Opinion
June 4, 1985
Appeal from the Supreme Court, Niagara County, Mintz, J.
Present — Callahan, J.P., Boomer, Green, O'Donnell and Pine, JJ.
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 A.D.2d 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 A.D.2d 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 A.D.2d 764). Plaintiffs' remaining arguments also lack merit.