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Doron Avgush v. Miguel A. De La Cruz

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


January 18, 2011

DORON AVGUSH,
APPELLANT,
v.
MIGUEL A. DE LA CRUZ,
RESPONDENT.

Appeal from a final judgment of the Justice Court of the Town of Yorktown, Westchester County (Ilan D. Gilbert, J.), entered June 26, 2008. The final judgment dismissed the petition.

Avgush v De La Cruz

Decided on January 18, 2011 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on January 18, 2011

PRESENT: NICOLAI, P.J., TANENBAUM and LaCAVA, JJ

ORDERED that the final judgment is reversed, without costs, the petition is reinstated and the matter is remitted to the Justice Court for all further proceedings.

In this nonpayment summary proceeding, tenant failed to appear or answer the petition. When the petition came on to be heard, the Justice Court dismissed it on the ground that no non-military affidavit had been filed with the proof of service. We reverse.

Pursuant to 50 USC Appendix § 521, entitled "Protection of servicemembers against default judgments," in any civil proceeding in which the defendant does not make an appearance, "before entering judgment for the plaintiff," the court must require the plaintiff to provide an affidavit stating whether or not the defendant is in military service, including supporting facts, or stating that the plaintiff was unable to determine whether the defendant is in military service. This provision is applicable in New York courts pursuant to Military Law § 303 (3). Here, the court should have noted tenant's default and informed landlord that no default judgment could be entered until such an affidavit was filed.

Thus, the final judgment dismissing the petition is reversed, the petition is reinstated, and the matter is remitted to the Justice Court to afford landlord an opportunity to enter a default final judgment upon proper papers.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.

20110118

© 1992-2011 VersusLaw Inc.



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