Sunset 3 Realty v Booth

[*1] Sunset 3 Realty v Booth 2006 NY Slip Op 51441(U) [12 Misc 3d 1184(A)] Decided on May 2, 2006 Supreme Court, Suffolk County Sgroi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 2, 2006
Supreme Court, Suffolk County

Sunset 3 Realty, Plaintiff,

against

Candy Booth, Defendant.



08409-2005



PETER D. TAMSEN, P.C.

Attorneys for Plaintiff

260 Montauk Highway, Suite 14

Bay Shore, New York 11706

Sandra L. Sgroi, J.

JUDGMENT ON DEFAULT

Upon the following papers numbered 1 to 14 read on this Proceeding: Notice of Petition, Petition and supporting papers 1-14; it is,

ORDERED that the motion of the Plaintiff for a default judgment is denied.

This Court previously denied the motion of the Plaintiff for a default judgment. The attorney for the Plaintiff was directed to comply with all of the applicable provisions of CPLR 3215 upon any renewal. The Court specifically stated that "In addition to resubmitting the documents attached to the motion presently before the Court, the Plaintiff is directed to submit a copy of the summons and verified complaint, an affidavit of merits by a person with actual knowledge of the facts if the verified complaint is insufficient to qualify as an affidavit of merits, a copy of the affidavit of the process server and a proposed judgment that is a separate paper that does not contain the attorney's affirmation and the bill of costs."

The attorney for the Plaintiff on this motion has not submitted an affidavit of merits from a person with actual knowledge. Attached to the complaint is a sworn statement of Paul Wenersbach who [*2]states that he is the Plaintiff in the action. This is incorrect on its face since the Plaintiff is a corporation. While it is possible that Paul Wernersbach does have personal knowledge of the facts alleged in the complaint because, according to other letters submitted in support of this application, Paul Wernersbach is the office manager of the Plaintiff, the sworn statement that supports the entry of a default judgment should be accurate.

Additionally, according to CPLR § 3215: 3. (i) When a default judgment based upon nonappearance is sought against a natural person in an action based upon nonpayment of a contractual obligation an affidavit shall be submitted that additional notice has been given by or on behalf of the plaintiff at least twenty days before the entry of such judgment by mailing a copy of the summons by first-class mail to the defendant at his place of residence in an envelope bearing the legend ''personal and confidential'' and not indicating on the outside of the envelope that the communication is from an attorney or concerns an alleged debt. In the event such mailing is returned as undeliverable by the post office before the entry of a default judgment, or if the place of residence of the defendant is unknown, a copy of the summons shall then be mailed in the same manner to the defendant at the defendant's place of employment if known; if neither the place of residence nor the place of employment of the defendant is known, then the mailing shall be to the defendant at his last known residence. (ii) The additional notice may be mailed simultaneously with or after service of the summons on the defendant. An affidavit of mailing pursuant to this paragraph shall be executed by the person mailing the notice and shall be filed with the judgment. Where there has been compliance with the requirements of this paragraph, failure of the defendant to receive the additional notice shall not preclude the entry of default judgment.

Mailing pursuant to CPLR § 308 (2) is not a substitution for this CPLR § 3215 notice. The Court has not denied the motion for the entry of a default on this ground because it appears that there may have been proper service pursuant to CPLR § 3215. However, any future application should clarify that the additional notice was served pursuant to CPLR § 3215.

This Court also previously stated that the Federal Soldiers' and Sailors' Civil Relief Act applies to New York judgments. The treatise 8B Carmody Wait 2d 63:193 provides that ***the plaintiff must, prior to entering judgment, file an affidavit establishing, in a manner sufficient for the court's evaluation, that:(1) the defendant is not in the military service of either the United States or an ally;(2) the plaintiff's investigation was done after the default occurred; and[*3](3) such investigation was performed shortly before the submission of the affidavit. The affidavit as to military service may not be filed prior to the expiration of the time in which a defendant must appear or answer, since prior to that time there cannot be a default. Moreover, in the event such affidavit involves a period prior to default or more than 30 to 60 days before submission of the affidavit or is based on facts that provide no articulable base for their ultimate conclusion, it will be rejected by the court, as an obviously perjured affidavit.

The attorney for the Plaintiff in an attempt to comply with this directive has submitted the following statement: That this Affirmation is made on (sic) compliance with the Soldiers and Sailors Civil Relief Act of 1940, as amended, NYS Soldiers & Sailors Civil Relief Act of 1951, (sic) the Defendant is not at the present time im the military or naval service of the USA as such term is defined by the acts of Congress. I base such statements above upon the facts stated in the Affidavit of the process server.

Unfortunately the process server did his investigation over one year ago and it is simply not adequate to base the conclusion that the Defendant is not in military service upon that investigation.

The Federal Soldiers' and Sailors' Civil Relief Act, as applied to New York courts, requires that, upon the Defendant's default in any action or proceeding, Plaintiff must, prior to entering judgment, file an affidavit establishing that (1) defendant is not in the military service of either the United States or an ally; (2) plaintiff's investigation was done after the default occurred (see, Citibank, N.A. v. McGarvey, 196 Misc 2d 292, 765 N.Y.S.2d 163); (3) such investigation was performed shortly before the submission of the affidavit of military service (see, New York City Housing Authority v. Smithson, 119 Misc 2d 721, 464 N.Y.S.2d 672). While a defect in the military affidavit may not rise to the level of a jurisdictional defect if a default is entered with an improper affidavit, that does not excuse the Plaintiffs from conducting the initial investigation required by Federal Law (see, Department of Housing Preservation and Development of City of New York v. West 129th Street Realty Corp., 9 Misc 3d 61, 802 N.Y.S.2d 826).



Dated: ______________________

SANDRA L. SGROI, J. S. C.