Klimek v. Town of Ghent, Columbia County

• Decision Date: 27 December 1979
• Citation: 71 A.D.2d 359,423 N.Y.S.2d 517
• Parties: Charles F. KLIMEK, Individually and as Father and Natural Guardian of Peter E. Klimek, an Infant, Respondent, v. TOWN OF GHENT, COLUMBIA COUNTY, New York, Appellant, and County of Columbia, New York, John Burfeind et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 517

423 N.Y.S.2d 517

71 A.D.2d 359

Charles F. KLIMEK, Individually and as Father and Natural Guardian of Peter E. Klimek, an Infant, Respondent, v. TOWN OF GHENT, COLUMBIA COUNTY, New York, Appellant and County of Columbia, New York, John Burfeind et al., Defendants.

Supreme Court, Appellate Division, Third Department.

Dec. 27, 1979.

Connor, Curran, Connor, Flint & Schram, Chatham (Theodore Guterman, II, Chatham, of counsel), for appellant.

McClung, Peters & Simon, Albany (Robert E. Simon, Albany, of counsel), for respondent.

Before MAHONEY, P. J., and GREENBLOTT, MAIN, MIKOLL and HERLIHY, JJ.

MAIN, Justice.

On July 19, 1978, the infant Peter E. Klimek, age 13, was allegedly seriously injured while operating a tractor with a trailing wagon on Harlemville Road in the Town of Ghent. The mishap allegedly occurred when a front wheel of the tractor dropped into a depression above a culvert, with the result that the tractor, the wagon and the infant operator were thrown down into a meadow below the road. As a consequence of the accident, the boy's father commenced the present action and in his complaint alleged that his son's injuries resulted from, Inter alia, the negligence of the Town of Ghent in the construction and maintenance of the road, the road's shoulders and drainage system and the appurtenances thereto. In its answer the Town asserted as an affirmative defense that it could not be liable to plaintiff in this case because there had been no compliance with the Town's Local Law Number 1. That law provides, in pertinent part, that no civil action shall be maintained against the town for injuries resulting from any property of the town being defective, out of repair, unsafe, dangerous or obstructed unless, prior to the occurrence of the injuries, the town shall have been given actual written notice of the condition complained of and shall have failed or neglected within a reasonable time to repair or remove the condition.

At Special Term, plaintiff moved for an order dismissing this affirmative defense upon the ground that the Local Law is unconstitutional and, therefore, void. Agreeing with this argument, the court granted plaintiff's motion, and it premised its decision upon the fact that the challenged law is inconsistent with the general laws of the State, i. e., section 65-a of the Town Law and section 50-e of the General Municipal Law, in that it requires prior service upon the town of a written notice of an unsafe condition. This appeal followed.

We hold that Special Term's order should be reversed and, in so ruling, would initially note that an exceedingly strong presumption of constitutionality attaches even to a local law (Lighthouse Shores v. Town of Islip, 41 N.Y.2d 7, 390 N.Y.S.2d 827, 359 N.E.2d 337). We also find no inconsistency between...