ORDERED that the plaintiff's motion for a default judgment is considered under CPLR §3215 and 50 USC §521, and is hereby denied; and it is further

ORDERED that movant shall, within ten (10) days of this Order, serve a copy of this Order [*2]upon the defendant at his last known address, as ascertained by a showing of due diligence, by certified mail, return receipt requested, and pursuant to CPLR 2103(b)(l), (2) or (3) and shall thereafter file the affidavit(s) of service with the Clerk of the Court; and it is further

In this action, the plaintiff alleges that in June 2003, the defendant was hired by the plaintiff to supervise plumbing installations at newly constructed homes for customers of the plaintiff. Pursuant to the parties' employment agreement, the defendant was also responsible for managing the plaintiff's Mattituck office and supervising other employees at that office. The complaint alleges that the defendant committed various criminal acts while in the employ of the defendant. According to the plaintiff, such criminal acts by the defendant form the basis for the civil causes of action set forth in the plaintiff's complaint. Plaintiff now moves for a default judgment against the defendant for his failure to answer or otherwise appear in this action.

In its complaint, the plaintiff seeks money damages against the defendant for, inter alia, breach of contract. With regard to a default in an action involving a contractual obligation, CPLR §3215(g)(3)(i) states that:

When a default judgment based upon nonappearance is sought against a natural person in an action based upon nonpayment of a contractual obligation an affidavit shall be submitted that additional notice has been given by or on behalf of the plaintiff at least twenty days before the entry of such judgment, by mailing a copy of the summons by first-class mail to the defendant at his place of residence in an envelope bearing the legend "personal and confidential" and not indicating on the outside of the envelope that the communication is from an attorney or concerns an alleged debt. In the event such mailing is returned as undeliverable by the post office before the entry of a default judgment, or if the place of residence of the defendant is unknown, a copy of the summons shall then be mailed in the same manner to the defendant at the defendant's place of employment if known; if neither the place of residence nor the place of employment of the defendant is known, then the mailing shall be to the defendant at his last known residence.

Although the plaintiff's action sounds in breach of a contractual obligation, plaintiff has failed to establish compliance with the requirements set forth in CPLR §3215(g)(3)(i) regarding additional notice. The summons and complaint lists the defendant's address as 57 Culross Road, Rocky Point, New York. Plaintiff's counsel's affirmation in support of the motion states she was present in court when the defendant pleaded guilty to several criminal charges. Counsel does not, however, set forth the date of such guilty pleas. Counsel also indicates that at the time of the September 5, 2006 affirmation, the defendant "[was] about to commence a prison sentence of 6 months." Notwithstanding counsel's belief on September 5, 2006 that the defendant's jail term was imminent (and that the defendant would then be "residing" in prison), the plaintiff mailed a copy of the default motion to the defendant on September 20, 2006 at 100 Craig Street, Islip Terrace New York. Given these issues, even if the defendant's "last known address" was 100 Craig Street, Islip Terrace as stated in the affidavit of service, the language of the affidavit fails to establish compliance with the remaining requirements of CPLR 3215(g)(3)(i) regarding additional notice. Therefore, the plaintiff's motion for default must be denied. [*3]

The plaintiff's affidavit of service of the summons and complaint is also defective. Title 50 USCS §521, which applies in state courts, was enacted for the "protection of service members against default judgments." Pursuant to 50 USCS §521(a), this section "applies to any civil action or proceeding in which the defendant does not make an appearance" (emphasis supplied). Under 50 USCS §521(b)(1), "the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit: (A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service." Under §521(b)(4), "[t]he requirement for an affidavit under paragraph (1) may be satisfied by a statement, declaration, verification, or certificate, in writing, subscribed and certified or declared to be true under penalty of perjury" (emphasis supplied).

In this matter, the plaintiff's affidavit of service of the summons and complaint does not contain the statutorily required statement as to the military status of the defendant. Therefore, pursuant to 50 USCS §521(b), a judgment of default may not be entered against the defendant. The plaintiff's motion must also be denied on these grounds.

This constitutes the Decision and Order of the Court.

Dated:

PETER H. MAYER, J.S.C.