Opinion
February 20, 1976
Appeal from the Erie County Court.
Present. — Marsh, P.J., Moule, Simons, Mahoney and Goldman, JJ.
Order unanimously affirmed, without costs. Memorandum: Plaintiffs recovered a verdict for property damage to their building resulting from vibrations caused when passing trucks and buses struck a depression in the street. The trial court set aside the verdict and dismissed the complaint because plaintiffs failed to prove that the city clerk had received prior written notice of the defect as required by section 362 of the Buffalo City Charter. Concededly, such notice was not delivered to the city clerk. However, the city engineer had prior written notice and plaintiffs contend that substantial compliance is all that is required. The power of municipalities to insulate themselves from liability for damages resulting from nonfeasance is well established by statute (Second Class Cities Law, § 244; Village Law, § 6628; Town Law, § 65-a) and court decision (MacMullen v City of Middletown, 187 N.Y. 37; Fullerton v City of Schenectady, 285 App. Div. 545, affd 309 N.Y. 701; Ellis v City of Geneva, 259 App. Div. 502, affd 288 N.Y. 478) and in the absence of compliance with such statutory provisions where applicable, no cause of action exists. Any relief from this requirement must come from the Legislature and cannot come from the courts. Plaintiffs contend that the city is estopped from denying notice because of the correspondence of the city engineer acknowledging the defect and assuring them that the street would be fixed (cf. Matter of Daley v Greece Cent. School Dist. No. 1, 21 A.D.2d 976, affd 17 N.Y.2d 530, discussing estoppels re notice of claim under General Municipal Law, § 50-e). The issue is not whether the city had actual knowledge of the defect. Concededly, it did. But a city may deny recovery to a plaintiff for damages resulting from nonfeasance even though it has actual knowledge of the defect (see Ellis v City of Geneva, supra). The dismissal was proper because plaintiffs failed to establish the prior written notice required by the charter which was a necessary condition precedent to their cause of action (see Barry v Niagara Frontier Tr System, 35 N.Y.2d 629, 633-634).