Opinion
July 12, 1996
Appeal from the Supreme Court, Cattaraugus County, Feeman, Jr., J.
Present — Pine, J.P., Fallon, Callahan, Balio and Boehm, JJ.
Order unanimously affirmed without costs. Memorandum: In their complaint, plaintiffs affirmatively pleaded that "[t]he limitations on liability set forth in [section] 1601 of the Civil Practice Law and Rules do not apply to this action because the claims in this action fall within the exclusion set forth in [section] 1602 (6) of the Civil Practice Law and Rules." Defendants denied that allegation in their answer. It is therefore not necessary for defendants to plead this issue as an affirmative defense ( see, Siegel, N.Y. Prac § 223, at 326 [2d ed], citing Green Bus Lines v. Consolidated Mut. Ins. Co., 74 A.D.2d 136, lv denied 52 N.Y.2d 701). In light of our determination, we do not consider the remaining contentions of the parties.