Shaikh v Davis 2026 NY Slip Op 31320(U) April 1, 2026 Supreme Court, New York County Docket Number: Index No. 100809/2025 Judge: Hasa A. Kingo presents the question of what happens if a CPLR 3211 motion is made after an answer.

“Plaintiff Zia H. Shaikh (pro se) commenced this legal malpractice action on August 1,

The complaint names Jeffrey Davis and his law office (the “Davis Defendants”) among
others, and includes multiple causes of action arising out of the Davis Defendants’ representation of plaintiff in an underlying estate litigation (Index No. 158656/2017). The summons was served on the Davis Defendants on August 1, 2025. On August 26, 2025, the Davis Defendants served a notice of motion (dated August 26, 2025) to dismiss the Second, Third and Fifth causes of action under CPLR §§ 3211(a)(1) and (7) failure to state a claim and lack of jurisdictional defense), and for summary judgment under CPLR § 3212. The motion was returnable December 2, 2025. Thereafter, on October 1, 2025, the Davis Defendants served a verified answer to the complaint,
joining issue. Plaintiff timely opposed the motion, asserting among other things that the pre-answer motion is moot once the answer has been served.

Defendants contend that each challenged cause of action fails to state a claim. They argue that, even under liberal pleading standards, plaintiff’s Second, Third and Fifth causes are legally defective and duplicative of the malpractice claim. Defendants rely on CPLR § 3211(a)(7) (dismissal for failure to state a cause) and invoke CPLR § 3211(a)(1) to the extent the allegations are flatly contradicted by undisputed documentary evidence. They also assert that their motion istimely and that, because it was filed after service of the summons, CPLR § 3211(f) extended their time to answer (and was preserved by the answer), but even if not, the court may treat the motion on the merits. They further contend that the verified complaint, despite being lengthy, alleges no separate cognizable duty beyond general legal malpractice, so that any contract, fiduciary or fraud claims must be dismissed as duplicative. Defendants also seek summary judgment (CPLR § 3212), arguing that the complaint is based solely on conclusory allegations and that plaintiff cannot prove her damages or causation.”

“Under New York law, a complaint that asserts a legal malpractice claim may not be
accompanied by independent claims that duplicate the malpractice cause. As the Appellate Division, First Department, has held, a breach of contract or fiduciary duty cause that alleges no additional facts beyond those underlying the malpractice claim is duplicative and must be dismissed (Sage Realty Corp. v. Proskauer Rose, 251 AD2d 35, 38 [1st Dept 1998]; Cohen v. Kachroo, 115 AD3d 512, 513–14 [1st Dept 2014]). Similarly, a claim that an attorney violated professional conduct rules or fiduciary obligations does not, without more, give rise to a separate cause of action (Cohen v. Kachroo, 115 AD3d 512, 513–14 [1st Dept 2014]). In Cohen v. Kachroo, for example, the Appellate Division, First Department, affirmed dismissal of a breach-offiduciary-duty cause as duplicative of the malpractice count because it alleged no new facts or damages; the court likewise held that mere violations of the disciplinary rules cannot independently sustain a malpractice claim (id.). In Sage Realty Corp. v. Proskauer Rose, the Appellate Division, First Department, similarly upheld the dismissal of contract and fraud claims as redundant of a malpractice claim arising from the same attorney conduct (251 AD2d at 38). Applying these principles, the Second, Third and Fifth causes of action here – all of which arise from the same underlying conduct (the Davis Defendants’ representation in the estate litigation) – cannot stand independently. Plaintiff’s detailed affidavit (Complaint ¶¶7–9) admits that defendants owed the conventional duty of care as her lawyers, and that any breach, causation and damages would be for legal malpractice. Any breach-of-contract claim (e.g. for failure to perform services) or fraud/misrepresentation claim based on those same allegations is subsumed. Likewise, to the extent any Fifth cause asserts a fiduciary violation or professional ethics breach,
it duplicates the malpractice count. As in Cohen v. Kachroo, plaintiff’s fiduciary duty claim “alleged no new facts and sought the same damages” as her malpractice claim, and thus must be dismissed. In short, accepting the pleaded facts as true, the Second, Third and Fifth causes of action fail to state an independent claim. defendants are entitled to dismissal of those claims under CPLR §c3211(a)(7) as duplicative of the malpractice cause.

Defendants’ summary judgment motion, however, cannot be granted. Under CPLR § 3212, the moving party must establish entitlement to judgment as a matter of law by submitting admissible evidence eliminating any triable issue (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). Here defendants submitted no affidavits or admissible proof tending to negate plaintiff’s claims. Nor did they produce any documentary evidence decisively contradicting the complaint (the email exhibits filed by plaintiff are not disputed on this motion). On the contrary, plaintiff’s verified complaint and supporting affirmation may be treated as evidence under CPLR § 105(u) and Rovello v. Orofino, 40 NY2d 633 (1976). In these circumstances, summary judgment must be
denied, because plaintiff has raised factual questions (for example, whether but for defendants’ conduct plaintiff would have obtained a more favorable outcome, and the nature and amount of plaintiff’s damages) that can only be resolved at trial. It is black letter law that issues of credibility or weight of evidence are to be resolved by the trier of fact, not on a motion to dismiss or for summary judgment.

As such, defendants’ motion to dismiss and for summary judgment is granted in part and denied in part. Consistent with the foregoing, the Second, Third and Fifth causes of action are dismissed pursuant to CPLR § 3211(a)(7) as duplicative of the legal malpractice claim (the First and any other causes not challenged survive). In all other respects, defendants’ motion is denied. Because plaintiff’s allegations must be accepted as true at this stage, the remaining malpractice cause may proceed. No further relief is granted.”