Appeal by defendant Municipal Housing Authority for the City of Yonkers from an order of the City Court, City of Yonkers, Westchester County (R. Cerrato, J.), dated October 29, 2002, denying its motion to dismiss for failure to state a cause of action and granting a motion by co-defendant Nubie Valle to dismiss for failure to state a cause of action.

Order unanimously affirmed without costs.

The complaint alleges a cause of action against appellant housing authority based upon its failure to make rent subsidy payments pursuant to a housing assistance payments contract. While, in moving to dismiss for failure to state a cause of action, appellant made an evidentiary showing which tends to indicate that the assistance contract terminated prior to the period for which relief is sought in the complaint, the motion was not converted to a motion for summary judgment. In the absence of such a conversion, the motion papers "are not to be examined for the purpose of determining whether there is evidentiary support for the pleading" (Rovello v Orofino, 40 NY2d 633, 635). [*3]Accordingly, the City Court properly denied appellant's motion to dismiss.

The motion by co-defendant Nubie Valle to dismiss was properly granted inasmuch as the complaint did not state a cause of action against her.
Decision Date: October 01, 2003