Memory Gardens, Inc. v. D'Amico

— Appeal from that part of an order of the Supreme Court at Special Term (Graves, J.), entered March 19,1982 in Albany County, which denied defendant Emma T. D’Amico’s motion for summary judgment on the first cause of action set forth in the complaint. Plaintiffs seek damages based upon a conversation with an investigator from the New York State Division of Cemeteries in which defendants stated that unless plaintiffs delivered a deed to cemetery lots purchased by them, they were prepared to make a scathing report concerning plaintiffs to a newspaper reporter. The sole surviving cause of action^[1] alleges that the words and message were false and defamatory and were spoken willfully and maliciously with intent to injure and damage plaintiffs and constituted both a tort and the crime of attempted larceny by extortion (plaintiffs’ attorney has labeled the action as one for slander).^[2] Special Term denied a motion for summary judgment as to Emma D’Amico but granted dismissal as to her husband. Emma D’Amico has appealed. There should be a modification of Special Term’s order and a dismissal of the complaint. In support of the motion, defendants offered an affidavit from Clinton Merrow, a senior investigator assigned by the Director of the New York State Division of Cemeteries, who interviewed both plaintiffs and defendants concerning the alleged failure to deliver a deed to cemetery plots to defendants, in an attempt to resolve the dispute. The affidavit unequivocally states that Emma D’Amico told him that she had been interviewed by a newspaper reporter but that she instructed the reporter not to print any story relating to the Memory Gardens, Inc., cemetery and that she did not wish any further publicity relating to the cemetery. Nowhere in the record does it appear that Emma D’Amico disclosed anything to the investigator, or the newspaper reporter concerning the details of a scathing report. It is fundamental that to sustain a claim based upon slander, publication of the defamatory utterances must be proven. Unless evidentiary facts sufficient to raise triable issues are adduced in opposition to a motion to dismiss, summary judgment will be granted (see Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369 , 384, cert den 434 US 969 ; James v Gannett Co., 40 NY2d 415 ). Where the moving party has demonstrated its entitlement to summary judgment, the opposing party must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or tender an acceptable excuse for his failure to do so (Zuckerman v City of New York, 49 NY2d 557 ). Defendant having offered proof of lack of publication in the affidavit of the investigator, it became plaintiffs’ burden to produce evidentiary facts to defeat the motion (Graney Dev. Corp. v Taksen, 62 AD2d 1148 , 1149). Plaintiffs must establish the substance of material of sufficient import to create a triable issue (4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.12; Shaw v Time-Life Records, 38 NY2d 201 , 207). To meet this burden, plaintiffs offered only their own affidavits instead of that of either the investigator or newspaper reporter or otherwise, which are insufficient to defeat the motion (Zuckerman v City of New York, supra, p 562 ; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285 ; Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255 , 259). On a motion for summary judgment, the court will not weigh credibility of affiants (Capelin Assoc. v Glove Mgf. Corp., 34 NY2d 338 ,341). It is the rule in