Fleming v. Long Island Railroad

Full title: MARK FLEMING et al., Appellants, v. LONG ISLAND RAILROAD, Respondent

Court: Court of Appeals of the State of New York

Date published: Jun 16, 1983

59 N.Y.2d 895 (N.Y. 1983)

465 N.Y.S.2d 938

452 N.E.2d 1266

Opinion

Argued June 1, 1983

Decided June 16, 1983

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ALBERT H. BUSCHMANN, J.

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

Mitchell Kaufman and Seymour H. Metnick for respondent.

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.

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