Appeal from an order of the City Court of Yonkers, Westchester County (Thomas R. Daly, J.), entered November 18, 2011, deemed from a judgment of the same court entered August 9, 2012 (see CPLR 5512 [a]). The judgment, entered pursuant to the November 18, 2011 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $4,825.

ORDERED that the judgment is reversed, without costs, the order granting plaintiff's motion for summary judgment is vacated, and plaintiff's motion for summary judgment is denied.

Plaintiff, a physician, brought this action to recover the sum of $4,825 for professional expert witness services which he had been hired by defendant to provide in connection with a personal injury action which defendant had commenced against a third party. Plaintiff had been retained to testify as defendant's expert witness during the damages phase of the trial of defendant's personal injury action, but did not do so because the action had been dismissed after the jury had returned a verdict in favor of the defendant therein at the conclusion of the liability phase of the trial.

Plaintiff moved for summary judgment, claiming that he had billed defendant for a total of $4,825—$1,000 for his review of her medical file, $3,750 as a cancellation fee when he was prepared to testify, and $75 for bank fees incurred as a result of her attorney's bounced check—and had made numerous demands for payment, but his demands had been unanswered and the amount billed for remained unpaid. In opposition to plaintiff's motion, defendant's personal injury attorney described the nature of his dealings with plaintiff surrounding the latter's retention as an expert witness. The City Court, in an order entered November 18, 2011, granted plaintiff's motion for summary judgment, finding that defendant's attorney's affirmation was of no probative value in the absence of an allegation demonstrating the basis for his personal knowledge. After judgment was entered awarding plaintiff the principal sum of $4,825, defendant appealed from the order. The appeal is deemed to be from the judgment (see CPLR 5512 [a]).

It is not disputed that it is defendant, and not her personal injury attorney, who bears personal liability for the expenses and fees of an expert witness (see 6A NY Jur 2d, Attorneys at Law § 161). Nevertheless, in the instant case, plaintiff did not establish his prima facie entitlement to judgment as a matter of law based on breach of contract or an account stated. While plaintiff made vague allegations in his verified complaint and in his supporting affidavit, [*2]he did not submit any evidence as to when any statements had been sent to, or received by, defendant (see Simplex Grinnell, LP v Ruby Weston Manor, 59 AD3d 610 [2009] Yannelli, Zevin & Civardi v Sakol, 298 AD2d 579 [2002]). Furthermore, plaintiff did not clearly demonstrate that defendant had ever expressly agreed to the specific compensation that he now seeks to recover. In view of the foregoing, we need not reach the question of the sufficiency of the evidence presented in opposition to plaintiff's motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Accordingly, the judgment is reversed, the order granting plaintiff's motion for summary judgment is vacated, and plaintiff's motion for summary judgment is denied.

Tolbert, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: January 10, 2014