Cross Sound Ferry Services, Inc. v. Town of Southold

263 A.D.2d 524, 693 N.Y.S.2d 215, 1999 N.Y. App. Div. LEXIS 8390

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 26, 1999
• Status: Published

Opinion

—In an action, inter alia, for a judgment declaring that certain provisions of the Town Code of the Town of Southold are unconstitutional, the proposed intervenor appeals (1) from so much of an order of the Supreme Court, Suffolk County (Dunn, J.), dated May 5, 1998, as denied its motion for leave to intervene as a defendant, and (2) from an order of the same court, dated September 30, 1998, which denied its motion, in effect, for reargument.

Ordered that the appeal from the order dated September 30, 1998, is dismissed, as no appeal lies from an order denying re-argument; and it is further,

Ordered that the order dated May 5, 1998, is affirmed insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

The Supreme Court providently exercised its discretion in denying the appellant’s motion for leave to intervene because the appellant’s submissions in support of its motion failed to establish that its members possessed a real and substantial interest in the outcome of this action (see, CPLR 1013; cf., Town of Southold v Cross Sound Ferry Servs., 256 AD2d 403; Patterson Materials Corp. v Town of Pawling, 221 AD2d 609; Matter of Clinton v Summers, 144 AD2d 145).

The denial of the appellant’s motion, characterized as one for renewal and reargument, is not appealable because it was not based upon new facts which were unavailable at the time it submitted its original motion for leave to intervene, and it is therefore actually a motion to reargue (see, White Rose Food v Mustafa, 251 AD2d 653).

The appellant’s remaining contentions are without merit. S. Miller, J. P., Santucci, Schmidt and Smith, JJ., concur.