Parkash v. Almonte, Bronx County Landlord Tenant Court Index No. 22722/2013

This case points out the danger to landlords that skimp on process service.  Here, the danger is associated with Affidavits of Non-Military Service.

In Parkash, the Landlord commenced twenty-five separate summary non-payment proceedings in Bronx County and thereafter obtained the issuance of a warrant of eviction on the grounds that each of the tenants had defaulted.   Each application was supported by a separate Affidavit of Non-Military Service in which the same process server swore that he spoke with each of the thirty-one respondents (some apartment units had more than one tenant) and ascertained that the respondents were not in military service.

Various provisions of Federal and New York State law provide that a person (or his  or her dependents) cannot be evicted from their home while serving in the U.S. military.  Accordingly, the law provides that before a default judgment may be taken, the Landlord must submit an Affidavit of Non-Military Service proving that the Landlord has conducted an appropriate investigation and determined that the tenant is not serving in the military.  The New York City Civil Court has published Legal/Statutory Memorandum 152, which contains helpful guidelines for the preparation of Affidavits of Non-Military Service.

In Parkash, each of the Affidavits of Service were facially adequate.  But taken together the Affidavits of Service told a story that a single process server personally visited nineteen separate apartment buildings in eight different zip codes and conducted twenty-five conversations in a three hour and seven minute period.  And a Courthouse clerk noticed.

Is it plausible that the process server’s Affidavits of Non-Military Service were accurate?  Yes, but Judge Susan Avery, once the issue was brought to her attention, was not prepared to assume so.  Judge Avery issued a sua sponte  Order summoning the process server to testify.  She directed the process server to bring a log book and a GPS device to support his claims.  Just to drive home the point that she was serious, Judge Avery’s decision states that depending on the testimony she might refer this matter to the District Attorney, the Office of the Attorney General or the Department of Consumer Affairs.

The direction to the process server to bring his GPS device is particularly noteworthy.  Recent amendments to the New York City Administrative Code and the Rules of the City of New York require process servers to “carry at all times during the commission of his or her licensed activities a device to establish electronically and record the time, date, and location of service of process. . . .” Judge Avery held that this rule applied to ascertaining the tenant’s military status.

The lessons of Parkash are clear:

(1)Landlords who attempt to skimp on process service do so at their peril;

(2) Judges retain for themselves the discretion to conduct their own investigations when the process service appears defective.

One of the most efficient ways a landlord or any plaintiff may prove that the tenant, or any defendant, is not in the military is to run a search on the U.S. Department of Defenses Manpower Database.  Two pieces of information are required to run the search: (1) the person’s name and (2) his or her social security number or date of birth.  This is yet another item on the long list of reasons that landlords really should obtain their tenants’ social security numbers at the time the tenant executes the lease.