Loudin v. Mohawk Airlines, Inc. , 275 N.Y.S.2d 359 ( 1966 )

Order, entered on February 10, 1966, denying motion to dismiss second amended complaint and granting leave to replead the third cause of action, unanimously reversed, on the law, with $50 costs and disbursements to appellants, and with leave to plaintiff to replead the first and second causes of action. The second amended complaint contains three causes of action. The third cause of action wras the sixth cause of action of the second amended complaint which was dismissed by this court without leave to replead (24 A D 2d 447). When attention was called to this, plaintiff cross-moved to replead. This practice is not permissible. The application must be made, preferably by way of motion to amend the order of dismissal, to the same court or Judge which dismissed the cause of action. The first and second causes of action are in libel. In effect they allege that the defendants discharged the plaintiff because he certified a pilot as qualified who should not have been certified. There is nothing in the written matter which in any way characterizes plaintiff’s act and it is not inferable that he certified the pilot because of improper influences, or that he was generally incapable. Consequently, the article is not ■libelous per se (Twiggar v. Ossining Print. & Pub. Co., 161 App. Div. 718; Amelkin v. Commercial Trading Co., 23 A D 2d 830, affd. 17 N Y 2d 500). In order to state a cause of action, special damages must be pleaded (November v. Time Inc., 13 N Y 2d 175, 178). Special Term’s conclusion that the article charged plaintiff with perjury because it stated that he testified before the Civilian Aeronautics Board cannot be sustained. Quite aside from technical objections, there is absolutely no implication that the testimony stated to be given by plaintiff was in any way false. Concur — Rabin, J. P., McNally, Stevens, Steuer and Capozzoli, JJ.