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To recover damages for a person’s death in New York State, there are two distinct causes of action: survivorship and wrongful death. While the survivorship cause of action belongs to the estate for the decedent’s pain and suffering prior to death, the wrongful death cause of action compensates those statutory distributees who have suffered pecuniary loss as a result of the decedent’s death. Consequently, there may be more than one plaintiff in a death case as well as separate statutes of limitations for each cause of action. Due to these distinctions, an attorney must assess each action independently of the other.

Survivorship

A survivorship action is brought by the decedent’s estate for pre-death pain and suffering. Unlike a wrongful death claim, where the settlement or award passes by statute, a survivorship claim is distributed pursuant to a will (or, if the decedent dies intestate, pursuant to the intestate statute). The statute of limitations for a survivorship claim is three years from the date of the accident or one year from the date of death, whichever is longer.

A survivorship claim for pre-death pain and suffering requires evidence that the decedent experienced “cognitive awareness,” which is defined as consciousness after the occurrence. McDougald v. Garber, 73 N.Y.2d 246 (N.Y. 1989). Consciousness may be evinced where decedent screams, moans in pain, or otherwise visibly suffers.

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