Rovello v. Orofino Realty Co., Inc

In Rovello v. Orofino Realty Co., Inc., 40 NY2d 633 [1976] the Court of Appeals stated that "affidavits received on a unconverted motion to dismiss for failure to state a cause of action are not to be examined for the purpose of determining whether there is evidentiary support for the pleading" and that "affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint . . ." (40 NY2d at 635-636). The conflict has arisen because the Rovello court completed the immediately-preceding quoted sentence as follows: ". . ., although there may be instances in which a submission by a plaintiff will conclusively establish that he has no cause of action" (40 NY2d at 636). Further, the very next sentence states: ". . . affidavits submitted by the defendant will seldom if ever warrant the relief he seeks unless too the affidavits establish conclusively that plaintiff has no cause of action" (40 NY2d at 636).