Opinion
March 17, 1995
Appeal from the Supreme Court, Onondaga County, Stone, J.
Present — Pine, J.P., Lawton, Wesley, Callahan and Doerr, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in dismissing the complaint based on lack of personal jurisdiction. The court determined that "nail and mail" service pursuant to CPLR 308 (4) was improper because the attempts by plaintiff's process server to serve defendant personally did not constitute "due diligence." The court found, after a traverse hearing, that the process server attempted personal service at defendant's residence on four separate dates at various times of day; those attempts included one weekday afternoon, two weekday evenings, and a Saturday morning. Defendant testified that he worked out of his home during the period at issue (cf., Pizzolo v. Monaco, 186 A.D.2d 727). Under the circumstances, we conclude that the process server exercised "due diligence" and that the court obtained jurisdiction over defendant (see, Vail v. Catalano, 166 A.D.2d 901; see also, Matos v. Knibbs, 186 A.D.2d 725; Hochhauser v. Bungeroth, 179 A.D.2d 431). Furthermore, the court's findings that the summons and complaint were tacked to the door following the last attempt at personal service and that the summons and complaint were mailed to defendant at his residence two days after the last attempt at personal service are supported by the record. We modify the order on appeal, therefore, by denying that part of defendant's cross motion seeking dismissal of the complaint based on lack of personal jurisdiction and reinstating the complaint.