Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered April 1, 2008, deemed from a judgment of the same court entered April 22, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 1, 2008 order granting plaintiff's motion for summary judgment and implicitly denying defendant's cross motion for summary judgment, awarded plaintiff the principal sum of $1,175.23.

Judgment reversed without costs, order entered April 1, 2008 vacated, plaintiff's motion for summary judgment denied and defendant's cross motion for summary judgment granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, asserting, inter alia, that plaintiff failed to establish its prima facie entitlement to summary judgment and that the complaint should be dismissed because plaintiff's owner failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the cross motion, arguing, inter alia, that defendant did not establish that plaintiff's owner failed to appear for EUOs. The Civil Court granted plaintiff's motion for summary judgment and implicitly denied defendant's cross motion for summary judgment dismissing the complaint, finding, inter alia, that defendant did not adequately establish that plaintiff's owner failed to appear for EUOs. This appeal by defendant ensued. A judgment was subsequently entered.

In opposition to plaintiff's motion and in support of its cross motion for summary judgment, defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff's EUO. Counsel alleged facts sufficient to establish that plaintiff's owner had failed to appear at counsel's law office for duly scheduled EUOs (see Stephen Fogel [*2]Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). The appearance of the eligible injured person's assignee at an EUO is a condition precedent to the insurer's liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722). Accordingly, the court should have denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

Pesce, P.J., and Golia, J., concur.

Rios, J., dissents in a separate memorandum.

Rios, J., dissents and votes to affirm the judgment in the following memorandum.

In support of its cross motion for summary judgment and in opposition to plaintiff's motion for summary judgment, defendant alleged that plaintiff's owner failed to appear at scheduled examinations under oath (EUOs). Although a partner of the law firm at which the EUOs were scheduled to be held submitted an affirmation asserting plaintiff's owner's nonappearance, nowhere in the affirmation did the affirmant state that he had personal knowledge of such nonappearance (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) or even that he was to be personally involved in conducting the EUOs. Unlike the majority, I do not believe that such personal knowledge can be inferred solely from the fact that the affirmant was a partner of the law firm. Accordingly, I would hold that defendant's cross motion for summary judgment was properly denied and plaintiff's motion for summary judgment was properly granted, and would affirm the judgment.
Decision Date: July 31, 2009