On September 25, 2009, this court issued a decision granting defendant Herbert Pererria's (hereinafter Pererria) motion to dismiss Dermont Thomas' (hereinafter Thomas) complaint pursuant to CPLR § 3211(a)(8) for lack of personal jurisdiction.

By notice of motion filed on December 10, 2009, under motion sequence number three, Thomas moves, pro se, pursuant to CPLR § 2221 for an order granting him leave to reargue his opposition to Pererria's motion which yielded the aforementioned September 25, 2009 decision. Pererria opposes the motion. [*2]

On February 5, 2010, at oral argument of the instant motion, plaintiff withdrew his motion seeking summary judgment in his favor on the issue of liability. At the same time, defendant Dinkes & Schwitzer, P.C. withdrew its motion to dismiss plaintiff's complaint. The withdrawals were without prejudice in light of plaintiff's filing of an amended complaint.

Thomas' motion consists of his affidavit, a copy of the courts' decision dated September 25, 2009 and five annexed exhibits labeled A through E. Exhibit A is a copy of the opposition papers Thomas originally submitted in opposition to Pererria's motion to dismiss the complaint. Exhibit B is a copy of the affidavit of service of Mark A. Smith explaining his four unsuccessful attempts to serve the summons and complaint on Pererria. Exhibit C purports to be a copy of another affidavit of service of the pleadings upon Perreria. Exhibit D is a copy of Pererria's affidavit which he submitted in support of the prior motion to dismiss the complaint. Exhibit E is a copy of a stipulation of discontinuance signed by Pererria, as Thomas' counsel in another action in Kings County Supreme Court bearing index number 25161/2004. By said stipulation Thomas' complaint against Lee Trucking, Co., Lee Trucking, Inc., James L. Carrol and Jose Frederick Vigo was discontinued.

Pererria opposes the instant motion with an affidavit of his counsel and three annexed exhibits labeled A through C. Exhibit A contains a copy of this courts' aforementioned order dated September 25, 2009 and notice of entry of the order with the Kings County Clerk's office on November 5, 2009. Exhibit B is a copy of the affidavit Pererria submitted in support of his original motion to dismiss the complaint. Exhibit C is a copy of the envelope used by Thomas to mail the instant motion to Pererria on December 10, 2010.

Thomas handed Pererria an additional package containing his affidavit and numerous annexed exhibits without any objection.

CPLR Rule 2221. Motion affecting prior order (d) A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.

On June 16, 2009, Thomas commenced the instant action by filing a summon and complaint and an application to proceed as a poor persons. The affidavit of service of Mark A. Smith, Thomas' process server, shows that Thomas made four unsuccessful attempts to serve the pleadings on Perreria. Based on Thomas' failure to properly effectuate service of the pleadings, this court granted Perreria's motion to dismiss the complaint for lack of personal jurisdiction in a decision and order dated September 25, [*3]2009.

On November 4, 2009, Perreria served on Thomas a copy of the September 25, 2009, decision and order entered. Thomas mailed the instant motion on Perreria on December 10, 2010. Thomas' instant motion is, therefore, untimely because it was made more than 30 days after service upon the him of a copy of the order entered (see CPLR § 2221 [d][3]). Thomas also did not indicate the law or facts which the court overlooked or misapprehended in determining the prior motion. Thomas has simply repeated the facts alleged in his prior opposition papers. Those prior facts as alleged by Thomas indicate that the pleadings were not successfully served upon Perreria despite four attempts to do so.

At oral argument on the motion, Thomas handed Pererria and the court an additional package containing his affidavit and numerous annexed exhibits. This package contained numerous documents which were not part of Thomas' original opposition papers. Inasmuch as the instant motion was for re-argument it should not have included new documents or new arguments which were not previously raised (see CPLR § 2221 [d][2]). A motion for leave to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" (V. Veeraswamy Realty v. Yenom Corp., 71 AD3d 874 [2nd Dept. 2010] citing McGill v. Goldman, 261 AD2d 593 [2nd Dept. 1999]).

For the foregoing reasons Thomas' motion to reargue is denied.

The foregoing constitutes the decision and order of this court.

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