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…