By V. Christopher Potenza, Esq.
New York Governor Kathy Hochul, for the third straight year, has vetoed the Grieving Families Act, legislation that would completely overhaul wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons who can seek recovery for a fatality.
New York currently provides that a wrongful death lawsuit can only be brought by a child, parent, spouse, or the personal representative for the estate of the decedent. Extended family members, such as siblings or cousins, do not have the right to bring a wrongful death lawsuit in New York unless they also have been named as the guardian or personal representative of the estate.
The damages that can be sought in New York are limited to the economic or pecuniary losses of the survivors resulting from the death, the medical and funeral costs related to the final injury or illness, and the value of parental guidance, nurturing, and care for surviving children. If the decedent sustained conscious pain and suffering prior to passing, an action can be brought to recover those damages as well. However, the current law does not allow recovery for pain and suffering, mental anguish, grief, sympathy, or loss of love or companionship for surviving family members.
A modest revision of the prior vetoed legislation was passed in both houses this year, which:
- Proposed the statute of limitations to be three years from the date of the decedent’s death (current statute of limitations is two years, and prior version proposed expansion to three and a half years);
- More narrowly defined “surviving close family members” who can potentially recover; and
- Reduced the proposed retroactivity to causes of action that accrue on or after January 1, 2021 instead of July 1, 2018.
Under this year’s new proposed legislation, the definition of who may recover damages still included spouses and domestic partners, however the list of distributees was defined, as it is under current law.
Notably, this year’s proposed legislation continued to omit a cap on damages, nor did it carve out an exception for medical malpractice claims. The expansion of damages was the same as passed in the prior legislation, and while the legislature limited retroactivity, it did not eliminate it. As predicted, these modest revisions did not address the Governor’s prior concerns in any meaningful way.
While Governor Hochul called the legislation “well-intentioned,” she states that the bill would lead to higher costs and have a negative impact on the health care system. She indicated a willingness to have further conversations with lawmakers on this type of legislation.
Sponsors of the bill do not seem inclined to seek an override of the Governor’s veto, which requires a two-thirds vote of the Legislature.
