Appeal by tenant from a final judgment of the Justice Court, Town of Cornwall, Orange County (J. Thomson, J.), entered March 20, 2003, awarding landlord possession and the sum of $5,000.

Final judgment unanimously reversed without costs and matter remanded for a new trial.

In this nonpayment proceeding by the owner of the subject one-family house against his former domestic partner, the petition alleges the existence of an agreement to pay rent and specified defaults thereunder as well as service of a three-day rent notice. However, the petition does not allege the manner of service of the rent notice, and neither a copy of the notice nor an affidavit of its service was attached to the petition. At trial, tenant denied the existence of an agreement to pay rent and denied receipt of the three-day notice. After trial, the court found, inter alia, that a landlord-tenant relationship existed and that the affidavit of service of the three-day notice constituted proof of service. The court awarded landlord possession and $5,000, representing two months' rent.

In our view, the trial court could properly find that a landlord-tenant relationship existed. We note that landlord's testimony on this issue was supported by tenant's statement in her Family Court petition that Roy C. Sears was her landlord. Moreover, the issue is one of credibility, and such an issue is best left for determination by the trial court (Carriage Dev., Inc. v U.S. Underwriters Ins. Co., 4 AD3d 305 [2004]). [*2]

However, in the circumstances presented, it was improper for the court to rely on the affidavit of service of the three-day notice submitted at trial and to preclude tenant from challenging service of the notice. It is true that ordinarily an affidavit of service of a three-day notice constitutes adequate proof of service of the notice and that service of the notice cannot be challenged where the tenant appears generally and fails to challenge such service in the answer or by pre-answer motion (201-221 Realty v Headley, 2003 NY Slip Op 50979[U] [App Term, 2d & 11th Jud Dists]; 45 S. Elliot Partners v Merchant, NYLJ, June 6, 1996 [App Term, 2d & 11th Jud Dists]; City of New York v Jones, NYLJ, May 28, 1992 [App Term, 2d & 11th Jud Dists]; Greenbaum v Lipshitz, 69 NYS2d 37 [1946]). However, in the instant case, since the affidavit of service was not attached to the petition and the petition did not state how service was made, the petition was facially defective (Kentpark Realty Corp. v Lasertone Corp., 3 Misc 3d 28 [App Term, 2d & 11th Jud Dists 2004] ["in a nonpayment proceeding when the petition alleges the service of a statutory rent notice (RPAPL 711 [2]), the petition must state the manner of service, or the affidavit of service of the notice must be attached to the petition"]; see Beach v McGovern, 41 App Div 381 [1899]; 2 Dolan, Rasch's Landlord and Tenant - Summary Proceedings § 32:25 [4th ed]). Thus, landlord, to be entitled to judgment needed leave of court to amend the pleadings. Pursuant to CPLR 3025 (b, c), leave to amend pleadings may be granted "upon such terms as may be just." Here, tenant was clearly prejudiced by landlord's failure to attach the affidavit of service of the three-day notice to the petition or to otherwise allege the manner of service in the petition, in that she did not have an opportunity to rebut the contents of the affidavit. Accordingly, justice required that tenant be given such an opportunity at trial. Consequently, a new trial is required.

We note that there are indications in the record that the parties' two minor children may now be residing with tenant in the house and that landlord may not be paying child support. In these circumstances, should landlord prevail upon the new trial, it may well be inappropriate to allow landlord to execute a warrant that will have the effect of evicting his two minor children (see DeJesus v Rodriguez, 196 Misc2d 881 [2003]; see generally Sferrazza v Bergdorf Goodman, 213 AD2d 44, 48 [1995] [a parent's child-support obligation includes an obligation to provide shelter]).
Decision Date: December 23, 2004