Non-Military Affidavits in New York Summary Eviction Proceedings: Law, Procedure & NY Nonmilitary Form for Download
- Summary of NY and Federal Statutes that Mandate Submission of Non-Military Affidavits as a Prerequisite for a Default Judgment
- Time Period to File Non-Military Affidavit in NY
- Additional Requirements in Summary Eviction Proceedings
Summary of NY and Federal Statutory Mandates:
Under federal and state statutes, courts are prohibited from entering default judgments when a defendant/respondent who is a natural person (i.e., not a corporation or other entity) fails to appear in a proceeding unless the plaintiff/petitioner provides the Court with an affidavit establishing that the respondent/defendant is not in the armed services or that the military status cannot be ascertained. 50 App. U.S.C.A. $ 531; N.Y. Mil. Law $$ 300 et seq.
Conducting a search of a respondent's military status can be done through the military's official website: https://www.dmdc.osd.mil/appj/scra/scraHome.do
In a reported decision issued by the Civil Court of the City of New York in the case Benabi Realty Management Co. v. Van Doorne, 738 N.Y.S.2d 166 (N.Y.C. Civil Crt., 2001), Judge Schachner discussed and concisely summarized the underlying policy reasons, and legal requirements, for non-military affidavits in summary eviction proceedings:
The purpose of both State and Federal statutes is to protect individuals serving in the military and their dependents from a default judgment entered against them without their knowledge. National Bank v. Van Tassell, 178 Misc. 776, 36 N.Y.S.2d 478 (Sup Ct N.Y. Co., 1942). A proper affidavit of non military service should include the date and location of the investigation and the facts gleaned from the investigation. It must be clear that the person interviewed has actual knowledge of the tenants' military status, as personal knowledge cannot be imputed solely from an employee's status as a doorman or super. Mill Rock Plaza v. Lively, 153 Misc.2d 254, 580 N.Y.S.2d 815 (Civ. Ct. N.Y. Co.1990).
Time Period for Filing a Non-Military Affidavit:
Any application to the Clerk of the Court for entry of judgment based on the respondent's non-appearance requires a military investigation that has occurred no older than 30 days prior to the filing of the application for default. The Non-Military Affidavit may be filed at the same time as the Affidavit of Service, or at any time up to and including the petitioner's filing of the application for a default judgment.
Unique Requirements Applicable to Summary Eviction Proceedings.
In eviction proceedings, the affidavit of non-military service must also indicate that the respondent and/or any undertenant is not a dependent of someone in the military service.