Brooklyn Wrongful Death Lawyer

If you have recently lost a loved one because of someone else’s negligence, you probably have a lot of questions going through your mind. You might have come across the term “wrongful death”, or perhaps your family and friends have advised you to file a wrongful death lawsuit. However, if you’re like most people after losing a loved one, thinking about legal matters is the last thing on your mind.

However, a successfully wrongful death claim can not only help you recover the damages you and your family lost as a result of the death of your loved one but also provide you with the peace of mind and the funds to help you deal with the aftermath of the unexpected passing of your loved one. In case you’re considering filing a wrongful death case in New York, one of the key steps you should take is consulting with an experienced Brooklyn wrongful death lawyer, who will answer all of the questions and concerns you might have about your case.

However, for convenience purposes, the Brooklyn personal injury lawyers at Cellino Law have compiled a comprehensive guide to help answer some of the questions you might have about wrongful death cases, and give you a good idea of what to expect.

How Does New York Define Wrongful Death?

According to New York state laws, wrongful death claims arise when a person dies as a result of the negligent actions of another individual or entity. Just as with other kinds of cases, “common law” negligence principles are applied here, where the party responsible can be held liable in case it’s proven that the death was caused by failure to use reasonable care under the circumstances surrounding the accident.

The New York Estates, Powers, and Trusts Code requires the plaintiff to prove 5 key elements to establish claims for wrongful death:

  1. Death
  2. Wrongful actions on the side of the defendant
  3. A cause of action that the deceased may have pursued in court if death hadn’t occurred
  4. One or more surviving persons suffering losses as a direct result of the death
  5. Damages that the estate can reasonably recover

To have grounds for a wrongful death suit, the family of the deceased has to prove that the responsible party was acting negligently. This means proving that:

  • The responsible party had a duty of care or legal responsibility to act within a reasonable degree of caution when interacting or performing potentially dangerous actions to the victim
  • The responsible party violated this duty of care
  • This violation of the duty of care directly caused the death of the victim
  • The death of the victim caused economic and/or non-economic damages to the surviving family

Some good examples of possible grounds for wrongful death include:

  • Criminal activity, such as intentional homicide
  • Medical malpractice, such as misdiagnoses, surgical errors, medical injury, or medication errors
  • Nursing home neglect or abuse
  • Engineering or construction malpractice
  • Car accident fatalities
  • Defective products such as electronics, drugs, or vehicles
  • Improper or illegal alcohol service such as serving alcohol to a visibly intoxicated person

It’s important to note that the Court of Appeals holds that NY State doesn’t recognize claims for wrongful death in cases where a fetus is killed before birth, even if the death was caused by negligent or wrongful acts of another person or entity.

Who Can File A Wrongful Death Claim in New York?

In New York, the responsibility to file a wrongful death claim lies on the shoulders of the personal representative of the estate belonging to the deceased person. Unlike most other states, New York doesn’t allow a family member to file a wrongful death claim in court unless the person is also the personal representative of the deceased victim’s estate.

Schedule a free consultation with one of our Brooklyn wrongful death lawyers today.

Still, filing a wrongful death case can pursue damages for the losses the deceased person’s beneficiaries, heirs, or devisees suffered, along with the damages for any losses the deceased person’s estate suffered. In case compensation is awarded, the estate’s representative is treated by the court as holding the compensation award in trust for the family members to whom the award belongs.

What Damages Can Be Recovered By A Wrongful Death Claim?

Brooklyn Wrongful Death Lawyer Infographic

The main purpose of wrongful death lawsuits is compensating the victim’s family members for the economic losses they suffer because of the untimely death of their loved one. Some of the most common damages awarded in wrongful death lawsuits in Brooklyn, NY, are as follows.

Economic Damages such as:

  • Medical bills
  • Funeral, burial, and cremation costs
  • Lost wages based on what the deceased was earning and what they would have earned in the future

Reductions in the amount of inheritance the deceased would have left

Non-Economic damages such as:

  • Services provided by the deceased, such as childcare, moral training, and emotional support
  • The loss of consortium and parental guidance the deceased would have provided in case they reached their life’s expectancy

The life expectancy and age of the deceased and their beneficiaries will influence how these economic losses are evaluated. One of the more challenging components of wrongful death cases is determining the right compensation for the loss of parental guidance and emotional support. In some cases, these damages can be claimed by the children of a deceased parent (provided they’re of legal age), though they tend to be much more impactful when the surviving child is younger.

Keep in mind that as of 2019, survivors who file a wrongful death lawsuit are no longer able to recover damages for pain and suffering, emotional trauma, and the loss of companionship following the death of a loved one. However, it’s possible to recover damages for the conscious pain and suffering experienced with the fear of the impending demise of the victim before they passed.

Can You Receive Punitive Damages In A Wrongful Death Claim?

Based on the circumstances surrounding the death of the victim, the court can award punitive damages along with the economic and non-economic damages to the surviving family members. Punitive damages are typically awarded in cases where the defendant engaged in particularly dangerous and reckless behavior, which resulted in the death of the deceased. Punitive damages are meant to punish the defendant and deter them and members of the public from such behaviors in the future.

While punitive damages are legal in the state, it’s quite rare for a person to make a successful claim for them. Punitive damages aren’t available for the vast majority of wrongful death cases. However, if you still believe you have grounds for a wrongful death case, you should consult with a New York wrongful death attorney to help you find out the kind of compensation you’re entitled to.

How is Negligence Determined in a Wrongful Death Case?

As mentioned before, the plaintiff of a wrongful death case will have to prove certain factors to be eligible for full compensation. These factors include a duty of care, breach of duty, direct causation, and damages.

Duty of Care

The plaintiff has to prove that the defendant owed the deceased a duty of care. Although the exact definition of this “duty of care” varies depending on the facts surrounding the case, the duty has to do with keeping the other person safe or avoiding doing something that could potentially harm the other person.

For instance, in a driving-related wrongful death case, where a motorist struck a pedestrian, the plaintiff can argue that the defendant owed the deceased a duty of care to operate their automobile as safely as a reasonably prudent person would. From there, it would then be upon the judge (not a jury) to decide if the defendant owed a duty of care.

The judge will consider several factors when making the decision, including the public policy consequences of finding duty in all similar cases, how certain it is that the damages occurred, how foreseeable the harm was, the defendant’s own moral blame, and how closely related the defendant’s actions and harm were.

Breach of Duty of Care

Once the duty of care is proven to exist, the plaintiff will then have to demonstrate that the defendant breached this duty. From the example above, the plaintiff might provide evidence to show that the defendant wasn’t paying attention on the road when they caused the accident. Not paying attention to the road is not something a reasonably prudent driver would do, meaning that doing so is breaching the duty of care.


The plaintiff should then prove that this actual breach of duty led to the victim’s harm. Continuing with our example, the plaintiff has to prove that it was the defendant’s car that actually struck the deceased, not some other vehicle. In case there was another vehicle that struck and seriously injured the victim before the defendant’s car got involved in the accident, it’s likely that the court will not find the defendant’s breach of duty directly caused the harm.

A Brooklyn wrongful death lawyer reviewing a case with a client on the phone.

In case the deceased was already seriously wounded and the breach of duty of the defendant caused an accident that resulted in the death of the deceased, the court will likely find the defendant liable for causing the harm. Based on the facts surrounding the case, issues of causation can be quite complex to navigate.


Besides the breach of duty and causation, the plaintiff has to demonstrate that the deceased actually suffered damages. If both the causation and breach of duty exist in a wrongful death case, the damages will be presumed for obvious reasons – the victim was killed.

How Do You File A New York Wrongful Death Claim?

As the personal representative of the deceased’s estate, you have the right to seek compensation by filing a wrongful death claim. However, it’s important to file your claim as soon as possible, considering that there’s a time limit for pursuing a wrongful death claim stipulated by New York’s statute of limitations.

In New York, a wrongful death claim must be filed within two years from the date the deceased person died. Failure to take action before this statute expires could mean having your case dismissed by the court and your right to compensation may be lost.

We always encourage our clients to do the following:

  • Find out whether you have a case. If the negligent actions of another person or entity caused the death of your loved one, then the deceased’s estate might have grounds to file a wrongful death case.
  • Preserve any available evidence. To prevent motions to dismiss from hindering your case, you need to get some compelling evidence that demonstrates how the negligent or reckless acts of another person caused the death of your loved one.
  • Prepare a complaint that includes the identity of the defendant, key components of your case, and the compensation you’re seeking.
  • File your complaint in accordance with the New York court rules.

Undertaking these steps can be quite difficult, more so following the death of a loved one. An experienced wrongful death lawyer can investigate whether you have a case, help you understand how the wrongful death claims process works, and how to protect your rights. In addition, your lawyer can investigate your case, ensure the relevant evidence is collected and preserved, file the complaint on your behalf, and represent you during the settlement negotiations or in trial.

Contact a Brooklyn Wrongful Death Lawyer Today

At Cellino Law, we know that the upheaval that comes from losing a loved one through accidental death can be overwhelming. Our wrongful death lawyers have helped countless clients to survive these upheavals and recover the compensation they needed and deserved. We have been counseling clients in Brooklyn for decades on filing wrongful death claims, and on recovering the maximum compensation available for the victim’s family and estate.

If you think you have grounds for a wrongful death case, get in touch with us today and schedule your free initial consultation with one of our top-tier Brooklyn personal injury firm. We will help you analyze the circumstances surrounding the death of your loved one, make arrangements to collect and preserve the available evidence and start pursuing all the responsible parties to get the justice and compensation you and your family deserve.



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