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  5. 42 N.Y.2d 1041 (1977)
 

AM. INDUS. CONTRACTING CO., INC. v. TRAVELERS INDEM. CO.

42 N.Y.2d 1041 (1977)

American Industrial Contracting Co., Inc., Appellant, v. Travelers Indemnity Company, Respondent, et al., Defendant.

Court of Appeals of the State of New York.

Decided October 6, 1977.

Attorney(s) appearing for the Case

Harris Birnbaum and Barry N. Birnbaum for appellant.

Harry P. Sacks, Stuart M. Levine and Jeffrey A. Aronson for respondent.

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

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],...

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