
    (February 5, 1970)
    Earl Barnes, Appellant, v. City of New York et al., Defendants, and George Covington et al., Defendants-Respondents.
   — Judgment entered June 12, 1969, dismissing complaint as against defendants-respondents, unanimously affirmed, with $50 costs and disbursements to respondents, on the ground that respondents’ communication of the alleged defamatory statements was privileged. The affidavits in support of this motion to dismiss the complaint for failure to state a cause of action asserted that the alleged communication was privileged, and from the affidavits and the complaint it appears that qualifiedly such is the case. In this posture, plaintiff was obliged to come forward with evidentiary facts from which respondents’ alleged malice might be inferred. (Shapiro v. Health Ins. Plan, 7 N Y 2d 56; Vecino v. Martinez, 24 A D 2d 429; CPLR 3211, subd. [c].) This he failed to do. Concur — Capozzoli, J. P., Markewieh, Steuer and Maeken, JJ.  