Subway Surface Supervisors Ass'n v. New York City Transit Authority

Sweeny and Abdus-Salaam, JJ.,

dissent in a memorandum by Abdus-Salaam, J., as follows: I respectfully dissent. I would dismiss the petition for failure to state a cause of action.

Respondent is correct that in the absence of an application by petitioner to replead, or for leave to serve an amended pleading accompanied by the proposed amended pleading (see CFLR 3025 [b]), the proper procedure under these circumstances would have been for the court to dismiss the petition once petitioner *537abandoned its claim based on Civil Service Law § 61 (2). By ordering a hearing on the issue of whether…