AMERICAN INDUSTRIAL CONTR. v. TRAVELERS INDEMNITY CO

MEMORANDUM.

Order affirmed, with costs, on the memorandum at the Appellate Division. Appellant's reliance on Rovello v Orofino Realty Co. ( 40 N.Y.2d 633) is mistaken. That case dealt only with the propriety of using affidavits in support of a motion to dismiss the complaint for legal insufficiency, that is, for failure to state a cause of action pursuant to CPLR 3211 (subd [a], par 7). In this case, where the motion, pursuant to paragraph 1 of subdivision (a), was one to dismiss on the ground that a defense is founded upon documentary evidence, the Rovello case has no application.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.

Order affirmed, with costs, in a memorandum.