DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the plaintiff's contention, the Supreme Court properly considered the evidentiary material which the defendant submitted in support of its motion to dismiss the complaint pursuant to CPLR 3211(a)(7). It is well settled that evidentiary material may be considered on a CPLR 3211(a)(7) motion to assess the viability of a complaint, and where such evidence demonstrates that a material fact alleged by the plaintiff to be true is "not a fact at all," the complaint should be dismissed ( see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275; Well v. Yeshiva Rambam, 300 A.D.2d 580; Oliver v. Garris, 298 A.D.2d 509; see also Adams v. O'Connor, 245 A.D.2d 537). Here, the gravamen of the plaintiff's complaint is that the defendant insurance company violated the covenant of good faith and fair dealing which it owed to its insureds by refusing to settle the underlying personal injury action for the full amount available under their limited policy ( see Pavia v. State Farm Mut. Auto. Ins. Co., 82 N.Y.2d 445). However, in view of the documentary evidence that the personal injury action has now been settled for the full amount available under the subject policy, the defendant cannot be held liable for the bad faith refusal of a settlement offer ( see Pavia v. State Farm Mut. Auto. Ins. Co., supra). Accordingly, the Supreme Court properly dismissed the action.
The plaintiff's remaining contentions are without merit.
SANTUCCI, J.P., KRAUSMAN, COZIER and MASTRO, JJ., concur.