
    Twenty-Five East 40th Street Restaurant Corporation, Appellant, v. Forbes, Inc., Respondent.
    Argued February 17, 1972;
    decided March 15, 1972.
    
      Harry T. Kirp and Leon H. Charney for appellant.
    
      Michael J. DeSantis, John A. Wilson and Lawrence G. Golde for respondent.
   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.  