Introduction

This appeal arises from a multi-defendant legal malpractice action brought by a plaintiff whose underlying podiatric malpractice case was twice marked disposed for failure to file a note of issue and later dismissed with prejudice. The plaintiff sued three sets of lawyers who served at different points: (1) Dansker & Aspromonte Associates and individual attorneys associated with that firm (the Dansker defendants), who initially commenced the underlying action; (2) William Schwitzer & Associates, P.C., and William Schwitzer (the Schwitzer defendants), who were substituted as counsel by a written consent; and (3) Demidchik Law Firm, PLLC, and Anna Demidchik (the Demidchik defendants), whom the plaintiff alleged had represented him “at a point in time which remains unknown.”

After the Supreme Court, Kings County, granted the defendants’ motions to dismiss and extended the Demidchik defendants’ time to appear and answer under CPLR 2004, the plaintiff appealed. The Second Department affirmed in full. The opinion provides a crisp reaffirmation—and practical clarification—of three recurring cornerstones in New York legal malpractice litigation:

• Accrual and limitations: The three-year statute of limitations under CPLR 214(6) against outgoing counsel is measured from the termination of representation, which the court pegged to a written consent to change attorney and the cessation of further acts by the outgoing firm.
• Privity and relationship: A unilateral belief by a client does not establish an attorney–client relationship; objective manifestations or a basis for reasonable reliance are required.
• Pleading sufficiency: Plaintiffs must plead “but-for” causation and actual, ascertainable damages; duplicative fraud and fiduciary duty claims do not survive repackaging; Judiciary Law § 487 claims require particularized allegations.

Summary of the Opinion

The Second Department affirmed the Supreme Court’s order:

• Demidchik defendants: Dismissal of legal malpractice was proper because the complaint did not plausibly allege an attorney–client relationship and failed to plead actual, ascertainable damages attributable to these defendants. The court also affirmed the extension of time to appear and answer under CPLR 2004.
• Schwitzer defendants: Dismissal of legal malpractice was proper for failure to plead specific facts showing that, but for their alleged negligence, the plaintiff would have prevailed in the underlying action or avoided damages.
• Dansker defendants: Legal malpractice claims were time-barred under CPLR 214(6): the statute ran three years from June 20, 2018, the date of the executed consent to change attorney, after which Dansker took no action for the plaintiff. The plaintiff failed to show tolling or an exception. The claims for breach of fiduciary duty and fraud were duplicative of malpractice, and the Judiciary Law § 487 claim was dismissed for lack of particularity.

The court applied CPLR 3211 standards, including the failure-to-state-a-claim test (CPLR 3211[a][7]) and the statute-of-limitations defense (CPLR 3211[a][5]), and reiterated the high bar for documentary evidence under CPLR 3211(a)(1).

Analysis

Precedents Cited and Their Role

• Pleading standard on a motion to dismiss: Leon v Martinez (84 NY2d 83, 87–88) and Ofman v Richland (234 AD3d 865, 866) set the baseline: accept the complaint’s allegations as true and draw favorable inferences. Where evidentiary material is considered, the inquiry becomes whether the plaintiff has a cause of action, not merely whether one is stated; dismissal is warranted only if a material fact alleged “is not a fact at all.” The opinion also references Kastin v GEICO Gen. Ins. Co. (190 AD3d 710, 711–712) and Pacific W., Inc. v E & A Restoration, Inc. (178 AD3d 834, 835) for this conversion nuance.
• Documentary evidence: Dellwood Dev., Ltd. v Coffinas Law Firm, PLLC (233 AD3d 752, 754), quoting Maursky v Latham (219 AD3d 473, 475), underscores that documentary evidence must “utterly refute” the allegations to warrant dismissal under CPLR 3211(a)(1). Here, documentary proof (including the consent to change attorney) supported the statute of limitations ruling against the Dansker defendants.
• Elements of legal malpractice: Lambro Indus., Inc. v Gilbert (233 AD3d 765, 767), Katsoris v Bodnar & Milone, LLP (186 AD3d 1504, 1505), Guliyev v Banilov & Assoc., P.C. (221 AD3d 589, 590–591), and Mid City Elec. Corp. v Peckar & Abramson (214 AD3d 646, 648–649) supply the familiar elements: (1) deviation from ordinary reasonable skill and knowledge; (2) proximate cause of actual, ascertainable damages; and (3) an attorney–client relationship. Mid City also restates the “but for” causation requirement.
• Attorney–client relationship (privity): AG Capital Funding Partners, L.P. v State St. Bank & Trust Co. (5 NY3d 582, 595), Mid City Elec. Corp. (214 AD3d at 648), Siemsen v Mevorach (160 AD3d 1004, 1005), and Volpe v Canfield (237 AD2d 282, 283) inform the court’s holding that a unilateral belief is insufficient. The court contrasted circumstances where a relationship can be implied through conduct (cf. Shan Yun Lin v Lau, 210 AD3d 817, 818; Willoughby Rehabilitation & Health Care Ctr., LLC v Webster, 190 AD3d 887, 889).
• Statute of limitations and termination of representation: CPLR 214(6) imposes a three-year limitations period for legal malpractice. The court relied on Quinn v McCabe, Collins, McGeough & Fowler, LLP (138 AD3d 1085, 1086) and CPLR 321(b) to measure accrual from the end of representation, pegged to a written consent to change attorney, and the absence of further acts by the former counsel. Farage v Ehrenberg (124 AD3d 159, 165) is also cited for accrual/timeliness principles.
• Duplicative claims: Waggoner v Caruso (14 NY3d 874, 875), Weiss v Manfredi (83 NY2d 974, 977), and DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP (189 AD3d 774, 775) stand for the proposition that fraud and fiduciary-duty claims arising from the same facts and seeking the same damages as a malpractice claim are duplicative and subject to dismissal.
• Judiciary Law § 487: CPLR 3016(b) requires particularized pleading of attorney deceit. DeMartino (189 AD3d at 776), Sammy v Haupel (170 AD3d 1224, 1225), and Rozen v Russ & Russ, P.C. (76 AD3d 965, 968) confirm that generalized, conclusory allegations do not suffice.

Legal Reasoning Applied to Each Set of Defendants

1) The Demidchik Defendants: No Attorney–Client Relationship; No Damages

The plaintiff’s theory was internally contradictory: he pled a “unilateral belief” that the Demidchik defendants represented him while acknowledging it was “impossible to determine” whether they had ever done so. The court held this is insufficient to establish privity. Objective manifestations—such as a retainer, appearance, advice, or conduct inducing reasonable reliance—were lacking (see Volpe v Canfield, 237 AD2d at 283). The court also found the complaint failed to allege actual, ascertainable damages proximately caused by anything the Demidchik defendants did or failed to do (see Guliyev, 221 AD3d at 590–591; Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d 714, 716). On these dual grounds, dismissal of malpractice claims as to Demidchik was warranted under CPLR 3211(a)(7). The court also upheld the extension of time under CPLR 2004 for Demidchik to appear and answer, an exercise of discretion consistent with the absence of prejudice and the early procedural posture.

2) The Schwitzer Defendants: Failure to Plead “But-For” Causation

As to the successor Schwitzer defendants, the court assumed the complaint’s allegations to be true but found them substantively insufficient. The pleading did not set out specific facts showing that, but for Schwitzer’s alleged negligence, the plaintiff would have prevailed in the underlying podiatric malpractice case or avoided dismissal-related damages (see Mid City Elec. Corp., 214 AD3d at 649; Katsoris, 186 AD3d at 1505). While the record reflects that Schwitzer filed a notice of appeal from the dismissal with prejudice, the plaintiff still needed to allege how any purported misstep by Schwitzer would have changed the outcome. Absent concrete causation allegations tied to the merits or the appeal, dismissal under CPLR 3211(a)(7) was proper.

3) The Dansker Defendants: Time-Barred; Duplicative Claims; § 487 Insufficiency

The claim against the initial counsel, the Dansker defendants, was untimely. The statute of limitations for legal malpractice is three years (CPLR 214[6]). The court measured the end of representation by reference to a June 20, 2018 consent to change attorney and the absence of any further action by Dansker thereafter (see CPLR 321[b]; Quinn, 138 AD3d at 1086). The limitations period thus expired on June 20, 2021; the malpractice suit commenced in November 2022 was out of time. The plaintiff did not raise an issue of fact as to tolling, exceptions, or timely commencement. Accordingly, dismissal under CPLR 3211(a)(5) was correct.

Beyond timeliness, the court rejected the plaintiff’s attempts to reframe malpractice as fraud or breach of fiduciary duty. Because those claims arose from the same alleged facts and sought the same damages, they were duplicative and properly dismissed (Waggoner, 14 NY3d at 875; Weiss, 83 NY2d at 977; DeMartino, 189 AD3d at 775). Finally, the Judiciary Law § 487 claim failed because it was pleaded in general, conclusory terms rather than with the particularity required by CPLR 3016(b) (DeMartino, 189 AD3d at 776; Sammy, 170 AD3d at 1225; Rozen, 76 AD3d at 968).

Impact and Practical Implications

• Accrual against outgoing counsel is anchored to substitution: This decision reinforces that, where a consent to change attorney is executed and outgoing counsel takes no further action, that date fixes the termination of representation for limitations purposes. Plaintiffs must calendar the three-year window from that point for each firm and cannot rely on later events in the case to keep earlier counsel within time.
• Privity cannot be inferred from a client’s belief alone: Suing peripheral or tangentially connected lawyers without objective indicia of representation will not survive CPLR 3211(a)(7). Plaintiffs must allege facts that show retention, advice, appearances, or conduct reasonably inducing reliance.
• But-for causation remains a stringent, fact-specific pleading burden: Especially where multiple lawyers are involved at different times, the complaint must articulate, for each defendant, the specific negligent act or omission and how it would have changed the outcome—at trial or on appeal.
• Duplicative re-pleading will be pared back: Efforts to recast malpractice as fraud or breach of fiduciary duty are disfavored where the gravamen is the quality of legal services and the damages overlap. This opinion applies that filter rigorously.
• Section 487 requires particularized deceit: Conclusory accusations of attorney misconduct are insufficient; the pleading must specify the deceitful acts, their intentionality, the context (e.g., in a court proceeding), and the resulting damages to unlock § 487’s remedies.
• CPLR 2004 discretion remains broad: Courts may extend time to appear or answer upon a minimal showing where no prejudice is demonstrated, consistent with the preference for resolving cases on the merits.

Complex Concepts Simplified

• Note of issue: A filing that certifies a case is ready for trial. Failure to file by court-ordered deadlines can result in the case being marked disposed or dismissed.
• Consent to change attorney (CPLR 321[b]): A written, signed document by the client, outgoing counsel, and incoming counsel that formalizes substitution. It typically marks the end of the outgoing attorney’s representation.
• CPLR 214(6): Sets a three-year statute of limitations for legal malpractice, measured from accrual. When continuous representation applies, accrual is measured from the end of representation; here, the court used the substitution date where no further acts followed.
• CPLR 3211(a)(5): Allows dismissal where the claim is barred by the statute of limitations.
• CPLR 3211(a)(7): Allows dismissal for failure to state a cause of action. Courts accept the pleaded facts as true but require that those facts fit within a cognizable legal theory.
• CPLR 3211(a)(1): Allows dismissal where “documentary evidence” utterly refutes the allegations, conclusively establishing a defense.
• CPLR 2004: Permits courts, in their discretion, to extend time to do an act upon such terms as may be just, often based on good cause and lack of prejudice.
• But-for causation: In legal malpractice, the plaintiff must show that, absent the attorney’s negligence, the plaintiff would have succeeded on the merits of the underlying matter or avoided the damages claimed—the “case within a case.”
• Duplicative claims: Fraud or fiduciary duty claims that arise from the same facts as a malpractice claim and seek the same damages are typically dismissed as duplicative.
• Judiciary Law § 487: Provides remedies for intentional deceit by an attorney in a judicial proceeding. It must be pleaded with particularity (CPLR 3016[b]) and cannot rest on generalized assertions.

Conclusion

Coniglio v. Dansker & Aspromonte Associates is a comprehensive reaffirmation of core doctrines that govern New York legal malpractice actions, especially when multiple firms have served as counsel at different times. The Second Department’s decision underscores that: the statute of limitations against outgoing counsel will be measured from the formal end of representation (here, a consent to change attorney and cessation of acts); a client’s unilateral belief cannot manufacture an attorney–client relationship; malpractice claims must be supported by specific “but-for” causation allegations; duplicative fiduciary duty and fraud theories will not survive repackaging; and § 487 claims demand particularity.

For litigants and practitioners, the opinion offers a practical blueprint for both pleading and motion practice in successive-counsel malpractice suits: precisely delineate each firm’s role and timeframe, anchor accrual to objective termination events, plead causation with transaction-specific detail, and avoid duplicative theories without distinct facts and damages. The result is a cleaner litigation record and a clearer path to early resolution where claims are facially deficient or time-barred.