The Second Department Holds, in a Case of First Impression in The Department, That the Failure to Comply with the Soldiers’ and Sailors’ Relief Act When Seeking a Default Judgment is a Mere Irregularity if the Defendant Was Not in the Active Military at the Time of the Default

• Posted on: Nov 14 2025

By: Jonathan H. Freiberger

In today’s BLOG we will discuss Tri-Rail Designers & Builders, Inc. v. Concrete Superstructures, Inc., a case decided on November 12, 2025, by the Appellate Division, Second Department. In Tri-Rail, the Court decided a “question which has not been directly addressed” in the Second Department involving the impact of non-compliance with the Servicemembers Civil Relief Act (f/k/a the Soldiers’ and Sailors’ Civil Relief Act) (the “Act”) on obtaining a default judgment.

The plaintiff in Tri-Rail was a general contractor hired for a construction project that entered into a written contract with a concrete subcontractor. The subcontractor did not complete the project and was sued, along with its president, by the general contractor. The defendants failed to appear, and the general contractor moved for, and was granted, a default judgment. The following year, the defendants moved, pursuant to CPLR 5015(a), to vacate the default judgment based on the general contractor’s admitted failure to support its motion with a non-military affidavit as to the subcontractor’s president. The subcontractor argued that the general contractor’s omission warranted the requested vacatur. The subcontractor’s president was personally served with process and never claimed to be in the active military. The defendants appealed from the motion court’s denial of the motion.

The Second Department affirmed. The Court recognized that to succeed on a motion for leave to enter a default judgment, the plaintiff must demonstrate: “(1) service of process upon the defendant, (2) the failure of the defendant to appear or answer the complaint, and (3) the merits of the plaintiff’s cause of action.” In addition, “a motion for leave to enter a default judgment must be supported by what has been colloquially termed a “non-military affidavit,” which “is derived from federal law” not the CPLR. The Court noted that “the purpose of the Soldiers’ and Sailors’ Civil Relief Act is to prevent default judgments from being entered against members of the armed services in circumstances where they might be unable to appear and defend themselves.” (Citations, internal quotation marks and brackets omitted.) As stated by the Court, non-military affidavits must be based on an investigation and supported by specific facts. Further, the investigation must be conducted after the default, and not simply after the commencement of the action.[1]

In framing the relevant issue on appeal and in articulating its holding, the Court stated:

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. However, the instant appeal presents a more nuanced question: where a default judgment was improperly entered in the absence of a non-military affidavit, is a defendant entitled to vacatur of the default judgment as of right? We hold that the failure to provide a non-military affidavit does not automatically warrant vacatur of an otherwise validly entered default judgment. [Citations omitted.]

In reaching its conclusion, the Court analyzed the statutory text of the Act, which limits the ability to vacate default judgments to applications “made ‘by or on behalf of the servicemember.’” Accordingly, the remedies afforded by the Act are not available to everyone. Thus, the Court held 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.” The Court explained that:

where, as here, a default judgment was improperly entered, in order to be afforded the protection of the Act, a defendant seeking vacatur must establish as part of their initial burden that this remedy is sought “by or on behalf of the servicemember.” To hold otherwise and to grant any defendant the right to challenge a default judgment would permit civilians to take advantage of those protections that were specifically afforded to our servicemembers and would belie the purpose of the Act. What was intended by the legislature as a shield should not be used permissively as a sword.

The Court stressed that its holding does not alter a plaintiff’s burden on an application for leave to enter a default judgment. Such a movant is still required to provide a non-military affidavit and the failure to provide one warrants denial of the application.

According to the Court, the issue decided was never addressed previously in the Second Department but is consistent with decisions from other New York courts.

Simply stated, because the president never purported to be in the active military, the defendants failed to establish that he “is entitled to the protections of the Act and, therefore, the general contractor’s failure to “support its motion with a non-military affidavit was a mere irregularity and does not warrant vacatur of the defendants’ default….”

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] Typically, inquiries are made to the Department of Defense Manpower Data Center, which provides a statement indicating whether an individual is on active military service.

Tagged with: Civil Practice Law and Rules, Construction Litigation, Default Judgment, Service of Process