In Zot, Inc. v. Watson (20 Misc 3d 1113[A], 867 NYS2d 379, 2008 NY Slip Op 51341[U] ), Judge Sabrina Kraus gave an excellent discourse on the application of the above-referenced statutes.
In that case, the petitioner served a petition and notice of petition on Wednesday, December 27, 2007, by substituted service on the daughter of the respondent.
The mailing was done the same day and proof of service was filed on January 2, 2008 the day before the matter was noticed to be heard, January 3, 2008.
The court stated that proof of service should have been filed no later than December 31, 2007 since three days after the mailing on December 27, 2007 would end on December 29, 2007, a Saturday which allowed for filing on Monday, December 31, 2007.
Not only was the filing on January 2, 2008 two days late, but since the fifth day prior to the hearing date was Saturday, December 29, it meant that service had to be "completed" no later than Friday the 28th.
In that case, the respondent relied on Riverside Syndicate, Inc. v. Saltzman to support her position that the court had no jurisdiction and that the petition had to be dismissed. In distinguishing the different positions between the First and Second Departments, the court granted the petitioner's motion to deem the pleadings timely served nunc pro tunc and denied the respondent's cross motion to dismiss.
The First Department adheres to a strict compliance of the statute regardless of any prejudice to the parties, whereas the Second Department takes a practical approach in situations like this finding failure to file timely "a technical defect, that does not prejudice any party."