Hinrichs v. Youssef

214 A.D.2d 604, 625 N.Y.S.2d 87, 1995 N.Y. App. Div. LEXIS 4094

Opinion

In an action to recover damages for fraud, assault, battery, conversion, and larceny, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Nassau County (Saladino, J.), dated December 7, 1993, which granted the motion of the third-party defendants pursuant to CPLR 3211 (a) (7) to dismiss the third-party complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the third-party complaint is reinstated.

Affidavits received on a motion to dismiss for failure to state a cause of action which has not been converted to a motion for summary judgment are not to be examined for the purpose of determining whether there is evidentiary support of the pleading (see, Rovello v Oro fino Realty Co., 40 NY2d 633, 635). Accordingly, it was error for the Supreme Court to grant the motion based on the failure of the third-party plaintiffs to set forth facts in their affidavit in opposition which supported the allegations in their third-party complaint. Moreover, on a motion to dismiss pursuant to CPLR 3211 (a) (7), the proper concern is whether the pleading states a cause of action rather than the ultimate determination of the facts (see, Stukuls v State of New York, 42 NY2d 272, 275). Sullivan, J. P., Miller, Copertino, Joy and Friedmann, JJ., concur.