Fleming v. Long Island RR

59 N.Y.2d 895 (1983)

Mark Fleming et al., Appellants, v. Long Island Railroad, Respondent.

Court of Appeals of the State of New York.

Argued June 1, 1983.

Decided June 16, 1983.

James L. Fischer, Thomas W. Hyland and John W. Manning for appellants.

Mitchell Kaufman and Seymour H. Metnick for respondent.

Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS.

Order affirmed, with costs, and question certified answered in the affirmative (Andersen v Long Is. R. R., 59 N.Y.2d 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 a matter required by CPLR 3018 (subd [b]) to be pleaded a an affirmative defense.