In a $1.2 million legal malpractice case against Weitz & Luxenberg, an Albany judge has rejected a bid by the plaintiff’s firm to remove the son of a deceased mesothelioma victim from the case.

Surrogate Stacy Pettit said Monday that the son of mesothelioma victim Gustave Benson could continue as co-administrator of Gustave’s estate for the purpose of bringing the suit, which Weitz had fought against. The ruling is a set back for the law firm two months before the malpractice trial begins.

In the underlying wrongful death case, Weitz helped three children of Benson win settlements totaling almost $1.2 million, after legal fees. But three other half-siblings didn’t share in the money, leading a judge to find Gustave’s daughter Catherine Shufelt, the estate administrator, liable for breaching her fiduciary duty to the estate. She was ordered to pay $598,000.

Shufelt claimed she told a law firm investigator about Robert and his brothers, but after she clarified they were half-siblings, the investigator said, “then we don’t count them,” according to a 2017 decision in the case. She teamed up with half-brother Robert Benson and sued Weitz for malpractice, claiming the law firm was responsible for the error.

With Shufelt’s consent, Benson was named a co-administrator of Gustave’s estate in March 2018 for the purpose of bringing a malpractice suit, according to Pettit’s ruling.

But with two months to go until trial, Weitz sought to have Benson booted from the case, arguing that he didn’t have a sufficient enough relationship—or “a relationship of privity”—with the law firm because it was Shufelt who had retained Weitz back when she was the sole estate administrator, the judge wrote.

In her Monday ruling, Pettit said it was too late for Weitz to object. Even if its objection had been timely, she continued, Robert Benson “has a relationship sufficiently approaching privity with respondent, counsel for the initial estate administrator, to maintain a claim against respondent for professional malpractice.”

“Here, respondent specifically addressed the issue of [Robert] Benson being added as a party in its answer and deferred to the court’s discretion,” she wrote. “If respondent objected to Benson being added as a party, that objection should have been raised in its answer filed in early 2018.”

The judge cited a 2010 ruling by New York’s top court in Estate of Schneider v. Finmann, in which the Court of Appeals established an estate-administration exception to the normal rule that a third party can’t sue an attorney for professional negligence without fraud, collusion, or other special circumstances.

In their malpractice case, Shufelt and Benson are seeking an order that would require Weitz & Luxenberg to pay nearly $1.2 million to their father’s estate for distribution to Robert Benson and his siblings, according to Pettit’s decision.

Frederick M. Altman, an attorney who represents Shufelt and who runs his own firm, and Michael Basile of Higgins, Roberts & Suprunowicz, who represents Benson, didn’t respond to comment requests.

Weitz & Luxenberg’s attorney in the malpractice case, Peter Moschetti of Anderson, Moschetti & Taffany, didn’t respond to a request for comment. Neither did a spokeswoman for the firm.