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Issued by MCB's Appellate Team:

Barbara D. Goldberg, Partner & Head of Appeals;Gregory A. Cascino, Partner; Richard Wolf, Associate

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On January 30, 2023, shortly before the deadline for approval, Governor Kathy Hochul vetoed Senate Bill S74A, the proposed bill entitled the Grieving Families Act. As the bill was passed during the previous Legislative Session, Governor Hochul’s veto is not subject to an “override. ”Accordingly, the Grieving Families Act will need to be re-introduced and re-passed by the Legislature, and re-presented to Governor Hochul, if it is to become law.

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The bill’s stated purpose was to “permit the families of wrongful death victims to recover compensation for their emotional anguish. ”Under the current law, recovery is limited to pecuniary injuries stemming from the decedent’s death to the persons for whose benefit the action is brought, namely, the decedent’s distributes. If the bill had been signed into law, it would have amended, and potentially repealed significant aspects of, New York Estates, Powers, and Trusts Law Sections 5-4.1 and 5-4.3 through 5-4.6, which currently govern wrongful death cases. Specifically, the Act would have extended the time to file a wrongful death action from two years to three years and six months from the date of the decedent’s death. Additionally, it would have allowed for family members to receive compensation for non-economic losses if a tortfeasor was found liable for causing a death and not just pecuniary losses. The Act specifically would have authorized recovery for “grief or anguish caused by the decedent’s death, and for any disorder caused by such grief or anguish,” as well as “loss of love, society, protection, comfort, companionship, and consortium,” none of which are compensable items of damages under the current law. The Act would have defined “close family members” as including spouses or domestic partners, children, parents, grand parents, step-parents, and siblings, but would have allowed the finder of fact to determine which persons are “close family members” of the decedent, “based upon the specific circumstances relating to the person’s relationship with the decedent.” Finally, the Act would have taken effect immediately and applied toall pending and future actions.

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In her memo vetoing the bill, Governor Hochul noted that the bill passed the Legislature “without a serious evaluation of the impact of these massive changes on the economy, small businesses, individuals, and the State’s complex health care system.” She noted that the bill, if enacted into law, would have increased insurance burdens on families and small businesses, and further strained healthcare workers and institutions, including hospitals in underserved communities. Furthermore, the indefinite class of beneficiaries could have resulted in confusion for judges, juries, and litigants. The bill’s application to already pending cases would have resulted in new competing claims asserted by “close family members,” “as well as protracted discovery and increased litigation costs, potentially upending cases far along in the judicial process.” While Governor Hochul expressed her willingness to amend New York’s wrongful death statute to allow parents to recover emotional damages for the loss of a young child, she found that the bill’s “extraordinary departure from New York’s wrongful death jurisprudence,” without a serious evaluation of its unintended but potential consequences, was improper.

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We will continue to provide updates, including whether a new version of the Grieving Families Act is introduced and passed by the Legislature, in the coming months.

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Legislative Alert is published by the Appellate Practice Group of �г��ٸ� LLP to inform clients about significant legal developments. This publication is intended for general information only and should not be used for specific action without obtaining legal advice. If you would like further information about the services of Martin Clearwater& Bell LLP, please contact Barbara D. Goldberg, Partner & Head of the Appellate Practice Group, at (212) 916-0989 or goldbb@mcblaw.com, or Gregory A. Cascino, Partner, at (516) 712-3146 or gregory.cascino@mcblaw.com

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