Carbone v. McDermott

In an action to recover damages for personal injuries, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated November 3, 1999, as denied his motion to strike the answer of the defendants Richard Dettman and Continental Cigar Importers, Ltd., d/b/a Paloma Cigars, and (2) from an order of the same court dated January 3, 2000, which denied his motion, denominated as one for renewal and reargument, but which was, in actuality, for reargument.

Ordered that the appeal from the order dated January 3, 2000, is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated November 3, 1999, is affirmed insofar as appealed from; and it is further,

Ordered that the respondents are awarded one bill of costs.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the Supreme Court (see, Soto v City of Long Beach, 197 AD2d 615). Under the circumstances, the court providently exercised its discretion.

The plaintiffs second motion, characterized as one for renewal and reargument, was not based on new facts which were unavailable at the time the plaintiff submitted the original motion (see, Bossio v Fiorillo, 222 AD2d 476). Therefore, his motion was, in actuality, a motion to reargue, the denial of which is not appealable (see, Bossio v Fiorillo, supra). Ritter, J. P., Thompson, Friedmann, H. Miller and Feuerstein, JJ., concur.