Opinion
December 23, 1994
Appeal from the Supreme Court, Erie County, Whelan, J.
Present — Green, J.P., Wesley, Callahan, Doerr and Boehm, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Attorney's fees should not be awarded without conducting a hearing or requiring proof by affidavit substantiating the attorney's fees requested (see, Cooper v Cooper, 179 A.D.2d 1035; Kieffer v Kieffer, 163 A.D.2d 907, 908; Falcone v Falcone, 112 A.D.2d 796, 797). Defendant did not request a hearing. The parties refer to an attorney's affidavit in their briefs, but such affidavit is not in the record. We, therefore, modify the judgment appealed from by vacating the thirty-first and thirty-second decretal paragraphs and remit the matter to Supreme Court for a determination regarding attorney's fees based upon proper proof.
We otherwise affirm for reasons stated in the decision at Supreme Court (Whelan, J.).