Opinion
Argued April 3, 2000.
May 15, 2000.
In four related actions, inter alia, to recover damages for personal injuries, the defendant SGS Travelscope, Inc., appeals from so much of an order of the Supreme Court, Kings County (Huttner, J.), entered May 26, 1999, as denied its motions to dismiss the complaints in all of the actions, insofar as asserted against it.
Rubin, Hay Gould, P.C., Framingham, Mass. (Rodney E. Gould and Robert C. Mueller of counsel), and Friedberg Raven, LLP, New York, N.Y. (Keith A. Raven of counsel), for appellant in all four actions (one brief filed).
Schneider, Kleinick, Weitz, Damashek Shoot, New York, N Y (Brian J. Shoot and James M. Lane of counsel), for Sharon German, respondent in Action No. 1.
GUY JAMES MANGANO, P.J., LAWRENCE J. BRACKEN, SONDRA MILLER, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
"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" (Hinrichs v. Youssef, 214 A.D.2d 604, 604-605; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, see also, Methe v. General Elec. Co., 169 A.D.2d 864; FYM Clinical Lab., Inc. v. Perales, 147 A.D.2d 840, affd 74 N.Y.2d 539; Hornstein v. Wolf, 109 A.D.2d 129, affd 67 N.Y.2d 721). Here, the Supreme Court did not convert the appellant's pre-answer motions to motions for summary judgment (see, CPLR 3211 [c]). Thus, the plaintiffs may not be penalized for failing to interpose evidentiary submissions (see, Rich v. Lefkovitz, 56 N.Y.2d 276; Rovello v. Orofino Realty Co., supra). Rather, accepting the plaintiffs' allegations as true, and giving them the benefit of every favorable inference (see, IHC Servs. Inc., v. Product Safety Mgt., Inc., ___ A.D.2d ___ [2d Dept., Jan. 31, 2000]; Taverna v. Microchip Technology, Inc., ___ A.D.2d ___ [2d Dept., Jan. 24, 2000]; Rhode v. Port Washington Cinema Corp., ___ A.D.2d ___ [2d Dept., Dec. 27, 1999]; U.S. Ice Cream Corp. v. Bizar, 240 A.D.2d 654), the complaints state viable causes of action against the appellant.
The appellant's remaining contentions are without merit.
MANGANO, P.J., BRACKEN, S. MILLER and GOLDSTEIN, JJ., concur.