fell. Witnesses in adjacent apartment buildings described the look of “sheer panic and fear” on the crane operator’s face as the crane struck other buildings on its way to the ground. In that same case, there was also sufficient evidence of pre-impact terror for the worker upon whom the crane fell, as he sustained defensive injuries to his forearm and had warned coworkers to run as the crane was falling down.

Conscious pain awards vary widely according to the circumstances of each case. For example, the Second Department reduced an award of $1,250,000 to $400,000 where evidence established that, while the decedent was able to feel pain following a collision, she was able to do so for at most 11 to 20 minutes and that she was minimally conscious during that time. Vatalaro v. County of Suffolk, 81 N.Y.S.3d 441 (2d Dept. 2018). Conversely, for a decedent who remained conscious while hospitalized for three and a half days prior to death, the Second Department affirmed an award of $3,750,000. Hyung Kee Lee v. New York Hosp. Queens, 987 N.Y.S.2d 436 (2d Dept. 2014).

Note that the Appellate Division tends to sustain much higher verdicts for pre-impact terror and conscious pain and suffering when a defendant’s actions are grossly negligent, the injuries are particularly gruesome, or when the decedent is a child. When determining the value of a survivorship claim for conscious pain and suffering prior to death, the attorney should examine the specific evidence regarding the interval between accident and death, the degree of consciousness, and the duration of suffering. As in any other personal injury action, the decedent’s own culpable conduct must also be considered when apportioning damages.

Wrongful Death

The separate cause of action for wrongful death is designed to compensate a decedent’s survivors for economic losses. The essential elements of a wrongful death action are a death caused by the wrongful conduct of defendant; survival by distributes who have suffered pecuniary loss by reason of the death; and appointment of a personal representative of decedent. The statute of limitations for a wrongful death action is two years, measured from the date of death, subject to certain exceptions. See Estates, Powers, and Trusts Law (EPTL) § 5-4.1. The burden of proving the defendant’s wrongful conduct is not as high as in cases where an injured plaintiff can himself describe the event. See Noseworthy v. City of New York, 298 N.Y. 76, 80, 80 N.E.2d 744.

In contrast to a survivorship claim, only distributes as defined by EPTL 4-1.1 can share in the proceeds of a wrongful death action. Wrongful death damages are designed to compensate distributes solely for their pecuniary injuries resulting from the death of the decedent and, consequently, are not considered part of the deceased individual’s estate.

Under the current statute, wrongful death damages are limited to “fair and just” compensation for the pecuniary injuries resulting from decedent’s death. See EPTL § 5-4.3. Such damages may include loss of support, voluntary assistance, and possible inheritance, as well as medical expenses incidental to death and funeral expenses. See Gonzalez v. New York City Housing Authority, 77 N.Y.2d 663. Besides lost wages and actual expenses, pecuniary losses may also include services such as cooking, cleaning, and driving.

Loss of consortium claims are not recoverable under the statute. A surviving spouse can recover for loss of consortium for the period prior to the decedent’s death, but this is a derivative action of the decedent’s claim for conscious pain and suffering. See Liff v. Schildkrout, 427 N.Y.S.2d 746, (1980). No damages are awardable for the grief or suffering of the distribute or the lost companionship, comfort, or assistance the decedent would have provided. See Bumpurs v. New York City Housing Authority, 527 N.Y.S.2d 217 (1st Dept. 1988). However, a New York Senate bill in committee seeks to modify the statute to include grief and anguish, loss of love, society, protection, comfort, companionship, and consortium as compensable damages. See S. B. 4006, Fin. Comm. 2019-20 Legis. Sess. (N.Y. 2019). Courts have long recognized the pecuniary value of parental guidance and support. See Tilley v. Hudson Railroad Co., 24

N.Y. 471 (1862). These losses are highly fact-specific, and each individual scenario will be subject to scrutiny. For example, in Gardner v. State, 24 N.Y.S.3d 805 (4th Dept. 2015), the court declined to disturb an award of $875,000 for the decedent’s children for past and future loss of parental guidance, despite the fact that both children were teenagers at the time of death.

By contrast, in Estevez v. Tam, 49 N.Y.S.3d 167 (2d Dept. 2017), the Second Department found that a jury verdict awarding zero damages for the loss of parental guidance was not against the weight of the evidence where decedent was 65, divorced, retired, living by himself, and provided no financial support to his three adult sons.

In order to establish a right to a wrongful death recovery, the plaintiff need only show that he had a reasonable expectation of support from the decedent. Then, the calculation of the precise amount of damages is a question for the jury.

In determining what is “fair and just” compensation for the pecuniary injuries resulting from wrongful death, the jury may consider a number of factors: the age, health and life expectancy of decedent at the time of injury; decedent’s work habits and present position; decedent’s future earning capacity and potential for career advancement; and the number, age and life expectancy of decedent’s distributes.

In Vargas v. Crown Container Co., Inc., awards of $650,000 for past pecuniary loss and $350,000 for future pecuniary loss were considered reasonable compensation for the one-year-old son of a 22-year-old garbage collector who worked two jobs at the time of his death.

A distribute must provide evidence of the value of the lost services. In Merola v. Catholic Medical Center of Brooklyn and Queens, 808 N.Y.S.2d 395 (2d Dept. 2005) the Court reduced an award for the value of household chores performed by a decedent wife from $250,000 to $50,000 because the plaintiff husband failed to provide expert testimony as to the value of the lost services. By contrast, in Vasquez v. County of Nassau, 938 N.Y.S.2d 109 (2d Dept. 2012), the Second Department upheld an award of $1.8 million for future loss of household services in an action where the distribute was a disabled, minor child and the plaintiff presented expert testimony that established the decedent’s financial support and her child’s special, lifetime needs.


To properly evaluate a death case, an attorney must be familiar with the two distinct causes of action and what is and is not recoverable under each. To defend a potentially high-exposure case, defendants must obtain documentary and/or testimonial evidence of each and every claim for loss of earnings/support/service that a plaintiff is alleging.

Kevin G. Faley and Andrea M. Alonso are partners at Morris Duffy Alonso & Faley.
Annalise Leonelli, a paralegal, assisted in the preparation of this article.

Reprinted with permission from the September 15, 2020 edition of the New York Law Journal © 2020 ALM Media Properties, LLC. All rights reserved.
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