301 W. 111th Owners, LLC v Wilson
Annotate this CaseDecided on June 19, 2003
Civil Court of the City of New York, New York County
301 WEST 111th OWNERS, LLC, Petitioner
against
BARRINGTON WILSON, Respondent
71935 L & T 2003
Eileen N. Nadelson, J.
Petitioner landlord instituted this residential non-payment proceeding against Respondent tenant with service of a Rent Demand followed by a Notice of Petition and Petition. Respondent failed to answer or appear, and Petitioner moved for a default judgment of possession and warrant of eviction.
Pursuant to the provisions of the Federal Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A. sec. 520(1), no default judgment may be entered against any person unless an affidavit setting forth facts showing that the defendant is not in the military service is first filed with the court. The provisions of this statute are applicable to the New York state courts under the provisions of the New York State Soldiers' and Sailors' Civil Relief Act, Military Law sec. 300 et seq.
Recently, several articles and cases have been published reiterating the requirements of providing the court with an affidavit of the non-military status of a defaulting tenant. Using Affidavits of Military Service in Housing Court Proceedings, Schachner and Weissman, N.Y.L.J. (Outside Counsel, June 6, 2002); 21948 LLC v. Riaz, 191 Misc. 2d 73, 745 N.Y.S.2d 389 (New York County 2002); Benrabi Realty Management Co. L.L.C.v. Van Doorne, 190 Misc. 2d 37, 738 N.Y.S.2d 166 (2001).
Many landlords are using a form Affidavit of Non-Military Status to fulfill this requirement. However, as in the instant case, the standard forms that are being utilized are not comporting with statutory and judicial mandates.
The purpose of this decision is to provide guidance so that a correct format may be created. In view of the war in Iraq, as well as the domestic War Against Terror, the necessity of determining the military status of a defaulting litigant has taken on new vitality to protect persons on active military duty and their dependents from the entry of default judgments against them without their knowledge. Citibank, N.A. v. McGarvey, 2003 N.Y. Misc. LEXIS 646. [*2]
To meet the burden of proof with respect to the non-military status of a defaulting defendant, the proponent must provide the court with an affidavit of a person who clearly has actual knowledge of the defaulting party's military status. 21948 LLC v. Riaz, supra. To this end, the affiant must evidence the nature of the investigation, the person spoken to, the date of the investigation, and the specific facts that give rise to his or her personal knowledge of the defendant's military status. Mill Rock Plaza Associates v.Lively, 153 Misc. 2d 254, 580 N.Y.S.2d 815 (New York County 1990). Mere conclusory statements on the part of the affiant that facts have convinced him or her of the defendant's non-military status are inadequate to provide a basis for granting a default judgment. Benabi Realty Mangement Co., LLC, supra.
The preprinted form that is the basis of the instant application for a default judgment states that the affiant spoke to the superintendent of the building in which the tenant resided. The language printed on the form states:
I asked the person spoken to whether said Tenant(s) and undertenants was
(were) in the military service of the United States or of the State of New
York in any capacity or whether they or any member of their family is (are)
dependent on anyone in the military service and the person informed me that
said Tenants/Undertenants were not in the military service, nor was (were)
the Tenants/Undertenants or anyone in said Tenants/Undertenant's family
dependent on any person in the military service of the United States or any
nation allied with the United States.
CHECK IF APPLICABLE
A. I am personally familiar with the Tenants and have spoken to them on
other occasions. I am familiar with Tenant's living mode and have never
seen them in military uniform.
B. I have had the opportunity to review the Tenant's file, records and rental
application.
C. The head of household is unemployed-receives public assistance.
D. Other:
From the facts set forth, I am convinced that the Said Tenant(s) (and
Undertenants) is (are) not in or financially dependant upon someone in
the military service of the United States or of New York State at the
present time.
The affiant, the landlord's manager, checked off selection "B" from the above.
It is impossible for the court to determine, from this affidavit, whether or not the defaulting defendant is in military service. The person spoken to, whose presumptive statements form the basis of the affidavit, only indicates that he reviewed the tenant's file. What information appeared in that file so that the superintendent could conclude that the tenant was not in military [*3]service? When was the information in that file last updated? There is nothing in this affidavit, as it appears, that would warrant a conclusion, as a legal certainty, that the defendant is not in active military service. For this option to provide the court with appropriate information, the affiant must affix or specify the updated materials that aided him or her in reaching the conclusion that the defendant was not in military service, or annex the actual rental application giving current information that is indicated on this option on the pre-printed form. Tivoli Assoc. V. Foskey, 144 Misc. 2d 723, 545 N.Y.S.2d 259 (Kings County 1989). Further, the affiant could contact the armed forces directly to obtain documentation evidencing the tenant's military status. See generally 21948 LLC v. Riaz, supra.
Nor would any other box checked on this form provide the court with the requisite information. Selection "A" only states that the person spoken to has conversed with the defendant but never indicates that the defendant affirmatively stated that he or she is not in military service. Many persons in the military are not required to wear uniforms on a daily basis, such as those in the Judge Advocate General's Office, and therefore the fact that the tenant was not observed, by this one person, in military garb is in and of itself inconsequential. Also, dependents of persons in the military do not sport military uniforms, but their rights are also protected by the Soldiers' and Sailors' Civil Relief Act. For this option on the pre-printed format to provide adequate information for the court, the affiant must indicate the details of the conversation with the tenant including a specific admission by the tenant during that conversation that he or she is neither in military service nor a dependant of a person in military service. See generally Mill Rock Plaza Associates v. Lively, supra.
Selection "C" might be sufficient proof of non-military status provided some information was forthcoming as to how the person knew the defendant was unemployed and receiving public assistance. Non-Military Affidavit, Civil Court of the City of New York, Legal/Statutory Memoranda, Class LSM-109 (February 1, 1991). The final option, "D", could only be considered if some information was provided, such as the age of the defendant or that the defendant was disabled. Id.
Based on the Affidavit of Investigation provided by Petitioner, the court cannot grant the default judgment because the Affidavit does not provide sufficient evidence of the tenant's military status.
Dated: June 19, 2003
__________________________
EILEEN N. NADELSON, J.C.C.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
