Upon the foregoing papers, the application of defendant Richard Tobing by order to show cause dated May 11, 2010 for (1) a preliminary injunction enjoining the foreclosure sale of the premises known as 240-244 Gordon Street, Staten Island, New York and (2) a traverse hearing on the issue of whether the court lacks personal jurisdiction over the moving defendant is denied.

In the instant application, defendant Richard Tobing (hereinafter, "defendant") effectively seeks the same ultimate relief sought in his order to show cause dated June 23, 2009, to wit; the vacatur of a default Judgment of Foreclosure and Sale dated February 13, 2009. This Court denied that application without a hearing on January 27, 2010. Pertinently, both motions are predicated solely upon a challenge to the propriety of the service of process effectuated upon the movant in this foreclosure action. Now as then, defendant claims that he "never lived nor worked" in the State of New Jersey where service was effectuated on or about June 27, 2008 pursuant CPLR 308(4). On the prior motion, this Court held that defendant's assertions were wholly unsubstantiated and, therefore, insufficient to rebut the contents of plaintiff's affidavit of service.

In his present application, defendant offers certain documents not offered previously which are alleged to establish that at the time of the purported service, he resided at 217 Oakwood Avenue on Staten Island. Inasmuch as both applications are identical and predicated on the same grounds, the instant motion shall be deemed one for leave to renew or reargue although not denominated as such (see CPLR 103[c]; 104; 2221[f]).

It is well established that a motion for leave to reargue is addressed to the sound discretion of the court, and affords the moving party an opportunity to show that the court overlooked or misapprehended the facts or the law or for some other reason [*2]mistakenly arrived at its earlier decision (see CPLR 2221[d][2]; Boboyev v Gomez, 304 AD2d 600; Doirio v City of New York, 202 AD2d 625). However, it is not to be used as the means by which an unsuccessful party is permitted to argue again the very issues previously decided (see Pro Brokerage v Home Ins. Co., 99 AD2d 971), and shall not include either matters of fact not offered on the prior motion (CPLR 2221[d][2]; see Amato v Lord & Taylor. Inc., 10 AD3d 374, 375) or new or different arguments from those originally asserted (see Gellert & Rodner v Gem Community Mgt. Inc., 20 AD3d 388; Pryor v Commonwealth Land Tit. Ins. Co., 17 AD3d 434, 435-436; Amato v Lord & Taylor Inc., 10 AD3d at 375).

Consonant with these principles, defendant has failed to demonstrate that this Court overlooked or misapprehended the relevant facts that were placed before it on the prior motion, or any controlling principles of law applicable to the denial of his request. To the contrary, in his affidavit in support of the instant application, defendant acknowledges that on his prior motion, he "did not give the Court the proof which would have required [it] to provide [him] with a hearing". According to defendant, he was acting as his own attorney at that time and did not "understand that there was a presumption of regularity in the process server's affidavit." Moreover, defendant's underlying argument is the same here as that raised previously, i.e., that he never lived or worked in New Jersey where the service of process was effectuated. This is an improper basis on which to seek reargument (see Boboyev v Gomez, 304 AD2d at 601; Pro Brokerage v Home Ins. Co., 99 AD2d at 971).

Viewed as a renewal motion, Tobing now submits in support of his request for a traverse hearing, certain purported documentary proof that he has resided at 217 Oakwood Avenue, Staten Island, New York since 2005. It is well established that a motion for leave to renew must be supported by "new or additional facts not offered on the prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion" (Williams v Fitzsimmons, 295 AD2d 342, 342 [internal quotation marks omitted]; see CPLR 2221[e][2], [3]; Carullo v Pistilli Constr. & Dev. Corp., 64 AD3d 624; O'Connell v Post, 27 AD3d 631). Although it is within a court's discretion to grant renewal based on facts known to the moving party at the time of the original motion (see J.D. Structures v Waldbaum, 282 AD2d 434), a motion for leave to renew "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Renna v Gullo, 19 AD3d 472, 472, quoting Rubinstein v Goldman, 225 AD2d 328, 329 [internal quotation marks omitted]).

In the instant matter, defendant's excuse for failing to include this evidence in his moving papers on the prior application is his ignorance of the law as a pro se litigant. However, this contention is belied by the fact that defendant appeared by attorney on the prior motion pursuant to a certain consent for substitution dated July 31, 2009, and that counsel subsequently filed both a personal affidavit from Tobing and an attorney's affirmation in a reply dated October 21, 2009. A memorandum of law was also submitted on Tobing's behalf. It is worthy to note that a reply containing Tobing's further affidavit would have been admissible to supply additional evidence necessary to [*3]warrant a hearing (see e.g. Sanford v 27-29 W. 181st St. Assn., 300 AD2d 250, 251).

In view of the foregoing, it is the opinion of this Court that defendant has failed to set forth a reasonable justification for his failure to present his alleged evidence of residency/non-residence at the time of the prior motion (see O'Connell v Post, 27 AD3d at 631).

Accordingly, it is

ORDERED, that the motion is denied in its entirety; and it is further

ORDERED, that all stays presently in force are hereby vacated.

E N T E R,

Dated: September 23, 2010__/s/___________________________

Hon. Thomas P. Aliotta

J.S.C.