NY EPTL 5-4.1 Action by Personal Representative for Wrongful Act, Neglect or Default Causing Death of Decedent

This post is part of the NY wrongful death statutory corpus. For the Part 4 hub, see: NY EPTL Part 4 (Wrongful Death).

§ 5-4.1 Action by personal representative for wrongful act, neglect or default causing death of decedent

1. 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. Such an action must be commenced within two years after the decedent’s death; provided, however, that an action on behalf of a decedent whose death was caused by the terrorist attacks on September eleventh, two thousand one, other than a decedent identified by the attorney general of the United States as a participant or conspirator in such attacks, must be commenced within two years and six months after the decedent’s death. When the distributees do not participate in the administration of the decedent’s estate under a will appointing an executor who refuses to bring such action, the distributees are entitled to have an administrator appointed to prosecute the action for their benefit.

2. Whenever it is shown that a criminal action has been commenced against the same defendant with respect to the event or occurrence from which a claim under this section arises, the personal representative of the decedent shall have at least one year from the termination of the criminal action as defined in section 1.20 of the criminal procedure law in which to maintain an action, notwithstanding that the time in which to commence such action has already expired or has less than a year remaining.

What 5-4.1 Does

Function: Creates the wrongful death cause of action and specifies who has standing to sue.

• The claim is brought by the personal representative.
• The recovery is for the benefit of the decedent’s distributees (not as a general estate asset).
• The section also contains the baseline limitations period (two years from death) and special timing rules.