Berg v. Berg

—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.