N.Y. EPT Law § 5-4.4

§ 5-4.4 Distribution of damages recovered\n (a) The damages, as prescribed by 5-4.3, whether recovered in an\naction or by settlement without an action, are exclusively for the\nbenefit of the decedent's distributees and, when collected, shall be\ndistributed to the persons entitled thereto under 4-1.1 and 5-4.5,\nexcept that where the decedent is survived by a parent or parents and a\nspouse and no issue, the parent or parents will be deemed to be\ndistributees for purposes of this section. The damages shall be\ndistributed subject to the following:\n (1) Such damages shall be distributed by the personal representative\nto the persons entitled thereto in proportion to the pecuniary injuries\nsuffered by them, such proportions to be determined after a hearing, on\napplication of the personal representative or any distributee, at such\ntime and on notice to all interested persons in such manner as the court\nmay direct. If no action is brought, such determination shall be made\nby the surrogate of the county in which letters were issued to the\nplaintiff; if an action is brought, by the court having jurisdiction of\nthe action or by the surrogate of the county in which letters were\nissued.\n (2) The court which determines the proportions of the pecuniary\ninjuries suffered by the distributees, as provided in subparagraph (1),\nshall also decide any question concerning the disqualification of a\nparent, under 4-1.4, or a surviving spouse, under 5-1.2, to share in the\ndamages recovered.\n (b) The reasonable expenses of the action or settlement and, if\nincluded in the damages recovered, the reasonable expenses of medical\naid, nursing and attention incident to the injury causing death and the\nreasonable funeral expenses of the decedent may be fixed by the court\nwhich determines the proportions of the pecuniary injuries suffered by\nthe distributees, as provided in subparagraph (1), upon notice given in\nsuch manner and to such persons as the court may direct, and such\nexpenses may be deducted from the damages recovered. The commissions of\nthe personal representative upon the residue may be fixed by the\nsurrogate, upon notice given in such manner and to such persons as the\nsurrogate may direct or upon the judicial settlement of the account of\nthe personal representative, and such commissions may be deducted from\nthe damages recovered.\n (c) In the event that an action is brought, as authorized in this\npart, and there is no recovery or settlement, the reasonable expenses of\nsuch unsuccessful action, excluding counsel fees, shall be payable out\nof the assets of the decedent's estate.\n