In what looks like a 9 year battle over attorney fees and legal malpractice allegations, it appears that everyone loses in this case.  Filemyr v Hall  2019 NY Slip Op 31526(U)  May 28, 2019  Supreme Court, New York County  Docket Number: 654563/2018  Judge: Andrew Borrok discusses limitations on attorney fee claims and the necessity of making concrete allegations of legal malpractice.

“This action arises from Mr. Filemyr’ s representation of the defendants as shareholders of 1885 –
93 7th Avenue HDFC in a separate action pursuant to a retainer agreement (the Retainer), dated
December 8, 2010 (NYSCEF Doc. No. 11). In that action, Mr. Filemyr was granted his motion
to withdraw as counsel on July 21, 2015 (NYSCEF Doc. No. 51). In his complaint, Mr. Filemyr
alleges breach of contract, and alternatively quantum meruit, for recovery of $34, 152.97 in unpaid legal fees. In their amended answer, the defendants assert three affirmative defenses and a
counterclaim for legal malpractice.”

“22 NYCRR 137 provides that if an attorney and client cannot agree on fees, the attorney is to
forward written notice to the client by certified mail or personal service. The Fee Dispute
Resolution Program, however, does not apply to “disputes where no attorney’s services have
been rendered for more than two years” (22 NYCRR § 137.1(6)). Failure to serve clients with
notice of their right to arbitrate, and failure to allege in a complaint that clients received such
notice and did not file a timely request for arbitration requires dismissal of the complaint (Paikin
v Tsirelman, 266 AD2d 136, 136-137 [1st Dept 1999]). It is undisputed that Mr. Filemyr did not
provide notice of the defendants’ right to arbitrate because he served the required notices on June
25, 2018 (NYSCEF Doc. No. 52, collectively the Notices), i.e., more than two years after he last
rendered attorney’s services. To wit, even though the defendants received notice from Mr. Filemyr, the notice was provided when the defendants’ right to arbitrate was already time barred
by 22 NYCRR § 137.1(6) (see NYSCEF Doc. No. 53). Therefore, Mr. Filemyr motion to
dismiss the defendants’ affirmative defenses based on laches/waiver/unclean hands is denied and
the defendant’s cross motion to dismiss the complaint is granted. ”

“In this case, the defendants’ assert conclusory allegations they would have recovered lost
proceeds of an apartment sale and saved legal fees but for Mr. Fil em yr’ s departure from the
ordinary standards of professional conduct and breach of fiduciary duty (NYSCEF Doc. No. 47,
iJ 19). While the amended answer refers to instances when the defendants were unhappy with
Mr. Fil em yr’ s representation, the defendants fail to plead specific factual allegations that
establish but for Mr. Fil em yr’ s representation, there would have been a more favorable outcome
in the underlying action (see Dweck Law Firm, LLP v Mann, 283 AD2d 292, 293 [1st Dept
2001]). In their opposing papers, the defendants do not provide an affirmation in further support of their allegations. Accordingly, the defendants’ counterclaim for legal malpractice is
dismissed.”

Pro-se cases, as might be expected, often wash up on the rocks because of poor technical application.  In Strujan v Kaufman & Kahn, LLP  2019 NY Slip Op 00630 [168 AD3d 1114]
January 30, 2019  Appellate Division, Second Department we see failed service of the summons, denied default motions and a direction that all motions be made by order to show cause.  Worse for plaintiff, dismissal.

“Since the defendants represented the plaintiff’s adversaries in a prior action, the causes of action alleging legal malpractice and negligence are unsupported by any duty running from the defendants to the plaintiff (see Betz v Blatt, 160 AD3d 696, 698 [2018]; Betz v Blatt, 116 AD3d 813, 815 [2014]; Gorbatov v Tsirelman, 155 AD3d 836, 840 [2017]; DeMartino v Golden, 150 AD3d 1200, 1201 [2017]; Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 [2016]).

The plaintiff’s allegations of “intentional harm,” which the Supreme Court properly interpreted as stating a cause of action alleging prima facie tort, were unsupported by facts demonstrating that the defendants acted with “malicious intent or disinterested malevolence” in the prior action (Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc., 153 AD3d 768, 772 [2017]; see Dorce v Gluck, 140 AD3d 1111, 1112 [2016]; Wiggins & Kopko, LLP v Masson, 116 AD3d 1130, 1131 [2014]; Smallwood v Lupoli, 107 AD3d 782, 785 [2013]; Lisi v Kanca, 105 AD3d 714 [2013]; Shields v Carbone, 78 AD3d 1440, 1442-1443 [2010]). Likewise, the allegations of defamation failed to state a cause of action. The law provides absolute immunity from liability for defamation based on oral or written statements made by attorneys in connection with a proceeding before a court “ ’when such words and writings are material and pertinent to the questions involved’ ” (Front, Inc. v Khalil, 24 NY3d 713, 718 [2015], quoting Youmans v Smith, 153 NY 214, 219 [1897]; see Weinstock v Sanders, 144 AD3d 1019, 1020 [2016]; see also Stega v New York Downtown Hosp., 31 NY3d 661 [2018]).

The plaintiff’s remaining causes of action are not recognized in New York or are inadequately pleaded (see Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 56 [2016]; Scialdone v Stepping Stones Assoc., L.P., 148 AD3d 953, 954-955 [2017]; Klein v Metropolitan Child Servs., Inc., 100 AD3d 708, 711 [2012]; 42 USC § 1983; CPLR art 14-A).”

Sang Seok NA v Schietroma  2019 NY Slip Op 04017  Decided on May 22, 2019  Appellate Division, Second Department is the story of a bus accident, followed by hears of personal injury litigation again followed by years of legal malpractice litigation.  In the end, not much was accomplished.

“In May 2003, the plaintiff commenced a personal injury action against Greyhound Lines, Inc. (hereinafter the Greyhound action). In December 2005, the law firm of Sivin & Miller, LLP (hereinafter S & M), was substituted as counsel for the plaintiff. The Greyhound action was deemed abandoned on May 10, 2007. In January 2008, the law firm of Sapone & Schietroma, P.C., was substituted as counsel for the plaintiff. In December 2008, the defendant Paul H. Schietroma and his law firm, the defendant Paul H. Schietroma, P.C. (hereinafter together the Schietroma defendants), were substituted as counsel for the plaintiff.

In March 2010, the Schietroma defendants filed a motion on the plaintiff’s behalf to restore the Greyhound action to the trial calendar, which was denied. The plaintiff appealed, and this Court affirmed (see Sang Seok Na v Greyhound Lines, Inc., 88 AD3d 980). In June 2012, the plaintiff commenced an action (hereinafter the first legal malpractice action) against S & M, the Schietroma defendants, and Sapone & Schietroma, P.C., alleging, inter alia, that the defendants in that action committed legal malpractice by failing to timely move to restore the Greyhound action to the trial calendar. In an order dated June 30, 2014, the Supreme Court granted that branch of S & M’s motion which was for summary judgment dismissing the complaint insofar as asserted against it as time-barred. In an order dated September 17, 2015, the court granted the motion of the Schietroma defendants and Sapone & Schietroma, P.C., for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff failed to raise a triable issue of fact in opposition to their prima facie showing of entitlement to judgment as a matter of law by demonstrating that their alleged negligence did not proximately cause the plaintiff’s damages. The plaintiff appealed, and this Court affirmed, concluding that the Schietroma defendants and Sapone & Schietroma, P.C., “met their burden by establishing, prima facie, that their alleged negligence did not proximately cause the plaintiff’s damages by showing that the plaintiff would not have succeeded on the merits of the underlying [Greyhound] action,” and, in opposition, the plaintiff failed to raise a triable issue of fact (Sang Seok NA v Schietroma, 163 AD3d 597, 599).”

“Here, the Schietroma defendants established their entitlement to summary judgment dismissing the complaint on the ground that this action was barred by the doctrine of collateral estoppel (see Karimian v Time Equities, Inc., 164 AD3d 486, 489). “The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500). The doctrine of collateral estoppel applies when: “(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits” (Conason v Megan Holding, LLC, 25 NY3d 1, 17 [internal quotation marks omitted]).

In order for the plaintiff to recover damages for legal malpractice against the Schietroma defendants based on their alleged failure to advise him of a potential legal malpractice claim against S & M, the plaintiff must prove that he would have prevailed in a legal malpractice action against S & M, but for the Schietroma defendants’ negligence. In order for the plaintiff to prevail in a legal malpractice action against S & M, the plaintiff must prove that he would have prevailed in the Greyhound action, but for S & M’s negligence.

The issue of whether the plaintiff would have succeeded on the merits in the Greyhound action was raised, necessarily decided, and material in the first legal malpractice action, and the plaintiff had a full and fair opportunity to litigate the issue in that action (see Sang Seok NA v Schietroma, 163 AD3d 597). Thus, the Schietroma defendants established, as a matter of law, that their alleged negligence did not proximately cause the plaintiff’s damages by showing that the plaintiff would not have prevailed in a legal malpractice action against S & M, and that they were entitled to summary judgment dismissing the complaint based on the doctrine of collateral estoppel (see generally Lamberti v Plaza Equities, LLC, 161 AD3d 841, 841-842; Matter of Trump Vil. Apts. One Owner v New York State Div. of Hous. & Community Renewal, 143 AD3d 996). Accordingly, we agree with the Supreme Court’s determination to grant the Schietroma defendants’ motion for summary judgment dismissing the complaint.”

Clients want results, and are sometimes hesitant about paying bills.  Lawyers want to get paid, whether they are in good relations with the client or not.  Let me repeat:  Lawyers want to get paid.  The greater portion of cases in which lawyers are parties concerns attorney fees.  This is amply demonstrated by Adam Leitman Bailey, P.C. v Pollack  2019 NY Slip Op 50793(U)  Decided on May 17, 2019 Supreme Court, New York County  Reed, J..

Here, plaintiff owned a brownstone which was being damaged by the next-door neighbor’s construction.  The attorney either did a great job, or not.  Regardless, this attorney wanted to get paid.

“Defendant is the owner of a townhouse located at 44 East 82nd Street, New York, New York (the Premises) (NY St Cts Elec Filing [NYSCEF] Doc No. 34, affidavit of John. M. Desiderio [Desiderio aff], exhibit A [complaint], ¶ 4). In 2014, nonparty 46 East 82nd Street LLC, whose principal is nonparty Penny Bradley (Bradley), purchased the adjacent townhouse at 46 East 82nd Street, and proceeded to renovate the property (id., ¶ 6; NYSCEF Doc No. 56, affirmation of plaintiff’s counsel, exhibit W [defendant tr] at 11). Defendant alleges that Bradley’s renovation work caused damage to the interior and exterior of the Premises. In [*2]addition, defendant’s tenants, to whom he had leased the townhouse for $384,000 in annual rent (NYSCEF Doc No. 56 at 22), vacated the Premises in mid-November 2014 before their two-year lease term expired “because of [the] noise and dust and dangerous conditions” (id. at 77). They surrendered possession to defendant on December 5, 2014 (id. at 24).

Defendant executed a retainer agreement with plaintiff on December 8, 2014, and paid $10,000 in advance (NYSCEF Doc No. 37, Desiderio aff, exhibit D [Retainer] at 1). The Retainer provides that plaintiff would render monthly invoices to defendant and that payment was due upon receipt (id. at 1). Importantly, the Retainer reads, in pertinent part, “[y]ou understand that, although ALBPC will use its best professional judgment in the prosecution or defense of this claim, ALBPC cannot and does not guarantee any particular outcome or result” (id. at 3). Attached to the Retainer is a two-page statement of client’s rights as mandated by 22 NYCRR 1210.1. Plaintiff represented defendant in his dispute with Bradley from December 8, 2014 through July 2015, when defendant terminated plaintiff’s services (NYSCEF Doc No. 32, Desiderio aff, ¶ 17). Although plaintiff has billed defendant $110,461.36 (NYSCEF Doc No. 34, ¶¶ 22 and 30), he has been paid only $26,783.20 (NYSCEF Doc No. 35, Desiderio aff, exhibit B [amended answer], ¶ 29).

Plaintiff commenced this action against defendant for breach of contract, an account stated, quantum meruit and unjust enrichment. Defendant interposed 13 affirmative defenses and two counterclaims for legal malpractice and breach of fiduciary duty in is amended answer. Plaintiff asserts five affirmative defenses in its response to the counterclaims.”

“To prevail on a cause of action for legal malpractice, a plaintiff must plead and prove “the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages” (Leder v Spiegel, 31 AD3d 266, 267 [1st Dept 2006], affd 9 NY3d 836 [2007], cert denied sub nom. Spiegel v Rowland, 552 US 1257 [2008] [internal quotation marks and citations omitted]). “An attorney’s conduct or inaction is the proximate [*5]cause of a plaintiff’s damages if ‘but for’ the attorney’s negligence ‘the plaintiff would have succeeded on the merits of the underlying action'” (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50 [2015], rearg denied 27 NY3d 957 [2016], quoting AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). Thus, a plaintiff must meet the “case within a case” requirement to avoid dismissal (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004] [internal quotation marks and citations omitted]).

Defendant grounds the malpractice counterclaim upon a purported violation of rule 1.4 (a) (1) (iii) of the Rules of Professional Conduct (22 NYCRR 1200.0), which provides that a lawyer shall promptly inform a client of “material developments in the matter including settlement or plea offers.” Specifically, he complains of plaintiff’s failure to apprise him of Bradley’s demand for a counteroffer and plaintiff’s voluntary withdrawal of the motion for a preliminary injunction (NYSCEF Doc No. 35, ¶ 32). Defendant concedes that a violation of the Rules of Professional Conduct (22 NYCRR 1200.0) does not, without more, support a malpractice claim (see Cohen v Kachroo, 115 AD3d 512, 513 [1st Dept 2014] [citations omitted]). Nevertheless, he maintains that plaintiff’s actions have proximately caused substantial damages.”

“Regarding the first event, defendant posits that he “would have resolved” his dispute with Bradley in May 2015 had plaintiff discussed the proposal Bradley’s contractor had raised about repairing two of the three damaged walls (NYSCEF Doc No. 115, affirmation of defendant’s counsel, exhibit 53 at 1). However, “speculation on future events are insufficient to establish that the defendant lawyer’s malpractice, if any, was a proximate cause of any such loss” (Brooks v Lewin, 21 AD3d 731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006] [citations omitted]). Apart from supposition and conjecture, defendant has not presented any admissible evidence that but for plaintiff’s failure to pursue the contractor’s proposal, he has sustained damages, or that Bradley would have consented to a compromise with respect to a repair of the [*8]third wall. In any event, even if such an arrangement was reached, it would have resolved only one aspect of the dispute with Bradley because defendant still wished to pursue monetary damages.^[FN3] Moreover, defendant has not established that he would have agreed to accept Bradley’s settlement offer at any time, or that but for plaintiff’s negligence, he would have or has negotiated a more favorable monetary settlement (see Gallet, Dreyer & Berkey, LLP v Basile, 141 AD3d 405, 406 [1st Dept 2016]).

As to the second event, defendant maintains that plaintiff should not have pursued an injunction without first conducting an adequate investigation into the facts. Preliminarily, defendant’s contention that plaintiff failed to advise him that it would withdraw the application for injunctive relief is unfounded. Two weeks after plaintiff received Bradley’s settlement offer, defendant’s architects received Bradley’s revised architectural plans, and advised plaintiff and defendant that the renovation work would no longer directly impact the Premises (NYSCEF Doc No. 98, affirmation of defendant’s counsel, exhibit 36 at 3). As a result, the change obviated the need for a license agreement as Bradley’s counsel had warned previously (NYSCEF Doc No. 87 at 2). Plaintiff indicated it was unlikely that an injunction would issue (NYSCEF Doc No. 96, affirmation of defendant’s counsel, exhibit 34 at 1), and further advised defendant that it would “weaken us to argue the preliminary injunction and lose” (NYSCEF Doc No. 90, affirmation of defendant’s counsel, exhibit 28 at 1; NYSCEF Doc No. 95, affirmation of defendant’s counsel, exhibit 33 at 1). Here, defendant ignores the effect of Bradley’s changes to her plans, which could not have been reasonably anticipated when plaintiff commenced the Bradley Litigation in March 2015 because Bradley only exchanged the revised plans in May. Thus, defendant cannot establish that but for plaintiff’s actions, he would have prevailed on the preliminary injunction motion. Consequently, the part of plaintiff’s motion for summary judgment dismissing the first counterclaim for legal malpractice is granted.”

“”An account stated is an agreement between the parties to an account based upon prior transactions between them with respect to the correctness of the separate items composing the account and the balance due, if any, in favor of one party or the other” (Shea & Gould v Burr, 194 AD2d 369, 370 [1st Dept 1993] [internal quotation marks and citation omitted]). The cause of action “exists where a party to a contract receives bills or invoices and does not protest within a reasonable time” (Russo v Heller, 80 AD3d 531, 532 (1st Dept 2011] [internal quotation marks and citation omitted]), or where partial payment has been made (see Morrison Cohen Singer & Weinstein, LLP v Waters, 13 AD3d 51, 52 [1st Dept 2004]). “In the context of an account stated pertaining to legal fees, a firm does ‘not have to establish the reasonableness of its fee'” (Lapidus & Assoc., LLP v Elizabeth St., Inc., 92 AD3d 405, 405 [1st Dept 2012] [internal quotation marks and citation omitted]).

Plaintiff has demonstrated that defendant retained the invoices rendered between December 15, 2014 and June 15, 2015 without objection and made partial payments on them (NYSCEF Doc No. 47, Desiderio aff, exhibit N at 23; NYSCEF Doc No. 48 at 5). Thus, a balance did not begin to accrue until the March 15, 2015 invoice.

Defendant’s assertion that he was reviewing the invoices is too general to defeat the claim (see Schulte Roth & Zabel, LLP v Kassover, 80 AD3d 500, 501 [1st Dept 2011], lv denied 17 NY3d 702 [2011]), and he was unable to articulate a specific objection as to any of the invoices at his deposition. Furthermore, defendant failed to object to a specific amount or invoice until he terminated plaintiff’s services, and plaintiff elected to pursue litigation (see Mintz & Gold LLP v Daibes, 125 AD3d 488, 489 [1st Dept 2015]). As for the invoice dated July 15, 2015, defendant promptly raised an objection within five days of receipt (NYSCEF Doc No. 113, affirmation of defendant’s counsel, exhibit 51 at 1). Thus, plaintiff is entitled to summary judgment on liability only as to those invoices rendered prior to July 15, 2015.”

A lawsuit arising from the 2008 stock market decline, involving whether there was downside protection, and what the attorney who was hired to pursue the brokerage did or did not do proceeds. Finkel v Wedeen  2019 NY Slip Op 31395(U)  May 9, 2019 Supreme Court, New York County Docket Number: 161019/2015 Judge: Paul A. Goetz  survives summary judgment in this opinion.

“In 2005, Norman Finkel (Finkel) and I. Finkel Electrical Contractor, Inc. (together plaintiffs) opened three brokerage accounts with Bank of America/Merrill Lynch (BOA/ML). (Marchetti EBT Transcript at 38-39, NYSCEF Doc. No. 62; Affirmation of Plaintiffs’ Counsel in Opposition to Motion at~ 8, NYSCEF Doc. No. 73 [referring to Statement of Claim for recitation of facts]; Statement of Claim,~~ 6,7,4, NYSCEF Doc. No. 60). According to plaintiffs, all three accounts were opened by broker Philip Marchetti (Marchetti), who advised them that the accounts would be protected by a so-called “5% stop loss order” that would trigger an automatic liquidation of the accounts in the event of a 5% or greater depreciation in any asset (Finkel EBT Transcript at 37·38, 50·5 l, NYSCEF Doc. No. 56; Marchetti EBT Transcript at 40· 41, 48, NYSCEF Doc. No. 62; Affirmation of Plaintiffs’ Counsel in Opposition at ii 8, NYSCEF Doc. No. 73 [referring to Statement of Claim for recitation of facts]; Statement of Claim at if 7, NYSCEF Doc. No. 60). ”

Marchetti left BOA/ML in 2007, at which point Robert Schiano (Schiano) became the account executive on plaintiffs’ accounts (Schiano EBT Transcript at 22·23, NYSCEF Doc. No. 63; Affirmation of Plaintiffs’ Counsel in Opposition to Motion at if 8, NYSCEF Doc. No. 73 [referring to Statement of Claim for recitation of facts]; Statement of Claim at if 9, NYSCEF Doc. No. 60). Plaintiffs claim that between August 2008 and April 2009, their accounts incurred losses of $727,831 (dropping in value from roughly $2.303 million to $1.575 million) because BOA/ML and Schiano failed to execute the 5% stop loss order (Affirmation of Plaintiffs’ Counsel in Opposition to Motion at if 8, NYSCEF Doc. No. 73 [referring to Statement of Claim for recitation of facts]; Statement of Claim at ifif 15, 18, NYSCEF Doc. No. 60).”

“According to plaintiffs, on or about August 10, 2010, they retained Timothy Wedeen (Wedeen)
and his law firm, Wedeen & Kavanagh, to initiate a FINRA arbitration proceeding against BOA/ML and Schiano, based upon their alleged mismanagement of plaintiffs’ investment portfolio from August 2008 through April 2009 (Complaint at if 4, NYSCEF Doc. No. I). ”

“In October 2015, plaintiffs commenced the instant action against Wedeen and Wedeen & Kavanagh seeking to recover damages for legal malpractice and fraud (Complaint, NYSCEF Doc. No. 1). In the first cause of action for legal malpractice, plaintiffs allege that Wedeen failed to timely commence the FINRA arbitration proceeding. Plaintiffs assert in this regard that Wedeen told them that he would timely submit their claim for FINRA arbitration. However, in May 2015, when plaintiffs called to inquire about the status of their claim, Wedeen informed them for the first time that he never submitted the claim (id at ii 7). At that point, the six-year statute of limitations for submitting the claim to arbitration had already elapsed. Plaintiffs allege that they had a meritorious and valuable claim against BOA/ML and that but for Wedeen’s misrepresentation and negligence, they would have prevailed and recovered on their claim (id. at  12)”

“Here, defendants seek to dismiss the cause of action to recover damages for legal malpractice on the ground that plaintiffs cannot establish that they would have succeeded on their claim against BOA/ML but for defendants’ failure to timely submit the claim to FINRA arbitration. This is not an issue involving subject matter within the ken of an ordinary person and cannot be adequately judged based on the ordinary experience of the fact finder without expert testimony (cf Boye v Rubin & Bailin, LLP, 152 AD3d 1, 9 [1st Dept 2017]). Although in support of their motion, defendants submit DeMarco’s expert report, it is unsworn and therefore not in admissible form (see Accardo v Metro-North R.R., 103 AD3d 589, 589 [1st Dept 2013]; 221 E. 50th St. Owners, Inc. v Efficient Combustion & Cooling Corp., 2018 NY Slip Op 33160[U][Sup Ct, NY County 2018]). This error “could not be cured by submitting a sworn affidavit by this expert in reply papers” (Accardo v Metro-North R.R., 103 AD3d at 589; see Henry v Peguero, 72 AD3d 600, 602 [1st Dept 2010][“a deficiency of proof in moving papers cannot be cured by submitting evidentiary material in reply”]). As such, defendants’ expert report may not be considered (see Accardo v Metro-North R.R., 103 AD3d at 589). Since, without the expert affidavit, defendants failed to meet their prima facie burden, their motion must be denied without regard to the sufficiency of plaintiffs’ opposition papers (see Suppiah v Kalish,76 AD3d 829, 832 [1st Dept 2010][“By failing to submit the affidavit of an expert, defendant never shifted the burden to plaintiff’]; see generally Winegrad v New York Univ. Med Ctr., 64 NY2d 851, 853 [1985]).

Furthermore, even if defendants’ expert report had been in admissible form, it was insufficient to establish their prima facie entitlement to judgment as a matter of law because it does not address whether plaintiffs had a viable claim against BOA/ML based upon Marchetti’s representation to Finkel that plaintiffs’ accounts were protected by a stop loss order. Assuming defendants’ expert correctly opined that it was impossible to place a stop loss order on the type of accounts opened by plaintiffs, this does not establish that Marchetti never promised Finkel that the accounts were protected by such a trigger. Although the expert’s opinion may cast doubt on the truth ofMarchetti’s and Finkel’s testimony in this regard, “[i]t is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact” (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012]). “