CARBONE v. McDERMOTT

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).