Opinion
February 21, 1986
Appeal from the Supreme Court, Monroe County, Curran, J.
Present — Doerr, J.P., Boomer, Green, O'Donnell and Pine, JJ.
Order unanimously modified, on the law, and, as modified, affirmed, and matter remitted to Supreme Court, Monroe County, for further proceedings, in accordance with the following memorandum: Supreme Court improperly granted the grandparents visitation rights without first conducting an evidentiary hearing to determine the best interests of the grandchild (see, Kresnicka v. Kresnicka, 48 A.D.2d 929; see also, People ex rel. Smith v. Kudler, 71 A.D.2d 634; Matter of Frances E. v. Peter E., 125 Misc.2d 164, 170). The order appealed from is modified, therefore, by reversing that part granting permanent visitation privileges and remitting the matter to Supreme Court to conduct an evidentiary hearing to determine whether visitation of the grandchild is warranted (see, Lo Presti v. Lo Presti, 40 N.Y.2d 522, 526-527), and if so, the extent thereof. Until the determination of the matter after a hearing, the present order of visitation shall remain in effect as a temporary order.