In New York State, a claim for wrongful death is created and governed by the Estates, Powers, and Trusts Law. When surviving family members possess a claim for wrongful death, the estate typically also holds a separate claim in tort, known as a “survival action.” Recently, in Marinos v. Brahaj,1 the Appellate Division, Second Department, addressed whether a deceased man’s parents’ claim for wrongful death was subject to an arbitration provision that he signed with Revel, a company that operated electric moped rentals in New York City.
The plaintiffs sued Revel, individually and on behalf of their son’s estate, after he was killed while operating a Revel moped. In order to sign up for Revel’s service and operate its rental mopeds, the decedent was required to agree to Revel’s terms of service, which included a mandatory arbitration clause. Revel brought a motion to compel arbitration and dismiss the plaintiffs’ claims in New York State court.
The trial court granted Revel’s motion to compel arbitration of all claims against Revel, including the wrongful death claim. The trial court agreed with Revel that the phrase “successors and assigns” in the arbitration clause encompassed the plaintiffs as administrators of their son’s estate. The plaintiffs appealed.
On appeal, Revel argued that the wrongful death claim was derivative, or tethered to, the underlying survival action. The plaintiffs argued that their wrongful death claim was independent of the estate’s survival action and therefore not bound by the arbitration agreement.
The Second Department agreed with the plaintiffs and found that New York State law holds that a wrongful death claim “is a separate and distinct cause of action to redress the injuries suffered by a decedent’s [surviving family] as a result of the decedent’s death.”
Revel argued that arbitration of the wrongful death action should nevertheless be compelled based on the Federal Arbitration Act (FAA), which was enacted by Congress due to state courts’ hesitancy to enforce arbitration agreements. While New York State does have a broad policy in favor of arbitration and is obligated to enforce the FAA in many situations, the court found that the FAA did not apply to the wrongful death claim, as there was never any valid agreement to arbitrate between the plaintiffs and Revel.
Arbitration agreements have become particularly relevant in recent years due to the proliferation of micromobility and ride-hailing firms. Customers of these services are almost always required to sign user agreements that include mandatory arbitration clauses or similar provisions such as forum selection clauses and choice of law clauses. Mandatory arbitration clauses are also common in participation agreements for recreational activities and sporting events. Practitioners should thoroughly review these types of agreements and be prepared to litigate or arbitrate in the appropriate forum.
If you have any questions regarding the content of this alert, please contact Alec Herbert, associate, at aherbert@barclaydamon.com; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense Practice Area.
12025 N.Y. App. Div. LEXIS 3617 (2d Dep’t, June 11, 2025).