Recently, the Second Department’s Decision in Marinos v. Brahaj, 2025 N.Y. Slip Op. 03561 [2d Dept., June 11, 2025], established a notable precedent narrowing the scope of binding arbitration clauses in wrongful death actions. This decision provides plaintiff administrators—including family members and other distributees—with direct access to New York courts when asserting wrongful death claims based on their individual rights as survivors.
BACKGROUND
In September 2021, Plaintiffs’ son [“Decedent”] was killed while operating an electric moped he had rented through Revel, an app-based electric vehicle rideshare platform. While traveling at the intersection of 1st Avenue and 47th Street in Manhattan, he was ejected from the moped and struck by an oncoming vehicle, sustaining fatal injuries. Like most online platforms, Revel requires users to accept a series of terms and conditions through a click-through process. Embedded within these terms is an arbitration clause, which can limit users’ ability to bring disputes before a court.
The Supreme Court, Kings County (Carolyn E. Wade, J.) denied Plaintiffs’ motion to stay arbitration in a wrongful death action against the Revel defendants [“Revel”] and granted Revel’s cross-motion to compel arbitration, finding that Plaintiffs, as court-appointed administrators of Decedent’s estate, were bound by his agreement to arbitrate. The primary question before the Appellate Division, Second Department [“Court”] was whether a wrongful death action arising from the same facts as a negligence claim and brought by a decedent’s administrator in their individual capacity is subject to an arbitration clause agreed to by the decedent. In this matter of first impression, the Court held that Plaintiffs’ wrongful death action was not subject to the arbitration clause.
In doing so, the Court set a significant precedent that will allow bereaved plaintiff administrators—once constrained by click-through arbitration agreements—new access to the New York courts.
Wrongful Death Actions as “Separate and Distinct”
The Court held that a wrongful death action is not derivative of a decedent’s own negligence claim, but rather a separate and distinct cause of action to redress the injuries suffered by distributees resulting from the decedent’s death. Specifically, a wrongful death action arises from a property right vested in and belonging solely to a decedent’s distributees. Here, the Plaintiffs serve dual roles: as estate administrators and as the decedent’s distributees. In the latter capacity, they hold individual rights to pursue wrongful death claims under EPTL § 5-4.1(1).
The Court explains that unlike a personal-injury action, which is brought to compensate a decedent’s estate for the pain and suffering incident to the injury, a wrongful death action is brought by distributees to redress their financial and emotional losses as survivors.
The principle is illustrated by the Court in distinguishing two cases standing for the proposition that representatives of a decedent suing on behalf of a decedent’s estate are subject to arbitration agreements entered into by the decedent (see, Wolf v. Wahba, 164 Ad3d 1405 [2d Dept., 2018]; Matter of Kalikow, 58 Ad3d 846 [2d Dept., 2009]). That rule is not challenged, but rather, a wholly different situation is presented here: an estate administrator who is also a distributee with a separate, independent cause of action.
The Court further held that the Federal Arbitration Act [“FAA”] does not apply here. Despite its broad preemptive scope, the threshold question remains whether there is a valid agreement to arbitrate. Here, the Court emphasized, no agreement to arbitrate exists between the Plaintiffs and Revel. In the absence of such an agreement, the FAA is inoperative.
Jurisdictional Split
The Marinos decision places New York on one side of a growing jurisdictional split. State courts in Delaware and Pennsylvania, as well as the Sixth Circuit interpreting Kentucky law, have joined in treating wrongful death claims as independent causes of action belonging to survivors, not the estate. However, federal circuits interpreting Massachusetts, New Mexico, and Florida law have reached the opposite conclusion, leaving wrongful death claims subject to the decedent’s arbitration agreements.
CONCLUSION
The Marinos decision arrives at a critical moment for consumer protection in the digital age. Revel’s business model—app-based vehicle sharing with mandatory arbitration clauses buried in click-through agreements—represents a broader trend across the digital economy. Companies have made arbitration clauses standard practice, often leaving consumers with little choice but to accept these terms to access mainstream services. This engenders and perpetuates a stark imbalance when these massive corporations cause injury and are called to account.
While the breadth of this new precedent is still evolving, it represents an important data point in how courts will balance innovation and consumer protection. The Second Department’s approach in Marinos—focusing on the fundamental nature of the legal right at issue—may provide a framework for future decisions in this developing area of law.
- Napoli Shkolnik, PLLC (Joseph Napoli, Esq.) represented plaintiffs at trial.
- Horn Appellate Group (Scott T. Horn, Esq. and Lauren E. Bryant, Esq.) represented plaintiffs on appeal.