Appellate Term, First Department: Department of Defense Record Inadmissible In Absence Of Identification Of Specific Terms Of Its Request

The Appellate Division, First Department denied the admission of evidence on a Department of Defense document identifying that the defendant was not "on active duty" relevant in determining a defense under the Soldiers' and Sailors' Civil Relief Act of 1940 where no proper foundation was laid in Tracey Towers Assoc. v Cobblah 2010 NY Slip Op 50061(U)

"Civil Court properly denied landlord's motion for a default judgment and warrant of eviction on the ground that landlord failed to submit sufficient evidence that tenant was not serving in the military (see Soldiers' and Sailors' Civil Relief Act of 1940 [50 USC Appendix § 521]). The conclusory, hearsay affidavit of an employee of landlord's law firm was not competent evidence of tenant's military status. While landlord also submitted a document from the Department of Defense Manpower Data Center suggesting that tenant was not "on active duty," landlord failed to offer any evidence demonstrating what information (other than tenant's first and last name) it provided to the Department to obtain that document (cf. 363 Assoc., LLC v Sharhan, 2 Misc 3d 928 [2003]). "

Counsel should also note the rule in New York State with respect to self-authenticating official documents.