I would affirm. Defendant admits that she deliberately stayed away from her home for the purpose of evading service of process from July 7, 1980 until after July 19, 1980, the effective date of the Equitable Distribution Law (Domestic Relations Law, § 236). In her sworn affidavit she states that she “had learned from friends that her husband was going to serve her with a summons and complaint to get his case in under the old matrimonial law”. There is undisputed evidence that, to avoid detection, she left her car at home, rented an automobile and went to Niagara Falls where she “changed motels twice.” She called her children but did not inform them of her whereabouts. Under these circumstances, having made resort to substituted service pursuant to CPLR 308 (subd 4) necessary by making personal service impossible, she may not now be heard to attack the order for the insufficiency of the showing that she could not be found for personal service (see Gilbert v Lehman, 73 AD2d 793; Greenwood v White, 25 AD2d 73; Kenworthy v Van Zandt, 71 Misc 2d 950; Cohen v Arista Truck Renting Corp., 70 Misc 2d 729, cited with approval in Feinstein v Bergner, 48 NY2d 234, 241; Schenkman v Schenkman, 206 Misc 660, affd 284 App Div 1068; Levine v National Transp. Co., 204 Misc 202, affd 282 App Div 720).
The duty to submit to service of process, while not legally enforceable, is “none the less an obligation which ought not to be evaded by a defendant whom it is attempted to serve” (Gumperz v Hofmann, 245 App Div 622, 624, affd 271 NY 544). Thus, where “a person deliberately rejects service and turns away therefrom after being made aware *51of the attempt to effect such service upon him, there can be no doubt about its validity when the summons is left with him (Levine v. National Transp. Co., 204 Misc. 202, affd 282 App. Div. 720)” (Schenkman v Schenkman, 206 Misc 660, 662, affd 284 App Div 1068, supra). That plaintiff was concedely attempting to effect service before the change in the statute does not relieve defendant from the operation of estoppel. Plaintiff’s lawful efforts to exercise his rights cannot excuse defendant’s unlawful actions in thwarting those efforts.
In view of defendant’s conceded absence Special Term properly held that the four attempts at service made on three different days met the requirements of the statute (see, e.g., Cherney v De Rosa, 61 AD2d 931, app dsmd 45 NY2d 733; compare Competello v Giordano, 71 AD2d 871, and Barnes v City of New York, 70 AD2d 580, affd 51 NY2d 906, where there was proof that the process servers could have effected service if they had attempted it at any time other than while defendants were at work).
I find nothing to suggest that on a postservice motion challenging an order for substituted service in a matrimonial action, the court may not consider proof supplementing the evidence on which the original order was granted. Such postservice evidence has been permitted to validate nunc pro tunc a plaintiff’s efforts to accomplish service pursuant to CPLR 308 (subd 5, formerly subd 4) (see McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR, C308:5, pp 215, 216, discussing Totero v World Tel. Corp., 41 Misc 2d 594, in which the court by ex parte order validated pursuant to subdivision 4, now subdivision 5, service which had already been made on defendant’s agent; Todd v Todd, 51 Misc 2d 94, in which Justice Meyer [now Court of Appeals Judge Meyer], although he denied an ex parte motion for a nunc pro tunc order validating under subdivision 4, now subdivision 5, plaintiff’s attempted “nail and mail” service at an address at which defendant did not reside, indicated that in a proper case such an order could be granted; cf. Sellars v Raye, companion case to Dobkin v Chapman, 21 NY2d 490, 495-496).
*52In Deason v Deason (73 Misc 2d 964), in response to the invitation of the Court of Appeals (Deason v Deason, 32 NY2d 93, 95) the court held that section 232 of the Domestic Relations Law and CPLR 308 (subd 5) should be construed as permitting the use in matrimonial actions of court-ordered alternative methods of service, including as one such method “nail and mail”, although that method was then specifically prohibited under CPLR 308 (subd 4) in matrimonial actions. There is nothing in section 232 of the Domestic Relations Law or CPLR 308 or in the cases construing those statutes to suggest that subdivision 5 was intended to be applied any differently or any more stringently in matrimonial actions than in other cases. Nor is there any reason to think that postservice proof, acceptable in other actions under subdivision 5, was not acceptable in matrimonial actions. (As pointed out in Deason v Deason, supra, pp 967-968, section 232 of the Domestic Relations Law does not impose any additional requirements concerning the method of service in matrimonial actions; it merely prescribes the form of notice to be incorporated into the summons.)
Further, there is no indication that when the Legislature amended CPLR 308 (L 1974, ch 765) to permit court-ordered “nail and mail” service under subdivision 4 in matrimonial actions and to remove the existing anomaly in the statute which prohibited a procedure in subdivision 4 which was permitted under subdivision 5 (see interpretation of CPLR 308, subd 5, in Deason v Deason, supra) it intended that the requirements for court-ordered service should be any different or stricter than those then imposed under subdivision 5. We must assume that had the Legislature, which is presumed to have known of the existing judicial construction of subdivision 5 (McKinney’s Cons Laws of NY, Book 1, Statutes, § 191), intended to require a different procedure under subdivision 4, it would have so provided. Nor do I see any reason to impose stricter procedural requirements under subdivision 4 than under subdivision 5. If anything, there is more reason to require a prior final determination under subdivision 5, which, unlike subdivision 4, does not prescribe a specific method of service but permits the court to fashion one appropriate to the circumstances. *53Under both subdivisions, a defendant in a matrimonial action is given the protection of mandated judicial supervision of the service of process, a procedure not required under CPLR 308 (subd 4) in nonmatrimonial cases. It is in the existence of this requirement of final judicial approval for service in all matrimonial cases, not in whether approval is obtained before or after service, that the legislative concern for defendants in matrimonial actions is expressed.
Under the Civil Practice Act (§§ 230, 231), when a court order was required for substituted service in all cases, courts permitted defective affidavits of service to be later corrected (Lehman v Mariano, 285 App Div 824; Air Conditioning Training Corp. v Pirrote, 270 App Div 391) and deficiencies in the process server’s affidavit as to the efforts made to gain admittance to defendant’s residence to be supplied by postservice supplemental proof (Merchandise Nat. Bank of Chicago v Lister, 7 Misc 2d 106; cf. Haswell v Lincks, 87 NY 637). There is no reason to apply a different rule here.
In view of the conceded fact that defendant was not available for personal service, it cannot be questioned that the requirement of the statute (i.e., that personal service could not be made with due diligence) was in fact met. As stated by the First Department in Air Conditioning Training Corp. v Pirrote (supra, p 393): “There is * * * a difference between service and proof of service. One is a fact of which the other is the evidence. It is the fact of proper service which confers jurisdiction * * * The deficiency in the proof may be supplied.” (See Merchandise Nat. Bank of Chicago v Lister, supra, p 107, in which the court gave plaintiff an opportunity to supply additional proof of proper service where the process server, although he failed to allege in his affidavit compliance with section 231 of the Civil Practice Act, actually made a reasonable attempt to gain entry to defendant’s home.) Because service was made in compliance with the order on July 18, 1980 and necessity for the order unquestionably existed at that time, jurisdiction was obtained. The deficiency in the application for the original order was not a jurisdictional defect and was cured by subsequent proof.
*54Simons, Doerr and Moule, JJ., concur with Dillon, P. J.; Hancock, Jr., J., dissents and votes to affirm in a separate opinion.
Order reversed, with costs, order of substituted service vacated and application therefor denied.