In Ellis v. Fortune (31932-2012, NYLJ 1202667402623, at 1), the Suffolk County Supreme Court denied a plaintiff's motion for a default judgment against a defendant who allegedly failed to appear in the action. According to the Court, the reason for the denial was due to the plaintiff's non-compliance with 50 USCS Appx §521, which protects military service members from default judgments, as it requires that an affidavit must be supplied to the court when seeking a default judgment that (a) states whether or not the defendant is in
military service and showing necessary facts to support the affidavit, or (b) if the plaintiff is unable to determine whether or not the
defendant is in military service, states that the plaintiff is unable
to determine whether or not the defendant is in military service. In this case, the Court held that both conditions were not satisfied, thereby resulting in the denial of the motion.
Particularly, the Court stated the following: "Here, the plaintiffs' affidavits of service do not contain the
statutorily required statement as to the military status of the
defendants. For example, defendant Fabrice Fortune was allegedly served
pursuant to CPLR 308(2) by delivery to a person of suitable age and
discretion, 'Jane Doe.' The military service portion of the plaintiffs'
affidavit of service upon Fabrice Fortune merely states that the process
server 'asked the person spoken to whether the recipient [Jane Doe] was in active military service…Recipient [Jane Doe] wore ordinary civilian clothes and no military uniform…Upon information and belief I aver that the recipient
[Jane Doe] is not in the military service….' (emphasis added). Similarly, although defendant Marie C. Fortune was allegedly served
pursuant to CPLR 308(4), the so-called 'nail and mail' method of
service, by affixing the summons and complaint to her door, the military
service portion of the affidavit of service states, 'Upon information
and belief I aver that the recipient [the door] is not in the
military service….' (emphasis added). Obviously, neither of these
affidavits concerning the military status of the defendants is credible.
Therefore, pursuant to 50 USCS Appx §521(b), a judgment of default may
not be entered against either defendant."
