Opinion
July 11, 1986
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Doerr, J.P., Denman, Green, Pine and Schnepp, JJ.
Order, insofar as appealed from, unanimously reversed, on the law, with costs, motion denied and counterclaim reinstated. Memorandum: On plaintiff's motion to dismiss defendant's counterclaim pursuant to CPLR 3211 (a) (7), the court erred in ruling on the merits. Unless a motion to dismiss for failure to state a cause of action is converted by the court to a motion for summary judgment (CPLR 3211 [c]), in which case notice must be given to the parties, it is error to examine affidavits received on the motion for the purpose of determining whether there is evidentiary support for the pleading (Hornstein v Wolf, 109 A.D.2d 129; see also, Rovello v Orofino Realty Co., 40 N.Y.2d 633). Special Term's reliance on Riffat v Continental Ins. Co. ( 104 A.D.2d 301) is misplaced because this is not a claim which is patently false and unprovable.