ALTHOUGH THE FAILURE TO SUBMIT A “NON-MILITARY AFFIDAVIT” DEMONSTRATING DEFENDANT IS NOT IN THE MILITARY IS A VALID GROUND FOR DENYING A MOTION TO ENTER A DEFAULT JUDGMENT, IT IS NOT A GROUND FOR VACATING A DEFAULT JUDGMENT UNLESS THE DEFENDANT DEMONSTRATES HE OR SHE WAS, IN FACT, IN THE MILITARY (SECOND DEPT).
The Second Department, in a full-fledged opinion by Justice Genovesi, determined: (1) although the default judgement in this breach of contract action was improperly entered because a so-called “non-military affidavit” demonstrating defendant was not in the military was not submitted by the plaintiff, the absence of a “non-military affidavit” does not warrant vacatur of the default judgment unless the defendant demonstrates he or she was, in fact, in the military (not the case here); and (2) because the damages in this breach of contract action were estimated and were not for a “sum certain,” an inquest is required. Here plaintiff hired defendant to do concrete work for a construction project. The complaint alleged the work was not completed and sought estimated damages over $900,000:
It is clear that a non-military affidavit is counted amongst the proof required for a movant to meet its burden on a motion for leave to enter a default judgment. A movant’s failure to provide a non-military affidavit is sufficient to warrant denial of such a motion in the first instance … . * * *
It … that the [New York State Soldiers’ and Sailors’ Civil Relief Act] carves out a remedy for vacatur of default judgments … . However, this remedy is limited to applications made “by or on behalf of the servicemember” and “for the purpose of allowing the servicemember to defend the action” under certain circumstances. The statutory text does not support the defendants’ assertion that any person may seek to vacate a default judgment based on a failure to comply with the Act. Therefore, we hold that a movant’s failure to provide a non-military affidavit does not entitle a defendant to vacatur of an otherwise validly entered default judgment as of right. Where, as here, the defaulting party has made no assertion of being on active military duty at the time of his or her default, he or she falls outside of the protection afforded by the Act. * * *
“Where the damages sought are for a ‘sum certain or for a sum which can by computation be made certain,'” CPLR 3215(a) permits the clerk, upon proper proof, to enter judgment up to the amount demanded in the complaint, without notice to the defendant … . Otherwise, an application to the court pursuant to CPLR 3215 is required and an inquest is appropriate to assess damages … . Where damages cannot be determined without extrinsic proof, an inquest is required … . Tri-Rail Designers & Bldrs., Inc. v Concrete Superstructures, Inc., 2025 NY Slip Op 06209, Second Dept 11-12-25
Practice Point: The New York State Soldiers’ and Sailors’ Civil Relief Act requires a plaintiff seeking a default judgment to submit a “non-military affidavit” demonstrating defendant is not in the military. Consult this decision for instruction on how to do that. Failure to submit a “non-military affidavit” is a valid ground for denial of a motion for a default judgment but, it is not enough to warrant vacatur of a default judgment. Defendant must prove he or she was, in fact, in the military to warrant vacatur on this ground.
Practice Point: If damages are not based on a “sum certain,” where plaintiff seeks a default judgment, an inquest to determine damages is required.