36 N.Y.2d 696 | NY | 1975
Memorandum. The order of the Appellate Division should be affirmed, with costs. In this defamation action, after the completion of pretrial discovery, respondents moved for summary judgment on the ground that they did not authorize the publication of the advertisement about which plaintiff complains. The motion was supported by affidavits attesting to the fact that the publication was unauthorized and included an affidavit by the publisher, an independent foreign medical journal, averring that the advertisement complained of was printed erroneously and without the knowledge or approval of the respondents. Rather than submitting affidavits containing contrary factual averments, plaintiff concentrated his defense to the motion on an illusory assertion that the jury might disbelieve respondents’ affiants. In order to defeat summary judgment, with this stated background, it was incumbent upon plaintiff “ to submit evidentiary facts or materials, by affidavit or otherwise, rebutting the prima facie showing * * * and demonstrating the existence of a triable issue of Ultimate fact ” (Indig v. Finkelstein, 23 N Y 2d 728; CPLR 3212, subd. [b]), all "of which hé has failed to establish. Hope alone will not raise a triable issue.
Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.
Order affirmed.