I concur in Justice Alexander’s dissent. I would add that this case presents only a question of credibility as between the somewhat dubious testimony of the process server and the inherently contradictory testimony of the tenant. 11 It should be resolved on that basis and not be utilized as a vehicle for practically repealing so much of RPAPL 735 as authorizes conspicuous place (nail and mail) service. H The emphasis on the fact that the process server made only one attempt to serve process during “normal working hours” demonstrates the point. 11 The majority concludes that the “one attempt to serve process during ‘normal working hours’ did not satisfy the ‘reasonable application’ standard set forth in RPAPL 735. In so doing we do not rule that such service during ‘normal working hours’ would be insufficient under all circumstances.” If this means that two, three, four or more similar attempts would be sufficient to satisfy the statute, then the *749question of the particular hours during which the tenant works becomes irrelevant, and the only pertinent factor is the number of visits made by the process server. This is hardly the intent of the statute. On the other hand, if it means the process server or the landlord must determine the tenant’s “normal working” hours, it engrafts upon the statute a condition not to be found there. HI respectfully suggest that the majority is adopting a rule that requires the process server to determine in some manner what are the normal working hours of the subject of the service. Moreover, if he is a person who leaves for work at 6:00 a.m. or returns at 10:00 p.m., service may only be effected during the night. How a process server, or a landlord, is to acquire such information, or effect such service, remains unexplained.
Alexander, J. (dissenting).I must, most respectfully, decline to join my brethren in the emasculation of RPAPL 735. Their ruling today effectively eliminates conspicuous place service (nail and mail) as a basis for acquiring jurisdiction in a summary proceeding. Henceforth, any such service during “normal working hours” will be ineffective to confer jurisdiction since it will not constitute “reasonable application” under the statute. And while the majority do not define “normal working hours” they presumably mean anytime “on a weekday between * * * 9:00 a.m. and 4:30 p.m.” (S.P.S.G., Inc. v Collado, 113 Misc 2d 167, 168), that time “when most people are at work.” (Brooklyn Hgts. Realty Co. v Gliwa, 92 AD2d 602.) What then, of the tenants who work at times other than “normal working hours” (e.g., from 4:00 p.m. to 12:00 a.m. or 12:00 A.M.to 8:00 a.m.). Are they subject to being dispossessed based upon an affidavit showing attempted service at 6:30 p.m. in the one case or 7:00 a.m. in the other? HAs a result of today’s ruling, the only time a landlord can safely rely upon such service is when he knows that the tenant’s actual working hours are other than “normal working hours”, or at least has some information indicating that the tenant or a person of suitable age and discretion was likely to be found on the premises during usual working hours of the week. H The majority disclaim any intention to establish a rule that such conspicuous place service during “normal working hours” would be insufficient under all circumstances. However, it is difficult to conceive of any circumstances, save one where the landlord has the foreknowledge referred to above, where such service can hereafter be sustained. H Such a rule is both unnecessary and undesirable. As the Court of Appeals has said in a related context: “Indeed, in determining the question of whether due diligence has been exercised, no rigid rule could properly be prescribed.” (Barnes v City of New York, 51 NY2d 906, 907; emphasis added.) So too, in determining whether “reasonable application” has been made before resort is had to conspicuous place service, no rigid rule excluding attempts during “normal working hours” can properly be prescribed. H As the Appellate Term so aptly observed “in a society characterized by increasingly flexible work hours, substantial physical mobility, diverse living arrangements, and varied life styles, it is illogical to conclude that attempts to make personal or substituted service at a person’s home which are undertaken during so-called normal working hours are, ipso facto, precluded from satisfying the RPAPL section 735 ‘reasonable application’ standard.” H Moreover the case at bar presents a factually inappropriate predicate for the enunciation of such a rule. I would affirm the order of the Appellate Term. [120 Misc 2d 458.]