Tri-Rail Designers & Builders, Inc. v Concrete Superstructures, Inc., et al.
Attorneys and Parties
Brief Summary
Civil procedure—default judgments: whether omission of a Servicemembers Civil Relief Act (SCRA) non-military affidavit automatically requires vacatur, and whether damages may be fixed without an inquest when not a sum certain.
Denied defendants’ CPLR 5015(a) motion to vacate their default and refused to set the matter for an inquest; left the default judgment (including damages) in place.
The damages portion of the default judgment was vacated and the matter remitted for an inquest on damages; the default on liability was not vacated.
Failure to submit a non-military affidavit under 50 USC § 3931(b)(1) [SCRA requires an affidavit stating whether the defendant is in military service before a default judgment may be entered] does not entitle a non-servicemember to vacate an otherwise valid default judgment; however, the damages were not a sum certain under CPLR 3215 [procedure for default judgments, including proof requirements and damages], and the award exceeded the ad damnum, necessitating an inquest under CPLR 3215(b) [judgment on default may not exceed or differ from the demand].
Background
Tri-Rail, the general contractor for a York Studios project, subcontracted concrete work to Concrete Superstructures, Inc. for $2,830,000. After Concrete allegedly failed to complete its work, Tri-Rail sued Concrete and its president, Doug Cartelli, in December 2021 for breach of contract, estimating damages of $916,001.86. Defendants defaulted. On July 27, 2022, the court granted Tri-Rail’s CPLR 3215 motion and entered judgment for $946,001.86 on July 29, 2022. Tri-Rail had not filed a non-military affidavit as to Cartelli under 50 USC § 3931(b)(1). In July 2023, defendants moved under CPLR 5015(a) [grounds to vacate default judgments] to vacate their default or, alternatively, to vacate damages and hold an inquest, arguing the omission of the SCRA affidavit and that damages were not a sum certain.
Lower Court Decision
The Supreme Court, Nassau County, denied the motion in full on January 19, 2024, leaving the default judgment intact despite the missing non-military affidavit and without directing an inquest on damages.
Appellate Division Reversal
The Appellate Division held that omission of a non-military affidavit, while a basis to deny a default motion in the first instance, does not automatically warrant vacatur where the defaulting party does not claim servicemember status. The SCRA remedy in 50 USC § 3931(g)(1) [servicemember may reopen a default judgment entered during service if military service materially affected the ability to defend and there is a meritorious defense] is limited to applications by or on behalf of servicemembers. Because defendants offered no claim that Cartelli was in active military service, the omission was a non-jurisdictional irregularity and did not justify vacating the default. However, damages were not for a sum certain, Tri-Rail relied only on its verified complaint’s “estimate,” and the judgment exceeded the ad damnum by $30,000, violating CPLR 3215(b). The court modified: vacated the damages portion, remitted for an inquest, and kept the July 29, 2022 judgment as security with execution stayed.
Legal Significance
Clarifies in the Second Department that the absence or defect of an SCRA non-military affidavit (50 USC § 3931[b][1]) is a correctable irregularity that does not require vacatur of a default judgment unless the application is by or on behalf of a servicemember under 50 USC § 3931(g)(1). Affirms that New York Military Law § 303(3) [state provision referencing the federal affidavit requirement and eliminating a separate attorney affidavit] does not dispense with the federal affidavit requirement for obtaining a default but also does not confer a vacatur right to non-servicemembers. Reinforces CPLR 3215(b) limits on default damages (must not exceed the demand and require inquest when not a sum certain).
In the Second Department, a missing SCRA non-military affidavit does not, by itself, allow non-servicemember defendants to vacate a default judgment; but when damages are not a sum certain or exceed the complaint’s demand, the court must conduct an inquest and may not award more than demanded.