The opinion
Lynch, J. (dissenting).
Although concurring with my colleagues’ finding that the statement complained of is libelous per se, I dissent and would affirm. To prove its cause of action the plaintiff must prove that one of the individual defendants made the offensive statement at their joint interview. To support their motion for summary judgment, the defendants, while conceding that they made all of the other statements attributed to them at the interview, have denied under oath that any of them made the offensive statement. To meet this proof the plaintiff is able to express only the possibility that, because the defendants admitted all the other statements, a jury might find their denial of the offensive statement incredible. This is insufficient to create an issue of fact to defeat summary judgment (Downey v General Foods Corp., 31 NY2d 56, 62 ; Bachrach v Farbenfabriken Bayer AG, 36 NY2d 696 ).
Murphy, P. J., and Silverman, J., concur with Lupiano, J.; Lynch, J., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on January 8, 1976, reversed on the law, without costs and without disbursements, vacated, and the motion denied.