The Servicemembers Civil Relief Act protects military personnel from having court judgments taken against them while they're on active duty. You can provide the court with such proof by submitting an Affidavit of Non-Military Service. This is especially important in Landlord & Tenant, Matrimonial and Foreclosure actions in New York City. In many instances, the Plaintiff in the actions will request the process service agency to submit an affidavit of Non-Military Service. Process servers are fully knowledgeable of filling out this affidavit as it is usually requested in the course of their everyday business.
An investigation carried out for the purpose of discovering a person’s military status may be carried out at any time after the commencement of the actual action or proceeding. The commencement of the action or proceeding in general means delivery of the papers, not completion of service. In the practical sense, the investigation may take place at any time subsequent to the service and prior to the entry of the failure to appear/answer judgment. To be perfectly clear, the NonMilitary Affidavit may be filed together with the Affidavit of Service and originating papers, or anytime thereafter up to and including the application for the default judgment.
The investigation may be carried out, and the Affidavit sworn to, by any of the following: a) The Plaintiff/Petitioner or his/her attorney. b) Anyone requested to do so by the Plaintiff/Petitioner or his/her attorney. c) Anyone hired for that purpose by the Plaintiff/Petitioner or his/her attorney. d) An employee of the Plaintiff/Petitioner or his/her attorney.
The Non-Military Affidavit must give facts as to the basis for the affiant’s belief that the defendant or respondent is not in the military service. “Facts” requires more than a simple conclusory statement that the defendant or respondent is not in the military service. A bare statement to that effect is to be considered inappropriate and may be rejected by the Clerk as insufficient. The statement should indicate the reason(s) for the affiant’s belief. Possible reasons might be: a) Asked defendant/respondent personally. b) Spoke to neighbors who know defendant/respondent personally. c) Spoke with employees of landlord who work in the building and are acquainted with defendant/respondent. d) Spoke to defendant/respondent’s employer or co-workers. e) Looked up defendant/respondent’s record: Example: having application which must be updated as to military status by law. The Investigator looked up records of defendant/respondent. The records indicated that the defendant/respondent is not in the military. The records must be identified. f) Proof from the Defense Manpower Data Center (DMDC). 50 App USCA § 583 allows a certificate signed by the Secretary of the DMDC to be used as prima facie evidence as to the status of a person. See CCM 158 for details. g) Defendant/respondent is elderly (approximate age). h) Defendant/respondent is infirm (wheelchair, crutches, etc.). I) Person giving information works with defendant/respondent. j) Defendant/respondent receives public assistance. k) Telephone conversation, provided that the person who did the investigation establishes that s/he knows and has a basis to know, the voice of the conversant. l) Any other type of investigation is possible, but must be outlined in a manner similar to the above examples.
You must also be able to identify the person who the affiant has spoken to in a describable manner and where you spoke to that person.
This investigation can be done by a licensed New York process server. In particular at DJ&H Process Service we have completed many Affidavits on behalf of attorneys and litigants over the years. If you need an Affidavit of Non-Military Service completed for your case, you can contact DJ&H Process Service.
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