In reaching this result in Hernandez, we were careful to limit our analysis to wrongful death actions authorized by EPTL 5–4.1, emphasizing that such claims belong to a decedent’s distributees rather than the estate standing in place of the decedent. For example, we observed that any damages recovered are exclusively for the benefit of the decedent’s distributees and that the cause of action is not part of and bears no legal relationship to decedent’s estate. Moreover, any damages must be measured by the effect of the wrongful act on the distributes, the pecuniary loss suffered by the individual distributees as a result of decedent’s death. In contrast, we noted that a personal injury action brought under EPTL 11–3.2(b) seeks damages for an injury to the decedent and belongs to the estate. Finally, we stressed that in a wrongful death case involving a sole infant distributee, it is the infant child who has suffered any loss recognized by law.
Hence, even though CPLR 208 applies when the person entitled to commence an action is under a disability because of infancy and the person entitled to bring a wrongful death claim under EPTL 5–4.1 is the estate’s personal representative in Hernandez we employed the CPLR 208 toll based on the infancy of the distributee himself. In that unique context, where no personal representative was otherwise available, it was reasonable to look to the distributee’s infancy status because the wrongful death claim belonged to him and would compensate him for damages that he directly sustained as a result of his mother’s death. As we put it, the distributee was the only person whose interests are at stake in bringing this wrongful death action. In effect, we treated the distributee as the plaintiff under the tolling statute because, for all intents and purposes, the claim was his own.
Following Hernandez, Appellate Division case law has consistently declined to extend the toll rule fashioned in Hernandez outside the wrongful death context. These courts recognized that, unlike a wrongful death claim that directly compensates a decedent’s distributees for their own damages, a personal injury claim is designed to compensate the decedent for injuries suffered and is personal to the deceased-in other words, it is a claim assumed by the estate.
In the present case, the Appellate Division acted in accord with these precedents, and we believe it correctly drew a distinction between the two causes of action in holding that Hernandez should be limited to the wrongful death arena. As we explained in Hernandez itself, a wrongful death action belongs to the decedent’s distributees and is designed to compensate the distributees themselves for their pecuniary losses as a result of the wrongful act. The proceeds are paid directly to the distributees in the proportions directed by the court, determined by their respective monetary injuries. In comparison, a personal injury action on behalf of the deceased under EPTL 11–3.2(b) seeks recovery for the conscious pain and suffering of the deceased and any damages awarded accrue to the estate. Such a claim is personal to the deceased and belongs to the estate, not the distributees. The types of damages that are recoverable are different and the calculations of damages for the two claims are based on separate factors.
Moreover, because it is the estate that recovers in a personal injury action, any proceeds will first be applied to outstanding liens, debts or expenses. Only after the obligations of the estate are fulfilled would any remaining funds be paid to beneficiaries or distributees. This is in stark contrast to the damages recoverable in a wrongful death action, where any proceeds are generally not subject to the claims of the estate’s creditors. In short, the two causes of action are predicated on essentially different theories of loss which accrue to different parties.
Unlike the infant distributee in Hernandez, who was the only party that suffered any loss recognized by law as the beneficiary of a wrongful death claim, the infant distributees here do not seek to recover their own damages through a personal injury claim. Rather, they hope to inherit through intestacy any damages that their sister would have been entitled to had she survived. The rationale underlying Hernandez, that a court may take into account the infancy of the distributee because the wrongful death claim belongs to and is for the sole benefit of the distribute, simply does not apply here, despite the sympathetic plight of EP’s siblings. Put differently, the necessary connection between infant distributees and a personal injury action brought on behalf of the deceased under EPTL 11–3.2(b) is missing since such a claim redresses a wrong suffered by the deceased, not the distributees.
Plaintiff nevertheless urges that the tolling rule adopted by Hernandez should apply with equal force to personal injury actions because EPTL 11–3.2(b), like EPTL 5–4.1, authorizes a personal representative to bring the action and, in this case, EP’s siblings would be the ultimate beneficiaries of any damages recovered under either claim. Plaintiff points out that no personal representative existed to bring the personal injury action until her appointment as administrator in October 2006, after the statute of limitations had expired. Despite that unfortunate occurrence, we cannot disregard the fundamental legal distinction between the two causes of action, and the argument of the plaintiff and dissent would result in a rule that is unsupported by the key jurisprudential underpinning of Hernandez, the unique status of a distributee as the direct beneficiary and source of a wrongful death claim.
In fact, it is notable that EPTL 11–3.1, a catchall provision, similarly enables a personal representative to commence all other types of action that survive the decedent’s death. Taken to its logical conclusion, plaintiffs position would result in the application of the CPLR 208 toll to any cause of action belonging to a decedent, adult and infant alike, who leaves only infant distributees. A decedent’s personal claims could potentially be pursued more than a decade later on the basis that an infant distributee would be entitled to any damages recovered by the estate through intestate succession. The adoption of such a rule, impinging on the settled policies underlying statutes of repose, must be made by the Legislature.
We therefore conclude that Supreme Court improperly relied on the CPLR 208 toll to permit a late notice of claim for the personal injury action based on the infancy of the decedent’s siblings. Because the applicable statute of limitations expired before the filing of a late notice of claim, the Appellate Division correctly denied the motion and dismissed the personal injury claim.
Accordingly, the order of the Appellate Division should be affirmed, with costs.