Town of Hempstead v. Lizza Industries, Inc.

—In *544an action, inter alia, to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), dated March 6, 2000, as denied its motion, denominated as one to renew, but which was in actuality a motion for reargument of the plaintiffs prior motion for summary judgment on the issue of liability, and the plaintiff cross-appeals from so much of the same order as, sua sponte, placed the case on the trial calendar.

Ordered that the appeal is dismissed, without costs or disbursements; and it is further,

Ordered that the cross appeal is dismissed, without costs or disbursements, as no appeal lies as of right from the portion of the order cross-appealed from, and we decline to grant leave to appeal (see, CPLR 5701).

The defendant’s motion, characterized as one to renew, was not based upon new facts which were unavailable at the time the original motion was made, and therefore, was, in actuality, a motion for reargument, the denial of which is not appealable (see, Bossio v Fiorillo, 222 AD2d 476).

Moreover, contrary to the plaintiffs contention, that portion of the order cross-appealed from did not decide a motion made on notice and therefore is not appealable as of right (see, CPLR 5701 [a] [2]). O’Brien, J. P., Friedmann, Goldstein and Smith, JJ., concur.