FRISENDA v. X LARGE ENTERPRISES INC

ORDERED that the cross appeal is dismissed, as no appeal lies from an order denying reargument (see, Sallusti v. Jones, 273 A.D.2d 293); and it is further,

ORDERED that the order entered December 7, 1999, is reversed insofar as appealed from, on the law, that branch of the plaintiffs' motion which was, in effect, for reargument of so much of the order entered August 30, 1999, as granted the defendant's motion for summary judgment dismissing the complaint is denied, and so much of the order entered August 30, 1999, as granted the defendant's motion for summary judgment dismissing the complaint is reinstated; and it is further,

ORDERED that the defendant is awarded one bill of costs.

The plaintiffs' motion, characterized as one for renewal and reargument, was not based upon new facts which were unavailable at the time of the defendant's motion for summary judgment. Therefore, the plaintiffs' motion was in fact a motion to reargue, the denial of which is not appealable (see, Sallusti v. Jones, supra; Bossio v. Fiorillo, 222 A.D.2d 476, 477; Grosso Moving Packing Co. v. Damens, 233 A.D.2d 128). Accordingly, the cross appeal must be dismissed.

A motion for reargument is addressed to the discretion of the court and is designed to afford a party an opportunity, inter alia, to show that the court misapplied the law. However, it is not designed to offer a party an opportunity to argue a new theory of law not previously advanced by it. Accordingly, the Supreme Court should not have granted any part of the plaintiffs' motion for reargument (see, Foley v. Roche, 68 A.D.2d 558, 567-568).