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No non military affidavit verifying they were not on active duty

Cassano v. Gutkowski, 33863/06
Decided: April 11, 2007
Judge Andrew M. Engel

District Court

Attorney for Plaintiff: Howard Stern

Pro Se Defendants: Mitch Gutkowski and Lynn Gutkowski

Judge Engel

The Plaintiff moves for the entry of a default judgment for the recovery of allegedly unpaid rent, the cost of alleged repairs necessitated by the Defendant’s conduct, and counsel fees. The Defendants have neither appeared in opposition to this motion nor in this action.

In support of their motion, the Plaintiffs submit the affidavit of the Plaintiff, Lawrence Cassano, concerning the underlying allegations of the Plaintiffs’ claim, and the Affirmation of Plaintiffs’ counsel, concerning, inter alia, the alleged default.

The Plaintiffs allege that service of the Summons and Complaint herein was made upon the Defendants on September 15, 2006, pursuant to CPLR §308(4), and that the Defendants have failed to serve a timely Answer to the Complaint. The Affidavit of Service herein alleges that the process server appeared at the Defendants’ dwelling place, located at 58 Manchester Road, Huntington, New York, on September 12, 2006 at 7:28 a.m., on September 13, 2006 at 6:16 p.m and on September 15, 2006 at 10:59 a.m., in an effort to effectuate personal or substituted service upon them, pursuant to CPLR §308(1) or (2). The Affidavit of Service further indicates that at the time of the third and final attempt at service a copy of the Summons and Complaint was affixed to the Defendants’ door and a copy thereof was mailed to each Defendant, at the aforesaid address, in an envelope marked “Personal and Confidential” that same day. Proof of service was then filed on September 20, 2006.

It has been recognized that:

The submission of a motion on default does not impose upon the Court a ministerial duty to grant whatever relief is demanded. Lack of opposition does not deprive the Court of the duty to exercise its inherent discretion. See Weinstein-Korn-Miller, New York Civil Practice ¶3215.09 (December 1982 supp.); Howard Oil Co. Inc. v. Morris, 90 Misc.2d 713, 395 N.Y.S.2d 946. The Court’s responsibility to assure that justice is done is not qualitatively different on a default than it is on a fully litigated motion. Thus, if proof is absent, insufficient, or untrustworthy; if proper procedure has not been followed, or service not made, or notice not timely given; where a valid cause of action is not stated; or if jurisdiction is absent; the moving party cannot presume entitlement to the requested relief, even on default. See, Kahn v. Friedlander, 90 A.D.2d 868, 456 N.Y.S.2d 482. Similarly, even if there appears to be no opposition, the Court should not exercise its power, whether common law, statutory or inherent, in a manner or under circumstances where it could work an injustice to litigants, or even to non-parties ( see, Mansfield State Bank v. Cohn, 58 N.Y.21d 179, 460 N.Y.S.2d 12, 446 N.E.2d 768); it cannot legally exercise its power where it would effect deprivation of a constitutional right.

Rivera v. Laporte, 120 Misc.2d 733, 466 N.Y.S.2d 606 (Sup. Ct. N.Y. Co.1983); see also: Beverly Hills, P.C. v. AIG Insurance Company, 194 Misc.2d 533, 755 N.Y.S.2d 568 (Dist.Ct. Nassau Co. 2003); Dyno v. Rose, 260 A.D.2d 694, 687 N.Y.S.2d 497 (3rd Dept. 1999) Such is the case in the matter sub judice.

The Service Members Civil Relief Act, 50 App. U.S.C.A. §521 (formerly the Federal Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 App. U.S.C.A. §520), which applies to “each of the States, including the political subdivisions thereof;” 50 App. U.S.C.A. §512, provides, in pertinent part:

(a) Applicability of section

This section applies to any civil action or proceeding in which the defendant does not make an appearance.

(b) Affidavit requirement

In any action or proceeding covered by this section, the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court and affidavit – – (A) stating whether or not the defendant is in military service and showing necessary Facts to support the affidavit; or (B) if plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.

While some practitioners have criticized this statute “for being an unnecessary relic of the Military involvements of yesteryear,” New York City Housing Authority v. Smithson, 119 Misc2d 721, 464 N.Y.S.2d 672 (Civ. Ct. N.Y. Co. 1983), as expressed by Judge Eileen N. Nadelson in 301 West 111th Owners, LLC v. Wilson, 5 Misc.3d 1020(A), 799 N.Y.S.2d 165 (Civ. Ct. N.Y. Co. 2003): “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 a new vitality to protect persons on active military duty and their dependents from the entry of default judgments against them without their knowledge.” This sentiment is no less true today, almost four (4) years later.

As set forth in New York City Housing Authority v. Smithson, supra., “the ‘non-military’ affidavit must establish the following factors: 1. the respondent is not in the military service of either the United States or an ally; 2. The investigation was done after the default occurred; 3. The investigation was performed shortly before it was submitted; 4. The Facts are put forth in a manner sufficient for the court’s evaluation.” See also: Palisades Acquisition, LLC v. Ibrahim, 12 Misc.3d 340, 812 N.Y.S.2d 866 (Civ. Ct. N.Y. Co. 2006) The military affidavit submitted by the Plaintiffs herein is woefully deficient in satisfying these requirements.

The only military affidavit submitted is contained in the Affidavits of Service of the Summons and Complaint of the Plaintiffs’ process server. Since 1942, however, it has been recognized that “a default cannot occur until the expiration of the time after the service of process in which a defendant must appear or answer, and any affidavit made prior to such default clearly fails to meet the requirements of the foregoing legislation.” National Bank of Far Rockaway v. Van Tassel, 178 Misc. 776, 36 N.Y.S.2d 478 (Sup. Ct. Queens Co. 1942); Atrium Funding Corporation v. McRoberts, 10 Misc.3d 1077(A), 814 N.Y.S.2d 889 (S. C. Suffolk Co. 2006). The military affidavit contained within the Affidavits of Service, unquestionably describes an “investigation” which occurred at the time of service, months before it was submitted in support of this motion for a default judgment, and is insufficient to satisfy the Federal statute. New York City Housing Authority v. Smithson, supra.

Additionally, this military affidavit consists of nothing more than the one (1) sentence statement of the process server, who states, “Upon information and belief I aver that the defendant is not in military service of New York State or of the United States as that term is defined in either the State of in the Federal statutes.” Absent is any allegation concerning the basis of the process servers alleged knowledge, that the process server conducted any investigation as to the Defendants’ military status, that he spoke to neighbors to ascertain such information, or that he made any effort to locate any individual who had personal knowledge of the Defendants’ military status. The process server’s conclusory statement is patently insufficient to satisfy the military affidavit requirement, which is a necessary predicate to the entry of a default judgment. Tivoli Associates v. Foskey, 144 Misc.2d 723, 545 N.Y.S.2d 259 (Civ. Ct. Kings Co. 1989); 301 West 111th Owners, LLC v. Wilson, supra.

While the court may deny the Plaintiffs’ application, without prejudice, to submit a sufficient military affidavit, Benabi Realty Management Co. L.L.C. v. Van Doorne, 190 Misc.2d 37, 738 N.Y.S.2d 166 (Civ. Ct. N.Y. Co. 2001); Palisades Acquisition, LLC v. Ibrahim, supra.; New York City Housing Authority v. Smithson, supra.; National Bank of Far Rockaway v. Van Tassel, supra., the Plaintiffs’ Affidavits of Service suffer from an even greater problem which prevents such an alternative.

As previously indicated, the Defendants’ default notwithstanding, the court must still independently verify that the Plaintiffs have acquired jurisdiction over the Defendants. Cummins-Allison Corp. v. Bargarnik, 146 Misc.2d 1042, 553 N.Y.S.2d 981 (Civ.Ct. Kings Co. 1990); Tauz v. Allstate Insurance Company, 2 Misc.3d 638, 773 N.Y.S.2d 813 (Dist. Ct. Nassau Co. 2003). Of necessity, the court must determine of service was properly effectuated pursuant to CPLR §308(4) as asserted by the Plaintiffs.

Service pursuant to CPLR §308(4) may only be used where service pursuant to CPLR §308(1) or (2) cannot be effectuated with due diligence. Gureveich v. Goodman, 269 A.D.2d 355, 702 N.Y.S.2d 634 (2nd Dept. 2000); Simonovskaya v. Olivo, 304 A.D.2d 553, 759 N.Y.S.2d 329(2nd Dept. 2003) The court does not find that the efforts of the Plaintiffs’ process server, all three (3) of which were on weekdays at times when it was reasonably to be expected that the Defendants would not be at home, but at work or in transit to or from work, satisfied this due diligence requirement; and, finds such service defective as a matter of law. Earle v. Valente, 302 A.D.2d 353, 754 N.Y.S.2d 364 (2nd Dept. 2003); County of Nassau v. Yohannan, 34 A.D.3d 620, 824 N.Y.S.2d 431 (2nd Dept. 2006); County of Nassau v. Letosky, 34 A.D.3d 414, 824 N.Y.S.2d 153 (2nd Dept. 2006); O’Connell v. Post, 27 A.D.3d 630, 811 N.Y.S.2d 441 (2nd Dept. 2006).

Having failed to demonstrate that their process server, in his efforts to effectuate the service of process, satisfied the statutory due diligence requirement, the court has not acquired jurisdiction over the Defendants, Harkless v. Reid, 23 A.D.3d 622, 806 N.Y.S.2d 214 (2nd Dept. 2005), requiring the dismissal of this action. Cummins-Allison Corp. v. Bargarnik, supra.; Tauz v. Allstate Insurance Company, supra.

Accordingly, the Plaintiffs’ motion for an order granting them a default judgment against the Defendants is denied; and, the action is hereby dismissed.

All other matters not expressly decided herein have been considered and are denied.

This constitutes the decision and order of this court.