2010 New York Code
EPT - Estates, Powers & Trusts
Article 5 - FAMILY RIGHTS
Part 4 - (5-4.1 - 5-4.6) RIGHTS OF MEMBERS OF FAMILY RESULTING FROM WRONGFUL ACT, NEGLECT OR DEFAULT CAUSING DEATH OF DECEDENT
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.