“Wrongful Death Claims Stand Alone”
Marinos v. Brahaj (2025) and the Non-Arbitrability of Distributees’ Wrongful-Death Actions in New York

1. Introduction

Marinos v. Brahaj, 2025 NY Slip Op 03561, decided by the Appellate Division, Second Department on 11 June 2025, resolves a question never before squarely addressed by New York’s appellate courts: Does a click-wrap arbitration clause signed by a decedent compel the decedent’s distributees to arbitrate their own wrongful-death claim?

The plaintiffs—George Marinos and Josephine Belli-Marinos—are the parents and court-appointed administrators of their son, Andreas N. Belli-Marinos (“the decedent”), who died after an accident involving a Revel electric moped and a vehicle driven by Astrit Brahaj. Revel Transit, Inc. and two of its corporate officers (“the Revel defendants”) invoked an arbitration clause contained in Revel’s user agreement, arguing that it bound not only the decedent’s estate but also the parents’ wrongful-death cause of action stemming from the same event. The Supreme Court, Kings County (Wade, J.), agreed and compelled arbitration. On appeal, the Second Department reversed in part, holding that the parents’ wrongful-death claim is a distinct, independent cause of action that does not fall within the arbitration agreement.

The ruling sets a precedent of considerable practical import for consumer-contract arbitration in New York. It confirms that where wrongful-death claims are pursued by distributees in their own right, they are beyond the contractual reach of arbitration provisions executed solely by the decedent—unless the distributees themselves have separately assented to arbitrate.

2. Summary of the Judgment

The court (McCormack, J., writing; Dillon, Wooten, and Taylor, JJ., concurring) held:

• Stay Granted / Compel Denied: The order of the Supreme Court is reversed insofar as it compelled arbitration of the wrongful-death cause of action. Arbitration is stayed, and litigation on that claim may proceed in the Supreme Court.
• Separate Nature of Wrongful-Death Claims: Under EPTL § 5-4.1, a wrongful-death cause of action vests in the distributees at the moment of death and compensates them for their own pecuniary loss; it is therefore independent of any negligence or survival claims belonging to the estate.
• No Agreement to Arbitrate: Because the parents, suing individually, never agreed to arbitrate with Revel, the “clear, explicit and unequivocal” consent needed to waive the right to sue in court was absent.
• FAA Irrelevant: The Federal Arbitration Act (FAA) does not override the absence of an agreement. Its role is to enforce existing arbitration contracts, not to create them.
• Pure Issue of Law Considered on Appeal: Even though plaintiffs advanced the “independence” theory for the first time on appeal, the court reached it because it presented a pure question of law apparent on the record.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

1. McDaniel v. Clarkstown CSD No. 1, 110 A.D.2d 349 (2d Dep’t 1985) – Foundational New York precedent establishing that wrongful-death claims are independent of survival actions. The Marinos court relies on McDaniel’s clear exposition of the two actions’ different beneficiaries, measures of damages, and accrual dates.
2. Carter v. NYC H&H Corp., 47 A.D.3d 661 (2d Dep’t 2008) – Quoted for the proposition that wrongful-death claims are property rights “belonging solely to the distributees” and vest at death.
3. Federal and sister-state cases splitting on the derivative/independent question:
   • Independent camp: Lucia v. Bridge Senior Living, LLC (Del. Super. Ct. 2024); Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. Ct. 2013); Richmond Health Facilities v. Nichols, 811 F.3d 192 (6th Cir. 2016).
   • Derivative camp: GGNSC Admin. Servs., LLC v. Schrader, 958 F.3d 93 (1st Cir. 2020) (Massachusetts law); THI of N.M. at Hobbs Ctr. v. Spradlin, 532 F. App’x 813 (10th Cir. 2013) (New Mexico law); Laizure v. Avante at Leesburg, Inc., 109 So.3d 752 (Fla. 2013).
   The court cites these to show a national divide, then chooses the “independent” approach consistent with New York precedent.
4. General New York arbitration principles:
   • Sisters of St. John the Baptist v. Geraghty Constructor, 67 N.Y.2d 997 (1986) – Courts decide, in the first instance, whether parties agreed to arbitrate.
   • Glauber v. G & G Quality Clothing, Inc., 134 A.D.3d 898 (2d Dep’t 2015) – Arbitration consent must be “clear, explicit and unequivocal.”
   • Revis v. Schwartz, 192 A.D.3d 127 (2d Dep’t 2020), aff’d, 38 N.Y.3d 939 (2022) – Discusses FAA pre-emption but underscores that the threshold issue is always the existence of an agreement.

3.2 Court’s Legal Reasoning

The reasoning proceeds in five logical steps:

1. Identify the nature of the claim – Wrongful-death actions under EPTL § 5-4.1 accrue at death and belong to “distributees,” not to the estate.
2. Determine contractual privity – The distributees (parents) never assented to Revel’s arbitration clause. The “successors and assigns” language cannot extend to parties asserting their own independent rights.
3. Apply New York’s strong-but-not-unlimited pro-arbitration policy – Courts favor arbitration when parties have clearly agreed to it, but will not compel non-signatories absent a recognized equitable doctrine (e.g., estoppel), none of which applied here.
4. Distinguish survival vs. wrongful-death claims – Survival (estate) claims remain subject to arbitration; only the parents’ personal claim is carved out. The court preserves the contract where it legitimately applies while protecting non-consenting parties.
5. Reject FAA pre-emption argument – Without an agreement between Revel and the parents, the FAA has no “hook.” It enforces contracts; it does not supply them.

3.3 Anticipated Impact

This decision will likely reverberate through several legal and commercial arenas:

• Consumer Digital Contracts – Companies utilizing click-wrap or browse-wrap arbitration clauses (e-scooter, car-share, rideshare, and other platform services) must now consider that those clauses may not encompass wrongful-death claims. Insurers and risk managers may respond by redesigning user agreements or requiring separate consents from “heirs and assigns,” though enforceability of such anticipatory waivers is uncertain.
• Litigation Strategy – Plaintiffs’ attorneys in tort cases will scrutinize the distinction between estate and distributees’ claims to avoid arbitration and jury-trial waivers. Defendants will have to evaluate early whether the wrongful-death component can be severed from arbitrable survival claims.
• Judicial Economy – Parallel proceedings may proliferate: survival actions in arbitration, wrongful-death claims in court. The Legislature or courts may revisit consolidation mechanisms.
• New York’s Place in National Split – The decision plants New York firmly in the “independent claim / non-arbitrable absent personal assent” column, influencing multi-state litigation calculus and possibly teeing the issue up for future Court of Appeals or Supreme Court review.

4. Complex Concepts Simplified

• Survival vs. Wrongful-Death Claim – A survival claim (a/k/a personal injury or negligence action) belongs to the estate and seeks damages the decedent could have recovered had they lived (pain, suffering, medical bills). A wrongful-death claim belongs to the decedent’s distributees (usually close family) and seeks their own economic loss (lost support, services, inheritance).
• Distributees – Family members entitled to inherit where there is no will. Parents are distributees if the decedent left no spouse or children (EPTL § 4-1.1).
• Arbitration Clause – A contractual term requiring disputes to be resolved by a private arbitrator rather than a court. Enforceable only against parties who clearly agreed.
• Federal Arbitration Act (FAA) – A federal statute ensuring the enforceability of arbitration agreements in contracts involving interstate commerce. It does not force arbitration where no agreement exists.
• “Successors and Assigns” – Legal shorthand in contracts indicating that the agreement binds parties who legally step into the shoes of the signatory (e.g., a merged corporation). It does not automatically capture individuals holding independent statutory rights.
• Pure Question of Law on Appeal – An issue that can be resolved solely by legal analysis without reference to new facts. Appellate courts may entertain such issues even if not argued below.

5. Conclusion

Marinos v. Brahaj cements a critical boundary around contractual arbitration in New York: a decedent cannot waive the courtroom rights of relatives who later pursue their own wrongful-death claim. The court grounded its holding in the long-standing view that wrongful-death actions are independent, statutorily conferred rights that accrue only upon death and belong exclusively to distributees. Absent their express, unequivocal consent, distributees retain access to the courts notwithstanding any arbitration agreement executed by the decedent.

Going forward, businesses employing mass-market arbitration clauses should reassess whether and how those clauses might be extended — if at all — to future wrongful-death plaintiffs. Litigators must likewise parse survival and wrongful-death components at the outset of a case. Finally, this decision adds New York’s influential voice to a national debate and may shape future judicial and legislative treatment of arbitration’s reach in the context of statutory wrongful-death schemes.