It was in the mail.

The Second Department reversed Supreme Court's denial of defendants' motion to dismiss on the ground that it was untimely served, in Ortega v. Trefz, which was decided on October 23, 2007. The court noted that service on a party's attorney by mail is complete upon mailing, pursuant to CPLR 2103[b][2]. The court went on to explain that "mailing" means the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person's last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state, pursuant to CPLR 2103[f][1].

Furthermore, said the court, a properly executed affidavit of service raises a presumption that there was a proper mailing.

Here, defendants submitted a notarized affidavit of service from an employee of defendants' counsel attesting that she mailed the motion papers on May 9, 2006, in strict adherence to the statutory requirement. The postmark date of May 10, on the envelope in which the plaintiffs received the motion, did not establish that service was not completed on May 9.