Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered June 6, 2005. The order denied plaintiff's motion for summary judgment and granted defendants' cross motion to compel discovery.

Appeal from so much of the order as granted defendants' cross motion to compel discovery dismissed.

Order, insofar as it denied plaintiff's motion for summary judgment, affirmed without costs. [*2]

Plaintiff commenced this action to recover first-party no-fault benefits for medical supplies furnished to its assignor. After plaintiff moved for summary judgment upon its claims for $635.50 and $1,023, defendants cross-moved to compel plaintiff to produce outstanding discovery and to appear for an examination before trial or, in the alternative, to strike plaintiff's complaint and dismiss the action for plaintiff's failure to provide discovery. By order entered June 6, 2005, the court below denied plaintiff's motion and granted defendants' cross motion to compel discovery. Since plaintiff failed to submit written opposition to defendants' cross motion to compel discovery, that branch of the order which granted defendants' cross motion was entered on default and no appeal lies therefrom by the defaulting party (see CPLR 5511; Coneys v Johnson Controls, Inc., 11 AD3d 576 [2004] [citation omitted]; see also Marino v Termini, 4 AD3d 342 [2004]; Adamson v Evans, 283 AD2d 527 [2001]). As a result, the appeal from so much of the order as granted defendants' cross motion to compel discovery is dismissed.

In an action to recover first-party no-fault benefits for medical supplies furnished to its assignor, a provider establishes a prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). While the affidavit submitted by plaintiff was insufficient to establish the mailing of the appended claim forms to defendants, the deficiency in plaintiff's moving papers concerning proof of its submission of the $1,023 claim was cured by defendants' denial of claim form which adequately established that plaintiff sent, and that defendants received, said $1,023 claim form (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]). Consequently, since the record contains an untimely denial of claim form with respect to plaintiff's claim for $1,023 and there was no evidence that the claim determination period was tolled, the record establishes a prima facie showing of plaintiff's entitlement to summary judgment upon this claim. However, due to plaintiff's failure to establish submission of its claim for $635.50 and the lack of an admission by defendants acknowledging receipt of the claim, plaintiff failed to make a prima facie showing of its entitlement to judgment as a matter of law upon the $635.50 claim (see SZ Med. P.C. v State-Wide Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50103[U] [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiff's motion, defendants asserted that "there was a fraudulent scheme in the happening of the accident," a defense which survives preclusion (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). We find that defendants' papers sufficiently demonstrate defendants' "founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Consequently, plaintiff's motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Rios and Belen, JJ., concur.

Golia, J.P, concurs in a separate memorandum.

Golia, J.P., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 12, 2006