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Delay in Filing Documents Leads to Monetary Loss for Estate


This is an appeal case being heard in the Second Department Appellate Division of the Supreme Court. The plaintiffs in the case are James P. Johnson III, et al. The defendant in the case is Murray Berger. The case also has Neil R. Gerst et al., as third party defendants, plaintiffs-appellants. Kenneth Murphy et al., are the third party defendants and respondents. The defendants, third-party plaintiffs-appellants are represented by Chesney, Murphy & Moran, Westbury. The third party defendant-respondent Kenneth Murphy is represented by Gabor & Gabor with Hope Senzer Gabor for counsel. The third party defendants-respondents Gary Darche is represented by both Koopersmith, Feigenbaum & Potruch and DiMascio, Meisner & Koopersmith.


The defendant’s third party plaintiffs are seeking an appeal from an order made by the Queens County Supreme Court involving a case of legal malpractice. A New York Probate Lawyer said the original order granted the motions for summary judgment for the dismissal of the case in favor of the third party defendants. The order dismissed all of the third party complaints that were asserted against each of them.

Case History

The litigation in this case arises from legal malpractice allegations that were committed in connection with the probate and administration of the estate of Clara Johnson. Clara Johnson passed away on the 22nd of January in 1979. She was survived by her one son, James P. Johnson. At the time of his mother’s passing, James was a student at a private boarding school. Clara Johnson left her entire estate to her son and nominated Murray Berger, her attorney, as the trustee and executor.

Shortly after Clara Johnson passed away, Berger retained the defendant law firm, Boxer, Gerst & Morse for probate of the will and to administer the affairs of the estate. However, the firm did not file a petition for probate until June of 1982. This neglect caused the estate to lose many assets including the home in North Amityville, which was sold in a tax-forfeiture sale to the County. The County eventually sold the property to independent purchasers in August of 1986.

Kenneth Murphy took the plaintiff into his home after his mother’s death. In 1985, he retained the Koopersmith Firm to try and salvage the remains of the estate. Murphy was appointed as the temporary administer for the estate in 1986. A Queens Probate Lawyer said the law firm informed Murphy that the premises of the decedent were irrevocably forfeited to the county. Murphy then began a legal malpractice suit against the Berger and Boxer firm.

Case Discussion and Order

This court finds that the Supreme Court properly dismissed the third party complaint in this case. This is pursuant to the local law that was in effect in 1985 when the property was sold to the County. It is felt that the Koopersmith firm and Darche both acted with reasonable care, skill, and attention in regard to the interests of the plaintiffs.

A Staten Island Probate Lawyer said the court affirms the previous order with a bill of costs to the respondents to appear separately and to be filed as separate briefs.

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