New York Wrongful Death Statute of Limitations
A wrongful death action is a lawsuit that is filed by the immediate surviving family members of a decedent whose death was caused either intentionally or negligently. Family members must file the lawsuit within a specific period of time, which is known as the statute of limitation.
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Statute of Limitation
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The statute of limitation in New York State for a wrongful death claim is two years. This means that a lawsuit must be filed no later than two years from the date of the decedent's death.
Affirmative Defense
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The statute of limitation is an affirmative defense that must be asserted by the defendant in his answer to the plaintiff's complaint. If the statute of limitation defense is not waived in the defendant's first responsive pleading, it will be deemed waived and the defendant will not be able to assert the defense thereafter.
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Effect
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If a defendant argues that the plaintiff did not properly file a wrongful death action within the two-year statute of limitation, a judge may dismiss the plaintiff's case.
Exceptions
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In certain situations, the statute of limitation does not begin to accrue until a later date. For instance, in cases in which the death-producing agent is not immediately discoverable, such as tainted pharmaceuticals administered in a hospital, the two-year period does not begin until the plaintiff becomes aware of the use of contaminated products during the course of the decedent's treatment.
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