Appellate Division of the Supreme Court of New York, 1985

Zimmerman v. City of Niagara Falls

Appellate Division of the Supreme Court of New York · Decided June 4, 1985

112 A.D.2d 17; 490 N.Y.S.2d 380; 1985 N.Y. App. Div. LEXIS 50648

Cases that cite this one

8 later published cases cite this decision.

Krysinski v. City of Rochester (Appellate Division of the Supreme Court of New York 1987)
Guadagno v. City of Niagara Falls (Appellate Division of the Supreme Court of New York 2007)
Gorman v. Town of Huntington (Appellate Division of the Supreme Court of New York 2007)
Weinfeld v. J. Robert Roth Associates, Inc. (Appellate Division of the Supreme Court of New York 1991)
Piscione v. County of Oneida (Appellate Division of the Supreme Court of New York 1990)
Lyndaker v. Sherwin Williams, Inc. (Appellate Division of the Supreme Court of New York 1988)
Rebaudo v. New York Telephone Co. (Civil Court of the City of New York 1988)
Dunster v. City of Rome (Appellate Division of the Supreme Court of New York 1987)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

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 *18broad 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.

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