Defaults – required military affidavit (Maybe OCA can do something?)

Default judgments in New York litigation require strict compliance with procedural requirements designed to protect defendants who have not appeared to defend themselves. Among these requirements, the Servicemembers Civil Relief Act (SCRA) mandates that plaintiffs submit affidavits regarding the military status of defaulting defendants before courts can enter judgment. This federal law protects active-duty military members and their dependents from default judgments obtained while they are unable to appear due to military service.

However, the practical application of military affidavit requirements has generated confusion and inconsistency across New York courts. Some judges and court clerks demand extensive military database searches and detailed documentation, while others accept simple affidavits stating that the affiant has no knowledge of the defendant’s military status. The First Department’s decision in Gantt v North Shore-LIJ Health System addresses when irregularities in military affidavits constitute jurisdictional defects requiring vacatur of default judgments versus mere procedural deficiencies that courts may overlook.

Understanding the Servicemembers Civil Relief Act

The SCRA, codified at 50 U.S.C. § 3931, prohibits entry of default judgments against defendants unless the plaintiff files an affidavit stating whether the defendant is in military service. This requirement serves important policy goals: military members may be unable to appear in court or defend lawsuits due to deployment, training, or other service obligations. The SCRA provides protective mechanisms, including stays of proceedings and the ability to reopen default judgments, when military service has impaired a servicemember’s ability to defend litigation.

However, the statute does not specify the precise steps plaintiffs must take to determine military status. Must they search official military databases? Is a simple statement of lack of knowledge sufficient? What level of investigation is required? These questions have generated varying interpretations across New York courts, creating uncertainty for practitioners seeking default judgments.

Case Background: Irregular Affidavit Does Not Create Jurisdictional Defect

In Gantt v North Shore-LIJ Health System, the First Department addressed whether irregularities in a military affidavit submitted with a motion for default judgment constituted a jurisdictional defect. The trial court had apparently identified deficiencies in the affidavit, but the First Department reversed, holding that any irregularities did not rise to jurisdictional magnitude.

Critically, the court noted that the defendant never claimed to be on active military duty or a military dependent at the time of default. This factual circumstance—the absence of any actual military status—proved decisive in the court’s determination that procedural irregularities in the affidavit did not warrant setting aside the judgment.

The decision distinguishes between technical compliance with SCRA requirements and the substantive purpose of those requirements: protecting servicemembers who may be unable to defend due to military obligations. When no actual military service exists, irregularities in the affidavit become less significant.

Jason Tenenbaum’s Analysis

Gantt v North Shore-LIJ Health Sys., 2016 NY Slip Op 04316 (1st Dept. 2016)

“We note, contrary to the motion court, that any irregularity in the affidavit of nonmilitary service submitted on plaintiff’s motion for a default judgment did not rise to the level of a jurisdictional defect, since defendant Hilerio never made any pretense of either being on active military duty or being a military dependent at the time of her default (see Department of Hous. Preserv. & Dev. of City of N.Y. v West 129th St. Realty Corp., 9 Misc 3d 61 ).”

Many judges (especially in Supreme New York) and the New York County Clerk require detailed military searches before entering a default judgment. I would love to see OCA fund a study as to the percentage of default judgments entered in this state against active duty members, since I suspect the number is less than 1%. Also, perhaps OCA can formulate rules as to what is required in a non-military affidavit similar to what they have done on the issue of what is necessary to enter a clerk’s judgment on a credit-card non-payment case.

Second, I also believe the New York County Clerk’s refusal to enter judgments based upon orders that Judges sign due to the failure to provide updated (or any) non-military affidavit of service is improper. OCA should address this also.

Legal Significance: Distinguishing Jurisdictional Defects from Procedural Irregularities

The Gantt decision establishes important principles for evaluating military affidavit requirements in default judgment practice. First, it confirms that military affidavit irregularities do not automatically constitute jurisdictional defects requiring vacatur. Courts must examine whether the defendant actually suffered prejudice or whether military service truly impaired their ability to defend.

When defendants were never in military service, technical deficiencies in affidavits become less significant. The SCRA’s purpose—protecting servicemembers’ rights—is not implicated when no military service exists. This practical approach prevents defendants from exploiting technical irregularities to vacate defaults when they have no legitimate claim to SCRA protection.

However, the decision does not eliminate military affidavit requirements altogether. Plaintiffs must still comply with SCRA mandates; the question is what happens when compliance is imperfect but the defendant was never in military service. Gantt suggests courts should focus on prejudice and substantive protection rather than rigid formalism.

Jason Tenenbaum’s observations highlight a broader problem: the lack of clear, uniform standards for military affidavits creates inefficiency and inconsistency. Different judges and clerks demand different levels of proof, forcing plaintiffs to navigate varying requirements across venues. Some courts accept simple “to the best of my knowledge” affidavits; others require printouts from Department of Defense databases; still others demand searches of multiple military branches.

This inconsistency imposes costs on litigants without clear benefits. As Tenenbaum notes, the percentage of default judgments actually involving active-duty servicemembers is likely minuscule. While protecting that small percentage remains important, the current system creates substantial friction for the vast majority of defaults involving civilians.

His suggestion that OCA formulate clear rules mirrors the approach taken for credit card default judgments, where standardized procedures now exist. Such rules could specify: (1) what searches are required (e.g., Department of Defense database only); (2) what statements suffice in affidavits; (3) whether defendants’ subsequent confirmation of non-military status cures earlier irregularities; and (4) when irregularities constitute jurisdictional versus procedural defects.

Practical Implications for Default Judgment Practice

For plaintiffs seeking default judgments, Gantt offers both reassurance and caution. Reassurance: minor irregularities in military affidavits likely will not require vacating judgments when defendants were never in military service. Courts focus on substance over form, examining whether SCRA protections were actually needed rather than demanding technical perfection.

Caution: plaintiffs should still comply with SCRA requirements as carefully as possible. While Gantt excused irregularities in that particular case, relying on this exception creates risks. Different courts may take stricter views, and irregularities create unnecessary litigation over procedural compliance rather than substantive merits.

Best practices for military affidavits include: (1) search the Department of Defense Manpower Data Center’s database at www.dmdc.osd.mil; (2) retain printouts showing search results; (3) execute affidavits stating that searches were conducted, describing the search method, and affirming that results showed no military service; and (4) update searches if significant time passes between initial filing and judgment entry.

When irregularities do occur—such as outdated affidavits or incomplete searches—plaintiffs should proactively address them through supplemental submissions rather than waiting for courts to reject filings. If defendants later challenge judgments based on affidavit irregularities, plaintiffs should immediately obtain confirmation of defendants’ actual military status, as such confirmation defeats SCRA-based challenges regardless of earlier procedural deficiencies.

For defendants facing default judgments, Gantt narrows the grounds for attacking judgments based on military affidavit irregularities. Defendants who were never in military service cannot exploit technical deficiencies to vacate defaults. However, defendants who actually were in military service when defaults were entered retain strong grounds to vacate based on inadequate military affidavits, as the SCRA’s protective purposes apply directly to their circumstances.

Key Takeaway

Irregularities in military status affidavits submitted with default judgment motions do not automatically constitute jurisdictional defects requiring vacatur when defendants were not actually in military service at the time of default. New York courts take a pragmatic approach, focusing on whether the Servicemembers Civil Relief Act’s protective purposes are implicated rather than demanding technical perfection in compliance. However, the lack of uniform standards across New York courts creates inefficiency and confusion, suggesting the need for OCA to promulgate clear rules specifying military affidavit requirements for default judgments, similar to existing procedures for credit card default cases.

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