Burgos v. Sterina

—Order unanimously affirmed without costs. Memorandum: We agree with respondent that Family Court erred when it modified a prior order by temporarily changing the residence of the child without conducting an evidentiary hearing. That order has been superseded, however, by the order on appeal, which was made after an evidentiary hearing and modified the prior order by granting primary physical residence of the child to petitioner. The record supports the determination that the change in primary residence is in the best interests of the child (see, Matter of Smith v Patrowski, 226 AD2d 1073, 1074). (Appeal from Order of Monroe County Family Court, Miller, J. — Custody.) Present — Denman, P. J., Pine, Pigott, Jr., Hurlbutt and Balio, JJ.