MCB Appellate Alert: New York Legislature Revises and Passes Grieving Families Act for the Third Time

MCB Appellate Alert: New York Legislature Revises and Passes Grieving Families Act for the Third Time

On June 5, 2024, Senate Bill S8485, the proposed bill known as the Grieving Families Act (the “Act”), passed the New York State Senate. This followed just one day after the New York State Assembly passed its own version of the Act, Assembly Bill A9232B. This is the third version of the Act to be passed by the Legislature; both prior versions were vetoed by Governor Kathy Hochul due to concerns it would have increased insurance burdens on families and small businesses, further strained healthcare workers and institutions, including hospitals in underserved communities, and confused judges, juries, and litigants who, in some cases, were already years into litigation. While it remains to be seen if Governor Hochul will sign this newly revised version of the Act into law, practitioners should be aware of the changes this law would bring about.      

The Act’s stated purpose, like the previous versions, is to permit the families of wrongful death victims to recover compensation for their “emotional loss.” Under the current law, recovery is limited to pecuniary injuries stemming from the decedent’s death to the decedent’s distributees. If this new bill is signed into law, it will amend, and potentially repeal significant aspects of, New York Estates, Powers, and Trusts Law Sections 5-4.1 and 5-4.3 through 5-4.6, which currently govern wrongful death cases.    

The third version of the Act purports to limit its impact from the prior versions, in order to address the Governor’s concerns. First, if enacted, the latest version of Act will extend the time to file a wrongful death action from two years to three years from the date of the decedent’s death. This is unchanged from the second version, but is a slight change from the original version of the Act, which would have allowed actions to be brought within three years and six months of the decedent’s death.  

Second, the latest version of Act will allow for “persons for whose benefit the action is brought” (defined below) to receive compensation for non-economic losses if a tortfeasor is found liable for causing a death, and not just pecuniary losses. The Act specifically authorizes recovery for “grief or anguish caused by the decedent’s death.” This is unchanged from the second version; however, the original version allowed recovery for “any disorder caused by such grief or anguish.” The latest version also permits recovery for “loss of services, support, assistance and loss or diminishment of inheritance resulting from the decedent’s death,” as well as “loss of nurture, guidance, counsel, advice, training, companionship and education resulting from the decedent’s death.”  

Third, the passed bill greatly expands the class of persons who may recover damages for wrongful death. Under current law, only distributees of the decedent may recover damages; however, the Act permits recovery by what it refers to as “persons for whose benefit the action is brought.” This term is defined as decedent’s “spouse or domestic partner,” “distributees,” “any person standing in loco parentis to the decedent,” and “any person to whom the decedent stood in a position of in loco parentis.” It further provides that an in loco parentis relationship shall be presumed “when an adult and minor share or have recently shared a household.” Lastly, it provides that the finder of fact shall determine who, amongst the class of persons who can potentially recover damages “based upon the specific circumstances related to the person’s relationship with the decedent,” is entitled to recover. This is a slight change from prior versions which allowed recovery by spouses or domestic partners, issue (which presumably includes children and grandchildren), foster-children, step-children, step-grandchildren, parents, grandparents, step-parents, step grandparents, siblings, and “any person standing in loco parentis to the decedent.” 

Finally, the Act will only apply to causes of action that accrue on or after January 1, 2021. This is a change from the second version of the Act, which stated that it shall “apply to all causes of action that accrue on or after July 1, 2018, regardless of when filed,” as well as the original version which would have taken effect immediately and applied to all pending and future actions. 

As can be seen, while the Grieving Families Act recently passed by the Legislature is slightly more limited than the prior vetoed versions, it still greatly expands the time in which to bring    a wrongful death action, as well as the damages which may be recovered and the class of persons who may recover those damages. In addition, it still has retroactive effect, stretching back to deaths which occurred in January 2021, despite the fact that some, if not most, cases arising from those deaths will already be years into litigation. Accordingly, it is likely that this version of the Act will still, as noted by Governor Hochul with respect to the previous version, increase insurance burdens, further strain healthcare workers and institutions, and confuse judges, juries, and litigants in pending actions.

We will continue to provide updates, including whether Governor Hochul signs or vetoes this latest version of the Grieving Families Act, in the coming months.