Argued October 13, 1971
Decided November 18, 1971
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, GILBERT H. KING, J.
Frank G. Raichle, Ralph L. Halpern and Alger A. Williams for appellant.
Courtland R. LaVallee for respondent.
Order reversed, without costs, and the complaint dismissed in the following memorandum: We approve the rationale of the dissenting opinion at the Appellate Division and write only to note that upon application of the rule of Rosenbloom v. Metromedia ( 403 U.S. 29, 52), decided subsequent to the Appellate Division decision, we find the evidence too insubstantial to constitute "clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not." (and see Frink v. McEldowney, 29 N.Y.2d 720).
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.