Berg v. Berg

Appellate Division of the Supreme Court of New York

Berg v. Berg

194 A.D.2d 339, 598 N.Y.S.2d 493

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 8, 1993

StatusPublished

This text of 194 A.D.2d 339 (Berg v. Berg) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berg v. Berg, 194 A.D.2d 339, 598 N.Y.S.2d 493 (N.Y. Ct. App. 1993).

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Opinion

—Order, Supreme Court, New York County (Walter M. Schackman, J.), entered March 16, 1992, insofar as appealed from, unanimously affirmed, without costs.

While a modification of a visitation order may not be based upon affidavits alone without first holding a hearing (Piro v Piro, 82 AD2d 783), the right to such a hearing may be waived (Kuleszo v Kuleszo, 59 AD2d 1059, lv denied 43 NY2d 647). Here, although the court had ordered a hearing, defendant withdrew his motion and counsel informed the court that he did not intend to seek visitation. Additionally, we note that the court had discussion with counsel and had recently interviewed the children. Accordingly, in the circumstances presented, the order of the court was not jurisdictionally defective. Concur—Murphy, P. J., Sullivan, Carro, Kupferman and Rubin, JJ.

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—Order, Supreme Court, New York County (Walter M. Schackman, J.), entered March 16, 1992, insofar as appealed from, unanimously affirmed, without costs.

While a modification of a visitation order may not be based upon affidavits alone without first holding a hearing (Piro v Piro, 82 AD2d 783), the right to such a hearing may be waived (Kuleszo v Kuleszo, 59 AD2d 1059, lv denied 43 NY2d 647). Here, although the court had ordered a hearing, defendant withdrew his motion and counsel informed the court that he did not intend to seek visitation. Additionally, we note that the court had discussion with counsel and had recently interviewed the children. Accordingly, in the circumstances presented, the order of the court was not jurisdictionally defective. Concur—Murphy, P. J., Sullivan, Carro, Kupferman and Rubin, JJ.

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Bluebook (online)

194 A.D.2d 339, 598 N.Y.S.2d 493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berg-v-berg-nyappdiv-1993.

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