Opinion
September 30, 1987
Appeal from the Supreme Court, Monroe County, Cicoria, J.
Present — Dillon, P.J., Denman, Green, Balio and Davis, JJ.
The motion to modify the Family Court order should have been presented to Judge Bonadio (CPLR 2221). We conclude, however, that Supreme Court had jurisdiction to transfer the motion to Judge Bonadio and that its failure to do so was error. The divorce decree was silent regarding future enforcement or modification of its provisions. As a consequence, Supreme Court and Family Court had equal power to entertain motions for modification of the custody and visitation portions of the decree (see, Family Ct Act § 652 [b]). Supreme Court was, therefore, obligated to transfer the motion to Judge Bonadio pursuant to CPLR 2221. We exercise our review powers to transfer plaintiff's motion to Judge Bonadio (see, CPLR 5501, 5522; Lipkis v Pikus, 64 N.Y.2d 830).
We agree with plaintiff's contention that a plenary hearing is necessary before the motion to modify the visitation provisions of the Family Court order can be resolved (Allen v. Kriesel, 87 A.D.2d 992; see also, Bayne v. Roberts, 112 A.D.2d 775; Matter of Ferro v. Ferro, 91 A.D.2d 1205).