Wahl v. Wahl

— Order, insofar as appealed from, unanimously reversed, on the law, with costs, motion denied and counterclaim reinstated. Memorandum: On plaintiffs 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]), *565in 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 AD2d 129; see also, Rovello v Orofino Realty Co., 40 NY2d 633). Special Term’s reliance on Riffat v Continental Ins. Co. (104 AD2d 301) is misplaced because this is not a claim which is patently false and unprovable. (Appeal from order of Supreme Court, Monroe County, Mark, J. — dismiss counterclaim.) Present — Doerr, J. P., Den-man, Green, Pine and Schnepp, JJ.