After the death of a loved one in Albany, it can be difficult to focus on any issues beyond making arrangements for your loved one and going through the grieving process. The death of a loved one can be especially devastating when you know that it could have been prevented, recognizing that the death resulted from another party’s negligence. When a loved one’s death results from someone else’s negligence or intentional wrongdoing, it is important to find out about eligibility for filing a wrongful death lawsuit.
Was the Death a “Wrongful Death” According to New York Law?
First, to be eligible to file a wrongful death lawsuit, the deceased’s death must have been a “wrongful death” as New York wrongful death law understands it. Here is what the statute says:
“The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued.”
In other words, if the deceased had survived (i.e., if the accident or incident had not been fatal), the deceased would have been able to file a personal injury lawsuit to seek damages as a result of the defendant’s negligence or default.
Are You the Personal Representative of the Estate?
Under New York’s wrongful death law, the personal representative of the estate must be the person who files a wrongful death lawsuit. Thus, in order to be eligible to actually file the lawsuit and to be the named plaintiff, you will need to be the personal representative of the deceased’s estate. Another way to describe the personal representative is as the executor of the estate. The personal representative of the deceased is expressly identified in the statute as the party who must file the lawsuit, as you can see from the portion of the law cited above.
It is important to be clear about filing a wrongful death lawsuit and obtaining damages from a wrongful death lawsuit. To be clear, a surviving family member can be eligible to obtain damages in a wrongful death lawsuit even if they are not eligible to file the lawsuit as the plaintiff. Accordingly, if you lost a loved one but you are not the personal representative of the deceased’s estate, it is still important to talk with a wrongful death lawyer in New York to determine who should be the party to actually file the lawsuit, and what you will need to do in order to be eligible to obtain compensation from any damages won through the lawsuit or obtained through a settlement.
Is There Time Left On the Statute of Limitations?
Finally, eligibility to file a wrongful death lawsuit will depend upon whether there is still time left before the statute of limitations runs out. In a wrongful death lawsuit in Albany or elsewhere in New York, the statute of limitations is typically two years, and the clock will begin to tick on the date of the deceased’s death. Accordingly, most people have two years from the date of death to file a wrongful death lawsuit. However, there are some limited exceptions, and it is important to understand whether they could apply to your case.
In wrongful death lawsuits that result from medical malpractice, the plaintiff in a wrongful death lawsuit will have 2.5 years from the date of death to file a claim. In the event your wrongful death lawsuit is connected to a criminal case that is currently pending against the person you were planning to sue as a defendant, then the statute of limitations can be extended. In those cases, you will have one year from the date that the criminal case ends (even if two years have passed since the deceased’s death) to file a wrongful death lawsuit.
Contact an Albany Wrongful Death Lawyer Today for Help with Your Case
If you recently lost a loved one in an accident or because of another party’s negligence or intentional wrongdoing, it is essential to get in touch with an experienced Albany wrongful death attorney as soon as possible to learn more about your eligibility to file a wrongful death lawsuit and seek compensation for your loved one’s losses and your own. As we emphasized above, even if you are not eligible to file the lawsuit yourself, you can still be eligible to obtain damages in a wrongful death claim. Contact Powers & Santola, LLP in Albany today to begin working on your wrongful death case.