Opinion
June 13, 1988
Appeal from the Supreme Court, Westchester County (Wood, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The complaint alleges three causes of action: breach of contract, transfer of the corporate defendant's assets without notice to the plaintiff creditor in order to defraud the plaintiff of money due and owing to it, and unjust enrichment. Where, as here, the motion to dismiss has not been converted to one for summary judgment, affidavits
"are not to be examined for the purpose of determining whether there is evidentiary support for the pleading * * *
"[They] may be received for a limited purpose only, serving normally to remedy defects in the complaint" (Rovello v Orofino Realty Co., 40 N.Y.2d 633, 635-636).
Unless the affidavits establish conclusively that no cause of action will lie, dismissal is not warranted (Fields v Leeponis, 95 A.D.2d 822). Applying this standard of review, we find the plaintiff's complaint legally sufficient on its face.
The documents sought by the plaintiff's demand for discovery, as limited by the Supreme Court's determination, relate to the facts surrounding the sale of the business and are material and necessary to the preparation of the plaintiff's case. Thompson, J.P., Brown, Weinstein and Rubin, JJ., concur.