For a viable wrongful death suit, it is essential to show that someone ("the decedent") died, and that the death was caused by the wrongful conduct or default of the defendant, that the conduct or default, had the decedent survived, would have been a basis of a lawsuit which could have been brought by the decedent prior to his death, had he survived. A wrongful death action also requires that the decedent be survived by distributees [family members] who have suffered monetary loss by reason of the death, and that a personal representative of the decedent had been duly appointed.
A wrongful death case cannot be maintained without the appointment of a "personal representative" of the decedent, either by a Court of this state, or other jurisdiction. Dead people cannot practically nor legally bring suit. For this reason, most wrongful death cases in New York State begin, and end at the local Surrogate Court.
The appointment of a "personal representative" grants legal authority to the person appointed to start a lawsuit in the name of all of the distributees of the decedent. As part of the appointment process, notice must be sent to all of the distributees of the decedent that a petition has been filed by someone who will act in their behalf to bring an action for wrongful death.
At the end of a successful wrongful death case, the "personal representative" returns to the Surrogate Court to request permission to "compromise the case", and to distribute any money damages awarded after a trial or settlement to the distributees of the decedent.
Leave a comment