Taking its cue from the Court of Appeals's statement in Barnes, the First Department has adopted a more pragmatic approach. In Hochhauser v. Bunzeroth, 578 N.Y.S.2d 170 (App.Div. 1st Dep't 1992), it ruled that three attempts to serve defendant at home at various times when defendant would reasonably be expected to be found were sufficient to establish "due diligence" so as to permit the use of affix and mail service pursuant to CPLR § 308, making no reference to any additional requirement of showing attempted service at defendant's place of business. See id. (citing Barnes, 415 N.E.2d 979, and Moss v. Corwin, 546 N.Y.S.2d 15 (App.Div.2d Dep't 1989)).

Hanover New England v. MacDougall, 202 A.D.2d 724, 608 N.Y.S.2d 561, 561-62 (N.Y.App.Div. 1994) ("There is no rigid standard by which the due diligence requirement is measured, and whether a party has satisfied that requirement will necessarily depend upon the facts of each case."); Hochhauser v. Bungeroth, 179 A.D.2d 431, 578 N.Y.S.2d 170 (N.Y.App.Div. 1992) ("No rigid rule has been prescribed for determining whether 'due diligence' has been exercised in attempting to effect service so as to permit the use of substituted service pursuant to CPLR 308, subd. 4. . . .").

Several cases, not cited by Mesamours, have applied the contrary doctrine, ironically citing First Department precedents as the first line of authority, without reference to the Second Department rulings that have imposed the additional due diligence standard demanding evidence of an effort to serve defendant at his actual place of business. See, e.g., Rodriguez v. Khamis, 201 A.D.2d 715, 608 N.Y.S.2d 486 (2d Dep't 1994) ("We find that the attempted personal service at the defendants' actual home address on three occasions when a working person might reasonably have been expected to be at home was a sufficient showing of due diligence permitting substituted service.") (citing CPLR 308(4); Brunson, 595 N.Y.S.2d at 314, and Hochhauser, 578 N.Y.S.2d at 170); see also Johnson v. Waters, 291 A.D.2d 481, 738 N.Y.S.2d 369, 370 (2d Dep't 2002) (citing Matos v. Knibbs, 186 A.D.2d 725, 588 N.Y.S.2d 911, 912 (2d Dep't 1992)); Velez v. Springer, 92 A.D.2d 610, 460 N.Y.S.2d 61 (2d Dep't 1983). It is not this Court's place or mandate to resolve the apparent conflict manifested above in the state court reading and application of New York law.

Citing Matter of First Horizon Home Loans v. New York City Envtl. Control Bd., 118 A.D.3d 875, 989 N.Y.S.2d 39 (2d Dept.2014), petitioner argues that, by referencing CPLR article 3, New York City Charter § 1049–a (d)(2)(b) incorporates the CPLR 308(4) restriction permitting affix and mail service only when personal delivery (including delivery to a person of suitable age or discretion) "cannot be made with due diligence." Noting that some courts in other contexts have interpreted "due diligence" as requiring at least three delivery attempts at different times of day (see e.g. State of New York v. Mappa, 78 A.D.3d 926, 911 N.Y.S.2d 426 [2d Dept.2010] ; Johnson v. Waters, 291 A.D.2d 481, 738 N.Y.S.2d 369 [2d Dept.2002] ; Matos v. Knibbs, 186 A.D.2d 725, 588 N.Y.S.2d 911 [2d Dept.1992] ; Hochhauser v. Bungeroth, 179 A.D.2d 431, 578 N.Y.S.2d 170 [1st Dept.1992] ), petitioner maintains that the inspectors' efforts here—one attempt to deliver the NOV to a person at the premises—were insufficient. It is unclear whether First Horizon Home Loans supports petitioner's argument as it does not reference the "due diligence" requirement of CPLR article 3 and may be factually inapposite.

However, plaintiff established that it served defendant by substituted service. "There are no rigid standards governing the due diligence requirement for substituted service pursuant to CPLR 308(4)" ( Bank of America, N.A. v. Budhan, 171 A.D.3d 622, 622, 99 N.Y.S.3d 264 [1st Dept. 2019], citing Bank Leumi Trust Co. of N.Y. v. Katzen, 192 A.D.2d 401, 596 N.Y.S.2d 368 [1st Dept. 1993] ), and plaintiff's process server's successive attempts to serve defendant personally at various times of the day, on different days of the week (a Monday, a Wednesday, and a Friday) satisfied the due diligence requirement of CPLR 308(4) so as to permit nail-and-mail service (seeHochhauser v. Bungeroth, 179 A.D.2d 431, 578 N.Y.S.2d 170 [1st Dept. 1992] ). Defendant, who does not challenge that the address used by the process server was his "usual place of abode," avers plaintiff could not have reasonably expected him to be at home during the process server's three weekday attempts.

The record shows that the process server attempted to effectuate service at defendant's address pursuant to CPLR 308(1) and (2) ( see Farias v. Simon, 73 A.D.3d 569, 899 N.Y.S.2d 843 [1st Dept.2010] ). Under the circumstances presented, plaintiff's conduct did not satisfy the due diligence requirement of CPLR 308(4) ( cf. Hochhauser v. Bungeroth, 179 A.D.2d 431, 578 N.Y.S.2d 170 [1st Dept.1992] ). FRIEDMAN, J.P., RENWICK, FREEDMAN, FEINMAN, JJ., concur.

In the First Department, the courts have repeatedly found that three (3) attempts at service, made at different times and on different days, before resorting to nail-and-mail service, establishes prima-facie proof of proper service under the due-diligence standard. (seeHochhauser v Bungeroth , 179 AD2d 431, 578 NYS2d 170 [1st Dept 1992] (Three attempts to serve defendant at his home made during various hours of the day were sufficient to establish due diligence so as to permit substitute service.); Brown v Teicher , 188 AD2d 256, 590 NYS2d 452 [1st Dept 1991] (Three attempts at defendant's home at diverse times); Ayala v Bassett , 57 AD3d 387, 870 NYS2d 261 [1st Dept 2008] ; HSBC Bank USA, N.A. as Trustee for Registered Holders of Renaissance Equity Loan Asset-Backed Certificates, Series 2007-03 v Hanchard , 170 AD3d 599, 97 NYS3d 67 [1st Dept 2019] ; compareBel Air Leasing LP v Johnston , 73 Misc 3d 809, 810, 157 NYS3d 346 [Civ Ct, Kings County 2021] (finding that the "Second Department has imposed a requirement that a process server make ‘genuine inquiries about the defendant's whereabouts and place of employment’ "), quotingEstate of Waterman v Jones , 46 AD3d 63, 66 [2nd Dept 2007] ).

Moreover, on his third attempt, the process server verified the correct address with a next door neighbor before effecting service pursuant to CPLR 308(4). Under the facts of this case, the attempts were sufficient to establish "due diligence" so as to permit the use of substituted service (see, Rodriguez v. Khamis, 201 A.D.2d 715, 608 N.Y.S.2d 486; see also, Hochhauser v. Bungeroth, 179 A.D.2d 431, 578 N.Y.S.2d 170). The same result obtains here.