An analogous question reviewed in Coniglio v Dansker & Aspromonte Assoc. 2025 NY Slip Op 06154 Decided on November 12, 2025 Appellate Division, Second Department is when does the new representation start?

“In 2015, the plaintiff commenced an action to recover damages for podiatric malpractice (hereinafter the underlying action). The underlying action was commenced on the plaintiff’s behalf by the defendants Dansker & Aspromonte Associates, Salvatore Aspromonte, Paul D. Dansker, Douglas Hoffer, and Raymond Maceira (hereinafter collectively the Dansker defendants). In an order dated September 23, 2016, the plaintiff was directed to file a note of issue no later than January 31, 2017. The plaintiff failed to file the note of issue by the January 31, 2017 deadline, and the underlying action was marked disposed. The plaintiff’s motion to restore the underlying action to the active calendar was granted in an order dated April 24, 2017, and the plaintiff was directed to file a note of issue by September 20, 2017. The plaintiff failed to file a note of issue by that deadline and the underlying action was marked disposed as of October 6, 2017.

On June 20, 2018, a consent to change attorney was executed by the plaintiff, the Dansker defendants, and the defendants William Schwitzer & Associates, P.C., and William Schwitzer (hereinafter together the Schwitzer defendants), whereby the Schwitzer defendants were substituted as attorneys of record for the plaintiff in place of the Dansker defendants. In October 2019, the plaintiff moved, inter alia, to have the underlying action restored to the active calendar. This motion was denied, with leave to renew, based on the plaintiff’s failure to include an affidavit of merit. In June 2020, the plaintiff again moved to restore the underlying action to the active calendar. In an order dated October 27, 2021, the Supreme Court denied the plaintiff’s motion and directed dismissal of the underlying action with prejudice. A judgment was subsequently entered on November 17, 2021. On December 9, 2021, the Schwitzer defendants filed a notice of appeal from the order dated October 27, 2021, on the plaintiff’s behalf. Thereafter, the Schwitzer defendants moved, among other things, for leave to withdraw as counsel for the plaintiff in the underlying action.”

“In November 2022, the plaintiff commenced the instant action to recover damages for legal malpractice, fraud, breach of fiduciary duty, and violations of Judiciary Law § 487 against the Dansker defendants, the Schwitzer defendants, and the defendants Demidchik Law Firm, PLLC, and Anna Demidchik (hereinafter together the Demidchik defendants), which the plaintiff alleged had represented him “at a point in time which remains unknown.” The Demidchik defendants moved pursuant to CPLR 2004 to extend their time to appear and answer the complaint and the Demidchik defendants, the Schwitzer defendants, and the Dansker defendants separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. In an order dated October 4, 2023, the Supreme Court granted the separate motions. The plaintiff appeals.”

“Here, the Supreme Court properly directed dismissal of the plaintiff’s legal malpractice cause of action insofar as asserted against the Demidchik defendants (see AG Capital [*2]Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595; Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d at 648; Siemsen v Mevorach, 160 AD3d at 1005). The plaintiff’s unilateral belief that he was represented by the Demidchik defendants despite his admission that it was impossible to determine whether they had ever represented him was insufficient to establish an attorney-client relationship (see Volpe v Canfield, 237 AD2d at 283; cf. Shan Yun Lin v Lau, 210 AD3d 817, 818; Willoughby Rehabilitation & Health Care Ctr., LLC v Webster, 190 AD3d 887, 889). Further, with respect to the Demidchik defendants, the allegations of the complaint failed to allege actual, ascertainable damages that resulted from the Demidchik defendants’ alleged negligence (see Guliyev v Banilov & Assoc., P.C., 221 AD3d at 590-591; Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d 714, 716).

The Supreme Court also properly directed dismissal of the plaintiff’s legal malpractice cause of action insofar as asserted against the Schwitzer defendants. Viewing the complaint in the light most favorable to the plaintiff (see Leon v Martinez, 84 NY2d at 87-88), it fails to plead specific factual allegations demonstrating that but for the Schwitzer defendants’ alleged negligence, the plaintiff would have prevailed in the underlying action (see Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d at 649; Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1505).

The Supreme Court properly directed dismissal of the plaintiff’s legal malpractice cause of action insofar as asserted against the Dansker defendants pursuant to CPLR 3211(a)(5) (see id. § 214[6]; Farage v Ehrenberg, 124 AD3d 159, 165). The Dansker defendants established that the statute of limitations expired on June 20, 2021, three years after the consent to change attorney was executed, and that they did not act on behalf of the plaintiff in the underlying action after the consent was signed (see CPLR 321[b]; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1086). The plaintiff failed to raise a question of fact in opposition “as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period” (Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086 [internal quotation marks omitted]).”