From Casetext: Smarter Legal Research

Carbone v. McDermott

Appellate Division of the Supreme Court of New York, Second Department
Oct 2, 2000
276 A.D.2d 459 (N.Y. App. Div. 2000)

Opinion

Submitted September 6, 2000

October 2, 2000.

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.

Bosco, Bisignano Mascolo, Staten Island, N.Y. (John Bosco of counsel), for appellant.

Jacobowitz, Garfinkel Lesman, New York, N.Y. (Fiedelman McGaw [James K. O'Sullivan] of counsel), for respondents.

Before: DAVID S. RITTER, J.P., WILLIAM C. THOMPSON, WILLIAM D. FRIEDMANN, HOWARD MILLER, SANDRA J. FEUERSTEIN, JJ.


DECISION ORDER

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 A.D.2d 615). Under the circumstances, the court providently exercised its discretion.

The plaintiff's 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 A.D.2d 476). Therefore, his motion was, in actuality, a motion to reargue, the denial of which is not appealable (see, Bossio v. Fiorillo, supra).


Summaries of

Carbone v. McDermott

Appellate Division of the Supreme Court of New York, Second Department
Oct 2, 2000
276 A.D.2d 459 (N.Y. App. Div. 2000)
Case details for

Carbone v. McDermott

Case Details

Full title:RICHARD CARBONE, ETC., APPELLANT, v. MARIA E. McDERMOTT, DEFENDANT…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 2, 2000

Citations

276 A.D.2d 459 (N.Y. App. Div. 2000)
713 N.Y.S.2d 705

Citing Cases

Valentin v. C.G. Bretting, Mfg., Co., Inc.

Although the Supreme Court did not specifically address Valentin's cause of action based on strict product…