Only Servicemembers May Vacate Default Judgments for Missing SCRA Affidavit; Inquest Required When Damages Are Not a Sum Certain

Introduction

In Tri-Rail Designers & Builders, Inc. v. Concrete Superstructures, Inc., 2025 NY Slip Op 06209 (App Div, 2d Dept Nov. 12, 2025), the Second Department directly addressed, for the first time in that department, a recurring procedural question in default practice: when a plaintiff obtains a default judgment without filing the affidavit required by the federal Servicemembers Civil Relief Act (SCRA)—often called a “non-military affidavit”—is a non-servicemember defendant entitled to vacatur of the judgment as of right?

The court held no. While the absence of a non-military affidavit requires denial of a motion for a default judgment in the first instance, once a default judgment has been entered, the omission is a mere irregularity, not a jurisdictional defect, and it does not entitle a civilian defendant to vacatur as of right. Only a servicemember (or someone acting on their behalf) may move to reopen a default judgment on this ground under 50 USC § 3931(g), and only upon the statute’s specific showings.

The court also corrected the judgment’s damages component. Because the plaintiff’s default application relied on an “estimated” damages figure not reducible to a sum certain and presented no extrinsic proof, an inquest was required. The court therefore vacated the damages portion, remitted for an inquest, and directed that the 2022 judgment stand as security with a stay of execution pending reassessment.

Parties: Plaintiff Tri-Rail Designers & Builders, Inc. sued Concrete Superstructures, Inc. and its president, Doug Cartelli, for breach of a concrete work subcontract on a York Studios project. After defendants defaulted in appearing or answering, the Supreme Court (Nassau County) entered judgment. Defendants moved to vacate the default and judgment under CPLR 5015(a), principally arguing the plaintiff failed to submit a non-military affidavit for Cartelli as required by the SCRA, and alternatively seeking an inquest on damages.

Summary of the Opinion

• SCRA compliance at entry: A non-military affidavit remains required to obtain a default judgment. Failure to supply it should result in denial of a CPLR 3215 motion.
• No automatic vacatur post-judgment for civilians: Where a default judgment is entered without the non-military affidavit, a non-servicemember defendant is not entitled to vacatur as of right. The omission is an irregularity, not a jurisdictional defect.
• Who may reopen and how: Only a servicemember (or someone on their behalf) may reopen a default judgment under 50 USC § 3931(g), and only by showing (i) military service materially affected the ability to defend, and (ii) a meritorious or legal defense.
• Damages: Default admits liability, not damages. Because the plaintiff’s damages were merely “estimated” and not a sum certain, and because the award exceeded the ad damnum, the court vacated the damages portion and remitted for an inquest. The prior judgment stands as security with a stay of execution.

Analysis

Precedents and Authorities Cited

The panel grounded its analysis in the text and purpose of the SCRA and aligned its approach with New York and out-of-state authority:

• Servicemembers Civil Relief Act (50 USC § 3931):
  • Affidavit requirement at default: Before entering a default judgment, courts must require an affidavit stating whether the defendant is in military service, with facts supporting the statement, or stating the inability to determine status (50 USC § 3931[b][1]). The investigation must be substantive and typically occurs after the default to confirm current status, often via the Department of Defense Manpower Data Center (DMDC).
  • Reopening remedy: A court “shall” reopen a default judgment upon application by or on behalf of a servicemember if military service materially affected the ability to defend and the servicemember has a meritorious defense (50 USC § 3931[g][1]).
• New York Military Law § 303(3): The Legislature repealed the state affidavit requirement in 1987 but expressly preserved federal requirements; courts may still impose the federal affidavit requirement. Legislative materials clarify the 1987 amendment eliminated redundant attorney affirmations—not the federal affidavit obligation.
• CPLR 3215 (default judgments) and CPLR 5015(a) (vacatur):
  • Default proof: service, default, and a viable claim are required; plus the SCRA affidavit.
  • Vacatur grounds: Although CPLR 5015(a) is not exhaustive (Woodson v Mendon Leasing Corp., 100 NY2d 62), the SCRA supplies a specific vacatur remedy limited to servicemembers.
• New York decisions recognizing the SCRA omission as a non-jurisdictional irregularity and limiting vacatur to servicemember applications:
  • Gantt v North Shore-LIJ Health Sys., 140 AD3d 418 (1st Dept) and Bigio v Gooding, 213 AD3d 480 (1st Dept): deficient or absent SCRA affidavits are irregularities; absent proof of military service, civilians cannot vacate on that basis.
  • Matter of Petre v Lucia, 205 AD3d 438 (2d Dept): failure to provide the affidavit warrants denial of a default judgment application in the first instance.
  • Dept. of Hous. Preserv. & Dev. v West 129th St. Realty Corp., 9 Misc 3d 61 (App Term 1st Dept): thorough discussion and concurrence noting national consensus that the absence of a valid affidavit renders judgments voidable—not void ab initio—at the servicemember’s election.
  • Citibank, N.A. v McGarvey, 196 Misc 2d 292 (Civ Ct, Richmond County); Tivoli Assoc. v Foskey, 144 Misc 2d 723 (Civ Ct, Kings County): federal requirement persists in New York practice.
  • Federal district court practice on affidavit substance and timing: Innovative Sports Mgt., Inc. v Triangle Eatery & Bar, LLC, 2022 WL 18151927 (EDNY); Uribe v Nieves, 2018 WL 4861377 (EDNY); Bocon v 419 Manhattan Ave. LLC, 2025 WL 832730 (EDNY) (investigation must post-date the default; personal-knowledge facts are required).
• Out-of-state concordance treating SCRA affidavit defects as irregularities usable only by servicemembers:
  • Desjarlais v Gilman, 143 Vt 154, 463 A2d 234; Poccia v Benson, 99 RI 364, 208 A2d 102; Haller v Walczak, 347 Mich 292, 79 NW2d 622; Snapp v Scott, 167 P2d 870 (Okla.); Lyle v Haskins, 24 Wash 2d 883, 168 P2d 797; and analogous NJ and CT decisions (PNC Bank, N.A. v Kemenash; Hart, Nininger & Campbell Assocs. v Rogers).
• Damages on default and inquest practice:
  • Default admits liability, not damages: Rokina Opt. Co. v Camera King, 63 NY2d 728; Castaldini v Walsh, 186 AD3d 1193; Glenwood Mason Supply Co. v Frantellizzi, 138 AD3d 925.
  • Sum certain vs. inquest: Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568; Ross v Sunrise Home Improvement, 186 AD3d 633; Pikulin v Mikshakov, 258 AD2d 450; CPLR 3215(a), (b); 22 NYCRR 202.46(b).
  • Ad damnum limitation: CPLR 3215(b) bars judgment exceeding the amount and type demanded; 96 Pierrepont, LLC v Mauro, 19 AD3d 667; P & K Marble v Pearce, 168 AD2d 439.

Legal Reasoning

The court’s reasoning proceeds in two steps: what is required to obtain a default judgment, and who may undo a judgment if the affidavit is missing.

1. Entry stage: The SCRA’s text is unequivocal—before entering a default judgment, the court “shall require” a plaintiff’s affidavit addressing the defendant’s military status (50 USC § 3931[b][1]). New York practice incorporates this federal requirement. Accordingly, failure to submit a non-military affidavit warrants denial of the CPLR 3215 motion. The affidavit must be fact-specific and reflect an investigation conducted after the default; conclusory attestations or “information and belief” are insufficient.
2. Vacatur stage: The SCRA also contains its own remedial provision—reopening by or on behalf of a servicemember upon specific showings (50 USC § 3931[g]). The Second Department emphasizes statutory text and purpose: the SCRA is a shield for those in uniform, not a procedural sword for civilian defendants. Thus, a missing affidavit does not confer on a non-servicemember an automatic right to vacate; the defect is an irregularity, not a jurisdictional nullity. To obtain vacatur on this ground, the moving party must demonstrate that the application is by or on behalf of a servicemember and satisfy § 3931(g)’s “material effect” and meritorious-defense requirements. Otherwise, ordinary CPLR 5015(a) grounds must be shown (e.g., excusable default and a meritorious defense, lack of jurisdiction, fraud), or some extraordinary basis under the court’s inherent power (Woodson), none of which were established here.

Applying these principles, the court held that defendants—who did not claim military status and who were personally served—could not vacate the default merely because the plaintiff failed to file a non-military affidavit as to Cartelli. At the same time, because the plaintiff’s damages were not ascertainable as a sum certain and the court awarded more than was demanded, an inquest was mandatory, and the damages portion of the judgment could not stand as entered.

Impact and Practical Implications

This decision establishes binding guidance in the Second Department and harmonizes it with the First Department and broader consensus:

• For plaintiffs and counsel:
  • Always include a compliant non-military affidavit for each natural-person defendant when moving for a default judgment. Conduct and document a post-default investigation (e.g., DMDC certificate) and lay out specific facts in the affidavit.
  • Do not rely on “information and belief” or pre-default checks; courts may reject such submissions.
  • If damages are not a sum certain, be prepared to prove damages at an inquest with admissible proof (invoices, contracts, change orders, expert valuations). Do not exceed the ad damnum; seek leave to amend if necessary before judgment.
• For defendants:
  • Non-servicemembers cannot vacate a default judgment as of right based on a missing SCRA affidavit. Focus instead on traditional CPLR 5015(a) grounds (excusable default plus meritorious defense, lack of jurisdiction, fraud) or, if applicable, the SCRA remedy if the defendant is a servicemember.
  • Servicemembers (or those acting on their behalf) should invoke 50 USC § 3931(g) and be prepared to show (i) military service at the time of default (or within 60 days after), (ii) material effect on the ability to defend, and (iii) a meritorious defense.
  • Even after default, defendants may contest damages; seek an inquest where damages are not a sum certain or where the judgment exceeds the demand.
• For courts and clerks:
  • Continue to police SCRA compliance at the default-entry stage. Absent a proper affidavit, deny the CPLR 3215 motion.
  • Treat affidavit omissions as irregularities rather than jurisdictional defects post-judgment, with vacatur limited to servicemember applications under § 3931(g).
  • Ensure damages awards on default do not exceed the ad damnum and that inquests are conducted when damages are not a sum certain.

In broader terms, the decision curtails technical challenges to default judgments by civilian defendants premised solely on SCRA affidavit defects, curbing strategic gamesmanship and reinforcing the SCRA’s narrow protective purpose. Concurrently, it underscores rigorous damages scrutiny in default practice—particularly in construction disputes where damages rarely are “sum certain.”

Complex Concepts Simplified

• Non-military affidavit (SCRA affidavit):
  • A sworn statement filed by a plaintiff before a default judgment is entered, confirming whether a defendant is in active military service, supported by facts from a current investigation (often a DMDC search).
  • Purpose: to prevent default judgments against servicemembers who may be unable to appear due to service obligations.
• Sum certain:
  • An amount that can be calculated by simple arithmetic from definite figures (e.g., an unpaid note with a fixed principal and interest rate).
  • If damages are a sum certain, the clerk may enter judgment upon proper proof without a judicial inquest. If not, the court must conduct an inquest.
• Inquest:
  • A limited hearing at which a plaintiff presents proof of damages against a defaulting defendant. The court evaluates evidence and fixes the amount of the judgment.
• Ad damnum clause:
  • The portion of a pleading that states the amount and type of relief sought. On a default judgment, the court may not award more or different relief than demanded in the complaint (CPLR 3215[b]).
• Irregularity vs. jurisdictional defect:
  • An irregularity is a procedural error that does not nullify a judgment; it may be corrected or disregarded absent prejudice. A jurisdictional defect deprives the court of power and renders the judgment void.
  • The missing SCRA affidavit is an irregularity—not a jurisdictional defect—such that only a servicemember may demand vacatur under the statute.

Case Application Highlights

• The plaintiff did not file a non-military affidavit as to the individual defendant, Cartelli. Nonetheless, defendants made no claim of military service and were personally served. Vacatur was properly denied on that ground.
• The damages in the verified complaint were expressly “estimated” at $916,001.86, and the final judgment awarded $946,001.86—$30,000 more than the demand—without an inquest or supporting proofs. This required vacatur of the damages portion and a remand for an inquest.
• The 2022 judgment remains as security, but execution is stayed pending the inquest and entry of an amended judgment. This preserves the plaintiff’s position without permitting collection on an untested damages figure.

Conclusion

Tri-Rail Designers & Builders, Inc. v. Concrete Superstructures, Inc. clarifies two critical points of New York default practice in the Second Department:

1. The SCRA’s non-military affidavit is required to obtain a default judgment, but its omission does not, standing alone, entitle a non-servicemember defendant to post-judgment vacatur. The statute’s reopening remedy belongs to servicemembers (or those acting for them) and requires proof of material effect and a meritorious defense.
2. Default judgments on unliquidated claims demand rigorous damages proof. Where damages are not a sum certain—as in construction breach claims—courts must conduct an inquest, and awards may not exceed the complaint’s demand.

The opinion aligns the Second Department with the First Department and a nationwide consensus: the SCRA is a shield tailored to protect servicemembers from the unique burdens of military service, not a universal escape hatch from default judgments. At the same time, the court reaffirms that default practice cannot bypass the fundamental requirement to prove damages and to honor the ad damnum limitations. For litigants and courts alike, the decision provides a clear, practical roadmap for compliant default procedures and for the proper correction of errors without undermining the SCRA’s core protective mission.