In Indie v Finkelstein, 23 NY2d 728 (1968), the Court clearly instructed, at 729, that the "burden upon a party opposing a motion for summary judgment is not met merely by a repetition or incorporation by reference of the allegations contained in pleadings or bills of particulars, verified or unverified (citations omitted)."Summary of this case from Marotta v. Toyota Motor Credit Corp.
Submitted November 14, 1968
Decided November 27, 1968
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, IRVING H. SAYPOL, J.
Moses H. Hoenig for appellants.
Donald L. Kuba for respondents.
MEMORANDUM. Defendants' motion for summary judgment is supported by affidavits, containing evidentiary facts, showing that the verbal altercation in which the alleged slanders were uttered did not take place in the presence of others. It was then mandatory upon plaintiffs to submit evidentiary facts or materials, by affidavit or otherwise, rebutting the prima facie showing of no publication and demonstrating the existence of a triable issue of ultimate fact (CPLR 3212, subd. [b]; Shapiro v. Health Ins. Plan, 7 N.Y.2d 56, 63; Steingart Assoc. v. Sandler, 28 A.D.2d 801, 802-803; Green v. Irwin, 28 A.D.2d 971). The burden upon a party opposing a motion for summary judgment is not met merely by a repetition or incorporation by reference of the allegations contained in pleadings or bills of particulars, verified or unverified ( Siren Realty Corp. v. Biltmore Prods. Corp., 27 A.D.2d 519; Twigg v. Twigg, 117 Misc. 154, affd. 202 App. Div. 729; Greenberg v. Ughetto, 17 Misc.2d 46; cf. O'Meara Co. v. National Park Bank, 239 N.Y. 386, 395; see 1 Bender's New York Practice, § 10.20, par. 9, pp. 684-686, and supp. par. 14, pp. 265-268; Carmody, New York Practice [7th ed.], § 467; 6 Carmody-Wait 2d; New York Practice, § 39.29, p. 477; 3 Wait's New York Practice Simplified [4th ed.], pp. 618-620).
Order substituted, 27 A.D.2d 522.
An opposing affidavit by one plaintiff, adopted by the other plaintiff, referred to persons named in their bills of particulars as witnesses to the alleged verbal altercation, who would be called to testify at the trial. It did not set forth how it was known what their testimony would be, or give the content of the anticipated trial testimony of the witnesses. Nor were any evidentiary facts averred showing precisely where the named persons were during such altercation or that they heard the conversations, or any circumstances, conclusions in the complaint aside, indicating that it was likely that they had heard such conversations. Hence, no triable issue of ultimate fact was raised.
The order of the Appellate Division should be affirmed, with costs.
Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, KEATING, BREITEL and JASEN concur.