
    Cole Fisher Rogow, Inc., Appellant, v. Carl Ally, Inc., et al., Respondents, et al., Defendants.
    Argued September 29, 1969;
    decided October 9, 1969.
    
      
      Max Shamis and George Charak for appellant.
    
      Carleton G. Eldridge, Jr. and Timothy K. Hart for Carl Ally, Inc., and others, respondents.
    
      Peter F. Nadel and Ambrose Doskow for Gilbert Advertising Agency, Inc., and other respondents.
   Memorandum. The order of the Appellate Division should be affirmed with costs. The advertisement, which forms the predicate for the charge of defamation, constitutes protected fair comment under the common law. (See, e.g., Foley v. Press Pub. Co., 226 App. Div. 535.) It is true, as the plaintiff contends, that proof of malice would defeat that defense. However, treating the applications, made by the defendants on affidavits, as motions for summary judgment under CPLR 3211 (subd. [c]), the plaintiff has failed to state sufficient evidentiary facts, warranting a trial, to support its allegation that the defendants were motivated by malice. (Stillman v. Ford, 22 N Y 2d 48, 53; Shapiro v. Health Ins. Plan of Greater N. Y., 7 N Y 2d 56, 60.)

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson concur.

Order affirmed.  