Indig v. Finkelstein, 23 N.Y.2d 730 (1968)

A party opposing a motion for summary judgment must present evidentiary facts demonstrating a triable issue of fact; mere repetition of allegations in pleadings or bills of particulars is insufficient.

Summary

In this defamation case, the defendants moved for summary judgment, supported by affidavits asserting the slanderous statements were not made in the presence of others, thus negating publication. The plaintiffs opposed the motion with an affidavit referencing potential witnesses but failed to provide specific evidentiary facts about their testimony or proximity to the alleged statements. The New York Court of Appeals affirmed the grant of summary judgment for the defendants, holding that the plaintiffs failed to demonstrate a triable issue of fact by merely reiterating allegations without providing supporting evidence.

Facts

Plaintiffs brought a defamation action against the defendants, alleging slanderous statements. The defendants moved for summary judgment, submitting affidavits asserting that the alleged verbal altercation occurred without any third parties present. Plaintiffs, in their opposition, submitted an affidavit referencing witnesses named in their bills of particulars who would testify at trial regarding the altercation. However, the affidavit failed to detail the content of the anticipated testimony or provide any facts demonstrating that these witnesses were actually present and able to hear the alleged slanderous statements.

Procedural History

The defendants moved for summary judgment at the trial court level. The trial court’s decision is not explicitly mentioned in the Court of Appeals decision. The Appellate Division’s order, affirming the summary judgment in favor of the defendants, was appealed to the New York Court of Appeals. The Court of Appeals affirmed the Appellate Division’s order.

Issue(s)

Whether the plaintiffs presented sufficient evidentiary facts to rebut the defendants’ prima facie showing of no publication and demonstrate a triable issue of ultimate fact, thus precluding summary judgment.

Holding

No, because the plaintiffs’ opposing affidavit merely referred to potential witnesses without providing specific evidentiary facts showing their proximity to the alleged slanderous statements or the content of their anticipated testimony.

Court’s Reasoning

The Court of Appeals emphasized that once the defendants presented a prima facie case for summary judgment, the burden shifted to the plaintiffs to demonstrate a triable issue of fact with evidentiary proof. The court found the plaintiffs’ affidavit insufficient because it merely reiterated the allegations from their pleadings and bills of particulars. The affidavit failed to specify how the plaintiffs knew what the witnesses’ testimony would be, provide the content of their anticipated testimony, or establish that the witnesses were in a position to hear the alleged slanderous statements. The court cited CPLR 3212(b) and several precedents, including Shapiro v. Health Ins. Plan, emphasizing the need for more than just allegations to defeat summary judgment.

The court reasoned that failing to provide specific facts about the witnesses’ location during the altercation or any circumstances indicating they likely heard the conversations meant that no genuine issue of material fact was presented. The court explicitly stated, “The burden upon a party opposing a motion for summary judgment is not met merely by a repetition or incorporation by reference of the allegations contained in pleadings or bills of particulars, verified or unverified”. This highlights the importance of providing concrete evidence, not just assertions, to defeat a motion for summary judgment. The court implicitly reinforced the policy of efficient dispute resolution by preventing cases lacking genuine factual disputes from proceeding to trial.