Tri-Rail Designers & Builders, Inc. v Concrete Superstructures, Inc., et al.
Attorneys and Parties
Brief Summary
Whether the absence of a non‑military affidavit required by the Servicemembers Civil Relief Act (SCRA) before entry of a default judgment automatically entitles a civilian defendant to vacatur, and whether damages may be awarded without an inquest when not a sum certain.
Denied defendants’ motion to vacate their default and the default judgment, and denied the alternative request for an inquest on damages.
The denial of an inquest and the damages portion of the judgment; the matter was remitted for an inquest on damages.
Failure to submit an SCRA affidavit is a correctable irregularity that does not warrant vacatur as of right where the defaulting party is not a servicemember under 50 USC § 3931 [requires an affidavit stating whether defendant is in military service and permits reopening only on application by or for a servicemember]; but the damages were not a sum certain under CPLR 3215 [governing default judgments; clerk may enter only sum certain; otherwise court must take proof/inquest], and the award exceeded the amount demanded, necessitating an inquest.
Background
Tri-Rail, the general contractor for a York Studios project, subcontracted Concrete Superstructures, Inc. for concrete work under a $2.83 million contract. After Concrete allegedly failed to complete the work, Tri-Rail sued in December 2021 for breach of contract, estimating damages at $916,001.86. Defendants defaulted. On Tri-Rail’s CPLR 3215 motion, the court entered a default judgment in July 2022 for $946,001.86. The motion papers lacked a non‑military affidavit as to individual defendant Doug Cartelli under the Servicemembers Civil Relief Act (SCRA). Defendants moved under CPLR 5015(a) [grounds to vacate defaults] to vacate their default and the judgment, or alternatively to vacate the damages and hold an inquest, arguing the missing SCRA affidavit and that damages were not a sum certain.
Lower Court Decision
The Supreme Court, Nassau County, denied the motion in full, holding that the missing SCRA affidavit did not warrant vacatur of the default judgment and refusing to set the matter for an inquest.
Appellate Division Reversal
Modified. The Appellate Division held that failure to submit a non‑military affidavit does not, by itself, entitle a non‑servicemember to vacatur; CPLR 5015(a) relief is not available on that ground absent an application by or for a servicemember under 50 USC § 3931. However, because Tri-Rail’s damages were not a sum certain and the judgment exceeded the ad damnum, the court vacated the damages portion of the July 2022 judgment, remitted for an inquest on damages, and directed that the existing judgment stand as security with a stay of execution pending the amended judgment.
Legal Significance
This decision clarifies in the Second Department that the absence of an SCRA non‑military affidavit is a nonjurisdictional irregularity: it warrants denial of a default-judgment motion in the first instance but does not render an entered default judgment void or automatically subject to vacatur unless sought by or on behalf of a servicemember under 50 USC § 3931 [requires an affidavit of military status and provides a limited right to reopen a default judgment for servicemembers]. It also reinforces that damages beyond a sum certain require an inquest and that default judgments cannot exceed the amount demanded under CPLR 3215.
A missing SCRA non‑military affidavit does not give a civilian defendant an automatic right to vacate a default judgment, but plaintiffs must still prove non‑sum‑certain damages at an inquest and cannot recover more than demanded in the complaint.