CIVIL
COURT OF THE CITY OF NEW YORK
Legal/Statutory
Memorandum Class: LSM
152A
Subject: Non-Military
Affidavits Category:
GP 20/LT
20
Eff.
Date: June
21, 2004
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The sections of law dealing with what is commonly known as
“Non-Military Affidavit” are:
-
United States
Code, Title 50, War and National Defense, 50 App USCA
§§ 501 et seq., referred to as the Servicemembers Civil Relief
Act (SCRA) (specifically Sections 521 and 531)
and
-
New York State
Military Law, Article XIII, Soldiers and Sailors Civil
Relief Act, Sections 300 to 327.
Unless
otherwise specified, the rules provided in this LSM apply to
all actions
and proceedings in Civil Court, including all HP
proceedings.
1) GENERAL
In
any action or proceeding where the defendant or respondent has
defaulted in answering, the plaintiff or petitioner shall file
an Affidavit setting forth facts showing that the defendant or
respondent is not in military service before a default
judgment may be entered. An Affidavit as to military status
must be filed in reference to every individual natural person
against whom the entry of a judgment based on that
individual’s failure to answer is sought. In a summary
proceeding, this will include any undertenants as well as the
primary tenants. In an action or proceeding in which a
Non-Military Affidavit is required, and both an individual and
a corporation, partnership, association, etc. are defendants
or respondents, a military status Affidavit must be filed in
reference to the individual. The present policy of accepting
one Non-Military Affidavit when there are multiple defendants
or respondents is to continue. However, each person must be
individually identified. For example, if the defendants or
respondents are John and Mary Smith, the Non-Military
Affidavit must say that neither John nor Mary Smith are in the
military.
In
any action or proceeding in which issue has joined and a
default judgment is sought based upon the defendant or
respondent’s failure to appear, the procedure set forth herein
shall be followed. In an action or proceeding in which a Judge
has held an inquest and made a finding that the defendant or
respondent is not in military service in accordance with this
Memorandum, the filing of an additional Affidavit shall not be
required by the Clerk.
“John and Jane Doe”
Affidavits
A
Non-Military Affidavit is required for all persons listed by
pseudonym, such as “John or Jane Doe.” In summary proceedings,
the sufficiency of the factual basis for the Affidavit shall
be referred to a Judge for determination.
2) TIME
LIMITATIONS
Case
law, all of it dating back to the 1940's, stresses that the
military investigation must be “contemporaneous” to the entry
of the judgment. Because of the terrorist act of September 11,
2001, the subsequent call-up of reserves and the present
troops in Iraq, the time limitations set forth herein will be
in effect until further notice. This directive will be
reviewed upon the cessation of the current situation.
Any
application to the Clerk for the entry of judgment based on
defendant or respondent’s failure to answer will require a
military investigation no older than 30 days prior to the
filing of the application. If the investigation was carried
out more than 30 days from the date that the application is
filed with the Court, the Clerk is to reject it and return it
to the plaintiff or petitioner indicating that a current
investigation and affidavit of military status is
required.
The
military laws are concerned with preventing a default judgment
from issuing against a defendant or respondent without their
knowledge or at a time they are unable to defend
themselves. Given today’s times, it is possible that a
defendant or respondent involved in a pending lawsuit could be
called into active duty or enlist and be shipped out in a
relatively short period of time. Under such circumstances, the
defendant or respondent may not be in a position to properly
defend themselves when a judgment may be sought against them.
Therefore, in cases where issue has joined and the defendant
or respondent is pro se, any application
for a judgment based upon the defendant or respondent’s
failure to appear, must be put before a Judge for an inquiry
and determination of military status when more than 30 days have passed
since the defendant or respondent’s last appearance in court.
The Judge may require the submission of a current Non-Military
Affidavit. No further military inquiry will be required where
a defendant or respondent represented by counsel fails to
appear, since these defendants and respondents have someone
who can raise the military laws on their behalf.
Where
a case is set for inquest, the presiding judge should inquire
as to the military status of the defendant or respondent and
note it in the decision. If the inquest is submitted following
22NYCRR 208.32, the plaintiff must submit a Non-Military
Affidavit no older than 30 days from the date of the filing of
the Notice of Inquest.
3) INVESTIGATION/PROOF
An
investigation carried out for the purpose of discovering a
person’s military status may be carried out at any time after
the commencement of the actual action or proceeding. We take
“commencement of the action or proceeding” to mean delivery of
the papers, not “completion of service.” In this sense, the
investigation may take place at any time subsequent to the
service and prior to the entry of the failure to appear/answer
judgment. To be perfectly clear, the Non-Military Affidavit
may be filed together with the Affidavit of Service and
originating papers, or anytime thereafter up to and including
the application for the default judgment.
Who May
Investigate
The
investigation may be carried out, and the Affidavit sworn to,
by any of the following:
a) The
Plaintiff/Petitioner or his/her attorney.
b) Anyone
requested to do so by the Plaintiff/Petitioner or his/her
attorney.
c) Anyone
hired for that purpose by the Plaintiff/Petitioner or his/her
attorney.
d) An
employee of the Plaintiff/Petitioner or his/her
attorney.
Reason(s):
The
Non-Military Affidavit must give facts as to the basis for the
affiant’s belief that the defendant or respondent is not in
the military service. “Facts” requires more than a simple
conclusory statement that the defendant or respondent is not
in the military service. A bare statement to that effect is to
be considered inappropriate and may be rejected by the Clerk
as insufficient.
The
statement should indicate the reason(s) for the affiant’s
belief. Possible reasons might be:
a) Asked
defendant/respondent personally.
b) Spoke
to neighbors who know defendant/respondent personally.
c) Spoke
with employees of landlord who work in the building and are
acquainted with defendant/respondent.
d) Spoke
to defendant/respondent’s employer or co-workers.
e) Looked
up defendant/respondent’s record: Example: having application
which must be updated as to military status by law. The
Investigator looked up records of defendant/respondent. The
records indicated that the defendant/respondent is not in the
military. The records must be identified.
f) Proof
from the Defense Manpower Data Center (DMDC). 50 App USCA §
583 allows a certificate signed by the Secretary of the DMDC
to be used as prima facie evidence as to
the status of a person. See CCM 158 for details.
g) Defendant/respondent
is elderly (approximate age).
h) Defendant/respondent
is infirm (wheelchair, crutches, etc.).
I) Person
giving information works with defendant/respondent.
j) Defendant/respondent
receives public assistance.
k) Telephone
conversation, provided that the person who did the
investigation establishes that s/he knows and has a basis to
know, the voice of the conversant. For example: “I spoke to
the respondent’s neighbor ______ on the telephone and I know
it was the respondent’s neighbor because I have collected rent
from her in person in the past and I recognized her
voice.”
l) Any
other type of investigation is possible, but must be outlined
in a manner similar to the above examples.
Persons
The
person(s) spoken with in order to determine the status of the
defendant or respondent must be identifiable. A name is the
best identification, but if the person refuses to give a name,
the investigator may style him/her as “John/Jane Doe,”
provided that a description is supplied. An example is as
follows: “I spoke to ‘John Doe’ who refused to give me his
name. Mr. Doe resides in Apt. 2 at _____________________. He
is a white male, 5' 10" tall, black hair, approximate age
40.”
Location
There
must also be a description of the location where the
investigation was carried out. Possible examples are:
a) The
defendant/respondent’s premises.
b) The
building where defendant/respondent resides.
c) The
defendant/respondent’s place of business.
d) The
plaintiff/petitioner’s place of business.
e) Any
other place where the investigation was carried out.
The
point of all of the above examples is that there should be
some reason for the Court to accept the affiant’s reliance on
the information which s/he has received from the person who
was questioned.
4) REJECTION
There
are some instances in which a Clerk should reject a
Non-Military Affidavit. They are as follows:
a) Inability
to determine who the investigator was.
b) Investigation
carried out prior to service of the papers.
c) No
facts as to the basis for the investigator’s beliefs.
d) No
location as to where the investigation took place.
e) No
dependency clause (in a Summary Proceeding).
f) Affidavit
is not sworn to or affirmed.
g) The
Affidavit is stale (more than 30 days old). In such cases, the
Clerk is to inform the plaintiff or petitioner that a new
military investigation must be carried out and a Non-Military
Affidavit must be filed.
h) The
Affidavit states that the defendant or respondent is in the
military service.
i) Other
irregularities should be flagged for the attention of the
Judge.
5) DEPENDENTS IN SUMMARY
PROCEEDINGS
In
general, a person who is a dependent of someone in the
military service is eligible for some protection. [See 50 App
USCA § 538.] 50 App USCA § 531 extends coverage to persons who
are dependents of someone in the military service when the
case deals with “eviction or distress” although it limits the
protection to rents under $2,400 per month, as adjusted for
inflation pursuant to 50 App USCA § 531(a)(2). New York State
Military Law § 309 contains the same coverage and has no
dollar limit.
For
our purposes, in any case in which an eviction is a possible
outcome, the Non-Military Affidavit will have to have a
dependency clause, and any non-military inquiry should address
this question, as well. This clause must state, in substance,
that the respondent is not a dependent of
someone in the military service. This applies to any
undertenants as well.
6) PROCEDURE WHERE DEFENDANT/RESPONDENT
IS IN THE MILITARY
Any
civil or housing action or proceeding in which the
non-military investigation or inquiry finds that the defendant
or respondent, or dependent of a respondent where applicable,
is in the military, should be assigned to the appropriate
Military Part. The Clerk is to notify both sides of the court
date.
7) COSTS
In
a summary proceeding, Civil Court Act, Section 1906-a allows
the addition of $5.00 as costs for each Non-Military Affidavit
filed. If the petitioner chooses to submit one Affidavit
covering more than one individual, the petitioner will be
awarded just $5.00 in costs.
In
a civil action or proceeding, no costs of any kind are
permitted for the filing of a Non-Military Affidavit.
8) PRIOR NON-MILITARY
LSM’s
This
LSM supersedes all prior Non-Military directives and/or
Legal/Statutory Memoranda.
9) POSTING
This
LSM should be posted in the courthouses and posted on the
internet and should be made available to litigants so as to
allow them to be informed of its
requirements
Fern A. Fisher
Administrative Judge, Civil
Court
