Opinion
November 7, 1994
Appeal from the Supreme Court, Queens County (O'Donoghue, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The Supreme Court erred in finding that the plaintiff satisfied the "due diligence" requirement of CPLR 308 (4) and in sustaining the "nail and mail" service upon the defendant. The process server made three attempts to personally serve the defendant at his residence. Those attempts occurred on weekdays at the hours of 10:50 A.M., 4:30 P.M., and 6:36 P.M. These attempts, which were made during normal business hours or at times when it could reasonably have been expected that the defendant was in transit to or from his place of employment, were insufficient, as a matter of law, to satisfy the "due diligence" requirement of CPLR 308 (4) (see, Serrano v. Pape, 188 A.D.2d 647; Magalios v Benjamin, 160 A.D.2d 773; Kaszovitz v. Weiszman, 110 A.D.2d 117, 120). Bracken, J.P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.