Opinion
February 19, 1991
Appeal from the Supreme Court, Nassau County (McCaffrey, J.).
Ordered that the order is affirmed, with costs.
In order to obtain a reduction of support or alimony provisions of a judgment of divorce, the party seeking the reduction must establish a substantial change in circumstances (see, Matter of Boden v Boden, 42 N.Y.2d 210; Nordhauser v Nordhauser, 130 A.D.2d 561; Pintus v Pintus, 104 A.D.2d 866; Kurtz v Kurtz, 58 A.D.2d 1006; Swartz v Swartz, 43 A.D.2d 1012; Matter of Rosenthal v Rosenthal, 36 A.D.2d 692; Meyrowitz v Meyrowitz, 34 A.D.2d 965).
In the case at bar, the husband has made no showing of a substantial change in circumstances; therefore the denial of his application without a hearing was proper (see, Kurtz v Kurtz, supra; Swartz v Swartz, supra; Matter of Rosenthal v Rosenthal, supra; Meyrowitz v Meyrowitz, supra).
There is no merit to the husband's claims of a waiver on the wife's part. While parties may waive their rights which arise under an agreement or judgment, waiver is not created by negligence and may not be inferred from mere silence. What is required is affirmative conduct evidencing a waiver (see, Thompson v Lindblad, 125 A.D.2d 460). As the wife enforced her rights in 1976 and obtained a money judgment against the husband for 18 weeks of arrears, the fact that she did not institute the instant application for a period of over 10 years does not operate as affirmative evidence of a waiver. Bracken, J.P., Lawrence, Eiber, Harwood and Rosenblatt, JJ., concur.