Klimek v. Town of Ghent, Columbia County

• Decision Date: 17 October 1985
• Citation: Klimek v. Town of Ghent, Columbia County, 494 N.Y.S.2d 453, 114 A.D.2d 614 (N.Y. App. Div. 1985)
• 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, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 453

494 N.Y.S.2d 453

114 A.D.2d 614

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, et al., Respondents.

Supreme Court, Appellate Division Third Department.

Oct. 17, 1985.

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

McClung, Peters, Simon & Arensburg (Susan F. Weber, of counsel), Albany, for respondent.

Maynard, O'Connor & Smith (Thomas G. Daley, of counsel), Albany, for respondents.

Donohue, Donohue & Sabo (Kenneth G. Varley, of counsel), Albany, for Catherine Burfeind and another, respondents.

Before KANE, J.P., and MAIN, WEISS, YESAWICH and LEVINE, JJ.

WEISS, Justice.

Appeal from an order of the Supreme Court at Special Term (Cholakis, J.), entered November 29, 1984 in Columbia County, which denied defendant Town of Ghent's motion for summary judgment dismissing the complaint against it.

The facts in this case are set forth in Klimek v. Town of Ghent, 71 A.D.2d 359, 423 N.Y.S.2d 517, where we denied plaintiff's motion to dismiss the affirmative defense of lack of compliance with Local Law, 1976, No. 1 of Town of Ghent (requirement for prior written notice of condition complained of) and held the local law to be constitutional. The case is before us again on this appeal by defendant Town of Ghent from Special Term's denial of its motion for summary judgment dismissing the complaint because it had not received the written notice required by said Local Law No. 1. Briefly, plaintiff commenced this action against the Town and other defendants to recover damages for personal injuries sustained by his then infant son on July 19, 1978, when a tractor operated by the infant on a Town road allegedly ran on to the shoulder striking first a culvert, then a tree, and went down an embankment. The complaint alleges that the Town was negligent in designing, creating, constructing, establishing, repairing, reconstructing and maintaining the road, shoulder, drainage system and appurtenances thereto.

Plaintiff does not contend that he ever gave the prior written notice, but both he and the other defendants urge distinct grounds to support Special Term's denial of the Town's motion. The Town Superintendent of Highways testified at his deposition that no records of notices were kept by him or his predecessors prior to 1980, thus creating a factual issue as to whether any written notice was received. ^* Moreover, when a municipality has or should have knowledge of a defective or dangerous condition because it either has inspected or is performing work upon the subject area shortly before the accident, an exception to statutory prior written notice requirements may exist (see, Holt v. County of Tioga, 95 A.D.2d 934, 936, 464 N.Y.S.2d 278, appeal dismissed 60 N.Y.2d 701, 468 N.Y.S.2d 1028, 455 N.E.2d 1268; see also, Blake v. City of Albany, 63 A.D.2d 1075, 405 N.Y.S.2d 832, affd. 48 N.Y.2d 875, 424 N.Y.S.2d 358, 400 N.E.2d 300). Here, evidence obtained in pretrial disclosure created a triable issue of fact as to whether Town employees may have inspected the road shortly before the accident, thereby triggering the exception found in Blake v. City of Albany (supra ). Finally, plaintiff's opposing papers adequately presented a triable issue of fact as to whether the Town was guilty of negligence in constructing the culvert, an affirmative act of negligence for which it could be held liable even absent prior written notice (see, Haviland v. Smith, 91 A.D.2d 764, 458 N.Y.S.2d 11). Since the drastic remedy of...