
    American Industrial Contracting Co., Inc., Appellant, v Travelers Indemnity Company, Respondent, et al., Defendant.
    Argued September 6, 1977;
    decided October 6, 1977
    
      
      Harris Birnbaum and Barry N. Birnbaum for appellant.
    
      Harry P. Sacks, Stuart M. Levine and Jeffrey A. Aronson for respondent.
   Memorandum. Order affirmed, with costs, on the memorandum at the Appellate Division. Appellant’s reliance on Rovello v Oroñno Realty Co. (40 NY2d 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.  