Opinion
December 18, 1995
Appeal from the Supreme Court, Queens County (Kitzes, J.).
Ordered that the appeal from the order dated September 28, 1994, is dismissed, as that order was superseded by the order dated September 30, 1994, made upon reargument; and it is further,
Ordered that the order dated September 30, 1994, is affirmed insofar as appealed from; and it is further,
Ordered that the defendants are awarded one bill of costs.
The plaintiff correctly contends that his action, inter alia, to recover damages for wrongful eviction and conversion was properly commenced in the Supreme Court, which had jurisdiction to determine the cross motion for partial summary judgment ( see, Kolomensky v Wiener, 135 A.D.2d 505; Third City Corp. v Lee, 41 A.D.2d 611). However, since the plaintiff failed to establish his causes of action for wrongful eviction and conversion sufficiently to warrant the court to direct judgment in his favor as a matter of law, the plaintiff's cross motion for partial summary judgment was properly denied ( see, CPLR 3212 [b]; Zuckerman v City of New York, 49 N.Y.2d 557).
There is no merit to the plaintiff's contention that the process server failed to comply with the "reasonable application" requirement of RPAPL 735 and that the judgment of eviction against him was, therefore, void. The process server attempted to serve the notice of petition and petition during the plaintiff's posted office hours. This attempt encompassed a reasonable expectation of success and thus satisfied the requirement of "reasonable application" ( see, Brooklyn Hgts. Realty Co. v Gliwa, 92 A.D.2d 602; Mark Stamping Corp. v Mark Cabinet Mfg. Corp., 160 Misc.2d 555; Kulich v Kulich, 104 Misc.2d 454; Palumbo v Estate of Clark, 94 Misc.2d 1, 4; 3 Rasch, New York Landlord Tenant — Summary Proceedings, § 42:7, at 88 [3d ed]). However, there are questions of fact concerning the plaintiff's causes of action which require the denial of summary judgment to both parties. Rosenblatt, J.P., Copertino, Friedmann and Krausman, JJ., concur.