Landlord's Non-Military Affidavit Insufficient

Landlord sued to evict tenant and later asked the court for a default judgment and eviction warrant based on tenant’s failure to appear. Landlord claimed that tenant wasn’t actively serving in the military, so that couldn’t be the reason for tenant’s default. The court and appeals court ruled against landlord, finding its evidence of tenant’s military status insufficient. The affidavit of an employee of landlord’s law firm was conclusory and contained no direct proof. Landlord also submitted a document from the U.S. Department of Defense Manpower Data Center suggesting that tenant was not “on active duty.” But landlord didn’t show what information it supplied to the department, other than tenant’s first and last name, to obtain that document.

Tracey Towers Associates v. Cbblah: NYLJ, 1/25/10, p. 26, col. 5 (App. T. 1 Dept.; Schoenfeld, JP, Shulman, Hunter, JJ)