Perell v. Krause , 761 N.Y.S.2d 840 ( 2003 )

—In an action for a divorce and ancillary relief, the defendant father appeals from an order of the Supreme Court, Westchester County (Shapiro, J.), entered June 24, 2002, which granted that branch of the plaintiff mother’s motion which was, in effect, for a preliminary injunction directing him, inter alia, to stay away from the parties’ children pending further order of the court.

Ordered that the order is reversed, on the law, with costs, and the branch of the motion which was, in effect, for a preliminary injunction directing the defendant, inter alia, to stay away from the parties’ children pending further order of the court is denied.

The plaintiff withdrew that branch of her motion which was for an order of protection and instead requested a preliminary injunction directing the defendant to stay away from the parties’ children pending further order of the court. The Supreme Court improperly granted that branch of the motion. In the absence of an evidentiary hearing, the Supreme Court had no basis for determining that the defendant’s brief appearance at a school play in which his son was performing was harmful to the welfare and safety of the children or contrary to their best interests (see Bagner v Bagner, 207 AD2d 367, 369 [1994]; Trigilio v Trigilio, 124 AD2d 971 [1986]; Pica v Pica, 96 AD2d 836, 837 [1983]; see also CPLR 6312 [c]). Altman, J.P., Krausman, Luciano and Crane, JJ., concur.