(631)-271-3737
(718)-751-0226
(516)-307-0262
(347)-508-9316In NYS Military Law Section 300 the NYS legislature notes that it is important and essential that in certain cases there should be a temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in the military service. The basis for the law is that it would be unjust ,unfair and prejudicial to the service member to permit a legal action to proceed in the absence of a person who is serving our country any may not be able to defend the action.
NYS Military Law §304 provides that
“At any stage thereof, any action or proceeding in any court or in any adjudicatory or licensing proceeding before any state agency, including any public benefit corporation or public authority, or any political subdivision of the state, in which a person in military service is involved as a party, during the period of such service or within sixty days thereafter may, in the discretion of the court or adjudicatory or licensing agency before which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this act, unless, in the opinion of the court or adjudicatory or licensing agency, the ability of plaintiff to prosecute the action, or the defendant to conduct his defense, or in any adjudicatory or licensing proceeding the ability of the party to represent his interest, is not materially affected by reason of his military service.”
The Statute clearly provides that the Stay of a Court proceeding should not be granted where the Court is of the opinion that the ability of the Plaintiff to prosecute or the Defendant to conduct his defense is not materially affected by reason of his military service.
The federal statute is known as the Servicemembers Civil Relief Act , 50 USC §§3904-4043 (“SCRA”), and is applied to all of the states as stated in 50 USC §3912.
SCRA §3902 sets forth the purpose of the Act as follows:
“(1) to provide for, strengthen, and expedite the national defense through protection extended by this chapter to servicemembers of the United States to enable such persons to devote their energy to the defense needs of the nation; and
((2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of service members during their military service.”
A litigant will generally realize that a party is in the Active Duty of the Military when they conduct a Department of Defense Manpower search. The search will reveal whether the person was or is Active Duty, and the date of the commencement of the service. If the person is no longer in active duty, the end date of such service would be listed.
In addition, a Defendant or a person appearing in Court could assert that they are entitled to a stay due active duty in the military. In the context of foreclosure proceedings and eviction actions, the Courts will generally stay the proceeding where the action affects the service members primary residence, and they could lose their home.
An SCRA stay would also affect other litigants who are suing a person who is currently in the military service. The question is whether these actions should be stayed. For example, if there was a car accident and a person suffered personal injuries due to an accident that involved a person, who subsequently joined the Coast Guard. Should the injured party be stayed from commencing an action for monetary damages or if an action has been commenced, should it be stayed? These questions are not easy to answer.
In Isaacs v. Isaacs, 37 NYS2d 527 (Sup. Ct. 1942), the Court noted that “Section 304 of the Military Law was quite evidently not intended to give a litigant in the military service complete immunity from claims arising as a result of his civilian life and activities.” In Isaacs, the Court further noted that to construe the statute as a grant of complete immunity from actions, would be counter to the plain language of the statute and would cause injustice to litigants.
In Turchiano v. Jay Dee Transport, 109 AD2d 790, 486 NYS 2d 301 (2nd Dept. 1985), the Appellate Division ruled that “While the Supreme Court may not have abused its discretion under Military Law §304 in initially relegating this matter to the military suspense calendar, defendants subsequently failed to submit sufficient evidence of the continued unavailability of the Defendant Perezto enable it to make an adequate determination as to whether the action should remain in abeyance.” The burden clearly is on the Defendant seeking a stay of the action to prove that he is unable to defend the action. In the event that appearances are required by the Court in this action, I submit that telephonic, Microsoft meeting or appearances by virtual means would be available to the Defendant as an alternative to in person appearances.
In KCF v. TLSF, 15 Misc3d 119 (sup. Ct. 2007), the Court held that
“In deciding whether a soldier’s ability to defend a case is materially affected by his or her military service, the court must determine whether such factors as the servicemember’s geographical location or specific position or duties in the military prevents him or her from adequately defending the action in question (see Greco v Renegades, Inc., 307 AD2d 71, 712 [2003]). As a result, courts have generally looked to the servicemember’s commanding officer for guidance with respect to whether the defendant is available to attend court hearings or otherwise participate in the active defense of the subject action (see Warshawsky v Warshawsky, 215 AD2d 374, 375 [1995]; cf. Mirisoloff v Monroe, 16 AD3d 1161, 1162 [2005][defendants’ motion for a stay on the ground of military service, pursuant to the analogous federal statute in effect at the time, the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 USC Appendix § 501 et seq.), denied where they “failed to submit a letter or other communication from (the) commanding officer stating that (defendant Monroe’s) military duty prevent(ed) appearance and that military leave (was) not authorized for (defendant Monroe)” (internal quotation marks and citations omitted)]; accord Corrado v Harris, 13 Misc 2d 4, 4 [2006]). Moreover, the mere fact that a servicemember is stationed overseas, without more, generally is insufficient to warrant the imposition of a stay pursuant to section 304 (see Pinkowski v All-States Sawing and Trenching Inc., 290 AD2d 873, 873 [2002]). Similarly, a stay will not be granted where it is established that the servicemember in question has the ability to utilize leave time to defend the action (see Fischer v Keep, 231 AD2d 864, 864 [1996]; Matter of Theresa G. v Eric L., 133 Misc 2d 414, 417 [1986]).
In the instant case, the court finds that defendant has failed to demonstrate that her ability to defend the action is materially affected by reason of her current military service. Defendant has fully participated in the instant motion practice, which has expanded well beyond the parameters of her original motion seeking a stay, and although her counsel has stated that she is currently appearing for defendant solely on a “limited” basis, defendant currently appears to possess ready access to, and active communication with, her legal representative. Nor has she demonstrated that her future ability to either obtain or communicate with legal counsel or participate in motion practice as necessary will be materially affected by reason of her military service (see generally Guzman v Warenda, 161 AD2d 1017, 1018 [1990]).
In addition, to the extent the defendant shall be required to attend court hearings in the action, she has failed to establish that either her geographical location or military duties prevent her availability for such appearances to the extent that her defense of the instant action would be “materially affected” as defined by the relevant case law. Three separate letters from defendant’s former and current commanding officers and the current commanders’ legal representative have been submitted to the court confirming the availability of leave to defendant for the purpose of attending any court-ordered hearings which may be scheduled in this action.”
SCRA §3932(b)(1) permits a servicemember who is a defendant in the action or proceeding covered by this section to request a stay of the proceeding for a minimum of ninety (90) days. The Statute also grants the Court the discretion to stay a proceeding for a minimum of ninety (90) days.
An application for a stay must meet the following conditions set forth in SCRA §3932 (b)(2):
” (A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember’s ability to appear and stating a date when the servicemember will be available to appear.
(B) A letter or other communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.”
Section 3932(d)(1) allows a servicemember who is granted a stay of a civil action or proceeding under subdivision (b) to apply for an additional stay based on a showing of a continuing material effect of military duty on the servicemember’s ability to appear. The same information required under subdivision (b)(2) must be included with such application.
The ultimate decision regarding whether a party moving to receive the additional stay continues to deserve SCRA protections rests with the Court’s discretion.
Section 3932(d)(2) provides that “if the Court refuses to grant an additional stay of proceedings under paragraph (1), the court shall appoint counsel to represent the servicemember in the action or proceeding.”
The courts have generally interpreted the SCRA and its predecessor, the SSCRA, liberally to protect active duty servicemembers. However, where it is evident that the service member could defend the action while being active duty, the Court has the discretion to disallow a stay of the proceedings. As many Court conferences and appearances can be conducted virtually, the inability to appear in person in Court is not detrimental.
In the case of Keefe v. Spangenberg, 533 F. Supp. 49, 50 (W.D. Okla. 1981), the federal district court granted a soldier’s stay request for a one-month continuance under the SSCRA but denied his request for a stay until his expected date of discharge three years later. “Acknowledging the entirely laudable and important purposes of the Act,” the district judge wrote in his opinion, “it should also be recognized that its purpose was not to shield a defendant from trial for such duration as his voluntary, peacetime enlistment might provide, or as long thereafter as he might choose to stay on active duty…Where the proceedings can proceed without prejudicing the civil rights of the serviceman, and where the conduct of his defense is not materially affected by reason of his military service, the Act need not be used for delay.”
Under the Soldiers’ and Sailors’ Civil Relief Act, one in military service is not entitled to a stay of judgment against him as a matter of law if, in the opinion of a court, the ability of such person to comply with the judgment is not materially affected by reason of his military service. Lightner v. Boone, N.C.1942, 22 S.E.2d 426, 222 N.C. 205, certiorari granted 63 S.Ct. 770, 318 U.S. 750, 87 L.Ed. 1126, affirmed 63 S.Ct. 1223, 319 U.S. 561, 87 L.Ed. 1587, rehearing denied 64 S.Ct. 26, 320 U.S. 809, 88 L.Ed. 489.
In conclusion, the Court has the discretion to make the determination whether an action or legal proceeding should be stayed when a person is in active duty in the military. In making this determination, the Court will consider whether the service member has the ability to actively participate in the legal proceedings.
