Fleming v. Long Island Railroad

OPINION OF THE COURT

Order affirmed, with costs, and question certified answered in the affirmative (Andersen v Long Is. R. R., 59 NY2d 657). We add only that because the demand provided for in subdivision 1 of section 1276 of the Public Authorities Law is a condition to consent of the State and the passage of 30 days since the demand is required to be alleged in the complaint, the lack of such a demand is not r. matter required by CPLR 3018 (subd [b]) to be pleaded a, an affirmative defense.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons.