Opinion
February 23, 1998
Appeal from the Supreme Court, Suffolk County (Berler, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, "and that branch of the motion which was to dismiss the second cause of action to recover damages for negligent misrepresentation is granted.
The plaintiffs' bare assertion that the defendants "negligently misrepresented to the plaintiffs the risk created by the use, discharge and deposit of the hazardous materials" is legally insufficient to state a cause of action for negligent misrepresentation ( see, CPLR 3016 [b]; Lanzi v. Brooks, 43 N.Y.2d 778; Fort Ann Cent. School Dist. v. Hogan, 206 A.D.2d 723; Franklin v. Winard, 199 A.D.2d 220, 221; New York Fruit Auction Corp. v. City of New York, 81 A.D.2d 159, 161-162, affd 56 N.Y.2d 1015). In assessing a motion to dismiss for failure to state a cause of action ( see, CPLR 3211 [a] [7]) the court may consider any evidence that could properly be considered on a motion for summary judgment ( see, CPLR 3211 [c]; Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634). The affirmation of the plaintiffs' attorney submitted in opposition to the defendants' motion to dismiss, inter alia, the second cause of action is of no probative value since it was not supported by any documentary evidence ( see, Barasch v. Micucci, 49 N.Y.2d 594, 600; Adam v. Cutner Rathkopf, 238 A.D.2d 234; Gorman v. Gorman, 88 A.D.2d 677).
Mangano, P.J., Miller, Pizzuto and Krausman, JJ., concur.