
    Mark Fleming et al., Appellants, v Long Island Railroad, Respondent.
    Argued June 1, 1983;
    decided June 16, 1983
    
      APPEARANCES OF COUNSEL
    
      James L. Fischer, Thomas W. Hyland and John W. Manning for appellants.
    
      Mitchell Kaufman and Seymour H. Metnick for respondent.
   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.  