N.Y. Estates, Powers & Trusts Law § 5-4.3: Amount of recovery

§ 5-4.3 Amount of recovery

(a) The damages awarded to the plaintiff may be such sum as the jury

or, where issues of fact are tried without a jury, the court or referee

deems to be fair and just compensation for the pecuniary injuries

resulting from the decedent's death to the persons for whose benefit the

action is brought. In every such action, in addition to any other

lawful element of recoverable damages, the reasonable expenses of

medical aid, nursing and attention incident to the injury causing death

and the reasonable funeral expenses of the decedent paid by the

distributees, or for the payment of which any distributee is

responsible, shall also be proper elements of damage. Interest upon the

principal sum recovered by the plaintiff from the date of the decedent's

death shall be added to and be a part of the total sum awarded.

(b) Where the death of the decedent occurs on or after September

first, nineteen hundred eighty-two, in addition to damages and expenses

recoverable under paragraph (a) above, punitive damages may be awarded

if such damages would have been recoverable had the decedent survived.

(c) (i) In any action in which the wrongful conduct is medical

malpractice or dental malpractice, evidence shall be admissible to

establish the federal, state and local personal income taxes which the

decedent would have been obligated by law to pay.

(ii) In any such action tried by a jury, the court shall instruct the

jury to consider the amount of federal, state and local personal income

taxes which the jury finds, with reasonable certainty, that the decedent

would have been obligated by law to pay in determining the sum that

would otherwise be available for the support of persons for whom the

action is brought.

(iii) In any such action tried without a jury, the court shall

consider the amount of federal, state and local personal income taxes

which the court finds, with reasonable certainty, that the decedent

would have been obligated by law to pay in determining the sum that

would otherwise be available for the support of persons for whom the

action is brought.