When you’ve been injured, or lost a loved one, because of someone else’s negligence, understanding what you can actually recover matters enormously.
Lawyers talk about “damages,” but not all damages are treated the same way. New York splits them into two categories, pecuniary and non-pecuniary, and which one applies can determine whether a family recovers full compensation or something far more limited than they expected.
Prior results do not guarantee a similar outcome.
What Are Pecuniary Damages?
Pecuniary damages are economic losses, the kind you can prove with a bill, a pay stub, or a receipt.
Medical expenses, from emergency treatment through future surgeries and ongoing care
Lost wages, including bonuses, raises, and benefits you would have earned
Lost earning capacity, when an injury limits what you can earn going forward, often requiring economist and vocational expert testimony
Property damage, a totaled car, damaged personal belongings
Funeral and burial expenses, in wrongful death cases specifically
Household services, when childcare, housekeeping, or home maintenance the injured or deceased person provided now has to be paid for
The common thread is that each of these ties to an actual number you can document and defend.
What Are Non-Pecuniary Damages?
Non-pecuniary damages compensate for harm that doesn’t come with a price tag.
Pain and suffering, both the physical pain of the injury and the emotional distress that comes with it
Emotional distress, including anxiety, depression, and PTSD that can follow a serious accident
Loss of enjoyment of life, when an injury takes away activities that mattered to you
Disfigurement and scarring, which carry psychological and social consequences beyond any medical bill
Loss of consortium, a spouse’s claim for the loss of companionship, intimacy, and support when their partner is seriously injured
These are harder to prove because there’s no invoice for pain. They require testimony, medical evidence, and a genuine account of how the injury changed your life.
Why Does New York Limit Wrongful Death Damages to Pecuniary Losses Only?
In an ordinary personal injury case, New York lets you recover both pecuniary and non-pecuniary damages, medical bills and lost wages alongside pain, suffering, and diminished quality of life.
Wrongful death is different. Under EPTL Section 5-4.3, damages in a wrongful death case are limited to “fair and just compensation for the pecuniary injuries resulting from the decedent’s death.” That means economic losses only, the financial support and services the family lost, not their grief.
This rule traces back to New York’s original 1847 wrongful death statute, and the core limitation hasn’t meaningfully changed since.
In practice, recoverable pecuniary injuries include the financial support the deceased would have provided, the value of household services they performed, lost inheritance, and reasonable funeral expenses, all proven with the same kind of documentation and expert testimony used in personal injury cases.
There’s one narrow exception. If the person survived for any period between the injury and death, the estate can bring a separate claim under EPTL Section 11-3.2 for the decedent’s own conscious pain and suffering during that time.
This belongs to the estate, not the family, and compensates for what the person experienced before dying, not what the family has suffered since.
How Do You Prove Each Type of Damage?
Pecuniary damages are proven with paper:
Itemized medical bills
Pay stubs and tax returns
Repair estimates
Expert testimony from economists or vocational specialists when future losses are involved
The more documentation you have, the stronger this part of your claim.
Non-pecuniary damages are proven differently:
Your own testimony about how the injury has changed your daily life
Medical and mental health records supporting the nature and severity of your pain or distress
Testimony from family, friends, and coworkers who can describe what you were like before and after
Photographs and videos showing visible injuries or the practical impact of your limitations, which can make an abstract loss concrete for a jury
One recent, narrow exception to New York’s otherwise uncapped non-economic damages is worth flagging if your case involves a car accident.
Under a May 2026 amendment to Insurance Law Section 5104(d), a claimant who was at fault for a motor vehicle accident and was driving without required insurance, was convicted of impaired driving, or was convicted of a felony committed while driving at the time, has their own non-economic damages capped at $100,000.
This cap applies only to that specific claimant’s own recovery, doesn’t touch economic damages like medical bills, and by its own terms doesn’t apply to wrongful death actions at all.
Are Pain and Suffering Damages Taxable?
Generally, no. Under 26 U.S.C. Section 104(a)(2), compensation for a physical injury or physical sickness is excluded from gross income, and that exclusion covers both your economic damages and your pain and suffering, as long as both stem from that physical injury.
There are exceptions worth knowing: punitive damages are taxable even in an otherwise tax-free physical injury case, and emotional distress damages are generally taxable unless they’re tied to a physical injury or sickness.
If you deducted medical expenses on a prior tax return and later recover those same expenses in a settlement, you may need to report part of that recovery as income under what’s called the tax benefit rule.
This area gets complicated quickly, and it’s worth a conversation with a tax professional for any significant recovery.
What Are the Key Deadlines That Apply?
Situation | Deadline | Rule |
|---|---|---|
Personal injury claim | 3 years from the date of injury | |
Wrongful death claim | 2 years from the date of death | |
Notice of claim if a government entity was involved | 90 days |
Is New York About to Change This Rule?
For years, the Legislature has passed a bill known as the Grieving Families Act, which would amend EPTL 5-4.3 to allow recovery for grief, anguish, and loss of companionship in wrongful death cases, not just economic loss.
It has passed both houses of the Legislature with overwhelming margins four times, most recently by a 51-10 Senate vote and a 131-13 Assembly vote in 2025, and Governor Hochul has vetoed it four times, most recently on December 5, 2025, just days after the bill reached her desk.
As of this writing, no fifth version has reached the Governor, and EPTL 5-4.3 still limits wrongful death recovery to pecuniary losses. Each version of the bill has included a provision applying retroactively to deaths occurring on or after a specified date if it ever becomes law.
Given how often this has come up for a vote, it’s worth confirming the current status with an attorney rather than assuming the law hasn’t moved, since this is exactly the kind of reform that could change with little notice.
Summing It Up
The difference between pecuniary and non-pecuniary damages comes down to whether a loss can be measured in dollars. In a personal injury case, New York lets you recover both, your financial losses and the physical, emotional, and personal toll of the injury.
In a wrongful death case, the law is far more restrictive, limiting families to provable economic losses and leaving grief and loss of companionship uncompensated, at least for now.
Porter Law Group has built its reputation on trial-tested representation for injured New Yorkers and grieving families navigating these exact questions, and our attorneys work on a contingency fee basis, meaning you pay nothing unless we win.
If you’ve been seriously injured or lost a loved one because of someone else’s negligence, reach out to discuss what happened and what compensation may be available to you.
Call 833-PORTER9 or email info@porterlawteam.com to schedule a free consultation.
Prior results do not guarantee a similar outcome.
Frequently Asked Questions
Can you recover for grief in a New York wrongful death case?
Not currently. EPTL 5-4.3 limits recovery to pecuniary, or economic, losses, which excludes grief, sorrow, and loss of companionship. A bill called the Grieving Families Act would change this, but it has been vetoed four times as of this writing, most recently in December 2025.
Are punitive damages available in a New York wrongful death case?
Sometimes. Under EPTL 5-4.3(b), punitive damages can be awarded for deaths occurring on or after September 1, 1982, if they would have been available had the person survived. These sit outside the pecuniary and non-pecuniary framework entirely, since they’re meant to punish the defendant rather than compensate the family.
Can funeral costs be recovered in a wrongful death case?
Yes. Reasonable funeral and burial expenses are specifically treated as pecuniary damages under EPTL 5-4.3, provided they’re appropriate for the family’s circumstances.
What happens if my loved one survived for a period of time before passing?
The estate may be able to bring a separate claim under EPTL 11-3.2 for the decedent’s own conscious pain and suffering during that time, distinct from the family’s wrongful death claim.
Are pain and suffering damages taxable in New York?
Generally no, as long as they stem from a physical injury or sickness, under federal tax law. Punitive damages remain taxable even in a physical injury case, and emotional distress damages not tied to a physical injury are generally taxable too.
How much does a personal injury or wrongful death lawyer cost in New York?
Most plaintiff-side attorneys, including Porter Law Group, work on a contingency fee basis. You pay nothing upfront, and there is no fee unless the firm recovers compensation on your behalf.
This article is for informational purposes only and does not constitute legal advice. Attorney advertising. Prior results do not guarantee similar outcomes.
