Default judgments are a common tool in New York when a defendant fails to appear or answer a lawsuit. But plaintiffs must follow certain rules—like submitting a “non-military affidavit” to show that the defendant isn’t on active military duty, as required by the Servicemembers Civil Relief Act (50 USC § 3931). Until recently, it wasn’t entirely clear whether missing that affidavit automatically allows a defendant to undo a default judgment. The Appellate Division, Second Department clarified this in Tri–Rail Designers & Builders, Inc. v. Concrete Superstructures, Inc., 2025 WL 3153350(App. Div. 2d Dept’ 2025).

In this case, Tri–Rail hired Concrete Superstructures to do concrete work on a construction project. Concrete allegedly failed to complete the work, and Tri–Rail sued for about $916,000. The defendants didn’t respond, so Tri–Rail moved for a default judgment. The court entered judgment for $946,000.

The defendants later argued the judgment should be vacated because the plaintiff hadn’t submitted a non-military affidavit for the company president. The court agreed that affidavits are required when moving for a default, but held that failing to submit one does not automatically undo the judgment because the president was not an active servicemember. The protections under the Servicemembers Civil Relief Act only apply to military personnel. For civilians, missing affidavits are a procedural hiccup, not a legal loophole.

The court did, however, remand the case for an inquest on damages. While a defaulting defendant admits liability, they do not automatically accept the plaintiff’s claimed damages. The original judgment exceeded the amount requested in the complaint, so the court ordered a proper review to ensure the award.

The Tri–Rail decision reminds lawyers to be thorough when filing for default judgments, but also clarifies that civilians can’t use military protections to challenge a default once it’s entered.

Giulia R. Marino, Esq.