Written by Patricia Sullivan
Bills seeking to amend and expand New York’s Estates, Powers and Trusts Law (E.P.T.L.) have been introduced in the Senate and Assembly with significant proposed changes as to the wrongful death statute of limitations, the nature of the awards, and those eligible to bring the actions.
If passed, the time period within which to commence the litigation would be enlarged from the current two-year statute of limitations to a period of three and one-half years after the date of death. The change is said to be aimed to bring wrongful death actions in line with New York’s three-year personal injury statute of limitations, with an extra six months added to reflect the time needed for Surrogate’s Court to approve an estate representative with standing to commence the action.
In terms of damages, they would no longer be limited to pecuniary losses. In addition to compensation for items such as funeral expenses and medical care costs, the proposals now include, as compensable items, “grief or anguish caused by the decedent’s death, and for any disorder caused by such grief or anguish,” as well as awards for the loss of “love, society, protection, comfort, companionship, and consortium,” and for the loss of “nurture, guidance, counsel, advice, training, and education” resulting from decedent’s death.
Those entitled to damages would no longer be solely one’s distributees, or decedent’s parents in certain circumstances, as the class of those entitled to bring wrongful death actions would now be specifically broadened to include “surviving close family members, which may include but are not limited to, spouse or domestic partner, issue, parents, grandparents, step-parents and siblings.” The sufficiency of the degree of “closeness” of the relationship is to be determined by the finder of fact.
The proposed amendments address E.P.T.L. Sections 5-4.1, 5-4.3, 5-4.4 and 5-4.6. The language reads that the Act shall “take effect immediately, and shall apply to all pending actions, and actions commenced on or after such date.”
The bills are being termed the “Grieving Families Act,” as proponents claim New York’s wrongful death laws, initially enacted in the mid 1800’s, perpetuate racial, gender and class disparities. While a provision may be in order reflecting the various family relationships which are now commonplace, there is no reason to disturb the prior wrongful death statute of limitations or to create such a vast expansion of types of claimed damages.
Notably, there is no proposed inclusion of a reconsideration of New York’s 9% interest rate on wrongful death verdicts, interest which runs from date of death per CPLR 5004, although that figure may be considered outdated, as it does not reflect current rates or offer ranges, as in other jurisdictions.
The proposed legislation would significantly increase the awards for verdicts in cases involving those with limited economic losses, including those involving the elderly, children, or persons with limited income. Such changes well may raise the cost of doing business in the State of New York.
Similar amendments have been attempted and failed in prior years. Now however we are coming out of a difficult year, filled with losses in many families. Emotions still are running very high. Particularly in light of the February 2021 Court of Appeals decision in Greene v. Esplanade Venture Partnership 2021 NY Slip Op 01092, where the zone of danger rule was expanded to include a grandparent-plaintiff (who was in close proximity to the decedent-grandchild,) such that grandparents are now deemed to be part of one’s “immediate family,” and where there is colloquy in favor of expanding damages for emotional damages, the proposed amendments should be taken seriously.
If anyone should wish to comment upon the bills, please note they are referred to as A-6770 and S-74-A and are still in the respective committees. They are to be considered in the 2021-2022 Legislative Session, so you may wish to find your senator and/or assemblyperson and express your views now.