CROSS SOUND FERRY SERVICES INC v. Southold Citizens for Safe Roads, Inc., proposed intervenor-appellant.

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Supreme Court, Appellate Division, Second Department, New York.

CROSS SOUND FERRY SERVICES, INC., respondent, v. TOWN OF SOUTHOLD, et al., defendants; Southold Citizens for Safe Roads, Inc., proposed intervenor-appellant.

Decided: July 26, 1999

SONDRA MILLER, J.P., FRED T. SANTUCCI, ROBERT W. SCHMIDT and NANCY E. SMITH, JJ. Cravath, Swaine & Moore, New York, N.Y. (Thomas G. Rafferty and Aviva O. Wertheimer of counsel), and Wickham, Wickham & Bressler, P.C., Mattituck, N.Y. (Eric J. Bressler and Janet Geasa of counsel), for proposed intervenor-appellant (one brief filed). Esseks, Hefter & Angel, Riverhead, N.Y. (William W. Esseks and Anthony C. Pasca of counsel), for respondent.

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 reargument;  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 A.D.2d 403, 681 N.Y.S.2d 571;  Patterson Materials Corp. v. Town of Pawling, 221 A.D.2d 609, 634 N.Y.S.2d 711;  Matter of Clinton v. Summers, 144 A.D.2d 145, 534 N.Y.S.2d 473).

 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 A.D.2d 653, 674 N.Y.S.2d 438).

The appellant's remaining contentions are without merit.


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