Appeal from a final judgment of the Justice Court of the Town of Yorktown, Westchester County (Ilan D. Gilbert, J.), entered December 6, 2007, deemed from a superseding final judgment entered January 2, 2009. The January 2, 2009 final judgment, insofar as appealed from, entered upon tenant's default in appearing, failed to award landlord arrears in a nonpayment summary proceeding.

ORDERED that the final judgment, insofar as appealed from, is affirmed without costs.

While a monetary award may be made against a tenant who defaults in appearing in a summary proceeding where service upon the tenant was effectuated in a manner that would be sufficient to support the entry of a money judgment in a plenary action (Avgush v Berrahu, 17 Misc 3d 85 [App Term, 9th & 10th Jud Dists 2007]), in the instant case, the Justice Court properly concluded that the process server's attempts at service at 8:00 A.M., 12:00 noon and 5:00 P.M. on a single weekday, prior to his resort to conspicuous-place service, did not satisfy the "due diligence" requirement of CPLR 308 (4) (see e.g. Estate of Waterman v Jones, 46 AD3d 63 [2007]; County of Nassau v Letosky, 34 AD3d 414 [2006]; O'Connell v Post, 27 AD3d 630 [2006]). We note that there is no sworn proof in the record by one with personal knowledge to support landlord's claim that an adult was at home at the times that service was attempted, and refused to open the door. Accordingly, the final judgment, insofar as appealed from, is affirmed.

Nicolai, P.J., Molia and LaCava, JJ., concur.

Decision Date: November 19, 2009