Zimmerman v. City of Niagara Falls

112 A.D.2d 17 | N.Y. App. Div. | 1985

Order and judgment unanimously affirmed, with costs. Memorandum: Defendant’s motion, treated as a motion for summary judgment pursuant to CPLR 3211(c), was properly granted. Plaintiffs failed to submit competent proof to contradict the city’s assertion that it had not received the statutorily required prior written notice of the alleged defect (see, Waring v City of Saratoga Springs, 92 AD2d 1080). Plaintiffs argue that the city had actual knowledge of the defect and is thus estopped from denying lack of notice. That argument lacks merit (see, Drzewiecki v City of Buffalo, 51 AD2d 870). Although Niagara Falls City Charter § 323-b does not specifically mention the alleged defect, the statutory language is broad enough to encompass the alleged defects (see, Donnelly v Village of Perry, 88 AD2d 764). Plaintiffs’ remaining arguments also lack merit. (Appeal from order and judgment of Supreme Court, Niagara County, Mintz, J. — dismiss complaint.) Present— Callahan, J. P., Boomer, Green, O’Donnell and Pine, JJ.