Opinion
April 10, 1995
Appeal from the Supreme Court, Nassau County (Saladino, J.).
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.