If your loved one suffered before they passed away due to someone else’s careless or wrongful actions, you may be entitled to more than just a wrongful death claim. A survival action in New York allows your family to seek justice for what your loved one endured between the time of their injury and their death. While nothing can undo the pain of your loss, pursuing both claims can help hold the responsible party accountable and provide the financial support your family needs moving forward.
Wrongful Death Versus Survival Action: Which Should I File?
Most people will have heard of the term “wrongful death claim,” but not many know there is also such a thing as a survival claim, and while both often go hand-in-hand and are filed concurrently, they are different. A survival action seeks damages for injuries and losses suffered by the decedent that they could have sued for themselves in a personal injury action had they survived. On the other hand, a wrongful death action seeks damages for the decedent’s death and the resulting damages it causes. In many cases, a claimant will file a wrongful death survival action seeking both damages.
What Types of Damages Can Surviving Family Members Recover?
In a survival action, damages pertain to the losses incurred by the deceased individual that they could have claimed themselves had they survived. These typically include injuries and losses suffered when the deceased was injured, but before they passed away. Depending on the circumstances, these can be substantial. If your loved one lived for a while after the accident and incurred significant medical and other expenses, that will increase the value of the survival action.
For example, if your loved one died from injuries in a car accident, you can seek the medical costs and the value of their damaged or destroyed vehicle as part of the claim. You can also seek compensation for any pain and suffering your loved one experienced before they passed.
Economic Damages
In a survival action, you will be entitled to the same damages the deceased individual would have been entitled to in a personal injury claim. If you also file a wrongful death claim in conjunction with the survival action, you may be entitled to additional damages, including:
Family members may recover lost wages from the time of their loved one’s injury until their death. More importantly, they may also pursue lost anticipated income. These damages are particularly important if the deceased was the family’s financial provider. While anticipated lost income is essential to consider, it can be difficult to calculate. Why? Because what an individual is expected to earn throughout their lifetime cannot be plugged into a formula. For instance, what an individual earns at 30 can significantly differ from what they anticipate earning at age 50.
However, several factors will be considered to determine fair and reasonable anticipated lost income, including:
- The age of the individual at the time of their death,
- If they had any prior health conditions before their death,
- The financial needs of their minor children and spouse,
- How many more working years would they likely have had if they had survived, and
- The decedent’s overall earning capacity.
Your lawyer will help you estimate lost future earnings and collect the necessary evidence to support your claim.
Noneconomic Damages
You may also pursue noneconomic damages in a survival action. These can include:
- Pain and suffering experienced by the decedent,
- Emotional distress,
- Loss of enjoyment of life, and
- Impending terror (i.e., pre-impact fear of what was coming).
Typically, to successfully recover these types of damages in a survival action, you must show the deceased had some level of awareness before their death. In other words, they experienced at least some conscious pain and suffering before their death versus being completely unconscious and unaware.
Additional Damages
There are other unique financial losses family members may be able to seek in wrongful death and survival actions, including:
- End-of-life expenses,
- Funeral and burial costs,
- Lost anticipated inheritance,
- Lost value of childcare, and
- Lost value of household services.
While nothing will make up for losing your loved one, by working closely with your lawyer, you can recover significant financial compensation to help make going on with your life a bit easier.
The Importance of Consulting with an Attorney Immediately
Even though you may be in the throes of grief, it is essential to speak with an attorney soon after your loved one’s passing. Sharing your story and your loved ones’ story shortly after their death will ensure memories are fresh and recollections are accurate. It also makes preserving and gathering evidence easier. For instance, medical records, surveillance video, and receipts may still be readily accessible. Preserving evidence early helps build a strong case. There are also time limits for when you must file your claim.
Filing a Survival Action in New York
A survival action is different from a wrongful death claim. It seeks compensation for the pain, suffering, and losses the deceased person endured before passing away. Because this type of claim is rooted in personal injury law, it follows the standard statute of limitations for injury cases.
New York Survival Action Statute of Limitations
If you are considering legal action after losing a loved one, it’s important to understand the specific deadlines that apply to your case. New York law sets strict timeframes for filing survival actions, and missing those deadlines could prevent you from recovering damages.
According to New York Civil Practice Law and Rules, you generally have three years from the date of injury to file a survival action. If your loved one passed away shortly after being injured, the timeline for the survival action may overlap with the wrongful death deadline, but not always. Each claim must be assessed on its own terms.
New York Wrongful Death Statute of Limitations
Under New York Estates, Powers and Trusts Law, the personal representative of the deceased person’s estate must file a wrongful death lawsuit within two years of the date of death. This timeline applies regardless of when the underlying injury occurred.
There are a few exceptions to this general rule:
- September 11-related deaths. If the person’s death is connected to the 2001 terrorist attacks, the claim must be filed within two years and six months.
- Criminal cases involving the defendant. If the responsible party faces criminal prosecution, and the standard two-year deadline has passed, you may have one year from the end of the criminal case to bring your wrongful death claim.
Navigating one or both of these claims can be challenging on your own. A seasoned lawyer will ensure you file appropriately.
Why Timely Action Matters
Wrongful death and survival claims involve complex deadlines, and different rules may apply depending on the facts of your case. If you’ve lost a family member due to someone else’s negligence, speaking with a New York personal injury attorney early can help ensure all appropriate claims are filed on time.
Who Can File a Survival Action in New York?
Not just anyone can file a survival action. In New York, the personal representative of the decedent’s estate may bring a survival claim. Typically, this person is the executor named in the will or someone appointed by the court if the decedent left no will.
Unlike a wrongful death claim, which seeks damages on behalf of surviving family members, a survival action is brought on behalf of the deceased individual. Any compensation recovered becomes part of the estate and is distributed according to the will or, if there is no will, under New York’s intestacy laws.
If you’re unsure who should file or whether you can act as a personal representative, a New York personal injury attorney can guide you through the process and help preserve your loved one’s rights.
How a Lawyer Can Help With a Survival Action
Pursuing a New York survival action involves more than just filing paperwork. It requires understanding complex legal rules, gathering strong evidence, and meeting strict deadlines. An experienced personal injury attorney can:
- Evaluate your case to determine whether a survival action is appropriate alongside a wrongful death claim;
- Collect and preserve evidence that shows the pain, suffering, and financial losses your loved one experienced before death;
- Handle communication with insurers and opposing parties to protect your rights; and
- Ensure all filings are correct and timely, avoiding costly delays or missed deadlines.
Having the right lawyer by your side can ease the burden on your family and help you pursue the justice your loved one deserves.
New York Survival Action & Wrongful Death Attorneys
Losing a loved one because of someone else’s negligence can cause insurmountable pain, but it should not leave you in financial despair and uncertainty. At Greenspan & Greenspan, we have been helping families get justice since 1959. Whether you are considering a survival action, a wrongful death claim, or simply unsure what to do next, we are here to help you get the trusted legal support your family deserves.
Contact us today for a no-cost consultation and let us help you protect your loved one’s legacy.
