SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
- decided: January 27, 1969.
KREMER CONSTRUCTION CO., INC., RESPONDENT,
BENJAMIN GARFINKEL, APPELLANT.
In an action for libel, defendant appeals from an order of the Supreme Court, Queens County, dated July 31, 1968, which denied his motion for summary judgment. Order reversed, on the law, with $10 costs and disbursements, and motion granted. We are of the opinion that the defense of qualified privilege is applicable (Byam v. Collins, 111 N. Y. 143; Bingham v. Gaynor, 203 N. Y. 27). In view of the applicability of this defense it is incumbent upon plaintiff to establish by evidentiary facts its allegation of actual malice in order to overcome the defense of qualified privilege (Shapiro v. Health Ins. Plan of Greater N. Y., 7 N.Y.2d 56). Since plaintiff failed to satisfy the requirements of showing evidentiary facts as opposed to making mere conclusory statements, the motion should have been granted. Brennan, Acting P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.
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