Shaw v. City of Auburn

91 A.D.2d 817, 458 N.Y.S.2d 96, 1982 N.Y. App. Div. LEXIS 19715

Opinion

— Judgment unanimously reversed, on the law and facts, without costs, and complaint dismissed. Memorandum: Plaintiffs have recovered a verdict for damages sustained as a result of an accident occurring when plaintiff Helen Shaw tripped on a depressed manhole located in an Auburn city street and fractured a bone in her foot. There was no evidence that the defect was caused by the municipality and thus, compliance with the prior written notice provision of section 157 of the Auburn Municipal Code was an essential element of plaintiffs’ causes of action. Since they failed to either plead or prove compliance with the code’s notice provisions, defendant’s motion to dismiss the complaint should have been granted (see Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 365; MacMullen v City of Middletown, 187 NY 37; Fullerton v City of Schenectady, 285 App Div 545, affd 309 NY 701, app dsmd 350 US 980; Deacon v City of Buffalo, 29 AD2d 620; see, also, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3015, subd |a], p 58). (Appeal from judgment of Cayuga County Court, Contiguglia, J. — negligence.) Present — Dillon, P. J., Simons, Hancock, Jr., Doerr and Boomer, JJ.