A cause of action to recover damages for wrongful death action is a property right belonging to the distributees of the decedent. If someone dies with both surviving children and grandchildren can a wrongful death award be made directly to the decedent’s grandchildren? No, answered the Second Department Tuesday in Carter v New York City Health & Hosps. Corp., 2008 NY Slip Op 00216.
In that case the decedent was survived by 9 children and 59 grandchildren. In a wrongful death action, a jury made an award of $96,000 to seven of the decedent’s grandchildren, but nothing to the decedent’s children. Citing EPTL 4-1.1[a]), the Court stated that since the decedent was survived by children and no spouse, all of the decedent’s property should pass to the children, by representation. And since all nine of the decedent’s children were still alive at the time of the decedent’s death, none of the decedent’s grandchildren qualified as a distributee. The Court thus vacated the award to the grandchildren. It did however, order a new trial on damages because given the charge to the jury, the damages improperly awarded to the grandchildren might well have been intended as a lawful award to the proper distributees.