James J. Barrett v. City Buffalo

Judgment unanimously reversed, on the law and facts, with costs, motion denied, and a new trial granted. Memorandum: Plaintiff was injured when he stepped upon the cover of a water valve box located in the bed of South Park Avenue in the City of Buffalo. The cover tipped, and plaintiffs foot and heel entered the water valve box, resulting in injury to the heel. The parties agree that no prior written notice of a defect in the box or cover was served upon the city clerk pursuant to section 362 of the Buffalo City Charter. The issue on appeal is whether, under the facts of this case, such notice was essential to plaintiffs cause of action. In dismissing the complaint at the close of plaintiffs case, the trial court found that it was. We disagree. A municipality has the duty to keep its streets in good repair, and where it has actual or constructive notice of a [96 A.D.2d 709 Page 710]