Family’s $2.1M settlement tied up in surrogate court after brother’s Rikers death

This article was originally published on Feb 24 5:00am EST by THE CITY

When the family of a Rikers detainee who died due to botched medical care agreed to settle their lawsuit against New York City for $2.1 million last March, they planned to use some of that money for a family reunion and memorial service to honor their beloved brother. 

Nearly a year later, Joseph Foster’s relatives haven’t gotten a penny from the settlement. 

The money is frozen in the city’s backlogged Surrogate Court system, where all estates without a will are sent before they are distributed to surviving family members.  

“It’s like a second slap in the face,” Foster’s older brother, Wendell Pittman, 66, told THE CITY.

On Dec. 30, 2017, beginning at 7 p.m., Foster, 51, begged for nearly an hour to be taken to a medical clinic inside his housing unit in the Eric M. Taylor Center on Rikers Island, according to jail records and a witness account. He died four days later in Bellevue Hospital. 

The family filed a lawsuit in Bronx Supreme Court in January 2019 arguing that Foster would still be alive if he had been given proper medical care. The family agreed to settle the case against New York City for $2.1 million in March 2022, THE CITY previously previously reported. 

Since then the case has been held up by a clerk assigned to Bronx Surrogate Court Judge Nelida Malave-Gonzalez. The clerk is in the process of making sure the case is in proper order and all the forms have been completed — the first stage in the review process, according to an attorney familiar with the case. 

Meanwhile, the City of New York is technically allowed to cut the check to the family and put it in escrow. But the family can’t receive the money until the distribution is approved by the Surrogate Court, which is established to protect the interest of the deceased, the estate, and possible beneficiaries. 

Surrogate Sorrows

The legal logjam over the settlement money tied to Joseph Foster’s wrongful death is just one example of a backlog of Surrogate Court cases stuck for months, and in some cases years. 

A cousin of Gloria Montague, a Bronx woman who died in 2018 at 88, has waited for more than five years to receive any inheritance, including a large two-bedroom condo and the family’s jewelry collection, THE CITY reported earlier this week. 

In her case, Rose Montague is due to receive just $394,026 of an inheritance initially valued at $762,775 — in large part due to fees taken by the public administrator. 

Those administrators are appointed by a county’s judge to the Surrogate Court to take control of the estates of New Yorkers who die without a will, or without someone willing and qualified to execute their will. 

In Foster’s case, there’s no public administrator, because Pittman has taken on that role as the oldest sibling. Public administrators appointed by the Surrogate Court are typically named when there’s no living relative or a guardian capable of handling the estate. 

When city lawyers offered to settle, Foster’s eight siblings decided to set aside approximately $10,000 each from the total to pay for a family reunion and memorial service in Suffolk, Virginia. That’s the location the family settled on as a middle ground to accommodate all the relatives living throughout the country. 

The money would be used to pay for travel, hotels, food, and t-shirts, according to Pittman. 

“We really wanted to do that for him,” he said. “We were blessed with having him in our lives.” 

The family also wants to honor other members who have died in the past few years, he added. 

A spokesperson for the Office of Court Administration could not immediately answer questions about the case.

Seize the Day

For one sibling, the payment — estimated to be a little more than $150,000 for each — will come too late. 

Brother Greg Foster died in 2019 after suffering a massive heart attack in the parking lot of a 7-Eleven. His share of the estate is expected to be divided between his wife and two surviving children, according to the family lawyer. 

Pittman, a retired truck driver, is worried time is running out for him, as well, as the case drags out in court. 

He has spent the past five days in Montefiore Hospital in The Bron being treated for congenital heart failure, diabetes and high blood pressure. 

“I could not breathe,” he said. “That’s why I got my butt here. With my health and everything I don’t know how much longer I’ll be able to hold out.”

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