Opinion
Decided April 2, 2004.
THE FACTS
On March 29, 2000, petitioner Department of Housing Preservation and Development ("DHPD") commenced the instant HP proceeding based on allegations that respondents West 129 Street Realty Corp. and Steven Green failed to provide hot water as required by law. The petition was returnable on April 7, 2000. On that date, petitioner requested and the court signed a Default Order and Judgment which required respondents to correct the alleged condition and entered a monetary judgment against both respondents in the sum of $14,000 plus costs of $150.00.
In the Affidavit/Affirmation of Investigation, petitioner's employee swore that she had conducted an investigation as to the military status of Steven Green on April 13, 2000. The investigation consisted of reviewing the Multiple Dwelling Registration on file with petitioner that indicated that respondent Green was not "currently" in military service and ". . . has not notified the Department of any said military status."
By Order to Show Cause dated January 28, 2004, respondents moved to vacate the Default Order and Judgment pursuant to Civil Practice Law and Rules ("CPLR") § 317 and 5015(a) based on grounds that this court lacked personal jurisdiction over respondents and lacked jurisdiction to render the judgment against respondent Green due to its noncompliance with the Federal Soldiers' and Sailors' Civil Relief Act of 1940 (the "Federal Act").
THE LAW
The Federal Act applies to the New York courts, since it applies to "any court of competent jurisdiction of the United States or of any State, whether or not a court of record." US Code, Title 50, Appendix, § 511, subd [4]. New York State also enacted its own protections for military personnel. See Military Law, §§ 300-328, as amended. The State and Federal statutes share many provisions that are analogous.
§ 520 of the Federal Act provides, in pertinent part: "(1) In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service." The Federal Act further provides:
If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of the court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interests, and the court shall on application make such appointment.
The Federal Act prohibits the entry of a default judgment until the party seeking the judgment files an affidavit setting forth facts demonstrating that the defendant is not in military service. Noncompliance with this express mandate deprives the court of jurisdiction to render the judgment. See CPLR 5015(a)(4).
In the case at bar, it is admitted that petitioner did not conduct its investigation until April 13, 2000 some six days after entry of the default judgment. The stamp of the clerk of Civil Court establishes that the Affidavit/Affirmation of Investigation was not filed until April 17, 2000, or ten days after entry of the default judgment. Thus, the court was without power to enter the default judgment on April 7, 2000.
Contrary to petitioner's contention, Civil Court has inherent power, as well as statutory authority, to set aside a judgment on appropriate grounds. CPLR 5015(a); McMahon v. City of New York, 105 AD2d 101 (1st Dept 1984); A C Employment Agency, Inc. v. Alan Mercantile Corp., 53 Misc2d 768 (Civ Ct NY Co 1967). Here, vacatur of the default judgment is mandated by the Federal Act which prohibited the entry of the default judgment in the instant case.
Petitioner's objection that the challenge to the non-military affidavit was belatedly raised in respondent's Reply affirmation was waived through petitioner's extensive oral argument on the record and the subsequent written brief allowed by the Court prior to the instant determination.
Petitioner's reliance on § 520(4) of the Federal Act is misplaced. That provision provides:
If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service or within thirty days thereafter, and it appears that such person was prejudiced by reason of his military service in making his defense thereto, such judgment may, upon application, made by such person or his legal representative, not later than ninety days after termination of such service, be opened by the court rendering the same and such defendant or his legal representative let in to defend.
In Dahmen v. Gregory, 184 Misc2d 724 (App Term 2nd Dept 1945), the landlord omitted to file the required affidavit of military service. That court held that the tenant was entitled to have the final order vacated notwithstanding his failure to show a meritorious defense to the proceedings. In construing § 303(2) of the Military Law, as amended, which is analogous to § 520(4) of the Federal Act, the Appellate Court held that
a party may not enter a judgment or final order without regard to the requirements of the statute and then invoke subdivision 4 as a bar to its vacatur. Such practice, if sanctioned, would defeat the very purpose of the statute, which is so plainly designed to afford a person in military service some measure of protection before entry of the judgment or final order.
In the instant case, petitioner too failed to comply with the mandate of the Federal Act in the first instance. Such failure renders the judgment void ab initio.
This Court's determination can be reconciled with Citibank, N.A. v. McGarvey, 196 Misc2d 292 (Civ Ct Richmond Co 2003). In that case, the question was the validity of the nonmilitary affidavit since the plaintiff had technically complied with the mandate of the Federal Act by conducting the investigation prior to entry of the default judgment. In that posture, the court relied on the general rule that the absence of a valid nonmilitary affidavit is a "simple irregularity" and ". . . default judgments resting on invalid nonmilitary affidavits are deemed merely voidable and not void ab initio as a matter of law."
Contrary to the plaintiff in McGarvey, petitioner wholly failed to comply with the mandate of the Federal Act by conducting the investigation prior to entry of the default judgment. Noncompliance is very different from insufficient compliance. § 520 of the Federal Act expressly bars the entry of a judgment if an affidavit is not filed showing that the defendant is not in the military service.
In Brusco v. Braun, 84 NY2d 674 (1994), the Court of Appeals held that when a statute provides that a judge "shall" do an act, "[t]he statute not only commands an action; it dictates the result." The converse to this holding is that when a statute prohibits an action, the court does not have the discretion or, more importantly, the power to do the act expressly prohibited by the statute. Here, the court was deprived of the power to enter judgment against respondent Green until after petitioner filed the affidavit of nonmilitary investigation.
By entering the default judgment, the court exercised power expressly denied by the Federal Act. If the judgment were allowed to stand, this Court would eviscerate the force and effect of both statutes since a party would have no incentive to comply with the statutory mandate. Instead, a litigant could simply choose not to comply and impermissibly shift the burden to defendant to vacate the default judgment. This result is unfair and in contravention to the express intent of the legislature to protect military service personnel from the entry of judgments against them in civil actions without their knowledge and to insure that those in active military service are able to meet fully the defense needs of America, particularly in times of war. See Boone v. Lightner, 319 US 561 (1943); National Bank v. Van Tassell, 178 Misc 776 (Sup Ct NY Co 1942).
Based on the foregoing, the default judgment against respondent Steven Green is hereby vacated. The proceeding is restored to the Part B Calendar on April 20, 2004, Room 526 at 9:30 AM for further proceedings consistent with this determination including the selection of a date for the traverse hearing.
The court shall mail courtesy copies of this decision/order counsel.