In New York under CPLR 205(a) a plaintiff is given six months to re-file a complaint if there complaint is dismissed against MTA for failure to comply with the 30-day demand requirement set forth in Public Authorities Law 1276(1) and (6).  The Second Department unequivocally held in Fleming v. Long Island Railroad, 130 A.D.2d 59 (N.Y. App. Div. 2d Dep’t 1987) that a dismissal of a complaint pursuant to plaintiff’s failure to comply with the 30-day demand requirement set forth in Public Authorities Law § 1276(1) and (6) does not bar a plaintiff from re-serving a new complaint under CPLR § 304(a) which complies with the condition precedent set forth in the Public Authorities Law.   Under CPLR 205(a)  when an action that has been timely commenced and is later dismissed, a new action may be commenced within six months of the termination, so long as the dismissal was not (1) by voluntary discontinuance, (2) for neglect to prosecute the action, or (3) a final judgment upon the merits (see, CPLR 205(a)). In addition, this six-month tolling provision does not apply where there is a lack of personal jurisdiction in the prior.

Fleming v. Long Island Railroad specifically says, “The purpose of the 1976 amendment to Public Authorities Law § 1276 (6) was “to liberalize the notice of claims provision of section 50-e of the General Municipal Law and to eliminate preconditions to suit which exist by reason of similar provisions contained in the Public Authorities Law” (Niemczyk v Pawlak, 76 AD2d 84, 86; 1976 NY Legis Ann, at 10-11). The language of this court in the previous decision in Fleming v Long Is. R. R. (supra) was limited to holding that the requirement in Public Authorities Law § 1276 (1), that a plaintiff plead compliance in the complaint with the 30-day demand rule, survived the 1976 amendment to Public Authorities Law § 1276 (6). We noted that, unlike the “notice” requirement of, e.g., General Municipal Law § 50-e, the surviving 30-day demand rule was designed simply to afford the affected public authority or subsidiary an opportunity to settle a claim without incurring the expense of litigation. In this regard, it is well settled that dismissal for the failure to plead compliance with a condition precedent is the equivalent of a dismissal for failure to state a cause of action, and is not a jurisdictional defect (see, Tucker v Long Is. R. R. Co., 128 AD2d 517; Fitzgibbon v County of Nassau, 112 AD2d 266; Matter of Day Surgicals v State Tax Commn., 97 AD2d 865).”

Based upon the ruling in Fleming the requirement of the 30-day demand set forth in Public Authorities Law § 1276 (1) does not impose upon the plaintiffs a statutory period within which an action may be commenced. The only such period imposed upon the plaintiffs is the 1-year and 30-day Statute of Limitations within which the original action was unquestionably commenced. Moreover, it is clear from the record that the original action was properly commenced within the meaning of CPLR 304.