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 [App Term, 1st Dept 2005]).”
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.
