In Matter of Adams v. Garyali, NYLJ, Aug. 6, 2001, at 25, col 2) the Order to Show Cause required petitioner to serve the papers on the Attorney General and the New York County District Attorney by facsimile transmission and first class mail on or before September 6, 2000. Respondents moved to dismiss the proceeding for lack of personal jurisdiction and argued, as respondent argues here, that petitioner failed to serve the order to show cause pursuant to its terms.
There, the markings from the post office indicated that the mail was posted on September 8, 2000 and furthermore, the facsimile transmission page indicated that service by facsimile transmission was not completed until September 7, 2000 "one day after the date specified in the Order to Show Cause for completion of service." Despite the failure to comply with the terms of the Order to Show Cause, the court used its discretion pursuant to CPLR § 306-b to relieve petitioner of his delay based on an interest of justice rationale. Thus, the court ordered that the "time for service of the order to show cause and accompanying papers is extended to September 7, 2000, and service deemed effected nunc pro tunc."