TWENTY-FIVE E. 40TH ST. REST. v. FORBES

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.