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FALCO v. D'AGOSTINO

42 A.D.2d 590 (1973)

Nicholas Falco, Respondent, v. Robert D'Agostino, Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

June 18, 1973

Order reversed, on the law, with $20 costs and disbursements, and motion granted.

In our opinion, under the circumstances of this case, plaintiff's failure to include in his opposing affidavit any evidentiary facts to support the allegation of malice warranted dismissal of the complaint (Shapiro v. Health Ins. Plan of Greater N. Y., 7 N.Y.2d 56; Klein v. Prial,

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