HINRICHS v. YOUSSEF

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 Orofino Realty Co., 40 N.Y.2d 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 N.Y.2d 272, 275). Sullivan, J.P., Miller, Copertino, Joy and Friedmann, JJ., concur.