Argued February 17, 1972
Decided March 15, 1972
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ANDREW R. TYLER, J.
Harry T. Kirp and Leon H. Charney for appellant.
Michael J. DeSantis, John A. Wilson and Lawrence G. Golde for respondent.
Order affirmed, with costs. The plaintiff has failed to state any evidentiary facts, warranting a trial, to support its allegation that the defendant was motivated by malice in publishing its critique of the plaintiff's restaurant. (See, e.g., Rosenbloom v. Metromedia, Inc., 403 U.S. 29; New York Times Co. v. Sullivan, 376 U.S. 254; Frink v. McEldowney, 29 N.Y.2d 720; Kent v. City of Buffalo, 29 N.Y.2d 818.)
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON.