FLEMING v. LONG ISLAND RAILROAD

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.