NY State Leglislature Passes Bill Amending Wrongful Death Statute

By William Parra and Thomas Vitucci

On Jun. 3, 2022, both houses of the New York State Legislature passed the Grieving Families Act (S74A/A6770) (the “Act”), during its final session. The legislation proposes to amend Estates, Powers and Trusts Law (“EPTL”) §§ 5-4.1, 4.3, 4.4 and 4.6 to expand the types of damages recoverable in wrongful death suits. New York law presently limits recovery in wrongful death suits to “pecuniary losses” of a decedent’s distributees, generally calculated by the decedent’s future lost earnings. Existing precedent also allows for the recovery of a decedent’s pre-death conscious pain and suffering and loss of support, parental guidance and assistance and inheritance as types of pecuniary loss, although these other damages are often difficult to prove.

The Act’s most significant change allows a decedent’s survivors to recover for their own “emotional anguish” or pain and suffering. It further changes existing law, as follows:

• extends the applicable wrongful death statute of limitations from 2 to 3.5 years;
• expands who can recover to “close family members;” and
• takes effect immediately and retroactively in all existing and future wrongful death suits.

The Act will conform New York law with that in the majority (41) of states. The question is whether this is the right time to enact this change and whether Governor Hocul will sign it. On the first question, the COVID 19 pandemic created unprecedented financial struggles for New York businesses, particularly small businesses, the impact of which continues. Countless businesses failed and those that survived continue to struggle financially. Amending existing law to allow for a new category of damages by an expanded group of beneficiaries, i.e., “close family members,” will greatly expand business owners’ financial exposure and raise insurance costs in a City and State where the cost of doing business is already prohibitively high. For instance, the Act expands standing to bring a wrongful death suit to any “close family member,” including but not limited to spouses, domestic partners, grandparents, step-parents, siblings and children, “based upon the specific circumstances relating to the person’s relationship with the decedent.” Such an expansion of damages in existing actions will be particularly prejudicial to defendants in terms of their expectation of and actual financial exposure.

Whether the Governor will sign the Act into law within the required 10-day period is another question. The rash of bills the Legislature passed in its final session may best be explained as an effort by legislators to show they are working for their constituents’ best interests in an election year. How many of these bills the Governor can and will review for signing within the 10-day period, and whether this Act will be one of them, remains to be seen. Otherwise, it will not go into effect and will need to be voted on and passed again, in the next Legislative session.

Should you have any questions concerning the impact of these amendments, please do not hesitate to contact Howard Klar or William Parra.