October 3, 1967
Order, entered December 15, 1966, unanimously modified on the law, to dismiss the third, fourth and fifth causes of action, and order otherwise affirmed, with $50 costs and disbursements to the defendant-appellant. The plaintiff's said causes of action are to recover for alleged false and defamatory utterances of the defendant. The defendant, upon a motion pursuant to CPLR 3212, has established prima facie that the alleged statements were not made and that they were not uttered by him in the presence of the particular third person as claimed by plaintiff. He denies unequivocally that he said the words and shows that he was elsewhere than at the place where plaintiff says they were uttered. Under the circumstances, the plaintiff was bound to come forward with evidentiary facts to support his alleged causes of action and to show that there is a bona fide and triable issue. (See Shapiro v. Health Ins. Plan, 7 N.Y.2d 56, 63; Ball v. United Artists Corp., 13 A.D.2d 133, 135; Greenbaum v. American Metal Climax, 27 A.D.2d 225.) The plaintiff, however, has failed to present any evidence that the statements attributed to the defendant were in fact uttered or published by him as alleged nor is there any showing that such evidence is available. It is realized, of course, that the plaintiff, in an action for slander, may not be able to procure an affidavit from a person present at the time of the alleged utterances; but, in such a case, the plaintiff should set forth the sources of his information and the grounds for his belief as to the facts alleged to constitute his cause of action. When properly challenged on a motion for summary judgment, plaintiff may not rest solely on his hearsay and conclusory allegations that the alleged slanderous statements were made by the defendant.
Concur — Stevens, J.P., Eager, Capozzoli, Tilzer and McGivern, JJ.