In an action to recover damages for an alleged libelous statement, defendant appeals from an order of the Supreme Court, Kings County, dated July 10, 1964, which denied his motion for
summary judgment dismissing the complaint. Order reversed, with $20 costs and disbursements; motion granted, and com,plaint dismissed, without costs. It is undisputed that the alleged libelous statement of the defendant was contained in a professional report which he was retained to render as a. doctor. Plaintiff concedes that under the circumstances the defendant was protected by a qualified privilege, but plaintiff claims that the privilege was vitiated by actual malice. However, plaintiff failed to satisfy his burden of establishing evidentially such actual malice (see Shapiro v. Health Ins.
Plan, 7 N Y 2d 56). Moreover, the proofs adduced established the contrary inference that the report of the defendant was free from malice. Since no other question of fact remains,
summary judgment in defendant’s favor should be granted. Christ, Acting P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.