Opinion
December 23, 1988
Appeal from the Niagara County Family Court, Halpin, J.
Present — Doerr, J.P., Denman, Balio, Lawton and Davis, JJ.
Order unanimously reversed on the law without costs and matter remitted to Niagara County Family Court for further proceedings, in accordance with the following memorandum: Petitioner appeals from an order which granted his motion to reargue but adhered to a prior order increasing his child support obligation. There is no basis for disturbing the order granting petitioner's motion to reargue. Respondent has waived any objection to the possible untimeliness of the motion by failing to oppose it on that ground and by failing to appeal from that portion of the order granting reargument. The court erred, however, in determining the cross petition for upward modification of petitioner's child support obligation without conducting a hearing (Wyser-Pratte v Wyser-Pratte, 66 N.Y.2d 715, 717; Waby v Waby, 143 A.D.2d 506; Torre v Torre, 142 A.D.2d 942). We note that the record does not support respondent's contention that the order was entered on consent.