Falco v. D'Agostino , 42 A.D.2d 590 ( 1973 )

In an action to recover damages for libel, defendant appeals from an order o£ the Supreme Court, Westchester County, dated June 19, 1972, which denied his motion for summary judgment. Order reversed, on the law, with $20 costs- and disbursements, and motion granted. In our opinion, under the circumstances of this case, plaintiff’s failure to include in his opposing affidavit any evidentiary facts to support the allegation of malice warranted dismissal of the complaint (Shapiro v. Health Ins. Plan of Greater N. I, 7 N Y 2d 56; Klein v. Prial, 32 A D 2d 925, affd. 28 IT Y 2d 506). Rabin, P. J., Hopkins, Martuscello, Shapiro and Christ, JJ., concur.