The statute of limitations in wrongful death cases in New York State is two years.
This means a plaintiff has two years from the date of death to file a wrongful death action, or lawsuit. A statute of limitations restricts the amount of time a person has to file a lawsuit. If a person does not bring a lawsuit within that time frame, barring certain exceptions, they cannot sue, even if they do not discover that any injury has been suffered until it is already too late to sue.
The law is set forth in Estate Powers and Trust Law (EPTL) § 5-4.1.
Failure to file within this time period will prohibit the decedent’s estate from ever filing a lawsuit and seeking compensation for their loss.
Wrongful death claims commonly involve auto accidents and other vehicular crashes, medical negligence and defective products. It is important to note that negligence cases and medical malpractice cases in New York have longer statute of limitations, three years and 2½ years, respectively.
The two-year limit also applies if the wrongful death claim will be filed against a public entity such as the State of New York, the local government, or a government agency including the transit system or a school district, according to the New York State Unified Court System. It is important to note that if the defendant is a public entity, the plaintiff must serve a Notice of Claim within 90 days after the appointment of a representative of the decedent’s estate in a wrongful death case, according to General Municipal Law (GML§ 50-e). If a Notice of Claim is not served against the public entity within this set time limit, it may result in the dismissal of the case and the decedent’s estate will be unable to file a wrongful death claim.
After the Notice of Claim is timely filed, the wrongful death lawsuit must be instituted within two years from the date of the death (GML§ 50-e).
There are exceptions to the wrongful death two year statute of limitations rule.
One issue that could affect the statute of limitations is whether the only potential beneficiary of the wrongful death case is a minor child (under the age of 18). If this is the case, courts have held that the statute of limitations will be tolled only until the appointment of a guardian or the child turns 18, “whichever is earlier.” However, if the deceased had executed a will that named a parent as executor or appointed a guardian, then the statute of limitations would remain at two years. Baez v. New York City Health & Hospitals Corporation (80 N.Y.2d 571)
Another possible exception to the Statue of Limitation is the New York Dram Shop Act Law. If the deceased died as a result of the intoxication of another person, the people working at bars, taverns, liquor stores or other types of liquor establishments can potentially be held responsible for an accident if it resulted from them selling alcohol to the defendant if he or she was visibly intoxicated. The Dram Shop Act has a statute of limitations of three years rather than two. New York Dram Shop Law is found in section 11-101 of the New York General Obligations law. (N.Y. GOB. Law § 11-101)
A third possible exception is if, there is a criminal action pending against the potential defendant in the lawsuit. If there is, the administrator is granted at least one year from the date of the termination of the criminal case to start the wrongful death case against that person, as per N.Y. EPT. Law § 5-4.1.
Families that have lost a loved one in New York should speak with a wrongful death lawyer as soon as possible to ensure the New York wrongful death statute of limitations does not expire.