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What is a survival action?

You may already be familiar with the cause of action of wrongful death, which can arise whenever a loved one of yours dies as the result of a negligent, reckless or intentional act of another person. But are you aware that there is another potential cause of action that can take place in connection with the death of the same loved one? In New York, this additional potential legal claim is known as a "survival action."

The basis of a survival action is that what "survives" is any cause of action for personal injury that a plaintiff may have, even if the plaintiff dies before the action may be brought or continued against a negligent defendant.

Some unique characteristics of a survival action in New York include:

  • The personal representative of the deceased is charged with bringing a survival cause of action. Any recovery from the defendant would go to the estate of the deceased and not directly to the relatives of that person, making the cause of action on behalf of the estate and not the relatives.
  • If the defendant who caused the personal injury dies before action can be brought or continued against him, the decedent plaintiff's estate can file suit against the estate of the defendant.
  • If the survival action plaintiff's lawsuit is successful, the damages award cannot contain any amount for punitive damages.

Wrongful death and survival actions can both originate from the death of the same individual. For anyone seeking to determine whether either or both of these causes of action is available after the preventable death of a loved one, a personal injury attorney can provide useful assistance.

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