N.Y. Estates, Powers & Trusts Law § 5-4.4: Distribution of damages recovered

§ 5-4.4 Distribution of damages recovered

(a) The damages, as prescribed by 5-4.3, whether recovered in an

action or by settlement without an action, are exclusively for the

benefit of the decedent's distributees and, when collected, shall be

distributed to the persons entitled thereto under 4-1.1 and 5-4.5,

except that where the decedent is survived by a parent or parents and a

spouse and no issue, the parent or parents will be deemed to be

distributees for purposes of this section. The damages shall be

distributed subject to the following:

(1) Such damages shall be distributed by the personal representative

to the persons entitled thereto in proportion to the pecuniary injuries

suffered by them, such proportions to be determined after a hearing, on

application of the personal representative or any distributee, at such

time and on notice to all interested persons in such manner as the court

may direct. If no action is brought, such determination shall be made

by the surrogate of the county in which letters were issued to the

plaintiff; if an action is brought, by the court having jurisdiction of

the action or by the surrogate of the county in which letters were

issued.

(2) The court which determines the proportions of the pecuniary

injuries suffered by the distributees, as provided in subparagraph (1),

shall also decide any question concerning the disqualification of a

parent, under 4-1.4, or a surviving spouse, under 5-1.2, to share in the

damages recovered.

(b) The reasonable expenses of the action or settlement and, if

included in the damages recovered, the reasonable expenses of medical

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

reasonable funeral expenses of the decedent may be fixed by the court

which determines the proportions of the pecuniary injuries suffered by

the distributees, as provided in subparagraph (1), upon notice given in

such manner and to such persons as the court may direct, and such

expenses may be deducted from the damages recovered. The commissions of

the personal representative upon the residue may be fixed by the

surrogate, upon notice given in such manner and to such persons as the

surrogate may direct or upon the judicial settlement of the account of

the personal representative, and such commissions may be deducted from

the damages recovered.

(c) In the event that an action is brought, as authorized in this

part, and there is no recovery or settlement, the reasonable expenses of

such unsuccessful action, excluding counsel fees, shall be payable out

of the assets of the decedent's estate.