Rowe v. City of North Tonawanda

—Order and judgment unanimously' affirmed without costs. Memorandum: Supreme Court properly granted the motion of defendant, the City of North Tonawanda (City), for a directed verdict and properly dismissed the complaint on the merits for plaintiffs failure to establish that the City received written notice of the alleged defect in the street. Pursuant to the City charter, such notice is a condition precedent to an action against the City (see, Katz v City of New York, 87 NY2d 241, 243; Cipriano v City of New York, 96 AD2d 817, 818; see generally, Barry v Niagara Frontier Tr. Sys., 35 NY2d 629, 633-634). Contrary to plaintiffs contention, this is not a case in which the City created the alleged defect through an affirmative act of negligence, thereby rendering the notice requirement inapplicable (see, Amabile v City of Buffalo, 93 NY2d 471, 474; Poirier v City of Schenectady,, 85 NY2d 310, 315; cf., Leon v City of Jamestown, 254 AD2d 748). (Appeal from Order and Judgment of Supreme Court, Niagara County, Lane, J. — Directed Verdict.) Present — Pigott, Jr., P. J., Green, Wisner, Kehoe and Burns, JJ.